On Wednesday, 12 April 2023, the High Court of Australia handed down a significant ruling in a case that concerns Ministerial Intervention powers. This ruling may affect hundreds of other similar cases in which the Department of Home Affairs decided not to refer requests for intervention to the Minister.
The judgment and summary can be found here: Davis v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v. Secretary of Department of Home Affairs & Anor.
What is Ministerial Intervention?
Ministerial Intervention is a process where the Minister for Immigration can personally intervene in your case and replace a decision of a tribunal with another decision if the Minister thinks it is in the public interest to do so. If successful, it usually means that the Minister will grant the person a visa.
What is This Recent Ruling About?
The High Court decision involved two appellants who previously requested a Ministerial Intervention so that they can be granted permanent visas to remain in Australia (and have their decision by the Administrative Appeals Tribunal overruled).
Their requests were denied by the Department of Home Affairs because their cases did not meet the guidelines to be referred to the Minister. In other words, the cases were never referred to the Minister, and the Minister never uses personal power over these two appellants; the rejection was made by departmental officers instead.
The High Court in this case ruled that such decisions made by departmental officers were unlawful because the decision of whether or not to intervene must be exercised by the Minister personally.
In a joint judgment, Justices Susan Kiefel, Stephen Gageler and Jacqueline Gleeson 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. ”
”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.”
Justice Simon Steward dissented and stated that the 2016 policy was not law, therefore, the Minister has no obligation to consider whether or not to exercise the override power.
Potential Implications
This decision may impact hundreds of previous intervention requests made to the Minister’s office, that were rejected by departmental officers because they do not meet the Ministerial guidelines.
If you have made a Ministerial Intervention request before and were unsuccessful, contact our office to discuss your options.
