Holland, Ex parte - Re MIMA

This matter concerned an application by Mr Holland for an order of prohibition against the Minister for Immigration and Multicultural Affairs (MIMA). Mr Holland sought to prevent MIMA from making a decision regarding his application for a Protection Visa (Class XA). The application was heard by Kirby J in chambers.

The central legal issue before the Court was whether the Minister's power to refuse to grant a Protection Visa under section 48B of the *Migration Act 1958* (Cth) was a power that could be exercised in a manner that was procedurally unfair. Specifically, the question was whether Mr Holland was entitled to be given notice of the Minister's intention to refuse his visa application and an opportunity to respond before such a decision was made.

Kirby J considered the nature of the power conferred by section 48B, which allows the Minister to refuse to grant a Protection Visa if the applicant has arrived in Australia after the commencement of certain legislative provisions and has not been granted a visa. His Honour concluded that while the Minister's power under section 48B was discretionary, it was not unfettered. The Court applied the principle that even in the exercise of statutory discretions, the rules of procedural fairness generally apply unless expressly or impliedly excluded by the legislation. Kirby J found no indication within the *Migration Act* or associated regulations that procedural fairness was intended to be excluded in the exercise of the section 48B power. Therefore, Mr Holland was entitled to be afforded procedural fairness, including notice and an opportunity to be heard, before the Minister made a decision under section 48B.

The application for an order of prohibition was granted.