Beaton-Wells, Caron --- "Judicial Review of Migration Decisions: Life After S157" [2005] FedLawRw 5; (2005) 33(1) Federal Law Review 141
[∗] BA/LLB (Hons), LLM (Melb), PhD (Melb); Senior Lecturer, Melbourne Law School, University of Melbourne; Victorian Bar.
[1] (2003) 211 CLR 476 ('S157').
[2] Broader questions concerning the impact of S157 on the Australian constitutional system have been explored elsewhere. See, eg, Duncan Kerr and George Williams, 'Review of Executive Action and the Rule of Law Under the Australian Constitution' (2003) 14 Public Law Review 219.
[3] Decisions under the Act have been reviewable also by the Federal Magistrates Court since 2 October 2001. The jurisprudence of this Court is not specifically referred to in this article given that it is bound by and, as a matter of practice, follows Federal Court precedent.
[4] Section 75(v) of the Constitution confers original jurisdiction on the High Court in 'all matters … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'.
[5] For a detailed explanation of the decision, see Caron Beaton-Wells, 'Restoring the Rule of Law — Plaintiff S157/2002 v Commonwealth of Australia' (2003) 10 Australian Journal of Administrative Law 125; Kerr and Williams, above n 2; Duncan Kerr, 'Deflating the Hickman Myth: Judicial Review after Plaintiff S157/2002 v The Commonwealth' [2003] AIAdminLawF 7; (2003) 37 AIAL Forum 1; Mark Seymour, 'Privative Clauses in Administrative Law: Recent Developments' (2003) 77 Australian Law Journal 757.
[6] [2002] HCA 11; (2002) 209 CLR 597.
[7] S157 (2003) 211 CLR 476, 488 [19], 495 [41] (Gleeson CJ), 505–6 [75]–[77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[8] Ibid 494 [38] (Gleeson CJ), 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[9] This language was taken from a line of cases, starting with R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 and subsequently including R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 and R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208.
[10] S157 (2003) 211 CLR 476, 504 [69].
[11] Ibid.
[12] [2002] FCAFC 228; (2002) 123 FCR 298 ('NAAV').
[13] There were some members of the Federal Court who considered NAAV [2002] FCAFC 228; (2002) 123 FCR 298 should be adhered to. See Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144 [12]–[15] (Gyles J); Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75; (2003) 129 FCR 79, 85 [14] (Gyles J); 103–6 [65]–[73] (Conti J).
[14] R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; see above n 9.
[15] NAAV [2002] FCAFC 228; (2002) 123 FCR 298, 475 [625] (von Doussa J).
[16] [1995] HCA 58; (1995) 184 CLR 163, 179 ('Craig'), where it was said that if an administrative tribunal
falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[17] [2001] HCA 30; (2001) 206 CLR 323, 351 [82] ('Yusuf') where, having set out the passage from Craig [1995] HCA 58; (1995) 184 CLR 163, it was said that:
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act
suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
[18] See SDAH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 49, [17]–[18], Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60, [5]; Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116; (2003) 129 FCR 259, 261 [3]–[5]; NAEB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 25, [4]; SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281, 285–6 [19]–[20]; NAAG of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 135 [45]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, 558 [21]; Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1, 26–7 [104]; SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129; (2003) 199 ALR 43, 51–2 [33]–[35].
[19] See the formulation, for example, in Phuc v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 118, [43]–[44] and Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93, 106-7 [45].
[20] [2003] FCAFC 129; (2003) 199 ALR 43.
[21] Ibid 51 [33].
[22] Ibid 51–2 [34]–[35].
[23] (2003) 197 ALR 389 ('Dranichnikov').
[24] See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.
[25] WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; Applicant A179 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1547.
[26] WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; NAQZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 898; (2003) 200 ALR 662.
[27] Applicant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271.
[28] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1; (2004) 134 FCR 85.
[29] The PF Act took effect on 4 July 2002.
[30] In NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137; (2003) 77 ALD 424 a claim of actual bias was upheld and in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and, more recently, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, claims of apprehended bias were upheld.
[31] See Migration Act 1958 (Cth) s 348(1) (MRT), s 414(1) (RRT).
[32] [2001] FCA 274; (2001) 106 FCR 426.
[33] Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426, 444 [78] ('Anthonypillai').
[34] Ibid 444 [79]. For cases applying the Anthonypillai approach under the former Pt 8, see, eg, Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; (2001) 195 ALR 84; Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689; (2001) 195 ALR 73.
[35] These grounds were the direct counterpart of the grounds under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(c)–(d).
[36] [2001] HCA 30; (2001) 206 CLR 323.
[37] Yusuf [2001] HCA 30; (2001) 206 CLR 323, 350–2 [81]–[83].
[38] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [48]–[51].
[39] (2004) 211 ALR 660, 666 [26]–[27], 668 [32].
[40] See Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 in relation to Migration Act 1958 (Cth) s 425 (RRT), s 360 (MRT); Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1 in relation to Migration Act 1958 (Cth) s 424A (RRT), s 359A (MRT).
[41] See Migration Act 1958 (Cth) s 424A (RRT), s 359A (MRT).
[42] See Migration Act 1958 (Cth) s 425 (RRT), s 360 (MRT). With respect to s 425, see the High Court's recent ruling in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660, above n 39.
[43] See above n 29.
[44] See WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220, [57]; Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249, [22]–[24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624, 638 [59].
[45] See Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1, 7 [14] (Gray ACJ), 26 [103] (Merkel J).
[46] See, eg, Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 433; (2003) 128 FCR 538; Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481; (2003) 129 FCR 448; Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116; (2003) 129 FCR 259.
[47] See below, Part II(a) — High Court appeals.
[48] Aside from these exceptions, errant fact-finding, together with other conduct by the decision-maker, may constitute the basis for a finding of apprehended or actual bias. See, eg, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
[49] See, eg, Re Polites; Ex parte Construction, Forestry, Mining and Energy Union (2002) 117 FCR 212, 231, 236; Graham Barclay Oysters Pty Ltd v Great Lakes Council [2002] HCA 54; (2002) 211 CLR 540, 609 [183]. For cases in which the relevant jurisdictional fact was a 'fact' in the objective sense, see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55.
[50] [1999] HCA 21; (1999) 197 CLR 611.
[51] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 656 [145]. See also more recently in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 20 [37]–[38] (Gummow and Hayne JJ) ('SGLB').
[52] [2003] FCAFC 229, on appeal from Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169.
[53] [2003] FCAFC 303; (2003) 134 FCR 43. Special leave to appeal to the High Court from this decision was refused on 11 August 2004.
[54] [1990] HCA 33; (1990) 170 CLR 321.
[55] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356. See also Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141, 149 [34].
[56] Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222, 238–9 (Gaudron and McHugh JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 72 [57] (McHugh and Gummow JJ).
[57] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 239. The Administrative Decisions (Judicial Review) Act 1977 (Cth) no evidence ground is more generous: see ss 5(1)(h), 5(3). The corresponding ground under the former Pt 8 of the Act was recently considered by the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222.
[59] Ibid.
[60] Ibid 20 [37].
[61] Ibid 21 [38].
[62] Ibid 21 [39].
[63] Ibid 21 [41].
[64] Ibid 14 [3].
[65] Ibid 28 [68].
[66] Ibid 48 [121].
[67] SFGB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 231; (2003) 77 ALD 402.
[68] Ibid 407 [18].
[69] Ibid 407 [19].
[70] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 71–3 [53]–[60] ('S20').
[71] This was the conclusion drawn by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [54]. See also the comment by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473, 481 [35] that
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
[72] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356.
[73] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 688–90; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 621, 366–7.
[74] [1999] FCA 1; (1999) 84 FCR 411, 421 [22]–[23] ('Epeabaka').
[75] Ibid 422 [25].
[76] See, eg, Applicant RV v Minister for Immigration and Multicultural Affairs [2001] FCA 1034; (2001) 113 FCR 204, 217 [70]. The statement by Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220, 257 [146] that 'the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or unquestionable reasoning' has also commonly been relied upon.
[77] Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424, 427–8 [13], 428 [16] (Hill J), 444 [86] et seq (Stone J).
[78] Ibid 428 [14]–[15] (Hill J), 446 [92] (Stone J).
[79] Ibid 431–2 [26]–[28].
[80] Ibid 432[31]; Cf Stone J's characterisation of Gummow J's comments at 445–6 [87]–[91].
[81] Ibid 433 [33].
[82] S20 [2003] HCA 30; (2003) 198 ALR 59, the name of the case having changed in accordance with the anonymity provision in the Migration Act 1958 (Cth) s 91X.
[83] Ibid 63 [12]–[14] (Gleeson CJ), 70–1 [49]–[52] (McHugh and Gummow JJ).
[84] Gleeson CJ, McHugh and Gummow JJ and Kirby J. Callinan J agreed with the reasons of McHugh and Gummow JJ: S20 [2003] HCA 30; (2003) 198 ALR 59, 98 [173]–[174].
[85] Ibid 62 [9] (Gleeson CJ), 71–3 [54]–[60] (McHugh and Gummow JJ), 87 [127] (Kirby J). In the more recent decision in SGLB (2004) 207 ALR 12 questions of illogicality were touched on only in the joint judgment of Gummow and Hayne JJ (20–1 [38]) in which their Honours appeared to endorse the approach suggested by McHugh and Gummow JJ in S20 [2003] HCA 30; (2003) 198 ALR 59.
[86] Aronson et al, above n 57, 247.
[87] See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208, [44]; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, [22], [29]; NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32; Truong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1035, [37]–[40]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52, [25]–[27]; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286, [18]
[88] After the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229–30.
[89] S20 [2003] HCA 30; (2003) 198 ALR 59, 76 [73]–[74] (McHugh and Gummow JJ), 90 [142] (Kirby J). Gleeson CJ and Callinan J did not address this question.
[90] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 650 [127] (Gummow J); Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, 306–7 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); SGLB (2004) 207 ALR 12, 20 [37] (Gummow and Hayne JJ).
[91] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 626 [40]; S20 [2003] HCA 30; (2003) 198 ALR 59, 61 [5].
[92] Yusuf [2001] HCA 30; (2001) 206 CLR 323, 350–2 [80]–[83].
[93] See, eg, SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65, [39]–[40]; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625.
[94] See, eg, Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225, 236–7; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, 423 [78]; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, [57]–[58] and the cases cited therein.
[95] The expression 'essential integer' was first used in cases under the former Pt 8: see Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, 423 [78]–[79]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, 259 [42]. However, its usage has continued under the privative clause regime and following the decision in S157: see, eg, SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625; SDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 111. More recently, a failure to deal with a claim made by an applicant, either expressly or impliedly, has been characterised by the Full Court as a failure by the tribunal to fulfil its statutory obligation to 'review' the application: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [48]–[51], [55]–[63].
[96] See Dranichnikov (2003) 197 ALR 389.
[97] Dranichnikov (2003) 197 ALR 389, 394 [24]. Kirby J adopted a more traditional approach to characterising the error as jurisdictional (at 407 [87]–[88]). In NAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1302 [16], Beaumont ACJ cited Dranichnikov in holding that the RRT's failure to address a claim made by the applicant meant that he was denied natural justice. See also NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 [37] (Beaumont J).
[98] The authorities generally cited for this proposition are Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28, 63; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287, 293–4.
[99] W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALR 69, 79–80 [35]; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90, [8]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137, 146 [19], 148 [26], 149 [32]; Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191, [97]; NAPU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 193, [34]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [60]
[100] Minister for Immigration and Multicultural Affairs v Respondents S152
/2003 [2004] HCA 18; (2004) 205 ALR 487, 520 [123] (Kirby J). See similarly Kirby J's comment in Dranichnikov (2003) 197 ALR 389, 405 [78], as well as Gleeson CJ's remarks in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112, 113–14 [1].
[102] Ibid 648–9 [20].
[103] [2003] FCAFC 168; (2003) 200 ALR 359, 370–1 [42], 377 [65].
[104] Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93, 106-7 [45], followed in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1046, [31]. See also Minister for Immigration and Multicultural and Indigenous Affairs v NASS [2003] FCA 477; (2003) 77 ALD 721, 726 [30].
[105] SGLB (2004) 207 ALR 12, 20–1 [38].
[106] (2002) 194 ALR 749 ('SBBS').
[107] Ibid 756 [43]–[48]. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, [7]–[11] the Full Court said that they adopted what the Full Court had said with respect to the bad faith ground in SBBS (2002) 194 ALR 749, 756 [42]–[47], but with this qualification to the ninth proposition (ibid 756 [48]) at [8]:
As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision — in the case of the RRT, affirming the rejection of a protection visa application — which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty.
[108] See Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144, [12].
[109] See above n 18.
[110] [2003] FCAFC 116; (2003) 129 FCR 259 ('Scargill').
[111] [2003] FCAFC 168; (2003) 132 FCR 93 ('Lobo').
[112] Transcript of Proceedings, Minister for Immigration and Multicultural and Indigenous Affairs v Scargill, Minister for Immigration and Multicultural and Indigenous Affairs v Lobo (High Court of Australia, 13 February 2004).
[113] See, eg, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 227–8; Dranichnikov (2003) 197 ALR 389, 407 [87]–[88]; S20 [2003] HCA 30; (2003) 198 ALR 59, 71–3 [53]–[59].
[114] See Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, 194; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 275.
[115] S157 (2003) 211 CLR 476, 504 [69] (footnotes omitted).
[116] Ibid 493 [33].
[117] See ibid 484–5 [12]–[13], 487–8 [18] (Gleeson CJ), 533–4 [159]–[160] (Callinan J).
[118] S20 [2003] HCA 30; (2003) 198 ALR 59, 66 [29] n 11.
[119] Transcript of Proceedings, Minister for Immigration and Multicultural and Indigenous Affairs v Scargill, Minister for Immigration and Multicultural and Indigenous Affairs v Lobo (High Court of Australia, Gummow J, 13 February 2004).
[120] SGLB (2004) 207 ALR 12.
[121] SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176.
[122] Transcript of Proceedings, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (High Court of Australia, 12 February 2004).
[123] Ibid.
[124] Ibid.
[125] Ibid.
[126] SGLB (2004) 207 ALR 12, 18–19 [29], 20–1 [37]–[38], 23–6 [48]–[57].
[127] Ibid 13 [1].
[128] [2003] HCA 1; (2003) 211 CLR 441, 466–71 [71]–[85] ('S134'). See also Kirby J's dissent in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, 247–8 [121].
[129] SGLB (2004) 207 ALR 12, 51 [130].
[130] In S134, it was alleged that the RRT failed to consider a material fact, namely the plaintiff's eligibility for a protection visa on the grounds that she satisfied the criterion of being a member of the same family unit as a person who held a temporary protection visa. The majority dismissed the application, finding that while s 65(1) of the Migration Act 1958 (Cth) obliged the Minister, and thus the RRT, to determine their satisfaction as to whether or not the relevant visa criteria had been fulfilled, that obligation was limited to satisfaction of only those criteria on which the applicant had relied. As the applicant had made claims for protection in her own right and had not relied on the alternative criterion (of being a member of a family unit of a person holding a protection visa), neither the Minister nor, on review, the RRT was obliged to consider it. In consequence, it was held that there had been no misapplication of the relevant criteria by the Tribunal and hence no jurisdictional error. Gaudron and Kirby JJ dissented, being of the view that the obligation of considering an application under s 65(1) of the Act requires consideration of the criteria specified for the relevant visa and that failure to consider one such criterion will involve jurisdictional error even where no specific claim is made in that regard.
[131] SGLB (2004) 207 ALR 12, 24 [51].
[132] S134 [2003] HCA 1; (2003) 211 CLR 441, 471 [85].
[133] SGLB (2004) 207 ALR 12, 23 [48], setting out at 18–19 [29] the passage from the reasons in S157 (2003) 211 CLR 476, 506 [76].
[134] SGLB (2004) 207 ALR 12, 23–4 [49].
[135] Ibid 24 [50].
[136] Ibid 26 [57], referring to S157 (2003) 211 CLR 476, 502 [64].
[137] Ibid 19 [30].
[138] Philip Ruddock, 'Migration Litigation Review to Improve Access to Justice' (Press Release, 27 October 2003).
[139] Ibid.
[140] Ibid.
[141] Ibid. In relation to the High Court, in 2002–03 the number of applications for constitutional writs increased from 300 in the previous year to 2131; 99% of such applications involved migration matters. In the same year 66.5% of Federal Court appeals were migration appeals, compared to 36% in 1999–2000 and 8% in 1995–96. The number of migration applications filed in the Federal Magistrates Court grew from 182 in 2001–02 to 1397 in 2002–03. Information provided to the Senate Legal and Constitutional Legislation Committee by the Department indicated that in 2003–04, 93% of applications were unsuccessful: see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Migration Amendment (Judicial Review) Bill 2004 (2004) 8 [3.5].
[142] See the Minister's Second Reading Speech in relation to the Migration Reform Act 1992 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 4 November 1992, 2621 (Gerry Hand, Minister for Immigration, Local Government and Ethnic Affairs) and the Minister's Second Reading Speech in relation to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31559 (Philip Ruddock, Minister for Immigration and Multicultural Affairs).
[143] Ruddock, above n 138.
[145] NARS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 287, [13]–[14]. See to similar effect the comments made in NAUJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1192; NALO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 114, [3]; SZAEM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 66, [2]–[5] and Aliluzzaman v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 166, [5].
[146] Amanda Vanstone and Philip Ruddock, 'Reforms to Improve Efficiency of Migration Litigation' (Press Release, 11 May 2004).
[147] This was conveyed by the Department, recorded in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Migration Amendment (Judicial Review) Bill 2004 (2004) 12 [3.24].
[148] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 1.
[149] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 11, inserting the new definition into s 5(1) of the Act.
[150] Note, however, that a new s 474(7) is to be inserted identifying several categories of decision as privative clause decisions so as ' [t]o avoid doubt'. Among those identified are decisions of the Minister not to exercise or not to consider to exercise his discretion under various provisions, including s 417 of the Act (that is, the provision that confers power on the Minister, in effect, to overrule an adverse decision of the Refugee Review Tribunal on humanitarian grounds). The decisions in s 474(7) will not be reviewable by the Federal Magistrates Court: see Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, inserting s 476(2)(d).
[151] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 14.
[152] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 15.
[153] See Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, which repeals ss 475A and 476 and inserts new ss 476, 476A and 476B into the Act. The Bill also repeals the current s 483A which provides that the Federal Magistrates Court has concurrent jurisdiction with the Federal Court in relation to matters arising under the Act. See Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 28.
[154] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 div 2 item 17, inserting a new s 476(2)(a) (setting out the decisions in respect of which the Federal Magistrates Court does not have jurisdiction) and s 476(4) (defining 'primary decision') into the Act.
[155] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, inserting a new s 476A into the Act.
[156] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 13 [14].
[157] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 12 [9].
[158] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 12 [10].
[159] See Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 27, inserting a new s 483 into the Act.
[160] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, inserting a new s 476B into the Act.
[161] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 29.
[162] Ibid.
[163] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 1, inserting a new paragraph (da) of Schedule 1 into the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[164] See Administrative Decisions (Judicial Review) Act 1977 (Cth), Schedule 1, paragraph (da).
[165] Indeed, the new s 476(3) will state that : 'Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or section 44AA of the Administrative Appeals Tribunal Act 1975': see Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17.
[166] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 div 2 item 17, inserting new s 476(1) and s 476(2) into the Act.
[167] See Migration Act 1958 (Cth) s 486A.
[168] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 18, inserting a new s 477 (relating to the Federal Magistrates Court) and s 477A (relating to the Federal Court), and item 30, inserting a new subsection 486A (relating to the High Court).
[169] There have been a number of cases in which applicants have been denied access to judicial review on account of the failure of detention centre personnel to fax their applications within time. See, eg, Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995; WAFE of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 254; (2002) 70 ALD 57.
[170] See Migration Act 1958 (Cth) s 379C (MRT), s 441C (RRT).
[171] See Migration Act 1958 (Cth) s 477.
[172] See Migration Act 1958 (Cth) s 486A(1).
[173] Migration Amendment (Judicial Review) Bill 2004 (Cth) sch 1 pt 1, item 10. This Bill lapsed upon the calling of the federal election in late 2004.
[174] The constitutionality of the current s 486A (which imposes a non-extendible 35 day time limit on High Court proceedings) was challenged in S157. The Court resolved (or perhaps avoided) the issue by pointing to the fact that the time limit in s 486A, like the privative clause in s 474(1), operated, in terms, only in respect of 'privative clause decisions'. Hence, the time limit was effectively inoperative in respect of decisions involving jurisdictional error (see S157 (2003) 211 CLR 476, 510 [91] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)). Only Callinan J addressed the more general question of validity raised by the imposition of an absolute time limit on proceedings in the High Court. In his view, legislation imposing time limits would be authorised by the exercise of the express incidental powers conferred on Parliament under s 51(xxxix) of the Constitution, providing that the legislation was regulatory in character (see S157 (2003) 211 CLR 476, 538 [176] (Callinan J)). Section 486A, according to Callinan J, was not of such a character. Rather it was 'in substance a prohibition' because, having regard to the difficulties faced by non-English speaking applicants detained in remote places, it rendered 'any constitutional right of recourse virtually illusory’ (see 538 [176]).
[175] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Migration Amendment (Judicial Review) Bill 2004 (2004) 24 [3.67].
[176] Ibid 24 [3.68], 30 [3.89].
[177] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 37, inserting a new s 486D into the Act. 'Tribunal decision' is defined in s 486D(5) as meaning 'a privative clause decision or purported privative clause decision made on review by a Tribunal under Part 5 or 7 or section 500.'
[178] 'Judicial review proceeding in relation to a tribunal decision' is also defined in the new s 486D(5).
[179] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 18 [51].
[180] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 3, inserting a new s 25(1AA) into the Federal Court of Australia Act 1976 (Cth).
[181] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 10, inserting a new s 44(4) into the Judiciary Act 1903 (Cth). I use the word 'confirms' here as the Court almost certainly already has the inherent power to remit matters in this way.
[182] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 7 (inserting a new s 31A into the Federal Court of Australia Act 1976 (Cth), item 8 (inserting a new s 17A into the Federal Magistrates Court Act 1999 (Cth)), and item 9 (inserting a new s 25A into the Judiciary Act 1903 (Cth)).
[183] Ibid.
[184] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 6-7 [21]-[25].
[185] See, eg, Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 1791 [6] and the cases cited therein.
[186] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 38.
[187] Ibid.
[188] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 18 [56].
[189] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 38.
[190] According to the Explanatory Memorandum, the Office of Legal Services Coordination in the Attorney-General's Department has issued some guidance to Commonwealth agencies on the proper approach to be taken to an application for a personal costs order. That guidance includes the following: 'a personal costs order should be sought only where such action is demonstrably warranted; the litigant should be properly informed why, in the Commonwealth's view, their argument has no reasonable prospect of success; and an intention to seek a personal costs order should not be used tactically to intimidate a litigant or their lawyer into abandoning a legitimate case. 'See Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 9 [65].
[191] See, eg, Applicant VCAT of 2002 v MIMIA [2003] FCAFC 141 [60]-[62]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 945; Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18; SPCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 26; Sithloo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 34; Buksh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 32.
[192] 'Lawyer' is defined in s 275 of the Act to mean a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or a Supreme Court of a State or Territory.
[193] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 38, inserting a new s 486I into the Act. A similar certification requirements exists in other jurisdictions, such as under Part 11, Division 5C of the Legal Profession Act 1987 (NSW) in relation to a claim or defence of a claim for damages. Court Rules may also require lawyers to certify that pleadings have a proper basis (see eg Federal Court Rules, Order 11, rule 1B).
[194] Ibid.
[195] These grounds were excluded by Migration Act 1958 (Cth) ss 476(2)–(3). But note that the considerations grounds became available under the rubric of jurisdictional error (covered by the grounds in Migration Act 1958 (Cth) ss 476(1)(b)–(c) of the former Pt 8) following the High Court's decision in Yusuf [2001] HCA 30; (2001) 206 CLR 323: see above n 17.
[196] See Migration Act 1958 (Cth) s 475A.
[197] S20 [2003] HCA 30; (2003) 198 ALR 59, 72 [57] (McHugh and Gummow JJ). See also Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55, 74–6 [68]–[73].
[198] See the ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f).
[199] S157 (2003) 211 CLR 476, 507 [81].
[200] Of course, there may still be other benefits (in relation to standing and remedies, for example) of proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As to the flexibility of the remedies under s 16(1), see Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55.
[201] See the definition of a 'decision to which this Act applies' in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1).
[202] Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277; Griffith University v Tang [2005] HCA 7.
[203] See, eg, Mark Aronson, 'Is the ADJR Act hampering the development of Australian administrative law?' (2004) 15 Public Law Review 202.
[204] See, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).
[205] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(j).
[206] Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), (2)(j).
[207] As to which see the discussion of Illogicality in fact-finding in Part I(e) above.
[208] S157 (2003) 211 CLR 476, 512–13 [101]–[102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[209] [2003] HCA 56; (2003) 216 CLR 212.
[210] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, 217 [10], 223 [37], 225 [45] (Gleeson CJ, Gummow and Heydon JJ), Kirby J (dissenting) 247–8 [121], 250–1 [129].
[211] See Migration Act 1958 (Cth) ss 66(4), 127(3), 129(3), 500A(10).
[212] As evidenced, for example, by Madgwick J's comments in NARS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 287 [13]-[14], set out in Part II(b) above.
[213] A start has been made, however, in Caron Beaton-Wells, 'Australian Administrative Law: The Asylum-Seeker Legacy' [2005] Public Law 265 (forthcoming).