Minister for Immigration v MO

The Minister for Immigration and Border Protection (the Minister) appealed to the Full Federal Court against a decision of a single judge of the Federal Court. The appeal concerned the lawfulness of the Minister's decision to refuse to grant a protection visa to a non-citizen, identified as MO, who had arrived in Australia by boat. MO claimed to be a refugee and sought protection on the basis of past persecution and a well-founded fear of future persecution in their country of origin.

The central legal issue before the Full Federal Court was whether the Minister, in exercising the non-compellable, non-discretionary power to refuse to grant a protection visa under s 46B of the *Migration Act 1958* (Cth), was required to consider the applicant's claims for protection in accordance with the *International Covenant on Civil and Political Rights* (ICCPR). Specifically, the court had to determine if the Minister's decision-making process, which did not explicitly refer to or apply the provisions of the ICCPR, was nevertheless lawful.

The Full Federal Court held that the Minister's power under s 46B of the *Migration Act* was a statutory power, and the exercise of that power was not conditioned on compliance with international human rights instruments such as the ICCPR, unless Parliament had expressly or implicitly mandated such compliance. The court reasoned that the *Migration Act* provided a comprehensive code for the assessment of protection claims, and the Minister was bound to act within the confines of that statutory framework. The court found no indication in the *Migration Act* that the Minister was required to consider the ICCPR in making a decision under s 46B, and therefore, the failure to do so did not render the decision unlawful.

The appeal was allowed, and the order of the single judge was set aside. The Full Federal Court remitted the matter to the Federal Circuit and Family Court of Australia for redetermination.