Lam v Minister for Immigration and Border Protection

The plaintiff sought a constitutional or other writ from the High Court of Australia to quash a decision made by a delegate of the Minister for Immigration and Border Protection on 3 April 2019, which refused the plaintiff a Temporary Graduate (subclass 485) visa. This decision followed an earlier refusal of the same visa application, which had been set aside by Nettle J of the High Court on 12 March 2019. The defendant, the Minister, filed a response, and the plaintiff filed a reply.

The central legal issue before the High Court was whether it was appropriate to entertain the plaintiff's application for a constitutional or other writ, given the existence of statutory review mechanisms. Specifically, the court had to determine if the plaintiff had exhausted available avenues of appeal or review, or if there were exceptional circumstances justifying the High Court's intervention in its original jurisdiction.

The court reasoned that both the initial and the subsequent decisions to refuse the visa were "Part 5 - reviewable decisions" under the Migration Act 1958 (Cth), meaning they were subject to merits review by the Administrative Appeals Tribunal. While the plaintiff's challenge to the first decision was made in the High Court because the Tribunal application was out of time, the plaintiff had subsequently lodged a valid application with the Tribunal to review the second delegate's decision. Citing established principles, the court held that a litigant must generally exhaust statutory rights of appeal or review before invoking the original jurisdiction of the High Court for a writ. As there were no exceptional circumstances presented to warrant deviation from this principle, and the plaintiff was actively pursuing review of the second decision in the Tribunal, the court found it inappropriate to consider the application. The court also rejected the plaintiff's submission for a stay of proceedings.

Consequently, the High Court dismissed the plaintiff's application for a constitutional or other writ with costs, pursuant to rule 25.09.1 of the High Court Rules 2004 (Cth).