KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned applications for special leave to appeal to the High Court of Australia. The applicant, KDSP (referred to as the applicant in M65 and plaintiff in M95), sought leave to appeal against decisions of the Full Court of the Federal Court of Australia. The respondent was the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The core of the dispute revolved around the Minister's power to overturn decisions of the Administrative Appeals Tribunal (AAT) and the proper construction of relevant provisions of the *Migration Act 1958* (Cth), particularly in relation to the timing of the exercise of such powers and the interplay between different sections concerning visa grants and refusals.

The High Court was required to determine whether the grounds of appeal raised questions of law of public importance, a prerequisite for granting special leave to appeal. Specifically, the applicant argued that the Minister's power to refuse a visa grant, even after a favourable AAT decision, was subject to an implied time limitation, and that this limitation should be interpreted as requiring action "as soon as possible" rather than merely within a "reasonable time." The applicant also contended that the Minister's discretionary power to refuse a visa on character grounds, particularly under s 501A of the *Migration Act*, should not operate independently of, or in a way that undermines, the scheme established by ss 47 and 65 of the Act, especially after the insertion of s 36C which codifies Australia's non-refoulement obligations.

The Court considered submissions regarding the statutory construction of the time limitations for the Minister's power and the interrelationship between various sections of the *Migration Act*. The applicant argued that a "reasonable time" analysis was insufficient and that the context of detention and the purpose of the Minister's power necessitated an "as soon as possible" interpretation. The applicant also submitted that the construction adopted by the Full Court in *Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20* failed to properly account for the legislative intent behind s 36C and the scheme of ss 47 and 65. However, the High Court ultimately found that the grounds of appeal did not have sufficient prospects of success.

Consequently, the High Court dismissed the application for special leave to appeal in M65 of 2020, with costs awarded to the respondent. In relation to M95 of 2020, which concerned an application for a constitutional or other writ, the Court ordered that the hearing be vacated and the matter be relisted before a single Justice. This would allow the applicant to revisit the application in light of the refusal of special leave in M65 and to address any outstanding interlocutory disputes, such as the provision of relevant documents by the Minister.