WZASC v Minister for Immigration & Anor

The applicant, WZASC, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The Minister's delegate had refused the application on the basis that the applicant's claims of persecution were not substantiated by sufficient evidence. The matter came before Judge Lucev in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate's decision to refuse the protection visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate had failed to adequately assess the applicant's claims of persecution, particularly in relation to the risk of harm from a particular group, and whether the delegate had applied the correct legal test when assessing the subjective fear of the applicant.

Judge Lucev found that the delegate had made a jurisdictional error by failing to properly consider the evidence relating to the applicant's fear of harm from a specific group. The delegate's assessment had focused too narrowly on the objective likelihood of harm and had not adequately engaged with the applicant's subjective fear and the reasons for that fear. The Court reiterated the principle that a delegate must assess both the subjective fear of the applicant and the objective reasonableness of that fear, considering all relevant evidence. The delegate's failure to adequately weigh the subjective component of the applicant's claim constituted a failure to exercise the jurisdiction conferred by the *Migration Act 1958* (Cth).

The Court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for reconsideration according to law.