Minister for Immigration and Border Protection v SZSSJ

The Minister for Immigration and Border Protection appealed to the High Court of Australia against decisions of the Full Court of the Federal Court of Australia, which had overturned decisions of the Federal Circuit Court. The dispute concerned the procedural fairness afforded to SZSSJ and SZTZI (the respondents) in relation to their applications for protection visas. The respondents' personal information had been published on the Department of Immigration and Border Protection website, and the Department conducted International Treaties Obligations Assessments (ITOAs) to determine the impact of this publication on its non-refoulement obligations. The respondents argued that the ITOA processes were not procedurally fair, as they were not provided with all relevant information, including the IP addresses that accessed their data.

The High Court was required to determine whether the obligation to afford procedural fairness applied to the ITOA processes and, if so, whether those processes were procedurally fair. A further issue was whether the respondents' claims for relief engaged the jurisdiction of the Federal Circuit Court under section 476(1) of the *Migration Act 1958* (Cth), and whether that jurisdiction was excluded by section 476(2)(d).

The Court reasoned that the conduct of an ITOA by a Department officer constituted "conduct preparatory to the making of a decision" within the extended definition of "decision" in section 474(3)(h) of the *Migration Act*. This conduct was preparatory to a substantive decision by the Minister regarding the grant of a visa or lifting of a bar under specific provisions of the Act. Therefore, the ITOA process was a "privative clause decision" as defined in section 474(2). The Court found that the claims for relief engaged the Federal Circuit Court's jurisdiction under section 476(1), and this jurisdiction was not excluded by section 476(2)(d). The Court allowed the appeals, setting aside the orders of the Full Court of the Federal Court and remitting the matters for further consideration, with specific directions regarding costs.