The High Court ruling could affect hundreds of similar visa cases handled by the Department of Home Affairs.
The current guidelines will now be revisited.
The High Court decision involved two individuals who sought to have the minister for immigration personally intervene in their cases and grant them permanent visas to remain in Australia. The second appellant, who was referred to as DCM20 in the case, is a citizen of Fiji who had lived in Australia on a series of temporary visas for almost 20 years.Her application for review to the Administrative Appeals Tribunal was also unsuccessful.
Mr Davis and DCM20 argued there were unique and exceptional circumstances that warranted intervention in their cases, pointing to their long periods of residence in Australia and the fact that Australian relatives were dependent upon their care.In both cases, a departmental officer decided their circumstances were not unique or exceptional, as required by the guidelines, and refused to refer their cases to the minister.
For instance, the minister has personal discretion under section 48B of the Act. This allows asylum seekers who have been refused a protection visa to apply for a subsequent visa if the minister considers it “in the public interest” to do so.
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