EBT16 v Minister for Home Affairs & Anor

The applicant, EBT16, sought judicial review of a decision by the Minister for Home Affairs to refuse to grant a protection visa. The applicant, who had arrived in Australia by boat, claimed to be a refugee and sought protection on the basis of a well-founded fear of persecution in their country of origin. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which provides that a non-citizen who has entered Australia other than by a lawful entry and who is subject to a removal pathway cannot be granted a protection visa. The matter came before Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the protection visa, based on the operation of s 48B of the *Migration Act*, was affected by an error of law. Specifically, the applicant contended that the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations in the exercise of the power conferred by s 48B. This involved an examination of the scope of the Minister's discretion under s 48B and the extent to which the Minister was required to consider the applicant's claims for protection when determining whether to refuse a visa on the grounds of unlawful entry.

Gageler J reasoned that s 48B of the *Migration Act* operates as a jurisdictional bar to the grant of a protection visa for non-citizens who have entered Australia unlawfully and are subject to a removal pathway. His Honour held that the Minister's power under s 48B is not a discretionary power to grant or refuse a visa, but rather a power to refuse to grant a visa in circumstances where the statutory conditions are met. Consequently, the Minister was not required to consider the merits of the applicant's protection claims when applying s 48B. The Court found that the Minister had correctly applied the law and that there was no error of law in the decision to refuse the visa.

The application for judicial review was dismissed.