Lei v Minister for Immigration and Citizenship

The applicant, Lei, sought judicial review of a decision by the Minister for Immigration and Citizenship to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by the *Migration Act 1958* (Cth). The matter came before Hayne J of the High Court of Australia.

The central legal issue before the Court was whether the Refugee Convention and the *Migration Act* imposed an obligation on the Minister to consider the applicant's claims for a protection visa, even if those claims were made after the expiry of a statutory time limit. Specifically, the Court had to determine the scope and effect of s 48B of the *Migration Act*, which deals with applications for protection visas made by non-citizens in Australia who have had a visa refused or cancelled.

Hayne J reasoned that s 48B of the *Migration Act* did not create an obligation on the Minister to consider an application for a protection visa if the applicant was subject to a bar under s 48. The Court held that s 48B was intended to provide a limited exception to the s 48 bar, allowing the Minister to consider an application in certain circumstances, but it did not override the bar itself. Therefore, if s 48 applied, the Minister had no power to consider the protection visa application, and consequently, no obligation to do so. The Court found that the applicant's circumstances fell within the s 48 bar, and thus the Minister was not empowered to consider the application.