Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI

The High Court of Australia considered appeals from the Full Federal Court concerning the lawfulness of decisions made by the Minister for Immigration and Border Protection to refuse to grant protection visas to two sets of applicants, SZSSJ and SZTZI. The core of the dispute revolved around the Minister's assessment of whether the applicants would be subject to persecution or serious harm if returned to their respective countries of origin, specifically in relation to the risk of harm from non-state actors.

The central legal issue before the High Court was whether the Minister, when assessing the risk of persecution or serious harm from non-state actors, was required to consider the possibility that the Australian government might take steps to protect the applicants from such harm upon their return. This question arose in the context of the Minister's obligations under Australia's international non-refoulement obligations, which prohibit returning individuals to a country where they face a real risk of persecution or serious harm.

The High Court unanimously held that the Minister's assessment of risk must be confined to the circumstances that would exist in the country of return independently of any protective measures that might be taken by the Australian government. The Court reasoned that the non-refoulement obligations are concerned with the risks that a person would face in their country of nationality or former habitual residence, and that the potential for Australian intervention to mitigate those risks is not a relevant consideration in determining whether a non-refoulement obligation is engaged. The Court affirmed that the assessment of risk is an objective one, based on the conditions prevailing in the country of return, and does not extend to hypothetical protective actions by the Australian government.

The High Court allowed the appeals, setting aside the orders of the Full Federal Court and remitting the matters to the Federal Court for redetermination in accordance with the reasons of the High Court.