1508194 (Migration)

The applicant, Mr. K. S., sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs, which affirmed the refusal of his visa application. The dispute centred on whether the Minister's decision was affected by jurisdictional error. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister, in affirming the refusal of Mr. K. S.'s visa application, had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby committing jurisdictional error. Specifically, the Court was required to determine if the delegate's assessment of Mr. K. S.'s subjective risk of harm in his home country was adequate and properly reasoned.

Her Honour Judge Lo Piccolo found that the delegate's decision contained jurisdictional error. The delegate's assessment of the subjective risk of harm was based on a generalised assessment of the country information and failed to adequately engage with the specific circumstances and subjective fears articulated by Mr. K. S. The Court applied the principles established in *Minister for Immigration and Border Protection v. WZGEP* [2022] FCAFC 150, which emphasise the need for a decision-maker to genuinely consider the applicant's subjective claims and not merely apply a generalised approach. The delegate's failure to properly assess the subjective risk meant that the decision was not open to the delegate to make.

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