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KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 24

High Court of Australia
Edelman J

KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Judgment Date: 
4 August 2021

ADMINISTRATIVE LAW - Migration - Application for Safe Haven Enterprise Visa ("visa") - Where first delegate of Minister held delegation to make decision under s 65 but not s 501 of Migration Act 1958 (Cth) to consider plaintiff's application for visa - Where referral process required first delegate to refer plaintiff's application to "Visa Applicant Character Consideration Unit" for character checks - Where second delegate of Minister refused to grant visa on character grounds pursuant to s 501 - Where Administrative Appeals Tribunal set aside decision of second delegate and decided that discretion under s 501 should not be exercised to preclude plaintiff's application for visa - Where Minister made personal decision under s 501A(2)(a) to set aside Tribunal's decision and substitute decision to refuse to grant visa - Whether internal departmental processes and policies unlawful - Whether referral process unlawful - Whether public interest criterion 4001 in Migration Regulations 1994 (Cth) invalid - Whether Minister came under duty under s 65 to grant visa - Whether second delegate had power to make decision under s 501 - Whether Administrative Appeals Tribunal had power to set aside decision by second delegate - Whether Minister had power to make decision under s 501A(2)(a).

HIGH COURT - Original jurisdiction - Practice and procedure - Application for constitutional and other writs, injunctions, declarations, and other relief - Where plaintiff brought parallel proceedings concerning same underlying subject matter in original jurisdiction of High Court and by special leave from Federal Court - Where special leave application dismissed - Where plaintiff could have raised many of grounds in special leave application - Where grounds would have been dismissed - Whether plaintiff's rights of appeal have been exhausted - Whether abuse of process - Anshun estoppel - Insufficient submissions to determine question - Application for extension of time to make further amendments - Last-minute application - Inefficiency - Delay.

WORDS AND PHRASES - "amendment application", "binary decision", "character test", "criteria for the grant of a SHEV", "duty under s 65", "extension of time", "last-minute amendment application", "lengthy delay", "original decision", "policy", "public interest criterion 4001", "referral process", "refusal on character grounds", "satisfaction", "single decision", "unlawful detention", "validly prescribed criterion".

Migration Act 1958 (Cth) - ss 36, 47, 65, 501, 501A.

Migration Regulations 1994 (Cth) - Sch 2, Pt 790, Sch 4, cl 4001.