Some sections from the fake Migration Act 1957 (Cth) (the Act) follow.

200Deportation of certain non-citizens

The Minister may order the deportation of a non-citizen to whom this Division applies.

201Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where:

(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b)when the offence was committed the person was a non-citizen who:

(i)had been in Australia as a permanent resident for a period of less than 10 years...

(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

203 Deportation of non-citizens who are convicted of certain serious offences

(1)Where:

(a)a person who is a non-citizen has, either before or after the commencement of this subsection, been convicted in Australia of an offence;

(b)at the time of the commission of the offence the person was not an Australian citizen; and

(c)the offence is:

...

(iii)an offence against a law of a State or of any internal or external Territory ...; then, subject to this section, section 200 applies to the non-citizen.

(2)Section 200 does not apply to a non-citizen because of this section unless the Minister has first served on the non-citizen a notice informing the non-citizen that he or she proposes to order the deportation of the non-citizen, on the ground specified in the notice, unless the non-citizen requests, by notice in writing to the Minister, within 30 days after receipt by him or her of the Minister's notice, that his or her case be considered by a Commissioner appointed for the purposes of this section.

(3)If a non-citizen on whom a notice is served by the Minister under subsection (2) duly requests, in accordance with the notice, that his or her case be considered by a Commissioner appointed for the purposes of this section, the Minister may, by notice in writing, summon the non-citizen to appear before a Commissioner specified in the notice at the time and place specified in the notice.

(4)A Commissioner for the purposes of this section shall be appointed by the Governor-General and shall be a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory, or a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than 5 years' standing.

(5)The Commissioner shall, after investigation in accordance with subsection (6), report to the Minister whether he or she considers that the ground specified in the notice under subsection (2) has been established.

(6)The Commissioner shall make a thorough investigation of the matter with respect to which he or she is required to report, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.

(7)Where a notice has been served on a non-citizen under subsection (2), section 200 does not apply to the non-citizen because of this section unless:

(a)the non-citizen does not request, in accordance with the notice, that his or her case be considered by a Commissioner;

(b)the non-citizen, having been summoned under this section to appear before a Commissioner, fails so to appear at the time and place specified in the summons; or

(c)a Commissioner reports under this section in relation to the non-citizen that he or she considers that the ground specified in the notice has been established.

...

500 Review of decision

(1)Applications may be made to the Administrative Appeals Tribunal for review of:

(a)decisions of the Minister under section 200 because of circumstances specified in section 201; or ...

(b)decisions of a delegate of the Minister under section 501 ...

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegatenatural justice applies

(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note: Character test is defined by subsection (6).

(2)The Minister may cancel a visa that has been granted to a person if:

(a)the Minister reasonably suspects that the person does not pass the character test; and

(b)the person does not satisfy the Minister that the person passes the character test.

Decision of Ministernatural justice does not apply

(3)The Minister may:

(a)refuse to grant a visa to a person; or

(b)cancel a visa that has been granted to a person; if:

(c)the Minister reasonably suspects that the person does not pass the character test; and

(d)the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)The power under subsection (3) may only be exercised by the Minister personally.

(5)The rules of natural justice do not apply to a decision under subsection (3).

Character test

(6)For the purposes of this section, a person does not pass the character test if:

(a)the person has a substantial criminal record (as defined by subsection (7)); or

(c)having regard to either or both of the following:

(i)the person's past and present criminal conduct;

(ii)the person's past and present general conduct; the person is not of good character; or

(d)in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)engage in criminal conduct in Australia; or

(ii)harass, molest, intimidate or stalk another person in Australia... Otherwise, the person passes the character test.

Substantial criminal record

(7)For the purposes of the character test, a person has a substantial criminal record if:

(a)the person has been sentenced to death; or

(b)the person has been sentenced to imprisonment for life; or

(c)the person has been sentenced to a term of imprisonment of 12 months or more.

Assume that the decisions are reviewable under the Administrative Decisions Judicial Review Act.

Eleven years ago, as an eighteen-year-old, Mr Nguyen arrived in Australia from Vietnam on a permanent resident visa. Two years ago, he was convicted in NSW of dangerous driving occasioning death. Due to momentary inattention, he failed to observe a traffic light turning amber and then red. At the speed limit of 60km/h, he collided with another vehicle, killing that driver. He was sentenced to 15 months' imprisonment. A non-parole period was not specified. He was released after 12 months' imprisonment.

Upon his release, the Minister provided Mr Nguyen with a notice that she proposed to order his deportation, under s 200 of the Act, on the basis of his conviction of a serious criminal offence and him being at the time of the conviction a permanent resident in Australia for less than 10 years.

Mr Nguyen indicated that he wanted the matter to be considered by a Commissioner. The Minister appointed a solicitor of the NSW Supreme Court of 6 years' standing. The Commissioner gives Mr Nguyen one week's notice of a hearing. Mr Nguyen told the Commissioner that he would like legal representation. The Commissioner's response stated that s 203(6) of the Act indicated that he should have no regard 'to legal forms', and that suggested that no legal representation was appropriate.

At the hearing, Mr Nguyen said:

1.before the accident which led to his conviction, he had never had an accident and had no criminal record;

2.he is supporting two dependent children and his wife, who has a chronic illness, and his family suffered badly when he was in prison, with his children going from the top of their class in academic performance to the bottom;

3.he and his wife had built a high-tech business that employs 10 people; however, while his wife ran the business when he was in prison, she no longer can play a role due to her illness, and the business would collapse without him.

The Commissioner asked him two questions in the interview: whether he had been convicted for a period of 12 or more months, and whether at the time he had been a permanent resident for less than 10 years. Mr Nguyen answered in the affirmative to both questions. The Commissioner thanked him for the information, and said that while Mr Nguyen seemed a nice bloke, he should know that the Minister

recently gave an interview on talkback radio in which the Minister said that she expects those involved in applying Australia's migration laws to take a tough approach to migrants who commit crimes in Australia.

A week later, Mr Nguyen received a letter from the Minister stating that pursuant to s 200, she had ordered his deportation, to be effective in one week, and she had included the Commissioner's Report. That Report simply stated:

The Commissioner is satisfied that the grounds specified in the notice issued to Mr Nguyen are satisfied, ie, Mr Nguyen has committed a serious criminal offence with a sentence of over 12 months and that he was at the time a permanent resident for less than 10 years. The Commissioner therefore recommends deportation.

The Minister also states that she has decided to cancel Mr Nguyen's visa for failing the character test under s 501 the Act due to his substantial criminal record, a cancellation which will take effect in one week. She also indicated that she was satisfied that the cancellation was in the national interest. Finally, she stated that if Mr Nguyen failed to leave Australia within a week, he would be placed in detention and deported.

Mr Nguyen seeks your advice in relation to pursuing judicial review of the decisions made under ss 200 and 501 of the Act. Advise Mr Nguyen by answering the following questions:

a)In relation to the decisions made under s 200 and s 501, what court or courts should Mr Nguyen seek judicial review in, what remedies should he seek, and are there grounds for the discretionary refusal of relief? Only discuss matters in relation to errors made within those sections and in relation to Delegated legislation and Excess of power in determining and applying the law, Abuse of power in determining and applying the law, Procedural fairness: specifically the hearing rule, and legal consequence of errors, court jurisdiction, justiciability, remedies and standing.