SZSHY v Minister for Immigration

This matter came before Judge Manousaridis of the Federal Circuit and Family Court of Australia concerning an application for judicial review. The applicant, SZSHY, sought to challenge a decision made by the Refugee Review Tribunal (RRT) regarding their claim for a protection visa. The core of the dispute revolved around whether the RRT had correctly assessed the risks the applicant would face upon return to India.

The court was required to determine two primary legal issues. Firstly, whether the RRT had misconstrued the risk of fear and harm as defined in section 36(2A) of the *Migration Act 1958* (Cth). Secondly, the court considered whether the RRT had failed to properly consider the test for serious harm under section 91R(2)(a) of the *Migration Act*, which the applicant contended was a mandatory jurisdictional requirement.

Regarding the first ground, the court found that the applicant had not identified how the RRT had misconstrued or failed to understand the risk of fear and harm under section 36(2A). The RRT had correctly identified the criterion for a protection visa, which requires a substantial ground for believing that there is a real risk of significant harm as a necessary and foreseeable consequence of removal. The RRT's adverse findings on the applicant's claims of missionary work, political activism, and targeting by extremists meant it was not necessary to consider significant harm on those bases. However, the RRT did consider the risk of significant harm based on the applicants being practising Catholics and determined this question adversely to the applicants without demonstrating any misunderstanding of the relevant section. Concerning the second ground, the court held that the RRT was not required to consider section 91R of the *Migration Act*. This section applied only to the criterion in section 36(2)(a), which was not relevant to the applicant's claims as their previous applications based on that section had been rejected. The only issue before the RRT was the criterion in section 36(2)(aa) of the Act.