Plaintiff S10/2011 v Minister for Immigration and Citizenship

The Full Court of the High Court of Australia heard four applications brought by various plaintiffs against the Minister for Immigration and Citizenship. The central dispute concerned the plaintiffs' requests for the Minister to exercise personal, non-compellable powers under the *Migration Act 1958* (Cth) to dispense with certain statutory requirements for visa applications. These requests followed unsuccessful merits reviews of their visa refusals.

The primary legal issues before the Court were whether the statutory provisions conferring these dispensing powers were apt to affect adversely the interests of a party seeking their exercise, and consequently, whether these provisions excluded any obligation on the Minister to accord the plaintiffs procedural fairness when considering their requests. The plaintiffs argued that the Minister was obliged to afford them natural justice or procedural fairness in deciding whether to consider, and then whether to exercise, these dispensing powers.

The Court rejected the plaintiffs' submissions that the ministerial guidelines issued in relation to the dispensing provisions constituted a decision by the Minister to consider exercising these powers, or that the processes followed under the guidelines were steps towards their exercise. The Court reasoned that the dispensing powers were of a special nature, not enlivened by mere request or circumstance, and were subject to a specific form of parliamentary accountability. The Court found no implied requirement that the guidelines be applied in a manner that would accord with the hearing rule aspect of procedural fairness.

In each matter, the application was dismissed with costs.