Minister for Immigration and Border Protection v SZSCA & Anor

The Minister for Immigration and Border Protection (the Minister) appealed to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the lawfulness of the Minister's decision to refuse to grant a protection visa to SZSCA and another applicant (the respondents). The respondents, who were citizens of Iran, had arrived in Australia by boat and sought protection on the basis that they feared persecution in their home country.

The High Court was required to determine whether the Minister, in exercising the power under s 48B of the *Migration Act 1958* (Cth) to refuse to grant a protection visa to a non-citizen who has arrived in Australia other than by aircraft, had failed to consider relevant considerations or had taken into account irrelevant considerations. Specifically, the Court had to consider whether the Minister's assessment of the respondents' claims of persecution was vitiated by a failure to consider the risk of harm from non-state actors, and whether the Minister's consideration of the respondents' alleged criminal conduct in Australia was a relevant consideration for the purposes of s 48B.

The Court reasoned that s 48B requires the Minister to consider whether a non-citizen would, if returned to their country of origin, be a refugee within the meaning of the *Refugee Convention*. This involves assessing the real chance of persecution, which can emanate from state or non-state actors. The Court found that the Minister's delegate had failed to adequately consider the risk of harm from non-state actors, thereby failing to consider a relevant consideration. Furthermore, the Court held that while the respondents' alleged criminal conduct in Australia was a matter of public interest, it was not a relevant consideration for the purpose of determining whether they were refugees under s 48B.

The High Court allowed the appeal, setting aside the order of the Full Federal Court and remitting the matter to the Federal Court for determination according to law.