Administrative Law Autumn 2016 Assignment

Administrative Law Autumn 2016 Assignment
Form of assignment
The assignment is to be written as a submission, setting out both (1) the avenues of review available and (2) the relevant grounds of review, with correct and full citations, as per the Australian Guide to Legal Citation.
Part 1: Non-judicial review
This part requires advice on the availability of, and best options for, informal review, internal review, FOI, Ombudsman and tribunal review of the administrative decisions.

A. You must outline the merits issues and legal issues that you consider relevant. Such issues must be supported by references in the footnotes to the relevant legislation, guidelines and cases.

B. Reference must be made to the legislative sections covering the procedures and application fees for these actions, and how these arrangements might operate in practice – in other words, what your client should expect at each step, and how long the review process could take.
Part 2: Judicial Review
This part requires advice on the possibility of challenging, via judicial review, the decision made by the original decision maker or relevant tribunal.

A. You must advise whether your client has standing, and which courts have jurisdiction.
B. You should outline the grounds that may be open to challenge the administrative decision, indicating which you think are the strongest grounds.
C. No reference is needed to the remedies that are available, but the likely time and fees of any action must be indicated.

Any relevant legal argument already made in Part 1 should not be repeated, but instead referred back to.
Marking criteria and standards: Body of Letter (20 marks)
Fa! A response that exhibits any of the following characteristics (the list is not exhaustive)
may be awarded a fail grade because 2
it is poony written;
there are frequent spelling and grammatical errors and/or use of legal jargon;
there is no or only a poor summary of the legal issues;
it is repetitious and/or unclear; and
it fails to identify significant pathways and/or provides a poor explanation
Pass To achieve a pass mark the response
should demonstrate adequate use of language;
may have some spelling and/or grammatical errors and/or use of legal jargon;
must provide an adequate summary of the legal issues; and
may contain some errors and/or failure to identify some important pathways and/or
unclear explanation and/or in parts is repetitious
Cult In addition to satisfying the criteria for a pass grade, the response
should demonstrate good use of language;
should use reasonably clear language with one or two minor spelling and/or
grammatical errors and/or use of legal jargon;
must provide a good summary of the legal issues;
should provide a reasonably accurate overview, with some minor errors in
explaining the relevant pathways; and
should be mostly concise
Dblhcfion In addition to displaying the characteristics of a credit response, at this level the response
demonstrate a very good use of language;
employ Plain English;
not use legal jargon;
have no more than one or two minor spelling or grammatical errors;
provide a very good summary of the issues, accurate overview and be well
structured; and
Identify all the relevant pathways and provided a clear, concise explanation
High distinction A paper at this level will display all the characteristics of a distinction paper but will
surpass that grade because it will:
demonstrate excellent use of language;
contain no legal jargon;
demonstrate excellent use of Plain English;
employ consistently clear and concise language;
contain no spelling or grammatical errors;
provide an excellent summary of the legal issues;
be accurate and very well structured ; and
address all relevant pathways and be very well explained

Fact Scenario

Frank Brown, your client, states that he went to Syria at the beginning of 2015 for humanitarian purposes, assisting an aid organisation help refugees. On February 1, however, the Foreign Minister cancelled his Australian passport.

No notice was given of this decision. Instead, the minister notified Brown, in writing on February 2, that his passport had been cancelled under s 14(1) of the Australian Passports Act 2005 (Cth), on the grounds that he “might prejudice the security of Australia” and his passport was cancelled “in order to prevent him from engaging in the conduct.”

The minister also issued a certificate, under s 50(2) of the Act, that the decision involved matters of international relations.

In her letter to Brown, the minister stated that her decision was based solely on a request made by the Australian Security Intelligence Organisation (ASIO) that the passport be cancelled because “you travelled to Syria for the purpose of engaging in PMV [politically motivated violence]” and “likely remain ideologically supportive of PMV and would be likely to engage in conduct that might prejudice the security of Australia.”
However, no certificate was issued under s 38(2) of the Australian Security Intelligence Organisation Act 1979 (Cth).
On February 9, Brown asked the minister, in writing, for a statement of reasons for her decision, and for the release of ASIO’s cancellation request document. On March 9, she replied, refusing to do so, on the grounds that ASIO had advised her that any statement of reasons, or access to its request document, would “prejudice the security, defence or international relations of Australia.”
In a media statement issued on March 9, the minister defended her decision to cancel Brown’s passport, saying that ASIO’s request gave her “absolutely no choice” but to cancel the passport. She said it was clear from ASIO’s request that Brown was “an extremist” and “refugee activist” whose return to Australia must be prevented because he would seek to undermine the government’s refugee policy.
Brown seeks (a) access to the ASIO request document and (b) a review of the minister’s decision to cancel his passport. Alternatively, (c) he seeks advice on whether he should apply for a review of ASIO’s cancellation request.
In your submission, you must refer to relevant cases, including the following decisions:
Habib v Director-General of Security [2009] FCAFC 48
Habib v Minister for Foreign Affairs and Trade [2010] FCA 1203
Massey and Minister for Foreign Affairs [2010] AATA 290
TFND and Director-General of Security [2015] AATA 752


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