Administrative Law Digest
This post contains a roundup of recent developments (in and out of courts) and recent scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at firstname.lastname@example.org.
Judicial Developments in Administrative Law
Australia: The High Court recently dismissed an application which sought to review the Respondent’s (Ministry for Home Affairs) refusal of the Applicant’s partner visa application. The Applicant’s migration agents misstated to the Respondent and erroneously advised that the applicant had 35 days to apply to the Administrative Appeals Tribunal for review of the respondent’s decision. The Tribunal concluded that the application for review was filed out of time and thus, it had no jurisdiction. The High Court held that the Applicant did not have a reasonable prospect of proving that the agent’s misstatement was fraudulent, and that the misstatement did not have a material impact on the respondent’s decision.
Australia: The Federal Court of Australia dismissed an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”), which determined that the Minister for Immigration and Border Protection was correct to cancel the applicant’s visa on character grounds. The applicant was unable to establish that the Tribunal committed a jurisdictional error in its decision. The applicant relied on six grounds to mount his claim, with numerous grounds asserting, inter alia, that there was an error affecting the Tribunal’s conclusion that there was an unacceptable risk of the applicant reoffending for drug related offence. The Court rejected the argument on the breach of the rules of procedural fairness as the applicant was provided with reasons and statements for the non-revocation decision, and the Court also rejected arguments that the Tribunal made a jurisdictional error in dealing with the issues of rehabilitation and risk of reoffending, interests of minor children, community contribution and expectation, conclusions about likely effect of Mr Vo’s return to Vietnam, consequences of offending for visa status, and that the Tribunal’s decision was affected by apprehended bias.
United States: The Supreme Court of the United States vacated an Appeals Court decision and sent the case back for further review on a decision regarding the dusky gopher frog’s status as an endangered species within the Endangered Species Act 1973. The Chief Justice held that while the Court of Appeal considered the scope of designations of a “critical habitat”, it did not have the occasion to interpret the term “habitat”, nor the assessment of the Respondent’s administrative findings regarding Unit 1. It further held that the Court of Appeal must consider whether the Fish and Wildlife Service’s assessment of the cost and benefits of designating an area as a critical habitat and its resulting decision not to exclude Unit 1 was arbitrary, capricious, or an abuse of discretion.
New Zealand: The Supreme Court of New Zealand dismissed an appeal against the Court of Appeal’s decision allowing the applicant’s cross-appeal against the Secretary for Justice. The Court of Appeal concluded that the High Court was wrong not to strike out the challenge to a 2013 decision made to decline the applicant’s application for provision of legal aid. The Supreme Court concluded that the applicant did not exercise his statutory review rights at the appropriate time and the claim was now time-barred, accordingly dismissing the application for judicial review.
Canada: A Pakistani national is advocating for migrants being held in detention to be given access to “habeus corpus” and be entitled to challenge their imprisonment before a judge. At present, migrants that are non-Canadian nationals, are only able to challenge the detention through an immigration tribunal or a judicial review.
Canada: Ailon, a US firm which submitted a bid for the Canadian Surface Combatant program for providing Canada with warships, has filed a legal challenge in Federal Court seeking judicial review. Specifically, they wish to review the decision of the Canadian International Trade Tribunal (“CITT”) for issuing an order for the government to “postpone the award of any contract in connection with the procurement until the Canadian International Trade Tribunal determines the validity of the complaint.” In the judicial review application, Ailon argues that the Type 26 frigate falls short of the mandatory requirements that Canada requires for its warship and should thus be disqualified.
Malaysia: In what is believed to be the country’s first case filed against the Pakatan Harapan government after May 9, a group of farmers which commenced judicial review proceedings had their case dismissed. The group of farmers from the National Farmers’ Association claimed that the decision to suspend the group after an audit was conducted was unfair and contravened the Farmers Organisation Act. Specifically, the ministry’s non-response when the group filed an appeal was a breach of the minister’s statutory duty.
New Zealand: Convicted drug smuggler Karel Sroubek is now liable for deportation under Section 155 of the Immigration Act. This decision comes after the Immigration Minister stated that it was an error for Sroubek to have been initially issued a temporary visa and subsequently a residency visa. In other words, Sroubek should never have been issued a visa by the minister in the initial decision. Sroubek’s lawyer said that he is likely to appeal to the Immigration and Protection Tribunal for judicial review.
United Kingdom: An alpaca owner has successfully obtained leave to commence judicial review proceedings. The alpaca, imported from New Zealand, was ordered to be put down by the Department for the Environment, Food, and Rural Affairs after it tested positive for bovine tuberculosis. The owner’s argument, backed by the British Alpaca Society, is that the Department’s tests are inaccurate and that the alpaca is in good health, as seen from “new evidence”.
United Kingdom: The UK government’s handling of several increases in the pension age of women born in 1950s will be subject to judicial review. The campaign group BackTo60 argues that changes in pension age by governments is unfair on 1950s born women, with little time given to rearrange retirement savings. The group opined that “more could and should have been done to communicate the changes to women affected.”