Paul Cutler's Migration Case Law Blog

The case of AEK20 v Minister [2022] FCAFC 175 is another decision that demonstrates the importance of providing evidence to support claims made in applications for revocation of a character cancellation.

AEK20 moved to Australia from Samoa at age 9 in 1999. In 2012 he pleaded guilty to a murder which was committed in the course of a violent home invasion. He also gave evidence against his co-offenders.

Because he had assisted police and given evidence against the co-offenders he claimed that he feared that he would be killed if he was returned to Samoa. His ground of appeal was effectively that the court at first instance hadn’t properly considered his claim that he would be inadequately protected in Samoa.

The main reasons for dismissing his appeal were set out in [16] of the judgement:

“…..The claim is limited to a subjective fear. The appellant did not claim that he would be “unable to access effective protection if returned to Samoa”. Nor did he claim that there was no form of witness protection available to him in Samoa. Moreover, those representations were not supported by any evidence which might have enabled the Minister to engage in any comparative analysis between Samoa and Australia concerning the risk of harm to the appellant or any analysis of the nature and extent of such risk. Nor was there any evidence of any threats of harm in Samoa, or who in Samoa would seek to harm him (the offending having occurred in Australia)”.

In many respects this amounts to the Applicant didn’t discharge their onus of proof. Evidence to support submissions is important!

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