Dyer & Ors v Minister for Immigration and Border Protection

The applicants, Mr and Mrs Dyer, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant them a protection visa. The applicants, who are citizens of Iran, claimed to have been persecuted in their home country due to their religious beliefs. The Minister's decision was made under s 48B of the Migration Act 1958 (Cth), which allows the Minister to substitute a more favourable decision for a decision of the Refugee Review Tribunal (RRT) or the Immigration Assessment Authority (IAA) if it is in the public interest to do so. The applicants argued that the Minister's refusal to exercise this discretion was unlawful. The matter came before Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister's power under s 48B of the Migration Act to substitute a more favourable decision was a non-compellable discretionary power, or whether it was a power that could be the subject of judicial review for failure to exercise it. The applicants contended that the Minister's decision not to grant them a protection visa, despite their claims of persecution, was unreasonable and that the Minister had failed to consider relevant factors, thereby vitiating the exercise of discretion.

Gageler J held that the power conferred by s 48B of the Migration Act is a non-compellable discretionary power. His Honour reasoned that the language of the provision, particularly the phrase "may substitute", indicates that the Minister is not obliged to exercise the power. Furthermore, the purpose of s 48B is to allow for exceptional circumstances where the Minister may intervene in the public interest, rather than to provide an avenue for merits review of decisions made by the RRT or IAA. Consequently, the Minister's decision not to exercise the power under s 48B is not amenable to judicial review on the grounds of unreasonableness or failure to consider relevant factors. The Court found that the applicants had not demonstrated that the Minister had failed to exercise the power, but rather that the Minister had exercised the power by deciding not to substitute a more favourable decision.

The application for judicial review was dismissed.