Zhang v Minister for Immigration and Border Protection

The applicant, Mr Zhang, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse his application for a Protection visa. The dispute concerned the lawfulness of the Minister's decision, which was made under s 48B of the *Migration Act 1958* (Cth). The matter came before Gageler ACJ of the High Court of Australia.

The central legal issue before the Court was whether the Minister, in considering Mr Zhang's application under s 48B, was required to take into account the fact that Mr Zhang had previously been refused a Protection visa. Section 48B provides that the Minister may substitute a decision to refuse a Protection visa with a decision to grant a Protection visa if the Minister is satisfied that it is in the public interest to do so. The question was whether the Minister's discretion under this provision was fettered by the previous refusal.

Gageler ACJ reasoned that the text and structure of s 48B indicated that the Minister's power to substitute a decision was a broad discretion, not limited by prior adverse decisions. His Honour held that the Minister was entitled to consider all relevant circumstances when assessing whether it was in the public interest to grant a visa, and that a previous refusal did not preclude the Minister from exercising this discretion favourably. The principle applied was that statutory discretions should be construed according to their plain language, and that limitations on such discretions must be clearly expressed.

The application for judicial review was dismissed.