CDH16 v Minister for Immigration

CDH16 (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 is of Afghan nationality, claimed to fear persecution in Afghanistan due to their membership of the Hazara ethnic group and their Shi'a Muslim faith. The Minister had refused the visa application on the basis that the applicant's claims were not substantiated and that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before Judge Street in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Minister's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate of the Minister had properly considered the applicant's claims of persecution, particularly in light of the prevailing security situation in Afghanistan and the specific vulnerabilities faced by the Hazara ethnic group and Shi'a Muslims. The Court was required to assess whether the delegate's findings of fact were reasonably open on the evidence before them and whether the delegate had applied the correct legal principles in assessing the risk of persecution.

Judge Street found that the delegate had failed to adequately consider the evidence relating to the general risk of persecution faced by members of the Hazara ethnic group and Shi'a Muslims in Afghanistan. The delegate's assessment had focused too narrowly on the applicant's individual circumstances without sufficiently engaging with the broader country information and expert evidence presented. The Court held that a proper assessment of the risk of persecution required a holistic consideration of both individual claims and the general country situation. Consequently, the delegate's decision was found to be affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.