High Court ruling on personal ministerial intervention in migration applications
Visa decisions affected by invalid refusals of ministerial intervention are hanging in the balance now that the High Court of Australia has rejected the premise that a government official other than the minister for immigration can make a decision based on exceptional or unique circumstances.
This week a majority of judges in the High Court case of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor ruled in favour of the two appellants in the appeal.
The first appellant Martin Davis, a UK citizen residing in Australia since 1997, and the second appellant only referred to as DCM20, a Fijian citizen residing in Australia since early 1990s, lodged an appeal as they had sought to have the Minister for Immigration personally intervene in their cases to grant them permanent visas.
Both had requested the immigration minister exercise their personal power under section 351 of the Migration Act 1958 to override decisions by the Administrative Appeals Tribunal and grant them permanent visas. They had argued that they had unique and exceptional circumstances that merited personal ministerial intervention.
The High Court ruled that the decisions made by the Department were unlawful because the power to intervene or not intervene must be exercised by the Minister personally and not his representative. In both cases it was a departmental officer who had made the decision not to refer their request for intervention to the Minister.
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.”
“It would not be open to the minister to decide not to consider making a substantive decision in a class of case defined by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the tribunal."
“For the minister to do so would be for the minister to abdicate to that other person the core aspect of the substantive decision-making power.”
“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.”
This decision could lead to a review of the decisions by the Ministerial Intervention Unit not to refer made since 2016. Hundreds of requests are made every year for ministerial intervention under these current guidelines with the Minister having personally intervening in just over 1000 cases to grant visas, it is unknown how many cases were not referred. Many have suggested that the number may run into the ‘tens of thousands’ of cases.
It would be upon the current Minister Andrew Giles to personally deal with potential review of previous requests which were not referred and those that are to continue coming.
“The decision potentially impacts many applicants who had their request for personal consideration by the Minister declined by the Ministerial Intervention Unit to seek further review of their matters, which would significantly increase the workload of the Minister” Dessie Hristova, Principal Solicitor at Assent Migration Lawyers said.