Plaintiff M40/2015 v Minister for Immigration and Border Protection & Anor; Plaintiff M41/2015 v Minister for Immigration and Border Protection & Anor

These cases concerned applications for judicial review of decisions made by the Minister for Immigration and Border Protection to refuse to grant protection visas to the plaintiffs, who were asylum seekers. The plaintiffs had arrived in Australia by boat and were detained offshore. The dispute centred on the lawfulness of the Minister's decisions to refuse their protection visa applications, which were made under s 46B of the *Migration Act 1958* (Cth). The applications were heard together by the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's decisions to refuse the protection visa applications were vitiated by jurisdictional error. Specifically, the court was asked to consider whether the Minister had failed to exercise the power conferred by s 46B of the *Migration Act* according to law, and whether the Minister had failed to consider relevant considerations or taken into account irrelevant considerations in making those decisions. The plaintiffs argued that the Minister's decisions were based on a misunderstanding of the law, particularly concerning the scope of the Minister's discretion and the criteria for granting a protection visa.

The High Court, in a judgment delivered by Hayne ACJ, found that the Minister's decisions were not vitiated by jurisdictional error. The court reasoned that the Minister had correctly applied the law as it stood at the time of the decisions. The Minister had considered the relevant criteria for granting a protection visa under s 46B, which required the applicant to be a non-citizen in Australia to whom Australia had protection obligations under the Refugee Convention. The court held that the Minister was not required to consider whether the plaintiffs would be returned to a country where they would face persecution, as this was a matter for the assessment of Australia's protection obligations, not a separate criterion for the grant of a visa under s 46B. The Minister's assessment of the plaintiffs' claims was found to be within the scope of the power granted by the legislation.

The applications for judicial review were dismissed.