Plaintiff S122/2018 v Minister for Home Affairs

The plaintiff, a Sri Lankan citizen who arrived in Australia as an unauthorised maritime arrival, sought declarations and orders against the Minister for Home Affairs and the Secretary of the Department of Home Affairs. The dispute concerned the decision of a Departmental officer not to refer the plaintiff's requests under sections 48B and 417 of the *Migration Act 1958* (Cth) to the Minister for consideration. The plaintiff also sought orders directing the Secretary to assess his request for the Minister to exercise powers under these sections. The matter was heard in the High Court of Australia.

The legal issues before the Court were whether the Minister's powers under sections 48B and 417 of the *Migration Act* were delegable, and whether the assessment of the plaintiff's requests by Departmental officers, purportedly under non-statutory executive power, was beyond jurisdiction. Additionally, the Court considered whether the officer's decision not to refer the plaintiff's requests, and the process by which this decision was made, breached the requirements of procedural fairness.

The Court rejected the plaintiff's contentions regarding delegation and jurisdiction. It held that the powers under sections 48B and 417 are non-compellable and exercisable only by the Minister personally, involving both procedural and substantive decision-making stages. The Court affirmed that Departmental officers may undertake processes on the Minister's instructions to assist in the procedural decision-making stage, acting under non-statutory executive power, without attracting a requirement for procedural fairness. Such processes do not have a statutory basis, and therefore, the plaintiff's arguments concerning non-delegation and the nature of the officers' power were dismissed. The Court also found that as the Minister had not made a personal decision to consider the plaintiff's requests, the processes undertaken by the Department did not attract a requirement to afford procedural fairness.

The plaintiff's application was dismissed.