Plaintiff S11/2019 v Minister for Immigration, Citizenship and Multicultural Affairs & Ors

The plaintiff, who had previously been refused a Safe Haven Enterprise Visa, sought a constitutional or other writ in the High Court of Australia. The dispute concerned the decision of departmental officers not to refer the plaintiff's request for the Minister to exercise non-compellable powers under sections 48B or 417 of the *Migration Act 1958* (Cth) to the Minister for consideration. The Minister submitted that the plaintiff's application lacked an arguable basis.

The Court was required to determine whether the plaintiff had an arguable basis for challenging the decision not to refer his request for ministerial intervention. Specifically, the Court considered whether the powers under sections 417 and 48B of the *Migration Act* were applicable to the plaintiff's circumstances, and whether the assessment of his request by departmental officers constituted an impermissible delegation or a failure to afford procedural fairness.

The Court reasoned that section 417 of the *Migration Act* did not apply to the plaintiff because his visa application had been reviewed by the Immigration Assessment Authority, not the Administrative Appeals Tribunal, and there was no equivalent power for the Minister to substitute a decision of the IAA. Regarding section 48B, the Court held that while the Minister could not delegate the power, the assessment of requests against ministerial guidelines by departmental officers did not constitute an impermissible delegation of power. The Court further found that there was no obligation to afford procedural fairness in the assessment of a request under section 48B, distinguishing the present case from *Minister for Immigration and Border Protection v SZSSJ*. The Court also found the plaintiff's assertions regarding a failure to make inquiries according to law and a failure to apply guidelines to be unsubstantiated.

The plaintiff's application for a constitutional or other writ was dismissed with costs.