Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu

The applicants, Kosovar evacuees who had been granted temporary visas to enter Australia, sought judicial review of the Minister for Immigration and Multicultural Affairs' decision not to grant them permanent protection visas. The dispute arose after the Minister invited remaining Kosovar evacuees to provide reasons why they should be permitted to stay longer in Australia, indicating that each individual case would be examined. The applicants alleged that the Minister had made representations that he would consult with and take into account the recommendations of the United Nations High Commission for Refugees (UNHCR) regarding their claims, and that he failed to do so. The matter came before Gleeson CJ.

The central legal issue before the Court was whether the Minister had acted unlawfully in his consideration of the applicants' claims for permanent protection visas, specifically concerning his alleged undertaking to consult with and be bound by UNHCR recommendations. The applicants contended that the Minister's representations created an expectation that their cases would be assessed in accordance with UNHCR's advice, and that his failure to do so constituted a failure to consider relevant matters or an improper exercise of his discretion. A further issue was whether there was a serious question to be tried in the principal proceedings, which would be necessary for interlocutory relief.

Gleeson CJ reasoned that the Minister's undertaking was to "take the recommendations of UNHCR into account," not to "abide by them." The Court noted that the Minister's statutory obligations were to consider the public interest, which might differ from UNHCR's primary concerns. Furthermore, the evidence did not support the applicants' characterisation of UNHCR's statements, which recommended careful, case-by-case assessment for individuals with protection needs and consideration of medical and trauma counselling reports for vulnerable people. The Court found that the material before it did not demonstrate a serious question to be tried in the principal proceedings.

Consequently, Gleeson CJ dismissed the applications in each summons, ordering that the applicants pay the costs of the proceedings.