Hao v Minister for Immigration

Hao (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, a citizen of Vietnam, had arrived in Australia by boat and claimed to fear persecution in his home country due to his involvement in a political organisation that opposed the Vietnamese government. The Minister's delegate had refused the protection visa application, finding that the applicant's claims were not credible and that he did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth).

The primary legal issue before Driver J was whether the delegate's decision was affected by jurisdictional error. Specifically, the court was asked to consider whether the delegate had failed to properly consider the applicant's claims of persecution, thereby failing to exercise the power conferred upon them by the *Migration Act*. This involved an examination of the delegate's assessment of the applicant's credibility and the evidence presented in support of his protection claims.

Driver J found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claims regarding his political activities and the potential consequences he faced in Vietnam. The delegate's reasons for decision did not demonstrate a proper engagement with the substance of the applicant's evidence, particularly concerning the alleged threats and the applicant's fear of returning. The court applied the principle that a delegate must genuinely consider all relevant claims and evidence put forward by an applicant for a protection visa, and that a failure to do so constitutes a failure to exercise the power conferred by the legislation.

The court ordered that the decision of the delegate be set aside and remitted to the Minister for redetermination according to law.