CNY17 v Minister for Immigration and Border Protection & Anor

The applicant, CNY17, 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 based on a fear of persecution in their country of origin. The case 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 for protection under Article 1A(2) of the Refugee Convention, specifically concerning the risk of serious harm from non-state actors, even if the applicant had not established a well-founded fear of persecution by the state. The court also considered the proper interpretation of the phrase "well-founded fear of being persecuted" in the context of the applicant's circumstances.

The High Court held that the Minister was obliged to consider the applicant's claims under Article 1A(2) of the Refugee Convention, which defines a refugee as someone who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The court reasoned that the assessment of a well-founded fear of persecution does not require the applicant to demonstrate that the state is unable or unwilling to protect them from harm by non-state actors. Instead, the focus is on whether the applicant has a genuine and credible fear of persecution, and the state's role is relevant to the assessment of that fear. The court applied established principles of administrative law and international refugee law in reaching its decision.

The High Court allowed the appeal, setting aside the decision of the Federal Court and remitting the matter to the Federal Court for redetermination.