SZOIN v Minister for Immigration and Citizenship and Anor

The applicant, SZOIN, sought judicial review of a decision by the Minister for Immigration and Citizenship to refuse to grant a protection visa. The second respondent was the Immigration Assessment Authority. The dispute concerned the lawfulness of the Minister's decision, which was made following an adverse assessment by the Immigration Assessment Authority. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in exercising the non-compellable, non-discretionary power under s 48B of the *Migration Act 1958* (Cth) to allow a non-citizen to apply for a protection visa, was required to consider the applicant's claims for protection under international law, specifically the *1951 Convention relating to the Status of Refugees* and its *1967 Protocol*. The court also considered whether the Minister's decision was vitiated by an error of law, specifically a failure to take relevant considerations into account or by taking irrelevant considerations into account.

The High Court, comprising French CJ and Kiefel J, held that the power under s 48B of the *Migration Act* was not a power to grant a protection visa, but rather a power to permit an application for such a visa to be made. Consequently, the Minister was not obliged to consider the applicant's claims under the Refugee Convention when deciding whether to exercise this power. The court reasoned that the purpose of s 48B was to provide a mechanism for exceptional cases where a non-citizen might be permitted to apply for a protection visa, notwithstanding the general bar imposed by s 48. The Minister's decision was therefore not vitiated by a failure to consider the applicant's protection claims at that stage.

The High Court dismissed the application for judicial review.