The High Court decides Davis v Minister for Immigration

What you need to know

• A majority of the High Court has allowed an appeal from the Full Federal Court in Davis and DCM20.  The cases concerned decisions by departmental officers declining to refer requests for Ministerial intervention under s351 of the Migration Act 1958 to the Minister.  The decisions were exercises of non-statutory executive power made pursuant to instructions issued by the Minister.
• We had hoped that the High Court's decision would clarify whether non-statutory exercises of executive power are amenable to judicial review for legal unreasonableness.  However, the High Court decided the appeal on another ground and did not need to deal with this point. 
• The High Court held that the decisions were invalid because they were made pursuant to Ministerial instructions which required consideration of public interest factors that, under the Migration Act, only the Minister was permitted to assess.

What you need to do

• Agencies should ensure that any instructions for decision-making and instruments of delegation do not require or allow officers to determine matters that can only be personally determined by the relevant Minister (or other decision-maker specified in the relevant statute).

The facts of Davis

Mr Davis had applied for a partner visa on the basis of his relationship with an Australian citizen. This application was refused in 2018 by a delegate of the Minister. 

Mr Davis sought review of the Minister's decision in the Administrative Appeals Tribunal (AAT). The AAT affirmed the decision of the delegate to refuse to grant the Partner visa. Mr Davis then applied for Ministerial intervention, asking the Minister to substitute a more favourable decision (which the Minister may do if they decide it is in the public interest to do so, under s 351 of the Migration Act). 

Under the Ministerial instructions, departmental officers were required to review a request for intervention, and only draw to the Minister's attention requests that raised "exceptional circumstances".  Requests that did not meet this threshold were to be "finalised" by the departmental officer without drawing the request to the Minister's attention.  The Ministerial instructions were issued by the Minister in the exercise of his non-statutory executive power under s61 of the Constitution. 

The decisions below

Mr Davis' primary contention in the Federal Court was that the decisions made were unreasonable such that no reasonable decision-maker could have reached them (the Wednesbury unreasonableness test).  Mr Davis also sought leave to argue that the Ministerial instructions were unlawful but the Full Court refused to grant leave (it was not argued at first instance).

Both the Federal Court and the Full Federal Court found for the Minister and dismissed Mr Davis' application.  The Full Court found (consistent with the earlier decision of Jabbour v Secretary, Department of Home Affairs) that some non-statutory decisions made in the exercise of executive power are amenable to review on the basis of legal unreasonableness, but found that the decisions were not in fact legally unreasonable.

The High Court's decision

Legal unreasonableness and non-statutory executive power

As mentioned, we had hoped that the High Court would resolve the question of whether non-statutory discretionary decisions made in the exercise of the executive power of the Commonwealth are amenable to review on the basis of legal unreasonableness.  

For many years there has been uncertainty as to whether legal unreasonableness is a ground upon which non-statutory exercises of executive power can be judicially reviewed.  

In Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438, Robertson J of the Federal Court commented that it would be "incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute, but not to have in the common law any such principle existing outside statutory interpretation."

The Full Federal Court adopted the view expressed by Robertson J, finding that non-statutory exercises of executive power are amenable to judicial review on the basis of legal unreasonableness.  

This case presented an opportunity for the High Court to definitively resolve the matter.  The High Court, however, came to the view that it was unnecessary to resolve this question.  Justices Kiefel, Gageler and Gleeson commented "Whether any aspect of the executive power of the Commonwealth is conditioned by any requirement of reasonableness is a very large question. The question need not, and therefore should not, be addressed in the determination of these appeals."

In appealing to the High Court, Mr Davis sought leave to amend his grounds of appeal to assert that the Ministerial instructions were inconsistent with s351 (and some other provisions) of the Migration Act, because they involved departmental officers making decisions which, under the relevant provisions, could only be made by the Minister personally.  That leave was granted, and it was this ground of appeal which the majority found was made good by Mr Davis.  

Having reached this conclusion, the majority said that it was unnecessary to determine whether the decisions of the departmental officers were amenable to judicial review on the basis of legal unreasonableness.  

Of the five justices in the majority, only Edelman J ventured any comments on the point.  In passages likely to be relied upon in future cases, his Honour commented that: 

• "there is obvious force in the view of Robertson J" in Jabbour and that "the fundamental principles of the common law that inform statutory implications [such as the implied duty to exercise powers reasonably] must also inform the scope of executive liberty and power"; and
• "related to the first point, any reasonableness requirement for the exercise of an extremely broad non-statutory executive power will usually involve a high threshold".

Justice Steward, in dissent, found that there was no exercise of a relevant power by the departmental officers in refusing to make the referrals to the Minister, and as such their refusal was not amenable to review on the ground of legal unreasonableness.  His Honour commented that review on that basis has historically only been available for statutory decisions.  His Honour otherwise agreed with the Full Court that the decisions of the departmental officers were not legally unreasonable.

Our view on legal unreasonableness and non-statutory decisions

While there will, as a result of the High Court's decision, continue to be some uncertainty in relation to this point, we think that there is likely to be increasing acceptance of the view expressed in Jabbour and by the Full Court in Davis that some non-statutory decisions made in the exercise of executive power may be subject to judicial review for legal unreasonableness.  

The main issue the courts will need to resolve in future cases will be in what circumstances exercises of non-statutory executive power will be amenable to judicial review on the ground of unreasonableness.  This is a point discussed at some length in the judgments comprising the Full Court's decision in Davis, as well as in Robertson J's decision in Jabbour, as well as a number of earlier cases.  It is a complex question which remains largely unresolved, and will require careful consideration by practitioners asked to advise on this issue.

Impermissible exercise of power conferred on the Minister

As we have alluded to above, the High Court determined that the decisions made by the departmental officers not to refer requests for Ministerial intervention to the Minister were unlawful because they encroached on the exclusive area of Ministerial decision-making prescribed in s351 of the Migration Act.

To understand this point, it is necessary to understand what s351 says.  Relevantly:

• s351(1) provides that "if the Minister thinks that it is in the public interest to do so", the Minister may substitute a more favourable decision for one made by the Tribunal under s349.  In other words, the Minister can override a decision of the Tribunal and make a more favourable decision (such as to grant a visa) if they consider it in the public interest to do so;
• s351(3) goes on to provide that the power in s351(1) may only be exercised by the Minister personally (it cannot be delegated); and
• s351(7) provides that the Minister does not have a duty to consider whether to exercise the power in s351(1).

Although expressing their reasons slightly differently, the majority in substance held that: 

• the scheme of s351 exclusively confers on the Minister the responsibility of assessing whether it is in the public interest for a decision of the Tribunal to be substituted for a more favourable decision;
• the Ministerial Instruction tasked departmental officers with deciding whether to refer requests for Ministerial intervention by reference to whether the case involved "exceptional circumstances";
• in substance, this involved consideration of factors relevant to whether it would be in the public interest for the Minister to substitute a more favourable decision for the decision of the Tribunal; and
• in those circumstances, the Ministerial Instruction, and the decisions of the departmental officers pursuant to the Instruction, necessarily and impermissibly involved the officers assessing the public interest in circumstances where only the Minister was entitled to make that assessment under s351.

Practical considerations

Of course, one of the administrative challenges no doubt facing the Minister was the large volume of requests for intervention under s351.  

Relevant to this administrative challenge, Kiefel CJ, Gageler and Gleeson JJ explained that it would be open to the Minister to, for example, decide prospectively by reference to objective criteria that they will consider making a decision under s351 in cases that have particular characteristics, and will not consider making a decision under s351 in cases that have certain other characteristics.  Their Honours go on to say, however, that there are limits to the characteristics that can be adopted, and importantly, they cannot encroach on the Minister's area of exclusive responsibility with respect to assessing the public interest, which is what occurred in this case.  Similar sentiments were expressed by Jagot J.

Their Honours' comments were of course made in the specific context of s351, but they help to underscore that there are often creative solutions available, within the limitations imposed by parliament, to help ministers and their departments in "sorting the wheat from the chaff" (as their Honours put it).

More generally, this case reinforces the need for agencies to ensure that their delegations, authorisations and instructions to decision makers and other staff involved in managing administrative decisions are lawful.  

The High Court's decision is also a timely reminder that exercises of non-statutory executive power may be judicially reviewable, and that such powers are subject to, and may be constrained by, parliament.  

Authors: Melanie McKean, Partner; Rob Andersen, Senior Associate; Max Slattery, Lawyer.