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Justice John Griffiths Justice John Griffiths

Justice John Griffiths - PowerPoint Presentation

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Justice John Griffiths - PPT Presentation

Federal Court of Australia 25 February 2017 KEYNOTE ADDRESS DEVELOPMENTS IN JUDICIAL REVIEW AFFECTING MIGRATION LAW COUNCIL IMMIGRATION LAW CONFERENCE Original jurisdiction and current high volume of cases concerning visa cancellations on character grounds ID: 603988

2016 review judicial mibp review 2016 mibp judicial fcr fcafc fca migration jurisdictional 2015 proportionality law legal 2013 high credibility fairness act

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Slide1

Justice John GriffithsFederal Court of Australia25 February 2017

KEYNOTE ADDRESS: DEVELOPMENTS IN JUDICIAL REVIEW AFFECTING MIGRATION

LAW COUNCIL IMMIGRATION LAW CONFERENCESlide2

Original jurisdiction and current high volume of cases concerning visa cancellations on character grounds

Constitutional challenges concerning visa cancellations relying on protected information

Some statistics and internal processes concerning migration appeals

THE FEDERAL COURT’S MIGRATION CASELOADSlide3

The shift from ADJR Act judicial review to review for jurisdictional errorDoctrine of jurisdictional error demands more from legal advisors and courts

Need for close attention to relevant legislative framework and surrounding circumstances

Danger of slogans and formulas

SOME KEY THEMESSlide4
Slide5

The Constitutional settingKey features of Kirk

Primary steps in identifying jurisdictional error

Post-

Kirk

approach illustrated by

SZRKT

(2013) 212 FCR 99 and

Goundar v MIBP

[2016] FCA 1203

THE DOCTRINE OF JURISDICTIONAL ERRORSlide6

High Court decision in Minister v Li (2013) 249 CLR 332

Obiter remarks concerning disproportionality

Post-Li

clarification of review for unreasonableness

MIBP v Singh

(2014) 231 FCR 437

MIBP v Stretton

(2016) 237 FCR 1

UNREASONABLENESS IN THE LEGAL SENSESlide7
Slide8

History of proportionality in testing validity of subordinate legislationProportionality in Constitutional reviewMcCloy v New South Wales

(2015) 325 ALR 15 and

Murphy v Electoral Commissioner [

2016] HCA 36

Proportionality in judicial review of administrative action

Significance of

McCloy

at [3]

Stretton, Lobban

[2015] FCA 1361 and

Renzullo

[2016] FCA 412

PROPORTIONALITYSlide9

The difficulty of applying proportionality to a power which does not have a single purpose, e.g. s 501 of the Migration Act 1958

The

future role of proportionality in Australian administrative lawSlide10

Scope for judicial review of adverse credibility findingsThe danger of aphorisms: credibility is a matter par excellence for the review tribunal

Full Court’s decision in

CQG15 v MIBP [2016] FCAFC

146

Importance of the distinction between not accepting evidence and a finding of fabrication or lying

JUDICIAL REVIEW AND ADVERSE CREDIBILITY FINDINGSSlide11

The obligation to provide a fair hearing for all litigantsTemptation to cut corners in high volume jurisdictions

How to avoid entering the fray while according procedural fairness:

SZRUR v MIBP

[2013] FCAFC 146; 216 FCR 445;

MZAIB v MIBP

[2015] FCA 1392;

MZAGE v MIBP

[2016] FCA 630;

Shrestha v Migration Review Tribunal

[2015] FCAFC 87; 229 FCR 301;

ALA15 v MIBP

[2016] FCAFC 30;

AMF15 v MIBP

[2016] FCAFC 68; 241 FCR 30

PROCEDURAL FAIRNESS AND LITIGANTS IN PERSONSlide12

Judicial review dynamic and not staticChallenges for legal practitioners and judges alike

Courts’ gratitude to pro bono practitioners

CONCLUSION