Applicant S201-2003, Applicant S349-2003.doc; Ex parte - Re DIMIA

The applicants, identified as S201-2003 and S349-2003, sought judicial review of decisions made by the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA). The proceedings were brought ex parte, meaning the applicants were the sole parties before the court. The dispute concerned the lawfulness of DIMIA's actions in relation to the applicants.

The central legal issue before the High Court was whether the Minister for Immigration and Multicultural Affairs had a duty to afford procedural fairness to the applicants before making a decision to refuse to grant them a visa. This question arose in the context of the Minister's power to refuse a visa on the grounds that it was not in the national interest.

Gummow and Callinan JJ held that the Minister's power to refuse a visa on the grounds that it was not in the national interest was a discretionary power that did not attract a duty to afford procedural fairness. Their Honours reasoned that the power was one of executive government, exercised in the public interest, and that the nature of the power and the circumstances in which it was exercised did not give rise to an expectation of procedural fairness for the applicant. The court distinguished this power from those where a specific right or interest of an individual was directly affected by the decision.

The applications for judicial review were dismissed.