SWDB & Ors v MIAC

The applicants, SWDB and others, sought judicial review of decisions made by the Minister for Immigration and Citizenship (MIAC) to refuse their applications for protection visas. The applicants were citizens of Afghanistan and had arrived in Australia by boat. Their applications were refused on the basis that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), specifically concerning the assessment of whether they would be subject to persecution or serious harm if returned to Afghanistan.

The central legal issue before the High Court was whether the Minister, in assessing the applicants' claims for protection visas, was required to consider the risk of harm to them from non-state actors in Afghanistan, or whether the Minister was confined to considering only the risk of harm from the Afghan state. This question turned on the interpretation of the phrase "persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion" as contained within Australia's obligations under the *1951 Convention relating to the Status of Refugees* and its *1967 Protocol*, as incorporated into domestic law.

The High Court held that the Minister's assessment of protection claims must consider the risk of persecution or serious harm from any source, including non-state actors, provided that the harm is inflicted for one of the Convention grounds. The Court reasoned that the Convention's definition of persecution does not limit the source of persecution to the state. Therefore, the Minister erred in law by failing to consider the risk of harm from the Taliban and other non-state actors in Afghanistan when assessing the applicants' claims. The Court found that the Minister's approach, which focused solely on the actions of the Afghan state, was too narrow and did not accord with the proper interpretation of Australia's international obligations.

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