SZVIE v Minister for Immigration and Anor (No.2)

This matter concerned an application for judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa. The applicant, identified as SZVIE, sought review of the Minister's decision in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing SZVIE's claims for a Protection visa. Specifically, the Court was required to determine if the delegate's assessment of the applicant's fear of persecution was affected by an error of law, thereby vitiating the decision.

Judge Driver found that the delegate had indeed failed to adequately consider the applicant's subjective fear of persecution, particularly in relation to the risk of harm from non-state actors. The Court reasoned that the delegate's assessment had placed undue emphasis on the state's inability to control such actors, rather than on the likelihood of SZVIE being subjected to harm. This failure to properly assess the subjective element of the fear meant that the delegate had not properly considered the relevant considerations required by the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

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