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
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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 THEMESSlide4Slide5
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 SENSESlide7Slide8
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