NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

NZYQ (the applicant) sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) to refuse to grant a protection visa. The applicant, who was detained in immigration detention, had previously been refused a protection visa and had exhausted all merits review rights. The applicant's claim for protection was based on allegations of persecution in their country of origin. The Minister's decision was made under s 48 of the *Migration Act 1958* (Cth), which prevents a non-citizen who has had a visa refused or cancelled from applying for a protection visa while remaining in Australia. The matter came before Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse to grant a protection visa to the applicant, who was in immigration detention and had previously had a protection visa refused, was affected by jurisdictional error. Specifically, the Court considered whether the Minister had failed to exercise the non-compellable, non-discretionary power conferred by s 195A of the *Migration Act 1958* (Cth) to cause a protection visa to be granted to the applicant, and whether this failure constituted a jurisdictional error. The applicant argued that the Minister's failure to consider the grant of a visa under s 195A, despite the applicant's continued detention and the absence of any prospect of removal, amounted to an unlawful refusal to exercise a power that was enlivened by the circumstances.

Gageler J reasoned that s 195A of the *Migration Act 1958* (Cth) confers a power on the Minister to cause a protection visa to be granted to a non-citizen in immigration detention if the Minister is satisfied that the non-citizen is a non-citizen in respect of whom the Minister has a duty to cause a visa to be granted. His Honour found that the applicant was a non-citizen in immigration detention and that the Minister had a duty to cause a protection visa to be granted to the applicant under s 195A, as the applicant had been refused a protection visa and had no further merits review rights, and there was no real prospect of the applicant being removed from Australia. The Minister's failure to exercise this power, therefore, constituted a jurisdictional error.

The High Court ordered that the application for judicial review be granted, that the decision of the Minister be quashed, and that the Minister be ordered to cause a protection visa to be granted to the applicant.