Lam v Minister for Immigration and Border Protection

The High Court of Australia considered an application for a constitutional writ brought by the plaintiff, Mr. Lam, against the Minister for Immigration and Border Protection. Mr. Lam sought to quash a decision made by the Minister's delegate on 18 March 2016, which refused his application for a Temporary Graduate (Graduate Work) (Subclass 485) visa. He also sought a writ of mandamus to compel the Minister to determine his visa application according to law. The application was significantly out of time, but the Court found a satisfactory explanation for the delay.

The central legal issue before the Court was whether the Minister's delegate acted with legal unreasonableness in refusing Mr. Lam's visa application on 18 March 2016, rather than waiting for the outcome of a skills assessment review by Trades Recognition Australia (TRA). Mr. Lam had applied for the visa on 30 November 2015, and a key criterion was a skills assessment by a relevant authority. While his initial assessment was unsuccessful, he lodged a review application with TRA on 4 March 2016, which was acknowledged and stated to be typically completed within 30 working days. The delegate refused the visa on 18 March 2016, despite Mr. Lam having uploaded the TRA acknowledgement letter on 6 March 2016, and only six days later, on 24 March 2016, the TRA review was successful.

The Court reasoned that the delegate's decision to refuse the visa without waiting for the TRA review outcome was legally unreasonable. The plaintiff's act of providing the TRA letter implicitly requested a deferral, and the delegate was aware from the letter that the review was pending and likely to take up to 30 days. The Court found no evidence that the delegate considered the possibility of waiting, nor that there were good reasons to proceed immediately. The delegate's failure to engage with the possibility of a short delay, especially when it could mean the difference between success and failure for the applicant, demonstrated a degree of arbitrariness rendering the decision legally unreasonable. The Court also rejected the Minister's argument that the applicant could rely on a successful review at a later merits review stage, stating that this did not excuse an initial unreasonable decision.

Consequently, the High Court allowed Mr. Lam's application for a constitutional writ. The decision of the Minister's delegate to refuse the visa application was quashed, and the Minister was ordered to determine Mr. Lam's visa application according to law.