Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd [1990] HCA 27

High Court of Australia Dawson J Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (S90/002M14 of 1990M16 of 1990M18 of 1990) [1990] HCA 27

Dawson J.

The applicants seek orders nisi directed to Keely J and the Australian Federation of Air Pilots (the AFAP) to show cause why Keely J should not be prohibited from further hearing and determining a matter brought by the AFAP in the Federal Court. There are three separate applications before me, the first by Ansett Transport Industries (Operations) Pty Ltd, East-West Airlines (Operations) Pty Ltd and Mayne Nickless Ltd (trading as IPEC Aviation); the second by Australian Airlines Ltd; and the third by 14 individuals who are non-Australian airline pilots. The applicants are all respondents in the Federal Court proceedings.

In the Federal Court the AFAP is seeking orders of review under the Administrative Decisions (Judicial Review) Act 1977 Cth and injunctions against officers of the Commonwealth pursuant to s 39B of the Judiciary Act 1903 Cth. It seeks to impugn as unlawful, decisions made within the Department of Immigration, Local Government and Ethnic Affairs to grant approvals, under an immigration scheme known as the Employer Nomination Scheme, to the airlines authorising the nomination by them of a number of persons to travel to, enter and remain in Australia permanently to work as pilots for them. The AFAP also seeks to impugn decisions to grant visas to individuals travelling to Australia pursuant to that scheme for the purpose of taking up employment as pilots with one or other of the airlines.

The grounds of the AFAP's application in the Federal Court are that the relevant decisions were not authorised by the Migration Act 1958 Cth or the regulations made thereunder; that the decisions constituted an improper exercise of the power conferred by the Migration Act or the regulations; that irrelevant considerations were taken into account in the making of the decisions; that the discretionary power vested in the decision-makers was exercised in accordance with a rule or policy without regard to the merits of the particular cases and that breaches of natural justice occurred in connection with the making of the decisions. The last ground is based on the claim that, amongst other things, the AFAP was given no notice of the applications made for visas.