Nain v Minister for Immigration

In *Nain v Minister for Immigration*, the applicant sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's delegate had refused the protection visa application, a decision that was subsequently affirmed by the Administrative Appeals Tribunal. The applicant then sought to challenge this refusal in the Federal Court.

The primary legal issue before the Court was whether the delegate's decision, as affirmed by the Tribunal, had failed to properly consider the applicant's claims of persecution, particularly in light of the subjective elements of the assessment. Specifically, the Court was asked to determine if the delegate had applied the correct legal test when assessing the real chance of the applicant suffering harm, and whether the delegate had adequately considered all relevant evidence presented by the applicant.

Judge Nicholls found that the delegate had made an error of law by failing to properly assess the subjective element of the applicant's fear. The Court held that the delegate had impermissibly conflated the objective and subjective aspects of the assessment, effectively requiring the applicant to prove the objective likelihood of harm rather than assessing whether there was a real chance of harm occurring based on the applicant's subjective fear and the available objective evidence. The Court reiterated the principle that the assessment of a real chance of persecution requires a consideration of both the subjective fear of the applicant and the objective circumstances.

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