CPCF v Minister for Immigration and Border Protection and Anor

The applicant, CPCF, 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 under s 48B of the *Migration Act 1958* (Cth). The matter came before Hayne J of the High Court of Australia.

The central legal issue before the Court was whether the Minister, in considering an application under s 48B, was required to consider the applicant's claims of past persecution in their country of origin, even if those claims had been previously rejected by the Refugee Review Tribunal. The Court also considered the scope of the Minister's discretion under s 48B and whether the Minister had failed to consider relevant considerations or taken into account irrelevant considerations.

Hayne J reasoned that s 48B of the *Migration Act* confers a non-compellable, non-discretionary power on the Minister to substitute a decision of the kind that would have been made by the primary decision-maker had the applicant not been barred by s 48. His Honour held that the Minister's power under s 48B was not a power to review the merits of the original decision or the Tribunal's decision, but rather a power to grant a visa in exceptional circumstances. Consequently, the Minister was not obliged to re-examine the applicant's claims of past persecution, as these had already been determined by the Tribunal. The Minister's decision was lawful because it correctly applied the provisions of s 48B.

The application for judicial review was dismissed.