IABH & HRBH

The Full Federal Court heard an appeal concerning the interpretation of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in relation to a protection visa application. The applicants, IABH and HRBH, sought judicial review of decisions made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which affirmed the refusal of their protection visa applications. The core of the dispute revolved around whether the Minister's delegate had properly considered the applicants' claims for protection under the relevant legislative framework.

The central legal issues before the Full Federal Court were: (1) whether the delegate erred in law by failing to consider the applicants' claims for protection in accordance with the non-refoulement obligations under international law, specifically Article 33 of the Refugee Convention, as incorporated into Australian domestic law; and (2) whether the delegate's decision was affected by an error of fact or law in assessing the credibility of the applicants' claims and the objective country information. The applicants argued that the delegate had applied an incorrect legal test when assessing their fear of persecution.

The Court found that the delegate had indeed made an error of law by failing to properly consider the applicants' claims in light of Australia's non-refoulement obligations. The delegate's assessment had focused on whether the applicants could demonstrate a "real chance" of persecution, which the Court held was an insufficient standard. Instead, the Court reiterated that the correct legal test requires an assessment of whether there is a "real chance" that the applicant would suffer harm amounting to persecution, taking into account all relevant circumstances, including the subjective fear of the applicant and objective country information. The Court emphasised that the delegate must engage with the entirety of the applicant's case and not isolate aspects of it.

Consequently, the Full Federal Court allowed the appeal, set aside the decisions of the Minister's delegate, and remitted the applications for protection visas to the Minister for redetermination according to law.