ENT19 v Minister for Home Affairs [2023] HCA 18

ENT19 v Minister for Home Affairs [2023] HCA 18

Clause 790.227 of the Migration Regulations 1994 (Cth) cannot be used by the Minister to refuse a protection visa application solely on account of a people smuggling conviction and the Minister's view, by general policy, that it is not in the national interest to grant protection visas to such persons, where all other criteria (including character and refugee criteria) are satisfied and relevant discretions under s 501 are not exercised—such use is inconsistent with the entirety of the statutory scheme. The Minister's decision was therefore invalid.

Parties
Plaintiff: ENT19; First Defendant: Minister for Home Affairs; Second Defendant: Anor
Jurisdiction
Australia
Judgment Date
14 June 2023
Procedural Posture
Judicial Review; Constitutional and Administrative Law / Original Jurisdiction in the High Court of Australia
Outcome
Application allowed. Minister's decision quashed.
Legal Topics
Protection Visas, Judicial Review, National Interest Criteria, Ministerial Powers, Migration Act, Migration Regulations, People Smuggling, SHEV (safe Haven Enterprise Visa), Certiorari, Mandamus
Immigration Law Administrative Law Statutory Interpretation Constitutional Law Protection Visas Judicial Review National Interest Criteria Ministerial Powers +6 more

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Parties

ENT19

Plaintiff

Minister for Home Affairs

First Defendant

Anor

Second Defendant

Procedural Posture

Judicial Review; Constitutional and Administrative Law / Original Jurisdiction in the High Court of Australia

Legal Issues

  1. 1 Whether clause 790.227 of the Migration Regulations 1994 (Cth) permits refusal of a protection visa solely on the ground of a conviction for people smuggling and the Minister's assessment of the national interest;
  2. 2 Whether the Minister's decision was for a punitive purpose;
  3. 3 Whether the Minister proceeded on an incorrect understanding of her powers;

Ratio Decidendi

Clause 790.227 of the Migration Regulations 1994 (Cth) cannot be used by the Minister to refuse a protection visa application solely on account of a people smuggling conviction and the Minister's view, by general policy, that it is not in the national interest to grant protection visas to such persons, where all other criteria (including character and refugee criteria) are satisfied and relevant discretions under s 501 are not exercised—such use is inconsistent with the entirety of the statutory scheme. The Minister's decision was therefore invalid.

Court Disposition

Application allowed. Minister's decision quashed.

Orders

  • A writ of certiorari issue quashing the decision of the first defendant made on 27 June 2022 to refuse to grant the plaintiff a Safe Haven Enterprise (Class XE) Subclass 790 visa.
  • A writ of mandamus issue commanding the first defendant to determine the plaintiff's visa application according to law within 14 days of the date of this order.