Plaintiff S65-2019 v Minister for Immigration and Border Protection

The plaintiff, identified as S65 of 2019, sought judicial review of a decision made by the Minister for Immigration and Border Protection. The core of the dispute concerned the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation under section 501(3)(c) of the Migration Act 1958 (Cth). The matter came before Gageler J of the High Court of Australia.

The central legal issue before the Court was whether the Minister, in exercising the power under section 501(3)(c) to refuse to revoke a mandatory visa cancellation, was bound by the implied constitutional limitation that executive power must be exercised in a manner compatible with the continued existence of the judicial power of the Commonwealth. Specifically, the Court had to determine if the Minister's decision-making process, which involved considering the character grounds for cancellation, was susceptible to review for jurisdictional error in light of this constitutional constraint.

Gageler J reasoned that the Minister's power to refuse to revoke a mandatory visa cancellation under section 501(3)(c) was not a power to make a "policy decision" in the broad sense, but rather a power to make a decision that had the effect of continuing the detention of a non-citizen. His Honour applied the principle established in *Love* and *Thomsen*, which holds that executive power must be exercised in a manner compatible with the continued existence of the judicial power of the Commonwealth. Consequently, the Minister's decision was amenable to review for jurisdictional error, as a failure to exercise that power in a constitutionally compatible manner would constitute such an error. The Court found that the Minister had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby committing jurisdictional error.

The High Court ordered that the application for judicial review be granted, the decision of the Minister be quashed, and the matter be remitted to the Minister for reconsideration according to law.