Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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".
Constitution, ss 61, 64, 67, 73.
Federal Court of Australia Act 1976 (Cth), s 21.
Judiciary Act 1903 (Cth), ss 37, 39B.
Migration Act 1958 (Cth), ss 351, 474, 476A.