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Case [2023] HCAB 5 16 June 2023

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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2023] HCAB 5 (16 June 2023)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court's original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
ENT19 v Minister for Home Affairs & Anor	Constitutional Law
Hornsby Shire Council v Commonwealth of Australia & Anor	Constitutional Law
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton	Immigration

3: Cases Reserved

Case	Title
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore	Civil Procedure
Benbrika v Minister for Home Affairs & Anor	Constitutional Law
Crime and Corruption Commission v Carne	Constitutional Law
Jones v Commonwealth of Australia & Ors	Constitutional Law

4: Original Jurisdiction

Case	Title
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor	Constitutional Law
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs	Immigration

5: Section 40 Removal

6: Special Leave Granted

Case	Title
The King v Anna Rowan – A Pseudonym	Criminal Law
Xerri v The King	Sentence
Carmichael Rail Network Pty Ltd as Trustee for the Carmichael Rail Network Trust v BBC Chartering Carriers GmbH & Co. KG & Anor	Shipping and Navigation

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the June 2023 sittings.

Constitutional Law

ENT19 v Minister for Home Affairs & Anor

S102/2022: [2023] HCA 18

Judgment date: 14 June 2023

Coram: Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ

Catchwords:

Immigration – Refugees – Application for protection visa – Power of Minister under s 65 of Migration Act 1958 (Cth) to grant or refuse to grant visa – Where visa criterion in Sch 2, cl 790.227 of Migration Regulations 1994 (Cth) required Minister to be satisfied grant of visa in national interest – Where plaintiff convicted of aggravated offence of people smuggling – Where Minister personally refused to grant plaintiff protection visa – Where sole basis for decision that cl 790.227 not satisfied – Where Minister conceded all other criteria for grant of visa met – Where Minister did not exercise power to refuse visa under s 501 of Act – Whether cl 790.227 permitted Minister to refuse to grant visa solely on ground that not in national interest to grant visa to person convicted of people smuggling – Proper construction of cl 790.227 – Whether Minister's decision authorised by cl 790.227.
Statutes – Interpretation – Context – Construction of visa criterion in Regulations – Where Act of Parliament inserted criterion into existing Regulations made by Governor General.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: High Court Bulletin [2023] HCAB 5
Case: [2023] HCAB 5
Decision Date

CaseChat Overview and Summary

The High Court of Australia recently handed down a decision in the case of ENT19 v Minister for Home Affairs & Anor, which involved the interpretation of the Migration Act 1958 (Cth) and its associated regulations. The primary issue before the Court was whether a clause in the Migration Regulations 1994 (Cth) permitted the Minister for Home Affairs to refuse to grant a protection visa solely on the ground that it was not in the national interest to grant the visa to a person convicted of people smuggling, when all other criteria for the grant of the visa were met. The Court held that the clause in question did not permit such a refusal and that the Minister's decision to refuse the visa was therefore unauthorised by the Migration Regulations. The Court issued a writ of certiorari quashing the Minister's decision and a writ of mandamus commanding the Minister to determine the plaintiff's visa application according to law, with the defendants to pay the plaintiff's costs.

In another case, Hornsby Shire Council v Commonwealth of Australia & Anor, the High Court considered whether a notional Goods and Services Tax (GST) imposed on local governments by the Commonwealth through the Local Government (Financial Assistance) Act 1995 (Cth) was a tax on State property, contrary to section 114 of the Constitution. The Court concluded that the notional GST was not a tax on State property and answered a special case in the negative.

In the case of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton, the Court held that the Minister's decision not to revoke a visa cancellation was not vitiated by jurisdictional error, as the Minister had not taken into account an irrelevant consideration. The Court dismissed the appeal with costs.

In summary, the High Court of Australia has recently handed down decisions in various cases, addressing issues related to immigration law, constitutional law, administrative law, and judicial review. These cases demonstrate the Court's commitment to interpreting and applying the law in a manner that upholds the principles of the Constitution and ensures the protection of individual rights and interests.

Orders