LAWS2006 Administrative Law assignment question

Q.1 In January 2025, federal Parliament amended the Migration Act to insert Section 60 422B, which reads as follows: "Marriages to be long-term.

(1) A spousal visa must not be granted if the two prospective spouses have known each other for less than five years.

(2) However, subsection (1) does not apply if the Minister [for Immigration] is satisfied that the two prospective spouses are likely to remain married until one of them dies."

Ans- 

ALAN, a 32-year-old Australian citizen who resides in Perth, and MASHA, a 29-year-old resident of the foreign nation of Valyria, filed for a spousal visa in May 2027. Masha has never been to Australia, and Alan has never been to Valyria, but they connected online in 2009 on a MetalOaf fan forum and have since spent "countless" (in Alan's words) hours communicating via emails, chat, and video chats. The Immigration 85 Minister personally signed a letter advising Alan that his application had been denied due to Article. 422B(1) in June 2027. The Government holds the opinion that even significant online contacts alone cannot meet the Act's requirement that potential spouses must have "knew each other." Therefore, the five-year term does not start until you and your future spouse have actually met.

PROSPECTIVE GROUNDS FOR CHALLENGE IN COURT OF LAW

1. Procedural Fairness: When making decisions that affect "the rights, interests, position, or legitimate expectations of another," decision-makers have a responsibility to treat all parties fairly throughout the decision-making process. There would be no injustice when the individual impacted knew what he was required to show to the decision-maker and was given the opportunity to do so,' the court ruled in WACO v. Minister for Immigration, Multicultural, and Indigenous Affairs[1].

2. Lack of Evidence: Although factual conclusions are generally not subject to judicial scrutiny, they may be when they constitute a legal mistake. Although "there is no error of law merely in the making of an erroneous judgement of fact," a factual determination will constitute an error of law if it is not supported by any probative evidence that is pertinent to the case and makes sense[2]. Both requirements may be said to be satisfied in this instance. Regarding (a), the regulation states that A “spousal visa must not be granted if the two prospective spouses have known each other for less than five years" which is a necessary prerequisite to the visa application being granted.

3. Unreasonableness: The conventional standard for determining whether a judgement is irrational is whether any reasonable authority could have reached it (Wednesbury unreasonableness)[3]. The exam is still rigorous, and it will not allow for a merits review. Simply disagreeing with the decision-thinking maker's is inadequate to establish unreasonableness; this standard is only applicable in the most severe cases, such as where the evidence could only support one conceivable conclusion and was unreliable for any other result. The criteria is whether the conclusion is "one at which no sane or logical decision maker could arrive on the identical facts," if the decision-"satisfaction" maker's is the jurisdictional fact.[4]

Thus, according to s 422B(1), the Government holds the position that even significant online contacts alone cannot meet the Act's requirement that potential spouses "know each other." Therefore, the five-year term does not start until your prospective fiancée and you have actually met in person. However, Alan and Masha met online at a MetalOaf fan forum in 2009, and since then, 80 have spoken via emails, chat, and video calls for "countless" (Alan's words) hours. Therefore not acknowledging their togetherness and the relationship as such goes against the fundamental principles of right to life and personal liberty.

Q.2 Suppose the letter had been signed not by the Minister personally but by one 95 Jane Smith, whom an inspection of the Commonwealth Gazette shows to be the Secretary of the Immigration Department, to whom the Minister has purported, by instrument, to delegate
unctions under s 422B.

Ans- 

The case scenario contemplates that the letter was not physically signed by the Minister, but rather by Jane Smith, the Secretary of the Immigration Department, whom the Minister had allegedly delegated the duties under section 422B through an instrument, according to a review of the Commonwealth Gazette. However, according to s 422B(1), the Government holds the position that even significant online contacts alone cannot meet the Act's requirement that potential spouses "know each other." Therefore, the five-year term does not start until your prospective fiancée and you have actually met in person.

PROSPECTIVE GROUNDS FOR CHALLENGE IN COURT OF LAW

1. Principles of Natural Justice: Where the judgement has been made in violation of natural justice principles, a review order may be requested. The hearing rule and the bias-free rule are the two principles of natural justice. The latter has an extremely high bar. Although it may be claimed that the Minister had already developed opinions on the subject, it is doubtful that this would invalidate their judgement.[1] According to the hearing rule, the party who will be impacted by the decision must have a chance to be heard. This includes an opportunity to identify the pertinent concerns and knowledge of the kind and substance of damaging information. In Saeed v. Minister for Immigration and Citizenship[2], the High Court determined that the hearing rule applied to offshore visa applicants and that the Minister was required to give the person who would be impacted by the judgement a chance to respond to the opposing evidence.

2. Unconscionability in exercise of powers: If a decision was made improperly using the authority granted by the law that it was intended to be made under, there may be grounds for reconsideration. These incorrect uses of authority include I taking into account unrelated factors, (ii) omitting to examine pertinent factors while using a power, and (iii) acting unreasonably.[3]

Thus in Alan’s case, they have relied on establishing the authenticity and strength of their relationship based on the communications and interacteions between the two over a period of five years in a long distant mode. However, the principles of delegation in Administrative law applies, which states that to execute, implement, and manage the requirements of the main authority, delegated legislation is often a form of law created by the executive authority in accordance with the authorities granted to them by the primary authority. Thus, the decision is legally justified.

Q.3 Suppose the subsection 422B(2) instead read:"However, the Secretary of the Department of Immigration may, by instrument in writing, waive compliance with subsection".

Ans- 

According to the factual matrix in this case, Alan receives a letter of denial from the Secretary (Jane 105 Smith) that reads, in part: While it is theoretically possible for a couple to "know each other" solely through online interaction, the Minister for Immigration has made compelling arguments that the poor quality of such online interaction makes such marriages unsustainable. Therefore, although though I have accepted and evaluated your application and it is not forbidden by section 422B(1), I am denying it in accordance with section 422B(2). According to subsection 422B(2), the Secretary of Immigration may waive adherence to subsection by means of a written instrument.

PROSPECTIVE GROUNDS FOR CHALLENGE IN COURT OF LAW

Taking account of Irrelevant Considerations: Statutory construction governs the process of determining whether a topic is pertinent or unimportant. There must be an implicit consideration that the Minister may consider when making a judgement. The Minister has broad discretion, thus he or she must take everything into account, with the exception of things that are not legitimate.[1] The phrase "relevant factors" is frequently misinterpreted... It alludes to a subject that the decision-maker is required to consider. The duty may be inferred from the nature, extent, and intent of the transaction. Furthermore, a matter that is typically referred to as irrelevant is one that is prohibited because it may be seen as reflecting an extraneous or improper purpose, or it may cause the decision to be arbitrarily or capriciously made, depending on the subject matter, scope, and purpose of the power being exercised.

PROCEDURAL FAIRNESS: If a decision was made improperly using the authority granted by the law that it was ostensibly made under, (ii) it was irrational, and (iii) it was made without taking all relevant factors into account. When a choice is taken while taking into account anything that is factually incorrect, irrelevant consideration may result. The need to uphold natural justice would offer little protection if a judgement could be made on the basis of unrelated factors, conclusions or inferences that are not supported by evidence or logical reasoning.

NO evidence: There may be a basis for a review when the decision-maker uses their authority in a way that no reasonable person could have. In Minister for Immigration and Citizenship v. SZMDS, the High Court decided that a judgement based on irrationality and illogic qualifies as being unreasonable. Furthermore, if a certain information is given too much weight, this might lead to an irrational choice. A basis for review might arise from the lack of data or other supporting information. The decision maker must only make a judgement on the no evidence basis if a specific issue is established and there is no evidence or other material that may fairly establish that issue.

Q4. A week after the refusal letter, Alan couriered to the Department of Immigration a parcel of 210 pages of printouts of extensive excerpts of his chat logs with 115 Masha over the previous 18 years. After receiving no reply for 8 weeks, he lodged an FOI application which obtained a photocopy of a hand-written note written by the Minister and stapled to the parcel.

Ans- 

In the instant case, a week after receiving the notice of rejection, Alan sent a package containing 210 pages of copies of lengthy extracts from his conversation logs with Masha during the preceding 18 years via courier to the Department of Immigration. After eight weeks went by with no response, he filed a FOI request, which resulted in the receipt of a photocopy of the handwritten letter that the Minister had stapled to the package. I tried to read this lengthy romance novel, but I only managed to get through three pages. I only skimmed the final 207 pages, and everything starts to get quite repetitive. There is a shocking amount of 120 content there, but for all I know, it may have been produced by a computer algorithm or 'bot'.

PROSPECTIVE GROUNDS FOR CHALLENGE IN COURT OF LAW

1. Bias by Prejudgment: If "the decision-thinking maker's is so predisposed in favour of a conclusion previously formed that he or she will not alter that conclusion irrespective of the facts or arguments provided to him or her," the conclusion will not be changed, according to the test. It is an objective test based on whether a dispassionate observer would conclude that the decision-maker had preconceived notions about the situation[1]. Considerations that must not be taken into account by the decision-maker are deemed irrelevant. Anything that is not relevant must either be implied or stated in the parent statute. Public interest concerns can often be taken into account until they are specifically rejected, and the express inclusion of a factor in a legislation does not imply the exclusion of all other considerations.

2. Purpose not authorized by law (Fettering Discretion): Inflexible adherence to a policy may invalidate a decision. A person operating under dictation may also make a choice that is invalid. A judgement may be void if a Ministerial instruction, which ought to be a contributing factor but not necessarily determinative, is interpreted as a mandate.Legitimate expectations only give birth to procedural rights; substantive rights do not. It is not anticipated that every objective the decision maker has towards the process would result in injustice. In the end, it comes down to whether the impacted party experienced real injustice.

Thus, it can be argued that the Secretary has, without any relevant reason discarded the evidence of conversations between Alan and Masha which constitutes a substantive proofs towards their relationship. Thus, the basic principles of natural justice have been violated and the Secretary has exceeded his authority by exercising unfettered jurisdiction by ignoring the relevant considerations.

REFERENCES

1. WACO v. Minister for Immigration, Multicultural, and Indigenous Affairs [2003] FCAFC 171, [46].
2. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [93].
3. Associated Provincial Picture Houses Ltd v Wednesburry Corporation [1948] 1 KB 223
4. Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [23] (Gummow ACJ, Kiefel J).
5. Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
6. Commissioner for The Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
7. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(e).
8. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
9. Lo v Chief Commissioner of State Revenue [2012] NSWADTAP 12.
10. Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [23] (Gummow ACJ, Kiefel J).
11. Minister for Immigration and Citizenship v Li [2013] HCA 18
12. Minister for Immigration and Citizenship v Li [2013] HCA 18.
13. Vakauta v Kelly (1989) 167 CLR 568, [9] (Brennan, Deane, Gaudron JJ).
14. O’Sullivan v Farrer (1989) 168 CLR 210, [10]–[13] (Mason CJ, Brennan, Dawson, Gaudron JJ).
15. Riddell v Secretary, Department of Social Security (1993) 114 ALR 340
16. Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.

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