Administration Law Notes

1 Found helpful • 30 Pages • Complete Study Notes • Year: Pre-2021

Topics: MERITS REVIEW UNDER AAT JUDICIAL REVIEW UNDER STATUTE GROUNDS FOR JUDICIAL REVIEW I ABSENCE OF POWER ABUSE OF POWER RELEVANT and IRRELEVANT CONSIDERATIONS FACT FINDING ERRORS GROUNDS FOR JUDICIAL REVIEW II Hearing Rule Bias Rule Judicial Error REMEDIES UNDER ADJR JUDICIAL REVIEW at COMMON LAW PRIVATIVE CLAUSES 1. JURISDICTION - For jurisd to conduct merits review, we must look to: 1. s 25 AAT Act, which provides that a decn may be reviewed under AAT Act. (1) Enactment may provide applications may be made to Tribunal: (a) for review of decisions made in exercise of powers conferred by that enactment (b) for review of decisions made in exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. (3) Where enactment mades provision in accordance with (1), that enactment: a) shall specify the person or persons to whose decisions the provision applies; b) may be expressed to apply to decns of a person, or to a class of such decns; and c) may specify conditions subject to which appns may be made 2. STANDING - P will have standing to apply to the AAT if P is a person whose interests were affected by the decision – s.27(1) AAT Act • Same meaning as person “aggrieved” under the AD(JR) Act – must relate specifically to decn under review –Re Control - A representative group/association, [P] will have standing to apply to the AAT if their interests are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization – s 27(2) AAT Act • Does not apply to objects or purposes created after the decision was made – s.27(3) AAT Act • Although on its face, the decision relates to […], in its substance the decision will affect […]. 3. REASONS AAT Act ss 28, 37 and 43 • s 28: person with standing entitled to request reasons, must be provided within 28 days of request (before decn made by AAT) • s 37: all docs relevant to review must be lodged w Tribunal and provided to parties within 28 days of receiving notice of appn for review • s 43: the AAT must itself provide reasons (after decn made by AAT) 4. NATURE OF AAT DECISION POLICY - AAT may take into acct government policy, but should apply that flexibly and make independent assessments (Drake) o If regard to govt policy is not expressly required in the Act [P] may argue this is an ‘exceptional’ case where application of policy is not appropriate (Drake) EVIDENCE - Wrt evidence, proceeding can be conducted with as little formality and technicality, and with as much expedition as it requires – s 33(1) AAt Act o Any new evidence that has come to light after the decision? o Appn should take into acct info about conduct/events that occurred after decn under review: Shi v Migration - Tribunal should not make decns without any basis in evidence that has some rational probative force: Pochi v MIEA o To exclude a party (applicant) from hearing is a grave step – denies opportunity for appnt to know case against them, give info and respond o Entitled to accept hearsay evidence STANDARD OF PROOF - Although no legal onus on appellant to prove his case, practical burden of proof will usually fall to him, being the best source of info on which appn is based. - DM should adopt a common sense approach. McDonald - Most likely to arrive at the correct or preferable decision using the civil standard (balance of prob) Epeabanka 5. REMEDY - Best outcome for [P] would be for the AAT to set aside the original decision and substitute it with its own as outlined above under s.43(1) AAT Act.

This document is 50 Exchange Credits