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  • In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, the High Court considered whether there had been an unlawful exercise of the Minister’s personal liberty by departmental officials.
  • The Migration Act 1958 (Cth) grants the Minister powers to grant visas and substitute a decision of the Administrative Appeals Tribunal if it is in the ‘public interest to do so’.
  • The statute does not permit departmental officers to make a decision entrusted exclusively to the Minister.
  • The High Court decision has potentially far-reaching implications for the continuing validity of various ministerial intervention regimes made in purported furtherance of numerous statutory powers in the Migration Act.

The High Court of Australia (‘HCA’) published its decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 (‘Davis) on 12 April 2023. It is one of the most important Australian migration law decisions ever published in relation to the ministerial intervention regime under the Migration Act 1958 (Cth) (the ‘Act’).

This article does two things. First, it provides a summary of the Davis decision. Second, and perhaps more importantly, the article discusses the broader implications of the decision in the context of ministerial intervention applications under the Act.

Davis explained

Each appellant, upon a delegate of the Minister refusing their visa application and the Administrative Appeals Tribunal (the ‘Tribunal’) affirming that refusal, requested that the Minister exercise the power under s 351(1) of the Act to substitute a more favourable decision for the Tribunal’s adverse decision ‘[i]f the Minister thinks that it is in the public interest to do so’.

Pursuant to s 351(3), that power may only be exercised by the Minister personally. The Ministerial Instructions (the ‘MI’) instructed departmental officers not to refer such requests to the Minister for consideration unless satisfied that the case had ‘unique or exceptional circumstances’ (at [38], [41]).

The officers were not satisfied there were ‘unique or exceptional circumstances’ and, in accordance with the MI, the appellants’ requests were finalised by the Department of Home Affairs (the ‘Department’) without referral to the Minister. At first instance and on appeal before the Full Court of the Federal Court of Australia, the appellants unsuccessfully argued that the departmental officers’ decisions were legally unreasonable. The Full Court refused leave to raise a new ground which alleged the MI were unlawful.

The HCA granted the appellants special leave to appeal on both the unlawfulness and unreasonableness grounds of appeal.

First, the HCA determined that the power conferred personally on the Minister by s 351(1) comprises two distinct decisions, each involving a non-delegable exercise of the statutory power:

(1) a procedural decision to consider or not to consider whether to make a substantive decision; and

(2) a substantive decision to substitute or not to substitute, in the public interest, a more favourable decision.

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