SZAHQ & Ors v MIMIA

The applicants, SZAHQ and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) concerning their applications for protection visas. The dispute centred on whether the Minister had properly exercised his non-compellable, non-discretionary power under s 48B of the *Migration Act 1958* (Cth) to allow the applicants to lodge further protection visa applications, notwithstanding that they had previously had protection visa applications refused. The matter was heard by McHugh and Heydon JJ of the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's decision-making process under s 48B was amenable to judicial review. Specifically, the court had to determine if the Minister's failure to consider certain information provided by the applicants, and the alleged failure to provide reasons for refusing to exercise the s 48B power, constituted an error of law that could be quashed under the *Administrative Decisions (Judicial Review) Act 1977* (Cth).

McHugh and Heydon JJ held that the Minister's power under s 48B was not a mere formality but involved a substantive decision-making process. They reasoned that while the power was non-compellable and non-discretionary in the sense that the Minister could not be forced to exercise it, the manner in which it was exercised, or not exercised, could still be subject to judicial review if it involved an error of law. The court found that the Minister's failure to consider relevant information and to provide reasons for the decision could amount to such an error, particularly if it indicated that the Minister had misunderstood or failed to give effect to the purpose of the provision.

The High Court allowed the appeals, quashed the decisions of the Minister, and remitted the applications back to the Minister for reconsideration according to law.