Non-statutory admin actions amenable to judicial review for legal unreasonableness?

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Can the FCA on judicial review "determine whether the non-statutorily based administrative actions [incidental to s 351 of the Migration Act 1958 (Cth)] taken by the Departmental officers in these two cases are unlawful because they are legally unreasonable"?

Question 2: Did the non-statutorily based administrative actions incidental to s 351 of the Migration Act 1958 (Cth) taken by the Departmental officers affect the appellants' rights or interests?

Question 3: If the answer to Question 1 is 'yes', and a non-statutorily based administrative action taken by Departmental officers incidental to s 351 of the Migration Act 1958 (Cth) is legally unreasonable, is there a proper basis to issue a writ of mandamus (or make an order in the nature thereof) and certiorari?

Question 4: Can it be said that "the implied condition that statutory powers or discretions will be exercised reasonably does not depend upon whether or not the particular discretion or power adversely affects individual rights or interests"?

Question 5: Can it be said that, as the Minister "did not dispute that either appellant had standing to bring the judicial review applications which challenged the relevant administrative action on the ground of legal unreasonableness", he "accepted that the appellants are persons who are aggrieved in the relevant sense in order to seek the particular judicial review relief which they did"?

Question 6: Can it be said that, as jurisdictional error "is an expression which describes a material failure to comply with one or more statutory preconditions or conditions, resulting in a decision lacking the necessary characteristics for it to be given force and effect by a statute", it is wrong to characterise a Departmental officer’s non-referral of a request under s 351 as involving a constructive failure to exercise jurisdiction?

Question 7: Are the remedies available under s 39B of the Judiciary Act 1903 (Cth) confined to jurisdictional errors?

Question 8: If the answer to Question 1 is 'yes', is it "necessary to use the language of jurisdictional error in granting appropriate relief in a suitable case"?

Question 9: Are there limits that determine whether a particular form of guideline issued pursuant to s 351(1) is permissible, because of the personal nature of the power involved?

Question 10: Do the 2016 Guidelines transfer to departmental officers that which Parliament has given personally to the Minister, with the result that they could have no legal effect nor could decisions made relying on any such transfer of power?

Question 11: Can it be said that "the contention about the invalidity of the 2016 Guidelines is capable of resulting in at least declaratory relief, in the same way as the Court granted declaratory relief in Plaintiff M61" and that "injunctive relief may also be available if there was a threatened detention or removal of a person who claimed a departmental officer had, on unlawful instructions from the Minister, purported to determine the matter which was left by Parliament to the Minister personally by s 351"?

Question 12: Can it be said that, "where non-statutory executive power is as closely and causally connected to statutory power as the screening out decisions of departmental officers in the present case, then that connection supplies a principled basis to characterise powers which have s 61 [of the Constitution] as their source as subject to common law minimum conditions of a correct understanding and application of the law"?

Question 13: Can jurisdiction be conferred upon a court by the consent of the parties?

Question 14: Is a personal decision of the Minister to consider (or not to consider) the exercise of the power under s 351 reviewable by the Federal Circuit Court?

Question 15: Is a personal decision of the Minister to consider (or not to consider) the exercise of the power under s 351 reviewable by the Federal Court?

Question 16: Is administrative action taken under the Migration Act that is preparatory to the making of a substantive decision by the Minister under s 351 or failure or refusal to take such an action reviewable by the Federal Circuit Court, but not the Federal Court?

Question 17: Can it be said that "there exists a duty in a Departmental officer to bring an intervention request to the Minister’s attention in the absence of any lawful instruction from the Minister authorising the officer not to do so"?

Question 18: If the answer to Question 18 is 'yes', is that duty one that may be enforceable by a writ of mandamus, in the absence of such a lawful instruction?

Question 19: Is it "competent for the Minister to issue mandatory instructions to the Department to not bring requests falling within a particular class to his attention"?

Question 20: Can it be said that, "so long as the Departmental officer acts in accordance with the Guidelines, there is no duty to bring the request to the Minister’s attention"?

Question 21: If the answer to Question 16 is 'yes', did the Federal Court nevertheless have jurisdiction to determine the matters now under appeal, as the actions undertaken by the relevant case officers were not preparatory to the making of a decision?

Question 22: Can it be said that "there is no reason to suppose that the principles of the common law that have developed in response to problems concerning the limits of powers directly conferred by laws of the Commonwealth cannot also inform the limits of other powers having their source more directly in the Constitution"?

The FCAFC answered those questions as follows: