NAXD v MIMIA

The High Court of Australia heard an appeal concerning the interpretation of the *Migration Act 1958* (Cth) and its application to a non-citizen, NAXD, who had been detained. The Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) was the respondent. The core of the dispute revolved around the lawfulness of NAXD's ongoing detention.

The central legal question before the High Court was whether the Minister had a continuing duty to exercise the power to grant a visa to NAXD, even after an initial decision to refuse that visa had been made and affirmed on review. This question arose in the context of NAXD's prolonged detention and the Minister's alleged failure to consider granting a visa under specific provisions of the *Migration Act*.

The Court considered the interplay between the Minister's powers under s 195A of the *Migration Act* and the statutory framework governing visa applications and detention. Gleeson CJ and Gummow J held that the Minister's power under s 195A to grant a visa to a non-citizen in detention was not extinguished by a prior decision to refuse a visa, nor by the affirmation of that refusal on review. They reasoned that the statutory scheme contemplated that such a power could be exercised at any time while the non-citizen remained in detention, irrespective of previous adverse decisions. The Court emphasised that the power was discretionary and its exercise was not contingent on a fresh application for a visa.

The High Court allowed the appeal, finding that the Minister retained the power to grant NAXD a visa under s 195A. The matter was remitted to the Federal Court for further consideration of the appropriate relief.