The override power allows the minister to substitute a more favourable decision, even if the administrative tribunal would not have had the power to make such a decision. 

The minister is not required to consider whether to exercise the override power, and he did not do so in either of the two cases that were heard, as the department chose not to refer the requests to the minister for consideration.

The case was brought by UK citizen Martin Davis, who has lived in Australia since 1997, who lost the right to live in Australia after his working visa was cancelled due to ceasing employment with his sponsoring employer. 

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In 2019, Mr Davis was informed by the immigration department that his case lacked “unique or exceptional circumstances”, and it was not referred to the minister.

The second appellant, known as DCM20, is a Fijian citizen who has lived in Australia since the early 1990s and was refused a protection visa and determination of status visa. 

One of the judges presiding over the case, Justice James Edelman, noted that both appellants had lived in Australia for over 25 years and both are depended upon by other Australian citizens, although they have “never been legally entitled to remain permanently in Australia”.

The case concerned the appropriate application of the Migration Act 1958 (Cth), and all of the justices presiding over the case except one found that the departmental decisions made on the cases were not aligned with the 2016 policy, which states that decisions cannot be delegated to the department.

Edelman J supposed: “The appeals … are two of the hundreds of cases where … a delegate of the minister administering that act had refused an application for a visa, that decision was affirmed by an administrative tribunal, and the appellant requested that the minister exercise a personal override power.” 

“These appeals concern the proper processes for the consideration and exercise of that personal override power,” Edelman J stated. 

In a joint judgment, Justices Susan Kiefel, Stephen Gageler and Jacqueline Gleeson stated: “The Parliament has seen fit to entrust to the minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the tribunal.”

The three justices continued: “It would not be open to the minister to decide not to consider making a substantive decision in a class of case defined by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the tribunal.

“For the minister to do so would be for the minister to abdicate to that other person the core aspect of the substantive decision-making power.” 

“The Parliament has seen fit to entrust to the minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the tribunal.”

Justice Michelle Gordon agreed, yet noted that the minister could choose to make decisions not to consider cases, yet that such a decision must remain objective. Justice Jayne Jagot also concurred.

Justice Simon Steward dissented on the basis that the 2016 policy was not law, and thus, the minister was not obliged to consider whether or not to exercise the override power. 

The judges presiding the case allowed the appeal and set aside orders made by the full court of the Federal Court in late 2021. It was also ordered that the respondent pay the costs of the two appellants.

In light of the ruling, Lawyers Weekly spoke with two immigration lawyers to uncover the significance of the decision, what it means for those it may affect, and for immigration lawyers. 

Carina Ford, managing partner of Carina Ford Immigration Lawyers, commented that it was “an incredibly important and long-awaited migration decision”.

“The decision will affect visa applicants who have requested the minister to intervene using his personal power to do so in their matters (after their initial visa applications were refused) however have not had their matters referred to the minister on the basis of failing to meet the ministerial guidelines by decision makers/ delegates of the Department of Home Affairs,” explained Ms Ford.

She continued: “The High Court found that the decisions to exercise or not exercise this power may be made only by the minister and, therefore, cannot be made by an official in the department administered by a minister.”

“This decision will impact thousands of applicants who have received decisions ‘not to refer’ their matters to the minister, which we have seen an increase of over the last 12 months,” Ms Ford told Lawyers Weekly. 

“At this stage, it is unclear as to the practical implication of the decision,” she posited. “However, it may result in many of these decisions being revisited, requests for ministerial intervention being reapplied for and potentially changes in the law permitting departmental officials, as either delegates or agents, to exercise a liberty to decide whether to refer to the minister an application for the exercise of the personal override power.”

“It no doubt will increase the minister’s workload,” Ms Ford noted.

“The current system has been unworkable and has meant many unfair decisions have been made that, despite meeting the guidelines, have not been put forward to the minister.”

“This is an opportunity for the government to introduce a fairer, more efficient and less time-consuming system.”

George Botros, partner in Madison Marcus’ global mobility and immigration practice, also spoke to Lawyers Weekly.

“The power conferred is exclusive to the minister’s discretion, to decide whether it is in public interest to consider the case and, if so, whether to intervene and overturn the tribunal’s decision,” Mr Botros outlined. 

Mr Botros echoed the significance of the judgment noted by Ms Ford that the power cannot be delegated and must be exercised personally by the minister.

“Before this ruling, many ministerial intervention applications did not even reach the minister for procedural consideration,” he explained. 

“A much higher workload and pressure for the minister is reasonably expected.”

“It is also anticipated that there would be profound ramifications on hundreds of visa decisions.”

“Current practices of the department will see substantive changes following this case.”