SZNZL v MIAC

The applicant, SZNZL, sought judicial review of a decision by the Minister for Immigration and Citizenship (MIAC) to refuse to grant a protection visa. The Federal Court of Australia was asked to consider the lawfulness of this refusal.

The central legal issue before the Full Federal Court was whether the Minister, in exercising the non-compellable, non-discretionary power under s 48B of the *Migration Act 1958* (Cth) to allow an applicant to lodge a protection visa application despite being subject to a bar under s 48, had failed to consider relevant considerations and had taken into account irrelevant considerations. Specifically, the court had to determine if the Minister's delegate had failed to consider the applicant's subjective fear of persecution and the objective circumstances of that fear when assessing whether to exercise the s 48B power.

Gummow and Heydon JJ held that the delegate's decision-making process was flawed. They reasoned that while the s 48B power was discretionary, the exercise of that discretion must be informed by the very purpose for which the power exists, which is to allow individuals who might otherwise be barred to have their claims for protection considered. The delegate's focus on the applicant's failure to provide certain information in a previous, unsuccessful application, without adequately considering the applicant's current subjective and objective fears, meant that relevant considerations were not taken into account and irrelevant considerations were given undue weight. This amounted to an error of law.

The Full Federal Court allowed the appeal, set aside the decision of the delegate, and remitted the matter to the Minister for reconsideration according to law.