Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31

HIGH COURT OF AUSTRALIA

FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Matter No S10/2011

PLAINTIFF S10/2011 PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS

Matter No S43/2011

JASVIR KAUR PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS

Matter No S49/2011

PLAINTIFF S49/2011 PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS

Matter No S51/2011

PLAINTIFF S51/2011 PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR DEFENDANTS

Plaintiff S10/2011 v Minister for Immigration and Citizenship Kaur v Minister for Immigration and Citizenship Plaintiff S49/2011 v Minister for Immigration and Citizenship Plaintiff S51/2011 v Minister for Immigration and Citizenship [2012] HCA 31 7 September 2012 S10/2011, S43/2011, S49/2011 & S51/2011

ORDER

In each matter, application dismissed with costs.

Representation

S B Lloyd SC with S E J Prince, G J D del Villar and J B King for the plaintiffs (instructed by Parish Patience Immigration Lawyers)

S J Gageler SC, Solicitor-General of the Commonwealth with G R Kennett SC and A M Mitchelmore for the defendants (instructed by Australian Government Solicitor)

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Plaintiff S10/2011 v Minister for Immigration and Citizenship Kaur v Minister for Immigration and Citizenship Plaintiff S49/2011 v Minister for Immigration and Citizenship Plaintiff S51/2011 v Minister for Immigration and Citizenship

Administrative law – Procedural fairness – Migration – Refugees – Review by Refugee Review Tribunal and Migration Review Tribunal – Ministerial discretion – Migration Act 1958 (Cth) confers powers upon Minister to dispense with statutory requirements for visa if "in the public interest to do so" – Dispensing powers must be exercised personally and are non-compellable – Plaintiffs refused visas and unsuccessfully sought merits review of those refusals – Plaintiffs requested Minister to consider exercising and to exercise dispensing powers – Requests by three plaintiffs refused by departmental officers pursuant to guidelines issued by Minister not forwarded to Minister – Request by one plaintiff refused by Minister – Whether statutory provisions conferring dispensing powers apt to affect adversely the sufficient interest of a party seeking exercise of those powers – Whether statutory provisions conferring dispensing powers excluded any obligation of Minister to accord plaintiffs procedural fairness.