Zhao v Minister for Immigration & Border Protection

Zhao (the applicant) sought judicial review of a decision by the Minister for Immigration and Border Protection (the respondent) to refuse to grant him a protection visa. The applicant, who is of Chinese nationality, claimed to fear persecution in China due to his involvement in a religious group. The Minister had refused the visa on the grounds that the applicant's claims were not substantiated and that he did not meet the criteria for a protection visa under the Migration Act 1958 (Cth). The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law in their assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the delegate had failed to properly consider all relevant evidence, including the applicant's subjective claims of fear and the objective country information pertaining to China. The Court also had to determine if the delegate had applied the correct legal test in assessing the real chance of persecution.

Emmett J found that the delegate had made an error of law by failing to adequately consider the applicant's subjective claims of fear. The delegate had focused heavily on the objective country information and had not given sufficient weight to the applicant's personal experiences and beliefs. The Court reiterated the principle that a subjective fear, even if not objectively substantiated, can be a valid basis for protection if it is genuinely held. The delegate's assessment was therefore vitiated by this failure to properly engage with the applicant's evidence.

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