SZTKR v Minister for Immigration & Anor

SZTKR (the applicant) sought judicial review of a decision by the Minister for Immigration and Border Protection (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to be a citizen of Afghanistan and alleged persecution by the Taliban. The respondent had refused the protection visa application on the basis that the applicant had not established a well-founded fear of persecution. The matter came before Judge Driver of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the respondent's decision to refuse the protection visa was affected by jurisdictional error. This involved determining whether the respondent had properly considered the applicant's claims of persecution, particularly in light of the evidence presented and the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The Court was required to assess whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution and whether the delegate's findings of fact were reasonably open on the evidence.

Judge Driver found that the delegate had made a jurisdictional error by failing to adequately consider the applicant's evidence regarding his fear of persecution by the Taliban. The Court held that the delegate had applied an incorrect standard of proof, requiring the applicant to prove his claims to a higher degree than was necessary. The legal principle applied was that a well-founded fear of persecution requires a real chance of persecution, not a mere possibility. The delegate's failure to properly assess the credibility of the applicant's claims and to give due weight to the objective country information constituted a failure to exercise jurisdiction according to law.

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