CMY17 v Minister for Immigration

CMY17 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is of Rohingya ethnicity, claimed to have suffered persecution in Myanmar and sought protection in Australia. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which prevents certain non-citizens who have had a visa application refused or a visa cancelled from applying for a protection visa while remaining in Australia. The applicant argued that the Minister's decision to refuse to allow the application to be made under s 48B was unlawful. The matter came before Judge Street in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse to grant the applicant an exception under s 48B of the *Migration Act 1958* (Cth) was affected by jurisdictional error. Specifically, the Court was required to determine if the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when making that decision, thereby rendering the decision legally invalid. The applicant contended that the Minister had not properly considered the humanitarian aspects of their claim and the potential for persecution if returned to Myanmar.

Judge Street found that the Minister's delegate had failed to properly consider the applicant's submissions regarding the risk of persecution in Myanmar. The delegate's decision-making process, as evidenced in the reasons provided, focused narrowly on the technical requirements of s 48B without adequately engaging with the substance of the applicant's protection claims. The Court reiterated the principle that while s 48B imposes a bar on further applications, the Minister retains a discretion to grant an exception, and this discretion must be exercised lawfully, taking into account all relevant considerations, including the humanitarian implications of the applicant's situation. The delegate's failure to give sufficient weight to these considerations constituted a jurisdictional error.

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