Kemei v Minister for Immigration

The applicant, Kemei, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The Minister's delegate had refused the application on the basis that the applicant's claims of persecution were not substantiated by sufficient evidence. The matter came before Judge Antoni Lucev of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate had failed to adequately assess the applicant's claims, particularly in relation to the risk of harm upon return to their country of origin, and whether the delegate had applied the correct legal test in assessing the evidence.

Judge Lucev found that the delegate had failed to properly consider and assess all of the evidence presented by the applicant, including evidence relating to past persecution and the objective country information. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims in a manner required by the Migration Act 1958 (Cth) and the relevant case law. The Court concluded that this failure constituted a jurisdictional error.

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.