SZBAQ v MIMIA

The case of *SZBAQ v MIMIA* concerned an appeal to the High Court of Australia by an applicant, SZBAQ, against a decision of the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The dispute centred on the applicant's claim for protection as a refugee, which had been refused by the Minister. The applicant sought judicial review of the Minister's decision.

The High Court was required to determine whether the delegate of the Minister had erred in law by failing to consider, or failing to give adequate consideration to, the applicant's claims regarding the risk of persecution by non-state actors in their country of origin. Specifically, the court considered the scope of the Minister's obligation under the *Migration Act 1958* (Cth) to assess whether a real chance of persecution existed, even if the persecutor was not a state actor.

Gleeson CJ and Gummow J held that the delegate's assessment had been flawed. They reasoned that the delegate had incorrectly confined their consideration of persecution to actions by the state, thereby failing to properly assess the risk posed by non-state actors. The court affirmed the principle that a claim for protection can be substantiated by persecution from non-state actors if the state is unable or unwilling to protect the applicant from such persecution. The delegate's failure to undertake this broader assessment constituted an error of law.

The High Court allowed the appeal, set aside the decision of the Minister, and remitted the matter to the Minister for reconsideration according to law.