Giri v Minister for Immigration

Giri (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection Visa (Class XA) under s 36 of the *Migration Act 1958* (Cth). The Minister's delegate had refused the application, and this decision was affirmed by the Administrative Appeals Tribunal (AAT). The applicant then sought review of the AAT's decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the AAT had erred in law by failing to adequately consider the applicant's claims of persecution based on his membership of the Hazara ethnic group and his religious beliefs. Specifically, the Court had to determine if the AAT had properly applied the principles of international protection as outlined in the *Migration Act* and relevant international conventions, particularly concerning the assessment of risk of harm in the applicant's country of origin.

Judge Nicholls found that the AAT had failed to properly assess the risk of harm to the applicant. The Tribunal had not adequately considered the evidence regarding the general situation of Hazaras in Afghanistan and had not sufficiently engaged with the applicant's specific claims of past persecution and well-founded fear of future persecution. The Court held that the AAT's reasoning was deficient in its assessment of the objective circumstances of risk and its application of the "real chance" test for well-founded fear.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.