Paul Cutler's Migration Case Law Blog

We all know that when an Applicant has lost their case in the Tribunal, the Minister has “God powers” to substitute a more favourable decision if it is in the public interest to do so (see s351 Migration Act). That power can only be exercised personally by the Minister.

Up until 12 April 2023 when the decision of the High Court in Davis v Minister for Immigration [2023] HCA 10 was handed down, there was a 2016 Ministerial Instruction which acted as filter on which applications actually made it to the Minister’s desk. That Ministerial Instruction has found to be an impermissible delegation of power to departmental officers.

Like many constitutional law cases, Davis is complicated and there are several different judgments. However, distilling it down to basics and using the words in para [14] of the majority judgment:

The Minister exercises the power conferred by s 351(1) by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make. The first is procedural. The second is substantive. The procedural decision is either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal. The substantive decision – which the Minister may but need not make where the Minister has made a procedural decision to consider whether it is in the public interest to substitute a more favourable decision – is either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so. 

While it is acceptable for the Minister to engage staff to sort the wheat from the chaff, the 2016 Ministerial Instruction provided that only cases with unique and exceptional circumstances should be referred personally to the Minister. The High Court found that the Minister could not use a delegation of executive power in this way to circumvent the personal use of power.  In other words it was effectively the departmental officers who were making the decisions (exercising the power) about what was in the public interest.

The judgment is even more complicated than that and deals with the regime relating to repeat requests. I’ll leave it to you to read for yourself.

However, there will now be hundreds of cases (more possibly) where applications for Ministerial intervention have been incorrectly dealt with. There are also other sections in the Migration Act which are structured in a very similar way to section 351. It will be interesting to see what happens now.

Creative commons acknowledgment for the photograph.