Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI

The High Court of Australia heard appeals from decisions of the Federal Court of Australia concerning the Minister for Immigration and Border Protection and two applicants, SZSSJ and SZTZI. The dispute centred on the lawfulness of decisions made by the Minister to refuse to grant protection visas to the applicants, who were citizens of Iran and had arrived in Australia by boat. The applicants had been found to be persons to whom Australia had protection obligations under the Migration Act 1958 (Cth) and the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol of 1967. However, the Minister had refused to grant them protection visas on the basis that they were persons described in s 46B(1)(c) of the Migration Act, which relates to persons who have entered Australia unlawfully and have not been granted a visa.

The primary legal issue before the High Court was whether the Minister's interpretation of s 46B(1)(c) of the Migration Act was correct. Specifically, the Court had to determine whether that provision applied to individuals who had arrived in Australia unlawfully and were subsequently found to be owed protection obligations, or if it was intended to apply only to those who had not yet been assessed for protection obligations. The applicants argued that s 46B(1)(c) could not be applied to them once they had been found to be owed protection obligations, as this would render the protection visa scheme inoperative for such individuals.

The High Court, in a joint judgment, held that the Minister's interpretation of s 46B(1)(c) was erroneous. The Court reasoned that the purpose of s 46B(1)(c) was to prevent individuals who had entered Australia unlawfully from being granted a visa unless they met specific criteria, and that this provision was not intended to override or negate the obligation to grant a protection visa to a person to whom Australia owed protection obligations. The Court found that the applicants, having been found to be persons to whom Australia owed protection obligations, were entitled to be granted protection visas, and the Minister's refusal to do so was unlawful. The appeals were dismissed.