SZHNM v MIMA

The applicants, SZHNM 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 primary dispute concerned the lawfulness of the Minister's decisions, which were made under s 48B of the *Migration Act 1958* (Cth) and related provisions. The matter was heard by Hayne and Crennan JJ of the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in considering the applicants' claims for protection visas under s 48B, was required to take into account the fact that the applicants had arrived in Australia by boat. This question arose in the context of the Minister's power to grant a visa in circumstances where the applicant would otherwise be barred from seeking review of a decision to refuse a protection visa. The applicants contended that the Minister's failure to consider their mode of arrival vitiated the lawfulness of the decisions.

The High Court held that the Minister's power under s 48B was discretionary and that the Minister was not obliged to consider all possible factors, including the applicants' mode of arrival, when exercising that discretion. Their Honours reasoned that the statutory language of s 48B did not impose such a requirement. The Minister was entitled to focus on the specific criteria outlined in the section, which related to whether it was in the public interest to grant a visa. The mode of arrival, while potentially relevant to other aspects of migration law, was not a mandatory consideration for the exercise of the s 48B discretion.

The High Court dismissed the applicants' application for judicial review.