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Davis v Minister for Immigration; DCM20 v Department of Home Affairs [High Court 12 April 2023].

Background

Mr Davis and DCM20 had resided in Australia for between 25 and 30 years respectively and were fully integrated into the Australian community. Edelman J noted that ‘the lives of other Australian citizens depended on them’. Neither was ever legally entitled to remain permanently in Australia.

Both applied unsuccessfully for visas and sought Tribunal review of those decisions. The decisions were affirmed. Both then requested the Minister under S351(1) of the Migration Act 1958 to substitute a more favourable decision for those of the Tribunal. The requests to the Minister to exercise a personal override power being their last attempt to avoid deportation.

The departments assessed the requests as not demonstrating unique or exceptional circumstances and finalised them without referral to the Minister. Mr Davis and DCM20 then separately applied to the Federal Court for judicial review. They failed at first instance and on appeal. Special leave to appeal to the High Court was granted.

Issue

S351 relevantly provides:

(1) If the Minister thinks it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal… another decision, being a decision that is more favourable…

…

(3) The power under subsection (1) may only be exercised by the Minister personally.

Ministerial Instructions (Instructions) were previously issued in purported exercise of executive power for the managing of requests to substitute a more favourable decision. The Instructions required departmental officers to only refer requests to the Minister where they were satisfied that “unique or exceptional circumstances” existed. The issue was whether the Instructions purported to enable departmental officers to make decisions required to be made personally by the Minister, therefore exceeding the limits of executive power.

The Majority

Kiefel CJ, Gageler and Gleeson JJ with Gordon, Jagot and Edelman JJ agreeing but writing separate judgments, held that S351(1) was a ‘conferral power’, requiring the Minister to personally make 2 decisions; a procedural decision whether or not to consider exercising the power and, if ‘yes’, a substantive decision as to how to exercise the power. The power was neither delegable by the Minister nor was it exercisable on the Minister’s behalf by any officer of the department.

By conferring statutory power to substitute or not a decision in the public interest on a Minister personally, S351 limited the executive power of the Commonwealth by excluding the ability of another executive officer to decide that it was or was not in the public interest for the statutory power to be exercised. The Instructions impermissibly required departmental officers to decide matters within the zone of exclusive Ministerial personal decision‑making power.

The Dissent

Steward J dissenting held that the Instructions were merely designed to facilitate the provision of departmental advice to the Minister and operated as a ‘screening mechanism’.

The application of the Instructions was not ‘legally unreasonable’ despite his Honour finding in the Davis matter the reasons for not referring his application to the Minister ‘might be fairly characterised as ungenerous and somewhat unsatisfactory’.

Observations

Doubtless Ministers receive numerous requests for intervention. They must be administered in some way. Ministerial Instructions being one way, but if the administration of this aspect of a statutory scheme is expressed to be something the Minister must do ‘personally’ it cannot be delegated to department officials.