Migration Law Blogs Series (MLBS) 17 –  Migration visas- Applying for judicial review (Part 6) – The ground of procedural fairness

By Mr Anthony J Aristei

This is the seventeenth in a series of blogs that are focusing on Migration Law.

If you have a migration issue and you are not sure if it you should file or what documents to file, do not delay; please seek legal advice straight away. Do not wait until it is too late.

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor from Kean Legal Barristers & Solicitors is ready to help.

The duty of procedural fairness was historically known as ‘natural justice.’ It applied to decisions made by Australian Government authorities.

Background of Doctrine of Procedural Fairness

Ordinarily, Australian Courts of Law would not interfere with decisions made by Australian government authorities or Australian Government Departments because of the ‘separation of powers doctrine. 

The Australian Government was not supposed to interfere with the Australian Court’s exercise of power, and the Australian Courts were not supposed to interfere with the Australian Government’s exercise of power.

However, over a period of several 100 years, the position began to change. The Australian Courts began to intervene in particular decisions made by Australian Government Departments. 

The scope of intervention remained limited to cases where there had been non-compliance with the legal principles of administrative law. 

The means of intervention was conducted by an Australian Court proceeding for judicial review. (General information about the doctrine of judicial review has also been discussed in a number of related blogs).

Today, a number of the historical principles are being applied to visa decisions made by the Australian Government’s Department of Migration. If a legal (i.e. jurisdictional) error has been committed, the Court has power to set aside the decision made.

Application in Migration Matters

In relation to procedural fairness, the Australian Courts expect the Australian Government’s Department of Migration to ensure that each visa applicant receives a fair hearing.

Instances where there has been unfairness include:

  • The decision-maker being biased towards the applicant;
  • The decision-maker effectively refusing to hear an important application (such as a request for an adjournment);
  • The decision-maker failing to deal with the case presented by the applicant;
  • The decision-maker failing to provide adequate notice of a hearing; and 
  • The decision-maker failing to request information and documents from the applicant which it believes are relevant to the decision. 

More recently, there have been amendments made to the Migration Act 1958 (Cth) (‘Migration Act’) which are designed to limit the scope of the various duties of procedural fairness. 

Section 357A of the Act now restricts the scope to the written requirements contained in Division 5 of Part 5 of the Act.

Examples include sections 360 and 362B. The first deals with the circumstances where the applicant is ‘invited to appear’ before the tribunal (or decision-maker). The second section deals with situations where the applicant ‘fails’ to appear.

The extent to which the amendments restrict the historical scope of the duties of procedural fairness remains to be seen.

As we have said before, professional assistance from an experienced migration lawyer can help you ‘navigate’ these questions in relation to your visa problem. If you require professional assistance from a migration lawyer to look over your matter to spot any potential grounds, we can be contacted at our office number: +61 8 6323 8697

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