BFS17 v Minister For Immigration and Anor (No.2)

BFS17 (the applicant) sought judicial review of a decision by the Minister for Immigration and Border Protection (the Minister) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to be a refugee. The Minister's delegate had refused the protection visa application on the grounds that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant then sought review of this decision in the Federal Circuit 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. Specifically, the applicant argued that the delegate failed to properly consider and assess the evidence provided in support of his claims of persecution, thereby failing to undertake the assessment required by the relevant provisions of the *Migration Act* and *Migration Regulations*. The applicant contended that this failure amounted to a jurisdictional error, rendering the delegate's decision invalid.

Judge Street found that the delegate had indeed failed to properly consider and assess crucial aspects of the applicant's evidence, particularly concerning his claims of past persecution and fear of future persecution. The Court held that a failure to undertake the statutory assessment required by the *Migration Act* and *Regulations* constitutes a jurisdictional error. The delegate's decision was therefore vitiated by such an 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.