14 June 2016


'Before the High Court: Minister for Immigration and Border Protection v SZSSJ: Consideration of Asylum Claims outside the Visa Application System' by Emily Hammond and Rayner Thwaites in (2016) 38(2) Sydney Law Review 243-253 comments
The Australian Government Department of Immigration and Border Protection is currently assessing whether its inadvertent publication of the identifying details of some 9000 immigration detainees on its website in February 2014 gives rise to sur place refugee claims (that is, by reason of events that have happened in Australia). For some of those affected, the Department’s assessment will be used to help determine whether a personal non-compellable ministerial discretion (‘dispensing power’) should be exercised to grant them a visa even though they are otherwise precluded from making a valid application under the Migration Act 1958 (Cth). The scope for judicial review of assessments taken to inform consideration of the dispensing powers has been the subject of a series of significant High Court of Australia decisions, including the Offshore Processing Case, Plaintiff M76/2013, Plaintiff S4/2014 and Plaintiff S10/2011. Now, the Minister for Immigration and Border Protection is appealing from a decision of the Federal Court of Australia providing relief for denial of procedural fairness in the Department’s assessment process. The appeal gives the High Court an opportunity to clarify a number of important issues including the significance of Plaintiff S10/2011 and the introduction of s 197C of the Migration Act 1958 (Cth).