SZIKW & Ors v MIMA & Anor

The applicants, SZIKW and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) and the second respondent, concerning their claims for protection visas. The matter came before the High Court of Australia, specifically Justices Hayne and Crennan.

The central legal issue before the High Court was whether the primary judge had erred in finding that the decisions under review were not affected by jurisdictional error. This involved an examination of the scope of the non-compellable duty of the Minister to exercise the power under s 48B of the *Migration Act 1958* (Cth) in circumstances where an applicant had been refused a visa and was seeking to apply for a protection visa. The applicants contended that the Minister's failure to consider their claims under s 48B constituted a jurisdictional error.

The High Court considered the nature of the s 48B power, noting that it is a discretionary power that does not impose a non-compellable duty on the Minister to consider making a decision. Their Honours referred to previous High Court authority which established that a failure to exercise a discretionary power, even if that power could have been exercised in favour of the applicant, does not amount to jurisdictional error. Consequently, the Court found that the primary judge had not erred in concluding that the Minister's decisions were not affected by jurisdictional error.

The High Court dismissed the application for special leave to appeal.