Desai v Keelty

The applicants in Desai v Keelty, who were seeking protection visas under the Migration Act 1958 (Cth), appealed against the decision of the delegate of the Minister for Immigration and Border Protection to reject their applications for such visas. The Refugee Review Tribunal also dismissed the applicants' appeal against the delegate's decision. The applicants then filed an application for a writ of mandamus to compel the Immigration Department to grant the visas which the delegate had already refused. The legal issues before the court were whether the court had the jurisdiction to issue a writ of mandamus to the Immigration Department to grant visas and whether the court could exercise judicial review over the decision-making process of the Minister or a delegate of the Minister.

The court held that it did not have the jurisdiction to entertain the applicants' case as the Migration Act expressly provides that visas are granted by the Minister or a delegate of the Minister and not by the Immigration Department. Even if the application had been directed to the Minister or a delegate, the court would not have been able to issue a writ of mandamus directing the Minister or the delegate how to exercise the power conferred on them under the Migration Act. This would be tantamount to judicial review of the decision-making process, which the Court does not have jurisdiction to conduct in relation to decisions made under the Migration Act. As a result, the application was struck out, and judgment was entered for the respondents against each of the applicants. The applicants were also ordered to pay the respondents' costs of the proceeding, including the respondents' cost of their notice of motion dated 20 April 2009.