1615598 (Refugee)

The applicant, a citizen of Afghanistan, sought review of a decision by the Minister to affirm the refusal of a protection visa. The applicant had previously been granted a protection visa, but this visa was cancelled under s 501(2) of the *Migration Act 1958* (Cth) due to character grounds. Following the cancellation, the applicant departed Australia. The Minister's delegate affirmed the refusal of a protection visa, and this decision was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought judicial review of the Tribunal's decision.

The primary legal issue before the court was whether the Tribunal had erred in law by failing to consider, or adequately consider, the applicant's claims for protection in light of his departure from Australia and the circumstances surrounding that departure. Specifically, the court was asked to determine if the Tribunal had correctly applied the principles established in *Kao v Minister for Immigration and Ethnic Affairs* [1997] FCA 1148, which addresses the assessment of protection claims for individuals who have left Australia after their visa has been cancelled.

The court found that the Tribunal had failed to properly engage with the applicant's submissions regarding his fear of persecution upon return to Afghanistan, particularly in the context of his departure from Australia. The Tribunal's reasoning did not adequately explain why it considered the applicant's claims to be unsubstantiated, nor did it demonstrate a proper understanding of the implications of the applicant's voluntary departure from Australia following the cancellation of his visa. The court held that the Tribunal had misapplied the principles of *Kao*, leading to an error of law.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.