SZLAN & Anor v MIAC & Anor

The applicants, SZLAN and another, sought judicial review of decisions made by the Minister for Immigration and Citizenship (MIAC) and another respondent concerning their applications for protection visas. The dispute centred on the lawfulness of the decisions to refuse these applications. The matter was heard by Gummow and Heydon JJ of the High Court of Australia.

The primary legal issue before the High Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, the applicants' claims for protection under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Specifically, the court was asked to determine if the delegate's assessment of the applicants' fear of persecution was vitiated by a failure to apply the correct legal standard or by taking into account irrelevant considerations.

The High Court found that the delegate had made an error of law. Their Honours reasoned that the delegate's assessment of the applicants' claims had been based on an incorrect understanding of the relevant legal test for establishing a well-founded fear of persecution. The delegate had, in effect, required the applicants to prove their fear with a degree of certainty that was not mandated by the legislation. The court reiterated the principle that a well-founded fear requires a reasonable degree of likelihood, not certainty, and that the delegate's reasoning demonstrated a failure to apply this standard.

Consequently, the High Court ordered that the appeal be allowed, the judgment of the Federal Court be set aside, and that the matter be remitted to the Federal Court for re-hearing.