SZGCO v MIAC & Anor

The applicant, SZGCO, sought judicial review of a decision by the Minister for Immigration and Citizenship (MIAC) to refuse to grant a protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the AAT had erred in law by failing to consider, or adequately consider, the applicant's claims for protection under the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the court considered whether the AAT had properly applied the correct legal test when assessing the applicant's fear of persecution.

Gummow and Kiefel JJ found that the AAT had made an error of law. Their Honours explained that the AAT had misinterpreted the nature of the assessment required under the relevant provisions of the *Migration Act* and *Migration Regulations*. The Tribunal was required to assess whether the applicant had a well-founded fear of persecution, which involves a consideration of both subjective and objective elements. The court held that the AAT had focused too heavily on the objective likelihood of persecution and had not sufficiently engaged with the applicant's subjective fear. The legal principle applied was that a well-founded fear requires a genuine, subjective fear that is objectively reasonable in the circumstances.

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