SZURV v Minister for Immigration

The applicant, SZURV, sought constitutional writs to quash a decision made by the Minister for Immigration and Border Protection on 24 June 2014. This decision deemed the applicant's second Protection visa application, lodged the previous day, invalid under the *Migration Act 1958* (Cth). The applicant also sought a declaration that his application was validly made and a writ of mandamus compelling the Minister to consider it. The application relied solely on the complementary protection criteria under s 36(2)(aa) of the Act. The court confirmed its jurisdiction to hear the matter under s 476(1) of the *Migration Act*, which grants it the same jurisdiction as the High Court under s 75(v) of the Constitution in relation to "migration decisions."

The central legal issue before the court was whether the purported decision of invalidity was a valid exercise of power under the *Migration Act*, and consequently, whether the court had jurisdiction to review it. Specifically, the court had to determine if the decision, made by an Administration Officer rather than the Minister or a delegate, constituted a "migration decision" as defined in s 5 of the Act, thereby attracting judicial review. The applicant contended that the officer's action was a jurisdictional error, akin to a court mistakenly denying its own jurisdiction.

The court reasoned that while the decision was not made by the Minister personally, it was issued on behalf of the Minister in connection with s 48A of the *Migration Act*. As such, it was considered a "privative clause decision" or a "purported privative clause decision" under s 474 of the Act, being an administrative decision made under the Act in the nature of a refusal to grant a visa. The court found this situation analogous to a court denying its jurisdiction, which is a jurisdictional error attracting a writ of certiorari. The court also referred to the precedent set in *SZGIZ v Minister for Immigration* (2013) 212 FCR 235, where a similar situation involving a departmental officer informing an applicant their visa application was invalid was rectified by a declaration of validity.