SZHYH v Minister for Immigration

The applicant, SZHYH, sought judicial review of a decision by the Refugee Review Tribunal (RRT) to refuse a Protection visa. This decision was affirmed by the RRT on 16 February 2009, following an earlier remittal by the Federal Magistrates Court of Australia (FMCA). Subsequent applications for judicial review and appeals to the Federal Court and the High Court were unsuccessful. The applicant then made a request under s 48B of the Migration Act 1958 (Cth) for the Minister to determine that s 48A did not prevent a further Protection visa application, which was finalised on 28 June 2010 without meeting referral guidelines. The applicant remained an unlawful non-citizen until lodging the current Protection visa application on 26 September 2013.

The central legal issue before the court was whether the applicant's Protection visa application, lodged after the introduction of the complementary protection criterion under s 36(2)(aa) of the Act, was barred by s 48A of the Act. This question arose in light of the Full Court's decision in *SZGIZ v Minister of Immigration and Citizenship* (2013) 212 FCR 235, which held that s 48A, as it then stood, did not preclude a new protection visa application based on complementary protection grounds when a prior application had been determined solely on Refugees Convention grounds. The court was required to consider the criteria for a Protection visa, specifically the distinction between the Refugees Convention criterion under s 36(2)(a) and the complementary protection criterion under s 36(2)(aa), and how s 48A interacted with these provisions in the context of successive applications.

The court's reasoning focused on the application of s 48A in light of the *SZGIZ* decision. Section 48A generally prevents a non-citizen who has had a visa refused or a protection claim rejected from applying for most other visas while remaining in Australia. However, the *SZGIZ* case established that this prohibition did not extend to a new application made on complementary protection grounds when the earlier application was determined only on Refugees Convention grounds. The court applied this principle to the applicant's situation, noting that the applicant's current application was lodged after the introduction of the complementary protection criterion and following the *SZGIZ* authority. The court also referred to the established criteria for a Protection visa, which include both the Refugees Convention grounds (requiring a well-founded fear of persecution) and the complementary protection grounds (requiring a real risk of significant harm as a necessary and foreseeable consequence of removal).

The court found that the applicant's Protection visa application, lodged on 26 September 2013, was not barred by s 48A of the Act, as it was made on complementary protection grounds following the decision in *SZGIZ*. The court therefore set aside the decision under review and remitted the matter to the Minister for reconsideration according to law.