WADW v MIMA

The High Court of Australia considered an appeal by WADW against a decision of the Federal Court of Australia concerning the Minister for Immigration and Multicultural Affairs (MIMA). The dispute centred on the lawfulness of a decision made by the Minister to refuse to grant WADW a protection visa. WADW, an asylum seeker, had arrived in Australia and sought protection on the basis of a well-founded fear of persecution.

The primary legal issue before the High Court was whether the Minister's decision to refuse the protection visa was vitiated by an error of law, specifically concerning the proper application of the 'real chance' test in assessing WADW's claims for protection. This involved determining whether the Minister had adequately considered all relevant evidence and whether the assessment of the likelihood of persecution was conducted in accordance with the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The Court's reasoning focused on the standard of proof required for a protection visa application and the nature of the Minister's duty when assessing such claims. Gummow, Kirby and Heydon JJ held that the Minister's assessment had failed to properly engage with the evidence presented by WADW, particularly regarding the specific risks faced in their country of origin. The Court reiterated that the 'real chance' test requires a holistic assessment of the evidence, and a failure to give due weight to credible evidence of persecution constitutes an error of law. The appeal was allowed, and the matter was remitted to the Federal Court for redetermination.