SZBUU v MIAC & Anor

The applicants, SZBUU and others, sought judicial review of decisions made by the Minister for Immigration and Citizenship (MIAC) and the second respondent, the Refugee Review Tribunal (RRT). The dispute concerned the refusal of protection visas to the applicants, who claimed to be members of a particular ethnic group facing persecution in their country of origin. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the RRT had erred in law by failing to consider, or adequately consider, the applicants' claims that they would be persecuted by non-state actors in their country of origin, specifically members of a particular ethnic group. The applicants contended that the RRT's assessment of their claims was based on an incorrect understanding of the relevant legal principles concerning the protection obligations owed to individuals facing persecution by non-state actors.

The High Court, in its reasoning, affirmed that Australia's protection obligations under the *Migration Act 1958* (Cth) extend to persecution by non-state actors, provided that the state is unable or unwilling to protect the individual from such persecution. Their Honours found that the RRT had failed to properly assess the evidence regarding the capacity and willingness of the authorities in the applicants' country of origin to protect them from the alleged persecution by non-state actors. Consequently, the RRT's decision was vitiated by an error of law.

The High Court ordered that the RRT's decision be set aside and remitted to the RRT for redetermination according to law.