SZAXN v MIMIA (and 28 other applications)

The applicants, SZAXN and 28 others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMIA) to refuse their applications for protection visas. The applicants were all 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).

The primary legal issue before the High Court was whether the Minister, in considering an application for a protection visa under s 48B, was required to consider the applicant's claims for protection under the *Refugees Convention* and *Protocol* (the Convention) independently of the applicant's manner of arrival in Australia. The applicants contended that the Minister's approach, which appeared to treat the fact of arrival by boat as a determinative factor against granting a protection visa, was legally erroneous.

The High Court held that s 48B of the *Migration Act* did not permit the Minister to refuse to consider an application for a protection visa solely on the basis of the applicant's unauthorised arrival in Australia. Their Honours reasoned that the statutory language of s 48B required the Minister to consider the substance of the protection claims made by the applicant, irrespective of how they arrived. The fact of unauthorised arrival was a relevant consideration, but it could not operate as an absolute bar to the Minister exercising their power to grant a protection visa. The Minister's discretion under s 48B was to be exercised having regard to the applicant's claims for protection under the Convention, and the manner of arrival was merely one factor among others to be weighed in that assessment.

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