Misapplying the ‘real chance’ test
To satisfy the refugee criteria of the Protection Visa, you are required to show that there is a well-founded fear of persecution. Part of this requires an assessment of whether there is a ‘real chance’ of serious harm being suffered.
The ‘real chance’ test had been established since 1989 in the case of Chan v Minister for Immigration & Ethnic Affairs as ‘no less than reasonable speculation about what might occur in the reasonably foreseeable future on hypothesis that a visa applicant is returned to his or her country of nationality’.
DRO17 case was refused by the Department (then known as Department of Immigration and Ethnic Affairs), and also subsequently affirmed by the Independent Assessment Authority (IAA). However, the Applicant subsequently appealed to the Federal Circuit Court of Australia and was successful!
DRO17 – what grounds did they rely on?
In order for judicial review to succeed, they must be able to establish that a jurisdictional error had occurred. It is different to merits review conducted by IAA, where they consider the facts of the case afresh.
In DRO17, the Applicant was able to show that the IAA had misapplied the law i.e. they misapplied ‘real chance’ test.
DRO17 – what actually happened?
In DRO17, the applicant’s father was attacked and beaten up by the Sri Lankan army. Following this, he moved to live at a Colombo destitute boys’ home which allegedly was connected with the Liberation Tigers of Tamil Ealam (LTTE). Furthermore, the applicant’s cousin’s husband was allegedly a high-ranking member of LTTE and he had helped hold weapons and explosives for this relative at his home. Following a series of events, the applicant’s cousin’s husband disappeared, and the applicant was detained, questioned and mistreated by the authorities, for four (4) hours.
In 2012, the applicant illegally arrived in Australia and applied for a protection visa.
For the below reasons, the Department rejected his claim for protection:
· He was too young to be significantly involved with LTTE;
· Did not accept that the boys’ home had any connection with LTTE;
· That the authorities probably did not see him as having significant involvement since he was released after 4 hours of questioning;
· Did not consider that he had a profile with the authorities nor was a person of interest;
· His mistreatment and harassment was consistent with the treatment experienced by Tamils more generally.
The IAA affirmed this decision for similar reasons.
It was found that the IAA was in error by not properly considering the claims and misapplied the ‘real chance’ test.
The IAA referred to DFAT country information which addressed the general situation only and did not address the situation of a person with the applicant’s actual characteristics or a person who had engaged in the activities connected to the LTTE such as the applicant. Along with the below reasons, the IAA was found to have misapplied the ‘real chance’ test:
· IAA failed to draw inferences from the applicant’s particular features into the likelihood of harm in the future;
· It stopped short at the fact that he was released after four hours and not detained afterward; and
· Failed to make reasonable speculations as to what might occur in the future based upon the facts.
So what does this mean?
A proper assessment of whether the person has a well-founded fear of persecution upon returning to their country requires a reasonable assessment of what would happen in the future. An assessment of what had occurred in the past would be a logical starting point in considering what might happen in the future, but if the decision-maker plainly stops there then they may be in error.
The essence of the ‘real chance’ test is a process of looking to the future.
At Agape Henry Crux, our immigration lawyers and migration agents are well trained to handle highly complex matters. You can book one of our lawyers to seek professional advice by calling 02-27007200 or email us to book in a time at info@ahclawyers.com.