Judicial Review of

Migration Decisions

Separation of Powers

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2 October 2001: Migration Legislation (Judicial Review) Act 2001 – repealed s 476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.

Court of King's Bench – Westminster (1808)

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.

High Court of Australia

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.

Federal Circuit Court

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).

Applications for judicial review of

migration decisions 1982-2012

Set aside rates for judicial review of

migration decisions 2011-2012

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.