AAR15 v Minister for Immigration and Border Protection & Anor

The applicant, AAR15, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The dispute concerned the applicant's claim for protection based on a fear of persecution in their country of origin. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Refugee Convention and the Migration Act 1958 (Cth) required the Minister to consider the applicant's claims of persecution by non-state actors, even if those actors were unable to afford protection to the applicant. Specifically, the court had to determine the scope of the protection obligation owed by Australia under international and domestic law in circumstances where the applicant feared harm from entities that were not the state itself.

The High Court held that the Minister's assessment of the applicant's claims was flawed. The judges reasoned that the protection obligation under the Refugee Convention extends to harm inflicted by non-state actors, provided that the state is unable or unwilling to protect the individual from such harm. The court emphasised that the assessment of whether a state is unable or unwilling to protect its citizens must be conducted by reference to the general capacity of the state to protect its population, rather than the specific capacity to protect the individual applicant. The court found that the Minister had failed to properly consider this aspect of the applicant's claims, thereby misinterpreting the relevant legal principles.

The High Court allowed the appeal, quashed the decision of the Minister, and remitted the application for a protection visa to the Minister for reconsideration according to law.