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[2025] HCA 13
respondent. Appeal dismissed with costs.
6 cited instruments linked from this judgment.
The High Court held that the Minister's decision to grant FEL17 a temporary visitor visa did not erase the historical fact that his first protection visa application had been refused. Section 417 allowed the Minister to substitute a more favourable decision, but did not authorise the Minister to set aside the Tribunal's decision or the original refusal. The first refusal therefore continued to matter for the repeat-application bar in s 48A. The appeal was dismissed with costs.
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2,207 words · generated 02/10/2026
FEL17, a Coptic Christian from Egypt, applied for a protection visa in 2013. A delegate of the Minister refused the application under s 65 of the Migration Act 1958 (Cth) in 2014. The Administrative Appeals Tribunal affirmed that refusal in 2015. Those events established the first refusal that later became central to the s 48A question [8].
In September 2017, the Assistant Minister exercised the personal, non-compellable power in s 417(1). The Assistant Minister substituted a more favourable decision and granted FEL17 a Visitor (Subclass 600) visa, valid from 12 September to 12 December 2017, with a no further stay condition [8]. The decision was not a grant of a protection visa. It was a visitor visa granted through the Minister's substitution power.
In October 2017, FEL17 made a second protection visa application. A delegate held that application invalid because s 48A barred a further application in the circumstances [9]. FEL17 sought judicial review. His application was dismissed in the Federal Circuit Court, and a majority of the Full Court of the Federal Court dismissed his appeal in 2023. Snaden J dissented in the Full Court. Special leave to appeal to the High Court was granted in 2024 [9]-[11].
The High Court's central task was statutory construction. It asked whether the refusal relevant to s 48A was merely a historical fact, or had to remain legally effective when the second application was made. It also asked whether s 417's power to “substitute” a more favourable decision operated to set aside the earlier Tribunal and delegate decisions [12]-[13]. The Court dismissed the appeal with costs [33].
The Court approached the first question by construing the refusal language in s 48A. It concluded that the provision refers to the historical fact that a refusal decision was made, whether or not that decision remains legally effective [14]. That construction drew on Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, where the Court described the relevant kind of decision as one made in fact, regardless of legal effectiveness [14]. The Court also relied on its discussion in Plaintiff M174/2016 v Minister for Immigration and Border Protection: a decision could trigger statutory review machinery as a decision made in fact even if infected by jurisdictional error [15]-[16].
That reasoning distinguishes the existence of an administrative decision as a historical event from its continuing legal operation. The Court did not say that the delegate's refusal continued to operate as the sole current decision after Tribunal review. Rather, it held that the fact that the refusal had been made remained relevant to the statutory condition in s 48A [14]-[16].
The second issue concerned the word “substitute” in s 417(1). The Court considered that the text did not confer a power to set aside the Tribunal decision, or an underlying decision of a delegate [21]. The provision allowed the Minister to substitute a more favourable decision “whether or not the Tribunal had the power to make that other decision”. In the Court's analysis, that language showed that the Minister's decision operated according to its terms, even if the Tribunal could not itself have made that decision. It did not mean that the Minister replaced the Tribunal's decision in the sense of extinguishing it [21].
The Court reinforced its reading by comparing s 417 with provisions where Parliament expressly used the language of setting aside. Section 415(2)(d), for example, expressly allowed the Tribunal to “set the decision aside and substitute a new decision”. Sections 501A and 501J were also cited as examples of express setting-aside powers [22]. The difference in wording mattered: Parliament had used a specific expression when it intended to confer such a power.
The legislative history supported that distinction. An earlier statutory provision expressly authorised the Minister to “set aside” a Tribunal decision and then “substitute” a more favourable one [23]-[24]. In later provisions, including the predecessors to s 417, Parliament used substitution language without the separate setting-aside language [25]-[28]. The Court treated that change as significant. It also noted that the Minister's later power was broad enough to permit a decision that the Tribunal could not make, and that the Minister was not bound by some visa-processing provisions [28]-[29]. The Minister's substituted decision therefore did not necessarily involve reconsidering, or reversing, the Tribunal's decision.
The statutory purpose also mattered. Section 48B specifically gave the Minister a power to determine that s 48A would not prevent a further protection visa application if the Minister considered that course to be in the public interest. The power was personal and non-compellable, and required a statement to be tabled in Parliament explaining the determination and reasons [4], [31]. The Court considered it incongruous to read s 417 as indirectly providing the same means of lifting the repeat-application bar, while bypassing the features Parliament had attached to s 48B [32].
Taken together, these points led to the conclusion that the 2017 substitution did not set aside either the Tribunal's affirmation or the delegate's original refusal. The delegate's refusal therefore persisted as a historical fact relevant to s 48A [30]. The Court held the second application barred and dismissed the appeal [33].
The judgment interpreted the statutory scheme in force in the relevant period. It did not announce a legislative amendment or describe a change in the text of ss 48A or 417. Its contribution is a clarification of how those provisions operate together.
Before this judgment, the competing interpretations had been expressed in the Full Court. The majority considered that the s 417 decision did not alter the history of the original refusal, while Snaden J considered that the earlier refusal no longer had relevant legal effect after the Minister's substitution [10]-[11]. The High Court resolved that disagreement for the statutory question before it: s 48A concerns the historical fact of refusal, and s 417 does not confer a setting-aside power [14], [21], [30], [33].
The judgment also explains the distinction between s 417 and s 48B. Section 417 permits a more favourable substituted decision, including one the Tribunal could not itself have made, but does not set aside the Tribunal decision. Section 48B is the provision expressly directed to disapplying the s 48A bar in the public interest [28], [31]-[32]. The High Court's reasoning treats these as separate statutory functions, rather than interchangeable routes to the same result.
The Court's reliance on Brian Lawlor and Plaintiff M174/2016 places the s 48A interpretation within a broader distinction between decisions made in fact and decisions with continuing legal effect [14]-[16]. The judgment does not state that every statutory reference to a refusal must be interpreted this way. Its conclusion concerns the language, context, history and purpose of s 48A in the statutory scheme considered [14], [20]-[32].
The decision also distinguishes Al Tekriti v Minister for Immigration and Multicultural and Indigenous Affairs. In that case, the Tribunal had set aside the refusal and substituted a decision that there were no grounds to refuse the visa. The High Court considered that situation different because, in FEL17, the s 417 exercise did not set aside the delegate's decision [17]-[18]. The distinction again turns on the statutory source and scope of the decision-making power.
At [14], the Court said that s 48A refers to “an historical fact” that “has not been set aside in fact”, regardless of legal effect. In plain English, the statutory bar can depend on whether a refusal happened, not only on whether that refusal remains the operative legal decision at the later date. The phrase “has not been set aside in fact” is important: the Court did not treat every past refusal as permanently relevant regardless of what later statutory action occurred. It held that this refusal had not been set aside.
At [21], the Court explained that s 417 substitution means the Minister's decision operates according to its terms, irrespective of the Tribunal decision. Put simply, a substituted decision can provide a different, more favourable outcome while the earlier Tribunal decision is not thereby formally undone. The Court added that the Tribunal decision becomes immaterial for the duration of the substituted decision's operation. That is different from saying that the earlier decision was erased.
At [22], the Court contrasted s 417 with provisions that expressly authorise a decision-maker to “set aside” a decision. In ordinary terms, the Court reasoned that Parliament knows how to confer a setting-aside power expressly. The absence of those words in s 417 supported the conclusion that substitution alone was insufficient.
At [30], the Court applied that reasoning to FEL17: neither the Tribunal's decision nor the delegate's decision had been set aside, so the 2014 refusal persisted for s 48A. This is the step that links the statutory interpretation to the outcome.
At [32], the Court described s 48B as the route Parliament provided for lifting the s 48A bar in the public interest. The reasoning was not simply that both provisions involved a public-interest assessment. The Court emphasised the distinct features of s 48B, including the Minister's personal, non-compellable power and the obligation to table reasons in Parliament [4], [31]-[32].
The judgment is directly concerned with a sequence in which a person made a protection visa application, received a refusal, and later sought to make another protection visa application while in Australia. A potentially significant further event was that the Minister used s 417 to substitute a more favourable decision, but the Minister did not expressly set aside the original refusal [8], [30].
For the statutory reasoning to be relevant, the question will involve the meaning of a prior refusal under s 48A and whether a later decision has legally or factually set it aside. The judgment treats the historical fact of refusal as sufficient for s 48A where it has not been set aside in fact [14], [33]. It also distinguishes a substitution under s 417 from an express setting aside [21]-[22].
The decision does not decide every possible effect of every later administrative or judicial decision. In particular, the Court distinguished the circumstances in Al Tekriti, where the Tribunal had set aside the refusal and substituted a decision that there were no grounds to refuse the visa [17]-[18]. A lawyer analysing a different fact pattern would likely want to identify exactly what the later decision-maker was empowered to do, what the later decision actually said, and whether the relevant refusal was expressly set aside.
The statutory setting also matters. The Court's reasoning relies on the interaction between ss 48A, 48B and 417, and on the text and history of those provisions [20]-[32]. The judgment should not be treated as deciding the interpretation of other statutory bars with different wording or purpose.
The provided judgment contains no account of decisions issued after FEL17 and therefore does not establish how later courts have treated it. No later application, limitation or reconsideration of the High Court's holding can be responsibly stated from this source alone.
The authorities the High Court itself discussed were earlier decisions. It applied the reasoning from Brian Lawlor and Plaintiff M174/2016 to the meaning of a decision made in fact [14]-[16]. It distinguished Al Tekriti on the basis that the Tribunal there had set aside the refusal, unlike the s 417 substitution in FEL17 [17]-[18]. These are the precedent relationships identified by the judgment, not evidence of subsequent treatment of FEL17.
For legal research, the judgment provides the relevant anchor points for any later-treatment search: its construction of the refusal language in s 48A [14], the distinction between substitution and setting aside under s 417 [21]-[30], and its account of s 48B's function [31]-[32]. Whether later courts have confined, applied or developed those propositions is not determinable from the judgment supplied here.
The Court decided the effect of a particular s 417 substitution that granted a temporary visitor visa and did not set aside the delegate's refusal [8], [30]. The judgment does not comprehensively decide what wording or statutory authority would be sufficient to set aside an earlier refusal in a different process. That question would turn on the text and legal effect of the relevant later decision.
The Court also did not decide every question about the operation of s 48B. It described the provision's public-interest function and parliamentary statement requirement, but the appeal concerned whether the s 417 decision had removed the s 48A bar [31]-[33]. Questions about the exercise or reviewability of the s 48B power were not the issue determined.
Nor does the judgment determine how the construction would apply to a differently worded statutory bar, a different visa class, or a statutory scheme with a different history. Its reasoning relies specifically on the language, context, history and purpose of ss 48A and 417 [20]-[32]. The boundary between a decision that merely substitutes a different outcome and one that expressly or legally sets aside a prior refusal remains important to identifying whether the precedent applies.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, STEWARD, GLEESON AND JAGOT JJ
FEL17 APPELLANT
AND
MINISTER FOR IMMIGRATION AND RESPONDENT
MULTICULTURAL AFFAIRS
FEL17 v Minister for Immigration and Multicultural Affairs
[2025] HCA 13
Date of Hearing: 6 December 2024
Date of Judgment: 9 April 2025
S107/2024
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation
D H Godwin with B M Flaherty for the appellant (instructed by Herbert Smith Freehills)
P M Knowles SC with K N Hooper for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
FEL17 v Minister for Immigration and Multicultural Affairs
Immigration – Protection visas – Invalid application – Where appellant applied for protection visa and was refused by delegate of Minister – Where Administrative Appeals Tribunal affirmed delegate's decision – Where Assistant Minister exercised power under s 417(1) of Migration Act 1958 (Cth) to substitute more "favourable" decision and granted appellant three-month visitor visa with no further stay condition – Where appellant made second application for protection visa – Where delegate found second application invalid under s 48A – Whether majority of Full Court of Federal Court of Australia erred in finding second application invalid and barred by s 48A – Whether act of refusal in s 48A is reference to historical fact of refusal, or reference to act of refusal which remains legally valid – Whether exercise of substitution power under s 417(1) had effect of setting aside original refusal decision.
Words and phrases – "barred", "continuing legal effect", "continuing legal operation", "decision", "extinguished", "fast track reviewable decision", "finally determined", "grant", "historical fact", "legal effect", "migration zone", "more favourable", "non-citizen", "power to set aside", "power to substitute", "protection visa", "public interest", "refuse", "reviewable decision", "set aside", "substitute", "vary", "Visitor (Subclass 600) visa".
Migration Act 1958 (Cth), ss 5, 48, 48A, 48B, 64U, 65, 119, 121, 137, 166BC, 166BE, 351, 411, 415, 417, 501A, 501J.
Migration Legislation Amendment Act 1989 (Cth), s 26.
Migration Reform Act 1992 (Cth), ss 23, 32.
Migration Legislation Amendment Act 1994 (Cth), s 83.
Migration Legislation Amendment Act (No 6) 1995 (Cth).
GAGELER CJ, GORDON, STEWARD, GLEESON AND JAGOT JJ. The appellant was refused a protection visa pursuant to s 65 of the Migration Act 1958 (Cth) ("the Act") by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Delegate's Decision"). The Delegate's Decision was subsequently affirmed by the Administrative Appeals Tribunal ("the Tribunal") pursuant to s 415(2)(a) of the Act. The Assistant Minister for Immigration and Border Protection then decided to "substitute" the decision of the Tribunal with a more favourable decision made under s 417(1) of the Act – namely, to grant the appellant a Visitor (Subclass 600) visa for three months with a no further stay condition. Subsequently, the appellant made a further application for a protection visa, which was held to be invalid by a delegate of the Minister on the grounds that it was barred by s 48A of the Act.
The issue for determination is whether, when the appellant made his further application for a protection visa, he was a non‑citizen in Australia who had previously made "an application for a protection visa, where the grant of the visa has been refused" for the purposes of s 48A. If he was, then he was then barred from making his further protection visa application.
Pursuant to s 48A(1) of the Act, a non-citizen may not make a further application for a protection visa while remaining in Australia if the non-citizen has previously made an application for a protection visa while in the migration zone (relevantly Australia) and the grant of that visa "has been refused (whether or not the application has been finally determined)". Pursuant to s 5(9) of the Act as it stood in 2017, an application was relevantly "finally determined" when a decision had been made in respect of the application which was not, or was no longer, subject to any form of review by the Tribunal.
Section 48A(1) is expressed to be subject to s 48B. Section 48B confers a personal non-compellable power on the Minister to determine that s 48A does not apply to prevent a further application for a protection visa made by a non‑citizen if the Minister thinks that it is in the public interest to do so. If the Minister exercises this power, the Minister must table a statement in Parliament setting out that determination and the reasons for it, including the reasons for thinking that it is in the public interest. In such a case, the non-citizen has seven working days within which to make a further protection visa application.
Both ss 48A and 48B were inserted into the Act at the same time by the Migration Legislation Amendment Act (No 6) 1995 (Cth). The Explanatory Memorandum which accompanied an earlier version of the Bill which became that Act1 explained the purpose of these provisions in the following terms:2
"The Act is also being amended to stop the use of repeat applications for protection visas by non-citizens to delay their removal and to circumvent the immigration requirements of Australia. This amendment will contribute to increasing the efficiency of Australia's refugee determination system and to minimising ill-founded protection visa applications. Where the Minister thinks it is in the public interest to do so, he or she will have the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application. The Minister must table a statement in Parliament setting out his or her reasons for thinking this decision is in the public interest."
"The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
...
(d) set the decision aside and substitute a new decision".
"If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision."
The facts are not in dispute. The appellant is a Coptic Christian from Egypt. He made his first application for a protection visa in 2013. As noted, the Delegate's Decision in 2014 refused that application pursuant to s 65 of the Act. That refusal was affirmed by the Tribunal in 2015. In September 2017, the Assistant Minister personally exercised the Minister's power under s 417(1) of the Act to substitute the Tribunal's decision with a more favourable decision. The Assistant Minister decided under s 417 that it was in the "public interest" to issue the appellant a Visitor (Subclass 600) visa, which was valid from 12 September 2017 to 12 December 2017.
In October 2017, the appellant made a second application for a protection visa. That application was held to be invalid by a delegate of the Minister on the grounds that it was barred by s 48A of the Act. In November 2017, the appellant sought judicial review of that decision in the Federal Circuit Court of Australia (as it was then named). In 2023, the appellant's application was dismissed. An appeal to the Full Court of the Federal Court of Australia was dismissed in 2023. Special leave to appeal from that judgment was granted to the appellant in 2024.
"The Assistant Minister did not set the Delegate's Decision aside. The exercise of the power in the Assistant Minister's Decision did nothing to alter the fact that the appellant had previously been refused a protection visa. Rather, the Assistant Minister granted the appellant a different visa under s 417 of the Migration Act, a provision that expressly does not depend upon a person satisfying any prescribed criteria for the grant of a visa."
On appeal to this Court, the appellant pursued a single ground of appeal; namely, that the Full Federal Court erred in finding that the appellant's second application for a protection visa was invalid as it was barred by s 48A of the Act. The appellant contended that the reasoning and conclusion of Snaden J was correct.
The issue for determination gives rise to two issues of statutory construction. The first concerns the nature of the act of refusal in s 48A. Is that a reference to the historical fact that a protection visa application had been refused? Or is it a reference to an act of refusal which remains legally valid, as Snaden J reasoned? The second concerns the effect of the Assistant Minister's act of substitution in s 417(1). Did that have the effect of setting aside both the Tribunal's decision and the original refusal decision?
The better view is that the reference to the act of refusal in s 48A is simply to an historical fact, that has not been set aside in fact, regardless of its legal effect. In this way, the act of refusal is like the decision subject to review in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd;18 the reference in s 48A to the refusal of a protection visa is merely to "a decision in fact made, regardless of whether or not it is a legally effective decision".19 Such a decision validly confers on the Tribunal a power of review.
In that respect, the Delegate's Decision in this case is also like the "fast track reviewable decision" in Plaintiff M174/2016 which was capable of being reviewed by the Immigration Assessment Authority, albeit in limited ways, and even though the decision to be reviewed might be infected with jurisdictional error. As Gageler, Keane and Nettle JJ said in Plaintiff M174/2016:20
"The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority's review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective."
Once affirmed by the Immigration Assessment Authority, a "fast track reviewable decision" vitiated by error was not thereby cured.21 Instead, it was the decision to affirm by the Authority which had operative effect. That did not, however, deny the conclusion that there was nonetheless a "fast track reviewable decision" that had been made in fact.
The appellant relied upon the decision of Mansfield J in Al Tekriti v Minister for Immigration and Multicultural and Indigenous Affairs22 in support of his contention that s 48A must be construed as referring to a refusal decision with continuing legal effect. That case concerned another provision of the Act inserted in order to prevent repeat visa applications, namely s 48. Like s 48A(1), s 48(1) referred to a non-citizen not being able to apply for certain classes of visa if they, amongst other things, had been "refused a visa". In Al Tekriti, an application for a protection visa had been refused. Following a review of that decision, the Tribunal set aside that decision and substituted it with a decision that there had been no grounds to refuse to grant the protection visa that had been sought. Subsequently, the applicant in that case applied for another type of visa. Mansfield J decided that s 48 did not apply to preclude that application because of the Tribunal's decision.23
Al Tekriti is distinguishable from the circumstances here. That is because, for the reasons given below, here the Delegate's Decision was not set aside by the exercise of the discretion under s 417(1).
The appellant contended, in conformity with the reasons of Snaden J, that the effect of the Assistant Minister's decision to "substitute" a more favourable decision was that the Delegate's Decision ceased to have any legal effect thereafter, including when the appellant made his application for a protection visa in 2017. Critical to that submission was the proposition that the Tribunal's decision had replaced the Delegate's Decision as the only legally operative refusal decision, and that the Assistant Minister, by substituting his own more favourable decision for the Tribunal's decision, had thereby extinguished the Tribunal's affirmation of the Delegate's Decision. This left the Delegate's Decision as being wholly ineffective.
However, when regard is had to the statutory language, context, history and purpose of s 417, the Delegate's Decision had not been set aside for the purposes of s 48A.
As to statutory language, s 417 does not on its face confer a power to set aside a decision of the Tribunal (or indeed any underlying decision of a Minister or delegate); the power is confined to one of substitution only. The concept of "substitution" in s 417 is to be understood in the context that s 417 also provides that the Minister's power to substitute a more favourable decision exists whether or not the Tribunal had power to make that new decision. This indicates that the concept of "substitution" in s 417 is not the Minister's decision replacing the Tribunal's decision but, rather, the Minister's decision operating in accordance with its terms irrespective of the Tribunal's decision. The Tribunal's decision merely becomes immaterial for the duration of the operation of the Minister's decision.
As to statutory context, this shows that the power of substitution in s 417 cannot be read as including a power to set aside the Tribunal's decision. That is because when Parliament has wanted to confer a power to set aside a decision it has done so expressly. Section 415(2)(d) of the Act, set out above, exemplifies this point. Other examples of Parliament expressly conferring a power of setting aside a decision and of substituting it with another may be found in ss 501A and 501J(1) of the Act.
As to statutory history, the language of s 417 should be contrasted with the language of its early predecessor. That predecessor was introduced into the Act in 1989 and was in these terms:24
"Where the Minister thinks that it is in the public interest to do so, the Minister may:
(a) set aside a decision of the Tribunal; and
(b) substitute a decision that is more favourable to the applicant."
This provision conferred on the Minister a power to both "set aside" and "substitute" a decision. Juxtaposed in this way, again Parliament plainly intended that the phrase and the word respectively were to mean different things, or at least, to have different fields of operation.
In 1993, the foregoing provision was repealed by the Migration Reform Act 1992 (Cth) ("the Migration Reform Act") and was replaced by a new s 121(1). That provision was in these terms:25
"If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 119 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision."
"If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 166BC another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision."
Section 121 applied to a category of decisions that was broadly equivalent to what was, under the Act in 2017, a "Part 5‑reviewable decision" by the Tribunal, and s 166BE applied to a category of decisions that was broadly equivalent to what was a "Part 7-reviewable decision" by the Tribunal.
The language of ss 121 and 166BE is relevantly the same as that found in s 417(1).27 In each case, as is the case with s 417, Parliament confined the Minister's personal power to that of substitution. In addition, with the advent of ss 121 and 166BE, the nature of the power changed. The Minister's more favourable decision, as is the case with s 417, was not confined by "whether ... the Tribunal had the power to make" it. Moreover, by the new s 166BE(2) (and s 121(2)), in exercising the power of substitution the Minister was "not bound by Subdivision AA or AC of Division 2 of Part 2 or by the regulations, but [was] bound by all other provisions of [the] Act".28 In 2017, Subdiv AA included ss 48A and 48B. There was therefore no suggestion in this case, for example, that the Minister could not have exercised the power in s 417 to issue the appellant with a protection visa. Subdivision AC included the power in s 65 to grant a visa. The Explanatory Memorandum which accompanied the Bill that became the Migration Reform Act records the consequence of these changes in the following terms:29
"This means that the Minister can grant a visa that the person did not apply for, and may grant the visa even if the applicant did not satisfy the prescribed criteria. However, the Minister cannot grant the visa if, to do so, would breach another provision of the Act."
Given the foregoing, it makes little sense for the Minister to continue to have a power to set aside the Tribunal's decision. Section 417 in this respect confers on the Minister considerable flexibility in deciding what more favourable decision might be made. In that respect, the exercise of power by the Minister no longer necessarily involves revisiting the decision made by the Tribunal.
It follows that the Minister's decision to substitute a more favourable decision in 2017 did not set aside the Tribunal's decision to affirm the Delegate's Decision (to refuse the appellant's first protection visa application). It also follows that neither the Tribunal's decision, nor that of the delegate, has been set aside. As a result, the Delegate's Decision in 2014 persists for the purposes of s 48A.
Finally, as to statutory purpose, the presence of s 48B is critical to a correct understanding of the legislative regime. That is the provision which specifically permits the bar imposed by s 48A to be disapplied by a personal non-compellable decision of the Minister when it is in the "public interest" to do so. The Explanatory Memorandum to an earlier version of the Bill which became the Act which introduced s 48B described its function in these terms:30
"Proposed new section 48B provides the Minister with the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application if the Minister thinks it is in the public interest to do so. In exercising this power, the Minister must table a statement in Parliament setting out the determination and the reasons for it, referring particularly to the Minister's reasons for thinking his or her actions are in the public interest."
Migration Legislation Amendment Bill (No 4) 1995 (Cth). ↩
Australia, House of Representatives, Migration Legislation Amendment Bill (No 4) 1995 (Cth), Explanatory Memorandum at 3 [12]. The No 4 Bill lapsed and was replaced by the No 6 Bill. No Explanatory Memorandum was specifically produced for the No 6 Bill. ↩
The Tribunal also had the power to review other visa decisions, known as "Part 5-reviewable" decisions. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 4. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 372 [64]. ↩
(2018) 264 CLR 217. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 369 [47], 370 [52], citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 242 [70]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 371 [54]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 371 [54]. ↩
FEL17
Minister for Immigration and Multicultural Affairs [2025] HCA 13
(2023) 299 FCR 356
(2018) 264 CLR 217
(2008) 167 FCR 578
(1979) 24 ALR 307
(2004) 138 FCR 60
Appeal dismissed with costs.
(2008) 167 FCR 578. ↩
(2018) 264 CLR 217 at 233 [40]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 372 [64]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 358 [3]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 358 [3]-[4]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 358 [4], citing Plaintiff M174/2016 (2018) 264 CLR 217 at 247 [92]. ↩
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 356 at 359 [5]. ↩
(1979) 24 ALR 307. ↩
(1979) 24 ALR 307 at 314. ↩
(2018) 264 CLR 217 at 236-237 [52]. ↩
Plaintiff M174/2016 (2018) 264 CLR 217 at 241-242 [70]. ↩
(2004) 138 FCR 60. ↩
(2004) 138 FCR 60 at 68 [36]. ↩
Section 64U(1) of the Act, introduced by s 26 of the Migration Legislation Amendment Act 1989 (Cth) and renumbered as s 137 by the same amending Act. ↩
Introduced by s 23 of the Migration Reform Act. ↩
Introduced by s 32 of the Migration Reform Act. ↩
Section 166BE was later renumbered as s 417 by s 83 of the Migration Legislation Amendment Act 1994 (Cth). Section 121 was later renumbered to be s 351 by the same 1994 Act. ↩
By 2017, the reference to Div 2 of Pt 2 had become a reference to Div 3 of Pt 2. ↩
Australia, House of Representatives, Migration Reform Bill 1992 (Cth) and Migration (Delayed Visa Applications) Tax Bill 1992 (Cth), Explanatory Memorandum at 64 [304]. ↩
Australia, House of Representatives, Migration Legislation Amendment Bill (No 4) 1995 (Cth), Explanatory Memorandum at 7 [14]. See fn 2 above. ↩