BES17 v Minister for Immigration

The applicant, BES17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which refused her application for a protection visa. BES17 claimed to fear harm in China, and while the Tribunal accepted her account of events as true, it ultimately found her fear of harm to be not well-founded. The matter came before Judge Driver in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT had complied with its obligations under sections 438 and 440 of the *Migration Act 1958* (Cth) in its assessment of BES17's protection visa application. Specifically, the Court was required to determine if the Tribunal's finding that the applicant's fear was not well-founded, despite accepting her factual claims, constituted a jurisdictional error.

Judge Driver found that the Tribunal had committed a jurisdictional error. The Court reasoned that the Tribunal's approach, which accepted the applicant's factual claims but then concluded her fear was not well-founded, demonstrated a misunderstanding of the relevant legal test for establishing a well-founded fear. The Court held that the Tribunal failed to properly consider whether the facts accepted as true would lead a reasonable person in the applicant's circumstances to fear harm. Consequently, the Court quashed the AAT's decision.