HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJRE REFUGEE REVIEW TRIBUNAL & ANOR RESPONDENTS
EX PARTE MANSOUR AALA PROSECUTOR
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
16 November 2000
S185/1999ORDER
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.
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ. The facts, which are not in dispute, are set out in the reasons for judgment of other members of the Court.
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.
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.
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…
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- Case
- [2000] HCA 57
- Decision Date
CaseChat Overview and Summary
The legal questions before the Court were whether the Tribunal's failure to afford the prosecutor procedural fairness, by making an erroneous statement about its review of evidence and subsequently denying him an opportunity to be heard on matters affecting his credibility, warranted the grant of constitutional writs. Specifically, the Court had to determine the nature of the writ of prohibition, its availability for breaches of procedural fairness, whether it was available as of right or at the Court's discretion, and whether the application should be rejected due to delay. The Court also considered the construction of section 75(v) of the Constitution regarding the meaning of words at the time of its commencement.
The Court reasoned that the Tribunal's erroneous statement, which led the prosecutor to believe it had considered all relevant evidence, constituted a denial of procedural fairness. The prosecutor was not afforded a proper opportunity to address the Tribunal on matters that were critical to its assessment of his credibility, particularly concerning the potential disclosure of information by his friend, Ali Tehrani. The Court affirmed that the writ of prohibition is a constitutional writ available as of right to prevent a superior court or tribunal from exceeding its jurisdiction, and that a failure to accord procedural fairness can amount to an excess of jurisdiction. The Court also found that the prosecutor's application was not barred by delay.
The Court made orders absolute for a writ of prohibition prohibiting the Tribunal from taking action on its decision of 3 April 1998. It also ordered that time be extended and a writ of certiorari issue to quash the Tribunal's decision. Furthermore, a writ of mandamus was ordered, requiring the Tribunal to consider and determine the prosecutor's application according to law. The second respondent was ordered to pay the prosecutor's costs.
Orders
Orders of the court
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ, GAUDRON AND GUMMOW JJ, CALLINAN J
Full text does not contain this section.