High Court of Australia – Visa ruling & Ministerial Intervention Cases
The High Court decision of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor.
has supposedly, brought thousands of visa decisions into question. The High Court ruling that found the government is responsible for, and cannot defer the making of, intervention decisions for denied visa applicants the request of the minister for immigration to review their decisions.
On Wednesday, 12 April, a majority of the High Court of Australia ruled in favour of two appellants in the appeal of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor.
The case saw two appellants lodge an appeal due to being unable to have their visa refusals overturned, which they claimed was due to a Home Affairs department policy made in 2016, which stated that the immigration minister has a role of personally overriding a decision in “unique or exceptional circumstances”.
The override power allows the minister to substitute a more favourable decision, even if the administrative tribunal would not have had the power to make such a decision.
The minister is not required to consider whether to exercise the override power, and he did not do so in either of the two cases that were heard, as the department chose not to refer the requests to the minister for consideration.
The case was brought by UK citizen Martin Davis, who has lived in Australia since 1997, who lost the right to live in Australia after his working visa was cancelled due to ceasing employment with his sponsoring employer.
As reported by Lawyers Weekly “In 2019, Mr Davis was informed by the immigration department that his case lacked “unique or exceptional circumstances”, and it was not referred to the minister.
The second appellant, known as DCM20, is a Fijian citizen who has lived in Australia since the early 1990s and was refused a protection visa and determination of status visa.
One of the judges presiding over the case, Justice James Edelman, noted that both appellants had lived in Australia for over 25 years and both are depended upon by other Australian citizens, although they have “never been legally entitled to remain permanently in Australia”.
The case concerned the appropriate application of the Migration Act 1958 (Cth), and all of the justices presiding over the case except one found that the departmental decisions made on the cases were not aligned with the 2016 policy, which states that decisions cannot be delegated to the department.
Edelman J supposed: “The appeals … are two of the hundreds of cases where … a delegate of the minister administering that act had refused an application for a visa, that decision was affirmed by an administrative tribunal, and the appellant requested that the minister exercise a personal override power.”
“These appeals concern the proper processes for the consideration and exercise of that personal override power,” Edelman J stated.
In a joint judgment, Justices Susan Kiefel, Stephen Gageler and Jacqueline Gleeson stated: “The Parliament has seen fit to entrust to the minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the tribunal.”
So what does that mean?
Section 351(1) of the Migration Act 1958 (Cth) gives the Minister the personal power to substitute an AAT decision if it is in the ‘public interest’ to do so. This is informally referred to as a Ministerial Intervention (MI) power.
Hundreds (or even thousands) of non-citizens may be affected by this judgment, where the plurality of the High Court held that:
– The 2016 Ministerial Instructions addressing s 351(1) instructed the Department to assess whether MI requests involve ‘unique or exceptional’ circumstances;
– The determination of whether a case is ‘unique or exceptional’ is an approximation of the ‘public interest’ test in s 351(1);
– The Minister therefore purported to assign the evaluation of the public interest to departmental officers;
– That evaluation had to be carried out by the Minister personally;
– That meant that the Department’s refusal to refer two MI requests to the Minister was invalid and those requests are yet lawfully to be finalised;
– The structure of s 351 is relevantly indistinguishable from the structure of a number of other provisions which confer MI powers, such as ss 46A, 48B, 195A and 417.
So If you or anyone you know is currently applying to the Minister or has had a ministerial intervention recently rejected urgently contact us and speak about your possible options.