AQY16 v Minister for Immigration

The applicant, AQY16, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The Minister's delegate had refused the application on the basis that the applicant did not meet the criteria for a protection visa under s 36(2)(b)(i) of the *Migration Act 1958* (Cth), finding that the applicant had not established a well-founded fear of persecution for a reason specified in the definition of 'refugee' in s 5(1) of the *Refugee Convention*. The matter came before Judge Nicholls of 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. Specifically, the Court was required to determine whether the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims, thereby vitiating the decision-making process. This involved an examination of whether the delegate had properly applied the legal test for a well-founded fear of persecution, including the assessment of the subjective fear of the applicant and the objective reasonableness of that fear.

Judge Nicholls reasoned that the delegate had failed to adequately consider the applicant's evidence regarding past persecution and the country information relevant to the applicant's claims. The Court found that the delegate had not properly engaged with the specific allegations made by the applicant, particularly concerning the risk of harm from non-state actors, and had not adequately assessed the objective reasonableness of the fear of such harm in light of the available country information. The legal principle applied was that a delegate must genuinely consider all relevant evidence and country information when making a decision on a protection visa application, and a failure to do so constitutes jurisdictional error.

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