Shaw v MIMA

The applicants, Mr. Shaw and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan who had arrived in Australia by boat. The core of the dispute concerned the lawfulness of the Minister's decisions, which were made under s 48B of the *Migration Act 1958* (Cth) and related provisions. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the Minister's decisions to refuse the protection visa applications were affected by jurisdictional error. Specifically, the Court considered whether the Minister had failed to exercise the power conferred by s 48B of the *Migration Act*, or had exercised it unlawfully, by failing to consider relevant considerations or by taking into account irrelevant considerations. A further issue was whether the Minister's delegate, in making the decisions, had properly understood and applied the relevant legal tests, particularly concerning the assessment of risk of harm.

The Court's reasoning focused on the nature of the power granted by s 48B, which allows the Minister to grant a visa to a non-citizen who has arrived in Australia in breach of the Act, if the Minister is satisfied that it is in the public interest to do so. The High Court held that the Minister's delegate had made jurisdictional error by failing to undertake a proper assessment of the risk of harm to the applicants in Afghanistan, which was a fundamental consideration for the grant of a protection visa. The delegate had, in effect, applied an incorrect legal test by requiring the applicants to demonstrate a "real chance" of harm, rather than considering whether there was a "real chance" of them suffering persecution. This misapplication of the legal standard meant that the delegate had not validly exercised the power conferred by the Act.

The High Court allowed the appeals, quashed the decisions of the Minister's delegate, and remitted the applications for protection visas to the Minister for reconsideration according to law.