Dang, Ex parte Re MIMA

The applicants, Mr. Dang and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for a Protection Visa. The applicants were citizens of Vietnam and had arrived in Australia by boat. The core of the dispute concerned the lawfulness of the Minister's decisions, which were made under s 48B of the *Migration Act 1958* (Cth). The matter came before the High Court of Australia.

The High Court was required to determine whether the Minister's decisions were vitiated by a failure to consider relevant considerations or by taking into account irrelevant considerations. Specifically, the Court had to assess whether the Minister had adequately considered the applicants' claims of persecution in Vietnam, including the risk of refoulement, and whether the Minister had unlawfully fettered his discretion by applying a policy that effectively precluded consideration of claims that had already been rejected by the Refugee Review Tribunal.

The Court held that the Minister's decisions were invalid. Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ found that the Minister had failed to consider the applicants' claims of persecution in Vietnam, including the risk of refoulement, as required by s 48B. They reasoned that the Minister's reliance on a policy that treated prior Tribunal decisions as determinative, without independent consideration of the applicants' circumstances, amounted to an unlawful fettering of his discretion. Kirby and Callinan JJ, while reaching the same conclusion, focused on the Minister's failure to give proper weight to the evidence before him. The Court affirmed that a Minister exercising a non-compellable, non-jurisdictional power under s 48B must undertake an independent assessment of the applicant's circumstances and the relevant legal criteria.

The High Court ordered that the decisions of the Minister be quashed and remitted the applications to the Minister for reconsideration according to law.