SZTMQ v Minister for Immigration and Border Protection

In SZTMQ v Minister for Immigration and Border Protection, the applicant, a citizen of Pakistan and follower of the Shia faith and of Bangash ethnicity, appealed against the Federal Circuit Court's dismissal of his application for judicial review of the Refugee Review Tribunal's (RRT) decision to affirm the delegate's refusal of his application for a Protection (Class XA) visa. The central issue before the court was whether the RRT applied the correct legal test in evaluating the appellant's claims for complementary protection. Specifically, the court needed to determine if the RRT used the correct standard of 'reasonable level' of state protection instead of the'real risk of significant harm' required by section 36(2B)(b) of the Migration Act 1958 (Cth). Another issue was whether the RRT adequately considered the appellant’s complementary protection claims as a whole as mandated by section 36(2)(aa) of the Act.

The court held that the RRT did not apply the correct legal test in assessing the appellant’s complementary protection claims. The tribunal instead applied a 'reasonable level' of state protection test rather than the'real risk of significant harm' test required by the Act. The court further found that the RRT failed to consider the appellant's claims comprehensively and did not address whether the appellant could obtain protection from the Pakistani authorities to avoid significant harm. These errors meant that the tribunal's decision was flawed and required reconsideration. Consequently, the appeal was allowed, and the matter was remitted back to the RRT for a fresh determination in accordance with the law.