Plaintiff S53/2019 v Minister for Immigration, Citizenship and Multicultural Affairs

The plaintiff, identified as S53/2019, sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the plaintiff's request for the Minister to exercise powers under sections 48B or 417 of the *Migration Act 1958* (Cth) to grant a visa. The core of the plaintiff's challenge was that this request was "finalised without referral" to the Minister, meaning the Minister did not personally consider the request. The matter was heard by Gageler J of the High Court of Australia.

The central legal issues before the Court were whether the Minister possessed the power to delegate the exercise of the power conferred by section 48B of the *Migration Act*, and whether a departmental officer, in finalising the request without referral to the Minister, was exercising a non-statutory executive power. Closely related was the question of whether the plaintiff was denied procedural fairness in the process by which their request for intervention was handled.

Gageler J reasoned that the power under section 48B of the *Migration Act* was a personal power of the Minister and could not be delegated. However, the Court found that the departmental officer's actions in finalising the request without referral did not constitute an exercise of a non-statutory executive power. Instead, the officer's role was to manage the administrative process of assessing whether a request for intervention met the threshold for referral to the Minister. The Court determined that the process followed did not deny the plaintiff procedural fairness, as the plaintiff had no statutory right to have their request referred to the Minister, nor a right to be heard by the Minister in relation to such a referral.

The amended application was dismissed with costs.