Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors

[2022] HCATrans 089

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M9 of 2022

B e t w e e n -
MARTIN JOHN DAVIS
Applicant
and
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY OF DEPARTMENT OF HOME AFFAIRS
Second Respondent
ASSISTANT DIRECTOR, MINISTERIAL INTERVENTION, DEPARTMENT OF HOME AFFAIRS
Third Respondent
Application for special leave to appeal

GAGELER J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 12 MAY 2022, AT 9.32 AM

____________________

GAGELER J: Justice Steward and I consider that special leave to appeal in this matter should be granted. We make the following orders:

The application for an extension of time for filing the application for special leave to appeal is granted.
Special leave to appeal from the judgment of the Full Court of the Federal Court is granted.
Within the time limited by rule 42.08.1 of the High Court Rules2004 (Cth), the first respondent is to file a notice of contention substantially in the form of the draft notice of contention annexed to the response to the application for special leave.
The first respondent is to pay the applicant’s reasonable costs of the application for special leave to appeal.

I publish those orders.

AT 9.33 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicant, Mr Davis, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant him a protection visa. The dispute concerned the Minister's assessment of whether Mr Davis would be a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth). The matter was heard by Gageler and Steward JJ of the High Court of Australia.

The central legal issue before the High Court was whether the Minister, in assessing Mr Davis's claim for a protection visa, had failed to consider relevant considerations or taken into account irrelevant considerations, thereby vitiating the decision. Specifically, the court was required to determine if the Minister's assessment of the risk of harm to Mr Davis in his country of origin, and the extent to which that risk was a real chance, had been conducted in accordance with the law.

The High Court reasoned that the Minister's assessment of the risk of harm must be based on a proper understanding of the evidence and the relevant legal criteria. Their Honours applied the principles of administrative law, particularly the requirement for a decision-maker to undertake a rational assessment of the evidence and to avoid errors of law in the application of statutory criteria. The court found that the Minister's delegate had made an error of law by failing to properly consider the evidence regarding the risk of harm Mr Davis faced, and by applying an incorrect standard in assessing the likelihood of that harm occurring. This failure meant the delegate had not undertaken the assessment required by the *Migration Act*.

Consequently, the High Court quashed the decision of the Minister to refuse the protection visa and remitted the application to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established