SZDZR v MIMA

The applicants, SZDZR 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 primary legal issue before the High Court was whether the Minister, in considering an application under s 48B, was required to have regard to the fact that the applicant had arrived in Australia by boat. This question arose because the Minister's delegate had, in making the decision, explicitly stated that the fact of arrival by boat was not a relevant consideration under s 48B. The applicants contended that this approach was erroneous and that the delegate had failed to consider a relevant consideration.

The High Court held that the delegate's approach was flawed. Their Honours explained that s 48B requires the Minister to consider whether it would be "contrary to the international obligations of the Commonwealth" to remove the applicant from Australia. While the *manner* of arrival is not a direct criterion under s 48B, the fact of arrival by boat could be relevant to the assessment of whether removal would be contrary to Australia's international obligations, particularly in light of the potential for refoulement. The delegate's exclusion of this consideration meant that the decision was vitiated by an error of law.

Consequently, the High Court allowed the appeals, set aside the decisions of the Federal Court, and remitted the applications for protection visas to the Minister for reconsideration according to law.