1412062 (Refugee)

The applicant, a citizen of Afghanistan, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant had arrived in Australia by boat and claimed to fear persecution in Afghanistan due to his Hazara ethnicity and his alleged involvement with a political organisation. The Minister's delegate had refused the protection visa application, finding that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved examining whether the delegate had properly considered all the evidence before them, including the applicant's claims of persecution, and whether the delegate had applied the correct legal principles in assessing the applicant's claims against the criteria for a protection visa. Specifically, the Court was asked to determine if the delegate had failed to adequately assess the risk of harm to the applicant based on his ethnicity and alleged political affiliations, and if the delegate had made any errors in applying the relevant provisions of the *Migration Act* and the *Migration Regulations 1994* (Cth).

The Court found that the delegate had made a jurisdictional error in their assessment of the applicant's claims. The delegate's reasons for decision did not adequately address the specific risks faced by Hazaras in Afghanistan, nor did they sufficiently engage with the evidence presented regarding the applicant's alleged political involvement. The Court held that the delegate had failed to conduct a comprehensive assessment of the real chance of harm to the applicant, a failure that vitiated the decision. The Court applied the principles established in cases concerning the assessment of protection claims, emphasising the need for a thorough and evidenced-based evaluation of risk.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.