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Issue 64 Articles, Issue 64: Sept 2013

The Nature of Judicial Review of Migration Decisions

BY Hearsay
1442 Views
migration_intro.jpg
Sunday 3rd March, 2013
The Nature of Judicial Review of Migration Decisions

A discussion of the judicial review of migration decisions may appropriately commence with a short reminder of the core principles which underpin the nature of judicial review undertaken by the courts.

Firstly, as part of the Judicial arm of government, the courts do not undertake merits review of migration decisions. This is for the Executive arm of government; namely the Departmental decision-makers and the tribunals, the latter which exercise all the powers and discretions conferred on the primary decision-maker1 in order to determine whether the primary decision was the “correct or preferable” decision on the material: Drake v Minister for Immigration (1979) 46 FLR 409 at 419.

Secondly, the jurisdiction of the courts over migration decisions is narrower than the jurisdiction of the courts when undertaking the review of decisions made by other organs of the Executive, for example under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As far back as 1994 the AD(JR) Act grounds were replaced for migration decisions by somewhat similar statutory grounds in Part 8 of the Migration Act 1958 (Cth) (the Act)2, then in 2001 they were completely stripped out and replaced with the privative clause in s 474 of the Act.3 After the privative clause had been rendered ineffective in 2003 as a result of Plaintiff S1574 the Federal Government did not replace the statutory grounds in Part 8 of the Act, but instead in 2005 it extended the jurisdiction of the Federal Magistrates Court (now the Federal Circuit Court5) to cover the same original jurisdiction as the High Court under s 75(v) of the Constitution.6

As a result of these and other changes, migration practitioners no longer rely on the usual AD(JR) remedies, such as “breaches of the rules of natural justice” or “improper exercises of power”, as do other administrative lawyers. We look for “jurisdictional error” of the type which traditionally justified the grant of the prerogative writs of certiorari, mandamus, prohibition and injunction, now identified by their preferred term, “constitutional writs”.7

Since migration practitioners are, in practice, seeking the grant of one or more of the constitutional writs, the appropriate remedies are:

  • certiorari , to quash the decision8;
  • injunction (or prohibition), to order the decision-maker not to act on the decision, including any deportation; and
  • mandamus , to order the decision-maker to re-determine the decision according to law.

Most migration practitioners know from bitter experience that jurisdictional error is not an easy concept to pin down. Most of us know that jurisdictional error will lead to the grant of a writ, while non-jurisdictional error – or error within jurisdiction – will not lead to the grant of a constitutional writ. But how to define “jurisdictional error”?

Even the High Court has frequently observed the difficulty in identifying the boundary between jurisdictional and non-jurisdictional error9 and, for most part, practitioners have approached the task in the manner suggested by Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163]; that is, to identify species of error which are recognised as amounting to jurisdictional error. There are the several grounds of error identified in Craig v South Australia (1995) 184 CLR 163 at 179, being “identifying the wrong issue” or “asking the wrong question”, or “ignoring relevant material” or “relying on irrelevant material”. Then there is a lengthy, frequently overlapping and non-exhaustive10 list of other species of error which tend to ebb and flow according to case law and any amending legislation. These include:

  • a failure to follow mandatory procedures11;
  • a failure to consider an applicant’s claims as made12;
  • actual or apprehended bias13; and
  • illogicality and irrationality.14

Any migration practitioner worth his or her salt could name a dozen or more other species of jurisdictional error which have preoccupied the courts for a time then faded away, often never to be raised again.

On the other hand, the list of what is not jurisdictional error is well-known and relatively stable and include one or other of the following:

  • that the decision-maker found the applicant’s evidence to be “implausible” or otherwise not credible15;
  • that the decision-maker made a wrong finding of fact16;
  • that the decision-maker failed to give sufficient weight to an aspect of the applicant’s evidence17;
  • that the decision-maker made a finding that was “unfair” or “unjust”.18

In most cases a submission based on any of these grounds is likely to fall on fallow ground; some will earn a stiff rebuke from the bench.

Finally, it is relevant to remind ourselves precisely where to go to seek a remedy in migration law. Here, things have been made easier since the Migration Litigation Reform Act 2005 commenced in December 2005, which transferred the vast majority of migration decisions to the Federal Circuit Court. Pursuant to s 476(1) of the Act, that Court now has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

However it does need to be kept in mind that the Federal Circuit Court does not have jurisdiction over several classes of decision including:

  • “primary decisions”19, essentially where there is available merits review of the decisions in the MRT or the RRT, whether or not they were actually reviewed20– these must be taken directly to the High Court in its original jurisdiction under s 75(v) of the Constitution;
  • decisions of the AAT under s 500 of the Act21, and decisions made personally by the Minister under ss 501, 501A, 501B or 501C of the Act – these must all be taken to the Federal Court of Australia.22

The High Court of course retains its original jurisdiction under s 75(v) of the Constitution, as well as its appellate jurisdiction from the Federal Court by special leave, pursuant to s 33 of the Federal Court of Australia Act 1976.

CURRENT TRENDS I: THE STATISTICS

Current statistical trends in the judicial review of migration decisions have seen a gradual decline in the number of applications to the Federal Circuit Court for judicial review, although recently there has been a slight upturn. In general terms, since around 2003-2004 when there were almost 6,000 applications lodged in the Federal Court and the Federal Magistrates Court, the long-term trend in migration litigation has been downward. The actual number of lodgements in the Federal Magistrates Court reduced from 1,549 in 2007-2008, to 1,288 in 2008-2009, and a mere 880 in 2009-2010.23 The recent upturn to 1,464 applications in 2011-2012 has occurred primarily as a result of the High Court decision in Plaintiff M61/2011E and Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319, which effectively extended judicial review to offshore entry persons.24 The Federal Circuit Court has described this as a “significant increase”.25

FIG 1: APPLICATIONS FOR JUDICIAL REVIEW 1982-2010

Overall, migration cases are still a small part of the business of the Court, in 2011-12 making up just 1% of the workload, as compared with family law cases which made up 93% of cases.26 In the General Division of the Court, migration decisions made up almost 21% of the cases, second to bankruptcy cases which accounted for over 65% of the workload of the Court.27

The “success rate” in 2011-2012 for applications to the Federal Magistrates Court in relation to decisions of the MRT and RRT was as follows:

 Court applications  % Taken to judicial review  % Set aside  254  3.2%  11.9%

FIG 2: MRT/RRT CASES TAKEN TO JUDICIAL REVIEW 2011-201228

Immigration.jpgCURRENT TRENDS II: RECENT DECISIONS

The year from June 2012 to June 2013 has seen eight reported decisions made by the High Court in the migration jurisdiction, of which six were commenced in the Court’s original jurisdiction and two in its appellate jurisdiction. With the exception of probably the most interesting decision, in Minister for Immigration v Li (2013) 297 ALR 225, [2013] HCA 18, the more important decisions – as has become usual over the years – arose from the vexed issue of asylum seekers.

In addition there have been two highly relevant decisions of the Full Federal Court which have been handed down in the past few months.

High Court decisions

  • Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 86 ALJR 1019 (7 September 2012)

This case involved a series of applications brought in the original jurisdiction of the High Court challenging considerations by the Minister under ss 48B, 195A, 351 and 417 of the Migration Act 1958 (Cth) (the Act), each of which confers personal powers upon the Minister to intervene with respect to the granting of visas under the Act.29

Each of the plaintiffs, in effect, sought to extend to “onshore” visa applicants the decision of the High Court in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41, where the High Court had found that the personal power of the Minister under s 46A(2) of the Act to lift the bar to allow an “offshore entry person” to apply for a protection visa was to be exercised in accordance with the principles of natural justice.

However in Plaintiff S10/2011 the Court rejected the plaintiffs’ argument that in deciding whether or not to consider the exercise of the powers in ss 48B, 195A, 351 and 417 the Minister was obliged to afford procedural fairness, finding that the distinctive nature of the powers in the legislative scheme – including that each power was conditioned on antecedent processes for application and review which themselves attracted procedural fairness obligations30 – mandated against any such requirement.31

Indeed, with no statutory duty being enlivened by a request to consider the exercise of the Minister’s powers, the Court found that no question of procedural fairness arises even when the Minister declines to consider such a request or instructs his staff that certain classes of request or case are not to be submitted to him for consideration.32

  • Plaintiff M47/2012 v Director General of Security (2012) 86 ALJR 1372; [2012] HCA 46 (5 October 2012)

Plaintiff M47/2012 was another application brought in the original jurisdiction of the High Court. The plaintiff was a Sri Lankan national who had been found by a delegate of the Minister for Immigration to have a well-founded fear of persecution in Sri Lanka on the basis of his race or political opinion and was therefore a refugee. However the delegate refused the plaintiff’s application for a protection visa because he had been assessed by ASIO to be a risk to security and did not therefore satisfy Public Interest Criterion 4002 (PIC 4002), which was required to be satisfied under clause 866.225 in Schedule 2 to the Migration Regulations 1994 (Cth).

The application brought into focus the first leg of the so-called exception to non-refoulement in Article 33(2) of the Refugees Convention; namely, that the benefit of the non-refoulement provision may not be claimed by a refugee “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is”, and its relationship to the criterion in s 36(2) of the Act that an applicant for a protection visa must be a person to whom the Minister is satisfied Australia has “protection obligations” under the Refugees Convention.

In Plaintiff M47 the majority33 found that PIC 4002 was invalid as beyond the power to prescribe visa criteria, since the very existence of an adverse ASIO assessment required the Minister to refuse the visa, leaving no scope for the Minister to apply the discretionary power conferred by the Act to grant or refuse a visa. In practice, “…the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted…into the hands of ASIO”.34

Significantly – with particular reference to the subsequent decision of the Court in SZOQQ v Minister for Immigration (2013) 87 ALJR 541, [2013] HCA 12 – a majority also affirmed the interpretation of s 36(2) of the Act espoused in NAGV and NAGW v Minister for Immigration (2005) 222 CLR 161. This was that the criterion in s 36(2)(a) of the Act that an applicant be a person to whom Australia has “protection obligations” under the Refugees Convention is only concerned with whether the applicant answers the definition of “refugee” spelt out in Article 1 of the Refugees Convention, and Article 33 does not limit or qualify the reach of Article 1 of the Convention since it is premised upon the person first falling within the definition of a refugee under Article 1.35

Thus, a decision to refuse to grant a protection visa because an applicant is not a person to whom Australia has protection obligations is based on a failure to meet the requirements of Article 1, and not because the applicant is excluded by Article 33(2).36

A majority of the Court found that if an applicant is to be refused a protection visa because he or she is a danger to the security of the country under Article 33(2), the power to refuse such a visa is a discretionary power residing elsewhere in the Act; most probably in s 501 and on review by the AAT under s 500(1)(c)(i) of the Act.37

  • SZOQQ v Minister for Immigration (2013) 87 ALJR 541, [2013] HCA 12 (10 April 2013)

The decision of the High Court in SZOQQ v Minister for Immigration (2013) 87 ALJR 541, [2013] HCA 12 was an appeal from a decision of the Full Federal Court38, which had in turn had dismissed an appeal from a single justice of the Federal Court.39

The decision is brief for the modern era, consisting of 31 paragraphs by the newly-appointed Keane J, with which the other justices agreed. It is also somewhat opaque, his Honour accepting the appellant’s submissions without going into detail about the manner in which the decision had been arrived.

The plaintiff was a national of Indonesia who had lived in the West Papuan Province of Irian Jaya and had been very active in the Free Papua Movement. He had previously been granted a protection visa, but this had been cancelled under the “character test” in s 501 of the Act because he had been convicted of manslaughter following an assault on his de facto spouse. The Minister subsequently exercised the discretion under s 48B of the Act to allow the appellant to make a further application for a protection visa, and the appellant was thereafter found by a delegate to have a well-founded fear of persecution throughout Indonesia.

Crucially, the delegate then refused to grant a protection visa by reference to the second leg of the exception to non-refoulement in Article 33(2) of the Refugees Convention, finding that Australia did not have any protection obligations under s 36(2)(a) of the Act because the appellant had been convicted of a “particularly serious crime” and was a “danger to the community” of Australia.

Before the AAT on merits review40 and in the Federal Court the appellant had argued unsuccessfully that Article 33(2) required a decision-maker to exercise a discretion by balancing the danger faced by the appellant upon return to Indonesia against the danger that he represented to the Australian community. The AAT and the Court on each occasion found that no such balancing process was required, and that once the threshold of danger to the community had been reached the appellant was not owed any protection obligations under s 36(2)(a) and the visa must be refused.

However shortly prior to the application for special leave to appeal in the High Court, Plaintiff M47 was handed down, providing a fresh focus on the role of the exception to non-refoulement in Article 33(2). Plaintiff M47 had of course dealt with the first leg of Article 33(2) relating to danger to security. However if – as in Plaintiff M47 – the second leg of Article 33(2) relating to danger to the community involved the exercise of a discretion, in particular under ss 500-501 of the Act, then the issue arose as to whether it would relevant for the decision-maker to take into account the consequences of the return of the appellant to Indonesia.

The appellant submitted that the structure of s 65 of the Act required the Minister firstly, under s 65(1)(a)(ii), to consider whether the appellant met the criterion set out in s 36(2)(a) of the Act (and the relevant regulation41) that he be a person to whom Australia owes protection obligations – or, in accordance with Plaintiff M47 that he was a “refugee” within the meaning of Article 1 of the Refugees Convention.

Once this threshold had been met (as it had been met in the present case), the Minister was then required under s 65(1)(a)(iii) to consider whether the grant of a protection visa was not prevented – relevantly to the case – by s 501 of the Act on character grounds, which provided statutory recognition to the second leg of Article 33(2) to refuse non-refoulement on the grounds that the appellant was a danger to the Australian community. It was contended that this consideration involved the exercise of a discretion, and it was relevant when considering the exercise of that discretion to take account of the consequences of returning the appellant to Indonesia.

This appears, in essence, to be the argument that was accepted by the Court, although the decision made little reference to the appellant’s submissions and Keane J referred primarily to NAGV and NAGW v Minister for Immigration (2005) 222 CLR 161, which had been relied upon in Plaintiff M47.42

  • Minister for Immigration v Li (2013) 297 ALR 225, [2013] HCA 18 (8 May 2013)

The most interesting and possibly the most far-reaching of the recent decisions of the High Court – in terms of the scope of judicial review – is Minister for Immigration v Li (2013) 297 ALR 225, [2013] HCA 18.

The facts of Li were not very auspicious for the visa applicant, who was the respondent to the appeal, and the eventual outcome might be regarded by some migration practitioners as surprising.

The respondent had applied for a subclass 880 Skilled – Independent Overseas Student visa which required that as at the time of decision she had obtained a favourable assessment of her skills as a cook by Trades Recognition Australia (TRA). A delegate of the Minister had initially refused her application on the basis that a previous favourable assessment had been obtained on the basis of false or misleading information, in that the respondent had never been employed in one of her claimed restaurants. On review before the MRT the respondent applied to TRA for a further skills assessment but was unsuccessful, and by the time of the hearing before the MRT she had sought internal review by the TRA of her unfavourable assessment but had not yet received a decision from the TRA.

The respondent’s migration agent sought additional time from the Tribunal in which to obtain a review of the assessment by TRA, and this was refused on the ground – commonly relied on by the MRT – that she had been provided with enough opportunities to present her case and that the Tribunal was not prepared to delay any further.

Nevertheless, the Federal Magistrates Court43, the Full Federal Court44 and the High Court on appeal were unanimous in finding that the Tribunal had acted unreasonably in refusing the request to adjourn the review pending receipt of the further TRA assessment.

What makes Li interesting is the discussion by the Court of the scope of judicial review which, in a recent paper, Justice John Basten of the NSW Court of Appeal suggested “may mark the commencement of the next large step” in judicial review.45

Of particular interest are the joint reasons of Hayne, Kiefel and Bell JJ, which dusted off the principle of Wednesbury unreasonableness46 and arguably went beyond the concept of “irrationality” raised by the Court in Minister for Immigration v SZMDS (2010) 240 CLR 611. Significantly the majority applied unreasonableness to the procedures employed by the Tribunal in refusing the request for an adjournment, as opposed to the manner in which the Tribunal reached its decision to affirm the refusal of a visa. The joint reasons, along with French CJ47, approached the principles underpinning judicial review broadly with reference to Wednesbury unreasonableness48, referring also to the principle espoused in House v The King (1935) 55 CLR 499, that a discretion may be found to have miscarried merely on the ground that a “substantial wrong” has occurred.49

Of further significance, both the joint reasons and French CJ referred to the “proportionality principle”50, more commonly to be found in UK caselaw, which r equires a reviewing court “…to assess the balance which the decision maker has struck, not merely whether is within the range of rational or reasonable decisions”.51

In short, the analysis of the principles of judicial review in Li is a promising development which in Justice Basten’s view may offer a greater degree of flexibility52, albeit accompanied with what his Honour senses is “…a lowering of the barrier to judicial review of administrative decisions, except in the reasons of Gageler J”.53

  • Plaintiff M79-2012 v Minister for Immigration (2013) 298 ALR 1, [2013] HCA 24 (29 May 2013)

The most recent decision of the High Court was Plaintiff M79-2012 v Minister for Immigration (2013) 298 ALR 1, [2013] HCA 24. This was another application to the High Court under its original jurisdiction which was referred as a special case by Hayne J to a bench of five justices. The decision considered the implementation of the Minister’s recent policy of releasing offshore entry persons into the community by the grant of a subclass 449 Humanitarian Stay (Temporary) visa, which is one of two temporary safe haven visas introduced in 1999 primarily to enable the short-term entry of non-citizens from Kosovo.54 The visas can be issued for a very short period, and in this case the Minister issued the plaintiff with a subclass 449 visa for a period of seven days, upon the expiry of which he was granted a bridging visa to remain in the community.

The plaintiff’s visa was granted under s 195A of the Act which, as discussed above in relation to Plaintiff S10/2011, gives the Minister a discretion to grant a detainee any form of visa “in the public interest”. Section 91K imposes a bar on holders of temporary safe haven visas from applying for any other form of visa, and under s 91L the bar can be lifted by the Minister “in the public interest”.

The plaintiff claimed that the grant of the subclass 449 visa was made without power, since he did not meet the particular criteria for such a visa, and that the grant was made for an improper purposes, to bar him from applying for any other subclass of visa, including a protection visa.

A majority of the Court (French CJ, Crennan and Bell JJ; Gageler J agreeing) found that in the exercise of his power under s 195A the Minister was not constrained by the prescribed criteria for that visa, but could grant such a visa “in the public interest” in accordance with the power conferred by the provision. The majority found that the express purpose of granting such a visa, to impose a bar on the plaintiff on any further application for a visa, was

not improper and was capable of being a purpose which served the public interest.55 Hayne J in dissent considered that the Minister could not ignore the statutory requirements for a subclass 449 visa but did not consider it necessary to decide whether the grant of the visa had been for an improper purpose.56

Full Federal Court decisions

  • Minister for Immigration v SZQRB (2013) 132 ALD 269; [2013] FCAFC 33 (20 March 2013)

In Minister for Immigration v SZQRB the respondent, a Hazara from Afghanistan, had arrived at Christmas Island by boat where he was detained and unsuccessfully sought the Minister’s permission to apply for a protection visa. In February 2012 the Minister granted the respondent a short-term subclass 449 Humanitarian Stay (Temporary) visa and a bridging visa which enabled his release from detention. In March 2012, in preparation for his removal from Australia and return to Afghanistan, the Department completed an International Treaty Obligations Assessment (ITOA) which concluded that his removal to Afghanistan would not breach Australia’s non-refoulement obligations under the Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT) or the International Covenant on Civil and Political Rights (ICCPR).

In September 2012 the Minister made a decision, based partially on the ITOA, that the respondent’s removal to Afghanistan was consistent with Australia’s international obligations under the Refugee Convention, the CAT and the ICCPR. The Minister declined to consider the exercise of his personal discretion, including under s 91L of the Act, to allow the respondent to make a further protection visa application. In making the decision the Minister stated:

I think that the return of [SZQRB] to Afghanistan is consistent with Australia’s international obligations…

However, whether or not that view is correct, and irrespective of:

(1) whether or not any legal or factual error was made by the Independent Merits Reviewer;

(2) whether or not any legal or factual error was made by the officers who undertook the International Treaties Obligation Assessment or the Pre-removal clearance; or

(3) any other circumstance;

I have decided not to consider, or not to further consider, the exercise of any of my personal non-compellable public interest powers under the Act with respect to [SZQRB] (including, without limitation, my powers under ss 91L and 195A of the Act).

The respondent was successful before Federal Magistrate Riley in obtaining an interlocutory injunction to prevent his removal from Australia. On appeal, Tracey J continued the injunction and referred the matter to a bench of five judges in the Full Federal Court (Lander, Besanko, Gordon, Flick and Jagot J).

A majority (Lander and Gordon JJ, Besanko, Jagot and Flick JJ agreeing) dismissed the Minister’s appeal, finding that the ITOA was affected by jurisdictional error. Their honours found that the correct test in determining whether a non-citizen is entitled to Australia’s protection obligations under s 36(2)(aa) is – as with s 36(2)(a) — whether there is a “real chance” that the person will suffer significant harm were he to be returned to Afghanistan. The ITOA assessed the respondent’s claims as against whether it was “more likely than not” that he would suffer significant harm, which was not the appropriate standard. Their honours also found that the ITOA assessor had failed to accord procedural fairness to the respondent by bringing to his attention information that the assessor might rely upon for concluding that returning him would not breach Australia’s non-refoulement obligations under the CAT or ICCPR.

Flick J, at [369]-[391], was particularly scathing of the wording of the Minister’s decision, finding that the further decision to not exercise the powers conferred by s 91 “irrespective of” the “view” that he had previously formed was an attempt on the Minister’s part to avoid the prospect of jurisdictional error vitiating his decision, on one view suggested actual bias, prejudice and prejudgment, and denied the respondent procedural fairness “in the most fundamental way”.

On the basis of the relief granted by the High Court in Plaintiff M61/2011E and Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319, the majority made a declaration that the ITOA had not been made in accordance with the law and granted an injunction restraining the Minister from removing the respondent.

On one level SZQRB is an unexceptional decision, based on the uncontroversial grounds that the Minister had applied the incorrect legal test and failed to accord procedural fairness.

What makes the decision more interesting is the terms by which Minister Bowen attempted to insulate the decision from judicial review by the use of words which sought to render the decision lawful regardless of any error. This is probably the most transparent attempt by a Minister for Immigration to exclude the courts from any effective review of a migration decision since the ill-fated privative clause in 2001 sought to make all migration decisions “final and conclusive” under s 474 of the Act. As with the High Court in relation to the privative clause, the Federal Court in this case pushed back hard against such a transparent attempt to “deal it out” of the process.

The Minister has sought special leave to appeal from this decision and the matter is likely to be heard in December 2013.

  • SZGIZ v Minister for Immigration [2013] FCAFC 71 (3 July 2013)

In SZGIZ v Minister for Immigration [2013] FCAFC 71 the applicant, a Bangladeshi national, had applied for a protection visa in March 2005. His application was refused by the Department a week later, and that decision was affirmed by the RRT in April 2005. Thereafter the applicant made numerous requests to the Minister under s 417 of the Act and remained in Australia pending the determination of those requests.

However when in March 2012 the complementary protection provisions were introduced by s 36(2)(aa) of the Act, the applicant sought to lodge a fresh application for a protection visa based on his fear of facing “significant harm” upon return to Bangladesh. A delegate of the Minister rejected the application as invalid, based on s 48A of the Act which prevents a further application for a protection visa unless the Minister exercises his discretion to allow this under s 48B of the Act.

The applicant sought judicial review if that decision; however this was refused by Nicholls FM. On appeal the Full Federal Court (Allsop CJ, Buchanan and Griffiths JJ) found that s 48A, on its proper construction, did not operate to invalidate the second application for a protection visa. The Court found that the prohibition of any “further” application by s 48A meant that the provision limited further applications based upon the same criterion as an earlier application. Since the applicant’s earlier application had not been based on the complementary protection criterion, he was entitled to make a further application for a protection visa based on that criterion.

SZGIZ potentially has far reaching effects, at least for the period of time during which there remain in Australia any former applicants for protection visas which were finally refused prior to March 2012. Each of those unsuccessful applicants is no longer be prohibited by s 48A from applying for a further protection visa based on any fresh claims of “significant harm”.

Unsurprisingly, the Minister has lodged an application for special leave to appeal to the High Court57 so the issue has some way to go yet.

CONCLUSION

In the conclusion to his recent paper58 Justice Basten reflected on the once frequent complaint of State judges as to whether it was necessary to read “all these migration cases”, to which the standard answer is “Yes, they are where you find modern statements of administrative law”. His Honour observed that the burgeoning of modern administrative law has come primarily from the migration jurisdiction, noting that this is one jurisdiction where the removal of statutory rights of appeal and the implementation of a privative clause has “merely forced review applications into a different (and now constitutionally protected) procedural channel”, being the High Court, where there has been close scrutiny of the migration process and, no doubt, some inconvenient and unappellable decisions against the Government of the day.

His Honour’s solution for the Government is simple, but somehow I doubt whether we’ll see it any time soon:

…one may wonder why governments do not abandon such techniques and confer a general single right of merit review of administrative decisions, combined with statutory rights of appeal limited to questions of law.

In the meantime, we can all continue to sharpen our teeth at this, the cutting edge of administrative law.

Nicholas Poynder

Footnotes

  1. e.g., Migration Act 1958, s.349(1) (MRT).
  2. Migration Reform Act 1992 , comm. 1 September 1994.
  3. Migration Legislation (Judicial Review) Act 2001 , comm. 2 October 2001.
  4. Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
  5. On 12 April 2013 the Federal Magistrates Court changed its name to the Federal Circuit Court – see Federal Circuit Court of Australia Legislation Amendment Act 2012.
  6. Migration Litigation Reform Act 2005 , comm. 1 December 2005.
  7. The High Court’s preference to the use of this term is recorded in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 93 and Bodruddaza v Minister for Immigration (2007) 228 CLR 651 at [37].
  8. Although certiorari is not in fact referred to in the Constitution, it is granted by the High Court as an ancillary or incidental remedy: see, e.g., Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 90-91 [14] (Gaudron and Gummow JJ).
  9. See, e.g., Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] (Hayne J); Re Minister for Immigration; ex parte Miah (2001) 179 ALR 238 at 211 (Kirby J).
  10. That the list is non-exhaustive is noted by the High Court in Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82].
  11. e.g., SAAP v Minister for Immigration (2005) 228 CLR 294.
  12. e.g., Dranichnikov v Minister for Immigration (2003) 197 ALR 389.
  13. e.g., Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
  14. e.g., Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611.
  15. Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] (McHugh J).
  16. Minister for Immigration; ex parte Cohen (2001) 177 ALR 473, at 482 [36] (McHugh J).
  17. Minister for Aboriginal Affairs v Peko -Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).
  18. Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).
  19. Section 476(2)(a).
  20. Section 476(4)(a).
  21. Section 476(2)(b).
  22. Section 476A.
  23. Statistics taken from the relevant Annual Reports of the Federal Circuit Court, available at http://www.federalcircuitcourt.gov.au/.
  24. Annual Report 2011-12, p 54.
  25. Annual Report 2011-12, p 55.
  26. Annual Report 2011-12, p 36.
  27. Annual Report 2011-12, p 45.
  28. Source: MRT-RRT Annual Report 2011-12, p Table 3.2.
  29. Section 48B empowers the Minister to allow a further application for a protection visa while in the migration zone, s 195A empowers the Minister to grant a visa of any class to a person who is in detention under section 189, and ss 351 and 417 empower the Minister to substitute a decision of the MRT or RRT respectively for a more favourable decision, in the public interest.
  30. Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 86 ALJR 1019 at 1027 [29] (French CJ and Kiefel J), 1043 [121] (Heydon J).
  31. Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 86 ALJR 1019 at 1039 [100] (Gummow, Hayne, Crennan and Bell JJ), [53] (French CJ and Kiefel J), 1042 [118] (Heydon J).
  32. Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 86 ALJR 1019 at 1031 [50] (French CJ and Kiefel J).
  33. Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; (2012) 86 ALJR 1372; [2012] HCA 46 at [71] (French CJ), [180]-[181], [206] (Hayne J), [396]-[399] (Crennan J), [456]-[459] (Bell J).
  34. Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; (2012) 86 ALJR 1372; [2012] HCA 46 at [71] (French CJ). See also Hayne J at [221], Crennan J at [396]-[399] and Kiefel J at [456]-[459].
  35. Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; (2012) 86 ALJR 1372; [2012] HCA 46 at [23]-[24] (French CJ), [123], (Gummow J), [186]-[187] (Hayne J), [257] (Heydon J), [479] (Bell J).
  36. Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; (2012) 86 ALJR 1372; [2012] HCA 46 at [479] (Bell J).
  37. See, e.g., Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; (2012) 86 ALJR 1372; [2012] HCA 46 at [188]-[202], [213] (Hayne J), [441]-[444] (Kiefel J).
  38. SZOQQ v Minister for Immigration (2012) 200 FCR 174.
  39. SZOQQ v Minister for Immigration (2011) 124 ALD 1.; [2011] FCA 1237.
  40. Re BHYK and Minister for Immigration and Citizenship [2010] AATA 66.
  41. Migration Regulations 1994, Schedule 2, subclause 866.221.
  42. The appellant’s submissions are available on the High Court website under “cases heard” , at http://www.hcourt.gov.au/cases/case_s334-2012.
  43. Li v Minister for Immigration [2011] FMCA 625.
  44.  Minister for Immigration v Li (2012) 202 FCR 387.
  45. Judicial Review of Executive Action: Tiers of Scrutiny or Tears of Frustration?, presented to the Constitutional and Administrative Law Section of the NSW Bar Association by The Hon Justice John Basten, Judge of the NSW Court of Appeal, on 14 May 2013, at p 1.
  46. Referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
  47. Minister for Immigration v Li (2013) 297 ALR 225, [2013] HCA 18 at [63]-[74]
  48. Gageler J was more conventional in his analysis of Wednesbury unreasonableness, recognising that it involves a stringent test and will be a rare occurrence in Australia, while nevertheless finding at [113] that “this is a rare case”.
  49. Minister for Immigration v Li (2013) 297 ALR 225, [2013] HCA 18 at [75]-[76].
  50. Minister for Immigration v Li (2013) 297 ALR 225, [2013] HCA 18 at [30] and footnotes 81-[83] (French CJ), [72]-[74] (Hayne, Kiefel and Bell JJ),
  51. R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26 at 446 [27] per Lord Steyne. The proportionality principle had been raised by the appellant in SZOQQ – see appellant’s submissions at par 2.2 (Issue 1) but it was not picked up by the Court.
  52. Basten, op cit at pp 16-17.
  53. Ibid at p 14.
  54. See Migration Legislation Amendment (Temporary Sae Haven Visas) Act 1999 (Cth).
  55. Plaintiff M79-2012 v Minister for Immigration (2013) 298 ALR 1, [2013] HCA 24 at [41]-[42] ((French CJ, Crennan and Bell JJ), [126] (Gageler J).
  56. Plaintiff M79-2012 v Minister for Immigration (2013) 298 ALR 1, [2013] HCA 24 at [68] and [81].
  57. The title of the application is S137 of 2013 v Minister for Immigration.
  58. Basten, op cit, pp 18-19.