Context/Scenario

[1] Senior Haven Pty Ltd ("Senior Haven") is a company which has been recently incorporated, with a view to running a chain of aged care centres across Australia.On Monday 18 March 2024, Senior Haven applied to Amrita Bedi ("Bedi"), the Commissioner of the Aged Care Quality and Safety Commission (the "Commission") for approval to be a provider of aged care under the Aged Care Quality and Safety Commission Act 2018(Cth)(the "Act"). Senior Haven's application was in writing, was in the form approved by the Commissioner, was accompanied by all relevant documents and information specified by the Commissioner, and was accompanied by the specified fee.

[2] On Thursday 21 March, Bedi asked David Hepple ("Hepple") to deal with Senior Haven's application. Hepple is a very junior member of the Commission, to whom Bedi had, nonetheless, delegated, in writing, all of her powers under Part 8 of the Act.

[3] Hepple examined the application in light of the matters referred to in ss 63D(2) and (3) of the Act, and was satisfied, reasonably, with the adequacy of both Senior Haven and its key personnel with respect to those matters. However, he was troubled by the application. Hepple has very traditional values, and strongly believes that family members have a strong moral duty to look after their elderly relatives. Furthermore, Hepple believes family members should care for their elderly relatives in the family members' own homes. He thinks that the existence of aged care centres permits people to shirk this duty.

[4] At 10am the following Monday, 25 March, the Minister for Aged Care and Elderly Australians, acting on behalf of the Commonwealth Government, announced the adoption of a policy pursuant to which no more than 10 providers of aged care would be permitted in the Australian market. If Senior Haven's application were approved, it would be the 11^th aged care provider.

[5] As soon as he heard about the policy, Hepple telephoned Wendy Chan ("Chan"), the CEO of Senior Haven. During the telephone call, Hepple told Chan that he, Hepple, was not approving Senior Haven's application to be a provider of aged care. He explained that this was because of the government's policy that there be only 10 aged care providers in the Australian market, as well as his own serious misgivings about elderly people living in aged care homes, rather than with their relatives. He also explained to Chan how Senior Haven could seek reconsideration of the decision.

[6] Hepple then immediately drafted, with regard to Senior Haven's application, a notice of the kind referred to in s 63E(3) of the Act, and gave it promptly to the Secretary of the Commission, as required by s 63E(4). He then went on holidays for a month.

[7] Cassandra Khaitan ("Khaitan") holds a large number of shares in Senior Haven. She had every expectation that if Senior Haven were approved as a provider of aged care under the Act, the value of her shares would increase greatly. Accordingly, she was very upset to learn that the approval was not granted.

[8] Khaitan comes Tan & Campbell for legal advice concerning the matter, and they, in turn, come to you. Assume that Khaitan is aware of all of the matters referred to in the scenario above, and communicates them to you. Assume, also, that you would be able to establish all of these matters (including, to the extent that they are relevant, Hepple's thought processes) by way of admissible evidence.

Advise Tan & Campbell of Senior Haven's prospects of success in seeking to challenge, by way of judicial review under the AD(JR) Act 1977 (Cth), the decision to not approve Senior Haven's application to be a provider of aged care.

In providing that advice, you should consider only i) jurisdiction; ii) standing; and iii) the grounds of judicial review referred to in Topics 4 and 5 in the study guide. For these purposes, justiciability (and non-justiciability) are separate from jurisdiction, and so should not be considered. With regard to the grounds of review, you are expected to identify and discuss three (3) separate grounds of review.See the instructions above, especially under "Grounds of review" for more information. Grounds of review

1. You are to advise only with regard to grounds of review contained in topics 4 and 5 in the study guide.
2. You are to advise with respect to three (3) separate grounds of review. - ie separate and distinct in terms of what is necessary to be established in order for the grounds to be made out. In other words, each ground should cover substantively different arguments or facts. (So, for instance, you must not allege, say, the irrelevant consideration ground three times in respect of three different matters.)
3. As a consequence, and example, of the requirement in paragraph (ii) above, students should not cover both irrelevant considerations and improper purpose for the same factual matter. For example, arguing that the Minister considered X which the statute said must not be considered (irrelevant consideration) and arguing that the Minister had an improper purpose in using the statute since they were motivated by X (improper purpose) is too similar and so, for the purposes of this assignment, would not constitute separategrounds. Students would have to choose one of these grounds in their application.
4. You will assessed, in part, as to the appropriateness of the grounds you have chosen. If you advise with regard to more, or fewer, than three grounds of review you may lose marks because you have not complied with these instructions.
5. Sections 5, 6, and 7 of theAD(JR) Actprovide the grounds that can be relied upon. For the avoidance of doubt, the following count as individual grounds for the purposes of the assessment:

1. Jurisdictional Fact
2. Unlawful decision-maker
3. Procedural Error
4. Misconception of the Scope of the Power
5. Relevant Consideration
6. Irrelevant Consideration
7. Improper Purpose
8. Inflexible Application of Policy
9. Acting Under Dictation
10. No Evidence
11. Fraud
12. Bad Faith
13. Uncertainty
14. Unreasonableness
15. Irrationality