SZIVT v MIAC

The applicant, SZIVT, sought judicial review of a decision by the Migration Internal Appeals Council (MIAC) to affirm the delegate's refusal to grant a protection visa. The delegate had refused the visa on the grounds that the applicant did not meet the criteria for a protection visa under s 36(2)(b)(i) of the *Migration Act 1958* (Cth) because the applicant's claims of persecution were not found to be credible. MIAC had affirmed this decision on the basis that the applicant's claims were not substantiated. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether MIAC, in affirming the delegate's decision, had failed to undertake a proper review of the applicant's claims. Specifically, the court considered whether MIAC had adequately addressed the applicant's evidence and arguments, particularly in light of the fact that the delegate's decision had been based on a finding of lack of credibility. The court also considered the nature of the review required by MIAC under the *Migration Act*.

Gummow and Kiefel JJ held that MIAC's review was inadequate. Their Honours explained that while MIAC is not required to conduct a de novo hearing, it must engage with the substance of the applicant's case and provide reasons that demonstrate it has considered the relevant evidence and arguments. In this instance, MIAC's reasons for affirming the delegate's decision were found to be insufficient, failing to adequately explain why the applicant's evidence and arguments were not accepted or why the delegate's adverse credibility findings were upheld. The court emphasised that a failure to properly engage with the applicant's case constitutes a failure to exercise the review function conferred by the *Migration Act*.

The High Court ordered that the decision of MIAC be quashed and remitted to MIAC for redetermination according to law.