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Ministerial Intervention: High Court Decision Could Impact Thousand Refusal Cases

A recent decision of the High Court of Australia handed down on 12 April 2023 is in the case of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 is a significant judgment. The High Court ruling may impact the legality of Ministerial Intervention refusals dating back to 2016 and may affect thousands of individuals whose visa applications were denied.

Key Points:

1. In March 2016, then-Immigration Minister Peter Dutton introduced guidelines to help assess when he or future immigration ministers might intervene in visa cases.

2. The guidelines stated that only applications with 'unique or exceptional circumstances' should be presented to the Minister, with other cases to be finalized by Departmental officers.

3. In recent years, thousands of Ministerial Intervention requests have been finalised by department officials based on these guidelines.

4. The specific case of Mr. Davis, who had his partner visa application refused, challenged these procedures. His request for Ministerial Intervention was rejected by Departmental officers on the basis that it didn't present 'unique or exceptional circumstances'.

5. Mr. Davis took his case to the Federal Court of Australia, where it was adjudicated alongside a similar case.

6. The High Court finally ruled that only the Immigration Minister, not department officers, has the legal authority to determine if an applicant's circumstances are 'unique or exceptional' and therefore justified for Ministerial Intervention.

7. Following the Davis verdict, those decisions by Departmental officers to not refer intervention requests to the Immigration Minister are now considered illegal.

8. Any individual who has filed a Ministerial intervention request since March 2016 that wasn't reviewed by the Immigration Minister could possibly have their case reconsidered in light of this ruling.

In essence, this High Court ruling could lead to significant changes to the system of Ministerial Intervention in immigration cases and could lead to thousands of previously rejected applications being reconsidered.

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