MIMIA v Scargill, MIMIA v Lobo & Ors

The High Court of Australia considered appeals from decisions of the Federal Court of Australia in *MIMIA v Scargill* and *MIMIA v Lobo & Ors*. The appeals concerned the lawfulness of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant certain protection visas to non-citizens who had arrived in Australia by boat. The core of the dispute was whether the Minister's decisions were vitiated by a failure to afford procedural fairness.

The central legal issue before the High Court was whether the Minister, in exercising the power to refuse protection visas under s 417 of the *Migration Act 1958* (Cth), was obliged to afford procedural fairness to the applicants. This involved determining whether the Minister's decision-making power was of a kind that attracted the common law duty to provide procedural fairness, and if so, what procedural fairness required in the context of such a decision.

Gummow and Hayne JJ held that the Minister's power under s 417 of the *Migration Act* was not a power that attracted the common law duty to provide procedural fairness. Their Honours reasoned that the statutory scheme established by the *Migration Act* for the determination of protection visa claims, particularly in light of amendments made by the *Migration Legislation Amendment Act (No. 19) 1999* (Cth), evinced a clear intention by Parliament to exclude the operation of the common law duty of procedural fairness in relation to the Minister's decision under s 417. They found that the statutory framework provided its own procedural safeguards and that the Minister's role was to exercise a non-compellable, discretionary power to grant a visa in exceptional circumstances, rather than to determine rights.

The appeals were accordingly allowed, and the orders of the Federal Court were set aside.