High Court of Australia
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
ENT19 PLAINTIFF
AND
MINISTER FOR HOME AFFAIRS & ANOR DEFENDANTS
ENT19 v Minister for Home Affairs
[2023] HCA 18
Date of Hearing: 8 December 2022, 14 & 15 March 2023
Date of Judgment: 14 June 2023
S102/2022
ORDER
1. A writ of certiorari issue quashing the decision of the first defendant made on 27 June 2022 to refuse to grant the plaintiff a Safe Haven Enterprise (Class XE) Subclass 790 visa.
2. A writ of mandamus issue commanding the first defendant to determine the plaintiff's visa application according to law within 14 days of the date of this order.
3. The defendants pay the plaintiff's costs.
Representation
L G De Ferrari SC with J D Donnelly and E A M Brumby for the plaintiff (instructed by Zarifi Lawyers) at the hearing on 8 December 2022
B W Walker SC with L G De Ferrari SC, J D Donnelly and E A M Brumby for the plaintiff (instructed by Zarifi Lawyers) at the hearings on 14 & 15 March 2023
S B Lloyd SC with A M Hammond and J G Wherrett for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
ENT19 v Minister for Home Affairs
Immigration – Refugees – Application for protection visa – Power of Minister under s 65 of Migration Act 1958 (Cth) to grant or refuse to grant visa – Where visa criterion in Sch 2, cl 790.227 of Migration Regulations 1994 (Cth) required Minister to be satisfied grant of visa in national interest – Where plaintiff convicted of aggravated offence of people smuggling – Where Minister personally refused to grant plaintiff protection visa – Where sole basis for decision that cl 790.227 not satisfied – Where Minister conceded all other criteria for grant of visa met – Where Minister did not exercise power to refuse visa under s 501 of Act – Whether cl 790.227 permitted Minister to refuse to grant visa solely on ground that not in national interest to grant visa to person convicted of people smuggling – Proper construction of cl 790.227 – Whether Minister's decision authorised by cl 790.227.
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