BAY18 v Minister for Home Affairs

The applicant, BAY18, sought judicial review of a decision made by the Minister for Home Affairs. The dispute concerned the applicant's claim for a protection visa, with the applicant alleging that the decision-making process was infected by jurisdictional error. The matter was heard by Judge Baird.

The applicant raised three grounds of review, all alleging jurisdictional error. Firstly, the applicant contended that the decision-maker assessed his communication style against a standard of Western education, failing to consider his background as an illiterate labourer with limited formal education and a different communication framework. Secondly, the applicant argued that the decision-maker misconstrued section 473DD of the *Migration Act 1958* (Cth) by excluding relevant information about the security situation in Mazar-e-Sharif and including information pertaining to other regions of Afghanistan. Thirdly, the applicant asserted a failure to provide natural justice, specifically by not adequately considering the safety risks to the applicant and his family travelling through Afghanistan from Pakistan, given warnings about dangers to Hazaras and the fact that his family had not returned due to safety concerns.

Judge Baird considered the applicant's submissions, including a UNHCR guidance note, a report by Professor William Maley, and a DFAT report. The Court found that the UNHCR guidance note was not before the original decision-maker and was not appropriate to be received as evidence, noting that reliance on it would constitute merits review, which was not the Court's function. The Court affirmed that section 473DD of the *Migration Act* obliged the Authority to consider the arrival interview, but it was for the Authority to determine the weight to be given to the applicant's evidence and statements throughout the application process. The Court concluded that it was not for the Court to engage in merits review by reference to the UNHCR guidance note.