BVD17 v Minister for Immigration and Border Protection & Anor

The applicant, BVD17, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The dispute concerned the lawfulness of the Minister's decision, which was made following an adverse assessment by the primary decision-maker. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in exercising the power to refuse to grant a protection visa under s 48B of the *Migration Act 1958* (Cth), was bound by the principles of procedural fairness. Specifically, the court had to determine if the Minister was required to afford the applicant an opportunity to respond to adverse information that had come to the Minister's attention and was relevant to the decision.

Gageler and Nettle JJ held that the Minister's power under s 48B of the *Migration Act* was not a personal, non-delegable power, but rather a power that could be exercised by the Minister or a delegate. Their Honours reasoned that the statutory scheme did not indicate an intention to exclude the operation of the common law duty to afford procedural fairness. The court applied the principle that where a statute confers a power that affects the rights, interests, or legitimate expectations of an individual, the common law implies a duty to act fairly, unless there is a clear statutory intention to the contrary. In this instance, the Minister's decision to refuse a protection visa had significant consequences for the applicant, and therefore, the duty to afford procedural fairness applied.

The High Court ordered that the application for judicial review be dismissed.