Davis v Minister for Immigration: Impermissible Exercise of Power

On 12 April 2023, the High Court of Australia decided the cases of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and DCM20 v Secretary of Department of Home Affairs. The two applicants had lodged appeals against decisions by the Immigration Department to decline to refer their negative visa decisions to the Minister for review. The High Court found that departmental officials lack the authority to refuse to refer requests for review to the Minister. This decision could impact a significant number of visa applicants whose requests for ministerial review have been declined by the department rather than by the Minister personally.

Facts of Davis v Minister for Immigration

Mr Davis submitted a partner visa application in 2018 on the basis of his relationship with an Australian citizen, but the application was refused. He lodged an appeal with the Administrative Appeals Tribunal (AAT), which also rejected his request. Subsequently, Mr Davis requested Ministerial intervention, whereby the Minister has the power to make a different decision if they believe this to be in the public interest. In 2016, the Minister had issued guidelines instructing departmental officers to refer only those requests that involved “exceptional circumstances” to his attention. If the request did not meet this criterion, the officer could finalise it without involving the Minister. These directives were issued through the Minister’s non-statutory executive authority.

Mr Davis challenged the decisions made about his case in the Federal Court and argued that they were unreasonable. However, both the Federal Court and the Full Court of the Federal Court ruled against him and in favour of the Minister. The Full Court concurred with an earlier judgment that some executive decisions can be evaluated for legal unreasonableness, but they determined that the decisions taken in Mr Davis’ case were not legally unreasonable.

In the past, there has been uncertainty as to whether non-statutory discretionary decisions made by the government can be evaluated for legal unreasonableness. In a prior case, a judge remarked that it would be odd to require reasonableness for decisions based on statutes but not for non-statutory decisions. The Full Federal Court concurred with this.

In this case, Mr Davis contended that the Ministerial instructions conflicted with the Migration Act 1958 since departmental officers were making decisions that were exclusively within the Minister’s purview. The majority of justices agreed with this argument and did not have to decide if the departmental officers’ decisions were legally unreasonable. Justice Steward dissented, stating that the officers’ decisions were not subject to legal unreasonableness since this review has historically been limited to statutory decisions.

It is probable that courts will increasingly accept the notion that some non-statutory decisions taken in the exercise of executive power may be subject to judicial review for legal unreasonableness. In the future, courts will need to make clear under what circumstances the use of non-statutory executive power will be open to judicial review on the grounds of unreasonableness.

Impermissible exercise of power

In the case of Davis v Minister for Immigration, the High Court determined that departmental officers acted unlawfully by not referring requests for intervention to the Minister. Under section 351 of the Migration Act, the Minister has sole authority to determine whether it is in the public interest to replace a decision made by the Tribunal with a more favourable one. The Minister is not allowed to delegate this power and is not obliged to consider using it. The Ministerial Instruction given to departmental officers allowed them to make decisions that only the Minister had the authority to make. The officers’ decisions were therefore unlawful as they involved evaluating the public interest, which was solely the responsibility of the Minister under s351.

The Minister was being asked to address a large number of requests for intervention under s351. The court suggested that one solution to this challenge could be for the Minister to establish objective criteria to determine in advance which cases would be considered for intervention and which would not. However, any such criteria should not impede the Minister’s exclusive responsibility to assess what is in the public interest. The case emphasizes the importance of ensuring that delegations, authorizations, and instructions to decision-makers are lawful and that the exercise of non-statutory executive power may be subject to judicial review and constrained by parliament.

Implications of the decision         

The High Court’s ruling in Davis v Minister for Immigration has raised questions about the legality of numerous decisions made by the Immigration Department since 2016. These relate to cases in which the Department did not refer requests for review to the Minister. As a result, the Minister will need to review both the 2016 guidelines and all the decisions made in relation to requests for Ministerial review since that time. The ruling could potentially have wider implications for the Department’s decisions on matters other than requests for review. However, given the broad discretionary powers held by the Minister, the review of departmental decisions may not necessarily lead to different outcomes in individual cases.

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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