Hundreds of visa decisions have been thrown into question by a high court ruling that the government cannot “circumvent” the law by setting policies limiting which cases will be considered by the minister.
On Wednesday, a majority of the high court ruled in favour of two appellants who were unable to have their visa refusals overturned due to a home affairs department policy stating the immigration minister would not consider personal intervention unless the department believed that there were “unique or exceptional circumstances”.
All justices except Simon Steward found that departmental decisions in line with the 2016 policy were not consistent with the Migration Act, which gives the power to intervene to the minister “personally”, meaning decisions cannot be delegated to the department.
The case was brought by Martin Davis, a UK citizen who arrived in Australia in 1997 and applied for a partner visa but lost the right to stay after 2014 when his working visa was cancelled because he ceased employment with his sponsoring employer.
In May 2019 an assistant director in the department advised Davis his case lacked “unique or exceptional circumstances” so his application for intervention was finalised without being referred to the minister.
The second appellant, known as DCM20, is a citizen of Fiji who has lived in Australia since the early 1990s but had been refused a protection visa and determination of status visa.
Justice James Edelman noted the appellants had both resided in Australia for more than 25 years, and “the lives of other Australian citizens depend upon them both” although they have “never been legally entitled to remain permanently in Australia”.
He noted the appellants were just “two of the hundreds of cases” in which a delegate of the minister refused a visa, an administrative tribunal then upheld the decision, and the applicants finally went to the minister for help.
Edelman noted that the Coalition government made “significant changes” in 2016 to ministerial instructions, adding the requirement for exceptional circumstances where the earlier 2009 instruction specified that “initial requests” were always to be brought to the minister’s attention.
This change made the department the arbiter of whether applications fell into categories such as “compassionate circumstances” or “exceptional benefit”, he said.
In a joint judgment, justices Susan Kiefel, Stephen Gageler and Jacqueline Gleeson said it would “not be open” to the minister to decide whether to intervene “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”.
To do so would “abdicate to that other person the core aspect of the substantive decision-making power” in the Migration Act which “can be exercised by no one but the minister”, they said.
“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.”
They warned the minister “cannot circumvent that statutory limitation through a purported exercise of executive power which gives conclusive effect to an anterior consideration of the public interest undertaken by a departmental officer”.
They said this “statutory limitation on executive power” had been “transgressed by the 2016 ministerial instructions and by the two impugned departmental decisions”.
Justice Michelle Gordon agreed, but noted that the minister could still “make a decision to consider or not to consider” cases with “procedural decisions” to intervene in cases with certain characteristics.
“But the characteristics identified by the minister must be objective and cannot be whether a departmental official or any other person might think it to be or not to be in the public interest to substitute a more favourable decision for that of the tribunal.”
Justice Jayne Jagot said that departmental officers “acted impermissibly” by finalising requests by following the 2016 instructions, which required them to determine public interest “without referral to the minister”.
Steward dissented, noting the 2016 instruction did not have the force of law and the minister was under “no obligation or duty to consider whether or not to exercise” their power.
Guardian Australia contacted the immigration minister, Andrew Giles, and the Department of Home Affairs for comment.
