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Legal Implications of Judicial Review

In the given case of Full Federal Court in SZSJA Vs Minister of Immigration and Full Border Protection [2013] FCAFC 158, the appellant is a Chinese national who has applied for protection visa in the Australia. He failed to attend his claim hearing before the Refugee Review Tribunal. The court took the evidence of his signature on the Hearing Invitation as his consent to attend the hearing as per the given time and date. He also did not explain the reason for his absence. As he did not turn up for the hearing, the court passed the order in absentia and dismissed his application for the visa.

The appellant went into appeal against this decision and requested for the review of the order passed by the primary court.

In case of a judicial review, following legal remedies are available:

• Mandamus – A writ of mandamus is a command compelling the respondent to perform a public duty. This writ is available to the appellant against a person who is entrusted with a certain public duty and he has either not performed it or has not performed it in its entirety.
• Prohibition and certiorari – A writ of prohibition restrains the person to whom the writ is directed from doing something unlawful that is proposed to be done or from continuing to do an unlawful act already begun.
• Injunction – This writ provides both mandatory and prohibitory relief to the appellant depending on the circumstances of the case.
• Declaration – A declaration is a court order which is given to decide an argument about a certain law which is applied to a particular situation
• Habeas corpus – This writ is utilized when a person is illegally detained by the authorities, to secure his release
• Discretionary considerations
• The Administrative Decisions (Judicial Review) Act

The appellate tribunal held in its judicial review that:

• The appellant’s signature on the Response to Hearing Invitation form were not his own. He also did not give any implicit consent to his agent to sign any document on his behalf. The appellate tribunal held that the primary judge erred in assuming that the appellant has given his implicit consent to his agent for signing the documents. This could not be construed on the basis that appellant was used to sign the documents given to him by his agent without understanding what each document was. The primary judge also did not take into account the appellant’s evidence that he was not happy with the idea of his agent signing any document on his behalf even when he wants to sign that document himself. (Sec. 426A of the Migration Act)
• The second issue was of agent not informing the appellant about the date, time and place for the hearing. This was the main reason for the failure in appearing before the Refugee Review Tribunal. In this case the appellate tribunal held that this can be a case of fraud or wilful negligence of duty. The referred the case back to the Federal Circuit Court as they are of the view that more findings should be made into why a registered agent did not perform his duty which is liable to execute under the Code of Conduct for Registered Migration Agents (Sec. 314(2) of the Migration Act) mainly in regards with his making statements which he is aware are inaccurate or misleading and using the authority which is not expressly vested in him and presentation of a false document to the official. (Sec. 234(1)(a) of the Migration Act)
• The Appellant can obtain the writ of Mandamus against his agent. Under the Code of Conduct for Registered Migration Agents he is bound to discharge his duty in good faith and not to act in any manner which can be directly or indirectly harmful to his client. In the given case, the agent not only failed in explaining each and every requirement of the visa to the appellant but he also made him sign many documents with giving any information about their nature. He not only took advantage of the appellant’s trust in him but also by his negligence in discharging his duty failed in communicating the vital details to the appellant which resulted in the dismissal of his visa application
• The appellant can also obtain injunction orders against the agent and he can request the court. He can request the court to direct the agent to perform his duties which he has undertaken for the appellant.

References

Bagaric, M., Dimopoulos, P., & Pathinayake, A. (2011). Migration and refugee law: Principles and practice in Australia. Cambridge University Press.

Crock, M. E. (1996). Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?. Sydney Law Review, 18(3), 267-303.

Germov, R., & Motta, F. (2003). Refugee Law in Australia. Oxford University Press, USA.

Jaffe, L. L. (1958). The Right to Judicial Review I. Harvard law review, 401-437.

Stubbs, M. (2012). A brief history of the judicial review of legislation under the Australian constitution. Federal Law Review, 40(2), 227.