Recent Cases

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 (12 April 2023) (Kiefel CJ; Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ)


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”.