Jansz and Ors, Ex Parte - Re MIMA and Ors M85/2000

This matter concerned an application by Jansz and Ors for an order of prohibition against the Minister for Immigration and Multicultural Affairs (MIMA) and Ors. The applicants sought to prevent the Minister from making a decision under section 48B of the Migration Act 1958 (Cth) to refuse to grant them a protection visa.

The central legal issue before Hayne J was whether the Minister was empowered to consider an application for a protection visa under section 48B of the Migration Act when the applicants had already been refused a protection visa by the Refugee Review Tribunal. The applicants contended that section 48B did not permit the Minister to consider a further application in such circumstances, arguing that it would circumvent the finality of the Tribunal's decision.

Hayne J reasoned that section 48B of the Migration Act, which allows the Minister to substitute their own decision for a decision of the Tribunal, was intended to provide a mechanism for exceptional cases where the Minister might intervene. However, his Honour found that the section did not grant the Minister a broad discretion to reconsider applications that had already been finally determined by the Refugee Review Tribunal. The Minister's power under section 48B was limited to circumstances where the Tribunal had not made a decision, or where the Tribunal's decision was not a refusal of a protection visa.

Consequently, Hayne J made orders prohibiting the Minister from making a decision under section 48B of the Migration Act in relation to the applicants' claims.