Szabo v Minister for Immigration and Border Protection

The applicant, Mr. Szabo, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse his application for a protection visa. The dispute concerned the Minister's assessment of whether Mr. Szabo would be subject to persecution or serious harm if returned to his country of origin.

The central legal issue before the High Court was whether the Minister, in assessing the risk of persecution or serious harm, was required to consider the possibility of the applicant being subjected to harm by non-state actors, even if those actors were not acting with the complicity or at the instigation of the state. Specifically, the Court had to determine the scope of the "well-founded fear of persecution" criterion under Australia's migration law, particularly in light of the potential for harm from private individuals or groups.

Gageler J reasoned that the Refugee Convention and Protocol, as incorporated into Australian law, require an assessment of whether a person has a well-founded fear of persecution. This assessment must consider whether the harm feared is of a kind that engages the Convention, and whether the fear is objectively reasonable. His Honour held that the state has a non-delegable responsibility to protect its citizens from persecution, and where the state is unable or unwilling to provide such protection, harm inflicted by non-state actors can constitute persecution for the purposes of the Convention. The Minister's assessment must therefore encompass the risk of harm from any source, including non-state actors, if the state is incapable of preventing that harm.

The application for judicial review was dismissed.