SZAUF & Ors v MIMIA

The applicants, SZAUF 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 certain non-citizens to apply for a protection visa, notwithstanding that they had previously been refused such a visa. The matter came before the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's power under s 48B of the *Migration Act* was amenable to judicial review. Specifically, the applicants contended that the Minister's failure to consider their requests for a s 48B referral constituted an error of law, arguing that the power, while discretionary, was not unfettered and that the Minister was obliged to consider whether to exercise it in certain circumstances. The court was required to determine the scope of the Minister's duty, if any, to consider such requests and whether a failure to do so could be a ground for judicial review.

Gummow and Kirby JJ held that the Minister's power under s 48B was not subject to judicial review. Their Honours reasoned that the power was conferred on the Minister personally and was not a power that could be exercised by the Department of Immigration on his behalf. Furthermore, they found that the power was not a "decision" within the meaning of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) and that there was no implied duty on the Minister to consider whether to exercise the power in any particular case. The court emphasised that the power was a matter of executive grace and favour, not a right that could be enforced by the courts.

The High Court dismissed the applications for judicial review.