Israelian, Ex Parte; Re MIMA &Anor M127/2000

This matter concerned an application by Israelian for an order of prohibition against the Minister for Immigration and Multicultural Affairs and the respondent, MIMA, in the Federal Court of Australia. The application sought to prevent the Minister from making a decision under s 48B of the Migration Act 1958 (Cth) to refuse to grant the applicant a protection visa.

The central legal issue before the High Court was whether the Minister's power under s 48B of the Migration Act to refuse to grant a protection visa, where the applicant had previously been refused a visa and had not sought review of that refusal, was a power that could be exercised in a manner that was procedurally unfair. Specifically, the Court considered whether the Minister was obliged to afford the applicant an opportunity to make submissions before exercising this power.

The High Court held that s 48B conferred a non-discretionary power on the Minister, which was to be exercised only in circumstances where the applicant had been refused a visa and had not sought review of that refusal. The Court reasoned that the section did not contemplate or require the Minister to afford the applicant an opportunity to make submissions before exercising the power. Therefore, the Minister's power under s 48B was not subject to procedural fairness requirements in the manner contended by the applicant.

The application for an order of prohibition was dismissed.