Minister for Immigration and Citizenship v NBKB & Anor

The Minister for Immigration and Citizenship (the Minister) appealed to the High Court of Australia against a decision of the Full Federal Court, which had allowed an appeal by NBKB and another applicant (the applicants) against the Minister's refusal to grant them protection visas. The dispute concerned the lawfulness of the Minister's decision to refuse the protection visa applications.

The primary legal issue before the High Court was whether the Minister, in exercising the non-compellable, discretionary power under s 48B of the *Migration Act 1958* (Cth) to allow a non-citizen to lodge a valid application for a protection visa, was required to consider, as a relevant consideration, the best interests of the child. This question arose in circumstances where the applicants had lodged their protection visa applications offshore, which were invalid due to the operation of s 46(1) of the *Migration Act*.

French CJ and Bell J held that the Minister's power under s 48B was not a power that required the consideration of the best interests of the child. Their Honours reasoned that s 48B conferred a broad, unfettered discretion on the Minister, and that the considerations to which the Minister might have regard were not limited by any specific statutory requirement to consider the best interests of the child. They distinguished this power from other discretionary powers under the *Migration Act* where such considerations were expressly mandated. The Court found that the Full Federal Court had erred in concluding that the Minister was bound to consider the best interests of the child when exercising the s 48B power.

The High Court allowed the Minister's appeal and set aside the orders of the Full Federal Court.