Applicant S310-2002, Ex parte - Re MIMIA

Applicant S310-2002, Ex parte - Re MIMIA concerned an application for an order of prohibition made by an applicant, identified only as S310-2002, against the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA). The application was heard in chambers by Gaudron J.

The central legal issue before the Court was whether the applicant was entitled to an order of prohibition to prevent the Minister from making a decision under section 48B of the *Migration Act 1958* (Cth). Section 48B relates to the Minister's power to allow a non-citizen to make a further application for a visa despite having had a previous application refused or a visa cancelled. The applicant sought to argue that the Minister's power under section 48B was not unfettered and that the applicant had a right to be heard before the Minister exercised that power.

Gaudron J considered the nature of the power conferred by section 48B. Her Honour concluded that the power to grant a waiver under section 48B is a discretionary power vested in the Minister. The Court held that there is no statutory right for an applicant to be heard or to make submissions before the Minister decides whether to exercise the discretion conferred by section 48B. Consequently, the applicant was not entitled to an order of prohibition on the grounds that they had not been afforded procedural fairness in relation to the exercise of this discretion.

The application for an order of prohibition was dismissed.