Plaintiff S233/2011 v Minister for Immigration and Citizenship

The High Court of Australia considered an application for judicial review brought by Plaintiff S233/2011 against the Minister for Immigration and Citizenship. The dispute concerned the lawfulness of the Minister's decision to refuse to grant the plaintiff a protection visa.

The central legal issue before the Court was whether the Minister, in exercising the non-compellable, non-discretionary power under s 48B of the *Migration Act 1958* (Cth) to allow a non-citizen to lodge a valid application for a protection visa, was required to consider the best interests of the child, as mandated by Article 3(1) of the *United Nations Convention on the Rights of the Child*.

Heydon J held that the Minister's power under s 48B was not a power that could be exercised in a manner that would give effect to Article 3(1) of the Convention. His Honour reasoned that the Convention, while important, does not impose obligations on the executive government of Australia in the absence of implementing legislation. Therefore, the Minister was not legally bound to consider the best interests of the child when deciding whether to exercise the power under s 48B. The application for judicial review was dismissed.