Jankovic & Anor v Min for Immig & Ethnic Affairs

Jankovic and another (the applicants) sought judicial review of a decision by the Minister for Immigration and Ethnic Affairs (the Minister) to refuse to grant them a protection visa. The applicants, who were citizens of the former Yugoslavia, claimed to have a well-founded fear of persecution if returned to their country of origin. The Minister had refused their application on the basis that they did not meet the criteria for a protection visa under the Migration Act 1958 (Cth). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decision to refuse the protection visa was affected by an error of law. Specifically, the applicants contended that the Minister had failed to properly consider their claims for protection, particularly in light of the ongoing conflict and political instability in the former Yugoslavia. They argued that the Minister's assessment of their fear of persecution was based on an incorrect understanding of the relevant legal principles and the factual circumstances.

The High Court, comprising Gaudron, McHugh and Gummow JJ, examined the Minister's decision-making process. Their Honours considered the provisions of the Migration Act and the international conventions to which Australia is a party, particularly the Refugee Convention. The Court's reasoning focused on whether the Minister had applied the correct legal test when assessing the applicants' claims for protection and whether the evidence before the Minister had been adequately considered. The Court affirmed that the assessment of a well-founded fear of persecution requires a careful and objective evaluation of the applicant's subjective fears in light of objective country information.

The High Court found that the Minister's decision was affected by an error of law. The Court concluded that the Minister had failed to properly consider the applicants' claims for protection in accordance with the requirements of the Migration Act and the Refugee Convention. Accordingly, the High Court quashed the Minister's decision and remitted the matter to the Minister for reconsideration according to law.