Khanum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Khanum (the applicant) sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) to refuse her application for a Protection visa. The applicant, a citizen of Pakistan, claimed to have been subjected to persecution in her home country due to her gender and her perceived association with a particular political party. The respondent's delegate had refused the visa application, finding that the applicant had not established a well-founded fear of persecution. The matter came before Manousaridis J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision to refuse the Protection visa was affected by jurisdictional error. This involved determining whether the delegate had properly considered the applicant's claims of persecution, particularly in relation to the risk of harm she faced as a woman in Pakistan and her alleged political affiliations. The Court was required to assess whether the delegate's findings of fact were reasonably open on the evidence before them and whether the delegate had applied the correct legal principles in assessing the applicant's fear of persecution.

Manousaridis J found that the delegate had made a jurisdictional error by failing to adequately consider the evidence relating to the applicant's fear of persecution due to her gender. The delegate's assessment had focused narrowly on specific instances of alleged harm, without sufficiently engaging with the broader context of the risks faced by women in Pakistan and how those risks applied to the applicant's specific circumstances. The Court reiterated the principle that a well-founded fear of persecution requires an assessment of both the subjective fear of the applicant and the objective reasonableness of that fear, considering the country information and the applicant's personal circumstances. The delegate's failure to properly weigh all relevant evidence and apply this principle constituted a jurisdictional error.

The Court ordered that the decision of the respondent be set aside and remitted to the respondent for redetermination according to law.