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

Sultana (the applicant) sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) to refuse to grant a protection visa. The applicant, who was a citizen of Iran, claimed to have been persecuted in Iran due to his membership of a particular religious minority. The respondent had refused the protection visa application on the basis that the applicant's claims were not credible. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the respondent's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the applicant argued that the delegate who made the decision failed to properly consider and assess the evidence presented in support of his claims of persecution, thereby failing to undertake the assessment required by the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The applicant contended that this failure amounted to a jurisdictional error, rendering the decision invalid.

Emmett J found that the delegate's assessment of the applicant's claims was inadequate. His Honour observed that the delegate had not engaged with the specific details of the applicant's account of persecution, nor had the delegate adequately considered the documentary evidence provided. The Court applied the principle that a failure to properly consider relevant evidence or to engage with the substance of an applicant's claims can constitute a jurisdictional error, as it means the decision-maker has not truly exercised the power conferred upon them. Consequently, Emmett J concluded that the respondent's decision was affected by jurisdictional error.

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