SZAZP v MIMIA

The applicants, SZAZP and others, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan who had arrived in Australia by boat. The Minister's decision was made under s 48B of the *Migration Act 1958* (Cth), which requires the Minister to consider whether to grant a visa to a non-citizen who has arrived in Australia in breach of the Act and who is seeking protection.

The central legal issue before the High Court was whether the Minister, in considering the s 48B application, was bound to consider the applicants' claims for protection under the *Refugees Convention 1951* and the *Protocol relating to the Status of Refugees 1967* (the Convention). Specifically, the Court had to determine if the Minister's discretion under s 48B was limited by the non-refoulement obligations contained within the Convention, which prohibit the return of refugees to territories where their life or freedom would be threatened.

Gummow and Kirby JJ held that the Minister's power under s 48B was not unfettered and that the non-refoulement obligations under the Convention were relevant considerations. Their Honours reasoned that the purpose of the *Migration Act* was to give effect to Australia's international obligations, including those under the Convention. Therefore, the Minister was required to consider whether granting a protection visa would be consistent with these obligations, particularly the prohibition against refoulement. The Court found that the Minister had failed to properly consider this aspect of the applicants' claims.

The High Court allowed the appeal, quashed the Minister's decision, and remitted the applications for reconsideration by the Minister according to law.