SZSWB v Minister for Immigration and Border Protection & Anor

The applicant, SZSWB, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The dispute concerned the applicant's claim for protection based on a fear of persecution in their country of origin. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Refugee Convention and Protocol, as incorporated into Australian domestic law, required the Minister to consider the applicant's claims of persecution by non-state actors, even if those actors were not agents of the state. Specifically, the court had to determine the scope of the Minister's obligation to assess whether a well-founded fear of persecution existed, and whether such persecution could emanate from entities other than the state itself.

The High Court held that the Refugee Convention, as implemented by Australian legislation, mandates consideration of persecution by non-state actors. The court reasoned that the concept of "persecution" under the Convention is not confined to actions by state agents. Instead, it encompasses serious harm inflicted by any entity, provided that the state is unable or unwilling to offer effective protection. The court emphasised that the assessment of a well-founded fear requires an objective evaluation of the likelihood of harm and the state's capacity to prevent or punish it.

The High Court allowed the application for judicial review, quashed the decision of the Minister, and remitted the matter to the Federal Court for further consideration.