Borkovic v Minister for Immigration & Ethnic Affairs

In the Federal Court of Australia, the case of Borkovic v Minister for Immigration & Ethnic Affairs was brought by Margarita Borkovic and Nada Knezevic against the Minister for Immigration and Ethnic Affairs. The applicants, who had arrived in Australia in late 1980 as visitors, were denied entry permits of indefinite duration after their temporary entry permits expired on 10 March 1981. They sought judicial review of the Minister's decision not to grant them entry permits on the basis of compassionate or humanitarian grounds. The central legal issue was whether the Federal Court had the power to examine the merits of the facts that gave rise to the refusal of the grant of permanent residency permits.

Fox J held that the Federal Court did not have the power to review the merits of the factual matters underlying the Minister's decision. The Administrative Decisions (Judicial Review) Act 1977 provided for judicial review of administrative decisions, but only in relation to the exercise of power and the manner in which decisions were made. The Court could not substitute its own view on the facts for that of the Minister. The key sections of the Act, namely ss. 5, 6 and 7, did not invite examination of the issues that formed the subject of the decisions. Instead, the focus was on the decisions themselves. While the Court could examine facts to determine whether a decision fell within the provisions of the Act, it could not examine the facts for its own purposes.

Accordingly, the Court dismissed the applicants' applications with costs. Fox J concluded that the submissions on behalf of the applicants were not supported by the Act, which did not empower the Court to examine the merits of the facts for itself.