SZERH v MIAC & Anor

The applicants, SZERH and SZSI, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (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 the Hazara ethnic group from Afghanistan and asserted they had been persecuted in their home country. 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 face persecution if returned to Afghanistan, specifically in relation to the risk of harm faced by members of the Hazara ethnic group. The applicants argued that the RRT had not properly applied the relevant legal tests for assessing claims of persecution under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth).

Gummow and Kiefel JJ found that the RRT had made an error of law. Their Honours reasoned that the Tribunal had not adequately engaged with the evidence and submissions concerning the general situation of the Hazara people in Afghanistan and the specific risks faced by individuals of that ethnicity. The court emphasised that the RRT was required to assess the real chance of persecution, taking into account both the general country information and the individual circumstances of the applicants. The Tribunal's approach was found to be insufficient in its consideration of the cumulative effect of the risks faced by the applicants as Hazaras.

The High Court allowed the appeal, setting aside the decision of the Federal Court and remitting the matter to the Refugee Review Tribunal for redetermination according to law.