Jaravaza v Minister for Immigration

In the Federal Circuit Court of Australia, Judge Nicholls considered an application for review of a decision made by the Migration Review Tribunal. The applicant, Mr. Jaravaza, challenged the Tribunal's decision concerning his visa application, alleging that the Tribunal had erred in its application of policy and potentially discriminated against him. The Minister for Immigration was the respondent.

The central legal issues before the Court were whether the policy document PAM3 was inconsistent with the relevant Migration Regulations, and if so, whether the Migration Review Tribunal had erred in law by applying that policy. A further issue was whether the Tribunal's actions constituted unlawful discrimination against the applicant on the ground of his age, contrary to the Age Discrimination Act 2004 (Cth).

Judge Nicholls examined sections 31 and 43 of the Age Discrimination Act 2004. Section 31 makes it unlawful to discriminate on the ground of age in the administration of Commonwealth laws and programs. However, section 43(1) provides an exception, stating that Part 2 of the Act does not make unlawful anything done in relation to the administration of the Migration Act 1958 or regulations made under it. The applicants argued that PAM3 imposed a stricter "exceptional circumstances" test for those aged 60 and over, compared to those aged 45 to under 60, thereby creating a discriminatory policy.

The Court found that the exception in section 43(1) of the Age Discrimination Act 2004 meant that the provisions of Part 2 of that Act, which prohibit age discrimination, did not apply to the administration of the Migration Act. Therefore, the applicants' claim of unlawful age discrimination under the Age Discrimination Act could not succeed. However, the Court did grant relief on the basis of jurisdictional error, finding that the Tribunal had erred in its application of the policy.