SZERP v MIMIA & Anor

The applicants, SZERP and MIMIA, brought proceedings before the High Court of Australia concerning the interpretation of certain provisions of the *Migration Act 1958* (Cth) and the *Administrative Decisions (Judicial Review) Act 1977* (Cth). The dispute centred on the lawfulness of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) regarding the applicants' immigration status.

The primary legal issue before the High Court was whether the Minister's decision to refuse to revoke a deportation order was vitiated by an error of law, specifically concerning the proper construction and application of the Minister's non-compellable, non-judicially reviewable power under s 48B of the *Migration Act*. The Court was also required to consider the scope of judicial review in relation to such discretionary powers, particularly in light of the applicants' claims that the Minister had failed to consider relevant considerations or had taken irrelevant considerations into account.

In their reasoning, Gummow and Heydon JJ affirmed that while the Minister's power under s 48B is discretionary and generally not amenable to judicial review, this does not grant the Minister unfettered discretion. Their Honours reiterated the established principle that a failure to consider a relevant consideration or the consideration of an irrelevant consideration can constitute an error of law, rendering the decision reviewable. The Court analysed the specific facts and the material before the Minister, concluding that the Minister had indeed failed to consider a crucial piece of evidence that was relevant to the exercise of the discretion under s 48B. This failure amounted to an error of law.

Consequently, the High Court allowed the appeal, quashed the decision of the Minister, and remitted the matter to the Minister for reconsideration according to law.