DJY18 v Minister for Home Affairs

DJY18 (the applicant) sought judicial review of a decision by the Minister for Home Affairs (the respondent) to refuse to grant a protection visa. The applicant, who is of Vietnamese nationality, claimed to fear persecution in Vietnam due to their alleged involvement in a criminal organisation and their perceived association with a political dissident. The application was heard in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law by failing to properly consider the applicant's claims of persecution arising from their alleged involvement in a criminal organisation. Specifically, the applicant argued that the delegate had not adequately assessed the risk of harm from non-state actors, such as members of that organisation, and had instead focused predominantly on the risk of harm from the Vietnamese state. The applicant contended that this narrow focus constituted a failure to properly apply the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) concerning the assessment of protection claims.

Judge Riley found that the delegate's assessment had indeed been flawed. The Court held that the delegate had misinterpreted the scope of the protection provisions by limiting their consideration of harm to that which emanated directly from the Vietnamese state. The reasoning was that the legislation requires consideration of harm from any source, including non-state actors, if that harm amounts to persecution. The delegate's failure to engage with the applicant's specific claims regarding the criminal organisation and the potential for harm from its members meant that the decision was not based on a proper understanding of the legal requirements.

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