Minister or Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection & Anor

The High Court of Australia considered appeals from decisions of the Federal Court of Australia concerning the lawfulness of decisions made by the Minister for Immigration and Border Protection to refuse to grant protection visas to two individuals, WZAPN and WZARV. The core of the dispute revolved around the Minister's assessment of whether these individuals would face persecution or harm if returned to their country of origin, specifically in relation to the application of the non-refoulement obligations under international law.

The primary legal issues before the High Court were whether the Minister's decisions were vitiated by jurisdictional error, and in particular, whether the Minister had failed to properly consider the risk of harm to the applicants from non-state actors, and whether the Minister had failed to afford the applicants procedural fairness. The Court also considered the proper interpretation and application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) in assessing claims for protection visas.

The High Court held that the Minister's decisions were affected by jurisdictional error. The Court reasoned that the Minister's assessment of the risk of harm had been unduly narrow, focusing too heavily on state-sponsored persecution and failing to adequately consider the real chance of harm from non-state actors, which is a relevant consideration under the *Migration Act*. Furthermore, the Court found that the Minister had failed to provide the applicants with adequate notice of the adverse information that was to be relied upon in making the decisions, thereby breaching the requirements of procedural fairness. The Court emphasised that a proper assessment of protection claims requires a holistic consideration of all relevant risks, including those posed by non-state actors, and that procedural fairness mandates that applicants be given a fair opportunity to respond to adverse material.

The High Court allowed the appeals, set aside the decisions of the Minister, and remitted the applications for protection visas to the Minister for reconsideration according to law.