December 11

Administrative Law Digest

 

Judicial Developments

Australia: The Federal Court of Australia dismissed an application for judicial review against a decision made by the Assistant Minister for Home Affairs to revoke a delegate of the Minister’s decision to overturn the originally mandatory cancellation of the Applicant-Appellant’s migrant visa. The Court held that the Appellant had failed to prove that the Assistant Minister had committed a jurisdictional error in the exercise of his powers under Section 501(3A) of the Migration Act 1958 (Cth) and that with regards to the four errors alleged by the Appellant, the Assistant Minister “considered the risk of harm to [the Appellant] if he is returned to Nigeria as one of the discretionary factors and he weighed it in the balance in reaching his conclusions”; the Assistant Minister did not misunderstand the law in exercising his power and that the Assistant Minister was under no legal duty to apply the rules of natural justice in overturning the decision of the delegate to the Minister.

(Full judgment of the Federal Court of Australia in Ibrahim v Minister for Home Affairs [2018] FCA 1592: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1592)

Australia: The Federal Court of Australia dismissed an application for judicial review of two decisions against the Commonwealth. The first decision was that the Commonwealth of Australia, refused to pay the applicant a sum of about $29 million. The effect of the second decision was to decline to revoke the first decision. The Court rejected the application on the basis that “the decisions do not alter or otherwise affect the applicant’s legal rights” such that the applicant’s “application for review of the decisions under the [Administrative Decisions (Judicial Review)] Act is incompetent”. The Court also held that “[T]he applicant has not identified any public duty that is unperformed by the Minister or the Secretary. Neither has the applicant pointed to any statutory provision under which the Minister or the Secretary can be compelled to “procure” the Commonwealth to pay the amounts claimed to be payable”.

(Full judgment of the Federal Court of Australia in Productivity Partners Pty Ltd v Commonwealth of Australia [2018] FCA 1562: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1562)

Australia: The Federal Court of Australia granted a stay of the decision of the respondent Department to cancel the applicant’s approval as an approved provider of child care services, subject to an internal review conducted by the respondent. The Court held that the balance of convenience favoured the applicant as cancellation of the applicant’s approval was “most likely to have a serious effect on the applicant’s business” so as to warrant interlocutory relief in favour of the applicant.

(Full judgment of the Federal Court of Australia in Galaxy Day Care Pty Ltd v Secretary, Department of Education and Training [2018] FCA 1549: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1549)

Australia: The Federal Court of Australia allowed an appeal by the Minister for Immigration and Border Protection against the decision of the Administrative Appeals Tribunal to set aside the Minister’s original decision to revoke the respondent’s Australian citizenship on the basis that the Tribunal erred in failing to take into account the fact that the respondent, upon cancellation of his citizenship, would immediately be taken to have been granted an ex-citizen visa under s 35(3) of the Migration Act. The failure to consider this mandatory relevant consideration was an error of law committed by the Tribunal.

(Full judgment of the Federal Court of Australia in Minister for Immigration and Border Protection v Egan [2018] FCAFC 169: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2018/2018fcafc0169)

UK: The Supreme Court granted permission to appeal and allowed the appeal of a bakery against a decision made against it by the Northern Ireland Court of Appeal concerning the bakery’s refusal to bake a cake for a homosexual man. The Attorney-General for Northern Ireland, which had become a party to the proceedings, had requested that the Northern Ireland Court make a reference to the Supreme Court concerning a devolution issue regarding the compatibility of Northern Irish legislation with the Convention for the Protection of Human Rights and Fundamental Freedoms, to which the NICA refused the request. Lord Mance held, on this preliminary procedural issue, that “the Attorney General for Northern Ireland’s request to the Court of Appeal to make a reference fell within the terms of paragraph 33 [of Schedule 10 to the Northern Ireland Act 1998], and the Court of Appeal erred in refusing to give effect to it”, thereby paving the way for the bakery’s substantive appeal.

(Full judgment of the UK Supreme Court in Lee v Ashers Baking Co Ltd and others; Reference by the Attorney General for Northern Ireland (Equality Commission for Northern Ireland and others intervening); Reference by the Attorney General for Northern Ireland (No 2) (Equality Commission for Northern Ireland and others intervening) [2018] UKSC 49: https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf)

UK: The Court of Appeal rejected an appeal against the Upper Tribunal (Immigration and Asylum Chamber)’s decision to dismiss the appellants’ claim for judicial review of the Home Secretary’s dismissal of their application to remain in the UK as legal migrants. Singh LJ, on behalf of the Court, held that the appeal, which had been brought under the guise of procedural unfairness, was really concerned with an issue of substantive unfairness, namely that the Home Secretary’s decision was unfair to the appellants. On that basis, Singh LJ concluded that there was nothing in the Home Secretary’s decision that was irrational so as to amount to procedural unfairness.

(Full judgment of the EWCA in Pathan and another v Secretary of State for the Home Department [2018] EWCA Civ 2103: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2103.html)

Singapore: The Singapore Court of Appeal dismissed a practicing lawyer’s appeal against the High Court’s rejection of his application for leave to commence judicial review proceedings against a decision of the Law Society’s Review Committee. The Court found that he had failed to even make out a prima facie case of Wednesbury unreasonableness on the Review Committee’s part before the High Court and that the High Court was correct to reject his application.

(Full judgment of the SGCA in Re Nalpon, Zero Geraldo Mario [2018] SGCA 71: http://www.singaporelawwatch.sg/Portals/0/[2018]%20SGCA%2071.pdf).

Recent Scholarship

Evan D Bernick, “Is Judicial Deference to Agency Fact-Finding Unlawful” (2018) 16:1 Georgetown Journal of Law & Public Policy 27 (provides an overview of the origins, development, and present state of fact deference and subjects fact deference to a constitutional critique. It concludes that in cases involving administrative deprivations of core private rights to “life, liberty, or property,” fact deference violates both Article III and the Due Process of Law Clause of the Fifth Amendment. It then proposes an alternative: de novo determination of questions of fact in Article III courts prior to any binding judgment that deprives people of core private rights.)

(Link to Bernick’s article: https://www.law.georgetown.edu/public-policy-journal/wp-content/uploads/sites/23/2018/05/16-1-Is-Judicial-Deference-to-Agency-Fact-Finding-Unlawful.pdf)

Emily S Bremer, “Designing the Decider” (2018) 16:1 Georgetown Journal of Law & Public Policy 67 (defines the scope of the statutory discretion in the Administrative Procedure Act and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to design the decider has benefits, it also imperils independent decision making, destroys government-wide uniformity, and undermines transparency).

(Link to Bremer’s article: https://www.law.georgetown.edu/public-policy-journal/wp-content/uploads/sites/23/2018/05/16-1-Designing-the-Decider.pdf)

Jeffrey A Pojanowski, “Revisiting Seminole Rock” (2018) 16:1 Georgetown Journal of Law & Public Policy 87 (provides an argument that the rule that reviewing courts must defer to agencies’ interpretations of their own regulations as per the 1997 US Supreme Court decision Auer v. Robbins appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock and that the Supreme Court should return to Seminole Rock.)

(Link to Pojanowski’s article: https://www.law.georgetown.edu/public-policy-journal/wp-content/uploads/sites/23/2018/05/16-1-Revisiting-Seminole-Rock.pdf)

Kate Aschenbrenner Rodriguez, “Eroding Immigration Exceptionalism: Administrative Law in the Supreme Court’s Immigration Jurisprudence” (2018) 86:1 University of Cincinnati Law Review 215 (explores recent developments in the US Supreme Court’s jurisprudence concerning immigration cases where the Court has been steadily, if not slowly, making inroads into the theory of immigration exceptionalism)

(Link to Rodriguez’s article: https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1244&context=uclr)

 

Current Events

Canada: The Supreme Court of Canada says it will hear a case involving a man who sued the Ontario Provincial Police and claimed permanent injury after a struggle in Caledonia, Ont. in 2009 (Link to article: https://globalnews.ca/news/4595124/caledonia-police-supreme-court/).

Canada: The Federal Court of Canada has ruled that cabinet ministers are not entitled to wait “as many years as they see fit” before responding to valid requests from the public. “Ministers of the Crown are typically very busy people,” Chief Justice Paul Crampton acknowledged in a recent immigration decision involving Morteza Tameh. “But they are not so busy that they can take as many years as they see fit to respond to requests made pursuant to validly enacted legislation, by persons seeking determinations that are important to them. At some point, they will have an obligation to provide a response.” Yet the public might take small comfort from the court’s ruling that a four-year delay in responding to a request for ministerial relief from an order of inadmissibility for permanent residence, is “at the outer limits of what is reasonable.” (Link to article: https://business.financialpost.com/legal-post/ministers-must-respond-to-requests-for-relief-within-reasonable-time-frame-court-rules).

India: The Supreme Court will hear a fresh PIL against the Rafale deal between India and France on Wednesday. A bench of Chief Justice Ranjan Gogoi and Justices S.K. Kaul and K.M. Joseph on Monday said it will hear the PIL filed by lawyer Vineet Dhanda, who is seeking a direction to the Centre to reveal details of the deal and the comparative prices during the UPA and NDA rule in a sealed cover to the apex court. The petition also sought information about the contract given to Reliance by Dassault. (Link to article: https://www.telegraphindia.com/india/sc-to-hear-plea-challenging-rafale-deal-on-october-10/cid/1671303)

India: The Kerala High Court is likely to hear a petition seeking a ban on entry of non-Hindus into the Sabarimala temple. A writ petition was filed in the Kerala High Court which said that the entry of non-Hindu and non-idol worshippers into Sannidhanam violates Rule 3 of the rules framed under Kerala Places of Public Worship (Authorization of Entry) Act, 1965 Act. (Link to article: https://www.legalindia.com/news/kerala-bjp-leader-approaches-high-court-to-ban-non-hindus-from-visiting-sabarimala-temple)

United States: The Supreme Court grappled on Wednesday with the scope of an immigration law that allows the government to detain without bond those living in the US legally with past criminal records. The case centers on whether detention must occur promptly upon an immigrant’s release from criminal custody or whether it can happen months or even years later when the individual has resettled into society. The statute says simply that the arrest can occur “when” the person is released from custody (Link to article: https://edition.cnn.com/2018/10/10/politics/supreme-court-immigration-detention/index.html)

United States: The Trump administration has asked the Supreme Court to block Commerce Secretary Wilbur Ross from having to face a deposition on the decision to reinstate a citizenship question on the 2020 census. The case arises from a lawsuit filed by New York and several other states challenging the decision to add the citizenship question. Ross has said publicly that he added the question to comply with the Voting Rights Act, but his critics charge that his real motive was to reduce the representation of immigrant populations. (Link to article: https://edition.cnn.com/2018/10/09/politics/us-census-citizenship-question-supreme-court-undocumented/index.html)