Minister for Immigration and Border Protection v Kumar & Ors

The High Court of Australia considered the appeal of the Minister for Immigration and Border Protection against a decision of the Full Federal Court concerning the lawfulness of decisions to refuse to grant protection visas to a group of Sri Lankan nationals. The central dispute revolved around whether the Minister had properly considered the applicants' claims for protection, particularly in light of their alleged persecution in Sri Lanka.

The primary legal issue before the High Court was whether the Minister, in making decisions under s 48B of the *Migration Act 1958* (Cth), was required to consider the applicants' claims for protection in accordance with the principles of administrative law, specifically concerning the duty to afford procedural fairness. The Court also had to determine the proper interpretation of the Minister's obligations when assessing whether to exercise the non-compellable, non-discretionary power under s 48B, which allows the Minister to lift the bar imposed by s 48 of the Act.

Kiefel CJ and Nettle J held that the Minister's power under s 48B was not a power that attracted the common law duty to afford procedural fairness. Their Honours reasoned that s 48B conferred a power on the Minister to grant a visa, which is a benefit, and that the exercise of such a power did not, in itself, give rise to a legitimate expectation of procedural fairness in the context of a refusal to exercise that power. The Court distinguished this power from those where a person has a pre-existing right or a legitimate expectation of a benefit being granted, which might attract procedural fairness obligations. The appeal was allowed.