Plaintiff S198/2018 v Minister for Home Affairs & Ors

The High Court of Australia heard an application for an order to show cause filed by a Sri Lankan citizen, the plaintiff, against the Minister for Home Affairs and other defendants. The plaintiff, an unauthorised maritime arrival, had previously had his Protection (Class XA) visa application refused and subsequent appeals dismissed. He subsequently requested the Minister to exercise non-compellable powers under sections 417 and 48B of the Migration Act 1958 (Cth) to grant him a visa or permit a further application. The Department of Home Affairs responded to these requests, stating they did not meet the Minister's guidelines for referral. The plaintiff then sought writs of certiorari and mandamus, an injunction, and declarations concerning the refusal to refer his requests to the Minister.

The legal issues before the Court were whether the assessment of the plaintiff's requests by departmental officers constituted an impermissible delegation of the Minister's powers, whether this assessment was an exercise of non-statutory executive power, and whether procedural fairness was owed to the plaintiff during this assessment process. The plaintiff also contended that the third defendant failed to make inquiries according to law and procedural fairness.

The Court dismissed the application, reasoning that the Minister's powers under sections 48B and 417 of the Migration Act are non-compellable and do not require personal exercise. It was held that the assessment of whether a case meets Ministerial guidelines for referral is not an impermissible delegation, but rather a permissible screening mechanism established by the Minister, as affirmed in *Plaintiff S10/2011*. The Court further found that this assessment process, while an executive function, could not be divorced from the authority conferred by the Act and did not engage the Minister's powers. Crucially, the Court held that the process of considering a request for Ministerial intervention does not require the observance of procedural fairness, including a duty to make inquiries.

Consequently, the application for an order to show cause was dismissed as it disclosed no arguable basis for the relief sought. The plaintiff was ordered to pay the defendants' costs.