AKR15 v Minister for Immigration & Anor

This matter came before Judge Smith of the Federal Court of Australia. The applicant, AKR15, sought to challenge a decision concerning their immigration status, specifically relating to the process of determining Australia's non-refoulement obligations under international treaties. The core of the dispute revolved around whether the court possessed jurisdiction to hear the application, which in turn depended on whether a "migration decision" as defined by the *Migration Act 1958* (Cth) (the Act) had been made or was in prospect.

The legal issues before the court were whether the applicant had identified a "migration decision" that would enliven the court's jurisdiction, and more specifically, whether a particular communication, referred to as the ITOA, constituted "conduct preparatory to the making of a decision under the Act" and was made "under the Act." The court was required to interpret the definitions of "migration decision," "privative clause decision," and "purported privative clause decision" within the Act, particularly sections 5 and 474, and Regulation 5.35AA.

The court reasoned that a "migration decision" encompasses not only final decisions but also conduct preparatory to a decision, provided that conduct is made "under the Act." The applicant's reliance on the ITOA process was central to establishing the necessary connection to the Act for the court to exercise jurisdiction. The court noted that the applicant's situation bore similarities to that in *SZSSJ v Minister for Immigration & Border Protection* [2014] FCAFC 143, where the Full Court found jurisdiction based on a letter concerning a similar process. The primary judge in *SZSSJ* had dismissed the application, finding no identified migration decision, but this was overturned on appeal. The applicant in the present case was essentially seeking to prevent removal pending a lawful determination of their non-refoulement obligations, and thus needed to demonstrate a jurisdictional basis through the ITOA process.