Judicial review

A. Statutory judicial review under ADJR Act

I. Jurisdiction:
Need to determine whether the issue is at Cthlevel or state level.
1.s 8 of ADJR Act confers jurisdiction upon the Federal Court and the Federal Circuit Court to hear the
determine applications for review under ADJRA.
2.s 19 of Judicial Review Act of QLD:the Supreme Court has jurisdiction to hear and determine
applications made to it under this Act.
II. Reviewability
1. S 5: a person who is aggrieved by a decision may apply for an order of review.
2. S 3(1):confines judicial review to a decision of an administrative character made under an
enactment.
Element 1: it is adecision / conduct / failure to decide
Decision:

In ADJR, S 3(1),a decision to which ADJR Act applies is a decision made under and enactment
by Cth authority or officer.
(NB: a decision is nota decision by Governor-General or a decision included in any of the
classed of decisions set out in Sch 1.)
Check the definition of enactment in s3(1).

See s 3 (2) ** ;See s 3 (3) a report or recommendation before a decision

Then refer to CL:

Australian Broadcasting Tribunal v Bond:
a)
A decision should be a final decision to be reviewable. Mason CJ, at 337.
If the legislation specifically provides that an intermediate decision must be made before
making the final decision, then the intermediate decisionleading to a final decision (such as a
report or recommendation in s3(3)) is reviewable. Mason CJ, at 339.
b)
The decision must besubstantive in nature and not just be a procedural decision.
c)
Decisions that are procedural in nature will amount to conduct under s 6.
once a final decision has been made, the conduct in s6 is not independently reviewable . (Minister
for immigration and Multicultural Affairs v Ozmanian (1996))
Conduct:

S 6: a person who is aggrieved by a conduct may apply for an order of review.

S 3 (5) defines conduct engaged in for the purpose of making a decision as including a
reference to the doing of any act or thing preparatory to the making of the decision, including the
taking of evidence or the holding of an inquiry or investigation. (also see Qld s 8)

Then refer to CL:

Australian Broadcasting Tribunal v Bond :
a)
Conduct is essentially procedural and not substantive in character. Mason CJ, At 342.
b)
Then the complaint is whether the process of decision-making was flawed.
- A decision to refuse the application for an adjournment of an admi hearing.
- A summonsing of a witness by a Royal Commission (Ross v Costigan)
- Communication of a decision (Shepherd v Griffiths)
The waving of the time limites (Century Metals and Mining NL v Yeomans)
Failure to decide:

S 7 when a decision maker has a duty to make a decision, but fails to make the decision,
within a prescribed period or the making of decision has been unreasonably delayed. a person
who is aggrieved may apply for an order of review.

Refer to s 3(1)- failure; S 3(2) making of decision

Element 2: decision is of administrative character

The decision in question must be of an admi character. So, in other words, the decision must be
an executive action rather than a legislative or judicial character.
(Legislative acts usually involve the formulation of new rules of law having general application.
Judicial acts entail determination of questions of law and fact. )

But the term administrative character is not defined in the ADJR Act.

Then refer to CL:

Minister for Industry and Commerce v Tooheys(1982) 4 ALD 661

Tooheys sought to import a palletiser and requested the Minister make a determination to
exempt, or at least lower the duty. The Minister refused to make such a determination.

Was the decision not to make a determination of an admi character for the purpose of the
definition of decision to which this Act applies in the ADJRA?

Held: S 237 of the Customs Act confers the Minister the discretion to apply the general rule to
particular cases. He was simply applying the discretion.

So the decision not to make a determination was a decision that was of an administrative
character.
Queensland Medical Laboratory v Blewett(1988) 16 ALD 440

A provision of the Health Insurance Act 1973 enabled the Minister to change the pathology
services table in the Act.

The Minister exercised this power, applicant sought review.

Gummow J at 636: the effect of a decision to change the table to the Act. table is a part of Act,
the new table has the same effect end enforceability as the original table, and like an amended
statute.

So the decision to change the table was a decision of legislative character and not administrative
character.
Central Queensland Land Council Aboriginal Corp v Attorney-General (Cth) (2002) 116 FCR 390
useful principles to determine the character

Administrative decisions apply general rules to particular cases ; Legislative decisions determine
the content of general rules.

Provision for review of a decision on its merits is an indicator of an admi decision.

A decision that has a binding legal effect, in the sense that it directly affects the operation of
other statutory provisions, suggest it is legislative in nature.

Parliamentary control of decision = legislative decision.

A requirement of public consultation a legislative decision.

Burns v Australian National University (1982)

The term administrative is to describe all those decisions in executing or carrying into effect of
the laws of the Cth.

Also see Griffith University v Tang (2002) 221 CLR 99

Cth v Grunseit

An admi decision is a decision whichapplies the law, whereas a legislative decision is one which
creates law.
Federal Airports Corp v AerolineasArgentinas

Held to be administrative
Roche Products v National Drugs and Poisons Schedule Committee

Held: legislative decision

Anti-Discrimination Commissioner v Acting Ombusdman (2003) 11 Tas R 343

Admi character v Judicial character

Held: admi character

Hamblin v Duffy (1981) 3 ALD 153

Personal promotion decisions

Element 3: decision is made under an enactment to exclude review under the ADJR Act of nonstatutory decisions.
What is enactment?

definition of enactment in s 3 (1): an Act, or an instrument (rules, regulations or by-laws) of the

Act; an Act of States or Territories, or its instrument.
Griffith University v Tang

(1) the decision had to be expressly or impliedly authorised by the enactment, and

(2) test = the decision itself had to confer, alter or otherwise affect rights or obligations.

Ms Tang failed to establish the 2ed limb and her right was not affected, coz she voluntarily had
an agreement with Uni.

And the universitys disciplinary code didnt create the substantive right nor arise under an
enactment.
What is instrument?

It is made pursuant to the Act. Chittick v Ackland (1984) 1 FCR 254; Tang

It must have the capacity to affect legal rights and obligations. Burns v Australian National
University (1982) 40 ALR 707; Tang
Griffith University v Tang

And the universitys disciplinary code didnt create the substantive right nor arise under an
enactment.
Australian National University v Lewis (1996) 68 FCR 87


A university policy on the criteria and procedures for promotion of staff
Eastman v The Hon Besanko J [2009] ACTSC 70

The decision did not have the capacity to affect rights.

III. Standing
Steps:
1. - the type of interest: private or public
2. - who the applicant is: an individual or the Attorney- General
3. according to what remedy is sought.
Step 1:
if a private individual is seeking review of a decision which affects their private interest, then he
will always have standing. eg: private proprietary rights.
If decision affects public interest, then he will not always have standing. public interest=
interest enjoyed by a person because they are a member of a particular group. Eg: local
shopping center, not all residents have standing. it depends on what type of remedy the
individual is seeking.
Step 2:
In relation to public interest, AG will always have standing to seek review of a decision. An
individual may OR may not have standing, Re McBain; Ex Parte ACBC
AG can grant their fiat to another party.
Step 3:
1). For ADJR remedies
(NB: ADJR, not mirror complicated requirements for writs, but to simplify the existing CL requirement.)

ss 5, 6, 7: a person who is aggrieved may apply to the court for a remedy under ADJRA.

S 3(4): define a person aggrieved as someone whose interest are or would be adversely
affectedby the decision or the conduct

Where a private individual complain against a decision that affects a public interest, he must
suffer more than an ordinary member of the public.
(similar to the test for standing for equitable remedies. )
Tooheys v Minister for Business Affairs (1981) (FC) ;(1982) 4 ALD 661

The grievance will be shown coz the decision directly affects his existing or future legal rights.

Effect may be less direct, eg: affect him in the conduct of a business or affect his rights against
3rd party.

Held: no standing. (ADJRA should be given a wide interpretation.)

Ogle v Strickland (1987)

Censorship Board granted licence to import the film.

2 priests applied review under ADJR.

Held: cultural and spiritual significance for the priest. Have standing.
Australian Conservation Foundation v Minister for resources (1989) 19ALD 70

A woodchip mill, logging industry. Licence granted. ACF made application. The second applicant
is an owner of property close to mill.

Were ACF and MrHarewood persons aggrieved by the decision?

Held: ACF No 1 was not authority for the proposition that ACF will never have standing to
challenge a decision relating to environment matter. should be determined on a case by case
basis.

Held:

ACF had standing: had special interest, coz it was established and functions with gov financial
support to concern itself with such an issue.

Mr H had no standing: no special interest, coz his interest was no greater than any other
concerned member of the public.
North Coast Environment Council v Minister for Resources (1994)

A woodchip export licence granted.

NCEC is a regional body, active in a particular area of land closeness of its relationship to the
subject matter.

Held: apply special interest principle, have standing

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995)

RLA had moral concern for the sale of morning after pill in AU. Special interest principle applied.
Held: no standing, not in a better position compared to an ordinary individual.
Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd

Funeral services business, indigenous people

HC held: a business competitor could seek review of a decision which is favorable to a rival
operating in the same market.
2). For Equitable remedies: declaration / injunction common law
Special interest test: **Australian Conservative Foundation Inc v Commonwealth (No 1)
3). For Constitutional remedies: certiorari / Prohibition / Mandamus

IV. Grounds:
At CL:
-Illegality; irrationality (Wednesbury unreasonableness); procedural impropriety. - CCSU v Minister for
Civil Service [1985] AC
- Lawfulness; fairness; reasonableness -MIEA v Guo(1997) 191 CLR
At ADJR
1. S 5(1)(a):breach of the rule of natural justice (Also see JR Act s 20(2)(a))
:including right to a fair hearing+ right to an unbiased decision maker
1). * Fair hearing: Before a decision is made adversely affecting a persons right, interest or legitimate
expectation, the decision maker must give the person prior notice that a decision may be made, the
information relied upon, and the right tomake a submission in reply.
Threshold issue:
Whether an order to be made will deprive a person ofrights or interestsor the legitimate expectation of a
benefit.
(a). depriveexisting rights or interests, privilege or benefits
Kioa v West (1985) 159 CLR 550

Decision to deport MrKioa and his family; Held: in breach of natural justice, set aside.a trend to
treat all immigration decisions as decision that affect a person in a direct and individual way and
thus attract a right to a fair hearing.

The individual is entitled to know the case sought to be made against him and to be given an
opportunity of replying to it

Mason J at 528: right or interest must be understood as relating to personal liberty, status,
preservation of livelihood and reputation.

Brennan J at 619: whether a power apt to affect the interests of an individual in a way that is
substantially different from the way affecting the public at large.
Ainsworth v Criminal Justice Commission(1992) 175 CLR 564

Tiger machine, CJC report was not in favor of Ainsworth

Reputation is an interest attracting the protection of the rules of natural justice

Testro Bros Pty Ltd v Tait

Advisory report, if not directly affect interest, rule doesnt apply

Unless it is implemented by final decision.

(b). legitimate expectation

Legitimate expectation should be distinguished from a mere hope:

A rejection of an application or denial of a The cancellation or refusal to renew an existing
hope= mere hope NJ doesnt apply
entitlement = legitimate expectation NJ apply.
A statutory benefit or privilege does not itself Obtaining or continuing to enjoy a renewal of license =
give rise to a legitimate expectation: South legitimate expectation
Australia v OShea (1987)
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

Minister has power to order the deportation of non-citizen convicted of an offence to be punished
for 12 months. But AAT recommended no to deport in favor of MrHaoucher. Recommendation
was rejected without being tabled in parliament.
Annetts v McCann (1990) 170 CLR 596

Parent of 2 boys who had been found dead in WA desert while returning from being jackaroos at
an outlaying station has a sufficient interest to assert a right to make submissions to a coronial
inquest into their deaths, for protection of reputation.

Legitimate expectation that the Coroner would not make any finding adverse to the interest
without giving the parents an opportunity to be heard.

Legitimate expectation only gives a right to procedural fairness; not to substantive

protection.
Attorney-General (NSW) v Quin (1990) 170 CLR 1

MrQuin, a stipendiary Magistrate, court was abolished, he was not appointed. Sought declaration
that he should be reappointed unless they were unfit for job. HC dismissed his claim.

Said his expectation of being considered under former policy could not be enforced substantively
by a court. Natural justice does not to give substantive protection.
Minister of State of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Deportation, criminal conviction, seven dependants in AU. Examination of impact on the children
from his deportation.

Held: failed to inviteMrTeoh to make a submission on whether a deportation order should be

made is contrary to an international obligation of AU in a ratified convention.

The legitimate expectation was disappointed, although international convention was not AU law.

Mchugh J dissented, book p 606.

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1

Deportation, criminal conviction, children. The department wrote him a letter seeking details of
the carer of children, so as to contact them to assess the impact.

But they did not contact, nor inform Mr Lam before making a deportation decision.

Held: no breach of natural justice.

what the content of that duty?
Consider content of duty as to fair hearing:
Right to legal representation?
Right to an interpreter?
Duty to give reasons under common law?
Can merits review cure procedural unfairness earlier in the process?
Right to an oral hearing? Or just written submissions?
Right to an adjournment?
2) Unbiased decision maker:It requires that all decision-makers must be free of any reasonable
suspicion or preconception. If biased, cannot participate in decision-making, or the decision is invalid.
a). Actual bias
TEST: Decision-maker must be shown to have a closed mind and was not open to persuasion.
MIMA v Jia(2001) 205 CLR 507:

Jia, decision of deportation, convicted of rape.

Minister made a general comment on radio interview without specify Jias name.

HC: no actual bias or apprehended bias. Minister have political duty, as a political officeholder, entitled to express, prior to making a decision, views consonant with a lawful policyit
is his function to do so. So no actual bias.
NB: actual bias requires the applicant to prove the actual state of mind of decision-maker hard to
establish in evidentiary sense, but usually success on ground of improper purpose.
b). Apprehended bias
Objective Test: the impression the reasonable person would have:Ebner v Official of Trustee in
Bankruptcy; Clenae Pty Ltd v Australian and New Zealand Banking Group (2002) 205 CLR 337Arise
where a fair-minded lay observer might reasonably apprehend that the judge might not bring an
impartial mind to the resolution of the question.

Bias must be something more than reaching a preliminary view - Johnson v Johnson

Bias must be firmly established /is not to be found lightly - British American Tobacco

No actual fault need to be shown - Hot Holdings v creasy

Fair-minded observer is someone with knowledge of particular facts, not just general knowledge,
eg: knew a juror arranged for flowers to deceaseds mother in Webb v R
Examples of bias: book p644

Where decision maker communicate privately with one party. Re JRL

He acts at fact finder, prosecutor and judge. R v Lee; Ex parte Show

He has views indicating he may pre-judge the outcome Koppen v CCR

Has previous role in decision: made original decision, then rehears the same matter on appeal
Maher

He made interlocutory decisions in the same proceeding Michael Wilson

He exhibits toward a party or witness a strong animosity or hostility, or partiality or favoritism

Vakauta ; Johnson v Johnson

A close family, personal or professional relationship b/w maker and a party Hot Holdings

decision-makers financial or personal interests involved Ebner; Kirby v Centro Properties Ltd

Ebner

The trial judge had disclosed during the trial that he was a beneficiary of family trust held 8000
shares in a bank that was a creditor in bankruptcy proceedings being heard by him.

The value of the shares would be unaffected by outcome of proceedings

A relative of the bankrupt objected the judge hearing the case.

HC: the judge was not disqualified under the apprehended bias.

Eg: Holding a not insubstantial direct pecuniary or proprietary interest in the outcome of
litigation bias.
Vakauta v Kelly (1989) 167 CLR 568

Trial judge made comments on 3 Dr called by the defendant. Ostensible bias.

where a decision-maker exhibits towards a party or a witness in a hearing either strong

animosity or hostility, or partiality or favouritism.

But HC said, the failure of not complain at the time the remarks were made amounts to a
waiver of any bias.
Hot Holdings v creasy (2002) 210 CLR 438

If personal contact, or where there is a close family, personal or professional relationship

between the decision-maker and a part bias

Facts:

The Minister for Mines in WA had granted an expiration license to Hot Holding upon the
recommendation of a mining warden and two departmental officers.

Creasy whose application was refused, argued that the Ministers decision was tainted because
the two public servants who had given the Minister advice had a financial interest in the outcome
of the license application process.

One official had shares in a co with an option to purchase an interest in the expiration license.
The 2nd officials son held shares in the same company.

Held:

A fair-minded observer, informed of all the facts, would know that the Minister was personally
impartial.

The minister had no pecuniary interest such to give rise to the appearance of apprehension of
bias.

He had no knowledge of the officials shareholdings; there was no vicarious bias.

The officials did not participate significantly in the decision making process.
British American Tobacco Australia Services Ltd v Laurie(2011) 242 CLR 283

Mr Laurie had smoked for decades, instituted a tort claim against BATAS. Died in 2006. His
widow continued the proceedings

BATAS was involved in another suit in 2002, the same judge, who made interlocutory
findings.Not in the same proceeding

Bias must be firmly established and not to be found lightly

Held: no apprehended
Exceptions/Defences:

Necessity: Ebner

Waiver or consent: Vakauta

Statutory modification and possible special circumstances: British American Tobacco

2. non-compliance with law-making procedures:
S 5 (1)(b): procedures required by the law were not observed in making decision
NB: distinction b/t mandatory procedural requirements and mere directory requirements.
is there any non-compliance with a procedure required by law? See facts
: would non-compliance would invalidate the decision? Test in Project Blue Sky .
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
The testis whether the purpose of the legislation is that a decision made in breach of the
provision should be invalid

This is an issue of statutory construction, by referring to the language of the provision, its
subject matter, and object of the whole statue.

Project Blue Sky, a NZ company, challenged ABAs local content standard which requires a
minimum percentage of TV show should be produced in AU, for breach convention with NZ.
P864

HC: not invalid, but declaration that it was unlawfully made.

Facts:

The Broadcasting Services Act authorised the ABA to set minimum Australian content
standards on TV.
The Act required that this power be exercised consistently with Australias obligations under
treaties.
The ABA set minimum Australian content requirements
These were challenged by 6 NZ companies.
They argued that the requirements were inconsistent with the Australia-NZ Closer Economic
Relations Trade Agreement 1983, and thus invalid.

Held:

The minimum content requirements were in violation of the Act as they were inconsistent with
the Agreement.
However, it was not a purpose of the Act that a breach of the consistency with internationali.
obligations requirement would invalidate the decision.

Further, this would cause great public inconvenience. Also, decision-makers should not be
wed too closely to international law which is often indeterminate or aspirational.

Consequently, the appropriate remedy was prospective unlawfulness a person with a

sufficient interest could sue for a declaration that the ABA was in breach of the Act and obtain
ii.
an injunction restraining actions based on the unlawful conduct.
MIC v SZIZO(2009)

No substantive injustice arose although procedures not technically followed. HC upheld the
decision.
iii.
iv.
3. Lack of jurisdiction:
s 5 (1)(c): the person who makes the decision did not have jurisdiction/power to do so.
whether the authority had the power to make the decision?
If the authorized principaldelegates the power of making decisions to another officer.
discuss whether the delegation is valid.
OReilly v Commissioner of Taxation(1982)

Legislation gives tax commissioner power to sign income notice. Delegated to a person. Payers
are unhappy.

HC: practical and administrative necessities. Legislation intended the delegation. So delegated
person has power.
Pattenden v Commissioner of Taxation(2008)

Taxation Act, departure prohibition order was issued. Pattenden was prohibited from leaving AU.

HC: distinguished from OReilly. the power is about liberty of person. The underlying interests
are crucial,egdeportation order. The Minister would exercise the power personally unless the
statute specifically provides delegation. power to restrain the liberty should not be delegated.
delegation was invalid.
4. s 5 (1) (d): the decision was not authorized by the enactment
delegated legislation/ subordinate legislation, eg regulations or rules according to an Act.
whether the authority had the power to make the particular decision?
AscertainthemeaningoftheempoweringAct,
Examine breadthoftheregulationordecisionand decide whetherlatterisauthorisedbyformer.
statutory interpretation
Shanahan v Scott Activity

An Act as to marketing eggs. Then regulation says intrastate egg is prevented.

Purpose of regulation to stop sale of NSW eggs, so regulation to prevent use of cold
storage not authorized. Regulation went beyond the Act.
Foley v Padley

Act gave Council power to make regulations to regulate control or prohibit activities which
may prohibit enjoyment of the mall. Pursuant to this, is made regulations prohibiting
distribution of certain religious material.

Held: intra vires.

power to regulate an activity presumptively narrower in scope than a power to prohibit that
activity
Paull v Munday

regulation prohibit pollution, but Act does not say that.

The means/ends distinction. An influential (but not always decisive) distinction

Power to make rules specifying the means to an end, may not support rules that do no
more than specify the end to be achieved

5. s 5 (1) (e) improper exercise of the power

s 5 (2): sets out a list of factors that will make an exercise of power improper.
a)
S 5 (2) (a) (b) irrelevant / relevant consideration
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)
Tickner v Chapman (1995)
i.
Determine relevant consideration by close reference to statute; refer to statute, express,
or implied
ii.
not considerspecific irrelevant consideration.
b)
S 5 (2) (c) Improper Purpose:
For what purpose can the statutory power lawfully be exercised? - Interpretation
Express purpose OR Implied purpose
Toohey

Statute will define purpose

If absent definition, looking at the title, structure and text of an Act, and the nature of the
power that is being exercised
For what purpose was the power actually exercised?
This is primarily an issue of fact answered by analysis of documents and other statements that
record how and why the decision was made and by inference from the facts. Campbell
case;Toohey case
Substantial v dominant purpose:Thompson v Randwick Corporation
Multiple purposes:Samreinatter
c)
S 5(2) (d) Bad Faith
It is rarely established. Closely related to the ground of fraud.
SBBS case

serious matter involving personal faultmust be alleged and proven; not possible to give a
comprehensive definition; absence or presence of honesty is crucial.
d)
S 5 (2) (e) - Self fettering:
Not to decide the matter under the influence of another
Telstra Corp v Kendall
there is a fine line between saying that a decision-maker has taken into account as evidence
what is said by another person in arriving at his or her decision and saying that the decision
was made at the direction or behest of another.
e)
S 5(2) (f) consider Policy without regard to merits of case:
issue related to discretion; not the policy in merits review.
Rendell
a body upon whom Parliament conferred a discretion must exercise that discretion in
accordance with the legislation
f)
s 5(2) (g)- Unreasonableness:
Often claimed, not frequently successful; can lead into merits review. can be used with other ground
Wednesbury case (UK)

It is true that discretion must be exercised reasonably. Now what does that mean? ...Similarly,
there may be something so absurd that no sensible person could ever dream that it lay within
the powers of the authority...it is true to say that, if a decision on a competent matter is so
unreasonable that no reasonable authority could ever have come to it, then the courts can
interfere. Lord Greene MR

but to prove a case of that kind would require something overwhelming.

The effect of the legislation is not to set up the court as an arbiter of the correctness of one
view over another. It is the local authority that are set in that position and, provided they have
acted within the four corners of their jurisdiction, this court, in my opinion cannot interfere.

So the ultimate outcome in the case was whilst the ground of unreasonableness was explained,
it was not found to exist on the facts.
Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corporation Au case

three paradigms of unreasonableness:

the first involves the capricious selection of one of a number of powers...the second involves
discrimination without justification...the third involves the exercise of power by withdrawing [an
approval or benefit in a manner that] was out of proportion to the scope of the power.
MICA v Li [2013] HCA 18

evident and intelligible justification

Reasonableness was expressly stated to not be limited to irrational or bizarre decisions
Regarded as a reaffirmation of the importance of unreasonableness as a ground of judicial
review in Australia
g)
S 5(2)(h) - Uncertain:
= The result of the exercise of the power is uncertain.
King Gee (1945)

there must, I think, be standards or criteria which held that a prices order which is intended to
fix prices was invalid as it failed to provide an objective standard by which prices were
determined.
h)
S 5(2) (j) abuse of power

6. S 5(1)(f) - Error of law, whether or not appear on the record of the decision.
= an error made in applying a statutory principle. Eg: a provision conferring strict liability, and the error
made by a decision-maker who takes into account fault
(NB: error of law can occur even though within jurisdiction. jurisdictional error. )
7.s 5(1) (g) -Fraud:
Not easy to prove.
Very similar to bad faith. But fraud linked to Fraud linked to dishonesty, serious allegation to make
Most frequently not fraud of actual decision-maker but rather a third partys fraud undermined the
statutory integrity of the decision
8. S 5(1) (h) -No evidence: to justify the dicision
s 5(3)
(a) the person who made the decision was required by law to reach that decision only if a particular
matter was established, and there was no evidence or other material (including facts of which he or she
was entitled to take notice) from which he or she could reasonably be satisfied that the matter was
established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that
fact did not exist
Rajamanikam(2002)

No evidence does not arise where the Court can be persuaded to a different view of the facts
9. s 5(1)(j) - Contrary to law
Closely related to unreasonableness, and also s.5(2)(j) abuse of power
Principle of legality = statutory interpretation/ not ground, but used in interpreting legislation
Entick v Carrington (a 1765 UK case)

govt action (issue & execution of search warrant) unlawful unless there is legal authority to
support the action
A v Hayden (No 2)

govts, even in the pursuit of national security objectives, do not inherently possess power to
authorize their officials to act in defiance of the criminal law.
Church of Scientology Inc v Woodward(1982) 154 CLR 25

judiciary can examine whether admin action undertaken by national security agency is
supported by legislation establishing the agency.

Spigelman develops notion - principle of legality is an interpretive principle incorporating a

number of rebuttable presumptions. Eg that parliament did not intend: to invade
fundamental rights, freedoms and immunities or to restrict access to the courts etc

Range of interpretive principles comprehended by the principle of legality was also

considered in Momcilovic

Statutory authority is required for any government action that is coercive, punitive, intrusive
or threatening; but government otherwise has an inherent power as a legal person to
function. Plaintiff M70

Clear unambiguous statutory language is required to authorise activity by a public official

that is otherwise tortious or that interferes with a fundamental right, freedom or immunity.
Coco

Legislation presumed not to abrogate a fundamental right, freedom or immunity other than
by express or unambiguous language, including objective criteria to guide decision-makers
faced with broad statutory expressions. Evans
Ultra Vires (beyond power, a CL term, not in ADJR)
Narrow meaning concerned with: source of power and process followed

i.
substantive narrow: Whether exercise of power comes within authority of statute
ii.
procedural narrow: Whether procedural requirements for grant and exercise of power met
Broad meaning concerned with: grounds related to legality and unreasonableness
i.
Whether power has been properly exercised and not abused
V. Remedies under ADJR:
NB: - easier to obtain AJDR/ Pt 3 JR Act remedies
- availability of a remedy depend on the facts and the stage of the decision making.
- no damages. Each party bears own costs.
- powers conferred in s 16 match common law or equitable remedies
- s 16 construed liberally, not confined by limitations of writs Conyngham; Park Oh Ho
Statutory remedies under ADJR Act:
s 16 general power of FC and FCC in respect of application for order of review
(1)in respect of a decision:
(a) an order quashing or setting aside the decision, or part of decision, with effect from the date of the
order or from such earlier or later date as the court specifies.
(b) and order referring(remit) the matter to original decision maker for further consideration, subject to
such directions as the court thinks fit.
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing. do
no expand the power of court to provide for an award of damages Park Oh Ho
(2) in respect of conduct:
(a) an order declaring the rights of parties
(b) an order directing any of parties to do, or to refrain from doing, any act or thing.
Remedies (statutory or CL) are discretionary:
Court has discretion to refuse a remedy, notwithstanding that a breach of a ground of review has been
established
Standard discretionary grounds for refusal of a remedy are:

inexcusable delay by an applicant in commencing proceedings;

ineffectiveness or futility of granting a remedy;

existence of a more convenient and satisfactory alternative remedy;

failure of the applicant to utilise statutory appeal procedure before commencing judicial review
proceedings (Kamha v Australian Prudential Regulation Authority- AAT was an adequate
alternative to judicial review.)
acquiescence by an applicant in or waiver of a breach;
unwarranted prejudice to the interests of a party relying on the administrative decision;
competing public interest;
stopping an imminent national election.
B. Common law judicial review
I. Common law Jurisdiction:
1).S 75 - Constitution(Cth) HC- original jurisdiction
2). S 39B- Judiciary Act 1903 (Cth) Federal Court of Australia original jurisdiction
II. Justiciability:
NB: - no settled categories
- issue is: is the power of the Executive not suitable for review by court?
Consider following principles:
i. whether the applicants right are sufficiently affected
ii. thenature or the subject matter of the dispute
iii. theidentity of the decision maker: eg - cabinet
iv. where the CL jurisdiction of HC or FC is sought , whether a matter exist
v. (the existence of a privative clause this is an issue in jurisdictional error)
Council of Civil Service Unions v Minister for the Civil Service [1985] 1AC 374

Margret Thatcher, the PM, also the Minister for Civil Service, used the royal prerogative power
and made a decision to alter the terms and conditions of GCHQ staff who were responsible for
ensuring the security of nation and also the members of CCSU.

The decision stipulated that members could no longer belong to a trade Union, because
industrial disputes would impair national security.

CCSU sought JR for the making of the decision breached the rules of procedural fairness by
failing to consult with them before making the decision.

Issue is
whether the use of prerogative power made the dispute non justiciable?
Whether the fact that dispute dealt with national security made it non justiciable?

Held:

Simply because a prerogative power was used to make the decision, it did not automatically
make a decision non justiciable.

As to national security: due to its sensitive nature of material, non justiciable.

So even though the principles of procedural fairness had been breached, the dispute was non
justiciable.

This case indicate: consider the subjective matter or nature of decision: eg national security;
consider if the decision adequately affected overlap with standing.
* Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd(1987) 15 FCR 274

In 1986 the Federal Cabinet made a decision to seek the inclusion of a part of Kakadu National
Park to the World Heritage List. This was made using the royal prerogative power and to adhere
to Aus obligation under international convention.

Peko was a mining co holding mining leases in this area. Although Pekos interest was not
immediately affected, if inclusion is successful, it will be affected. So sought review.

Held: non justiciable court considered the interest affected, the nature of dispute, the identity of
decision maker. adopted Lord Diplocks test in CCSU

Wilcox J:at 304

not exclude judicial review of a decision merely because it was made by Cabinet, or in
exercise of the prerogative powers, maybe justiciable
Aus international relations, is non justiciable

Bowen CJ:at 278-9

Subject matter involved complex policy consideration relating to the environment, right of
Aboriginals, mining and Aus economy, non justiciable

Sheppard J: at 281
Identity of decision maker: Cabinets decision may not be justiciable, coz it is essentially a
political organization.
Church of Scientology Inc v Woodward

Church sued ASIO (Au Security Intelligence Org) breached powers by obtaining intelligence
concerning the church and its members.

ASIO argued it is a matter of national security, so non justiciable

Held: although about national security, the dispute was actually a dispute of application and
interpretation of a law and was about if ASIO acted within legislative power. So justiciable.
Re Ditfort, Ex parte Deputy Commissioner of Taxation(1988) 19FCR 347

International relations (generally non justiciable as in CCUS case): an extradition order

requested by the Au gov and granted by the German gov.
Held: justiciable, due to the fact that the dispute involved the interpretation of the Bankruptcy Act
1966(Cth), which is a justiciable issue, and was not a dispute relating to negotiations b/w AU and
Germany.
Hicks v Ruddock (2007) 156 FCR 574

Hicks, prisoned in Guantanamo, indefinite. Want to be release by help from Au gov.

International relations involved.

Held: there was not automatic non-justiciabilityapplied to foreign relations.

* Re McBain; ex parte Australian Catholic Bishops Conference(2002) 209 CLR 372

One of the issues in the case is :if the dispute was a matter, that is some immediate right, duty
or liability required to be resolved by court?

Held: non justiciable, no matter

The church may have concern to the case, but had no controversy with Dr McBain. They merely didnt
like the outcome of the McBains case. So there was no immediate right, duty or liability as a matter to
be determined.
Re Judiciary & Navigation Acts (1921) 29 CLR 257

HC: legislation which purported to give an advisory opinion invalid as this was not a matter
subject to review.
III. Standing
Steps:
1. - the type of interest: private or public
2. - who the applicant is: an individual or the Attorney- General

3. according to what remedy is sought.

Step 1:
if a private individual is seeking review of a decision which affects their private interest, then he
will always have standing. eg: private proprietary rights.
If decision affects public interest, then he will not always have standing. public interest=
interest enjoyed by a person because they are a member of a particular group. Eg: local
shopping center, not all residents have standing. it depends on what type of remedy the
individual is seeking.
Step 2:
In relation to public interest, AG will always have standing to seek review of a decision. An
individual may OR may not have standing, Re McBain; Ex Parte ACBC
AG can grant their fiat to another party.
Step 3:
1). For Equitable remedies (declaration/injunction):
Special interest test: **Australian Conservative Foundation Inc v Commonwealth (No 1) (1980) 146
CLR

A company, Iwasaki operating a tourist resort, required to prepare an environmental impact

statement and put to the public for comment.

ACF made comments, but relevant Minister declared the proposal would go ahead. ACF brought
action, the peak national advocacy body on environment matter.

Given ACFs interest in environment matters, did it have standing to bring an application for
judicial review of the decision regarding Iwasakis proposed development?

Held: no standing. Coz no special interest, coz a natural person does not acquire standing
simply by reason of the fact that he holds certain belief.a body formed to advance the same
beliefs is in no stronger position. special interest is more than a mere intellectual or emotional
concern.
Sinclair v Mining Warden at Maryborough distinguish

Facts are similar. But held to have standing, coz a person became an objector the relevant
legislation gave a right to the objector to have a hearing on the matter.
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 followed the ACF case

Two aboriginal women applied for injunction preventing works upon the site which would destroy
their aboriginal relics.

A person or group of persons,will have a special interest in a matter when they are more
particularly affected than other members of the Australian community. Held: have standing.
Ogle v Strickland (1987)

Censorship Board granted licence to import the film. 2 priests applied review. Held:cultural and
spiritual significance for the priest. Have standing.
Australian Conservative Foundation Inc v Commonwealth (No 2) (1989)

9 yrs passed since No 1 case. The public becomes more concerned with environment issue.
have standing.
2). For Constitutional remedies
Group A certiorari / prohibition

Test is different from the tests for determining standing to seek equitable remedies or ADJR
remedies.

Remember their purpose is to correct jurisdictional error, for the administration of justice
allow a stranger to challenge a defective decision

applicant needs not to be an aggrieved person, and he may have no interest in the subject
matter = stranger
Re MecBain; Ex Parte Australian Catholic Bishops Conference (2002)
Group B Mandamus
The test is more restrictive than above. A stranger does not have standing to seek mandamus, coz
this remedy is to command the decision maker to perform a duty.

Traditional test = special interest test, as in ACF v Commonwealth (1980) 146

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 (p 164)

Mr Sinclair made an object to the mining license application on his own behalf and on behalf
of the Fraser island Defence Organization. environmental damage would be suffered on
Fraser Island.

Warden heard the application, and reject Mr Ss view.

Had the Warden correctly conceived his duty to decide the mining lease applications? If no,
Mr S would be entitled to an order of Mandamus?

HC Held: No. Granted a writ of mandamus, coz the warden had misconceived his duties.
IV. Grounds: ADJR
At CL:
- Illegality; irrationality (Wednesbury unreasonableness); procedural impropriety. - CCSU v Minister for
Civil Service [1985] AC
- Lawfulness; fairness; reasonableness -MIEA v Guo(1997) 191 CLR
V. Jurisdictional error:p763
The reason of
It is a requirement for granting the remedies of prerogative writs:
need
of
For prohibition and mandamus, has to have jurisdictional error
Jurisdictional

For certiorari, can be granted for jurisdictional error, error on the face of
error is:
record.

If it is errors of law on the face of the record, the only remedy is certiorari
ADJR
J error is completely different from person lacked jurisdiction in s 5(1)(c) of

ADJR Act.
MIAC
v
Also, note error of law under s 5(1)(f), may or may not refer to J error. The
SZMDS
point is under ADJR, it is always about statute interpretation, namely, whether
(2010): J error
the maker or court made error in interpreting a particular provision of a statute.
does not play
If they did, that is the ground of review.
the
same : if maker acting within their power, but makes a breach of procedural fairness.
central
role That would take him outside my arms, and amounts to a J error.
under ADJR But in this situation, s 5(1)(c) would not be what is relied on to argue. We would rely
Act.
on s 5(1)(a).
S 5(1)(c) focus on what the power they may have. J error is much wider that it, coz
failure to take into account relevant consideration. All those can amount J error.

It defines reviewable error and delimits the proper scope of judicial review.
Non-jurisdictional error cannot be remedied (unreviewable)

For separation of powers, to retain concept of J error Spigelman CJ

Arises where a decision maker has exceeded the authority or power conferred
upon him.

Remedies under s 75(v) are only available if a decision involves jurisdictional

error. HCs jurisdiction cannot be taken away be statute.

NB: error of law = incorrect decision that a maker is authorized to decide=an

error within jurisdiction. Jurisdictional error = a decision made outside the limits
of the power or lack of power.
Examples:

A mistaken assertion or denial of the existence of jurisdiction.

A misapprehension or disregard of the nature or limits of the makers function or power.

Acting wholly or partly outside the general area of makers jurisdiction

Mistakes as to the existence of jurisdictional fact or other requirement as a condition to the

validity of the decision.
Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82 definition of J error

Hayne J: there is a J error if the decision maker makes a decision outside the limits of the
functions and powers conferred on him or her, or does sth which he or she completly lacks
power to do.
Craig v South Au (1995) 184 CLR 163

Mr Craig was charged with 3 offences, for 18 yrs imprisonment. So sought Dietrich order to stay
proceeding, cannot find legal representative with on fault of their own. Granted.

But the Crown sought certiorari to quash the decision for Judge erred in considering evidence
and Craig was able to obtain legal representative.

HC: not a jurisdictional error merely because judge came to the wrong conclusion regarding the
evidence. Judge had correctly construed the extent and nature of his jurisdiction.Held that an
error could not be quashed by certiorari, because any such error was neither a jurisdictional
error, nor an error on the face of the record of the District Court.

HC draw a distinction b/w the extent of J error made by an inferior court and admi
decision maker: mistakenly assert or denies the existence of jurisdictional or if it misapprehends
the nature or limits of its functions or powers in a case where it correctly recognises that
jurisdiction does exist. Court more likely to hold that a legal error by a tribunal is a J error.

This case is an authority that failure of taking into account of relevant consideration, acting for
improper purpose will amount to J error.
* M 70 HC: affirmed the concept of jurisdictional facts

Where a power is expressly conditioned upon the formation of a state of mind by the decisionmaker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of
mind will constitute a jurisdictional fact.

Minister's declaration cannot be a declaration of hope or belief or expectation that the specified
country will meet the criteria at some time in the future even if that time is imminent.

It is a misconstruction of the [statutory] criteria to make a declaration of their subsistence based

upon an understanding that the executive government of the specified country is keen to
improve its treatment of refugees and asylum seekers, per French CJ
Project Blue Sky v Australian Broadcasting Authority(1998) 194 CLR 355

What is the consequence when it is established that a maker did not follow criteria for lawful
decision-making? General rule = decision invalid, void abo initio. BUT legislation can stipulate
this.
The Legislative purposetestis whether the purpose of the legislation is that a decision made
in breach of the provision should be invalid

This is an issue of statutory construction, by referring to the language of the provision, its
subject matter, and object of the whole statue.

Project Blue Sky, a NZ company, challenged ABAs local content standard which requires a
minimum percentage of TV show should be produced in AU, for breach convention with NZ.
P864

HC: not invalid, but declaration that it was unlawfully made.

Bhardwaj

MrBhardwajs student visa was cancelled for he failed to attend the class. Tribunal remade the
decision for finding that they missed a fax which containing an evidence that will totally change
the decision.

Relevant consideration = J error

Decision affected by jurisdictional error can be remade but only in the very clearest of cases.
Plaintiff S157/2002 v Cth (2003) 211 CLR 476

Plaintiff challenged a decision fo the Refugee Review Tribunal confirming a refusal to grant a
protection visa, on the basis of denial of natural justice.
Jadwan(2003)

A license to operation a KFC facility, subject annual review. Cancelled.

What is the effect of a decision being made with J error?

Legal and factual effect of the decision, will depend on the particular statute

Reaffirm project blue sky, but just in different context.

Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531

Mr Kirk, a director of a company which owned a farm in NSW. Mr Palmer was employed to
manage the farm and given an all-terrain vehicle to use on the property, which he crashed when
travelling off-road down a steep slope and was killed. Mr Kirk and the company were convicted of
offences under the Occupational Health and Safety Act 1983 (NSW) and unsuccessfully
challenged the convictions. The NSW Court of Appeal held that the lower court decisions did not
disclose jurisdictional error and dismissed the application for certiorari. The High Court granted
special leave to appeal and reversed the decision of the NSW Court of Appeal.

Mr Kirk and the company sought orders of certiorari to quash their conviction for breaching
occupational health and safety legislation

Issue: if the errors made by the industrial court of NSW appeared on the face of the record or
were jurisdictional error?

Held: the Industrial Court misapprehended the limits of its functions and powers, which led to
making orders convicting Mr Kirk and Company when it had no power to do so.
Private Clause not automatically invalid, coz try to balance the parliamentary supremacy and
judiciary separation of power.
Types of private clauses:
1)
This decision is final and conclusive and not appealable in any court
Hockey v Yelland(1984) 157 CLR 124

H made a claim for workers compensation for suffering an injury in Act. Claim was
refused by the Board. Sought JR, SC court held that he didnt make out a ground, so
failed. Appealed to HC

One issue is: a clause provide: the determination of the Board is final and conclusive..the
claimant shall have no right to have matters heard and determined by way of appeal.

Although HC held no ground, court held the clause did not oust the judicial review of the
SC by explaining the words heard and determined.
2)
This decision shall not be quashed by any court, or no writ or certiorari shall lie against the
decision
Houssein(1982) 148 CLR 88

a clause provided any decision of the commission shall be final...cannot be reviewed,

quashed.

HC: it was effective in limiting the range of judicial review of decision.

NB: Although it can oust a SCs ability to grant particular remedies, it will not be effective to
prevent HC from granting remedies, coz HCs jurisdiction is sourced from Cth Constitution.
3)
Time limit for application for judicial review.

Plaintiff S157/2000 HC case

VI. Remedies:
NB: - Remedies are discretionary
- court cannot make an order which goes to the merits of a decision, but focus on legality
1. constitutional writs (prerogative writ)
Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82

useterm constitutional writ, instead of prerogative writ

MrAala commenced an action in the original jurisdiction of the HC, contending that he had been
denied natural justice by the RRT, which had affirmed a decision by a delegate of the minister
that MrAala did not qualify for a protection visa. Reason is the Federal court could not at that
time grant relief on the ground of breach of natural justice.

HC: upheld his contention and granted 3 prerogative writs.

Bodruddaza v Minister for Immigration and Multicultural Affairs(2007) 228 CLR 651

confirm the term.

1)
Certiorari:
Craig v South Australia (1995) 184 CLR 163
Effect is that the decision is quashed
Re Refugee Review Tribunal; Ex parte Aala
*R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co[1924] 1
KB 171 - Atkin LJ outlined a number of requirementsto grant certiorari:

There has been an exercise of legal authority/public power

The decision mustaffect the rightsof a person:

Hot Holdings Pty Ltd v Creasy(1996) 185 CLR 149

Legal effect upon rights

*Ainsworth v Criminal Justice Commission(1992) 175 CLR 564

apreliminary decision is not sufficient to affect a persons right

so not eligible to be quashed

Facts:

A was a producer of gaming and poking machines

Qldgov sough advice from CJC as to implementation machines to Qld

CJCs report recommended that A not be permitted to participate in Qld

A was not informed nor allowed to answer allegation, so sued for breach of
procedural fairness and seeking certiorari against report
Issue:

Did CJCs report affect the rights of A? so A was eligible for certiorari?

HC: there was a breach of rule of procedural fairness. But certiorari was not
available.

CJCs report had no legal effect and carried no legal consequences.

It was just a recommendation that was not required to be followed by the

ultimate decision maker.

The maker must have a duty to act judicially = must be a judicial or administrative
decision maker

Mus have madejurisdictional error or error of law on the face of the record; breach
of natural justice or fraud. P 916
*Craig v South Australia (1995) 184 CLR 163

Mr Craig was charged with 3 offences, for 18 yrs imprisonment. So sought

Dietrich order to stay proceeding, cannot find legal representative with on fault
of their own. Granted.

But the Crown sought certiorari to quash the decision for Judge erred in
considering evidence and Craig was able to obtain legal representative.

HC: not a jurisdictional error merely because judge came to the wrong
conclusion regarding the evidence. Judge had correctly construed the extent
and nature of his jurisdiction.

For inferior court, error in deciding question of law of fact is not jurisdictional error,
.
But for administrators, it is jurisdictional error, eg ignore relevant material, make a
mistaken conclusion.
For superior court, its decision cannot be quashed, eg SC and HC. HC cannot quash
SCs judgment but can quash FCs decision, coz s75 just allow HC to have
jurisdiction on issue against federal officers. Plaintiff S157/2002 v Cth (2003)
2)
Prohibition
Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82

torefrain a maker from exceeding its power

*R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co

Requirements apply, the same with Certiorari

Certiorari is issued to correct the legal error after it has been made.

Prohibition is made before the decision is concluded.

But in Re Wakim; Ex parte McNally (1999), prohibition was granted to stop further
operation, coz it may affect 3rd party, and not issue certiorari.
3)
Madamus
It requires that a public duty remains unperformed. R v War Pensions Entitlement Appeal
Tribunal; Ex parte Bott(1933) 50 CLR 228
Plaintiff M61/2010E v Commonwealth(2010) 243 CLR 319
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd
(1949) 78 CLR 389
Yarmirr v Australian Telecommunications Corporation(1990) 20 ALD 562 where existence of
public duty is in issue
Mudginberri Station Pty Ltd v Langhorne(1985) 7 FCR 482 Unperformed duty:
Sinclair v Mining Warden at Maryborough(1975) 132 CLR 473

A mining co lodge an application for mining lease on Fraser Island

Warden should consider the application and make a recommendation to the Minister to
make the final decision. Mr Sinclair made an objection.

Warden is required: if public interest is affect, under a duty to reject the application.

But Warden: as public interest is not affect, granted the application

Held: the discretionary duty was misconceived, so remain unperformed.

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR51

RIA overpaid $2M stamp duty to CST over yrs. Required refund but refused.

Should the court order Madamus to compel the refund?

Held: yes, coz duty is not discretionary duty. There was only one correct and lawful
decision to be made.
2. Equitable remedies
1)
Injunction coercive
-to order party to do particular thing (mandatory): Batemans Bay
- to order party not to do particular thing (prohibitory): John Fairfax & Sons Ltd v Australian
Telecommunications Commission[1977] 2 NSWLR 400
2)
Declaration- not coercive, unless commence a new suit.
- to declare the existence of a legal right or duty
- court has discretion, although requirements have been met. Eg: ineffective

- can issue against public body, or private power: Fairfac& Sons v ATC [1977] issued mandatory
injunction against Commissions failure to maintain the equipment leased to FS, not mandamus,
although C is public body, but under private contract.
Enfield v Development Assessment Commission

Person applying must have standing to seek equitable relief. There must be an actual and
not a hypothetical issue to be resolved
Ainsworth v Criminal Justice Commission(1992) 175 CLR 564

Court must heed the legality/merits distinction in framing, and not usurp authority of the
executive decision-maker.

Declaration granted, not certiorari

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637

Deportation order made against Mr Park. But not deported. But detained as a potential
witness for another prosecution against a person for unlawfully arranging a migration
racket.

HC: Continue detention was unlawfully, as the Migration Act only authorize detention of a
deportee pending deportation.

Declaration granted.