KHAREL v Minister for Immigration

The applicant, Mr. Kharel, sought judicial review of a decision by the Minister for Immigration to refuse his application for a Protection visa (class 782). The Minister's delegate had refused the application on the basis that Mr. Kharel did not meet the criteria for a Protection visa, specifically that he was not a person to whom Australia had protection obligations under the Migration Act 1958 (Cth) or the Refugees Convention. The matter came before Judge Raphael 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. This involved determining whether the delegate had properly considered and applied the relevant criteria under the Migration Act and the Refugees Convention, particularly concerning the assessment of Mr. Kharel's claims for protection and the application of the "real chance" test in assessing the risk of harm.

Judge Raphael found that the delegate had made a jurisdictional error by failing to adequately consider and assess the evidence presented by Mr. Kharel regarding his fear of persecution in his home country. The delegate's assessment was found to be superficial and did not engage with the substance of Mr. Kharel's claims, particularly in relation to the risk of harm he faced. The Court held that the delegate had not properly applied the "real chance" test, which requires a holistic assessment of the evidence to determine if there is a real chance of persecution.

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