KEYNOTE ADDRESS: DEVELOPMENTS IN JUDICIAL REVIEW AFFECTING MIGRATION LAW COUNCIL IMMIGRATION LAW CONFERENCE Justice John Griffiths Federal Court of Australia 25 February 2017

THE FEDERAL COURT’S MIGRATION CASELOAD Original jurisdiction and current high volume of cases concerning visa cancellations on character grounds Constitutional challenges concerning visa cancellations relying on protected information Some statistics and internal processes concerning migration appeals

SOME KEY THEMES The shift from ADJR Act judicial review to review for jurisdictional error Doctrine of jurisdictional error demands more from legal advisors and courts Need for close attention to relevant legislative framework and surrounding circumstances Danger of slogans and formulas

THE DOCTRINE OF JURISDICTIONAL ERROR The Constitutional setting Key features of Kirk Primary steps in identifying jurisdictional error Post-Kirk approach illustrated by SZRKT (2013) 212 FCR 99 and Goundar v MIBP [2016] FCA 1203

UNREASONABLENESS IN THE LEGAL SENSE High Court decision in Minister v Li (2013) 249 CLR 332 Obiter remarks concerning disproportionality Post-Li clarification of review for unreasonableness MIBP v Singh (2014) 231 FCR 437 MIBP v Stretton (2016) 237 FCR 1

PROPORTIONALITY History of proportionality in testing validity of subordinate legislation Proportionality in Constitutional review McCloy v New South Wales (2015) 325 ALR 15 and Murphy v Electoral Commissioner [2016] HCA 36 Proportionality in judicial review of administrative action Significance of McCloy at [3] Stretton, Lobban [2015] FCA 1361 and Renzullo [2016] FCA 412

The difficulty of applying proportionality to a power which does not have a single purpose, e.g. s 501 of the Migration Act 1958 The future role of proportionality in Australian administrative law

JUDICIAL REVIEW AND ADVERSE CREDIBILITY FINDINGS Scope for judicial review of adverse credibility findings The danger of aphorisms: credibility is a matter par excellence for the review tribunal Full Court’s decision in CQG15 v MIBP [2016] FCAFC 146 Importance of the distinction between not accepting evidence and a finding of fabrication or lying

PROCEDURAL FAIRNESS AND LITIGANTS IN PERSON The obligation to provide a fair hearing for all litigants Temptation to cut corners in high volume jurisdictions How to avoid entering the fray while according procedural fairness: SZRUR v MIBP [2013] FCAFC 146; 216 FCR 445; MZAIB v MIBP [2015] FCA 1392; MZAGE v MIBP [2016] FCA 630; Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301; ALA15 v MIBP [2016] FCAFC 30; AMF15 v MIBP [2016] FCAFC 68; 241 FCR 30

CONCLUSION Judicial review dynamic and not static Challenges for legal practitioners and judges alike Courts’ gratitude to pro bono practitioners