AOA16 v Minister for Immigration

This matter concerned an application for judicial review of a decision by the Minister for Immigration. The applicant contended that the Minister's refusal to exercise the power under section 48B of the Act was made without considering a new claim advanced by the applicant. The central dispute revolved around whether the Minister, or departmental officers acting under ministerial guidelines, were obliged to afford procedural fairness to the applicant when considering the exercise of powers under sections 48B and 417 of the Act.

The court was required to determine whether the Minister's power to intervene under sections 48B and 417 of the Act, or the processes undertaken by departmental officers in relation to these powers, attracted a requirement to observe procedural fairness. Specifically, the court considered whether the Minister had a duty to respond to a request for consideration of the exercise of these powers, or a duty to consider any class of case for such exercise, independent of a request. The court also examined the effect of section 474 of the Act, which designates certain decisions as "privative clause decisions" that are final and conclusive and cannot be challenged, appealed against, reviewed, quashed, or called into question in any court.

The court reasoned that the powers conferred by sections 48B and 417 of the Act are discretionary and that the Minister is under no statutory duty to respond to a request for consideration of their exercise, nor is there a duty to consider any class of case independently. Consequently, when the Minister declines to embark upon such consideration, no question of procedural fairness arises. The court affirmed that the processes undertaken by departmental officers under ministerial guidelines, which involve acquiring information and categorising requests, constitute an executive function incidental to the administration of the Act and do not attract a requirement to observe procedural fairness. This reasoning was supported by reference to High Court decisions in *Plaintiff S10/2011 v Minister for Immigration and Citizenship* [2012] HCA 31 and *AAG15 v Minister for Immigration and Border Protection* [2016] HCATrans 131.

The court found that the applicant had not identified a denial of procedural fairness and did not disclose an arguable case that the determination was unreasonable or irrational to the extent of affording a distinct ground of review. Furthermore, the court noted that section 476(2) of the Act precludes judicial review of decisions where the Minister has not personally made a procedural or substantive decision. As the applicant's claim did not fall within the exceptions to section 474, the decision was considered a privative clause decision and therefore not subject to review.