WACT v MIMIA

The High Court of Australia considered an appeal by WACT against a decision of the Federal Court of Australia concerning the interpretation of a provision within the *Migration Act 1958* (Cth). The dispute arose from the Minister for Immigration and Multicultural and Indigenous Affairs' decision to refuse to grant a protection visa to a non-citizen. WACT, acting on behalf of the non-citizen, challenged the lawfulness of this refusal.

The central legal issue before the High Court was whether the Minister's delegate had erred in law by failing to consider relevant considerations when assessing the non-citizen's claim for a protection visa. Specifically, the court had to determine whether the delegate's assessment of the non-citizen's subjective fear of persecution was sufficiently rigorous and whether the delegate had adequately addressed the objective elements of the claim as required by the *Migration Act* and relevant international conventions.

The High Court, in allowing the appeal, found that the delegate had indeed failed to properly consider all relevant factors. McHugh J and Heydon J held that the delegate's assessment of the non-citizen's fear was based on an erroneous understanding of the legal standard required. They emphasised that a delegate must not only consider the subjective fear of the applicant but also objectively assess the real chance of persecution, taking into account all available information. The court reaffirmed the principle that a failure to consider a relevant consideration constitutes an error of law, rendering the decision invalid.

The High Court ordered that the decision of the Federal Court be set aside and remitted the matter to the Federal Court for re-hearing.