SZQKE v Minister for Immigration

The applicant, SZQKE, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The Minister's decision was based on the applicant's failure to satisfy the criteria for a protection visa under s 36(2)(aa) of the *Migration Act 1958* (Cth), which requires a person to hold a genuine fear of persecution. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision, finding that the applicant's claims of persecution were not credible.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of the applicant's claims. Specifically, the Court was asked to consider whether the AAT had failed to adequately consider all relevant evidence, including the applicant's subjective fear, and whether it had applied the correct legal test for assessing credibility and the risk of persecution. The applicant argued that the AAT had made findings of fact that were not supported by evidence and had failed to give sufficient weight to certain aspects of his testimony.

Judge Cameron found that the AAT had made an error of law by failing to properly consider the applicant's subjective fear of persecution. The Court held that the AAT had impermissibly conflated the assessment of credibility with the assessment of the risk of persecution. While the AAT was entitled to find aspects of the applicant's evidence not credible, it was still required to consider whether, even with those credibility findings, there remained a real chance of persecution. The Court emphasised that the assessment of subjective fear is a distinct and crucial element of the protection visa assessment.

The Court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.