Applicant P32-2002 v MIMIA

The applicant, P32-2002, sought judicial review of a decision made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The dispute concerned the Minister's decision to refuse to grant the applicant a protection visa. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in considering the applicant's claim for a protection visa, had failed to take into account a relevant consideration, namely the applicant's fear of persecution by non-state actors. This question arose in the context of the Minister's assessment of whether the applicant would be subject to 'persecution' for the purposes of the *Migration Act 1958* (Cth).

The High Court held that the Minister's decision-making process had been vitiated by a failure to consider a relevant consideration. Gleeson CJ and Hayne J reasoned that the definition of 'persecution' under the *Migration Act* encompassed harm inflicted by non-state actors, provided that the state was unable or unwilling to protect the individual from such harm. The Minister's reasons for decision had focused solely on the possibility of persecution by state actors, thereby failing to address the applicant's specific claims regarding fear of harm from non-state actors and the state's capacity to protect. The Court affirmed that a failure to consider a relevant consideration constitutes an error of law.

The High Court ordered that the application for judicial review be granted, and the decision of the Minister be set aside. The matter was remitted to the Minister for reconsideration according to law.