“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.”
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, as noted by Lawyers weekly, 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.”
What was the case about
As noted by Sergio Zanotti Stagliorio 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.
As noted by professor Mary Anne Kenny Associate Professor, School of Law, Murdoch University in the Conversation. The High Court decision involved two individuals who sought to have the minister for immigration personally intervene in their cases and grant them permanent visas to remain in Australia.
Their requests were rejected by the Department of Home Affairs on the basis that their cases did not meet the criteria for a referral to the minister.
The first appellant, Martin Davis, is a citizen of the United Kingdom who had lived in Australia for around 16 years on temporary visas. His application for a permanent partner visa was refused by Home Affairs and in a subsequent review by the Administrative Appeals Tribunal.
The second appellant, who was referred to as DCM20 in the case, is a citizen of Fiji who had lived in Australia on a series of temporary visas for almost 20 years. She applied for a permanent visa, which was refused. Her application for review to the Administrative Appeals Tribunal was also unsuccessful.
Both Davis and DCM20 requested the immigration minister exercise their personal power under section 351 of the Migration Act 1958 to override the decisions by the Administrative Appeals Tribunal and grant them permanent visas.
According to this section of the Migration Act, the minister may grant a visa if they think it is “in the public interest”, but they are not required by law to consider every request. This power is exercised by the minister personally.
The minister receives many requests to personally intervene in such visa cases. Last month, for instance, Immigration Minister Andrew Giles intervened when a Perth family had their visas refused on the basis their son did not meet certain health criteria, as he was born with Down syndrome. The minister granted them permanent residency.
Guidelines will now need to be reviewed
In 2016, the minister published guidelines for department officials to use when reviewing such requests for ministerial intervention.
The guidelines say only to refer cases to the minister in cases where there are “unique or exceptional circumstances”. This includes compassionate circumstances.
Davis and DCM20 argued there were unique and exceptional circumstances that warranted intervention in their cases, pointing to their long periods of residence in Australia and the fact Australian relatives were dependent upon their care.
In both cases, a departmental officer decided their circumstances were not unique or exceptional, as required by the guidelines, and refused to refer their cases to the minister.
Howver, the High Court ruled that the decisions made by the department were unlawful because the power to intervene or not intervene in such cases must be exercised by the minister personally.
In these two cases, a departmental officer, in effect, made the decision not to intervene, not the minister.
What are the potential implications of the ruling?
The immigration minister will not only now have to revisit the current guidelines, but also all decisions made using those guidelines since 2016.
A document released under the Freedom of Information Act shows that hundreds of requests for ministerial intervention were made every year under these guidelines for the period from 2017–2020. The minister personally intervened and granted around 1,000 visa cases over that time.
However, the document does not show how many cases were never referred to the minister for consideration. There could potentially be hundreds of people who were affected.
The minister will also likely have to review other guidelines under the Migration Act, where he has a personal intervention power.
For instance, the minister has personal discretion under section 48B of the Act. This allows asylum seekers who have been refused a protection visa to apply for a subsequent visa if the minister considers it “in the public interest” to do so.
But, as mentioned previously, the current ministerial guidelines require the department to consider whether “exceptional circumstances” exist for a case to be referred to the minister.
Statistics show the minister has only intervened in less than 10% of these requests by asylum seekers in the last 10 years.
Asylum seekers who arrive by boat are also barred from applying for any visa unless the minister personally allows them to. The High Court ruling could affect decisions made by the department not to refer these cases to the minister, as well.
The minister still has vast powers to deny cases
The court was clear that the minister maintains broad discretion as to how and when to exercise their power to intervene in a case. The minister may consider all of these cases again and come to the same conclusion as the department.
The minister’s power is “non-compellable”, meaning they do not have to consider every case that is referred to them. And if they do consider a case, they have very broad discretion as to how to exercise their power in the public interest.
These have been described as “god-like powers”. Once a minister exercises their powers properly, the courts will rarely intervene.
Decisions made by the minister using these powers involve serious decisions and affect vulnerable people. The decision of the High Court is at least an opportunity for the government to review the ministerial intervention process to have a clearer, fairer and more transparent system.
