CMG18 v Minister for Immigration

The applicant, CMG18, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who is of Iranian nationality, claimed to fear persecution in Iran due to their alleged involvement in political activities and their gender identity. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they would not face persecution if returned to Iran. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered all relevant aspects of the applicant's claims, including their fear of persecution based on political opinion and gender identity, and whether the delegate's adverse credibility findings were reasonably open on the evidence. The Court was also required to consider whether the delegate had adequately assessed the risk of harm the applicant might face upon return to Iran.

Judge Driver found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's claims regarding their gender identity and the associated risks of persecution. The Court held that the delegate's assessment of these claims was superficial and did not engage with the specific evidence provided by the applicant. Furthermore, the Court determined that the delegate's adverse credibility findings, particularly in relation to the applicant's political activities, were not reasonably open on the evidence before them, as they had failed to properly weigh all the available information. The Court concluded that the delegate's decision was vitiated by these errors.

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