BUH16 v Minister for Immigration

BUH16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who arrived in Australia by boat, claimed to fear persecution in their country of origin due to their ethnicity and political opinion. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they did not meet the criteria for a protection visa. The applicant then applied to the Federal Circuit and Family Court of Australia for review of this decision.

The primary legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved examining whether the delegate had properly considered all the evidence before them, including the applicant's claims of persecution, and whether the delegate had applied the correct legal principles in assessing the applicant's credibility and the risk of harm. Specifically, the Court had to determine if the delegate had failed to adequately assess the applicant's subjective fear or the objective likelihood of persecution.

Judge Riley found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's subjective fear of persecution. The delegate's reasons did not demonstrate a proper understanding of the applicant's stated fears, nor did they engage with the evidence in a way that would allow for a proper assessment of the applicant's credibility. The Court held that a failure to properly assess subjective fear constitutes a failure to exercise the jurisdiction conferred by the *Migration Act 1958* (Cth).

Consequently, the Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.