SZWAE v Minister for Immigration

SZWAE (the applicant) sought judicial review of a decision by the Minister for Immigration (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 Minister's delegate had refused the visa application, finding that the applicant had not satisfied the criteria for a protection visa under the *Migration Act 1958* (Cth).

The primary legal issue before Hartnett J was whether the delegate's decision was affected by jurisdictional error. Specifically, the court was asked to consider whether the delegate had failed to properly consider the applicant's claims regarding his identity and the risk of persecution, as required by ss 424A and 425 of the *Migration Act*. The applicant argued that the delegate had not adequately assessed the evidence presented, including his oral testimony and documentary material, and had made findings of fact that were not supported by the evidence.

Hartnett J found that the delegate had made a jurisdictional error by failing to adequately assess the applicant's claims. The court held that ss 424A and 425 imposed a positive obligation on the delegate to make a genuine effort to ascertain the applicant's identity and to assess the risk of persecution. The delegate's approach, which focused on perceived inconsistencies in the applicant's evidence without a thorough and holistic assessment, did not meet this standard. The court emphasised that the delegate must engage with the applicant's evidence in a meaningful way, rather than simply dismissing it based on minor discrepancies.

The court ordered that the delegate's decision be set aside and remitted to the Minister for redetermination according to law.