Minister for Immigration and Citizenship v SZMDS

The Minister for Immigration and Citizenship (the Minister) appealed to the High Court of Australia from a decision of the Full Federal Court. The dispute concerned the lawfulness of the Minister's decision to refuse to grant a protection visa to SZMDS, a citizen of Afghanistan. SZMDS had arrived in Australia by boat and claimed to fear persecution in Afghanistan.

The High Court was required to determine whether the Minister, in exercising the non-compellable, non-discretionary power under s 499 of the *Migration Act 1958* (Cth) to request further information from an applicant for a protection visa, was bound by the principles of procedural fairness. Specifically, the Court considered whether the Minister was obliged to inform SZMDS of adverse information that had been obtained from a third party and to provide an opportunity to respond before making a decision to refuse the visa.

The Court held that the power under s 499 of the *Migration Act* was not a power that affected the rights or interests of the applicant in a way that attracted the common law duty to afford procedural fairness. Their Honours reasoned that the request for further information was a preliminary step in the decision-making process, and the ultimate decision to grant or refuse a visa was made under other provisions of the Act. The Minister's obligation to provide procedural fairness arose at the stage of making the substantive decision, not during the preliminary request for information. The Court noted that the Minister had, in fact, provided SZMDS with an opportunity to respond to adverse information before the final decision was made, but this was not a requirement of procedural fairness in relation to the s 499 power.

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