Salemi v Minister for Immigration and Ethnic Affairs

Salemi v Minister for Immigration and Ethnic Affairs concerned an application for review of a decision by the Minister for Immigration and Ethnic Affairs to refuse to grant the applicant, Mr Salemi, a certificate of exemption from the requirement to hold a visa to enter Australia. Mr Salemi, an Italian national, had entered Australia in 1951 and had remained in Australia since that time, but had never held a visa. He sought a certificate of exemption under s 6A(1)(c) of the Migration Act 1958 (Cth) to regularise his status.

The central legal issue before the High Court of Australia was whether the Minister had a duty to grant Mr Salemi a certificate of exemption, or whether the Minister retained a discretion in the matter. Specifically, the Court considered the interpretation of s 6A(1)(c) of the Migration Act, which provided that a person who had entered Australia before the commencement of certain provisions of the Act and had remained in Australia continuously since that time, was not a prohibited immigrant if the Minister certified that he was a person of a class specified in the regulations. The question was whether the Minister was obliged to issue such a certificate if the applicant met the criteria, or if the Minister could refuse to do so.

The Court, by majority, held that the Minister retained a discretion and was not obliged to grant the certificate of exemption. Gibbs J, in his dissenting judgment, found that the language of s 6A(1)(c) imposed a duty on the Minister to grant the certificate once the conditions were met. However, the majority, including Mason, Jacobs, Murphy and Aickin JJ, interpreted the provision as conferring a power upon the Minister, exercisable at his discretion, to grant a certificate. They reasoned that the use of the word "certified" indicated a power rather than a mandatory obligation, and that the Minister was not bound to grant the certificate even if the applicant satisfied the specified class.

The High Court dismissed the appeal, upholding the Minister's decision to refuse the certificate of exemption.