SZBPS v MIMIA

The applicants, SZBPS 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 despite being barred by s 48 of the Act. The matter was heard in 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 under the *Administrative Decisions (Judicial Review) Act 1977* (Cth) (ADJR Act). Specifically, the court had to determine if the Minister's refusal to exercise the s 48B power constituted a "decision" for the purposes of the ADJR Act, and if so, whether it was a decision to which the ADJR Act applied, given the non-compellable and non-discretionary nature of the power.

Gummow and Heydon JJ held that the Minister's failure to exercise the power under s 48B was not a "decision" within the meaning of the ADJR Act. Their Honours reasoned that the ADJR Act applies to decisions of an administrative character made under an enactment. While the power under s 48B was conferred by an enactment, the refusal to exercise it, in circumstances where the Minister was not obliged to consider the application, did not constitute a positive decision to refuse a visa or to refuse to grant a permission. Instead, it was a failure to act, which fell outside the scope of reviewable decisions under the ADJR Act. The court therefore found that it lacked jurisdiction to entertain the application for judicial review.