SZAFD v MIMIA

The applicants, SZAFD and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) concerning their claims for protection visas. The dispute centred on whether the Minister had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) when assessing the applicants' claims. The matter was heard by Gummow and Callinan JJ of the High Court of Australia.

The primary legal issue before the High Court was whether the Minister, in exercising the non-compellable, non-discretionary power under s 48B of the *Migration Act*, had failed to consider relevant considerations or taken into account irrelevant considerations. Specifically, the applicants argued that the Minister's delegate had failed to consider the possibility that they might be owed protection under international conventions, even if they did not meet the criteria for a protection visa under domestic law.

The Court reasoned that s 48B of the *Migration Act* requires the Minister to consider whether a non-citizen in Australia who is unable to obtain a visa, other than a protection visa, should be granted a protection visa. This consideration is to be made in light of Australia's international non-refoulement obligations. Gummow and Callinan JJ held that the delegate's assessment had not adequately addressed the potential for the applicants to be owed protection under international law, particularly in circumstances where their claims might fall outside the strict definitions of refugee status as defined in domestic legislation but still engage Australia's international obligations. The Court emphasised that the delegate's duty was to consider the *possibility* of such obligations, not to definitively determine them.

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