This week the Supreme Court of Australia delivered an important ruling pronunciation in an immigration case that could affect hundreds of similar visa cases being handled by the Home Office.
In particular, the ruling may call into question the legality of decisions the department has made since 2016 when it rejected requests for ministerial intervention in specific visa matters.
What was it about
The Supreme Court decision involved two individuals attempting to get the immigration minister to personally intervene in their affairs and grant them permanent visas to remain in Australia.
Their requests were rejected by the Ministry of the Interior because their case did not meet the criteria for referral to the minister.
The first applicant, Martin Davis, is a UK national who has lived in Australia for approximately 16 years on temporary visas. His application for a permanent partner visa was rejected by the Home Office and in a later review by the Administrative Appeals Tribunal.
The second appellant, named in the DCM20 case, is a citizen of Fiji who has lived in Australia for nearly 20 years on a series of temporary visas. She applied for a permanent visa, which was denied. Her request for review at the Administrative Appeals Tribunal was also rejected.
Both Davis and DCM20 requested that the Secretary of Immigration exercise their personal authority section 351 of the Migration Act 1958 to override the decisions of the Administrative Appeals Committee and grant them a permanent visa.
According to this section of the Migration Act, the minister may grant a visa if he believes it is “in the public interest”, but is not legally required to consider every request. This power is exercised personally by the minister.
The minister receives many requests to personally intervene in such visa matters. Last month, for example, Secretary of Immigration Andrew Giles intervened when a family from Perth was denied a visa because their son did not meet certain health criteria, as he was born with Down syndrome. The minister granted them permanent residence permits.
Guidelines now need to be revised
In 2016, the minister published guidelines for Department officials to use in reviewing such requests for ministerial intervention.
The guidelines only say to refer cases to the minister in cases where there are “unique or exceptional circumstances”. This includes compassionate circumstances.
Davis and DCM20 argued that there were unique and exceptional circumstances that warranted intervention in their case, pointing to their long residence in Australia and the dependence of Australian family members on their care.
In both cases, a department official decided that their circumstances were not unique or exceptional as required by the guidelines and refused to refer their case to the minister.
However, the Supreme Court ruled that the department’s decisions were illegal because the power to intervene or not intervene in such cases must be exercised personally by the minister.
In fact, in these two cases, it was a department official who made the decision not to intervene, not the minister.
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What are the possible consequences of the ruling?
The minister of immigration will now have to review not only the current guidelines, but also all decisions that have been made on the basis of those guidelines since 2016.
a document released under the Freedom of Information Act shows that hundreds of requests for ministerial intervention have been made under these guidelines each year for the period 2017–2020. The minister personally intervened and granted about 1,000 visa cases during that time.
However, the document does not reveal how many cases were never referred to the minister for consideration. Hundreds of people may have been affected.
The minister will probably also have to review other directives under the Migration Act, where he has personal powers of intervention.
For example, the minister has personal freedom under Article 48B of the Act. This allows asylum seekers who have been refused a protection visa to apply for a subsequent visa if the minister deems it “in the public interest”.
But, as mentioned earlier, the current ministerial guidelines demanding that the department consider whether there are “exceptional circumstances” to refer a case to the minister.
Statistics show that the minister has only intervened in less than 10% of these asylum applications in the past 10 years.
Asylum seekers arriving by boat are also not allowed to apply for a visa, unless the minister does so personal she allows. The Supreme Court’s ruling may affect decisions by the department not to refer these cases to the minister as well.
The minister still has enormous powers to refuse cases
The court was clear that the minister retains wide discretion as to how and when to exercise his power to intervene in a case. The minister can review all these matters and come to the same conclusion as the department.
The minister’s authority is ‘unenforceable’, meaning she does not have to consider every case referred to them. And when they consider a case, they have very wide discretion to exercise their power in the public interest.
These have been described as “divine powers”. Once a minister exercises his powers properly, the courts will rarely intervene.
Decisions taken by the minister using these powers are far-reaching decisions and affect vulnerable people. In any case, the Supreme Court’s decision is an opportunity for the government to review the ministerial intervention process to create a clearer, fairer and more transparent system.