Minister for Immigration and Citizenship v SZJSS

The Minister for Immigration and Citizenship (the Minister) appealed to the High Court of Australia against a decision of the Full Federal Court, which had allowed an appeal by SZJSS from a judgment of a single judge of the Federal Court. The dispute concerned the lawfulness of the Minister's decision to refuse SZJSS's application for a protection visa. SZJSS, a citizen of Sri Lanka, claimed to have a well-founded fear of persecution if returned to his country of origin.

The central legal issue before the High Court was whether the Refugee Convention and the Migration Act 1958 (Cth) required the Minister to consider, in assessing SZJSS's claim for a protection visa, the possibility that SZJSS might be able to obtain protection from the Sri Lankan government by relocating within Sri Lanka. Specifically, the court had to determine if the Minister's assessment of SZJSS's fear of persecution was vitiated by a failure to consider internal relocation as a potential protection mechanism.

The High Court held that the Refugee Convention, as incorporated into Australian law, does not mandate that a claimant must demonstrate an inability to obtain protection from their own government through internal relocation. The court reasoned that the Convention focuses on whether a claimant has a well-founded fear of persecution by the state or agents of the state, or by non-state actors where state protection is unavailable. The existence of internal relocation options does not, of itself, negate a well-founded fear of persecution if the state itself is unable or unwilling to provide protection. The Minister's decision was therefore set aside as having been made on an erroneous basis.