ASHRAFEE v Minister for Immigration

Ashrafee (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 is from Iran, claimed to fear persecution upon return to Iran due to his alleged involvement in political activities against the Iranian government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not hold a well-founded fear of persecution. The applicant subsequently sought review of this decision in the Federal Circuit and Family Court of Australia.

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 determining whether the delegate had properly assessed the applicant's claims of political involvement and the associated risk of persecution in Iran, and whether the delegate had adequately considered all relevant evidence. Specifically, the Court had to consider if the delegate's adverse credibility findings were reasonably open on the evidence and if the delegate had applied the correct legal test for assessing a well-founded fear of persecution.

Judge A Kelly found that the delegate had made a jurisdictional error. The Court reasoned that the delegate's adverse credibility findings were not adequately explained and were not reasonably open on the evidence presented. The delegate had failed to engage with significant portions of the applicant's evidence, including documentary material and witness statements, which could have supported his claims. Furthermore, the delegate had applied an incorrect standard in assessing the applicant's fear, requiring a level of certainty that was not mandated by the *Migration Act 1958* (Cth) or relevant international conventions. The Court emphasised that a well-founded fear requires a real chance of persecution, not a mere possibility.

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