Heng v Minister for Immigration

The applicant, Mr. Heng, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a Protection Visa (Class XA). The Minister's delegate had refused the application on the basis that Mr. Heng did not meet the criteria for a Protection Visa, specifically that he was not a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth). The matter came before Driver J of the Federal Court of Australia.

The central legal issue before the Court was whether the delegate had erred in law in assessing Mr. Heng's claims for protection. Specifically, the Court was required to determine if the delegate had failed to adequately consider or properly assess the evidence presented by Mr. Heng regarding his fear of persecution in his home country, and whether the delegate's adverse credibility findings were reasonably open on the evidence. This involved an examination of the delegate's assessment of the subjective and objective elements of Mr. Heng's claims.

Driver J found that the delegate had made an error of law by failing to adequately assess the cumulative impact of the evidence presented by Mr. Heng. The delegate had, in effect, compartmentalised the evidence, failing to consider how individual pieces of evidence, when viewed together, might support Mr. Heng's claims. The Court reiterated the principle that a delegate must consider all the evidence, both individually and cumulatively, when assessing a protection visa application. The delegate's adverse credibility findings were found to be based on an incomplete and therefore flawed assessment of the evidence.

Consequently, Driver J set aside the decision of the Minister's delegate and remitted the application for reconsideration according to law.