Drekevutu, Melaia v The Minister for Immigration and Ethnic Affairs
[1997] FCA 835
•11 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - review of decision of Refugee Review Tribunal - whether s 420 constitutes a “procedure” - whether Tribunal has a legal duty to initiate its own enquiries - whether failure to initiate enquiries is open to judicial review - possible constitutional implications
Migration Act 1958 (Cth), s 476(1)(a), s 476(1)(c), s 476(1)(d), s 420, s 425
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General for Australia v The Queen (The Boilermaker’s Case) [1957] AC 288
Eshutu v Minister for Immigration and Ethnic Affairs (unreported, Full Court, 10 July 1997)
Kable v Department of Public Prosecutions (1996) 138 ALR 77
Leeth v Commonwealth (1992) 174 CLR 455
Minister for Immigration and Ethnic Affairs v Singh (unreported, Full Court, 7 May 1997)
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Lindgren J, 6 May 1997)
Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342
Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action, Law Book Company, 1996
MELAIA DREKEVUTU -v- THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
G 046 of 1996
MADGWICK J
SYDNEY
11 AUGUST 1997
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| ) | |
| NEW SOUTH WALES DISTRICT REGISTRY | ) G 046 of 1996 |
| ) | |
| GENERAL DIVISION | ) |
BETWEEN: MELAIA DREKEVUTU
ApplicantAND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
| JUDGE(S): | MADGWICK J |
| PLACE: | SYDNEY |
| DATE: | 11 AUGUST 1997 |
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| ) | |
| NEW SOUTH WALES DISTRICT REGISTRY | ) G 046 of 1996 |
| ) | |
| GENERAL DIVISION | ) |
BETWEEN: MELAIA DREKEVUTU
ApplicantAND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
| JUDGE(S): | MADGWICK J |
| PLACE: | SYDNEY |
| DATED: | 11 AUGUST 1997 |
REASONS FOR JUDGMENT
HIS HONOUR: This application concerns a review of the Refugee Review Tribunal’s decision to affirm the decision of the Minister’s delegate that the applicant is not a refugee, and thus not a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees (“the Convention”) as amended by the 1967 Protocol relating to the Status of Refugees.
The basis of the applicant’s claim for judicial review is that, pursuant to s 420(2)(b) of the Migration Act 1958 Cth (“the Act”), the Tribunal was required to initiate its own investigation relating to some evidence she gave at the hearing which may have suggested that she has a reasonable claim of a “well-founded fear of being persecuted” for Convention reasons. The Tribunal’s failure to make its own enquiries, it is submitted, constituted a failure to observe a procedure which is required by the Act, giving rise to a review in accordance with s 476(1)(a).
The relevant legislative provisions are as follows:
“Refugee Review Tribunal’s way of operating
s420.(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
Application for Review
s476.(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b)that the person who purported to make the decision did not have jurisdiction to make the decision;
(c)that the decision was not authorised by this Act or the regulations;
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f)that the decision was induced or affected by fraud or by actual bias;
(g)that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b)an exercise of a personal discretionary power at the direction or behest of another person; and
(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d)taking an irrelevant consideration into account in the exercise of a power; or
(e)failing to take a relevant consideration into account in the exercise of a power; or
(f)an exercise of a discretionary power in bad faith; or
(g)any other exercise of the power in such a way that represents an abuse of power that is not covered by paragraphs (a) to (c).
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
The central legal issues presented by the contentions in this review, are (a) whether the obligation imposed upon the Tribunal by s 420(2)(b) of the Act constitutes a “procedure” for the purposes of s 476(1)(a); (b) whether s 420(2)(b) imposes a positive obligation upon the Tribunal to initiate its own enquiries where an applicant has supplied some evidence, although incomplete, which may be relevant to the determination of his or her case; (c) whether, assuming a positive answer to (a) or (b), the circumstances enlivened such an obligation or procedure in this case; and (d) whether s 476 permits any remedy in this Court.
The applicant arrived in Australia from Fiji on 27 April 1988. On 25 August 1992 she applied to the Department of Immigration, Local Government and Ethnic Affairs for a domestic protection (temporary) entry permit. On 19 November 1992 the Minister’s delegate refused her application, on the grounds that she did not meet the criteria of a “refugee” in accordance with the definition contained in the Convention. Article 1A(2) of the Convention defines a “refugee” as a person who -
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The applicant appealed to the Refugee Review Tribunal, and a hearing was held on 5 December 1995. The Tribunal subsequently affirmed the decision of the Minister’s delegate for the reasons given on 29 December 1995. The applicant then filed an application for order of review with the Court on 25 January 1996.
The evidence before the Tribunal
The applicant gave evidence at the hearing before the Tribunal that before coming to Australia, her family were supporters of the Fiji Labour Party (“FLP”). After the military coup in May 1987, in which a newly-formed coalition government (FLP and National Federation Party) was removed from power, the applicant and other members of her family were arrested by soldiers, and whilst being detained at a police station for about two days they were assaulted. The applicant claimed that this experience has left her with a continuing fear of arrest if she returned to Fiji, particularly if there was another coup which she thought likely.
The applicant said that after their release, her family were under surveillance by soldiers, and were subject to assaults by other citizens who considered them to be “anti-Fijian”. The applicant further claimed that her family continue to be subjected to surveillance and harassment by the police, and that she fears she will suffer similar harassment. She also expressed concerned that, apparently like other members of her family, she would not be able to obtain employment in Fiji because of her previous political affiliation.
The applicant also gave evidence relating to her father’s prosecution by the Fijian authorities supposedly because of his close connection with the deposed Prime Minister, Dr Bavadra. It is this evidence which the applicant claims should have prompted the Tribunal to make its own enquiries about her father’s current situation. The relevant evidence is recorded at page 52 of the transcript of the hearing before the Tribunal:
“BYRON:Are you - you said that you are in contact with your father?
DREKEVUTU: Yes I do.
BYRON:Do you know whether things got better for them?
DREKEVUTU: No.
BYRON:What do you know about what things are like for them now?
DREKEVUTU: For them now they told me that they are not even settled down; everything is still the same.
BYRON:What sort of things are they talking about?
DREKEVUTU: They are still talking about like finance and even he has been getting involved like in so many other places and even still they put him into court, so many areas, different areas.
BYRON:Your father?
DREKEVUTU: Yes, my father.
BYRON:Right.
DREKEVUTU: So he has been finding difficulties back home.
BYRON:Right. What was he arrested for, do you know?
DREKEVUTU: As he is a good friend of Dr Bavadra, and we are the good supporters of the Labour Party, and they want to know more about it.
........ ........ ........ .....
BYRON:Do you know anything what was the last year that your father was arrested for anything?
DREKEVUTU: I think it was in 1987.
BYRON:And you do not think he has been arrested after 1987?
DREKEVUTU: After that when I came over in 1988 I had been contacting him by phone and he told me that they had been trying to put him in court to and he has been in court a couple of times I think, a couple or three times, it must be three times.
BYRON:Do you know when was the last time that he has to go to court, what was the last -
DREKEVUTU: Last year, yes, he has been there last year [i.e. 1994].
BYRON:Do you know what that was about?
DREKEVUTU: That is about still the things about the Coalition.
BYRON:Is there any other reason why he might have to go to court last year?
DREKEVUTU: There are so many reasons and some other ways because he is involved with so many things in the village and mainly in Nandi. They have been after him for so many things, like finance and he didn’t even know anything about it so the reason is that they want - they have been blaming him for getting money out from the Labour Coalition and they have been trying to get him into court.”
Also, at page 53,
“BYRON:Just looking back over my notes about what you had told me, I was wondering of there was anything more you could tell me about these charges that your father has faced. Is there any more you know about what he was charged with?
DREKEVUTU: Maybe because I didn’t even know what he has been charged with but the only thing I know is that because he is a good friend of the late Dr Bavadra, the real main offence I didn’t know, I don’t know about it.
BYRON:I am trying to think - what do you know that suggests this is a politically motivated charge, do you know what I mean, that suggests that it is because of his FLP involvement, do you know?
DREKEVUTU: The main involvement because most of the time Dr Bavadra comes around to our place and asks so many to help through my dad so my dad is the person who is helping him in so many different ways.
BYRON:So I mean, who is it that is charging your father, do you know?
DREKEVUTU: Oh the - especially the Rabuka.
BYRON:Because a charge, from what I read about Fiji’s court system, it would seem to be a similar system to Australia which offers the right - you know, a British legal system, the right to defend yourself, and to have a trial, and for judges to be independent from the government, and if your father was charged with something those charges would have to be prosecuted through a director of public prosecutions, so I am wondering how a charge like that could be brought in 1995 just because your father was friendly with Dr Bavadra. I don’t....
DREKEVUTU: The only thing I know is that because of his help, he helps a lot, he helps... because he sort of putting himself to help most of the Labour and most of the Indians and the main fact is that because of helping Dr Bavadra and the Indians and they call him as anti-Fijians, and as far as that because he is helping the Indians and they call him anti-Indians. So I think that must be the reason they out him into court.
BYRON:But you do not know actually what he has been charged with?
DREKEVUTU: No.
BYRON:And I know I asked you this before but I will ask you again: do you know what year he was last charged with something?
DREKEVUTU: As far as I know when I was there, when I was there since 1987, before I came in 1988.
BYRON:And you do not know of any charged that he is facing at the moment?
DREKEVUTU: At the moment he just - he did not even explain it nicely. He just sort of put it in a short way that they are still blaming him for so many things about Labour, Labour Party.”
The Tribunal’s response
Relevantly to this review application, the Tribunal concluded:
In view of the applicant’s evidence and the evidence about violence in 1987, the Tribunal accepts that the applicant and her family members were arrested, detained and mistreated by the Fiji military, as described. The Tribunal also accepts that surveillance of the family continued until the applicant’s departure from Fiji, and that family members were accused of being “anti-Fijian” and subjected to physical attack, as described by the applicant.
The Tribunal has doubts about continuing interest in the applicant’s family, due to the length of time since 1987, and the evidence of unpunished criticism of the government. However, in view of the evidence of surveillance by the Fiji Intelligence Service, and the principle of benefit of doubt, the Tribunal accepts that surveillance of the applicant’s family has continued. The Tribunal also accepts that due to past events, individuals including some soldiers have retained an animosity towards family members.
In view of the vagueness of the applicant’s evidence about the timing and nature of allegations against her father, the Tribunal finds itself unable to conclude that the applicant’s father has been a victim of politically motivated accusations.
The evidence about economic downturn as a result of the coup suggests alternative reasons for the applicant’s siblings’ job loss. However in view of the evidence suggesting unjust dismissals following the coups, and possible security aspects of the subject jobs, the Tribunal will accept that the applicant’s siblings lost their jobs as a result of their political associations and related incidents.
The Tribunal finds that the applicant fears further arrest, surveillance, animosity and unemployment in Fiji, related to her and her family’s past political involvement.
CONCLUSIONS ABOUT REFUGEE STATUS
The Tribunal has found that the applicant fears certain harms. The refugee definition requires the Tribunal to now consider whether there is a substantial chance of these harms occurring in the foreseeable future. The Tribunal must also consider whether any harms faced are sufficiently serious and have the requisite character to constitute persecution, and whether any persecution feared would occur for a ‘Convention reason’, that is, because of race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal has considered the applicant’s fear of further arrest because of her and her family’s past political involvement. The Tribunal is of the view that the chance of the applicant facing arrest in the foreseeable future because of political opinion, is remote not substantial. The Tribunal has come to this conclusion because of:
·the evidence of an improved human rights situation after 1988;
·the evidence of criticism of the government and the absence of any recent evidence of consequent punishment;
·the absence of any acceptable evidence suggesting that the applicant’s family members were subject to arrest for their political involvement, after 1987.
The Tribunal has considered the applicant’s fear of being arrested if there were a further coup in Fiji. The Tribunal considers however that the chance of the applicant facing arrest in the foreseeable future remains remote, in view of the current position in Parliament of the leader of the previous coups, the length of the term of the current Parliament, and the procedures necessary for any Constitutional change.
The Tribunal has also considered the evidence that members of the security forces have discriminated against the applicant’s siblings, by not overlooking their behaviour when they ‘go to town and get drunk’. The Tribunal considers however that this evidence does not support a conclusion that there is a substantial chance of the applicant being arrested for her political involvement. Rather the Tribunal considers that the evidence suggests some legitimate basis for any arrest of the applicant’s siblings, notwithstanding that such behaviour might be overlooked in other cases.
The Tribunal will assume that there is a greater than remote chance that the applicant will be subject to surveillance and animosity such as have been experienced by her family members. The Tribunal is of the view that in the presence case such harms, while not to be condoned, cannot be considered sufficiently serious to constitute persecution. In coming to this conclusion the Tribunal has taken into account the absence of any evidence of recent physical harm resulting from animosity towards the applicant’s family members.
The Tribunal has considered the applicant’s fear of being unable to find a job, and the Tribunal’s acceptance that political involvement was a factor in the applicant’s siblings’ loss of their jobs. The Tribunal is of the view however that the chance of the applicant being unemployed because of her political involvement, must be considered as remote not substantial. The Tribunal has come to this conclusion because of the evidence that the applicant retained a job until her departure from Fiji, the evidence that the applicant’s siblings found alternative work, and the evidence of general unemployment in Fiji.
The Tribunal acknowledges that the applicant’s experiences in 1987 have left her with a continuing fear of being harmed in Fiji. For the reasons set out above however the Tribunal considers that the applicant does not meet the requirements of the refugee definition. The decision under review, which has been treated by the Tribunal as a decision refusing the applicant a protection visa, must therefore be affirmed.
Conclusions
Facts not such as to enliven any duty to inquire
In my view, the Tribunal was well-entitled to conclude that there was “vagueness” in the applicant’s evidence about “the timing and nature of allegations against her father”. It is quite clear that the Tribunal dealt with the applicant with all appropriate sensitivity. Making all due allowances for the possibility that the applicant may have a poor level of formal education, it is astonishing, if whatever may have been alleged against her father in 1994 formed any significant part of the material which caused her fear or which, in her mind, pointed to political persecution of her family, that she first raised it only at the heel of the hunt in her oral evidence to the Tribunal, that she had not by then established the nature of the allegations and that she evidently could not link them to any persecutory method of operation of any relevant accuser or instigator of the accusations.
The Tribunal accepted much in the applicant’s favour. Nothing the applicant had said about the supposedly persecutory allegations against her father could elevate them to a point where, comparatively, they could form any important part of her story or the background against which her fears might be judged. There was nothing to suggest to the Tribunal that the applicant might have faced any significant current impediment in further elucidating the circumstances of her father’s court appearances, had she wished to do so.
In the light of these matters and the Tribunal’s approach to the case otherwise, there was also no reason for the Tribunal member to think that there was any real prospect of such an approach changing, whatever further possible inquiries by the Tribunal about this subject might reasonably have established: at worst, criminal charges, their purported truth as yet undetermined but asserted by her father to be false, might have been laid against him, by or at the behest of his political enemies who enjoyed positions of power. Further, even if possibly persecutory treatment of her father might have been more clearly suggested by such inquiries, given what the Tribunal otherwise accepted in the applicant’s favour and the Tribunal’s reasons for nevertheless rejecting the claim that she was a refugee, it seems unlikely that the gap between her father’s mistreatment and a real chance of reasonably serious harm to her could have been bridged.
Consequently, and upon the assumption that there might in some cases be a legal duty to inquire further (an assumption made in Minister for Immigration and Ethnic Affairs v Surjit Singh (unreported, Full Court, 7 May 1997)) and despite the importance of the decision that the Tribunal had to make, there was no obscurity that needed to be resolved before a decision was made: Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 353, nor was the material “centrally relevant” to the decision to be made by the Tribunal: c.f. Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563. The Tribunal had no duty to inquire further.
Sections 420 and 476 and a possible right to have the Tribunal inquire further
The above discussion assumes the correctness of the applicant’s principal contention of law, that the requirement in s 420(2)(b) to act according to “substantial justice and the merits of the case” should be understood as prescribing or at least implying a “procedure” or procedures (here, the obligation to inquire), so that failure by the Tribunal to observe such a procedure would make the Tribunal’s decision judicially reviewable under s 476(1)(a).
That submission steps onto a road inordinately well-travelled in this Court. However, there is still in my view no authoritative decision upon it, despite the disparate views expressed in obiter dicta (I agree with the dissension of Whitlam J on this point) by the majority in Eshetu v Minister for Immigration and Ethnic Affairs (unreported, Full Court, 10 July 1997). In the circumstances, I am reluctant to add the imprint of yet more judicial feet to the mud. However, I feel an obligation shortly to express my views.
Both paragraphs (a) and (b) in s 420(2) constitute a kind of provision commonly inserted by parliaments, state and federal, to guide judicial or quasi-judicial tribunals when it is felt by the relevant legislature that reliance on technical legal requirements that properly attends certain judicial processes (notably the intrusion upon the liberty of the subject in a criminal case) is not appropriate to the judicial or quasi-judicial process at hand. Such a provision may well have been thought particularly apposite here, where (a) decisions of possibly extreme significance for the well-being of alleged refugees need to be made, (b) the making of the decision which is being reviewed by the Tribunal is itself hedged about with a plethora of procedural requirements (see especially subdivision AB of Division 3 in ss 52-64), and (c) the Act prescribes a number of procedures to attend review by the Tribunal: see Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, 6 May 1997).
In that context, it is simply, with respect, torturing language to suggest (as has been done in a number of cases) that s 420(2)(b) itself prescribes a procedure or gives rise to enforceable procedural rights as contemplated by s 476(1)(a) as being “required by the Act”. Section 420(2)(b) prescribes a mandatory aspiration for the Tribunal, and on assurance to applicants, as to the quality or standard of its decision-making. It does not impose a “procedure” for observance.
If, in a particular case, it be a matter of substantial justice to inquire further, or (more rarely, one would think) if it would not accord with the substantial merits of the case not to do so, then one might say that a duty so to inquire arose under s 420 (and no doubt s 425(1)(b), c.f. s 426(3)), as well as from implications of fairness which might more generally be drawn from the Act’s subject matter and purposes. Such a case could in my view possibly arise, although instances would probably be unusual. If it did so, that would, in my opinion, be because it is a matter of substantial justice that there be no failure to take into account relevant considerations, and/or that an applicant before the Tribunal has the right to a fair hearing. Such rights would seem to go beyond what might be called the merely adjectival in order to amount to aspects of “substantial justice”, even though they concern procedural or process matters. Hence, that those rights may arise in part because of s 420(2)(b) is consistent with that paragraph not being concerned to enforce merely procedural requirements, in the sense that such requirements are ordinarily understood.
Thus, because s 420(2)(b) does not prescribe a procedure for observance, a supposed breach of it cannot itself found an application for judicial review under s 476(1)(a). Subject to a consideration of subs 476(2) and 476(3), however, I see no reason why a breach of s 420(2)(b) at least when constituted by an undue failure to inquire, would not prima facie be remediable under s 476(1)(d) or 476(1)(c). However, as to s 476(1)(d), insofar as an undue failure to inquire by the Tribunal would amount to an improper exercise of a power (and this is how one would most naturally describe such a situation), s 476(3)(e) and (g) would appear to rob the applicant of a capacity to seek judicial relief in this Court.
Insofar as such a failure would result in the decision not being one authorised by the Act (and it seems to me that such would be the result, because the substantial justice assured to the applicant under s 420(2)(b) would not have been done or accorded), then it seems to me that the matter would be reviewable under s 476(1)(c). That is, unless on a true analysis the right to have an inquiry made depends upon the rules of natural justice, and s 476(2)(a) prevents s 476(1)(c) being applied. It seems to me that there is much to be said for the view that any right to an inquiry does so depend: c.f. Prasad and Videto and the discussion by Aronson and Dyer in Judicial Review of Administrative Action (Law Book Company, 1996, pp302 ff).
Unlike s 476(3) and (4), the entirety of s 476(1) is made “subject to subsection (2)”. Effect must be given to those words. It does not seem to me, with respect, that either the judgment (erudite and powerful, if I may say so) of Burchett J in Eshetu, or the otherwise “penetrating” (per Burchett J, ibid) analysis of Lee J in Singh, comes to grips with this. Important as are the presumptions (a) against legislative intention, absent clear words, to abrogate common law rights and principles, particularly to do with natural justice; (b) in favour of a construction which accords with a treaty obligation; and (c) in favour of a narrow scope for privative clauses (assuming s 476(2) is such a clause), they all must yield to the language of the statute. The opening words of s 476(1) cannot be ignored. It seems to me that what those words and the provisions of s 476(2) mean is that, where it would be necessary to invoke, in substance, the ground that a breach of the rules of natural justice has occurred, to make out one of the grounds set out in s 476(1), then that ground will not justify judicial review.
Nor does this conclusion rest only on textual analysis. The evidently supposed mischief to which s 476(2)(a) was directed was the extent to which the boundaries of the rules of natural justice might extend in this sphere, whether or not that supposition might be regarded by a court as well-based. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 was perceived, again whether rightly or wrongly, as a notable example.
Any modern court must view with profound misgivings a legislative denial of a remedy for breach of the rules of natural justice in the making of such profoundly important decisions as those concerning the fate of alleged refugees, upon which even lives might depend. However, unless there is some constitutional impediment to the legislature so behaving, the courts should not seek to circumvent the legislature’s plain intention by torturing or overlooking statutory language, or by applying presumptions in the teeth of the significance of what is well-known to have been the legislatively-perceived mischief addressed by amending legislation. That plain intention included, in my view, that if the substance of a reason for the application of s 476(1)(c) was that the rules of natural justice (or Wednesbury unreasonableness: see s 476(2)(b)) had not been observed, s 476(1)(c) could not be relied upon. There might, I suppose, be cases falling within s 476(1)(c) only because s 420(2)(b) had not been complied with, for reasons that in substance did not depend on the rules of natural justice or Wednesbury unreasonableness (though what they would be is not easy to imagine), but the present case is not one of them.
Hence, in my view, even had the facts given rise to a legal duty to enquire (assuming such a duty to exist in some circumstances), s 476 would not provide a remedy in this Court.
Addendum: Possible constitutional issues not raised
It was not argued that there was any constitutional impediment to the operation of the singular provisions of s 476(2); for example that, by permitting what might be said to be little more than a sham judicial review in important respects, s 476(2) might be invalid as having the tendency to undermine public confidence in the Court or to compromise the integrity of the federal judicial system: see e.g. Kable v DPP (1996) 138 ALR 77. Neither was it argued that s 476(2) might be an attempt on the part of the legislature to have the Court stand mute in the face of denials of natural justice, which would otherwise be required by the Act, in a process called “judicial review”, and thereby “to impose a non-judicial requirement inconsistent with the exercise of judicial power”: c.f. Leeth v Commonwealth (1992) 174 CLR 455 at 470.
Likewise it remains a matter of interesting speculation, because it was not argued before me, whether:
(a)as the High Court of Australia was given original jurisdiction, beyond the reach of the Parliament, in “matters . . . in which a writ of Mandamus or prohibition ... is sought against an officer of the Commonwealth” (s 75(v) of the Constitution);
(b)since fundamental principles which lie behind the concept of natural justice are not remote from the principle which inspires the theory of separation of powers (Attorney-General for Australia v The Queen (The Boilermaker’s Case) [1957] AC 288 at 316 ; and
(c)either, as the Act does not fairly indicate that the Tribunal itself should not afford natural justice to an applicant but merely denies a remedy in the Federal Court for breach of the rules of natural justice; or
(d)because a requirement might be said to be implied in the Constitution that the rules of natural justice (upon which much of the remedial jurisdiction apparently constitutionally mandated by s 75(v) depends) would continue to operate in relation to Commonwealth officers, in order that such jurisdiction might not be legislatively attenuated;
(e)therefore, the seeming placement by the Act of the rules of natural justice beyond the reach of this Court (the court charged by the legislature with judicially reviewing the procedures leading to, and the law applicable to, a decision of the relevant Commonwealth officer) would only have the effect of directing litigants in immigration cases complaining of a denial of natural justice to the High Court with prerogative writ applications: a result the legislature would surely not have intended, whatever the meaning of the statute might otherwise appear to be, as derived from textual analysis of it or from the “mischief rule”.
The application to this Court should be dismissed.
| I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick |
Associate:
Dated: 11 August 1997
| Solicitor for the Applicant: | C Levingston |
| Counsel for the Respondent: | G Johnston |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 20 August 1996 |
| Date of Judgment: | 11 August 1997 |
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