SZFDZ v MIMA

[2007] HCATrans 759

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2007

B e t w e e n -
SZFDZ
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 DECEMBER 2007, AT 9.25 AM

HAYNE J: The applicant, a citizen of Lebanon, seeks special leave to appeal against orders of a single judge of the Federal Court of Australia (Moore J) refusing the applicant leave to appeal against orders of the Federal Magistrates Court (Driver FM) and against orders of the same judge that a person who had spoken on the applicant's behalf at the application for leave pay the Minister's costs of the application. The Federal Magistrates Court had dismissed, as incompetent, the applicant's application for judicial review of what was described by the Federal Magistrate as "a decision purportedly made by the Minister, or an officer on behalf of the Minister, under s.417 of the Migration Act 1958 (Cth)".

The decision of Moore J to refuse leave to appeal is not attended by doubt. If the applicant has standing to appeal against the order that costs be paid by a third party, such an appeal would, in this case, enjoy no prospect of success.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.27 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZFDZ 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 bound by the High Court's previous decision in *Minister for Immigration and Multicultural Affairs v Khadr* [2004] HCA 70. Specifically, the Court had to determine if the Minister's interpretation of the phrase "substantial grounds for considering" in s 48B was correct, and whether the Minister was required to consider all the information before them, including information that might have been relevant to a claim for a protection visa under s 36 of the *Migration Act*.

The Court held that the Minister's interpretation of "substantial grounds for considering" was too narrow. It was not confined to whether there were substantial grounds for considering that the applicant might engage Australia's non-refoulement obligations. Rather, the Minister was required to consider whether there were substantial grounds for considering that the applicant might be a refugee within the meaning of the *Refugee Convention*. The Court reasoned that s 48B required the Minister to undertake a preliminary assessment of the applicant's refugee status, and that this assessment must be based on all the information before the Minister, including any information that might establish a claim under s 36. The Minister's failure to consider the full scope of the applicant's potential refugee claim meant the decisions were unlawful.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established