NANB & Ors v MIMIA

The High Court of Australia considered an appeal concerning the interpretation of the *Migration Act 1958* (Cth) and its application to a group of asylum seekers. The appellants, NANB and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse them visas. The core of the dispute revolved around whether the Minister had properly exercised his non-compellable, non-reviewable powers under section 417 of the *Migration Act* to grant visas in the exercise of his non-compellable, non-reviewable powers.

The central legal issue before the High Court was whether the Minister's decision-making process under section 417 was amenable to judicial review, notwithstanding the express statutory language stating the power was non-compellable and non-reviewable. Specifically, the court had to determine if the Minister's failure to consider certain information or to provide reasons for refusal constituted an error of law that could be corrected by the courts, or if the statutory ouster of review was absolute.

McHugh and Heydon JJ, in their joint judgment, affirmed that while the power under section 417 is discretionary and not subject to the usual merits review, it is not entirely immune from judicial scrutiny. They held that the Minister must still act within the bounds of the law, meaning that decisions made under this section must not be affected by jurisdictional error. Such error could arise if the Minister failed to take into account a relevant consideration or took into account an irrelevant consideration, or if the decision was so unreasonable that no reasonable Minister could have made it. The court emphasised that the statutory language did not permit the Minister to act arbitrarily or in bad faith, and that the exercise of the power remained subject to the supervisory jurisdiction of the courts to prevent abuse of power.