BNS15 v Minister for Immigration and Border Protection & Anor

The applicant, BNS15, sought judicial review of a decision made by the Minister for Immigration and Border Protection (the Minister) to refuse to grant a protection visa. The dispute concerned the lawfulness of the Minister's decision, which was made under s 48B of the *Migration Act 1958* (Cth). The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing BNS15's claim for a protection visa under s 48B of the *Migration Act*. Specifically, the Court was asked to determine if the delegate's assessment of BNS15's subjective fear of persecution was vitiated by errors of law.

In reaching its decision, the Court applied the principles of administrative law concerning the proper exercise of statutory power. It was held that the delegate's assessment of BNS15's subjective fear was influenced by an erroneous understanding of the evidentiary burden required to establish a well-founded fear. The Court found that the delegate had incorrectly applied a standard of proof that was too high, effectively requiring BNS15 to prove their fear with a degree of certainty that was not mandated by the *Migration Act*. This misapplication of the legal standard constituted a failure to consider relevant considerations and the taking into account of irrelevant considerations, thereby rendering the delegate's decision unlawful.

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