SZAXP v MIMIA

The applicant, SZAXP, sought judicial review of a decision by the Minister for Immigration and Multicultural Affairs (MIMIA) to refuse to grant her a protection visa. The dispute concerned whether SZAXP met the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Refugee Convention and the *Migration Act* required the Minister to consider, in addition to the grounds for seeking protection, the applicant's subjective fear of persecution. Specifically, the court had to determine if the applicant's subjective fear was a necessary component of the assessment of whether she had a well-founded fear of persecution for a Convention reason.

Gleeson CJ and Gummow J held that the assessment of a well-founded fear of persecution under the Refugee Convention and the *Migration Act* requires consideration of both the objective circumstances and the applicant's subjective state of mind. Their Honours reasoned that a fear, by its very nature, is subjective. Therefore, the Minister was obliged to assess the applicant's subjective fear, even if the objective circumstances did not, on their own, establish a well-founded fear. The court affirmed that the assessment involves a two-stage process: first, determining the real chance of persecution, and second, assessing whether the applicant genuinely fears persecution based on that real chance.

The High Court made orders setting aside the decision of the Minister and remitting the matter to the Federal Court for further consideration.