Re Minister for Immigration and Multicultural Affairs; ex parte S20-2002

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh,Gummow JJ,Kirby J,Callinan J
• Judgment Date: 17 June 2003
• Neutral Citation: 2003-0617 HCA C,[2003] HCA 30
• Docket Number: S20/2002
• Court: High Court
• Date: 17 June 2003

[2003] HCA 30

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ

S20/2002

S106/2002

Re Minister for Immigration and First Multicultural Affairs

Respondent

and

Ex Parte Applicant S20/2002

Prosecutor

Appellant S106/2002

Appellant

Minister for Immigration and Multicultural Affairs

Respondent

Representation:

B W Walker SC with L J Karp for the prosecutor (instructed by McDonells Solicitors)

S J Gageler SC with G R Kennett for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5.

Migration Act 1958 (Cth), ss 36(2), 65, 414, 415, 430, 476(1)(b), (c), (f), 476(2)(b), 476(3), 496.

Migration Legislation Amendment Act (No 1) 2001 (Cth).

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 Appellant S106/2002 v Minister for Immigration and Multicultural Affairs

Immigration — Refugees — Temporary protection visas — Application for certiorari, prohibition and mandamus under s 75(v) of the Constitution — Where Refugee Review Tribunal found that applicant was an unreliable witness and discounted evidence said to be corroborative — Whether Tribunal's decision was ‘irrational, illogical and not based upon findings or inferences of fact supported by logical grounds’ — Whether Tribunal's decision was affected by actual bias or by a reasonable apprehension of bias — Whether Tribunal's decision was vitiated by jurisdictional error — Distinction between discretionary decisions and decisions involving the finding of facts essential to the exercise of jurisdiction — Whether Tribunal's decision evidenced an erroneous approach to the finding of jurisdictional facts.

Constitutional law — Section 75(v) of the Constitution — Review of administrative decisions — Jurisdictional error — Bias — Extent to which the content of the constitutional writs is affected by common law developments in administrative law — Availability of constitutional writs in proceedings that include an appeal concerning related issues.

Administrative law — Judicial Review — Whether Tribunal's decision was ‘irrational, illogical and not based upon findings or inferences of fact supported by logical grounds’ — Unavailability of review of factual or evidentiary merits — Whether relief available under Migration Act 1958 (Cth) (‘the Act’) or under the Constitution, s 75(v) — Whether Tribunal had no jurisdiction to make the decision — Whether the decision was not authorised by the Act — Whether the decision was marred by error of law — Whether the decision was so unreasonable that no reasonable tribunal would have made it.

Words and Phrases — ‘jurisdictional error’, ‘jurisdictional fact’, ‘apprehended bias’, ‘actual bias’, ‘ Wednesbury unreasonableness’.

Constitution, s 75(v).

ORDER

Application dismissed with costs, including any reserved costs.

1 Gleeson CJ. The nature of the proceedings, the facts, and the relevant statutory provisions appear from the reasons for judgment of McHugh and Gummow JJ.

2 In both proceedings, a challenge is made to a decision of the Refugee Review Tribunal (‘the Tribunal’) which, upon review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (‘the Act’), refusing to grant a protection visa, affirmed that decision. The Tribunal's conclusion, following some 21 pages of reasoning, was as follows:

‘Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.’

3 By reason of ss 65 and 415 of the Act, if the Tribunal was not satisfied that the relevant statutory criterion for a protection visa was satisfied, the Tribunal was bound to affirm the delegate's decision.

4 The challenge to the Tribunal's decision is based on two grounds. First, it is said that the decision ‘was illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds.’ Secondly, it is said that the decision was affected by either actual or apprehended bias. The claim of actual or apprehended bias did not play a prominent part in the argument. It was based on substantially the same criticisms of the Tribunal's reasoning as were advanced in support of the first ground, the argument being that the reasoning was so defective as to demonstrate, or at least give rise to a reasonable apprehension of, bias in the decision-maker. If the criticisms of the reasoning are not sustained, then both grounds fail.

5 As was pointed out in Minister for Immigration v Eshetu1, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.

6 The Tribunal had the power, and the duty, to decide whether to affirm, vary, or set aside the delegate's decision (s 415). If the Tribunal was not satisfied that the criterion for a protection visa had been satisfied in the case of the

applicant/appellant, the Tribunal was obliged to affirm the delegate's decision (ss 65, 415). The Tribunal was not so satisfied. Relevantly, the criterion to be satisfied was that the applicant/appellant was a person to whom Australia had protection obligations under the Convention. His claim that Australia had such obligations was based upon a contention that he had a well founded fear of persecution in Sri Lanka for reasons of political opinion, arising from assistance he said he had given to two dissidents in that country, and from the reaction of the authorities to that assistance. The Tribunal did not believe his story about the assistance, or the conduct of the authorities. The Tribunal referred, for reasons stated in detail, to the ‘overall implausibility of [his] claim’, and to significant parts of his evidence which were regarded as incredible and were disbelieved.

7 The attack is directed to the reasons given by the member of the Tribunal for concluding that, considering the evidence as a whole, she was not satisfied that the applicant/appellant was a person to whom Australia had protection obligations. It was not directed to her appreciation of the whole of the evidence. It was not suggested that it was not reasonably open to the Tribunal, on the material, to find that the claim was implausible, or that there were features of the applicant/appellant's story that might reasonably be doubted or disbelieved. The illogicality was said to be in the Tribunal's process of reasoning, and, in particular, in the way in which the member dealt with certain information relied upon as corroboration.

8 Before dealing with the merits of the criticism advanced, with a view to identifying the nature of the supposed error, and determining whether its existence has been demonstrated, it is convenient to note the context in which the argument is advanced. We are concerned with statutory provisions which operate upon the state of satisfaction, or lack of satisfaction, of an administrative decision-maker. In Avon Downs Pty Ltd v Federal Commissioner of Taxation2, Dixon J said:

‘But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some

such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.’

9 To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact 3. On the other hand, where there is a duty to act judicially, a power must be exercised ‘according to law, and not humour’ 4, and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond5 may involve non-compliance with the duty. Furthermore, where ‘the true and only reasonable conclusion contradicts [a] determination’ then the determination may be shown to involve legal error 6....