MIAC v SZIZO

The High Court of Australia considered an appeal from the Federal Court of Australia concerning the interpretation of the *Migration Act 1958* (Cth) and its application to a non-citizen, SZIZO, who had been detained under s 189 of the Act. The dispute centred on whether SZIZO was entitled to be released from immigration detention, notwithstanding the Minister for Immigration and Citizenship's (MIAC) decision to refuse to grant a protection visa.

The primary legal issue before the High Court was whether the Minister's power to make a protection visa decision under s 36 of the *Migration Act* was conditioned upon the applicant being in Australia. This question arose in the context of SZIZO's detention and the Minister's refusal to grant a protection visa, which had been made while SZIZO was offshore. The Court also considered the relationship between the Minister's power to refuse a protection visa and the obligation to release a non-citizen from detention under s 197AB of the Act.

The Court reasoned that the *Migration Act* contemplates that protection visa applications can be made and decided while an applicant is offshore. French CJ and Gummow J held that the power to refuse a protection visa under s 36 is not confined to circumstances where the applicant is physically present in Australia. Consequently, the Minister's decision to refuse SZIZO's protection visa was validly made, even though SZIZO was offshore at the time. This determination meant that the condition for release under s 197AB, which requires the Minister to be satisfied that the non-citizen does not have a visa and is not a non-citizen in respect of whom a protection visa decision has been made, was not met.

The High Court allowed the appeal, setting aside the orders of the Federal Court.