KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24 (04 August 2021) (Edelman J)


Catchwords:


Administrative law – Migration – Application for Safe Haven Enterprise Visa (“visa”) – Where first delegate of Minister held delegation to make decision under s 65 but not s 501 of Migration Act 1958 (Cth) to consider plaintiff’s application for visa – Where referral process required first delegate to refer plaintiff’s application to “Visa Applicant Character Consideration Unit” for character checks – Where second delegate of Minister refused to grant visa on character grounds pursuant to s 501 – Where Administrative Appeals Tribunal set aside decision of second delegate and decided that discretion under s 501 should not be exercised to preclude plaintiff’s application for visa – Where Minister made personal decision under s 501A(2)(a) to set aside Tribunal’s decision and substitute decision to refuse to grant visa – Whether internal departmental processes and policies unlawful – Whether referral process unlawful – Whether public interest criterion 4001 in Migration Regulations 1994 (Cth) invalid – Whether Minister came under duty under s 65 to grant visa – Whether second delegate had power to make decision under s 501 – Whether Administrative Appeals Tribunal had power to set aside decision by second delegate – Whether Minister had power to make decision under s 501A(2)(a).

High Court – Original jurisdiction – Practice and procedure – Application for constitutional and other writs, injunctions, declarations, and other relief – Where plaintiff brought parallel proceedings concerning same underlying subject matter in original jurisdiction of High Court and by special leave from Federal Court – Where special leave application dismissed – Where plaintiff could have raised many of grounds in special leave application – Where grounds would have been dismissed – Whether plaintiff’s rights of appeal have been exhausted – Whether abuse of process – Anshun estoppel – Insufficient submissions to determine question – Application for extension of time to make further amendments – Last‑minute application – Inefficiency – Delay.

Words and phrases – “amendment application”, “binary decision”, “character test”, “criteria for the grant of a SHEV”, “duty under s 65”, “extension of time”, “last‑minute amendment application”, “lengthy delay”, “original decision”, “policy”, “public interest criterion 4001”, “referral process”, “refusal on character grounds”, “satisfaction”, “single decision”, “unlawful detention”, “validly prescribed criterion”.