judicial review of migration decisions - salvoslegal.com.au · what is judicial review? ......
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What is Judicial Review?
Judicial review is the determination by the courts of the legality of the exercise of
the decision-making power by primary decision-makers or tribunals.
At a Federal level, judicial review is conducted by the Judicature pursuant to
Chapter III of the Constitution.
Merits review is where a person or body other than the primary decision-maker
reconsiders the facts, law and policy aspects of the original decision and
determines what is the “correct or preferable decision”: Drake v Minister for
Immigration (1979) 46 FLR 409 at 419.
At a Federal level, merits review is conducted by the Executive pursuant to
Chapter II of the Constitution.
Parliament v the Courts
Pre 1994: Administrative Decisions (Judicial Review) Act 1977, s 5.
1 September 1994: Migration Reform Act 1992, Part 8 and s 476 Migration Act
1958 – similar to AD(JR) Act grounds but removed natural justice,
unreasonableness, relevant/irrelevant considerations, bad faith.
2 October 2001: Migration Legislation (Judicial Review) Act 2001 – repealed s 476
and introduced the privative clause in s 474:
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question
in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any
court on any account.
Parliament v the Courts
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
High Court unanimously held that the privative clause has no
application in cases where a decision is affected by jurisdictional
error.
Parliament v the Courts
Migration Litigation Reform Act 2005 (1 December 2005)
Federal Magistrates Court to hear most migration cases
Non-extendable time limits – 28 days + 56 days
Deterrence of “unmeritorious” applications – Part 8B
Migration Legislation Amendment Act (No. 1) 2009 (15 March 2009)
35 day time limit with power to extend
From Magistrates to Judges…
12 April 2013:
Federal Circuit Court of Australia Legislation Amendment Act 2012
Renaming (rebranding?):
Federal Magistrates Court to 'Federal Circuit Court of Australia'
Chief Federal Magistrate to 'Chief Judge'
Federal Magistrates to ‘Judge'.
No substantive changes, other than to forms
Current Avenues of Judicial ReviewFederal Circuit Court – s 476
Same as High Court under s 75(v) of the Constitution
No jurisdiction over:
“Primary decisions” (essentially where merits review available in MRT and RRT)
Decisions of AAT under s 500 (criminal deportation, character, exclusion from Refugees
Convention)
Personal decisions of Minister relating to character under ss 501-501C.
Federal Court – s 476A
Discretionary transfers from Federal Circuit Court under s 39 Federal Circuit Court of
Australia Act 1999 (e.g., matter of general importance )
Decisions of AAT under s 500 (criminal deportation, character, exclusion from Refugees
Convention)
Non-privative clause decisions from AAT.
High Court – s 75(v) of the Constitution
Current Avenues of Appeal
Federal Circuit Court to Federal Court:
Federal Court of Australia Act 1976, s24(1)(d)
Federal Court of Australia Act, s 25(1AA) – appeals to be heard by a single judge
unless a Full Bench of three judges is thought appropriate.
Federal Court to High Court:
Requires grant of special leave by the High Court – Federal Court of Australia Act 1976, s
33.
Jurisdiction of the High Court
Commonwealth of Australia Constitution Act
Section 75(v):
In all matters:
…
(v) in which a writ of Mandamus or prohibition or an injunction is sought
against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
Jurisdiction of the Federal Circuit Court
Migration Act 1958
Section 476(1):
the Federal Circuit Court has the same original jurisdiction in relation to
migration decisions as the High Court has under paragraph 75(v) of the
Constitution.
The Constitutional (Prerogative) writs
The decision will be quashed (certiorari)
The decision-maker will be ordered not to act on the decision, including anydeportation (prohibition).
The decision-maker will be ordered to re-determine the decision accordingto law (mandamus)
In practical terms:
The matter will be remitted to the delegate or tribunal to re-decide inaccordance with the law as stated by the Court.
The Court cannot grant a visa to the applicant.
There is no reason why the same result cannot ensue on remittal.
Jurisdictional/Non-jurisdictional Error
Jurisdictional error is where the decision maker goes outside the limits of the functions and powers conferred, or does something which he or she lacks power to do.
Non-jurisdictional error, or error within jurisdiction, is where the decision-maker incorrectly decides something which he or she is authorised to decide (sometimes called “authority to go wrong”).
See: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [162] (Hayne J); citing Craig v South Australia (1995) 184 CLR 163 at 177-178.
Jurisdictional error: Examples
Jurisdictional error is best illustrated by considering “species” of error: Aala at 141 [162]
Craig v South Australia (1995) 184 CLR 163 at 179 – jurisdictional error includes:
identifying a wrong issue/asking a wrong question/applying incorrect test
ignoring relevant material/relying on irrelevant material.
The list is non-exhaustive - Minister for Immigration v Yusuf (2001) 180 ALR 1, at [82]. It also
includes the following:
fail to consider claims: Dranichnikov v Minister for Immigration (2003) 197 ALR 389
breach of rules of natural justice: Kioa v West (1985) 185 CLR 550
fail to follow mandatory procedures: SAAP v Minister for Immigration (2005) 228 CLR 294;
[2005] HCA 24
actual or apprehended bias : Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Illogical/irrational/unreasonable: Minister for Immigration and Citizenship v SZMDS (2010)
240 CLR 611; Minister for Immigration v Li (2013) 297 ALR 225; [2013] HCA 18
What is not Jurisdictional Error?
Findings of fact/factual errors: Minister for Immigration; ex parte Cohen (2001)
177 ALR 473, per McHugh J at [36]
Credibility findings: Re Minister for Immigration; Ex parte Durairajasingham
(2000) 74 ALJR 405 at [67]
Findings which are “open” on the evidence: Minister for Immigration and
Citizenship v SZMDS (2010) 240 CLR 611
Findings which are “unfair” or “unjust”: Attorney General for the State of NSW
v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
Making an application to the FCC
Form of application on Federal Circuit Court website.
Parties are Applicant v Minister and (if necessary) Tribunal.
Must disclose any previous proceedings – s 486D Migration Act.
If by a lawyer, must certify “reasonable prospects of success” – s 486I Migration Act.
Must be accompanied by an affidavit – Federal Circuit Court Rules, Rule 4.05. For
migration proceedings the affidavit usually only attaches a copy of the decision under
review.
Filed within 35 days of the date of the decision, but can be extended “in the interests of the
administration of justice” – s 477 Migration Act.
Filing fee of $545 cannot be waived but can be reduced to $100 or deferred – see Rosson
v Tesoriero [2011] FCA 449.
Pre-hearing procedures in FCC
A “First Court Date” is noted by the Registry on application when filed – this is usually a few weeks after filing.
The applicant needs to serve a copy of filed (stamped) application on respondents as soon as possible after filing.
The First Court Date is a directions hearing at which timetable for evidence, amended application, submissions and final hearing is set.
For unmeritorious applications, a “Show Cause Hearing” may be listed at which the applicant is required to raise an arguable case for the relief claimed: see Federal Circuit Court of Australia Act, s 17A, and Federal Circuit Court Rules, Rule 44.12.
Amended application
It may be necessary to file an amended application where – because of a lack of time or
inadequate documentation – further issues come to light during the pre-hearing
procedures.
The amended application should carefully formulate the final grounds of the alleged
jurisdictional error.
It is possible to further amend an application – even during the hearing – with leave from
the Court. Leave will only be given to further amend if the respondent is not unduly
prejudiced.
Evidence in the FCC
The Minister is required to prepare file and serve a bundle of relevant documents.
The applicant will usually prepare file and serve a transcript of the Tribunal hearing.
New evidence should be filed and served by way of affidavit.
The applicant will rarely file any new evidence, since judicial review is limited to aconsideration of the lawfulness of the decision below. It is not open to lead new evidenceon the merits of the case which should have been made to the tribunal below or to invite thecourt to disagree with a factual conclusion of the tribunal.
New evidence may occasionally be required; for example:
To make good a contention that raises a relevant question of law; for example, inrelation to the proper service of the decision under review.
Where it is alleged that the tribunal’s processes have been vitiated by the fraudulentconduct of the applicant’s migration agent.
Hearings in the FCC
The matter proceeds by legal argument based on the amended application and written
submissions. There is no need for the client to be present unless the client is giving
evidence, which is rare.
The applicant or his/her counsel presents his or her case first, by tendering any evidence
and then presenting oral submissions.
The respondents’ counsel then presents his/her case.
The applicant’s counsel then presents a brief reply.
Decisions are usually reserved, although it is not uncommon to receive an ex tempore
(immediate) decision.
Matters rarely take more than half a day.
Costs
The usual order is that the Court will order that the unsuccessful party must pay the costs
of the successful party.
There is a scale of costs in Schedule 1, Part 2 of the Federal Circuit Court Rules. This is
normally followed but it is not mandatory and may be departed from – see Rule 44.15 (“the
Court may…order”).
Costs are usually in the region of $6,000-$8,000. Current scale costs for a proceeding
concluded at a final hearing is $6,825.
Lawyers or others (including migration agents) may be liable to personally pay the
Minister’s costs under s 486E of the Migration Act if they “encourage” unmeritorious
proceedings: see, e.g., SZFDZ v Minister for Immigration (2006) 155 FCR 482.
Applicants who receive an adverse costs order will have a “debt to the Commonwealth”
which they will need to address under PIC 4004 before any further visa can be obtained.