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

2. 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

3. 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

5. 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

6. 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

8. 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

9. 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

10. 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

11. 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

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