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Source: The Conversation (Au and NZ) – By Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

This week, the High Court of Australia handed down a significant ruling in an immigration case that could affect hundreds of similar visa cases handled by the Department of Home Affairs.

Specifically, the ruling may call into question the legality of decisions the department has made since 2016 when it has rejected appeals for ministerial intervention in specific visa cases.

What was the case about

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.

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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.

The Conversation

Mary Anne Kenny has previous received funding from the Australian Research Council and sitting fees from the Department of Home Affairs

ref. Explainer: High Court ruling in immigration case could impact hundreds of visa decisions since 2016 –