Constraining Executive Discretion in the ‘Public Interest’

The use of highly-discretionary executive powers to make immigration decisions has given rise to debate in Australia and internationally. In Australia, the problem is particularly acute because a number of provisions in the Migration Act 1958 (Cth) (the Migration Act) allow the Minister for Immigration (the Minister) to intervene in visa decisions on ‘public interest’ grounds. These intervention powers are controversial as they are personal to the Minister, non-reviewable and non-compellable. As a result, they have been subject to criticism by both civil society and academics. In addition to these intervention provisions, other sections in the Migration Act include a broad and subjective ‘national interest’ criterion for the grant or refusal of certain visa decisions.

These two sets of powers were recently adjudicated in a series of High Court cases in Australia: Davis v Minister for Immigration; DCM20 v Secretary of Department of Home Affairs  (Davis), decided on 12 April 2023, and ENT19 v. Minister for Home Affairs (ENT), decided on 14 June 2023.

In Davis, the High Court considered the legality of ministerial guidelines used to manage the consideration of the ‘public interest’ intervention powers under section 351 of the Migration Act. In ENT, the High Court considered the lawfulness of a ministerial decision to refuse to grant a refugee visa on the basis that it was not in the ‘national interest’ under the Migration Regulations. Although these two cases are quite different in terms of their underlying facts and the legal arguments raised, they both illustrate the problems posed by granting decision-makers wide discretionary powers. Additionally, whilst the decisions are quite specific to the particular statutory context of Australian migration law, they provide an interesting demonstration of the role of the courts in constraining executive action in the area of migration. In particular, they illustrate the way in which the courts can utilise public law and statutory interpretation principles to review these powers.

In this blog, I will be discussing both cases. However, I will focus particularly on the Davis case as its findings on the use of executive guidance are most relevant to other jurisdictions.

Australia’s ‘public interest’ intervention powers: The decision in Davis

Several provisions in the Migration Act contain personal ministerial intervention powers which allow the Minister for Immigration to substitute their decision for that of the Administrative Appeals Tribunal (AAT).  The provision at issue in Davis was s 351 of the Migration Act, which allows the Minister for Immigration to substitute a decision of the AAT with a decision that is more favourable to an applicant.

The criteria for the exercise of this important intervention power are very broad. This is because s 351 does not set out any relevant considerations or other limitations. Rather, it provides that such substitution can be undertaken if the Minister thinks that it is in the ‘public interest’. This is a wide and highly subjective term. Indeed, in a previous case – Plaintiff S10/2011 v Minister for Immigration and Citizenship – the High Court noted that ‘[t]he expression “public interest” has no fixed or precise content.  It involves a value judgment, often to be made by reference to matters that are not clearly defined’ (para 99).

In addition to this aspect, s 351(3) of the Migration Act explicitly states that the power ‘may only be exercised by the Minister personally’ and s 351(7) provides that the Minister ‘does not have a duty to consider whether to exercise the power … in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances’. Understandably, it has thus been described by a number of judges as ‘an extraordinary power of last resort’ (see eg Kenny J at [26] in the Full Federal Court decision in Davis).

Due to the large number of applications for intervention made to the Minister each year, guidelines were developed to assist with the administration of these cases. At issue in Davis was the 2016 version of these Ministerial Guidelines (2016 Guidelines).

The stated purposes of the 2016 Guidelines were (among other things) to explain the circumstances in which the Minister may wish to consider intervening in a case and the circumstances where the Department of Immigration should refer a case to the Minister. Importantly, the 2016 Guidelines explicitly stated that if a case did not meet these guidelines, the Minister would not wish to consider intervening in that case. This gave rise to debate in the Davis case about whether the Guidelines merely allowed department officers to assist and advise the Minister or whether they effectively delegated the decision-making power to departmental officers. A delegation would be problematic as the Migration Act clearly placed the decision-making power with the Minister personally.

The other question is how the guidelines interacted with the ‘public interest’ test in the legislation. This was important as it is a fundamental principle of public law that administrative guidelines must be consistent with any applicable legislation. To guide decision-makers, the 2016 Guidelines indicated that the Minister would generally only consider the exercise of the public interest powers in cases which exhibit one or more ‘unique or exceptional circumstances’. These circumstances included certain compassionate circumstances (for instance, those relating to the age and/or health and/or psychological state of the applicant) and a consideration of whether ‘exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia’. Importantly, clause 10.1 of the 2016 Guidelines directed the Department to finalise cases without referral to the Minister if the Department assesses the case as not having these unique or exceptional circumstances.

I will now turn to discuss how the High Court of Australia assessed the legality of these Guidelines in the recent case of Davis.

The Davis case on ‘public interest’ intervention

In the Davis case, the High Court considered two main issues: the legality of the 2016 ministerial guidelines used to allow the Minister to exercise their personal ‘public interest’ powers and the application of the unreasonableness ground of judicial review. For the purpose of this blog, my focus will be on the first issue.

In this case, the first appellant, Martin Davis, was a citizen of the United Kingdom who arrived in Australia in 1997 and had lived in Australia since then on various temporary visas. The second appellant, DCM20, was a citizen of Fiji who had lived in Australia since arriving with her family in the early 1990s. Each applicant went through various visa application processes and lodged several applications for ministerial intervention under s 351 of the Migration Act. In each case, a departmental officer decided that the applicant’s circumstances were not unique or exceptional, as required by the Ministerial Guidelines, and did not refer their cases to the Minister.

Ultimately, the High Court of Australia by a 6-1 majority, held that the decision of the departmental officer made in compliance with the 2016 Ministerial Instructions exceeded the executive power of the Commonwealth.  Whilst the majority judgement acknowledged the capacity of ministers to seek administrative assistance from their department in sorting applications, it also highlighted the importance of the personal nature of the power in s 351(3) of the Migration Act. Due to this, the Court held that was not possible to have an executive power which entrusted ‘the dispositive evaluation of the public interest in substituting a more favourable decision to an executive officer other than the Minister’ (para 29).

In my opinion, this was a correct interpretation of the use of the Guidelines in this case and represents an important ruling on the boundaries to be placed around the provision of advice and assistance by departmental officers in high-volume decision-making contexts. It has been well settled in Australia that a Minister can seek assistance and advice from officers of their Department in making their decisions under the law (see High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, 1986). However, I agree that such an approach cannot be applied to a statutory provision which clearly places the decision-making power personally with the Minister and in circumstances where the Guidelines give so much decision-making power to public servants.

The Davis case is therefore likely to have implications for the use of guidelines more generally across the public sector in Australia. Additionally, it provides an important case study for other jurisdictions such as the UK which also have a heavy reliance on the use of policy guidance and other non-statutory instructions in the migration context. In terms of administrative law, the only question that is unclear from the litigation is how the ground of unreasonableness applies to the exercise of non-statutory executive powers. It was not necessary for the High Court in Davis to answer that issue. Therefore, the question of whether the exercise of non-statutory executive power can be reviewed on the basis of legal unreasonableness remains unanswered.

The ‘national interest’ criterion for the grant or refusal of visas – The ENT Case

In the second case study – ENT v Minister for Home Affairs – the Court was called upon to consider the use of the ‘national interest’ criterion by the Minister for Immigration in relation to a refugee application. It should be noted that the ‘national interest’ criterion in the Migration Act is similar to the ‘public interest’ test discussed above in that it typically does not set out mandatory relevant considerations for its application. Rather, the ‘national interest’ is a broad and vague term.  The difference between the two statutory regimes is that the ‘national interest’ is specifically referred to in the objects clause of the Migration Act (s 4) which says that the object of the Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’. It is also significant to note that the term ‘national interest’ is typically used in the Migration Act as a factor in the assessment of visas exercisable by departmental officers, rather than applying to a special personal ministerial intervention power. However, the same concerns about the breadth and subjectivity of such criteria remain applicable.

Assessing the ‘national interest’ – ENT

In ENT v Minister for Home Affairs, the High Court was asked to consider the legality of a decision by the Minister to refuse the plaintiff’s application for a refugee visa (a ‘Safe Haven Enterprise Visa’). The plaintiff, a citizen of Iran had arrived in Australia by boat in 2013 and was later convicted of the aggravated offence of people smuggling under the Migration Act. As a result, the Minister refused the Safe Haven visa on the basis that it was not in the ‘national interest’ to grant a protection visa to a person convicted of a people smuggling offence. In doing so, the Minister relied on the national interest criterion in cl 790.227 of the Migration Regulations, which was not explicitly stated to be personally exercised by the Minister. It is important to note that, as accepted by the Minister during the litigation, the applicant had satisfied all the other criteria for the grant of the visa. Therefore, there had been a finding that Australia owed protection obligations to the applicant as a refugee. It was therefore contestable as to whether the Minister could then use the ‘national interest’ to refuse the visa.

The High Court, in a 4-3 majority opinion, held that the decision by the Minister in this case was unlawful. In doing so, the court applied established principles of statutory construction. The reasoning of the court involved a consideration of the interaction of a complex web of inter-connecting provisions of the Migration Act which are outside the scope of this blog. The important aspects to highlight are the following: Importantly, the majority noted that the national interest test at issue in the Migration Regulations ‘was not intended to be a trump card for the Minister to use to refuse the visa’ and ‘cannot be treated as if it were a personal dispensing power’ (para 106). In contrast, the minority judgement noted that

‘There can be circumstances in which the decision-maker, acting reasonably and consistently with the Act, can adopt and act on a political view that the grant of a protection visa to a particular applicant would not be in the national interest (para 43).

The decision therefore illustrates a marked difference in the approach to the proper remit of the ‘national interest’ test in the High Court and indicates the dangers in allowing Ministers to decide important visa decisions (such as those relating to refugee applicants) using this broad criterion. Although in the ENT case, the applicant was successful in his appeal, the judgement of the High Court was narrow (a 4/3 majority) and other cases may well not be decided favourably to the applicant as this one was.

What These Cases Show about Immigration Law and Judicial Review in Australia

The prevalence of broad ‘public interest’ and ‘national interest’ powers in the Australian Migration Act are unique to Australia. Indeed, no other country has such broad ‘public interest’ criteria for the grant or revocation of visas which form a central part of immigration decision-making as they do in Australia. For instance, under United States immigration legislation, there is a ‘national interest’ waiver but that is restricted to a waiver of the requirement of employer need for a particular skill. Thus, under section 203(b)(2)(B) of the Immigration and Nationality Act, the Secretary of Homeland Security may waive the requirement of a ‘job offer’ (namely, that the beneficiary’s services are sought by a U.S. employer) when the Secretary ‘deems it to be in the national interest’. Similarly, UK policy gives the Secretary of State the power to grant leave on a discretionary basis under a residual discretion provided in the Immigration Act 1971. However, it is designed to be utilised sparingly and must be in accordance with the UK Asylum Discretionary Leave policy.

However, whilst Australia’s use of ‘public interest’ powers are currently unique, the migration policies and laws of Australia are increasingly being replicated by other jurisdictions (notably the UK in its recent Illegal Migration Bill). Therefore, the two cases discussed in this blog should be of interest to an international reader.

There are a number of points to make about these two cases.

First, whilst the High Court of Australia was able to utilise statutory interpretation principles and administrative law to review these two sets of decisions in Davis and ENT, the presence of these broad discretionary powers in the Australian Migration Act remain of concern.

A fundamental principle of the rule of law is that the law should be clear, identifiable and consistent. However, the types of public interest and national interest provisions discussed in this blog tend to be subjective, imprecise and vague. That is, not clear and identifiable as the rule of law requires.  Indeed, some academic commentators have argued that the invocation of the national interest criterion by the Commonwealth government under the Migration Act 1958 ‘arguably undermines rule of law values in Australia’. It is therefore important that a court is able to review the exercise of these powers so as to be able to limit aspects of their arbitrary nature.

A former High Court Chief Justice, Robert French (writing extra-judicially), noted: ‘Judicial review is an inescapable feature of any society governed by the rule of law under a written constitution where the legislature and the executive have limited powers’. In Australia, the role of judicial review and the use of public law principles is particularly important as there is no federal Bill of Rights or Human Rights Act in Australia. Therefore, statutory interpretation and administrative law mechanisms are often relied upon by applicants to ensure that government decisions are made within power.

Second, these two cases should cause us to think about how discretionary exercises of power in the migration context and their dependence on the individual decision-maker assessing the compassionate circumstances of the applicant. Whilst there is obviously a place for the consideration of compassionate or other humanitarian circumstances in migration decision-making, there is a danger in placing such assessments at the centre of decision-making. Therefore, there should be a re-assessment of whether frequent use of open-ended discretion and references to the ‘public interest’ are appropriate ways in which to frame significant exercises of executive power.