ATM18 v Minister for Home Affairs

ATM18 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged that they had been persecuted in their home country due to their ethnicity and political opinion. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which prevents certain non-citizens who have had a visa application refused or cancelled from applying for a protection visa. The matter came before Judge Egan in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa, having regard to s 48B of the *Migration Act*, was affected by jurisdictional error. Specifically, the applicant contended that the Minister failed to properly consider the exceptions to s 48B, which allow for the grant of a protection visa in compelling circumstances of a humanitarian nature. The applicant argued that the Minister's assessment of these circumstances was inadequate and did not reflect the true extent of the danger they faced if returned to Afghanistan.

Judge Egan found that the Minister's delegate had failed to adequately consider the evidence presented by the applicant regarding the humanitarian circumstances. The delegate's assessment was found to be superficial and did not engage with the specific details of the applicant's claims of persecution. The Court reiterated the principle that when considering exceptions to a bar such as s 48B, a delegate must undertake a genuine and thorough assessment of the evidence, particularly where significant humanitarian concerns are raised. The delegate's failure to do so constituted a jurisdictional error.

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