Merits review - week 2 PDF

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MERITS REVIEW Difference between merits review & judicial review: merits - what is the correct & preferable decision? Judicial - has there been a jurisdictional error? ●

Requires reconsideration of a decision: takes into account issues of law, fact, discretion and policy

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Tribunals are not so restricted (ch3, SOP)

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Courts look to legality, tribunal look to the correct & preferable decision

Commonwealth Administrative Appeal Tribunal (AAT) ●

jurisdiction to review decisions across Government.

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Administrative Appeals Act created AAT (created a single platform for review), police compensation & social security and more. Accessible, fair, quick & informal proceedings. Promotes public trust and confidence. No civil jurisdiction (not a Court) ○

right to appeal against a tribunal decision. Some are on the merits (internally to the tribunal) or externally (another tribunal), depends on statutory context

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right to appeal from AAT to Federal Court - s44

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AAT: exercises all the powers and shall make a decision in writing, affirming, setting aside or making a substitution or remitting the matter.

Shi v Migration Agents Registration Authority FACTS: ●

Shi was a registered migration agent. I n 2003, the Migration Agent Registration Authority (MARA) became aware of a number of failings in giving advice, record-keeping and dealing with staff.

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MARA decided first to suspend Shi’s registration, and then to refuse to renew it

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Shi appealed and that appeal was heard by the Tribunal in 2005. In determining that Shi was a fit and proper person, the Tribunal took into account matters that had happened between 2003 and 2005.

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They lifted the suspension on the condition that he was cautioned and worked under the supervision of another migration agent until at least 2008, and that he did not work on protection visas.

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MARA appealed this decision and was successful at first instance. Shi then appealed that decision.

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AAT relied on evidence of his conduct when the AAT made its decision. S 43, when tribunal sets decision aside for review, it must consider whether to remit or make a fresh decision. Generally obliged to have regard for the most fresh evidence available. Tribunal looks to the case as new (what evidence is available now)

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Tribunal can only review those decisions specifically identified in legislation - this is narrower than courts undertaking judicial review

•Change in the facts - the applicant for review has the right to present to the tribunal fresh evidence and submissions that were not before the decision-maker (Shi). • Unless the statute indicates otherwise, the tribunal looks at the matter anew, according to the facts and circumstances including the law as they exist at the date of review ( Drake and Shi). Fresh evidence about changes in his practice, led AAT to make a different decision about his ability to be a migration agent. • Exception - rights are not diminished by a change in the law ( Esber v Commonwealth (1992) 174 CLR 430). This is the main exception to the idea of fresh evidence being considered. ESBER Esber received weekly compensation payments, s 49 of the Act provided that a lump sum could be received. His request was refused, he applied to AAT. The Act was replaced and this provision was not in it. Held: should be under previous Act, he had a right for it to be reconsidered by the old Act.

Hypothetical practice question • For the purposes of this question, assume that the Commonwealth Administrative Appeals Tribunal (the AAT) has been given jurisdiction over land development application cases in the Australian Capital Territory. • D’s application to build a house on her block of land is rejected by the proper agency of the ACT Government. She decides to seek review of that decision in the AAT. After she lodges her application for review but before the hearing in the AAT, the ACT Government changes the law relating to development applications so that any new developments must, to gain approval, meet new water recycling requirements. HYPOTHETICAL EXPLAINED:

• The AAT’s role, on review, is to make the correct or preferable decision, ‘standing in the shoes of’ the primary decision-maker (Greenham, Drake and Shi) In performing that function, the AAT is to have regard to the law as it stands at the date of its decision: see Shi. • However, in these circumstances, the exception explained in Esberoperates, that is, that an accrued right is not diminished by a change in the law — D has a right to have her application determined under the pre-amendment ACT law. Statutory guidance • Expectation that tribunals not to be confined by the rules of procedure and evidence (observed by courts) usually explicit in the creating legislation. - tribunal not bound by rules of evidence. This releases obligations for tribunals to act in formal ways such as Court - considered in Eschetu case.

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 33 (1) )In a proceeding before the Tribunal: (a)the procedure of the Tribunal is, subject to this Act and the regulations and any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

• Meant to release tribunals from legal obligation to act in more formal and judicial manner. • Extent of that release considered in Eshetu (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611).

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 SECT 33 (2) For the purposes of subsection(1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given: (a)where the hearing of the proceeding has not commenced-by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and

(b) where the hearing of the proceeding has commenced--by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions. • Rules vary, but may cover: • exchange of documents • summoning of witnesses • expert evidence – swearing in of witnesses • affidavit evidence – confidentiality orders • preliminary conferences – telephone and video hearings • openness of proceedings • legal representation of parties • adjournment of proceedings • consent settlements and • publication of the tribunal’s reasons.

• Rules do not cover all: • See Sullivan (question of adjournment of tribunal proceedings) – discusses scope of tribunal’s obligation to elicit relevant evidence or conduct its own inquiries.

Sullivan case: ●

Applied to the AAT for review of a decision by a department who decided not to renew, on medical grounds his commercial pilot license. He was unrepresented at tribunal proceedings

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he appealed to FC because he said he had no time to present medical opinion evidence

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FC rejected this argument, a tribunal such as AAT need for balance between procedural protection to a party and allowing each party unhindered opportunity to present its own case.

Special considerations: • Tribunal’s independent duty to reach the correct or preferable decision • The inquisitorial role of the tribunal • Opportunity that a tribunal has during proceedings to draw the attention of the parties to critical issues that may warrant further attention and • Special burden by the doctrine of natural justice.

Evidence, fact-finding and onus of proof • Fact-finding - Is tribunal judicial or executive model? • Fact-finding role of courts - guided by 1.rules of evidence that control the information and documents that can be submitted to and considered by a court

2. burden of proof placed upon each party to prove or disprove to the satisfaction of the court the facts that are essential to the party’s case (because of the adversarial nature of court proceedings) . • Executive decision-making - no rules of evidence or burden of proof to be followed.

See Pochi and Minister for Immigration and Ethnic Affairs (1979) AND Minister for Immigration and Ethnic Affairs v Pochi(1980) - evidentiary standards (probative evidence rule): FACTS ●

Mr.P was involved in cannabis growing operation. He was arrested & sentenced to imprisonment and he served one year, around this time, Donald McKay an anti drug campaigner disappeared. His body was never found but assumed hit style attack. Royal Commission into his death, found that the town of McKay had international drug cardinal. Questions raised as to how he had come to this large sum of money. Police officer: gave secret evidence only to Brennan J in absence of Mr.P, in his involvement in drug trafficking. The evidence was connected to the Royal Commission.

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Was it in the interest of Australia that he be deported? What scale of the criminal operation was he? Brennan J said not in Australia's best interest for him to be deported. Said that the burden of providing the circumstances for deportation fell to the minister and some of the factors were predictions and evaluations which aren't meant to be proved by decision makers. The decision maker must be persuaded that deportation be in the best interests of Australia, need to consider the gravity of the circumstances - need to consider the effects of an adverse finding 2 standards of proof: BRD and BOP, Briginshaw test application by Dixon J: considers what it means to prove something to BOP. When the law requires proof of any fact, the tribunal must feel an actual persuasion of its accurateness, one of reasonable satisfaction. It is not a state of mind, but established independently of facts to be proved. The nature of the issue affects the process by which reasonable satisfaction is reached.

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Brennan J: to depart from the rules of evidence is to put aside a system which requires rational proof. It must be based on material that has some probative value in the sense mentioned. If capable of having proof value, the weight given is dependent on the decision maker.

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Brennan J: confidential evidence shows no proof that he was involved, without proof he shouldn't be deported.

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-not bound by rules of evidence, but should they be expected to reach a higher standard of fact finding than the original decision maker?

Minister for Immigration and Ethic Affairs v Pochi ●

Tribunal was bound by a matter of law to act on the basis that any conduct that was relied on for the basis of deportation was required on the balance of probabilities on some rationale of evidence, not just mere suspicion.

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finding of fact must be based on logical, probative evidence

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Pochi decisions, formality versus informality, adversarial versus inquisitorial technique, still contentious.

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Ultimate task to decide whether, on the facts and evidence before it, the tribunal is satisfied or persuaded (one way or the other) of the issues to be resolved.

Precedent and estoppel Court rulings -there is a practical burden for the person trying to prove their fact to prove it (no legal burden to prove all relevant aspects of the claim under AAT). -tribunal bound by judicial rulings on issues of law - statutory and common law • Court rulings on an issue of fact not straightforward. • First, Finding of fact - may be bound by earlier finding of fact if doctrine of issue estoppel applies. • Requirements of issue estoppel: to ensure finality in litigation. 1) Same question has been decided 2) The judicial decision was final 3) The parties were the same as the parties to the proceedings in which the estoppel is raised • Second, Bound by an earlier court ruling on facts providing statutory foundation for a new administrative decision. • Third, Not bound by earlier court finding, but should start from the premise that finding should be accepted unless there is reason to depart from it - matter of public policy

Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 FACTS

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gained PR status in Australia, citizen of Fiji. In July 1996, he was convicted of break and steal with aggravation, sentenced to imprisonment. 1998 he was told he was liable for deportation, April 1999, when in imprisoned, Minister for Immigration decided to deport based on conviction. He appealed to AAT who set aside the deportation order and substituted the decision. Is the AAT bound to accept each of these criminal conviction? Issue estoppel did not apply. AAT could not go behind the conviction for break & enter.

-Tribunal could challenge the facts that were essential to the conviction: to lead a different version of the evidence. Part 1

● How is merit review different from judicial review? Purpose: external body to have a second look at the decision - stand in the shoes of the original decision maker

● Merits review has a body external to the original DM - ‘stand in the shoes’ of the original DM ● ● ● ● ● ● ● ● ● ●

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all of the relevant issues that the original DM was able to do Merits review: what is the correct/preferable decision in the circumstances, tribunals: correct/preferable decision Judicial review: has the DM made a jurisdictional error? - courts: legality Merits views requires considerations of a decision - example: law, policy, discretion - broader than Courts Tribunal courts not restricted by ch3 : only judicial power, while tribunals are not so restricted. Multi purpose tribunal with administrative matters - diverse range of specialist tribunals - both in public/private sector Merits Review - Commonwealth Administrative Appeal Tribunal (AAT) : jurisdiction to review decisions across Government. Specialist tribunals still exist (example:mental health) Some tribunals are like Courts Tribunals are created by Statute mostly - so they contain the mode of operations, powers, procedures. Amalgamation of civil/administrative in a single tribunal - state/territories - eg licensing discrimination, guardianship. Private and public sector jurisdiction - example: creditor disputes and also discrimination etc (government to individuals). Provide a method of dispute resolution: minimal fees, less formal procedures and evidentiary rules. Sometimes adversarial, sometimes inquisitorial They can review only decisions specifically in legislation - narrower than Courts exercising judicial review. There are limits to judicial review. Establishment of a tribunal with generalist jurisdiction in 1075 was groundbreaking, from the 1971 committee which proposed AAT to replace specialist tribunals.

Part 2

● ADJR Act was implemented to make it easier to access judicial review - only if you can establish

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legal error. If successful, may need to make a legally correct decision which isnt the result you want sometimes. Administrative Appeals Tribunal Act 1975 - created AAT - single tribunal to review government decisions replacing some specialists tribunals Major areas of AAT review include: Social security, taxation, employee compensation etc Must pursue: accessible and fair, just, quick. Promotes public trust in the Tribunal. AAT doesn't have court power SSAT, VRV, RRT, MRT - all specialist tribunals now AAT Amalgamated tribunal under AAT - move into ‘one stop shop’ NSW - NCAT 2014 (NSW tribunal) - 1973: setting up of a general jurisdiction merits review tribunal ADT has jurisdiction under 130 Acts CCTT and 20 others were amalgamated in NCAT NCAT divisions: 1. Administrative 2.consumer 3.guardianship 4.

Appeals:

● Right to appeal against tribunal decisions: some on the merits - issue of fact and law - internally or externally - to another tribunal. ● nature/scope depend on statutory context ● Right to appeal to the AAT to Federal Court on question of law - AAT is the decision (final decision, appeal to FC in its original jurisdiction), s44. Seperation of Power:

● Courts independence by control of legislature and executive ● Tribunal - government decision maker - legal/factual/policy issues ● memberships - appointed by executive - example: Minister. The AAT is assumed that those decisions are reviewed on the merits - no mention of merits review in the Act -s 43(1) AAT Act. a) affirming decision b) c)setting aside or making a decision in substitution of the decision or remitting the matter back for reconsideration in accordance with recommendation from tribunal. Part 3

● Under s43 AAT act - determine, set aside a decision and make a substitute decision, or remit matter for reconsideration

● Shi v Immigration 2008: Facts: AAT relied on evidence of Shis conduct between 2003-2005 - Court said when the Tribunal sets a decision aside - must remit or make a fresh decision - best and most current information possible. ● Tribunal is to provide a fiar, just, economical, etc ● Not bound by rules of evidence ● Merits review: nature of review - Li case - courts said fresh consideration - review must be based on evidence/arguments in front of Tribunal and any other relevant information obtained by tribunal. They can consider other issues too.Apply legal criteria to set aside decisions on the grounds it was unlawfully made. ● Kuswana 1981 - Tribunal focused solely on the merits of the decision to deport not whether K was an immigrant. Unless the statute indicates otherwise, need to look at the evidence anew. ● Greenham: found that on evidence evaluation of his property should be reduced - said it should not go outside its ground of objection stated by the applicant. ● An applicant has a right to pursue fresh evidence that was not before the original decision maker example: Shi. ● Scope of jurisdiction: non justiciable are excluded by legislation or legal doctrine ● ARC: core function to provide advice on the category of decisions that should be allowed to get merits review - administrative decisions that follow an individual is ok for merits review. Decisions of broad application are unsuitable for merits review. Appeals:

● Each system of appeal is created by statute ● Extent of an appeal - nature of appeal, grounds of appeals and powers Procedure

● Statute: special procedure rules could be used in the tribunal in questions ● Tribunals are not adversarial but have adversarial features ● Can tribunals be described as inquisitorial? Part 4

● A tribunal should not substitute a decision if it goes with policy ● Drake - FC said: convicted of drug offences, Minister had to set guidelines on discretion to revoke visas with drug offences - deportation was the result according to these guidelines. AAT found bound to follow the guidelines. Federal Court said bound by the policy and AAT failed to exercise its jurisdiction. If AAT can't exercise its judgement, executive could make all sorts of policies and AAT would just follow them otherwise. Need to decide whether the correct decision was made. ● Drake no.2 - remittal of the case back to AAT. What did Brennan J say? - stressed that tribunal should apply lawful policy decisions - based on individual circumstances of each case - is it in the best interests of Australia that someone be deported? Must confirm with the relevant statute. If a tribunal applies an unlawful policy it will be in error. Minister concer...