Yao v Minister for Immigration and Ethnic Affairs

In Yao v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court of Australia was required to determine whether a decision of the Refugee Review Tribunal (RRT) was reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and s 39B of the Judiciary Act 1903 or under Part 8 of the Migration Act 1958. The applicant, Dai Xing Yao, had applied for refugee status and, after his application was refused by the Minister, he applied to the RRT for review. The RRT affirmed the Minister's decision. The RRT's decision was made after the commencement of Part 8 of the Migration Act, which limited the grounds upon which the Federal Court could review decisions of the RRT. The Court had to decide whether the RRT's decision was reviewable under the ADJR Act and s 39B or under Part 8. The Court found that the RRT's decision was reviewable only under Part 8 of the Migration Act. The Court reasoned that the applicant did not have an accrued right to seek judicial review under the ADJR Act and s 39B because the RRT's decision was taken under provisions that came into operation on 1 September 1994, the same time as s 485(1) of the Migration Act, which limited the Federal Court's jurisdiction. The Court held that Parliament had expressly stated its intention that the review provisions contained in Part 8 of the Migration Act would apply to decisions of the RRT, and that the Federal Court should have no jurisdiction other than that conferred by Part 8 with respect to decisions taken under the Migration Act. The Court also rejected the applicant's arguments based on the presumption against retrospectivity and the presumption against ousting the jurisdiction of the Court, holding that the language of the Migration Act manifested an intention to rebut both presumptions. The Court's decision was that the RRT's decision was reviewable only under Part 8 of the Migration Act, and there should be no order as to costs as this was a test case.