SZGQN v MIAC & Anor

The applicant, SZGQN, 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, with judgment delivered by Kirby and Heydon JJ.

The central legal issue before the High Court was whether the AAT, in assessing the applicant's claim for a protection visa, was required to consider the possibility of the applicant being able to access protection from a third country, even if such access was not guaranteed or certain. This question arose in the context of the applicant's fear of persecution in their country of origin.

The Court considered the provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly those relating to the assessment of claims for protection visas. Kirby J, in his reasons, emphasised that the assessment of a protection claim involves determining whether the applicant has a well-founded fear of persecution. He noted that the possibility of protection in a third country could be a relevant consideration in assessing the reasonableness of such a fear, but it did not negate the need to assess the fear itself. Heydon J agreed with the outcome, finding that the Tribunal had erred in its approach to the consideration of third-country protection. The legal principle applied was that while the availability of protection elsewhere might be a factor in assessing the reasonableness of a fear, it did not absolve the decision-maker from the primary obligation to determine the existence and well-foundedness of the fear of persecution.

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