Constitutional/Administrative Law
Constitutional/Administrative Law
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The following is a number of extracted provisions from the (fictional) Migration
Act 1959 (Cth). Please see the questions which then follow.
Section 29
(1) Subject to this Act, the Minister may grant a non-citizen permission, to be
known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia…
Section 36
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has
protection obligations because the person is a refugee;
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph
(a)) in respect of whom the Minister is satisfied Australia has protection
obligations because the Minister has substantial grounds for believing that,
as a necessary and foreseeable consequence of the non-citizen being
removed from Australia to a receiving country, there is a real risk that the
non-citizen will suffer significant harm; …
(3) Australia is taken not to have protection obligations to a non-citizen who has
not taken all possible steps to avail himself or herself of a right to enter and
reside in, whether temporarily or permanently, a safe third country.
Section 91D
(1) A country is a safe third country in relation to a non-citizen if:
(a) the country is prescribed as a safe third country in relation to the noncitizen,
or in relation to a class of persons of which the non-citizen is a
member; and
(b) the non-citizen has a prescribed connection with the country.
(2) Without limiting paragraph (1)(b), the regulations may provide that a person has
a prescribed connection with a country if:
(a) the person is or was present in the country at a particular time or at any time
during a particular period; or
(b) the person has a right to enter and reside in the country (however that right
arose or is expressed).
(3) The Minister must, within 2 sitting days after a regulation under paragraph
(1)(a) is laid before a House of the Parliament, cause to be laid before that
House a statement, covering the country, or each of the countries, prescribed as
a safe third country by the regulation, about:
(a) the compliance by the country, or each of the countries, with relevant
international law concerning the protection of persons seeking asylum; and
…
(c) the willingness of the country, or each of the countries, to allow any person
in relation to whom the country is prescribed as a safe third country:
(i) to go to the country; and
(ii) to remain in the country during the period in which any claim by the
person for asylum is determined; and
(iii) if the person is determined to be a refugee while in the country—to
remain in the country until a durable solution relating to the permanent
settlement of the person is found.
(4) A regulation made for the purposes of paragraph (1)(a) ceases to be in force at
the end of 2 years after the regulation commences.
Section 504
(1) The Minister may make regulations, not inconsistent with this Act, prescribing
all matters which by this Act are required or permitted to be prescribed or
which are necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
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Two Indian citizens, a Jatt Sikh (S) and a Tamil Paraiyar Hindu (H), secretly married in India
in 2013. They claim that they did not reveal their marriage to their families and that this was
necessary because they feared they would both suffer violence for bringing dishonour to their
families by entering into a mixed marriage, both in terms of religion and caste. They came to
Australia on student visas in 2015. In the summer of 2016, S spent three months studying in
Europe, during which he time stayed in his friends’ apartment in central London.
S and H then applied for protection visas in Australia in early 2017. S and H are,
respectively, husband and wife. The Minister for Immigration and Border Protection refused
the applications.
The Minister stated that she was not satisfied that there was a real chance of persecution
occurring in India. She stated that she had contacted a friend of Indian heritage who had
travelled extensively throughout India earlier in the year. The Minister’s friend explained to
her that, while certain mixed marriages do pose a significant risk of serious physical harm to
the couples from their respective families, couples can be untraceable if they relocate within
India to a large and distant metropolitan area and change their names and appearance.
The Minister then stated that a senior departmental administrator had held a telephone
conversation with S and H and, as a result, had not been convinced of their fear of
persecution after asking them a few questions. During the telephone call, the administrator
also learned that distant relatives of H lived on the island of Sri Lanka while S had some
personal connections to residents of the United Kingdom.
Furthermore, the Minister stated that H and S did not merit protection visas because the
Australian Security Intelligence Organisation (ASIO) had indicated that it had been informed
by an overseas intelligence agency that H had close associations with Tamil Tigers who had
engaged in terrorist activities in Sri Lanka. The Minister stated that the matter then raised
acute geopolitical concerns for Australia, in that––having talked to the Prime Minister––the
view had formed that the Commonwealth government could not antagonise Sri Lanka by
harbouring those suspected of sympathizing with subversive actors. She further expressed her
incredulity––after reflecting on a television documentary screened on the ABC on the Sri
Lankan civil war just before the applications from H and S were submitted––that those who
support the killing of others should consider themselves deserving of Australia’s protection
from persecution and discrimination.
Finally, the Minister noted that she had made a regulation shortly before making her decision
which had prescribed Sri Lanka as a safe country for S and H and referred to several
members of H’s extended family who lived in the east of that country. This, she stated,
mandated a decision in the present case to refuse issuance of a protection visa to S and H.
S and H then seek your legal advice.
First, they mention to you that relocating within India to a city was not practical and would
have left them destitute. Secondly, they mention that they read the regulation only a few
minutes before they received the reasons for the Minister’s decision and that, in their view,
the regulation falsely assumed that they would have a right to settle in Sri Lanka. Thirdly,
after they sought information about the regulation, a Ministerial official told them that it had
been tabled in parliament a few weeks earlier and had been accompanied by a document
entitled ‘explanatory statement’ that expounded, in some detail: i.) the administrative process
that follows an application for a protection visa; and, ii.) an analysis of the political situation
and religious demographics pertaining to Sri Lanka and India. Fourthly, H strongly denied
any personal association with the Tamil Tigers.
In providing your advice to S and H, you must separately discuss the following issues:
• justiciability and jurisdictional matters in respect of judicial review of the regulation;
• the validity of the regulation and grounds of challenge in relation to it;
• justiciability and jurisdictional matters in respect of judicial review of the refusal of a
protection visa;
• the validity of the decision to refuse issuance of a protection visa and grounds of
challenge in relation to it; and,
• the remedy or remedies that may be sought in respect of judicial review of both the
regulation and the decision to refuse the protection visa.
In addressing these separate issues in providing legal advice to S and H, students must
confine their answers to application and discussion of the legislation and cases referred
to in the prescribed reading for weeks 1–6 only (as well as, of course, the material
referred to in this question).
Marks will predominantly be allocated on a ‘per issue’ basis: so you must exercise good
judgment and discretion in relation to the importance of particular legal issues and
arguments, and in relation to the number of words spent on each of the separate issue
points stated above.
This is also important in relation to the word limit for the assignment: 1,750 words.
Please refer to the School of Law’s Essential Guide for Studying Law Units with respect
to the relevant guidelines on word length and penalties.
