CDF16 v Minister for Immigration

The Federal Court of Australia heard a dispute between CDF16 and the Minister for Immigration, Citizenship and Multicultural Affairs. CDF16, a non-citizen, sought judicial review of a decision made by the Minister. The Minister had affirmed a decision of the Administrative Appeals Tribunal (AAT) which had refused CDF16's application for a protection visa.

The primary legal issue before the Court was whether the AAT had erred in law when it failed to consider, or adequately consider, the evidence relating to CDF16's alleged fear of persecution by non-state actors in their country of origin. Specifically, the Court was asked to determine if the AAT's assessment of CDF16's claims of persecution by such actors was vitiated by a failure to apply the correct legal test for assessing claims of persecution by non-state actors under the *Migration Act 1958* (Cth) and relevant international conventions.

Justice Smith reasoned that the AAT had indeed made an error of law. The Tribunal's reasons indicated a focus on whether the Australian government could protect CDF16 from harm, rather than on whether CDF16 had a well-founded fear of persecution by non-state actors, which is the correct test under the *Migration Act*. The Court held that the AAT was required to assess the subjective fear of the applicant and the objective reasonableness of that fear, considering the possibility of persecution by non-state actors, even if the state was unable or unwilling to provide protection.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.