SZBJZ v MIAC

The applicant, SZBJZ, sought judicial review of a decision by the Migration and Citizenship Council (MIAC) to refuse her application for a protection visa. The dispute concerned whether SZBJZ met the criteria for a protection visa under the *Migration Act 1958* (Cth). The matter came before 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 the applicant's subjective fear of persecution independently of the objective circumstances of her claimed persecution. Specifically, the court had to determine if the Minister was obliged to assess the applicant's subjective fear even if the objective evidence did not support the likelihood of persecution.

Gummow and Kiefel JJ held that the Minister's assessment of a protection visa application must encompass both the subjective fear of the applicant and the objective circumstances giving rise to that fear. Their Honours reasoned that the statutory framework, informed by the Refugee Convention, mandates a two-stage inquiry: first, whether the applicant has a subjective fear of persecution, and second, whether that fear is well-founded, meaning there is a real chance of persecution. The court affirmed that the Minister cannot disregard a genuine subjective fear simply because the objective evidence does not establish a high probability of persecution.

The High Court allowed the appeal, setting aside the decision of the Federal Court and remitting the matter to the Federal Court for redetermination.