Davis v Minister for Immigration: Impermissible Exercise of Power

On 12 April 2023, the High Court of Australia found in favour of two appellants in the matters of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs DCM20 v Secretary of Department of Home Affairs. The two men had appealed against decisions by the Immigration Department not to refer their requests to have negative decisions about their visas reviewed by the Minister. The High Court found that departmental officers do not have the power to decline to refer requests for review by the Minister. This decision potentially affects thousands of visa applicants whose requests for ministerial review have been refused by the department, rather than by the Minister.

Facts of Davis v Minister for Immigration

In 2018, Mr Davis applied for a partner visa based on his relationship with an Australian citizen, but his application was rejected. He appealed the decision to the Administrative Appeals Tribunal (AAT), but it also denied his request. Mr Davis then requested Ministerial intervention, which allows the Minister to make a different decision if they believe it is in the public interest to do so. The Minister had issued guidelines in 2016 stating that departmental officers should only bring requests to his attention if they involved “exceptional circumstances.” If a request did not meet this standard, the officer could finalize it without involving the Minister. These instructions were issued by the Minister’s non-statutory executive power.

Mr Davis went to the Federal Court and argued that the decisions made about his case were unreasonable. Both the Federal Court and the Full Court of the Federal Court ruled in favour of the Minister and rejected Mr Davis’ claim. The Full Court agreed with an earlier decision that some executive decisions can be reviewed for legal unreasonableness, but they decided that the decisions made in Mr Davis’ case were not legally unreasonable.

Legal unreasonableness

There has been uncertainty in the past as to whether non-statutory discretionary decisions made by the government can be reviewed based on legal unreasonableness. In a previous case, a judge commented that it would be strange to have a requirement of reasonableness for decisions based on statutes, but not for non-statutory decisions. The Full Federal Court agreed with this view.

In this case, Mr Davis argued that the Ministerial instructions were inconsistent with the Migration Act 1958 because departmental officers were making decisions that only the Minister should have made. The majority of justices agreed with this argument and did not need to decide if the departmental officers’ decisions were legally unreasonable. Justice Steward disagreed, saying that the officers’ decisions were not subject to legal unreasonableness because this review has traditionally only been for statutory decisions.

It is likely that courts will increasingly accept the view that some non-statutory decisions made in the exercise of executive power may be subject to judicial review for legal unreasonableness. In the future, courts will need to clarify under what circumstances exercises of non-statutory executive power will be amenable to judicial review on the ground of unreasonableness.

Impermissible exercise of power

In Davis v Minister for Immigration, the High Court ruled that the departmental officers acted unlawfully by not referring requests for Ministerial intervention to the Minister. Section 351 of the Migration Act gives the Minister the exclusive responsibility to decide whether it is in the public interest to substitute a more favourable decision for a decision made by the Tribunal. The Minister cannot delegate this power, and it is not their duty to consider exercising it. The Ministerial Instruction tasked departmental officers with making decisions that only the Minister was authorized to make. Therefore, the officers’ decisions were unlawful as they involved assessing the public interest, which was the Minister’s sole responsibility under s351.

The Minister was faced with the challenge of dealing with a large number of requests for intervention under s351. The court suggested that one solution for this challenge could be for the Minister to establish objective criteria to decide prospectively which cases will be considered for intervention and which will not. However, any criteria must not interfere with the Minister’s exclusive responsibility to assess the public interest, as happened in this case. The case highlights the importance of ensuring that delegations, authorisations, and instructions to decision-makers are legal and that exercises of non-statutory executive power may be subject to judicial review and constrained by parliament.

Implications of Davis v Minister for Immigration

The decision could call into question the legality of thousands of decisions made by the Immigration Department since 2016 in matters that the department has declined to refer to the Minister for review. The Minister will now need to review the 2016 guidelines as well as all the decisions that have been about requests for Ministerial review since that time. The decision could also potentially affect the legality of the department’s decision to decline to refer other types of matters to the Minister. However, as the Minister has very broad discretionary powers, such a review will not necessarily result in different outcomes in individual cases.

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