SZHFE v MIMA & Anor

The applicants, SZHFE and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) and the second respondent, concerning their applications for protection visas. The core of the dispute revolved around the Minister's assessment of the applicants' claims for protection, particularly in light of adverse information that had been provided to them.

The primary legal issue before the Full Federal Court was whether the Minister, in exercising the non-compellable power under s 48B of the *Migration Act 1958* (Cth) to allow a non-citizen to apply for a protection visa despite being barred by s 48, was required to provide the applicant with a reasonable opportunity to respond to adverse information that might influence the Minister's decision. A secondary issue concerned the proper construction of the phrase "information that might be adverse" in the context of the Minister's obligations.

The Court, comprising Kirby and Callinan JJ, held that the Minister's power under s 48B was not a personal, non-compellable power in the same way as the power under s 501. Instead, it was a power exercised in the public interest, and therefore, procedural fairness required that the applicants be given an opportunity to respond to adverse information before the Minister made a decision under s 48B. The Court reasoned that the Minister's decision was one that affected the applicants' rights and interests, and the principles of natural justice dictated that they should be heard. The Court also considered the meaning of "information that might be adverse," concluding that it encompassed information that could potentially lead to a negative outcome for the applicant.

The Court found that procedural fairness had not been afforded to the applicants and quashed the decisions of the Minister. The matter was remitted to the Minister for reconsideration according to law.