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Re Refugee Review Tribunal; Ex parte H

Re Refugee Review Tribunal; Ex parte H

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Case Copied 24 May 2001 25 min read

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON AND GUMMOW JJ
RE REFUGEE REVIEW TRIBUNAL & ANOR                RESPONDENTS
EX PARTE H & ANOR  PROSECUTORS
Re Refugee Review Tribunal; Ex parte H
[2001] HCA 28
24 May 2001
S276/2000
ORDER
1.   Order absolute for a writ of prohibition prohibiting the respondents from taking action on the decision of the first respondent made on 16 November 1999.
2.   Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 16 November 1999.
3.   In respect of the application by the prosecutors dated 31 December 1997, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law.
4.   Respondents to pay prosecutors' costs of the proceedings in this Court.
Representation:
T A Game SC with D H Godwin for the prosecutors (instructed by R A Kessels)
No appearance for the first respondent
S J Gageler SC 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, GAUDRON AND GUMMOW JJ. The prosecutors, who are husband and wife, are citizens of Sri Lanka. They seek relief under s 75(v) of the Constitution with respect to a decision of the Refugee Review Tribunal ("the Tribunal"). Their application for relief has been referred to a Full Bench of this Court to be determined by reference to the transcript of argument which the parties presented before the Chief Justice and, also, by reference to their supplementary written submissions.
The prosecutors arrived in Australia in October 1997. Shortly afterwards, they applied for protection visas pursuant to s 45 of the Migration Act 1958 (Cth) ("the Act"). Their applications were refused by a delegate ("the delegate") of the Minister for Immigration and Multicultural Affairs. They then sought review of that decision by the Tribunal under s 412 of the Act.
The Tribunal embarked upon a hearing of the prosecutors' application for review on 21 September 1999. The prosecutors thereafter made complaint about that hearing and a further hearing took place on 19 October 1999. On 16 November 1999, the Tribunal affirmed the decision of the delegate not to grant protection visas. The Tribunal's decision with respect to the male prosecutor was subsequently the subject of judicial review by the Federal Court of Australia which held, at first instance and on appeal, that the Tribunal's decision was not affected by actual bias.
In his separate judgment dismissing the male prosecutor's appeal to the Full Federal Court, Marshall J expressed the view that, although actual bias had not been established, "a reasonable apprehension of bias ha[d] been demonstrated."[1] The prosecutors now seek relief with respect to the Tribunal's decision on grounds of apprehended bias and breach of the rules of natural justice; grounds that were not available in the Federal Court[2].
[1]H v Minister for Immigration and Multicultural…

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

Case: [2001] HCA 28
Decision Date: 24 May 2001

CaseChat Overview and Summary

This matter concerned an application for writs of prohibition and certiorari, brought by H, against the Refugee Review Tribunal. H sought to challenge the Tribunal's affirmation of a decision to refuse applications for protection visas, where H's credibility was a central issue. The proceedings before the High Court of Australia were initiated to determine whether the Tribunal's conduct during the hearing gave rise to a reasonable apprehension of bias.

The primary legal issue before the High Court was whether the Tribunal's conduct, specifically its constant interruptions and challenges to H's evidence, could lead a fair-minded lay person to apprehend bias. This required the Court to consider the appropriate modification of the test for apprehended bias when applied in the context of administrative proceedings, as distinct from judicial proceedings. Additionally, the Court considered whether relief under s 75(v) of the Constitution should be refused on discretionary grounds.

The Court reasoned that while vigorous testing of evidence is permissible in administrative hearings, the nature and extent of the Tribunal's interruptions and challenges in this instance went beyond mere testing. The Court applied the principle that a tribunal must not only be impartial but must also appear to be impartial. It concluded that the conduct of the Tribunal created a real possibility that a fair-minded lay observer would apprehend bias. Consequently, the Court made orders absolute for a writ of prohibition prohibiting the respondents from taking action on the Tribunal's decision of 16 November 1999, and a writ of certiorari to quash that decision. Further, a writ of mandamus was ordered requiring the Tribunal to consider and determine H's application according to law, with the respondents ordered to pay H's costs.

Orders

Orders of the court

1. Order absolute for a writ of prohibition prohibiting the respondents from taking action on the decision of the first respondent made on 16 November 1999.

2. Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 16 November 1999.

3. In respect of the application by the prosecutors dated 31 December 1997, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law.

4. Respondents to pay prosecutors' costs of the proceedings in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GAUDRON AND GUMMOW JJ

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON AND GUMMOW JJ

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