DWP17 v Minister for Immigration

DWP17 (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 unlawfully and subsequently seeks to apply for a protection visa onshore. The matter came before Judge Street in the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse to grant the protection visa, based on the operation of s 48B of the *Migration Act*, was affected by jurisdictional error. Specifically, the applicant argued that the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations in the exercise of the power under s 48B, thereby vitiating the decision. The applicant contended that the Minister's assessment of the applicant's claims of persecution was flawed and that this flaw infected the application of s 48B.

Judge Street reasoned that s 48B of the *Migration Act* operates as a bar to onshore protection visa applications for certain non-citizens, including those who have entered Australia unlawfully. The Court found that the Minister's power under s 48B is engaged once the preconditions of the section are met. The Court further held that while the Minister must consider the applicant's claims of persecution, the ultimate decision under s 48B is whether to exercise the discretion to allow an application to be made, notwithstanding the statutory bar. In this instance, the Court determined that the Minister had properly applied s 48B and had not made a jurisdictional error in refusing to grant the protection visa.

The application for judicial review was dismissed.