SZFDZ v MIMA

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.