SZBZF v MIMA

The applicants, SZBZF and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan and 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 matter was heard by Gummow and Heydon JJ of the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing the applicants' claims under s 48B. Specifically, the applicants argued that the delegate had improperly considered the possibility of them being able to obtain protection in a third country, and had failed to give adequate weight to the risks they faced in Afghanistan. The court was required to determine the scope of the Minister's duty under s 48B and the extent to which the delegate's decision-making process was vitiated by error.

The High Court held that the delegate had erred in law by taking into account the possibility of protection in a third country, as this was not a relevant consideration under s 48B. The Court reiterated that the assessment under s 48B is confined to whether the applicant would be in "danger of persecution" if returned to their country of origin. The delegate's focus on third-country protection diverted from the central question of risk in Afghanistan. Consequently, the delegate's decision was found to be affected by an error of law, as it was based on an incorrect understanding of the statutory criteria.

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