Douglas McDonald-Norman

‘The national interest’ is a broad concept, and ‘largely a political question’. Decision-makers ordinarily enjoy considerable discretion in deciding what is and is not in ‘the national interest’. But in its recent judgment in ENT19 v Minister for Home Affairs [2023] HCA 18, by a narrow majority of 4 to 3, the High Court identified and reiterated important limits to what factors may be relevant in deciding whether it is in the ‘national interest’ to grant a protection visa.

This post will set out the factual and procedural history to this matter and analyse the majority’s reasoning in ENT19. This post will then examine the potential implications of this judgment for the scope of the term ‘national interest’, and for ENT19 himself.

Maria O’Sullivan

The recent High Court decision in Davis v Minister for Immigration; DCM20 v Secretary of Department of Home Affairs contains some important statements on the reviewability of non-statutory ministerial guidelines. The key questions before the High Court were whether the Court could determine whether non-statutory executive action by federal departmental officers was unlawful on the ground of legal unreasonableness, and whether the guidelines used by officers to ‘screen’ visa applications to be presented to the Minister were valid.

Sanmati Verma

In its important judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203, the Full Court of the Federal Court found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation power at s 501(3A) of the Migration Act 1958 (Cth).

This post discusses the Full Court’s decision in Pearson, the immediate legislative response by way of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), and the implications of that response – particularly for the people taken back into immigration detention as a result.

Stephen McDonald

In this post, I offer a critique of one aspect of the reasoning of the majority judges in the Commonwealth v AJL20 (‘AJL20’), where it was held that AJL20’s detention was, at all times, lawfully permitted and required by the Migration Act, notwithstanding the failure of Commonwealth officers to comply with the duty to remove him as soon as reasonably practicable.

Essentially, the majority reasoning permits and requires detention by the executive to continue, even though the purposes for which detention can occur are constitutionally limited, and even though the detention exceeds what is reasonably necessary to give effect to the permissible purposes established by the Migration Act. I argue that, in construing the Migration Act in this way, the majority in AJL20 have implicitly given it an operation that authorises and requires continuing executive detention in excess of constitutional limits if officers of the executive have failed to comply with other duties imposed on them by the Act.