AXZ15 v Minister for Immigration

AXZ15 (the applicant) sought judicial review of a decision made by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which prevents the grant of a protection visa to a non-citizen who has entered Australia other than through a lawful entry point. The matter came before Judge Hartnett in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister had erred in law by failing to consider, or adequately consider, the applicant's claims for protection in accordance with the *Migration Act 1958* (Cth) and relevant international obligations, notwithstanding the operation of s 48B. Specifically, the Court was asked to determine if the Minister's decision was affected by jurisdictional error, particularly concerning the proper application of the non-refoulement obligations under international law.

Judge Hartnett reasoned that while s 48B of the *Migration Act 1958* (Cth) generally bars the grant of a protection visa to individuals who have entered Australia unlawfully, this prohibition is not absolute and must be interpreted in light of Australia's non-refoulement obligations under the *Convention relating to the Status of Refugees* and the *International Covenant on Civil and Political Rights*. The Court held that the Minister retains a residual duty to consider whether the circumstances of a particular case might engage these non-refoulement obligations, even where s 48B would otherwise preclude a visa grant. The Minister's decision was found to be affected by jurisdictional error because it failed to undertake this necessary assessment, thereby giving undue weight to the bar imposed by s 48B without properly considering the overarching international legal framework.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.