SZBAC v MIMIA

The applicant, SZBAC, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse to grant her a protection visa. The dispute concerned whether SZBAC was a refugee within the meaning of the *Migration Act 1958* (Cth) and the Refugee Convention. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Refugee Review Tribunal (RRT) had erred in law by failing to consider, or adequately consider, the applicant's claims of persecution based on her membership of a particular social group, specifically women in Afghanistan who had been subjected to domestic violence. The court was required to determine if the RRT's assessment of the risk of harm to the applicant was based on a proper understanding of the relevant legal principles concerning the definition of a refugee.

McHugh and Heydon JJ, in their joint judgment, held that the RRT had made an error of law. They reasoned that the RRT had not properly engaged with the concept of a "particular social group" as a basis for refugee status. The Tribunal's focus on whether the applicant could avoid harm by taking steps to protect herself within Afghanistan, rather than assessing the systemic nature of the persecution faced by women in her situation, was found to be a misapplication of the law. The High Court emphasised that the Convention requires an assessment of whether the applicant has a well-founded fear of persecution, and that the risk of harm from domestic violence, when viewed through the lens of gender-based discrimination and societal norms, could constitute persecution for the purposes of the Convention.

The High Court allowed the appeal, quashed the decision of the RRT, and remitted the matter to the RRT for redetermination according to law.