SZSBS v Minister for Immigration, Multicultural Affairs & Citizenship

The applicant, SZSBS, sought judicial review of a decision by the Minister for Immigration, Multicultural Affairs and Citizenship to refuse to grant a protection visa. The Minister's decision was based on the applicant's alleged 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 well-founded fear of persecution. The applicant contended that the Minister's decision was affected by jurisdictional error.

The primary legal issue before Emmett J was whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claim for a protection visa. Specifically, the court was asked to determine if the delegate had adequately considered the applicant's evidence regarding past persecution and the risk of future persecution in their country of origin.

Emmett J found that the delegate had failed to properly consider the applicant's evidence concerning past persecution. The delegate's assessment had focused on the likelihood of future persecution without adequately engaging with the specific instances of harm the applicant had already suffered. This failure to give due weight to the evidence of past persecution constituted a jurisdictional error, as it meant the delegate had not properly applied the criteria for a protection visa. The court therefore quashed the Minister's decision.