On Wednesday the High Court delivered judgment in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10.
Under s 351 of the Migration Act 1958, the Minister is granted a power of “ministerial intervention” – that is, a power to substitute a decision of the Administrative Appeals Tribunal (ie a decision denying an applicant a visa) with a decision which is more favourable to an applicant “whether or not” the Tribunal had power to make that decision.
It can be a “last resort” option for a person who has exhausted merits and judicial review in pursuit of a visa.
The key features of the power conferred by s 351 are:
1. The Minister must think exercising the power is in the public interest;
2. The power must be exercised by the Minister personally;
3. The Minister is under no duty to exercise the power;
4. The power involves both a substantive decision (ie whether the Minister will exercise the power on the basis that it is in the public interest to do so) and a preceding procedural decision (whether the Minister will consider making a substantive decision).
From time to time, the Minister has issued “guidelines” which provide instruction to department staff about which requests for ministerial intervention the Minister wishes to be made aware of so that the Minister can decide whether or not to consider the request (the procedural decision).
In 2016, guidelines were issued which relevantly instructed departmental staff that the Minister only wished to consider making the procedural decision in cases which were assessed by the Department as having “unique or exceptional circumstances”, and those that did not were to be finalised by the Department without being referred to the Minister.
In short, the plurality (Kiefel CJ, Gageler and Gleeson JJ) with Gordon and Jagot JJ relevantly agreeing found that the 2016 guidelines were unlawful, at least as far as they instructed departmental officers to form a view about “unique or exceptional circumstances”. Edelman J likewise found the guidelines unlawful but perhaps went a bit further in focusing on the “personal liberty” of the Minister to make decisions under s 351 as being infringed.
The plurality formed the view that “unique or exceptional circumstances” was an “approximation” for the public interest consideration in s 351 which was the “dispositive” decision that the Minister was empowered to make by s 351 and required to exercise personally (see [38]). Accordingly, the guidelines breached the statutory limitation that the Minister “personally” consider the public interest question.
Steward J dissented, finding that the application of the 2016 guidelines did not exercise a power amenable to judicial review. His Honour focused on the role of departmental officers in assisting the Minister in sorting through the large number of requests the Minister “no doubt receives”.
There is plenty more to consider in this judgment, both resolved and unresolved: the proper characterisation of the guidelines as being statutory vs non-statutory; the nature of the interest affected by a decision made under the guidelines; the availability of declaratory (and perhaps other) relief; etc.
In the meantime, there will be many individuals (perhaps hundreds as noted by Edelman J) who have sought ministerial intervention or who have matters pending in the Federal Court following refusal of such a request who will be affected by this judgment.
