ABA15 v Minister for Immigration

ABA15 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who was of Afghan origin, claimed to fear persecution in Afghanistan due to their ethnicity and alleged past involvement with a political organisation. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not substantiated and that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The applicant then applied to the Federal Circuit Court for review of this decision.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa 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 ethnicity-based persecution and past political affiliations, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The Court also considered whether the delegate had failed to properly assess the real chance of harm to the applicant if returned to Afghanistan, as required by the *Migration Act*.

Judge Heffernan found that the delegate had made a jurisdictional error. The Court concluded that the delegate's assessment of the applicant's claims regarding their ethnicity and past political involvement was superficial and failed to engage with the substance of the evidence presented. Specifically, the delegate's adverse credibility findings were not adequately supported by the reasons provided, leading to an erroneous conclusion that the applicant's claims were not substantiated. Consequently, the delegate had failed to properly assess the real chance of persecution, a critical element in the determination of a protection visa application.

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