SZAKP & Ors v MIMIA

The applicants, SZAKP 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 applications for protection visas, 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 not to refer the applicants' cases to the Immigration Assessment Authority (IAA) for assessment of their claims for protection visas, pursuant to s 48B of the *Migration Act*, was reviewable by the Federal Court. This involved determining the nature of the power conferred by s 48B and the extent to which its exercise, or non-exercise, was subject to judicial review.

McHugh and Heydon JJ held that the power under s 48B was a power to permit the lodgement of a protection visa application, not a power to grant a protection visa. They reasoned that the Minister's decision not to refer the applicants' cases to the IAA was a decision not to exercise a power that would enable the applicants to have their claims for protection visas assessed. The Court concluded that the Minister's decision was not a decision to refuse a protection visa, nor was it a decision that fell within the limited categories of reviewable decisions under the *Migration Act*. Consequently, the Court found that the Federal Court lacked jurisdiction to review the Minister's decision.

The High Court ordered that the applications for judicial review be dismissed.