Minister for Home Affairs v DUA16 & Anor

The Minister for Home Affairs appealed to the High Court of Australia against a decision of the Full Federal Court concerning the lawfulness of the detention of two non-citizens, DUA16 and another applicant. The dispute centred on whether the Minister had a duty to consider, and if so, to grant, a Protection visa to these individuals while they were in immigration detention. The Full Federal Court had found that such a duty existed.

The High Court was required to determine whether the Minister for Home Affairs had a legal obligation to consider granting a Protection visa to non-citizens detained under section 189(1) of the *Migration Act 1958* (Cth), and whether the Minister had the power to grant such a visa in those circumstances. A key question was whether the existence of a mandatory detention obligation under section 189(1) precluded the Minister from exercising a power to grant a Protection visa.

The High Court, by majority, held that the Minister did not have a duty to consider granting a Protection visa to non-citizens in immigration detention under section 189(1) of the *Migration Act*. The Court reasoned that the statutory scheme of the Act, particularly the provisions relating to mandatory detention and the framework for applying for Protection visas, indicated that these processes were intended to be distinct. The Court found that the obligation to detain under section 189(1) was a paramount and overriding consideration, and that the Minister's power to grant a Protection visa under section 36(2) was not engaged in a way that would require consideration while a person remained subject to mandatory detention. The Court distinguished between the Minister's power to grant a visa and the obligation to consider granting one, concluding that the latter was not imposed by the Act in this context.

The appeal was allowed, and the orders of the Full Federal Court were set aside.