NABY of 2001 v MIMIA

The applicants, NABY of 2001, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse to grant them a protection visa. The applicants were citizens of Afghanistan who had arrived in Australia by boat. The Minister's decision was made under s 48 of the *Migration Act 1958* (Cth), which prevents asylum seekers who have arrived unlawfully in Australia and whose claims for protection have been refused from seeking review of that refusal by the Migration Review Tribunal.

The central legal issue before the High Court was whether s 48 of the *Migration Act* was invalid by reason of its inconsistency with Australia's obligations under the *1951 Convention relating to the Status of Refugees* and its *1967 Protocol* (the Refugee Convention). Specifically, the applicants argued that s 48 prevented them from accessing the protection visa process, thereby breaching the non-refoulement principle enshrined in Article 33 of the Refugee Convention, which prohibits the expulsion or return of refugees to territories where their life or freedom would be threatened.

The High Court, in a joint judgment by Gummow and Callinan JJ, held that s 48 of the *Migration Act* was not invalid. Their Honours reasoned that the Refugee Convention, while an important international instrument, did not automatically override domestic legislation. They found that the *Migration Act* had been enacted by the Parliament and, in the absence of clear and unambiguous statutory language indicating an intention to give the Refugee Convention direct effect in domestic law, the provisions of the Act must be given effect. The Court concluded that s 48 did not, on its face, compel Australia to act in a manner inconsistent with its international obligations, and that the domestic legal framework provided for the assessment of protection claims, even if s 48 limited the avenues for review in certain circumstances.

The application for judicial review was dismissed.