Minister for Immigration and Border Protection v SZSCA: Should Asylum Seekers Modify their Conduct to Avoid Persecution?

The High Court of Australia’s landmark 2003 decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs held that decision-makers are not permitted to impose any requirement upon asylum seekers to ‘act discreetly’ in order to avoid persecution. Since that time, both Australian and international courts have grappled with the wider implications of this principle. The current appeal in Minister for Immigration and Border Protection v SZSCA tests the application of the S395 discretion prohibition to cases involving a change of occupation and imputed opinion. Accordingly, it will establish whether the potential of an asylum seeker to modify their behaviour can be part of the assessment of refugee status. The case is also expected to illuminate the relationship between the discretion prohibition and the relocation principle under refugee law. It therefore raises questions about the key function of the Refugee Convention, which is to protect a person who has lost the protection that a citizen would normally receive from his or her State. As such, the outcome of this case has the potential to influence decision-making in Australia and internationally.