Herijanto v Refugee Review Tribunal and Ors S97/1998

Herijanto (the applicant) sought judicial review of a decision by the Refugee Review Tribunal (the Tribunal) to affirm the Minister's decision to refuse to grant the applicant a protection visa. The applicant, an Indonesian citizen, claimed to have a well-founded fear of persecution in Indonesia due to his ethnicity and political opinions. The primary court was the Federal Court of Australia.

The central legal issue before Gaudron J was whether the Tribunal had erred in law by failing to consider, or adequately consider, certain evidence presented by the applicant. Specifically, the applicant argued that the Tribunal had overlooked or given insufficient weight to evidence concerning the general human rights situation in Indonesia and the specific risks faced by individuals of his ethnic background and political persuasion. The applicant contended that this failure amounted to an error in the application of the statutory criteria for granting a protection visa.

Gaudron J found that the Tribunal's decision-making process did not demonstrate a proper consideration of all the evidence before it. Her Honour noted that while the Tribunal had referred to some of the applicant's evidence, it had not adequately engaged with the substance of that evidence, particularly in relation to the broader context of persecution in Indonesia. The legal principle applied was that a decision-maker under the Migration Act 1958 (Cth) must genuinely consider all relevant evidence presented by an applicant. The failure to do so constitutes an error of law.

The application for judicial review was granted, and the decision of the Refugee Review Tribunal was set aside. The matter was remitted to the Tribunal for redetermination according to law.