AUS17 v Minister for Immigration and Border Protection & Anor

The applicant, AUS17, 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 claims for protection, which had been assessed by the primary decision-maker and subsequently affirmed by the Administrative Appeals Tribunal. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Administrative Appeals Tribunal had erred in law by failing to consider, or adequately consider, the applicant's claims regarding the risk of harm from non-state actors in their country of origin. Specifically, the court was asked to determine if the Tribunal's findings were affected by an error of law in its assessment of the applicant's subjective fear and the objective reasonableness of that fear, particularly in light of the potential for harm from entities not directly controlled by the state.

Kiefel CJ and Keane J found that the Tribunal had indeed erred in law. Their Honours reasoned that the Tribunal's assessment of the risk of harm was unduly narrow, focusing predominantly on state-sponsored persecution. They held that the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) require consideration of harm from any source, including non-state actors, when assessing a claim for a protection visa. The Tribunal's failure to properly engage with the evidence concerning the risk posed by such actors meant that its decision was vitiated by an error of law.

Consequently, the High Court ordered that the application for judicial review be granted, the decision of the Administrative Appeals Tribunal be quashed, and the matter be remitted to the Tribunal for redetermination according to law.