ENC18 v Minister for Immigration and Anor and END18 v Minister for Immigration and Anor

These proceedings concerned two applications for judicial review heard together, brought by ENC18 and END18 (the applicants) against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (the respondents). The applicants sought to challenge decisions made by the Minister to refuse their applications for a protection visa. The core of the dispute revolved around the Minister's assessment of the applicants' claims for protection, specifically concerning the risk of persecution they faced in their country of origin.

The primary legal issues before the Court were whether the Minister's decisions were affected by jurisdictional error. This involved determining whether the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicants' claims. Specifically, the Court was asked to consider whether the Minister had adequately assessed the risk of persecution based on the applicants' imputed political opinions and whether the Minister had properly considered the evidence presented by the applicants regarding the general country situation and their individual circumstances.

Judge Blake reasoned that the Minister's assessment of the risk of persecution must be based on a proper consideration of all relevant evidence, including the applicants' personal circumstances and the general country situation. The Court applied the principles of administrative law, particularly concerning the duty to afford procedural fairness and the prohibition against jurisdictional error. The Minister was required to make a genuine assessment of the risk of harm, and a failure to properly consider or weigh the evidence could constitute such an error. The Court found that the Minister's assessment in both cases had failed to adequately consider the evidence relating to the applicants' imputed political opinions and the specific risks they faced, thereby constituting jurisdictional error.

Consequently, the Court set aside the Minister's decisions to refuse the protection visa applications and remitted the matters to the Minister for redetermination according to law.