Fang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Fang (the applicant) sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant a protection visa. The applicant, who is a citizen of Vietnam, claimed to fear persecution in Vietnam due to his alleged involvement in a criminal organisation and his subsequent defection from that organisation. The Minister's delegate had refused the protection visa application on the grounds that the applicant did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant contended that the delegate's decision was affected by jurisdictional error.

The primary legal issue before the Federal Court was whether the delegate erred in law by failing to consider, or adequately consider, the applicant's claims regarding his fear of persecution arising from his defection from a criminal organisation. Specifically, the court was asked to determine if the delegate's assessment of the applicant's credibility and the assessment of the real chance of harm were vitiated by an error of law, particularly in light of the applicant's evidence concerning his past involvement and subsequent departure from the organisation.

Emmett J found that the delegate had failed to properly engage with the applicant's evidence concerning his defection from the criminal organisation and the consequent fear of persecution. The delegate's reasoning, as articulated in the refusal decision, did not demonstrate a sufficient consideration of the specific risks the applicant faced as a defector, including potential retribution from the organisation or adverse attention from Vietnamese authorities due to his past associations. The court held that a failure to adequately consider relevant evidence and claims, particularly those central to the applicant's protection claims, constituted a jurisdictional error.

The application for judicial review was therefore granted, and the delegate's decision was set aside. The matter was remitted to the Minister for reconsideration according to law.