Re Minister for Immigration and Multicultural Affairs;
Ex parte Applicant S20/2002
[2003] HCA 30
17 June 2003 S20/2002
ORDER
Application dismissed with costs, including any reserved costs.
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.
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, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ
APPELLANT S106/2002 APPELLANT
AND
MINISTER FOR IMMIGRATION AND RESPONDENT
MULTICULTURAL AFFAIRS
Appellant S106/2002 v Minister for Immigration and Multicultural Affairs
17 June 2003 S106/2002
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
B W Walker SC with L J Karp for the appellant (instructed by McDonells Solicitors)
S J Gageler SC with G R Kennett for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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…
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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AGLC
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Case
[2003] HCA 30
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia concerning the review of a decision made by the Refugee Review Tribunal. The appellant, identified as Applicant S20/2002, sought relief through constitutional writs under section 75(v) of the Constitution, alleging jurisdictional error by the Tribunal. The core dispute centred on whether the Tribunal's rejection of the appellant's credibility and its discounting of corroborative evidence constituted an irrational, illogical, or perverse process of reasoning, thereby vitiating the decision. The appellant also raised grounds of actual bias and apprehended bias.
The High Court was required to determine whether a demonstrably irrational or illogical process of reasoning by a statutory tribunal could amount to jurisdictional error, thus authorising relief under section 75(v) of the Constitution. This involved considering the extent to which common law developments in administrative law affect the content of constitutional writs and whether such relief was available even when the Federal Court, limited by the Migration Act 1958 (Cth), had been unable to grant it. The Court also had to assess the grounds of bias raised by the appellant.
The Court reasoned that where a tribunal's reasons disclose an irrational, illogical, or perverse process, this can constitute jurisdictional error, rendering the decision invalid. This principle is particularly relevant when invoking the High Court's original jurisdiction under section 75(v) of the Constitution, which is not subject to the statutory limitations that may constrain other courts. The Court distinguished between discretionary decisions and those involving the finding of facts essential to jurisdiction, noting that an erroneous approach to jurisdictional facts could vitiate a decision. Ultimately, the Court found that the appellant's arguments regarding illogicality and bias were not made out, and therefore, the application for constitutional writs could not succeed.
The application was dismissed with costs, including any reserved costs.
Orders
Orders of the court
Application dismissed with costs, including any reserved costs.
Background
Background to the litigation
Where the reasons of a tribunal established by the Parliament to make decisions and exercise powers of the kind in question, disclose an irrational, illogical or perverse process of reasoning, it may sometimes be concluded that the "decision" thereby made does not conform to the requirements of the Act. It may involve jurisdictional error. Under the provisions of the Act as then applicable, such error could authorise relief from the Federal Court. More importantly, it will authorise relief from this Court under its constitutional mandate to hold all officers of the Commonwealth answerable to the Constitution and to the other laws pursuant (or subject) to which they exercise their powers.The facts Clarifying the appellant's arguments:The general history of the proceedings is stated in the reasons of McHugh and Gummow JJ[54] ("the joint reasons"). Their Honours set out relevant findings of the Tribunal and provisions of the Act[55]. I will not repeat any of this material. However, because the basis of the argument of illogicality or irrationality (as well as of bias) upon which this Court was asked to intervene is not there elaborated, it is necessary for me to refer to further evidence in order to explain my contrary conclusion. In referring to the parties, I will accept the descriptions used in the joint reasons[56].[54]At [22]-[25].[55]Joint reasons at [32], [63].[56]Joint reasons at [23]. The Act, s 91X, provides that the Court must not publish the appellant's name. In the absence of a direct challenge to the validity of this provision, it will be assumed that the section is constitutionally valid: see Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 ("Plaintiff S157/2002") at 464 [44]; 195 ALR 24 at 37. Rejection of the appellant's credibility:The appellant is a national of Sri Lanka of Singhalese ethnicity. Some time after his arrival in Australia he sought a protection visa under the Act invoking this country's obligations under the Refugees Convention[57]. His application was based on a claim that he had a well-founded fear of persecution if he were to return to Sri Lanka, because officers of the government of that country had imputed to him a political opinion of support for the Liberation Tigers of Tamil Eelam ("LTTE"). The LTTE are an armed revolutionary group that sought to establish a separate Tamil State in Sri Lanka. [57]Convention relating to the Status of Refugees done at Geneva on 28 July 1951, ATS 1954 No 5, now read with the Protocol relating to the Status of Refugees done at New York on 31 January 1967, ATS 1973 No 37. See the Act, s 36. Before the delegate of the Minister, and again before the Tribunal, the appellant claimed that his troubles arose out of his friendship with two young men, Ravi and Babu. He met them during a cooking course that he attended at a hotel in Colombo. For a time he provided them with accommodation at his parental home. The appellant stated that, in August 1994, the home had been surrounded by security forces and he, Babu and Ravi had been taken first to a local police station and then to police headquarters in Colombo. It transpired that Babu and Ravi were of Tamil ethnicity. The appellant was accused of harbouring members of the LTTE. Later the appellant was transferred to Army headquarters at Colombo Fort. He was accused of betraying his race. He claimed that he was tortured and violently assaulted. He stated that he was only released in December 1994 following the intervention of a Buddhist monk. Being in fear of further persecution, he fled Sri Lanka coming to Australia. He later heard that his family had been taken into custody. He had no contact with his family after that time and inferred that they may have been killed.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH AND GUMMOW JJ
(dissent)
KIRBY J
(dissent)
CALLINAN J
The appellant also relies on the ground of actual bias provided by par (f) of s 476(1). That ground, a fortiori to that of apprehended bias already mentioned, must fail.Conclusions In Matter No S20 of 2002, the application should be dismissed with costs, including any reserved costs. In Matter No S106 of 2002, the appeal should be dismissed with costs. The issue in these proceedings is whether serious illogicality, disclosed in the reasons of a statutory tribunal, entitles a person adversely affected by the tribunal's decision to have that decision set aside. It is possible to find judicial opinions to sustain decisions made by repositories of statutory power against correction, even where such decisions are "perverse", "illogical" or "marred … by patent error", so long as they can be classified as decisions about the facts[50]. I do not accept that view[51]. I do not regard it as part of the law of Australia. No decision of this Court so holds. [50]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 ("Azzopardi") at 155-157.[51]Azzopardi (1985) 4 NSWLR 139 at 151; cf Donnelly v Victims Compensation Fund Corp (1995) 82 A Crim R 55 at 63; X v The Commonwealth (1999) 200 CLR 177 at 218-219 [136]. See also Hill v Green (1999) 48 NSWLR 161 at 174-175 [72], 176-177 [85]-[86], 209-213 [229]-[244]. In these proceedings all of the judges of the Federal Court of Australia were critical of the reasoning of the Refugee Review Tribunal ("the Tribunal"). However, the primary judge and a majority of the Full Court of the Federal Court, felt unable to afford relief[52]. That Court was limited to the grounds of review stated in the Migration Act 1958 (Cth) ("the Act")[53]. [52](2001) 109 FCR 424 per Hill and Stone JJ, Finkelstein J dissenting.[53]See s 476 as it stood before the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). In this Court there is a challenge, by an appeal brought by special leave, against the judgment that followed the majority conclusion below. In addition, application is made for constitutional writs and associated relief, invoking this Court's original jurisdiction pursuant to s 75(v) of the Constitution. That provision is not subject to the statutory restrictions that limited the powers of the judges of the Federal Court. Where the reasons of a tribunal established by the Parliament to make decisions and exercise powers of the kind in question, disclose an irrational, illogical or perverse process of reasoning, it may sometimes be concluded that the "decision" thereby made does not conform to the requirements of the Act. It may involve jurisdictional error. Under the provisions of the Act as then applicable, such error could authorise relief from the Federal Court. More importantly, it will authorise relief from this Court under its constitutional mandate to hold all officers of the Commonwealth answerable to the Constitution and to the other laws pursuant (or subject) to which they exercise their powers.The facts Clarifying the appellant's arguments:The general history of the proceedings is stated in the reasons of McHugh and Gummow JJ[54] ("the joint reasons"). Their Honours set out relevant findings of the Tribunal and provisions of the Act[55]. I will not repeat any of this material. However, because the basis of the argument of illogicality or irrationality (as well as of bias) upon which this Court was asked to intervene is not there elaborated, it is necessary for me to refer to further evidence in order to explain my contrary conclusion. In referring to the parties, I will accept the descriptions used in the joint reasons[56].[54]At [22]-[25].[55]Joint reasons at [32], [63].[56]Joint reasons at [23]. The Act, s 91X, provides that the Court must not publish the appellant's name. In the absence of a direct challenge to the validity of this provision, it will be assumed that the section is constitutionally valid: see Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 ("Plaintiff S157/2002") at 464 [44]; 195 ALR 24 at 37.