Applicants M276-2003, Ex parte - Re Woolley & Anor

The applicants, M276-2003, sought leave to appeal from a decision of the Full Federal Court. The dispute concerned the validity of certain provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) as they applied to the respondents, Woolley and another individual, who were asylum seekers. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister for Immigration and Multicultural Affairs had a duty to consider, and if so, to grant, a protection visa to the respondents under s 48B of the *Migration Act 1958* (Cth). This involved an examination of the scope of the Minister's non-compellable duty to consider granting a protection visa in circumstances where an applicant had been refused a visa or had had a visa cancelled. The Court also considered the proper interpretation of the phrase "public interest criteria" as it related to the respondents' applications.

The High Court, in a joint judgment, held that s 48B of the *Migration Act 1958* (Cth) did not impose a duty on the Minister to grant a protection visa. Rather, it conferred a discretion to grant a visa in the public interest. The Court reasoned that the language of the section indicated a power, not an obligation, and that the Minister was not compelled to consider the merits of an application for a protection visa under s 48B if the applicant had already been refused a visa or had had a visa cancelled. The Court further clarified that the "public interest criteria" were not a substantive basis for granting a visa but rather a gateway to the Minister's discretionary power.

The High Court granted leave to appeal and allowed the appeal, setting aside the orders of the Full Federal Court. The Court found that the Full Federal Court had erred in its interpretation of s 48B.