Re Refugee Review Tribunal; ex parte Aala

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,Gummow JJ,McHugh J,Kirby J,Hayne J,Callinan J
• Judgment Date: 16 November 2000
• Neutral Citation: 2000-1116 HCA C,[2000] HCA 57
• Court: High Court
• Docket Number: S185/1999
• Date: 16 November 2000

[2000] HCA 57

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S185/1999

Re Refugee Review Tribunal & Anor

Respondents

and

Ex Parte Mansour Aala

Prosecutor

Representation:

P E King with K M Hawes for the prosecutor (instructed by the prosecutor)

No appearance for the first respondent

T Reilly with G A Mowbray for the second respondent (instructed by Australian Government Solicitor)

Constitution, ss 75(iii), 75(v). Migration Act 1958 (Cth).

Re Refugee Review Tribunal; Ex parte Aala

Immigration — Refugees — Review Tribunal — Failure to afford procedural fairness — Prosecutor denied opportunity to be heard on matters affecting credibility — Whether prosecutor denied possibility of a successful outcome.

Administrative law — Constitutional writs — Nature of Constitutional writ of prohibition — Procedural fairness — Availability of writ of prohibition for failure to accord procedural fairness — Whether prohibition available as of right or by discretion — Whether application should be rejected due to delay.

Constitutional law — Construction of Constitution — Meaning to be given to words in s 75(v) — Relevance of meaning at time of commencement of Constitution.

Words and phrases — ‘a writ … of prohibition’, ‘procedural fairness’, ‘prerogative writ’.

ORDER

1. Order absolute for a writ of prohibition prohibiting the second respondent from taking action on the decision of the first respondent made on 3 April 1998.

2. Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 3 April 1998.

3. In respect of the application by the prosecutor dated 4 October 1996, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law.

4. Second respondent to pay costs of prosecutor, both in respect of the order nisi and the hearing before Full Court.

1 Gleeson CJ. The facts, which are not in dispute, are set out in the reasons for judgment of other members of the Court.

2 The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the Tribunal, there was a denial of procedural fairness, and, if so, whether the consequence is that prohibition should go under s 75(v) of the Constitution.

3 As to the first issue, the statement in question covered a matter which had a bearing upon the credibility of the prosecutor. It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct. Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility.

4 It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding 1. The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent mis-statement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal.

5 I agree with what has been said by Gaudron and Gummow JJ as to availability of prohibition as a remedy, under s 75(v) of the Constitution, in a case of denial of procedural fairness, and as to the discretionary nature of the remedy.

6 I agree with the orders proposed by Gaudron and Gummow JJ.

7 Gaudron and Gummow JJ. The first respondent is the Refugee Review Tribunal (‘the Tribunal’), established under Div 9 (ss 457–470) of Pt 7 of the Migration Act 1958 (Cth) (‘the Act’). The second respondent is the Minister responsible for the administration of the Act, the Minister for Immigration and Multicultural Affairs (‘the Minister’).

8 The prosecutor is an Iranian citizen who arrived in Australia in 1991. The Tribunal found that he had been a ‘low level’ employee of Savak, the secret police of the former Shah, that he had an insignificant involvement with the Mujahadeen, which opposed the regime established after the fall of the Shah, and that between approximately 1981 and 1988 he had been involved in the sale of properties of the former Shah and his associates. The Tribunal was not satisfied that, in the years before the prosecutor came to Australia, the interest in and treatment of the prosecutor by the Komiteh (the ‘morals police’) amounted to persecution. Nor were the arrest and alleged execution, after the prosecutor's departure, of his business colleague, Ali Tehrani, events from which any adverse consequences might flow to the prosecutor. The result was that the prosecutor did not satisfy the Tribunal that he had a well-founded fear of persecution in the necessary sense.

9 The prosecutor was previously the applicant and appellant in litigation in the Federal Court of Australia against the Minister. The jurisdiction of the Federal Court was that conferred by Pt 8 (ss 474–486) of the Act. The litigious history and the relevant factual findings by the Tribunal are detailed in the judgment of Callinan J. However, it is convenient to refer here to some aspects of that history, and will be necessary to do so in further detail later in these reasons.

10 The result of previous exercises of the judicial power of the Commonwealth has been an affirmation by the Federal Court of the decision of the Tribunal, in turn affirming the determination of a delegate of the Minister not to grant the prosecutor a ‘protection visa’ 2. Nevertheless, in the present proceeding in this Court under s 75(v) of the Constitution, the prosecutor seeks orders to the contrary effect, namely orders quashing that decision of the Tribunal and requiring the Tribunal to redetermine the application to review the determination by the delegate.

11 No relief is sought from this Court which would quash the order of the Full Court dismissing the appeal from the order of Branson J affirming the decision of the Tribunal. Nevertheless, the effect of the relief sought in this Court would be to outflank and collaterally impeach the respective rights and liabilities under the Act of the prosecutor and the Minister by quashing the administrative decision which the order of the Federal Court affirmed.

12 The pursuit of this course is open to the prosecutor as a consequence of the holding in Abebe v The Commonwealth3 that Pt 8 of the Act is valid. The present significance of Abebe is its rejection of a proposition that the right put in issue in the Federal Court application under Pt 8 was the right of the Minister to act upon or to give effect to the decision of the Tribunal, rather than a right to have that decision set aside on one or other of the grounds permitted by s 476. The ground upon which relief is sought in this Court is one denied consideration by the Federal Court by par (a) of s 476(2). This specifies as a ground upon which an application may not be made to the Federal Court a complaint:

‘that a breach of the rules of natural justice occurred in connection with the making of the decision’.

13 In this Court, the prosecutor obtained an order nisi requiring the Tribunal and the Minister to show cause before the Full Court why prohibition should not issue, why certiorari should not issue removing the decision of the Tribunal into this Court to be quashed, and why mandamus should not issue directing the Tribunal to consider according to law the prosecutor's application for a protection visa. It will be apparent that the claims for certiorari and mandamus are consequential upon that for prohibition.

14 The power of this Court to issue certiorari is not stated in Ch III of the Constitution. Rather, in a matter such as the present, the conferral of jurisdiction to issue writs of prohibition and mandamus implies ancillary or incidental authority to the effective exercise of that jurisdiction. In the circumstances of this matter, that includes authority to grant certiorari against the officer of the Commonwealth constituting the Tribunal 4. The matter may also attract the exercise of the powers conferred in general terms by s 31 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) 5.

15 The prosecutor asserts that prohibition lies because the decision of the Tribunal was made beyond its jurisdiction. This was because it was made in breach of the rules of natural justice, and the Minister will act upon that decision unless prohibited from doing so. The relevant ‘rule’ of natural justice is that requiring procedural fairness.

16 This raises important, and threshold, questions respecting the meaning and scope of the term ‘prohibition’ in s 75(v) of the Constitution. In particular, there are questions whether a denial of procedural fairness by an officer of the Commonwealth, such as the officer constituting the Tribunal in this case, results in the...