Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Kiefel CJ,Gageler,Gleeson JJ,Gordon J.,Edelman J.,Steward J.,Jagot J.
• Judgment Date: 12 April 2023
• Neutral Citation: [2023] HCA 10
• Docket Number: M32/2022 & S81/2022

[2023] HCA 10

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ

M32/2022 & S81/2022

Martin John Davis

Appellant

and

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors

Respondents

DCM20

Appellant

and

Secretary of Department of Home Affairs & Anor

Respondents

Representation

C J Horan KC with A F L Krohn and A R Sapienza for the appellant in each matter (instructed by Rasan T. Selliah & Associates)

S P Donaghue KC, Solicitor-General of the Commonwealth, and N M Wood SC with M F Caristo for the first respondent in each matter and for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with M W R Adams for the Attorney-General for the State of New South Wales, intervening in both matters (instructed by Crown Solicitor (NSW))

M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening in both matters (instructed by Crown Solicitor's Office (SA))

R J Orr KC, Solicitor-General for the State of Victoria, with M A Hosking for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor's Office)

Submitting appearances for the second and third respondents in M32/2022 and for the second respondent in S81/2022

Constitution, ss 61, 64, 67, 73.

Federal Court of Australia Act 1976 (Cth), s 21.

Judiciary Act 1903 (Cth), ss 37, 39B.

Migration Act 1958 (Cth), ss 351, 474, 476A.

Constitutional law (Cth) — Executive power of the Commonwealth — Where s 351 of Migration Act 1958 (Cth) permitted Minister to personally exercise power to substitute more favourable decision for decision of tribunal — Where requests made for Minister to exercise power under s 351 — Where Minister issued instructions to departmental officers in purported exercise of executive power for general conduct of requests to substitute more favourable decision under s 351 (“Ministerial Instructions”) — Where Ministerial Instructions required departmental officers to refer requests to Minister only where satisfied that “unique or exceptional circumstances” exist in respect of request — Whether Ministerial Instructions purported to instruct departmental officers to make decisions required to be exercised personally by Minister — Whether Ministerial Instructions exceeded limits of executive power as constrained by s 351 of Act.

Administrative law — Judicial review — Whether decisions in purported compliance with Ministerial Instructions exceeded limits of Commonwealth executive power.

High Court — Appellate jurisdiction — Whether Federal Court lacked jurisdiction to hear appeals by reason of s 476A(1) of Act — Consideration of character of purported decisions of departmental officers — Whether High Court accordingly deprived of jurisdiction to hear appeal.

Judgments and orders — Where appellants sought declarations as to departmental officers' legal error — Whether appellants had sufficient material interest to seek declaratory relief — Whether declaratory relief appropriate.

Words and phrases — “decision made personally”, “declaratory relief”, “evaluation of the public interest”, “executive power of the Commonwealth”, “guidelines”, “Ministerial Instructions”, “more favourable decision”, “non-compellable power”, “non-delegable power”, “non-statutory action”, “personal power”, “procedural decision”, “public interest”, “repeat request”, “statutory decision”, “statutory limitation”, “substantive decision”, “unique or exceptional circumstances”, “2009 Ministerial Instructions”, “2016 Ministerial Instructions”.

ORDER

• 1. Grant leave to the appellant to file an Amended Notice of Appeal.

• 2. Appeal allowed.

• 3. Set aside the orders made by the Full Court of the Federal Court of Australia on 23 November 2021 (as varied by the orders of 15 December 2021) and in their place make the following orders:

  • (a) Appeal allowed.

  • (b) Set aside the orders made by O'Callaghan J on 9 June 2020 and in their place make the following orders:

    • (i) Declare that the decision made by the third respondent on 8 May 2019 in purported compliance with section 10.1 of the Minister's guidelines on ministerial powers (s351, s417 and s501J) (11 March 2016) exceeded the executive power of the Commonwealth.

    • (ii) The first respondent pay the costs of the applicant.

  • (c) The first respondent pay the costs of the appellant.

• 4. The first respondent pay the costs of the appellant.

• 1. Grant leave to the appellant to file an Amended Notice of Appeal and vary the grant of special leave to appeal accordingly.

• 2. Appeal allowed.

• 3. Set aside the orders made by the Full Court of the Federal Court of Australia on 23 November 2021 (as varied by the orders of 15 December 2021) and in their place make the following orders:

  • (a) Appeal allowed.

  • (b) Set aside the orders made by Perry J on 20 July 2020 and in their place make the following orders:

    • (i) Declare that the decision made by the second respondent on 10 January 2020 in purported compliance with section 10.2 of the Minister's guidelines on ministerial powers (s351, s417 and s501J) (11 March 2016) exceeded the executive power of the Commonwealth.

    • (ii) The first respondent pay the costs of the applicant.

  • (c) The first respondent pay the costs of the appellant.

• 4. The first respondent pay the costs of the appellant.

On appeal from the Federal Court of Australia

1 Kiefel CJ, Gageler AND Gleeson JJ. Two appeals are brought from a decision of the Full Court of the Federal Court of Australia 1. Each arises out of an application in the original jurisdiction of the Federal Court for judicial review of a decision of a departmental officer not to refer to a Minister a request to exercise the power conferred on that Minister by s 351(1) of the Migration Act 1958 (Cth) (“the Act”) to substitute in the “public interest” a more favourable decision for a decision made or taken to be made by the Administrative Appeals Tribunal (“the Tribunal”) under s 349(2)(a) of the Act affirming a refusal by a delegate of the Minister to grant the applicant a visa. The Full Court dismissed an appeal from the dismissal of each application.

2 Each departmental decision not to refer a request to the Minister was made in purported compliance with instructions issued in 2016 by the then Minister for Immigration and Border Protection (“the 2016 Ministerial Instructions”) 2. The 2016 Ministerial Instructions relevantly instructed departmental officers not to refer a request to exercise the power conferred by s 351 of the Act to a Minister in any case which departmental officers assessed not to “have unique or exceptional circumstances”. Each departmental decision not to refer turned on the departmental officer assessing the case in relation to which the request was made not to meet that criterion for referral.

3 The 2016 Ministerial Instructions superseded earlier instructions issued by the then Minister for Immigration and Citizenship in 2009 (“the 2009 Ministerial Instructions”) 3. The 2009 Ministerial Instructions were considered by this Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship 4.

4 Consistently with what was found in Plaintiff S10/2011 in relation to the 2009 Ministerial Instructions and in relation to departmental decisions made in purported compliance with the 2009 Ministerial Instructions, the Full Court found that neither the issuing of the 2016 Ministerial Instructions nor the making of the departmental decisions in purported compliance with the 2016 Ministerial Instructions involved exercise of any power conferred by statute. Each was rather a purported exercise of the executive power of the Commonwealth conferred by

s 61 of the Constitution. More specifically, each was a purported exercise of “an executive function incidental to the administration of the Act and thus within that aspect of the executive power which ‘extends to the execution and maintenance … of the laws of the Commonwealth’” 5. Those findings are not contested in these appeals

5 The Full Court held that the aspect of the executive power of the Commonwealth purportedly exercised in making the departmental decisions is conditioned by a common law requirement for reasonableness in its exercise. The Full Court nevertheless found that neither impugned departmental decision was in fact unreasonable.

6 The first ground of each appeal challenges the finding that the departmental decision impugned was not unreasonable. By notice of contention in each appeal, the first respondent denies that any aspect of the executive power of the Commonwealth is conditioned by a common law requirement of reasonableness.

7 Whether any aspect of the executive power of the Commonwealth is conditioned by any requirement of reasonableness is a very large question. The question need not, and therefore should not, be addressed in the determination of these appeals.

8 Each appeal is rather to be determined on a second, logically anterior, ground not fully developed before the Full Court. The ground is founded on the proposition that, by conferring statutory power to substitute or not to substitute a decision in the public interest on a Minister personally, s 351 of the Act limits the executive power of the Commonwealth by excluding the capacity for another executive officer to decide that it is or is not in the public interest for the statutory power to be exercised. The ground is to the effect that the issuing and maintenance of the 2016 Ministerial Instructions, and the departmental decisions made in purported compliance with them, exceeded the executive power of the Commonwealth as so limited to the extent that the 2016...