Preview: Judicial Review under the Migration Act 1958 (Cth) with Ben Zipser and Katherine Hooper
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How do you ascertain whether you have a decision or conduct that is reviewable by the courts under the Migration Act, the statutory provision under which the decision was made, and the statutory preconditions leading to that decision? How do you identify which court has jurisdiction to conduct the review, and the statutory provisions and applicable rules of court that govern the conduct of the review?
Join Benjamin Zipser (Barrister, 5 Selborne Chambers, Sydney) and Katherine Hooper (Barrister, Level 22 Chambers, Sydney) as they discuss judicial review under the Migration Act 1958 (Cth), including categories of decisions or conduct under the Act amenable to judicial review, definition and categories of jurisdictional errors, and tips on preparing judicial review applications for hearing.
Discussion Includes:
Topic 1: Categories of decisions or conduct under the Act amenable to judicial review
• Refusal decisions under s 65 of the Act
• Cancellation decisions under ss 109 and 116 of the Act
• Decisions of the AAT under Part 5 of the Act
• Decisions of the AAT under Part 7 of the Act
• Decisions of the IAA under Part 7AA of the Act
• Decisions made under ss 501 and 501CA of the Act
• Section 500 decisions by the AAT
• Decisions of the Minister under the dispensing powers or provisions in the Act
• Conduct of officers of the Department refusing to refer dispensing power requests to the Minister
• Applications to compel decision-makers to make a decision
• Applications to restrain the Minister from removing non-citizens from Australia
Topic 2: Definition and categories of jurisdictional errors
• What is a jurisdictional error?
• Denial of procedural fairness
• Misconstruing statutory provisions
• Failure to have regard to mandatory considerations, or having regard to impermissible considerations
• Overlooking evidence
• Legal unreasonableness in the exercise of a discretionary power or in fact finding affecting the ultimate state of satisfaction
• Illogicality
Topic 3: Tips on preparing judicial review applications for hearing
• Understanding the statutory scheme
• Carefully reading the written reasons for decision
• Intermediate findings
• Procedural steps taken by the decision-maker
• Potential weaknesses in the reasoning process in support of the intermediate finding
• Evidence and other materials which were before the decision-maker
• Transcripts of hearings or interviews
• Researching case law