DLG16 v Minister for Immigration

The applicant, DLG16, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who claimed to be a citizen of Afghanistan, alleged that they had been persecuted in their home country due to their ethnicity and political opinions. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that they had not established a well-founded fear of persecution. The matter came before Judge Street in 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. Specifically, the Court was required to determine if the delegate had failed to properly consider the applicant's claims, had made findings of fact that were not supported by evidence, or had otherwise acted outside their legal authority in assessing the applicant's fear of persecution. The applicant argued that the delegate had overlooked crucial evidence and had applied an incorrect standard in assessing the credibility of their claims.

Judge Street reasoned that the delegate's assessment of the applicant's claims had been flawed. The Court found that the delegate had failed to adequately engage with significant portions of the evidence presented by the applicant, including expert reports and witness statements that corroborated aspects of their account. Furthermore, the Court held that the delegate had applied an overly stringent test for credibility, requiring a level of certainty that was not mandated by the relevant legislation. The Court reiterated the principle that in protection visa cases, decision-makers must assess the *real chance* of persecution, not merely the *probability*.

The Court concluded that the delegate's decision contained jurisdictional error. Accordingly, Judge Street set aside the delegate's decision and remitted the application for a protection visa to the Minister for reconsideration according to law.