GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND
MOGES ESHETU RESPONDENT
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 13 May 1999 S26/1998
ORDER
Appeal allowed with costs.
Set aside the order of the Full Court of the Federal Court made on 10 July 1997 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
J Basten QC with R T Beech-Jones for the appellant (instructed by Australian Government Solicitor)
T A Game SC with E A Wilkins and G P Craddock for the respondent (instructed by Kessels & Associates)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA & ANOR RESPONDENTS
Ex parte MOGES ESHETU PROSECUTOR
Re Minister for Immigration and Multicultural Affairs; Ex parte Eshetu 13 May 1999 S104/1998
ORDER
Application dismissed with costs.
Representation:
T A Game SC with E A Wilkins and G P Craddock for the prosecutor (instructed by Kessels & Associates)
J Basten QC with R T Beech-Jones for the first respondent (instructed by Australian Government Solicitor)
No appearance for the second respondent
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Multicultural Affairs v Eshetu
Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Eshetu
Administrative law – High Court – Constitution, s 75(v) – Prohibition and mandamus – Refugee Review Tribunal – "Wednesbury" unreasonableness – Whether Tribunal acting within jurisdiction.
Immigration law – Refugees – Refugee Review Tribunal decision refusing to grant protection visa – Whether review available if Tribunal acts inconsistently with s 420 of the Migration Act1958 (Cth) – Whether ground of review precluded by s 476(2)(b) of the Act – Whether failure of Tribunal to make certain findings of fact an error of law – "well-founded fear of being persecuted".
Words and phrases – "well-founded fear of persecution" – "jurisdictional fact".
Constitution, s 75(v). Migration Act 1958 (Cth), ss 36, 65, 420, 430, 475, 476.
GLEESON CJ AND McHUGH J. Two matters were heard together. The first is an appeal by the Minister for Immigration and Multicultural Affairs ("the Minister") against a decision of the Full Court of the Federal Court[1] which, by majority[2], reversed a decision of Hill J[3]. Hill J had dismissed Mr Eshetu's application, under the Migration Act 1958 (Cth) ("the Migration Act"), for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Full Court allowed an appeal from Hill J, set aside the decision of the Tribunal and ordered that the matter be remitted to the Tribunal…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Case
[1999] HCA 21
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Multicultural Affairs appealed to the High Court of Australia from a decision of the Full Court of the Federal Court, which had set aside a decision of the Refugee Review Tribunal. The Tribunal had refused to grant a protection visa to Moges Eshetu, an Ethiopian national, on the basis that he did not meet the definition of a refugee under the Convention. Mr Eshetu also applied to the High Court for relief under s 75(v) of the Constitution, seeking to prevent the Minister from acting on the Tribunal's decision due to alleged unreasonableness.
The legal issues before the High Court included whether the Tribunal's decision was reviewable on the ground that it acted inconsistently with s 420 of the *Migration Act 1958* (Cth), whether such a ground of review was precluded by s 476(2)(b) of the Act, and whether the Tribunal's failure to make certain findings of fact constituted an error of law. The Court was also required to consider the meaning and effect of s 420, which outlines the objectives and conduct of the Tribunal in reviewing decisions.
The High Court reasoned that s 476(2) of the *Migration Act* does not excuse breaches of natural justice or authorise unreasonable decisions, and that s 420 describes the general nature of review proceedings rather than mandating specific procedures or methods for the Tribunal to reach its decision. Consequently, the Court held that the Tribunal's decision was not reviewable on the ground that it failed to observe procedures purportedly required by s 420. The Court found that no error of law had been demonstrated, and that the grounds for appeal amounted to mere disagreement with the Tribunal's assessment of the merits of Mr Eshetu's case, which were matters for the Tribunal to determine.
The High Court allowed the Minister's appeal, set aside the order of the Full Court of the Federal Court, and ordered that the appeal to that Court be dismissed with costs. The application by Mr Eshetu under s 75(v) of the Constitution was also dismissed, with Mr Eshetu ordered to pay the Minister's costs.
Orders
Orders of the court
1.
Appeal allowed with costs.
2.
Set aside the order of the Full Court of the Federal Court made on 10 July 1997 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
Once it is appreciated that s 476(2) does not excuse breach of the rules of natural justice or authorise unreasonable decisions and that s 420 serves to describe the general nature of review proceedings, there is no basis for concluding that the latter section operates to mandate specific procedures to be observed by the Tribunal or the method by which it is to reach its decision. It follows that the Tribunal's decision is not reviewable, whether in this Court or in the Federal Court, on the ground that the Tribunal failed to observe procedures required by s 420 of the Act.Error of law: relevant factual background and nature of Mr Eshetu's claim The substantive question for the Tribunal to decide was whether Mr Eshetu was a refugee as defined in the Convention. To ascertain whether there was an error of law involved in its decision that he was not, it is necessary to have regard to the factual background in which he claimed refugee status and the nature of the claim that he made. As earlier indicated, Mr Eshetu is a citizen of Ethiopia. That country is comprised of a large number of ethnic groups. Mr Eshetu is a member of one of the largest groups, the Amharas, who have long dominated the central government of Ethiopia. Until May 1991, the Mengistu government was in power in Ethiopia. In that month, President Mengistu fled and the country fell to the Ethiopian People's Revolutionary Democratic Front ("the EPRDF"), a coalition of opposition groups dominated by the Tigray People's Liberation Front. There was some opposition to the EPRDF takeover and, immediately following that event, several people were killed in demonstrations in Addis Ababa. It appears that, at this time, Mr Eshetu's father was killed in Assab, a city in what is now Eritrea. Mr Eshetu believes he was killed by the EPRDF. In July 1991, a transitional government was formed in Ethiopia. It was comprised of several different political parties and ethnic organisations. Despite improvements with respect to freedom of speech and human rights generally, inter-ethnic violence continued for some time and militias from different groups continued to clash with each other. Members of groups involved in conflict with the EPRDF were also detained during 1991 and 1992. And as the Tribunal recorded in its decision, the US Human Rights Report for 1991 noted that, in this period, there were "charges and countercharges among [the] various political parties [comprising the transitional government] of politically motivated violence in the countryside, including some disappearances of party workers". Various bodies have monitored the situation in Ethiopia since 1991. In its decision, the Tribunal summarised the report of Amnesty International of April 1995[46] as follows:"The Amnesty Report ... states that hundreds of [All Amhara People's Organisation ("AAPO")] supporters were arrested in 1994 and 1995. The Report notes the arrest of five leading AAPO members, including the party leader Professor Asrat Woldeyes and the detention of the 500 people involved in a demonstration for his release. Amnesty states that the demonstration was a peaceful event until the police intervened, beating some demonstrators and arresting others."The Tribunal added that "[a]part from these detentions, the Amnesty Report contains no other reports of detentions of AAPO members." The Tribunal also noted that the Human Rights Watch World Report 1995 reported the arrest and detention of 158 supporters of AAPO in September 1994.[46]"Ethiopia Accountability past and present: Human rights in transition".
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CALLINAN J
(dissent)
GLEESON CJ
(dissent)
HUGH J
(dissent)
GAUDRON AND KIRBY JJ
(dissent)
HAYNE J
(dissent)
No error of law was shown. What emerged was nothing more than a number of reasons for disagreeing with the Tribunal's views of the merits of the case. The merits were for the Tribunal to determine, not for the Federal Court.Conclusion The appeal should be allowed. The order made by the Full Court of the Federal Court should be set aside, and the orders of Hill J restored. The application under s 75(v) of the Constitution should be dismissed. Mr Eshetu must pay the Minister's costs of the appeal to the Full Court of the Federal Court and to this Court, and of the application under s 75(v). The Minister for Immigration and Multicultural Affairs ("the Minister") has been granted special leave to appeal from a decision of the Full Court of the Federal Court of Australia[25] setting aside a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal held that Moges Eshetu, an Ethiopian national, was not a refugee for the purposes of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as "the Convention"), and, thus, not entitled to a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act").[25]Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. In addition to the Minister's appeal, Mr Eshetu has applied to this Court for relief under s 75(v) of the Constitution to prevent the Minister from acting on the Tribunal's decision. He seeks relief on the ground that the decision is unreasonable. The appeal and the application were heard together.Relevant legislative provisions To understand why there are two separate proceedings before the Court and, also, to appreciate the issues involved, it is necessary to refer immediately to various provisions of the Act. By s 36 of the Act, a person is entitled to a protection visa if he or she is a refugee as defined in the Convention[26]. By s 411(1)(c), "a decision to refuse to grant a protection visa" is reviewable by the Tribunal, which may affirm or vary the decision in question or set it aside and substitute a new decision[27].[26]Section 36(2) of the Act states that:" A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."[27]Sections 415(2)(a), (b) and (d). Provision is made in Divs 3 and 4 of Pt 7 of the Act with respect to the manner in which the Tribunal is to exercise its powers and conduct reviews. Section 420, the meaning and effect of which is in issue in the appeal, provides:"(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."