Judicial Review: A Critical Analysis Of Minister For Immigration And Citizenship V Li Essay.

The Case of Minister for Immigration and Citizenship v Li

The following essay is founded on the principles of judicial review and their applicability in reference to seeking a certiorari after a decision by a statutory authority is deemed to have evaded common sense. The decision may allegedly have an error due to the process of decision making or the competence of the outcome as instructed by a decision maker granted powers by a statute.

In this case, Li was a cook who had applied for a skill independent student visa which was subject to approval by Trade Recognition Australia. Her initial application to Trade Recognition Australia was rejected by a delegate of the minister so she applied for a review to the Migration Review Tribunal. Li through her agent proposed to the latter authority that they should adjourn her assessment since she had reapplied for another assessment to the initial authority in hopes of getting the visa. The Migration Review Tribunal however failed to consider her plea and they rejected her application claiming that her timing was inappropriate for adjournment to be issued only for the Trade Recognition Australia to approve her assessment.

The issue to be deliberated on in court was whether the Migration Review Tribunal should have granted her the adjournment that she sought. The Judges held that her plight for the adjournment to the Migration Review Tribunal should have been considered on the basis of rationality and reasonableness.

The French CJ held that the Migration Review Tribunal should have thought of the high probability of the Trade Recognition Australia finalizing on Li’s assessment and hence the decision was arbitrary and hence unreasonable. He further explained that unreasonability can be reached if the decision maker contradicts the intents of the legislate power as they use the provisions of the statute to make a decision. In addition he also said that even though the statute provides an allowance for an authority or a person in authority to make a decision based on their knowledge of the statue and prowess in the field, the decision should not reflect arbitrary reasoning.

Judge Hayne, Judge Bell and Judge Kiefel JJ further expounded that unreasonableness is directly connected to rationality and hence any decision that is intelligibly unjustifiable is unreasonable in the eyes of the court.

Moreover Judge Gageler J propounded that any decision by an authority should be approached with the law in mind and should not abandon reason in its application. This was why the court ruled in favor of Li since it found the decision by the Migration Review Tribunal to be devoid of reason.

In addition the French CJ stipulated that the decision by the Migration Review Tribunal was contrary to the Migration Act 1958 that propagates that every decision made should encapsulate procedural fairness. In Li’s case however, the tribunal failed to uphold the sanctity of the statute hence its decision was challenged by the court. He also stated that the tribunal had also met the principles of unreasonableness stipulated by the Wednesbury case since the decision was lacking rationality.

Rationale

This approach by the involved bench took an interesting switch of law since Australian courts were skeptical of using Wednesbury elements of unreasonableness only. This is because the mentioned elements only speak on the outcome rather than the decision making process.

Australian courts have been inhibited from critiquing a decision based on its merits due to the doctrine of separation of powers that prohibits one arm of the government from involving itself in the matters of another arm unless where it is stipulated by law. This law however has an unreasonableness clause so as to prevent one arm from acting ultra vires hence offending the dignity of laws or policies. Hence all arms are allowed discretion in making decisions but are prompted to invoke common sense in the application of the law.

In the case of Prasad v Minister for Immigration the Australian courts applied the Administrative Decisions (Judicial Review) Act section 5(2) (g) that states for decision to be considered invalid it should:

1. It should be a decision that a rational person would not have made which is denoted by an overwhelming decision.
2. The conduct should be one that a sensible authority would not have committed or omitted to do.
3. Under scrutiny from an outsider, the decision should be one that lacks any intelligible justification.

In the case of Minister for Immigration and Border Protection v Singh, the court held that judicial review can be prompted by two instances which were enlightened by Li’s case. That where there are reasons for making a decision, the court will dissect the thinking and find it acceptable or not. However, where the court does not have the reasons for an authority that led to the decision made, the court looks at the outcome of the decision so as to deem it reasonable or not.

In a following case of Minister for Immigration and Border Protection v Stratton, the court vehemently expressed when the court can intervene that mirrored the Singh case ruling. In addition the court stated that it cannot institute a judicial review just because it would have come up with a different decision. The courts respect the discretionary powers provided to statutory authorities.

I do agree with the reasoning and findings of the court. This is because all bodies or commissions created by acts of parliament ought to be accountable for their decisions when they are both just and unfair. Even though the doctrine of separation of powers works to help each arm of the government to work effectively without undue influence.

In Li’s case, the procedure was well undertaken by the Trade Recognition Australia which allowed her to reapply for another assessment for her visa. However the Migration Review Tribunal delegate’s decision was not up to task because it did not reflect the procedural fairness impressed by the Migration Act of 1958.the bench’s decision to overrule the delegates reasoning by finding it unreasonable. The judgment was just and I’m glad it’s made a positive precedent.

Form 66

Rule 31.01(1)

Originating application for judicial review

No. 222 of 2022

Federal Court of Australia

District Registry: South Wales

Division: N/A

James Luffy and another

Applicants

Respondent

To the Respondent

The Applicant applies for the relief set out in this application.

The Court will hear this application, or make orders for the conduct of the proceeding, at the time and place stated below. If you or your lawyer do not attend, then the Court may make orders in your absence.

Implications of Minister for Immigration and Citizenship v Li

You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.

Time and date for hearing: [Registry will insert time and date]

Place: Federal Court of Australia at South Wales

The Court ordered that the time for serving this application be abridged

Date:       

The Applicant applies to the Court to
Review the decision of the Minister for Agriculture and Northern Australia that revoked the permit of Applicant, Mr James Luffy to engage in conduct necessary for, or incidental to, the recovery, storage or transport of underwater cultural heritage as defined in the Underwater Cultural Heritage Act 2018 (Cth) (‘the Act’).

The Applicant is aggrieved by the decision because:

1. It did not follow the due process and regard of the law
2. The maker of the decision considered irrelevant issues in making the decision

1. Bias
2. Fair hearing
3. Irrelevant considerations
4. Jurisdictional error
5. Lack of evidence

1. An order that quashes the decision of the Minister for Agriculture and Northern Australia to revoke the Permit granted to Mr Luffy to engage in conduct necessary for, or incidental to, the recovery, storage or transport of underwater cultural heritage as defined in the Underwater Cultural Heritage Act 2018 (Cth) (‘the Act’).
2. An order to reinstate the permit with immediate effect
3. Any other orders that the court may deem fit

The Applicant’s address for service is:

Place: South Wales

Email: [email protected]

The Applicant’s address is South Wales.

Date: 30^th February 2022

No. 222 of 2022

Federal Court of Australia

District Registry: South Wales

Division: N/A

Second Applicant: John Trafalger

Date: 30^th February 2022

Written Submissions

Jurisdiction is the wheel of the court and without it, the court is stripped of all its powers and cannot do anything beyond. Where the jurisdiction ends, the court’s authority ends. Before any court decides on any matters of fact or law, it has a very major duty to determine whether it has jurisdiction over the matter or not, and if it finds otherwise, it has to down its tools. The federal court of Australia has two types of jurisdictions, one conferred to it by the common law and the other conferred to it by statute, hence statutory jurisdiction. The court’s jurisdiction is broad, covering almost all civil matters and a weighty breadth of summary and indictable criminal matters. Section 39B (1A) c of the Judiciary Act, confers it with most of the civil jurisdiction, covering all matters in which a federal issue is raised as part of the claim or defence, and all matters which owe its claim to the existence of a federal statute. The court has the jurisdiction to hear judicial review applications, regarding decisions made by the officers of the common wealth. In the given scenario, the minister for Agriculture and Northern Australia is an officer of the common wealth and therefore the federal court has jurisdiction to hear a matter which comes up as a result of their decisions. Along with the common law jurisdiction, the court also has jurisdiction to hear matters arising from the Administrative Decisions (Judicial Review) Act 1977, which relates mostly to decisions made under commonwealth enactments but only those that relate to legality of the process rather than the merits of the case.

The issue of locus standi is a very important aspect in any area of the application of law. It has its origins in the law of equity, where a person who is not interested in the case was not allowed to raise it, to prevent unjust enrichment and the use and misuse of charitable trusts under the law of succession. Locus standi means that a person has a standing in the case, either as the applicant or a person of interest in the issue at hand, where only such persons are allowed under the law to bring claims to court. In the instance where there is no relation between the property or issue at hand and the person bringing it, the person lacks the locus standi to bring the claim before court. In Anderson v Commonwealth, the High Court of Australia held that ‘it would bring great evils to the society, if every member of the commonwealth was to be allowed to attack the validity of the commonwealth whenever they felt like. The law is clear to the effect that an individual does not have the right to bring such a claim unless they are most affected by the decision.” In this case, Mr Anderson, suing in his own private capacity, had brought a claim made between the state of Queensland and commonwealth, and which he was not a party. The court was quick to rule out the claim as ultravires and dismissed the claim, on the basis that Mr Anderson lacked the standing to bring up the matter. Section 3(4) of the Administrative Decisions (Judicial Review) Act highlights that an aggrieved person who may bring a cause of action under the act can either be a person whose interests are adversely affected by the making of the decision or a person whose interests are at stake as a result of the making of the decision by the commonwealth official and any person whose interests would be adversely affected by the conduct of the administrator or the failure or omission of the administrator. This provision emphasizes the common law position that only a person whose interests are at stake as a result of the decision, conduct, act or omission of the administrator can bring an action for judicial review. In the given scenario, Mr John Trafalgar is a close friend to Mr Luffy and has also invested in Luffy’s business by giving him the capital to buy the boat that Mr Luffy uses in the underwater recovery of heritage. In Australian Foremen Stevedores Association V Crone, the court made an important observation that a sufficient economic effect caused by the decision of the administrator confers a standing to bring up a claim under Judicial review. However, the question of degree is necessary to interrogate to what extent the decision affects the economic capacity of the person who wants to bring up the claim. In the given scenario, it has been properly illustrated that Mr Trafalgar has sufficiently invested monetarily in the business of Mr James Luffy, whom the decision to revoke the permit is made against. For this reason, it can be sufficiently said, applying the sufficient economic interest test, that Mr Trafalgar will be greatly affected by the decision of the Minister because his money that he has invested into the purchase of the boat will not be recovered. This gives Mr Trafalgar a sufficient standing to bring up the claim against the Minister for Agriculture and Northern Australia for the decision to revoke the permit.

Application of Wednesbury Unreasonableness Test in Australian Courts

The provision under Section 5(1)a stipulates that one may seek a redress in the form of an application for judicial review where the administrator, in making the decision, exhibits some form of bias against the affected person. The rule against bias requires that the decision maker makes the decision impartially, flowing from the principle that justice must not only be served, but also seen to be served. The content of this rule is not closed but depends on the circumstances of the action, and the test of a fair-minded observer or the common reasonable man test, whether they would conclude that there is presence of bias in the situation. Actual bias is quite difficult to prove because one must illustrate that the decision maker had a closed mind while making the decision and that the decision was unreasonable to a fair-minded person. However, apparent bias is easier to prove because it simply requires one to show that there is presence of bias in the decision. The impartiality requires in determining whether there is bias in a decision-making process by an administrator is based on whether the administrator had predisposition to favour either side of the parties in conflict or the parties involved. Justice Scalia laid down three tests for determining whether there is impartiality in a decision; the root meaning of impartiality, not having preconceptions against either party and having open mind while making the decision. Scalia held that in the second test of the lack of predisposition, it is very difficult to maintain the position, but then gave an option of having a reasonable predisposition, where, if the administrator has to hold a predisposition, it must not be prejudicial or favouring either side unreasonably. For instance, a person who has been charged for murder severally, is deemed to be a dangerous person and would therefore be treated as such when making decisions regarding him, even when he is not intentional in causing any trouble. In this case, the predisposition would be justified.

In the given scenario however, it is clear that the decision maker was biased against Mr Luffy, influenced by some personal interests and political affiliations of their own. It is evident from the minister’s instructions from the prime minister that he is siding with the prime minister when he tells the delegate, Mr Lee, that “remember the prime minister wants this to be solves as soon as possible”. The bias also emanates from the relationship between the prime minister and the minister, when she asks the minister to seriously consider revoking the permit and without further ado, the minister issues the instructions to “investigate” and revoke the permit. For the above reasons, the decision to revoke the permit was made with a lot of bias and therefore cannot stand.

The other key limb of natural justice is the right to a fair hearing. This stems down from the Latin principle of nemo judex in causa sua, that no man can be condemned unheard.  It states that no person can be punished without going through the due procedure for justice which entails a fair hearing before the administrator. This position is also enunciated under the procedural justice principle, which requires that the person be given adequate notice for hearing, sufficient time to prepare and present their case and notice of any fact or something that is not obvious to them. In Kioa v West, 

Conclusion

The provision under section 5(1)c highlights that a jurisdictional error occurs when a person who is not authorized to make a decision goes ahead to make the decision and as a result, this forms a ground for judicial review. In this case, a person acts beyond their power to make a decision that they are not authorized to by the law. This happens where a person who is authorized to make a decision, delegates the power to make the decision to someone else who has no power to make the decision. It can also happen where there is improper delegation, such that the person delegating the power to make the decision is not authorized to make the decision, but delegates to a person who is authorized to make the decision. In the given scenario, the minister is authorized to make the decision, but goes ahead to delegate the decision-making power to Lee, who has no authority. Lee is a new employee who has no experience in underwater recovery operations as he has only interned in fish farms. Further, Lee is not a Senior Executive Services employee at the time of the delegation and as therefore not qualified to act on behalf of the Minister in revoking the permit. The issue of jurisdictional error was addressed in the case of Craig v South Australia, where the court defined jurisdictional error as acknowledging the jurisdiction, yet going beyond what is expected of you by the jurisdiction or misapprehending the limits granted to you by the jurisdiction. Since the craig case, courts have been cautious on drawing the line between where the jurisdiction begins and where it ends in decision making. In Kirk v Industrial Relations Commission, the position of Craig of emphasized by putting out that, “it is neither necessary nor important to mark out the boundaries of jurisdictional error.” Once an administrator goes beyond the bounds of the law, or the limit provided to them by law, they cross the boundary and act ultra vires which is a conduct forming a ground for judicial review under the Act. The rule on improper delegation further indicates that a government official who is tasked with carrying out a particular task cannot delegate the task to a subordinate staff member or their junior because they do not possess the authority to stand in their shoes. Where this happens, the decision made by the subordinate does not carry the weight of the delegating party, and in that instance becomes null and void.

This is the most important ultra vires ground. As long as a party is able to show that a government body or an administrative entity took into account irrelevant considerations in coming up with the decision, the decision will be rendered invalid. In order to determine whether an administrator made irrelevant considerations, one needs to compare between the provisions of the law and the administrator’s decision and determine whether they rhyme. The administrator may either consider relevant considerations or take into account irrelevant considerations that are not related to the matter in fact.

In the given scenario the administrator considered the Instagram posts as the motivating evidence to revoke the permit, whereas they were not relevant to the matter at hand. The Instagram posts talked about colonialism and capitalism, and were not in any way affiliated to Luffy’s role or permit. Further, the Instagram posts were not something influential as to impact the decision of the minister or the administrator in deciding whether or not to revoke the permit and that he was just expressing himself outside the professional work in his social life. Taking into consideration the aspects of one’s social life or their past conducts, amounts to irrelevant considerations and cannot influence a decision maker’s mind in coming up with a decision.

A very common example is given of the teacher with red hair, where it is held that the teacher cannot be fired on the account of her having red hair because that does not in any way influence the discharge of her activities for which she is employed for. Considering the red hair as a factor for her conduct or insinuating that because she has red hair she cannot deliver sufficiently to the children, is an irrelevant consideration that an administrator should not take into consideration.

Similarly, the administrator considered the political affiliation as a factor for determining whether or not to revoke Luffy’s permit. The administrator further intimates that under the permit, Luffy was required to comply with all the reasonable requests of the government. However, from the annexed copy of the permit, Mr Luffy was only required to comply with reasonable requests of the government in relation to the underwater recovery operations. The requests by the prime minister in this case are not related to the underwater recovery operations but rather her personal and political convictions and Mr Luffy has no obligation to comply.

There was no sufficient evidence to support the decision making by the administrator in relation to the undercover recovery operations. The decision to revoke the permit granted to him is not supported by any tangible evidence to the effect highlighted in the Act or any agreement.