Jung v Minister for Immigration

Jung (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant him a visa. The applicant had applied for a Protection Visa (Class XA) under s 36 of the *Migration Act 1958* (Cth). The Minister's delegate had refused the application, finding that the applicant did not meet the criteria for a Protection Visa. The applicant contended that the delegate's decision was affected by jurisdictional error.

The primary legal issue before the Federal Court was whether the delegate, in assessing the applicant's claims for protection, had failed to consider relevant considerations or had taken into account irrelevant considerations, thereby vitiating the decision. Specifically, the applicant argued that the delegate had failed to properly consider the evidence relating to his fear of persecution in his country of origin and had instead relied on an incorrect understanding of the legal test for establishing a well-founded fear.

Judge Brown found that the delegate had indeed made a jurisdictional error. The delegate's reasons demonstrated a misunderstanding of the standard required to establish a "well-founded fear of persecution" under the *Migration Act*. The delegate appeared to require a higher degree of certainty than the law mandated, effectively shifting the onus onto the applicant to prove his fear was not speculative. This misapplication of the legal test meant that the delegate failed to properly engage with the evidence presented by the applicant concerning the risks he faced.

Consequently, the Federal Court quashed the delegate's decision and remitted the application for reconsideration according to law.