AWA: Academic Writing at Auckland

Judicial review is the way in which judicial control is exercised over administrative action.[1] Judicial review involves appraisal of, not the merits of the decision, but the way in which that decision was derived. Lord Diplock succinctly outlined three general grounds of judicial review, these being; illegality, irrationality and procedural impropriety.[2]

Maggie has been denied an Immigration Advisers License by the Registrar at the Immigration Advisers Authority, who has been endowed with the discretion to make such a decision in the Immigration Advisers Licensing Act 2007 (the Act). For Maggie to have the decision reconsidered by the Registrar, she must establish grounds under judicial review.

I Irrationality

Irrationality is the question of whether the decision was so unreasonable that it went beyond the power delegated to the Registrar by Parliament. The principle of irrationality was established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, which stated that the Court could only interfere in an executive action if the decision was so unreasonable that no reasonable body could come to that conclusion.[3] It is not the Court’s place to substitute its opinion of what is reasonable for that of the local authority, but rather to establish whether that authority has acted above the power entrusted to them, by making said unreasonable decision.[4] There is no evidence to suggest that the Registrar’s decision was unreasonable so as to meet the high standard set out above; they have not contravened the power granted to them by Parliament. Therefore, Maggie has no grounds for reconsideration under irrationality.

II Illegality

A local body, endowed with power by Parliament, must correctly understand the law which regulates this power and give proper effect to it; failure to do so, means they are acting outside the limitations set by the empowering statute, acting illegally.[5] Such actions include the inclusion of irrelevant considerations, or the exclusion of relevant considerations.

To determine whether any irrelevant considerations have been taken into account or relevant considerations missed, it must be determined whether the criteria set out in s 19 of the Act is an exhaustive list, or whether discretion as to further considerations are allowed.  Section 19 states that “the Registrar must grant a license if” (a) through (d) are satisfied; while the Registrar has been granted discretion as to the satisfaction of each criteria, there is nothing which allows the Registrar the discretion to consider anything not accounted for in the four criteria set out in s 19, thus making the list exhaustive.[6]

Inclusion of Irrelevant Considerations

The first issue to be considered under illegality, is that of irrelevant considerations being taking into account. The case of Fiordland Venison Ltd v Minister of Agriculture and Fisheries stated that the decision required a consideration of only a series of “specific and apparently carefully limited questions”; and that the Minister was unable to make a policy consideration because there was nothing in the Act which allowed for this, limiting the considerations allowed.[7] Two of the four reasons given by the Registrar for refusing Maggie’s applications can be deemed irrelevant considerations.

The first consideration is the information received by the Registrar from a colleague about her giving overly optimistic advice to clients in order to generate business her company. This is an irrelevant consideration because it doesn’t fall within any of the criteria that the registrar is authorized to take into account.[8] The second consideration which can be deemed irrelevant is the issue of there already being sufficient immigration advisers in Maggie’s locality. This can be deemed to be an irrelevant policy consideration because, again, there is nothing in the Act that allows the Registrar to account for this as it does not fall with the s 19 guidelines.

The Court in Wharlich v Bate stated that the Court had discretion as to an application for judicial review, the Court felt that because it could not be said with certainty that the issue was not material to the outcome, the decision should be reconsidered.[9] Applying this to Maggie’s situation, while the irrelevant considerations may seem immaterial relative to the other reasons given, there is no certainty to the weight placed by the Registrar on these reasons, therefore there can be no certainty as to their materiality to the ultimate decision. Thus, Maggie is entitled to have the decision reconsidered.

Disregard of Relevant Considerations

The second issue under illegality, is whether the Registrar failed to consider any mandatory relevant considerations. The failure of a decision maker to take into account a mandatory consideration when making a decision is an abuse of his discretion.[10] Such a failure only occurs when the decision maker is bound by statute to take into account the consideration.[11] Again, it must be noted that the Court’s role in this process is limited to reviewing the exercise of the discretion, it is not to replace the decision of the authority with its own.[12]  

Under section 19, the Act provides an exhaustive list of considerations that need to be taken into account. Every subsection is a mandatory consideration that needs to be satisfied, as evidenced by the conjunction “and” at the end of every subsection.[13] The issue becomes, whether the registrar could completely assess these criteria without considering the extra evidence provided by Maggie. The Registrar has been granted a discretion by Parliament as to what evidence to consider and as such, it is not the place of the Court to interfere with the exercise of this discretion. In giving this discretion, Parliament has trusted the Registrar to be able to make such a decision due to his knowledge and experience.[14] Thus, the Registrar was not acting beyond his the authority given to him and it is not a grounds for reconsideration.

III Procedural Impropriety

Procedural impropriety is the failure to observe the guidelines of natural justice and the failure to act fairly towards the party affected by the decision.[15] Natural justice being but “fairness writ large and juridcally”; the principles of natural justice must be observed as required by the circumstances and in accordance with Parliamentary intention. [16] The principles do not only apply to Courts, but can apply in the current circumstances because the Registrar is performing a function analogous to a judicial function, making such a breach grounds to have the decision reconsidered.[17] Two possible breaches have been outlined below.

Breach of a the Right to a Hearing

The first issue under procedural impropriety is the question of whether Maggie’s denial of an interview to display her oral English is breach of her right to a hearing under natural justice. Drew v Attorney-General states that a breach of natural justice occurs from a denial of the right to a hearing, if this denial leads to an infraction of justice, but sufficient alternatives can prevent such an infraction. [18] While Maggie has been denied the right to a hearing, alternative ways for her to be able to prove her oral competency have been provided. Maggie may be annoyed and inconvenienced  by undergoing an English language test, but this does not prevent such a test from being a sufficient alternative to an interview.

Drew v Attorney-General also sets out specifications which may increase entitlement to the right to a hearing; the relevant ones being the seriousness of the consequences, procedural difficulties and the need for fairness and consistency.[19] In regards to the seriousness of the consequences on Maggie, while the consequences are not so severe as imprisonment, they do bear a significant impact on her livelihood and future career. If Maggie’s oral competency was established on the basis of an interview alone, this could set a separate standard to those who completed the test, going against the interests of fairness and consistency as the Registrar is unlikely to be certified to conduct such an appraisal. In relation to this need for fairness, procedural difficulties may arise from providing a hearing; under fairness the Registrar would be obliged to offer interviews for others to determine oral competency; slowing and making more costly and inefficient, the application process.

Weighing the consequences against the procedural and fairness problems, a breach of natural justice has not occurred. While it may seem unfair to Maggie, not only has she other avenues available to her to prove her competency, but to allow such a hearing would only go against the principles of fairness and consistency.

Failure of the Duty to Disclose

The second issue is whether lack of disclosure of the assessor’s report was a breach of natural justice, in that the decision maker did not fulfill his duty to disclose information to the applicant. For a breach of natural justice to occur, the information withheld must be both prejudicial to the decision being made, and affect the rights of the individual.[20] Such a right need not be an entrenched right, but if the decision affects the ability of an individual to do something, it is an affected right.[21] It is also arguable that to disallow someone to see such a report would deny one their right to be heard, as it would deny them the opportunity to dispute anything detrimental said about themself.[22]

In Maggie’s situation, the report clearly held information prejudicial to the decision to deny her a license as the assessor stated that the files assessed were not to an adequate standard. This information affected her ability to work, affecting her rights. Thus, the nature and impact of the withheld information mean that it should have been disclosed; there has been a breach of natural justice. In denying Maggie the opportunity to view the report, she has been denied the opportunity to defend herself and rebut the prejudicial information. Therefore, Maggie is entitled to have the decision reconsidered.

IV Likelihood of Success

For the reasons stated above, Maggie has grounds for reconsideration due to both the inclusion of irrelevant considerations (illegality) and the failure of the Registrar to fully disclose information prejudicial to the decision (procedural impropriety).

[1] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 408.

[2] Ibid, at 410.

[3] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) at 229.

[4] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) at 228.

[5] Council of Civil Service Unions v Minister for the Civil Service , above n 1, at 408.

[6] Immigration Advisers Licensing Act 2007, s 19.

[7] Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 (CA) at 345.

[8] Immigration Advisers Licensing Act 2007, s 19.

[9] Wahrlich v Bate [1990] 3 NZLR 97 (HC) at 33.

[10] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 308.

[11] Ibid.

[12] Ibid, at 309.

[13] Immigration Advisers Licensing Act 2007, s 19.

[14] Associated Provincial Picture Houses Ltd v Wednesbury Corporation, above n 4, at 230.

[15] Council of Civil Service Unions v Minister for the Civil Service, above n 1, at 410.

[16] Daganayasi v Minister of Immigration [1980] 2 NZLR 30 (CA) at 141.

[17] Fiordland Venison Ltd v Minister of Agriculture and Fisheries, above n 7, at 345.

[18] Drew v Attorney-General [2002] 1 NZLR 58 at [57].

[19] Ibid, at [71].

[20] Daganayasi v Minister of Immigration [1980] 2 NZLR 30 (CA) at 143.

[21] Daganayasi v Minister of Immigration, above n 16, at 144.

[22] Daganayasi v Minister of Immigration, above n 16, at 143.