SZDPO & Ors v MIMIA

The applicants, SZDPO and Ors, 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 the applicants to lodge further protection visa applications, notwithstanding that they had previously had protection visa applications refused. The matter was heard by the High Court of Australia.

The primary legal issue before the High Court was whether the Minister's decision not to exercise the power under s 48B was reviewable by the court. This involved determining whether the power conferred by s 48B was of such a nature that its non-exercise could be considered legally unreasonable or otherwise amenable to judicial review, despite the general understanding that such powers are often unfettered. A related issue was whether the Minister's reasons for not referring the matter to the Minister for Immigration were adequate and disclosed a proper consideration of the relevant factors.

McHugh and Heydon JJ held that the Minister's power under s 48B was not reviewable by the court. Their Honours reasoned that the power was a personal, non-compellable, and non-discretionary power vested in the Minister, and that the statute did not confer any right upon an applicant to have the Minister exercise that power. Consequently, the Minister's failure to exercise the power, or the reasons given for that failure, did not give rise to a cause of action that could be pursued in judicial review. The court applied the principle that where a statute confers a power on a Minister that is not exercisable at the behest of an individual, the exercise or non-exercise of that power is not subject to judicial review.

The High Court dismissed the application for judicial review.