SZDGV & Anor v MIMA & Anor

The applicants, SZDGV and another individual, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) and another respondent concerning their applications for protection visas. The dispute centred on the assessment of their claims for protection under Australian law.

The primary legal issue before the High Court was whether the Minister, in exercising the non-compellable, non-discretionary power under s 48B of the Migration Act 1958 (Cth) to allow a protection visa application to be made, was required to consider the applicants' claims for protection in accordance with the principles of administrative law, specifically concerning the duty to afford procedural fairness. A further issue concerned the proper construction of s 48B itself and its relationship with the Minister's broader powers.

The High Court held that the power conferred by s 48B of the Migration Act was not a power that attracted the duty to afford procedural fairness. Their Honours reasoned that s 48B did not involve the exercise of a power that affected the rights, interests, or legitimate expectations of the applicants in a manner that would ordinarily attract procedural fairness. Instead, it was a power that enabled the Minister to permit an application to be made, which would otherwise be barred by s 48. The Court distinguished this power from those where a decision directly determined an applicant's rights or status.

The applications for special leave to appeal were dismissed.