1718602 (Refugee)

The applicant, a citizen of Afghanistan, sought review of a decision by the Minister to refuse to grant 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. The applicant subsequently departed Australia and sought to re-enter on a new protection visa application. The Minister refused this application, and the Administrative Appeals Tribunal affirmed that decision. The applicant then sought judicial review of the Tribunal's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to consider the applicant's claims regarding the risk of persecution in Malaysia, given that Malaysia was the country to which the applicant had been removed from Australia. The applicant argued that the Tribunal had not adequately assessed the real chance of him being returned to Afghanistan from Malaysia and facing persecution there.

The Court found that the Tribunal had indeed failed to adequately consider the applicant's claims concerning the risks he faced in Malaysia. The Tribunal's reasoning had focused primarily on the applicant's character issues and his removal from Australia, rather than thoroughly assessing the potential for refoulement from Malaysia. The Court reiterated the principle that when assessing a protection visa application, the Tribunal must consider all relevant circumstances, including the possibility of being returned to a country where the applicant fears persecution. The Tribunal's failure to engage with the specific risks in Malaysia constituted an error of law.

The Court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for redetermination according to law.