Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791

The Assistant Director's evaluation that the applicant's circumstances did not meet the guidelines for referral to the Minister was reasonably open and disclosed no misconstruction of the guidelines. Her reasons addressed the applicant's trust, properties, business ties, claimed community hardship, and length of stay, including time as an unlawful non-citizen. Clause 12 did not impose an obligation to consider referral outside clause 4, and it was open to treat the 15 May 2019 correspondence as a repeat request. The application therefore failed.

Jurisdiction
Australia
Judgment Date
09 June 2020
Procedural Posture
Application for Judicial Review of a Departmental Officer's Decision Not to Refer to the Minister a Request for the Minister to Exercise Power Under S 351 of the Migration Act 1958 (cth) / Final Judgment, Including Application for Leave to Amend Amended Originating Application
Outcome
Leave to amend granted; application dismissed with costs payable by the applicant to the first respondent.
Legal Topics
['ministerial Intervention Under S 351 of the Migration Act 1958 (cth)' 'legal Unreasonableness' 'ministerial Guidelines' 'unique or Exceptional Circumstances' 'repeat Request' 'federal Court Jurisdiction Under S 39 B of the Judiciary Act 1903 (cth)']
['migration' 'administrative and Constitutional Law and Human Rights'] ['ministerial Intervention Under S 351 of the Migration Act 1958 (cth)' 'legal Unreasonableness' 'ministerial Guidelines' 'unique or Exceptional Circumstances' 'repeat Request' 'federal Court Jurisdiction Under S 39 B of the Judiciary Act 1903 (cth)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Judicial Review of a Departmental Officer's Decision Not to Refer to the Minister a Request for the Minister to Exercise Power Under S 351 of the Migration Act 1958 (cth) / Final Judgment, Including Application for Leave to Amend Amended Originating Application

Legal Issues

  1. 1 ["Whether the departmental decision not to refer the applicant's s 351 request to the Minister was legally unreasonable or involved a misconstruction of the Minister's guidelines." "Whether the applicant's further correspondence of 15 May 2019 was capable of being treated as a repeat request under the Minister's guidelines." "Whether clause 12 of the Minister's guidelines required consideration of referral in the public interest even if the circumstances did not fall within the unique or exceptional circumstances described in clause 4." 'Whether amendments to the originating application were necessary to invoke jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth).']

Ratio Decidendi

The Assistant Director's evaluation that the applicant's circumstances did not meet the guidelines for referral to the Minister was reasonably open and disclosed no misconstruction of the guidelines. Her reasons addressed the applicant's trust, properties, business ties, claimed community hardship, and length of stay, including time as an unlawful non-citizen. Clause 12 did not impose an obligation to consider referral outside clause 4, and it was open to treat the 15 May 2019 correspondence as a repeat request. The application therefore failed.

Court Disposition

Leave to amend granted; application dismissed with costs payable by the applicant to the first respondent.

Orders

  • ['The applicant be granted leave to amend his amended originating application dated 1 August 2019.' 'The application be dismissed.' "The applicant pay the first respondent's costs, as agreed or assessed."]