Chien v Minister for Immigration

In *Chien v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then brought proceedings in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate's decision, as affirmed by the Tribunal, had failed to properly consider the applicant's claims of persecution, particularly in light of the subjective nature of fear and the objective assessment required by the *Migration Act 1958* (Cth) and relevant international conventions. Specifically, the Court had to determine if the delegate had adequately assessed the real chance of harm to the applicant and whether the Tribunal had erred in law by failing to give sufficient weight to certain aspects of the applicant's evidence.

Judge Jarrett found that the delegate's assessment had not adequately addressed the subjective element of the applicant's fear, nor had it properly applied the objective test for assessing the real chance of persecution. The Court held that the Tribunal, in affirming the delegate's decision, had also failed to properly consider the evidence and the applicable legal standards. The principles applied concerned the assessment of claims for protection visas, including the interplay between subjective fear and objective risk, and the evidential burden on applicants.

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