Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 is a long (5 judgements each of 100’s of paragraphs) decision of the Full Federal Court about the exercise of the Minister’s personal discretionary powers to grant a visa (sometimes referred to in the media as “God powers”).

There are several sections of the Migration Act which confer on the Minister an “extraordinary power of last resort” to grant a visa if it is in the public interest and after all the other statutory processes have been exhausted. The power which was the subject of the Davis case was section 351.

Not all requests for Ministerial intervention actually land on the Minister’s desk for consideration. There are published guidelines as to the type of cases that the Minister wants to consider. As a result, there is a “procedural decision” (made by departmental officers) before any matter is referred to the Minister for substantive decision. The making of that procedural decision is an exercise of a non-statutory executive power.

The question which arose in Davis was whether the procedural decision was amenable to judicial review and if so, whether the law of unreasonableness applied. In coming to the answer “yes” (i.e. the procedural decision was reviewable and subject to reasonableness), the judges embarked on a long and detailed analysis of the very foundations of judicial review. You have to like a judgment that refers to a 1597 UK decision,  Rooke’s Case (about London sewers).

Unfortunately for Mr Davis (and the co-appellant DCM20), the decision not to refer the matter to the Minister wasn’t unreasonable.

Creative commons acknowledgment for the photograph.

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