JMB and Ors & Secretary, Attorney-General's Department

The Full Federal Court heard an appeal concerning the lawfulness of decisions made by the Secretary of the Attorney-General's Department to refuse to grant protection visas to the applicants, JMB and others. The applicants, who were citizens of Afghanistan, had arrived in Australia by boat and sought protection on the basis that they feared persecution if returned to their country of origin. The core of the dispute revolved around the assessment of the risk of harm they faced and the Department's application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

The central legal issues before the Full Federal Court were whether the primary decision-maker had properly considered the evidence presented by the applicants regarding their claims of persecution, and whether the delegate had erred in their assessment of the real chance of harm. Specifically, the court was asked to determine if the delegate had failed to adequately assess the risk of harm from non-state actors in Afghanistan, and if the delegate had applied the correct legal test when considering the subjective fears of the applicants in conjunction with objective country information.

The Full Federal Court found that the delegate had made errors in their assessment. The court held that the delegate had not adequately considered the evidence relating to the specific circumstances of the applicants and had applied an overly restrictive approach to the assessment of risk from non-state actors. The judges emphasised that the assessment of a real chance of harm requires a holistic consideration of all relevant evidence, including the subjective fears of the applicant, and that a failure to do so would lead to an erroneous decision. The court allowed the appeal, setting aside the decisions of the primary decision-maker and remitting the applications for reconsideration according to law.