BC v MIMA, W26 v MIMA

The applicants, BC and W26, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for a protection visa. The applications were refused on the basis that the applicants were not persons to whom Australia had protection obligations under the *Migration Act 1958* (Cth). The matter came before the High Court of Australia on appeal from the Full Federal Court.

The central legal issue before the High Court was whether the Minister, in assessing whether an applicant held a genuine fear of persecution, was required to consider the possibility of the applicant being able to obtain a protection visa in a third country. The applicants contended that the Minister's assessment should encompass the availability of such protection elsewhere, arguing that if a third country offered protection, then Australia's obligations under international law, specifically the Refugee Convention, would not be engaged.

The High Court, comprising Hayne and Callinan JJ, held that the Minister's assessment of whether Australia owed protection obligations to an applicant under the *Migration Act* did not require consideration of whether the applicant could obtain protection in a third country. Their Honours reasoned that Australia's obligations arise from the applicant's fear of persecution in their country of origin, and the availability of protection elsewhere is irrelevant to that primary assessment. The *Migration Act* reflects Australia's international obligations, and these obligations are engaged by a well-founded fear of persecution, irrespective of potential alternative protection.

The appeals were dismissed.