The judgement in the recent case of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 (Davis) brings in to question the legality of Ministerial Intervention refusals dating back to 2016.
The 12 April 2023 decision of the High Court of Australia in Davis has the potential to impact thousands of visa applicants with rejected Ministerial Intervention cases, stretching all the way back to 2016.
Background to the Ministerial Intervention case: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
In March 2016, the then-Immigration Minister, Peter Dutton, issued a new set of guidelines to Department of Home Affairs officers, clarifying, for the purposes of the Ministerial intervention powers under sections 351, 417 and 501J of the Migration Act, the circumstances in which he (or his successors) might intervene in a visa applicant’s case. The guidelines also clarified how a visa applicant could request Ministerial intervention, when a case should be referred to the Minister, and confirmed when a case was not to be referred to the Minister (if it did not meet the guidelines).
In summary, the guidelines directed Departmental officers to assess Ministerial intervention requests under sections 351, 417 and 501J of the Migration Act as the Minister’s delegate and to only refer cases which had ‘unique or exceptional circumstances’ to the Minister for his consideration. The guidelines stated that Departmental officers, rather than the Minister should finalise those cases without ‘unique or exceptional circumstances’. The guidelines have remained in effect ever since meaning decisions on thousands of visa applicants’ Ministerial intervention requests have been finalised by Departmental officers on the basis of the guidelines.
The subject of the recent judgement, Mr Davis, originally applied for a partner visa which was refused by a delegate of the Minister. Mr Davis then sought a review of the refusal in the Administrative Appeals Tribunal which affirmed the refusal in 2019. Following this, in February 2019, Mr Davis lodged a Ministerial intervention request for a more favourable decision. His request was not referred to the Minister as it was assessed by Departmental officers as not having ‘unique or exceptional circumstances’.
Mr Davis subsequently brought the matter before the Federal Court of Australia where it was heard jointly with another case in which that applicant had also had their Ministerial intervention request under section 351 of the Migration Act finalised by Departmental officers as not having ‘unique or exceptional circumstances’.
Ultimately in the Davis case, the High Court found that officers of the Department of Home Affairs are not legally allowed to determine whether an applicant’s circumstances are ‘unique or exceptional’ as grounds for a Ministerial Intervention and that this needs to be decided by the Immigration Minister.
What does the Davis decision on Ministerial intervention mean for you?
Davis is a significant case with the potential to impact thousands of visa applicants with Ministerial intervention requests and finalised by officers of the Department of Home Affairs without being referred to the Immigration Minister. Until the Migration Act and the guidelines are amended or updated, decisions by Departmental officers not to refer cases to the Immigration Minister are considered unlawful in light of the judgement in Davis.
If you have lodged a Ministerial intervention request in relation to a visa application since March 2016 that was unsuccessful and was not referred to the Immigration Minister for consideration, Craddock Murray Neumann’s Immigration lawyers may be able to assist. Our team can explore options to have your request reopened by the Department of Home Affairs and seek for your case to be considered personally by the Immigration Minister as required under the Migration Act.
For a confidential discussion about your visa application please give us a call on 1300 123 529 or email us at visas@craddock.com.au for advice on next steps.
Please note that this page states the law as at May 2023. Australian immigration law is complex and changes frequently, and the law in relation to Ministerial intervention requests may have been changed since we prepared this page.
Read more: https://craddock.com.au/legal-services/immigration-law/complex-immigration-issues/
Author: Kane Elder