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Rebikoff, Stephen --- "Minister for Immigration and Multicultural Affairs v Yusuf: One door closed, another opened?" [2001] FedLawRw 23; (2001) 29(3) Federal Law Review 453

COMMENT

Minister For Immigration And Multicultural Affairs v Yusuf:[1]

One Door Closed, Another Opened?

Stephen Rebikoff*

INTRODUCTION

At first glance the High Court's decision in Yusuf represents merely another instance of that Court's recent trend towards judicial deference in the review of decisions under the Migration Act 1958 (Cth) ('the Act').[2] A majority of the High Court overruled a line of Federal Court authority—including, expressly, the decision of a five member Full Court in Minister for Immigration and Multicultural Affairs v Singh[3]—which had held that a failure by the Refugee Review Tribunal to set out findings on material questions of fact in accordance with s 430 of the Act was reviewable as a failure to observe procedures in connection with the making of a decision for the purposes of s 476(1)(a) of the Act. The High Court's decision means that a failure to comply with s 430 can no longer ground review by the Federal Court under the limited regime for judicial review contained in Part 8 of the Act.[4]

However, rather than completing, with Abebe v Commonwealth[5] and Minister for Immigration and Multicultural Affairs v Eshetu,[6] a triumvirate of cases in which the High Court has affirmed the effectiveness of Part 8, and in so doing quashed attempts by the Federal Court to circumvent the limitations on judicial review of migration decisions which are there expressed,[7] the High Court's decision in Yusuf appears instead to represent a significant shift away from judicial deference and towards a broadening conception of judicial review, both under Part 8 and at common law. Indeed, the Court's emphatic statements regarding the scope of jurisdictional error, and explicit acknowledgment of the availability of review under Part 8 for failing to take into account relevant considerations or taking into account irrelevant considerations, has led one Federal Court judge to state: 'it can perhaps be said that while Yusuf closes the s 430 door it opens the considerations ground with the consequence that the ambit of Pt 8 review may be wider than previously thought.'[8]

Wider it may be, but the precise scope of judicial review under Part 8 following the High Court's decision is nevertheless uncertain. The Court's clear endorsement of its earlier remarks in Craig v South Australia[9] suggests that, at the very least, review will be available where the Refugee Review Tribunal 'identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material'.[10] Yet if, as some commentators have suggested, the decision in Craig purported to abolish the distinction between jurisdictional and non-jurisdictional error of law for administrative tribunals,[11] then the scope of review is potentially wider still—particularly as the ambit of jurisdictional error has expanded in recent years, encompassing errors not traditionally concerned with 'excess of jurisdiction'.[12] The decision also raises crucial questions about the interaction between the notion of jurisdictional error and the express limitations on judicial review contained in Part 8 of the Act, both in its original form, and in light of subsequent legislative amendments. Even the most unequivocal aspect of the decision—the availability of the considerations ground—has been subject to dispute in the Federal Court surrounding its scope.

This comment will map some of the boundaries of judicial review under Part 8 following the decision in Yusuf, and discuss some of the issues raised by the Court's decision. It begins by examining the factual and legislative background to the four proceedings that were the subject of the decision. It then analyses the High Court's approach to the primary issues for determination, and concludes with some closing remarks on the impact of the decision on the scope of judicial review under Part 8. The comment will concentrate on Part 8 as it stood prior to the amendments which were introduced by the Judicial Review Act,[13] as those provisions will continue to apply to the significant number of migration applications that were pending in the Federal Court when the Judicial Review Act commenced operation. It should also be noted that the focus of this comment is on the consequences of the decision for judicial review under Part 8, rather than the basis of the Court's conclusions regarding the duty to provide reasons and s 430. Those arguments, which must now be taken to have been settled by the High Court, have been addressed comprehensively elsewhere.[14]

BACKGROUND AND LEGISLATION

The High Court's decision concerned four proceedings:[15] two appeals from the Full Court of the Federal Court,[16] and two parallel applications for relief under s 75 of the Constitution. The appeals were both brought by the Minister for Immigration and Multicultural Affairs ('the Minister') and, because they raised common questions, were heard together in the High Court.

Each appeal reached the High Court via the distinct regime for judicial review of migration decisions contained in Part 8 of the Act. Prior to its amendment on 2 October 2001, Part 8 operated to exclude from judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth) all 'judicially-reviewable' decisions under the Act made after 1 September 1994.[17] The effect of this exclusion was that judicial review of such decisions was only available under s 75 of the Constitution[18] or s 476 of the Act. Section 476 relevantly provided:

(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

In contrast to the limited review available under s 476, the High Court's original jurisdiction under s 75 of the Constitution encompasses (arguably) the full array of judicial review powers. The applicants therefore also initiated defensive applications for constitutional relief, in the event that the appeals were determined against them.[19]

The appeal in Yusuf

Fathia Mohammed Yusuf arrived in Australia from Somalia with her two children in February 1999. She applied for a protection visa pursuant to s 36(2) of the Act[20] on the basis that she was a refugee, as defined in the Convention Relating to the Status of Refugees and its attendant Protocol.[21] Ms Yusuf claimed to have a well-founded fear of persecution in Somalia by reason of her race and her membership of a particular social group.

Ms Yusuf claimed to be a member of the Abaskul clan, a minority clan in Mogadishu, where she lived with her children before coming to Australia. Her fear of persecution was alleged to have derived from three incidents in which members of a larger, rival clan, the Hawiye, attacked her or her family.[22] In the first incident, her home was invaded and her husband forced to flee with the help of a neighbour, leaving her alone in Mogadishu with her children. The second incident occurred when she went to buy food for her children and members of the Hawiye clan attacked her with a sword. The third incident was an occasion near her house when a group of Hawiye women attacked her.

A delegate of the Minister refused Ms Yusuf's application for a protection visa. She applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision pursuant to s 411 of the Act. In its reasons for decision the Tribunal accepted that members of the Hawiye clan had twice attacked Ms Yusuf. However, it concluded that the attacks against Ms Yusuf were motivated by reasons other than her clan membership, and accordingly found that Ms Yusuf did not have a well-founded fear of persecution for a Convention reason, and did not satisfy the definition of a refugee.

Ms Yusuf applied to the Federal Court for review of the Tribunal's decision pursuant to s 476 of the Act.[23] Finn J found that the Tribunal had dealt with only two out of the three alleged incidents which gave rise to Ms Yusuf's well-founded fear of persecution, and that it had not dealt with the first incident she had described, in which her house was invaded and her husband forced to run away. His Honour indicated that in his opinion that could properly be said to have been a matter that was central to the events relied upon by Ms Yusuf as grounding her fear of persecution. He stated:

In the circumstances, it was in my view incumbent upon the Tribunal to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event in its setting as being capable of giving rise to a well-founded fear of persecution.[24]

His Honour found that by failing to set out its finding in relation to the home invasion the Tribunal had failed to observe the procedure in s 430(1)(c) of the Act, which requires the Tribunal to set out its findings on all material questions of fact.[25] His Honour also held s 430 was a procedure in connection with the making of the decision within the meaning of s 476(1)(a). He allowed Ms Yusuf's application and ordered that the matter be remitted to the Tribunal for further consideration according to law.

On appeal, the Minister challenged Finn J's decision on the basis that his Honour had erred in finding that a failure to comply with s 430(1) constitutes a failure to follow procedures for the purposes of s 476(1)(a); or, alternatively, in finding that there had been a failure to comply with s 430(1) on the facts of this case. The Full Court unanimously rejected both arguments.[26] In relation to the consequences of a failure to comply with s 430, the Full Court stated: 'a uniform line of Full Court authority is conclusive against the Minister's argument'.[27]

The appeal in Israelian

Oganes Israelian came to Australia from Armenia in September 1992. In January 1993, while in Australia, he was called up for military service. He claimed that, because of his absence from Armenia at the time of his call-up, he would be treated on his return as a deserter and forced to serve in the military at the front line. He stated that he had a conscientious objection to military service in relation to the territorial dispute between Armenia and Azerbaijan, because he considered it to be a futile war and because he was unwilling to fight against former comrades from a period he had previously spent in the Soviet Army. He also claimed to have been an active supporter of the Communist Party in Armenia, and to fear persecution if he returned there.

In October 1993 Mr Israelian applied for a protection visa on the basis that he satisfied the Convention definition of a refugee. He claimed to have a well-founded fear of persecution by reason of his political opinions, being his conscientious objection and his support for the Communist Party, and because of his membership of a particular social group, comprising deserters or draft evaders.

A delegate of the Minister refused Mr Israelian's application. Mr Israelian applied to the Tribunal for review of that decision. The Tribunal found that Mr Israelian had no genuine subjective fears with respect to his support of the Communist Party, and that his objection to military service was not based on ethical, moral or political grounds but on a desire to avoid personal danger. It also found that any punishment Mr Israelian might suffer on his return to Armenia for avoiding his call-up notice would not be motivated by a Convention reason but would be merely the result of a law of common application.[28]

Mr Israelian applied to the Federal Court for review of the Tribunal's decision pursuant to s 476 of the Act.[29] R D Nicholson J held that the Tribunal had failed to consider whether Mr Israelian had a well-founded fear of persecution because of his membership of a particular social group. His Honour felt it was incumbent upon the Tribunal to examine whether deserters or draft evaders in Armenia could be defined as a particular social group, and if so whether they were persecuted by reason of their membership of that group. In neglecting to do so, his Honour said '[t]he Tribunal failed to form a view about the crucial issues which the definition required it to examine'.[30] His Honour held that the failure to set out its findings on the issue was a failure to set out findings on a material question of fact in accordance with s 430(1)(c) of the Act which justified an order for review under s 476(1)(a).

The Minister appealed to the Full Court.[31] A majority upheld the trial judge's decision, agreeing in relation to Mr Israelian's claim to persecution because of his membership of a particular social group that 'the Tribunal did not deal with this argument at all.'[32] In dissent, Emmett J disagreed with the trial judge's conclusion that the Tribunal should have considered whether deserters or draft evaders constituted a particular social group. He stated:

On the material before the Tribunal, there is no basis for concluding that deserters and draft evaders constitute a particular social group. They are simply a particular group of law breakers, members of whom are punished, in the same way as all other citizens, for failing to comply with the requirements of the law of Armenia.[33]

The decisions in Xu and Singh

A fortnight after the decision of the Full Court in Yusuf was handed down, a differently constituted Full Court handed down its decision in Xu v Minister for Immigration and Multicultural Affairs,[34] in which a majority[35] indicated that in their opinion, the written statement of reasons produced pursuant to s 430(1) could not be described as a procedure 'in connection with the making of the decision' but rather was only produced 'in connection with the promulgation of the reasons for the decision.'[36] Accordingly, Whitlam and Gyles JJ concluded that the written statement of reasons was not reviewable pursuant to s 476(1)(a) and that 'decisions which have proceeded upon the contrary basis are wrong and ought not to be followed.'[37]

The majority also disagreed with the way in which previous Full Courts had characterised the obligation arising under s 430. In particular, they felt that the notion of materiality in s 430(1)(c) 'must be materiality to the decision to which it applies',[38] and that to extend the concept of materiality beyond that 'plainly involves a merits review which the High Court have emphatically said should not happen'.[39] The majority declared:

A statute may expressly or impliedly contain conditions which must either exist in fact or as to which the decision-maker must be satisfied before making the decision ... Where a statute does not expressly or impliedly constrain the decision-maker, the decision-maker is the sole judge of materiality and there can be no judicial review of that question, no matter how wrong or illogical the decision-maker is seen to be by a judge. In those circumstances, a fact is only material if the decision-maker considers it so.[40]

Their Honours construed the Act as implying only 'ultimate'[41] or 'mandatory'[42] facts as being 'material'. In particular, they held that 'it is quite impossible to upset a decision because a decision-maker does not take into account a fact which an applicant proposes as material, but which is not made material by the Act.'[43]

As a result of the division of opinion in the Federal Court, a five member Full Court was exceptionally constituted in Minister for Immigration and Multicultural Affairs v Singh.[44] A majority[45] held that a breach of s 430(1) was a failure to observe procedures in connection with the making of a decision, because the giving of the s 430(1) statement recording the reasons for the decision could be described as a procedure 'consequential upon it or incidental to it'.[46] In relation to the content of s 430, the majority declared that the Tribunal 'is under a duty to make, and to set out findings on all matters of fact that are objectively material to the decision it is required to make' and that in this regard s 430 'sets a standard of decision-making the [Tribunal] is required to observe.'[47]

The sole dissentient was Kiefel J, who preferred the reasoning of the majority in Xu. In what Callinan J described in Yusuf as a 'strong dissenting opinion',[48] she declared that the interpretation preferred by the majority:

would not appear to conform with a statutory regime where judicial review on the ground of failure to take into account a consideration relevant in the administrative law sense is excluded and no review of the facts otherwise to be taken into account is permissible.[49]

Kiefel J construed s 430 as requiring only that the Tribunal 'disclose its actual process of reasoning'[50] and argued that it did not impose an objective standard on that reasoning: 'If [the reasoning] be faulty then it may be that there is a ground for review of the resultant decision by this Court under the Act.'[51] She disagreed with the conclusion of the majority in Xu that materiality might depend upon what a statute requires because that would bring into review of the s 430 statement 'the grounds for review which depend upon what are relevant and irrelevant considerations.'[52]

Kiefel J did, however, agree with the majority in Xu that the making of the s 430 statement was not a procedure in connection with the making of the decision, but merely a record of the reasons for the decision.[53] Her Honour cited with approval the decision of Brennan J in Repatriation Commission v O'Brien[54] in which his Honour held that a failure to adequately state the reasons for a decision does not, without more, invalidate the decision or warrant its being set aside, but might reveal an error of law which would otherwise ground judicial review, such as a failure to take into account relevant considerations.

THE HIGH COURT'S DECISION

The High Court broke into a number of different majorities on the issues raised by the four proceedings and the competing approaches in the Federal Court. The three major issues on which the Court divided were: the nature of the obligation under s 430, and whether a failure to comply with its terms constitutes a failure to observe procedures, and hence can ground judicial review, under s 476(1)(a); the scope of judicial review under Part 8, and whether review under Part 8 is available for jurisdictional error; and the application of the relevant principles to the result in each case.

The nature of the obligation under s 430

This was the issue on which the High Court was most united, and is the clearest ratio of the case: six members of the Court held that the a failure to make findings on material questions of fact did not constitute a failure to observe procedures within the meaning of s 476(1)(a), with only one member of the Court, Kirby J, agreeing with the majority in Singh that it did. The majority[55] did not approach the question in the same way as had the Full Courts in Xu and Singh, however, but rather framed their discussion by interrogating the statement of the majority in Singh that the Tribunal 'is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make'.[56]

The leading judgment was that of McHugh, Gummow and Hayne JJ. Their Honours began by construing the words of s 430, observing that in its terms, s 430 only calls for the recording of the findings that the Tribunal actually made.[57] They noted that the majority in Singh had attached significance to the use of the word 'material' in s 430(1)(c). However, they held that even if such an interpretation were correct, 'it would by no means follow that the Tribunal was bound to set out findings that it did not make.'[58] Their Honours stated that in their view the term 'material' did not import an objective or external standard of materiality, noting that: 'A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker'.[59] They concluded that s 430 only requires the Tribunal to set out its findings on those questions of fact that it considers to be material.

Their Honours drew a crucial distinction between making findings and recording them. They stated that s 430 does not imply an obligation to make findings, only to set them out once made. Citing Brennan J's judgment in Repatriation Commission v O'Brien,[60] they noted that provisions such as s 430 entitle a court to infer that any matter not mentioned in the statement of reasons was not considered by the Tribunal to be material.[61] Section 430 therefore has 'important work to do in connection with judicial review of decisions of the Tribunal'[62] by obliging the Tribunal to expose its reasons for making its decision. According to their Honours, those reasons may reveal the Tribunal committed a reviewable error, such as a failure to take into account relevant considerations, or an error of law.[63] However, the Tribunal's failure to set out a matter that it did not consider to be material would not, of itself, constitute an error.[64]

Their Honours noted that what was being asserted as a duty to make findings 'may be simply another way of expressing the well-known duty to take account of all relevant considerations'.[65] The overlap between the notion of 'objectively material fact' and 'relevant considerations' was the chief complaint of the majority in Xu, and of Kiefel J in Singh, both of whom identified the exclusion of that ground of review in s 476(3) as a reason for denying that a failure to make findings could form the basis for review under s 476.[66]

However, though they reached the same result, McHugh, Gummow and Hayne JJ employed quite different reasoning to that of the Federal Court, holding that such a failure could not fall within s 476(1)(a) because '[i]f it is an error, it is an error of substance'[67] rather than procedure. This was, it is submitted, a crucial finding in relation to their later conclusions on the scope of judicial review. Their Honours stated that the grounds of judicial review that involve relevant and irrelevant considerations 'are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.'[68] They therefore concluded that a failure to make findings could not ground review under s 476(1)(a), but might lead to judicial review on another basis.

Gleeson CJ agreed that s 430 imposed a subjective, rather than objective requirement for reasons,[69] and that a failure to make findings could not be described as a 'procedure' for the purposes of s 476(1)(a), but might ground review on some other basis. However, his Honour's reasoning, like that of Whitlam and Gyles JJ in Xu, was based on the similarity between the notion of a 'material fact' and a 'relevant consideration', and the 'incongruity' of an interpretation of s 476(1)(a) which would allow review on such a basis, and the presence of s 476(3)(e) which excludes it.[70] Though he purported to agree with the reasons of McHugh, Gummow and Hayne JJ, therefore, it is submitted that in this respect his reasons are inconsistent with their Honours' joint judgment, which depended on a significantly narrower construction of the operation of s 476.[71]

Gaudron J employed essentially the same reasoning, and reached the same conclusions, as McHugh, Gummow and Hayne JJ.[72] Callinan J agreed that a failure to make findings would not ground review under Part 8, but his Honour's reasons for reaching that conclusion were quite different from the remainder of the majority. His Honour adopted the reasoning of the majority in Xu,[73] concluding that a failure to set out reasons could itself constitute an error of law,[74] but that such an error would not be one involving 'legal interpretation, or application'[75] within the meaning of s 476(1)(e).

The sole dissentient, Kirby J, agreed generally with the reasoning of the majority in Singh, noting that provisions such as s 430 and its equivalents constituted 'a major reform'[76] when they were introduced, and that it would be inconsistent with the obvious importance of that reform to adopt a narrow view of the section. In relation to the meaning of 'material', his Honour held that to adopt the purely subjective standard described by the majority would be 'to return to the error of the majority in the House of Lords in Liversidge v Anderson'[77] and 'embrace the mistake [of judicial reticence] which Lord Atkin expressed provocatively' in his famous quote from Through the Looking Glass.[78] His Honour preferred the objective notion of 'material fact' described by the majority in Singh: 'a fact is material if the decision in the practical circumstances of the particular case turns upon whether the fact exists.'[79]

The scope of judicial review under Part 8

The conclusions of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ that a failure to make findings could ground judicial review on a basis other than under s 476(1)(a) led them to consider how those principles would operate in the context of Part 8 of the Act. Significantly, their Honours each concluded that Part 8 did not necessarily exclude review on such a basis, though the precise scope of that review in the light of their Honours reasoning remains uncertain.

McHugh, Gummow and Hayne JJ noted that as a result of their conclusions regarding the meaning of s 430 a failure to make findings on a material question of fact 'cannot support review' under s 476(1)(a). However, they then went on to declare: 'That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact.'[80] Their Honours obeserved that review is available under s 476 on the basis that 'the person who purported to make the decision did not have jurisdiction to make the decision'[81] and on the basis that 'the decision was not authorised by [the] Act or the regulations'.[82] They also noted that review is available under s 476(1)(e) for error of law.

Their Honours then went on to construe the limitations on judicial review contained in Part 8. They observed that s 476(1) is qualified by s 476(2), which excludes review on the ground of breach of the rules of natural justice and unreasonable exercise of power.[83] Their Honours stated: 'That sub-section is cast in general terms and is, therefore, to be read as qualifying the whole of s 476(1).'[84] Their Honours contrasted that limitation with the limitation contained in s 476(3), which purports to exclude questions of relevant and irrelevant considerations from the ambit of the available ground of improper exercise of power.[85] Their Honours declared: 'That qualification does not apply, however, to the other paragraphs of s 476(1) and it casts no light on how those paragraphs should be understood.'[86] In this respect their Honours' judgment differs from an almost universally held assumption in the Federal Court, and the express reasons to the contrary of the majority in Xu, Kiefel J in Singh, and Gleeson CJ and Callinan J in the High Court.

Their Honours stated that in assessing the content of the grounds of review in s 476(1)(b) and (c), it is important to consider the nature of 'jurisdictional error' at common law. They quoted Craig v South Australia,[87] in which a unanimous High Court held that if an administrative tribunal (which, according to McHugh, Gummow and Hayne JJ, expressly includes the Tribunal):[88]

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.[89]

Applying this reasoning their Honours held that if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it exceeds its authority or powers. If it does so, according to their Honours, 'the person who purported to make the decision "did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised" by the Act.'[90] Their Honours also held that an error of the kind identified in Craig might constitute an error of law within the meaning of s 476(1)(e), as it 'will very often reveal that [the Tribunal] has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts as found.'[91]

The key issue in relation to their Honours' judgment is what constitutes a jurisdictional error for this purpose. Their Honours noted that 'jurisdictional error' embraces 'a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.'[92] They also noted that the different kinds of error 'may well overlap.'[93] However, the errors to which their Honours repeatedly returned were the four primary errors listed in Craig: identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material.[94] They emphasised that such errors did not encompass errors of fact, such as 'making an erroneous finding or reaching a mistaken conclusion.'[95] However, their Honours noted, with reference to Craig: '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.'[96]

Gaudron J agreed that jurisdictional error would ground review under s 476(1)(b), (c) or (e),[97] though her Honour couched her reasoning in terms of a 'constructive failure to exercise jurisdiction'.[98] Gaudron J also held that jurisdictional error 'may be disclosed by' taking into account an irrelevant consideration or failing to take into account a relevant consideration.[99] Though Gleeson CJ purported to agree with McHugh, Gummow and Hayne JJ, as stated above[100] the approach favoured by their Honours is inconsistent with an interpretation which places weight on the exclusion of the considerations ground in s 476(3) when construing any of the other provisions of s 476(1). It is therefore difficult to reconcile the Chief Justice's conclusions with his reasoning on this point.

The result

In light of the Court's determination to shift the focus of review under Part 8, it is perhaps surprising that the ultimate result of the four proceedings was that both Ms Yusuf and Mr Israelian were unsuccessful in overturning the decision of the Tribunal.

In relation to Ms Yusuf, five members of the Court held that the Minister's appeal should be allowed, and the decision of the Full Court set aside.[101] McHugh, Gummow and Hayne JJ found that the fact that the Tribunal failed to refer to one of the three incidents she had described did not amount to a failure to take a relevant consideration into account, or an error of law. Their Honours held that the Tribunal's reasons amounted to a finding that there had only been two attacks and that it was not persuaded there had been more.[102] They noted that in rejecting the argument that the attacks could give rise to persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan, and declared: 'This finding, being a finding at a higher level of generality than the question of specific incidents, may explain why the Tribunal made no detailed finding about the house invasion.'[103]

In contrast, Gaudron J regarded the house invasion as material that might have been 'decisive of the outcome of the application.'[104] She held that Ms Yusuf's claim to refugee status was based on three incidents of past persecution 'any one [of which] ... was capable of being regarded by the Tribunal as having given rise to a well-founded fear of persecution'.[105] To make findings only in relation to two of those incidents, according to her Honour, was 'to leave an aspect of the delegate's decision unreviewed.'[106]

In relation to Mr Israelian, each member of the Court bar Kirby J held that the Minister's appeal should be allowed. McHugh, Gummow and Hayne JJ acknowledged that a failure to refer to one of the alternative bases on which an applicant based a claim 'would, in many cases, reveal a failure to take account of relevant considerations or an error of law'.[107] Their Honours rejected a submission that Mr Israelian's case was one in which 'the factual findings in relation to one asserted basis for protection necessarily and inevitably denied any other basis for protection'[108] and declared that 'the finding of fact that was made by the Tribunal did not conclude the issues raised by Mr Israelian's alternative claims.'[109] Nevertheless, according to their Honours, the Tribunal also reached its decision on the basis that there would not be persecution of Mr Israelian if he returned to Armenia, only the application of a law of general application. No error had been established in relation to that aspect of the Tribunal's decision.[110] Gaudron J also based her reasons for allowing the appeal on the Tribunal's findings in relation to laws of common application.[111]

No judge gave separate consideration to the applications for relief under s 75(v). Each member of the Court stated that his or her findings in relation to the appeals meant that the same conclusion followed in relation to the applications for constitutional relief.[112] Both applications were therefore dismissed.

ONE DOOR CLOSED, ANOTHER OPENED?

By recognising that relief under Part 8 is available for jurisdictional error, and upsetting an almost universal assumption to the contrary, it is undeniable that in Yusuf the High Court changed the face of judicial review of migration decisions. Nevertheless, in Awan v Minister for Immigration and Multicultural Affairs,[113] Weinberg J rejected the suggestion that the observations of McHugh, Gummow and Hayne JJ in Yusuf 'opened a door to review in this Court which many had previously thought to be closed.'[114] His Honour cited the opinion of Gyles J in Khan v Minister for Immigration and Multicultural Affairs: 'I think it [is] clear that the judgment of McHugh, Gummow and Hayne JJ was not intended to widen the existing scope of judicial review for jurisdictional error. Indeed, their Honours expressly state the contrary.'[115]

Such comments, with respect, misrepresent the true effect of the decision. It might have been that judicial review was always available for jurisdictional error under s 476—but until the decision in Yusuf, no-one, it seems, thought to ask for it. It is important, therefore, to appreciate the basis of the Court's reasoning—and in particular, to interrogate what the High Court meant by the notion of 'jurisdictional error'—before reaching any conclusions regarding the consequences of the decision for judicial review, both under Part 8 and more generally.

The basis of the decision—jurisdictional error

Historically, the jurisdiction to issue writs of prohibition and mandamus under s 75(v) of the Constitution could only be invoked for jurisdictional error.[116] Jurisdictional questions were those which went to the decision-maker's power to decide, while non-jurisdictional questions were those which arose in the exercise of an admitted decision-making power.[117] It has long been acknowledged, however, that the distinction between an error of law within jurisdiction, and an error which amounts to a failure to exercise jurisdiction, is an extremely difficult one to draw.[118] In England it has now been abandoned, and all errors of law are treated as jurisdictional.[119] In Australia the High Court has persistently affirmed its existence, even as they have struggled to define its meaning.[120]

In Craig v South Australia[121] the High Court considered an argument that 'an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question.'[122] That submission was derived from the judgment of the House of Lords in Anisminic Ltd v Foreign Compensation Commission,[123] in which Lord Reid declared:

[t]here are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given the decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the rules of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account.[124]

The High Court declined to adopt the submission on the basis that the doctrine enunciated in Anisminic only applied to administrative tribunals. They stated: 'Read in context, the above comments should, in our view, be understood as not intended to refer to a court of law.'[125] The Court accepted, however, that in the absence of a clear contrary intent 'an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order for decision otherwise than in accordance with the law.'[126] They concluded that if such a 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'[127] then it has committed a jurisdictional error.

The practical effect of the decision of the House of Lords in Anisminic was to abolish the distinction between jurisdictional error and error of law for administrative tribunals in England.[128] It is at least arguable, therefore, that the intended consequence of the decision in Craig was similarly to collapse that distinction in relation to administrative tribunals in this country, with the result that any error of law would be a jurisdictional error. Indeed, when the decision was handed down some commentators tentatively declared that to be its effect.[129] However, neither commentators nor the courts have subsequently interpreted the decision in that way.[130] At best, Craig appears to have created 'a strong presumption that errors of law are jurisdictional if committed by tribunals, and non-jurisdictional if committed by courts.'[131]

There are good reasons for not taking Craig at face value. The difficulty of distinguishing between a court and a tribunal is almost as great as distinguishing between jurisdictional and non-jurisdictional error, and is probably just as malleable.[132] The High Court did not expressly adopt the Anisminic reasoning, and its statements regarding the scope of jurisdictional error for administrative tribunals were obiter dicta given the decision concerned the District Court of South Australia. Nevertheless, in that decision the High Court clearly identified four categories of error of law as jurisdictional, while also noting that administrative tribunals cannot determine questions of law or make a decision otherwise than in accordance with law. In the absence of 'clear legislative intent', it is difficult to find a logical basis for declaring that administrative tribunals can determine some questions of law but not others, or make decisions in accordance with some principles of law but not others.

Unfortunately the decision in Yusuf does not clarify the High Court's position. The Court applied its reasoning in Craig, expressly confirming that the Tribunal is the type of tribunal referred to in its earlier decision, and that the errors identified in Craig would constitute jurisdictional error for the purposes of s 476(1)(b) and (c). The High Court also declared that the notion of 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'.[133] Whether this is a gesture towards Lord Reid's statement in Anisminic is uncertain. It is significant, however, that the Court acknowledged the Tribunal does not have authority to determine authoritatively questions of law or make decisions otherwise than in accordance with law. Indeed, it is difficult to discern behind this reasoning much room for non-jurisdictional errors of law on the part of the Tribunal.

Moreover, even if the High Court has not finally abolished the distinction in relation to administrative tribunals (and Yusuf, in this regard, can be seen as another inching step in that direction), it should be noted that the notion of jurisdictional error of law is itself broadening. Traditionally, administrative law distinguished between three bases of review—those concerned with excess of power, those involving the improper use of power, and those concerned with procedural fairness.[134] Over the past fifty years, however, the distinction between acting in excess of jurisdiction and acting for an improper purpose has broken down, with the result that 'what counts as jurisdictional error has been substantively broadened to include the grounds of rationality review.'[135] Undoubtedly, this evolution has been hastened by the introduction of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which has done away with the distinction between jurisdictional error and error of law, and embraced both the principles of natural justice and a right to reasons.[136] Until recently, however, the High Court has been slow to apply those grounds of review not concerned with 'excess of jurisdiction' to cases involving relief under s 75(v) of the Constitution.

In this regard, it is significant that following their reference to Craig, McHugh, Gummow and Hayne JJ cite the decision in Re Refugee Tribunal; ex parte Aala.[137] In Aala, six members of the Court held that prohibition and mandamus are available under s 75(v) for a denial of procedural fairness.[138] Natural justice has traditionally been seen as a distinct doctrine of administrative law, and not concerned with jurisdiction. However, Gaudron and Gummow JJ declared: 'if an officer of the Commowealth exercising powers conferred by statute does not afford procedural fairness ... the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.'[139] Hayne J also stated that:

the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended.[140]

In Eshetu,[141] the High Court considered a similar argument that Wednesbury unreasonableness[142] could lead to jurisdictional error. Most of the Court declined to deal with the issue directly, assuming that an unreasonable exercise of power could found relief under s 75(v) but holding that, on the facts of the case, such an unreasonable exercise of power had not occurred.[143] Gummow J, however, considered the basis of the doctrine in some depth, suggesting it might be found in the proposition adopted by Brennan CJ in Kruger v Commonwealth[144] that 'when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised'.[145] His Honour held that failure to act 'reasonably' in those circumstances was a jurisdictional error.[146] In Aala,[147] Gaudron and Gummow JJ cited Brennan CJ's dicta and stated: 'This reasoning should be accepted with respect to the remedy of prohibition provided for in s 75(v) of the Constitution.'[148]

It has been noted elsewhere that one of the most significant effects of the introduction of Part 8 of the Act was to exclude from applicants under the Act judicial review on the three grounds which 'go to the very heart of the ADJR Act and of the common law which this Act essentially codifies.'[149] Crock cites the three key functions of judicial review identified by Lord Diplock in Council of Civil Service Union v Minister for Civil Service:[150] to oversee the application of the law by ensuring that all and only relevant matters are taken into account in making a decision; to ensure that fair procedures are followed; and to ensure that the decision made is rational and reasonable in all the circumstances. The High Court's decisions in Craig, Aala and Eshetu confirm that, at least in relation to the Tribunal, the notion of jurisdictional error will now encompass all three.[151]

In these circumstances, whether a particular ground of review is available under Part 8 of the Act does not depend upon whether it is a jurisdictional error, but rather whether it has been excluded by the terms of the Act. It is therefore necessary to consider the way in which the High Court approached the construction of s 476.

The High Court's construction of s 476

One of the most noteworthy—and controversial—aspects of the Court's decision in Yusuf is its construction of the limitations on judicial review contained in s 476(2) and (3) of the Act. In this regard, it is instructive to compare the Court's approach in Yusuf with its decision in Eshetu, where, faced with a similar attempt to derive substantive remedies from procedural provisions,[152] the Court declared that such an approach would 'negate the clear intention of the legislature.'[153]

In Eshetu a Full Court of the Federal Court[154] held that in making a decision that 'totally [lacked] logic' and was 'so unreasonable that no reasonable tribunal could reach it',[155] the Tribunal had breached its obligation under s 420(2)(a) of the Act, and that such a breach constituted a failure to observe a procedure within the meaning of s 476(1)(a). In the High Court,[156] a majority stated that the error complained of (Wednesbury unreasonableness) could not be characterised as a procedure because it was specifically excluded by s 476(2)(b). Gleeson CJ and McHugh J jointly declared: 'In s 476(2)(b) the legislature has expressed an intention to define the jurisdiction of the Federal Court in such a manner as to exclude review of a tribunal's decision on the ground presently under consideration.'[157]

In contrast, the majority in Yusuf declared that the error complained of (failing to make findings of fact; failing to take account of relevant considerations) could not be characterised as a procedure because 'if it is an error, it is an error of substance.'[158] They noted that s 476(3) 'limits the construction of the reference in s 476(1)(d) to improper exercise of power by excluding questions of relevant and irrelevant considerations from the ambit of that ground'[159] but held that s 476(3) did not operate to modify the other grounds of review in s 476(1)—and in particular, those grounds involving jurisdictional error.

In each case the Court looked to the substantive error complained of, and then determined whether that error was excluded by the terms of s 476. The difference between the two judgments was that in one the ground in question was specifically excluded by the Act, while in the other it was only partially qualified. It should be emphasised that on a fair reading this is a legitimate interpretation of the Act—there is a structural difference between the express qualification in s 476(2), which is phrased in general terms, and the terms of s 476(3), which only limit particular grounds of review. It is true that in separately qualifying the scope of the 'improper purpose' ground, the structure of s 476 merely mirrored that of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).[160] Yet there was an express amendment to that structure in s 476 so as to remove the ground of 'Wednesbury unreasonableness' from the limitation on 'improper exercise of power' and place it into the general qualification in s 476(2). If the legislature intended the limitations in s 476(3) (and (4)) to be exhaustive, they could easily have made them so in a similar way.

It is not its construction of s 476 that differentiates the High Court's decision in Yusuf from its decisions in Abebe[161] and Eshetu,[162] therefore, but rather, its attitude of deference. Previously the High Court seemed willing to assume that the exclusion of any ground in s 476 reflected an intention to limit the jurisdiction of the Federal Court. In Yusuf, the High Court read those terms much more literally, to hold that some of those grounds remain available despite their purported exclusion. Accordingly, to the extent that they have applications pending before the Federal Court, applicants will continue to be unable to seek relief for breach of the rules of natural justice or in respect of Wednesbury unreasonableness, despite the fact that such errors have been described as jurisdictional in Aala and Eshetu. Yet by embracing jurisdictional error as the underlying principle to ground review, the High Court has ensured that, for those applicants, the grounds of review in s 476(2) will be the only grounds excluded from the jurisdiction of the Federal Court, as it seems all of the other grounds of review can be construed as errors which go to jurisdiction.

Moreover, the fluid nature of jurisdictional error means that any new grounds of review which are developed by the courts are likely to evolve in that context, with the result that those grounds will automatically be available under s 476(1) because not specifically excluded under s 476(2). An example of this occurring can be found in the decision of the Federal Court in Cujba v Minister for Immigration and Multicultural Affairs.[163] In Cujba, Conti J overturned a Tribunal decision on the basis that it was 'so lacking in support by some probative or logical grounds, as to constitute for the purposes of s476(1)(b) jurisdictional error within the principles enunciated in Yusuf.'[164] In so doing, he applied the judgment of Gummow J in Eshetu, where his Honour expressed the view that judicial review should be available on such a basis 'by a criterion of “reasonableness review”.'[165] Gummow J held that such an error would constitute a jurisdictional error capable of review under s 476(1)(b), (c) or (e).[166]

Gummow J's judgment has been interpreted as a further step towards acceptance by the High Court that illogical reasoning will ground judicial review, and a general acceptance of 'rationality' as an underlying principle of legality in administrative decision-making.[167] Indeed, as administrative law develops and the grounds of review continue to converge, the futility of attempting to exclude particular grounds of review but not others becomes more and more apparent. In Gamaethige v Minister for Immigration and Multicultural Affairs,[168] Finkelstein J expressed the view that 'a decision that is logically flawed ... will be reviewable for error of law'[169] and that neither s 476(2)(a) nor (b) would prevent the decision being set aside. In relation to s 476(2)(b), his Honour stated:

Section 476(2)(b) is concerned solely with Wednesbury unreasonableness. The paragraph is a paraphrase of Lord Greene's statement of the relevant principle. Moreover, it is concerned only with discretionary decisions, and decisions made by the tribunal are not of that character. In any event, I would not construe the paragraph as having application to an implicit statutory limitation on the power of the tribunal.[170]

This reasoning could be applied equally to any ground of review, and only illustrates the difficulties occasioned by the fragmentation of judicial review in Part 8—difficulties that are certain to be exacerbated by the decision in Yusuf.

The government was forced to the expediency of Part 8 by the High Court's strong opposition, historically, to privative clauses,[171] and in Abebe the Court ruled that fragmented scheme to be constitutional under Chapter III.[172] However, it is clear that the High Court's decision in Yusuf had the potential to enable courts, hydra-like, to resurrect heads of review that the government assumed it had decapitated, and as a result it is unsurprising that the government has persisted—and now succeeded—in its long-standing quest for the exclusion of judicial review in this area.[173]

Nevertheless, by utilising the device of a privative clause to overcome the constitutional problems traditionally seen to be occasioned by such legislation, the government has perhaps provided the High Court with the means to subvert its own intention. The Explanatory Memorandum to the Judicial Review Act makes it clear that the government expects the Court to interpret the new Part 8 in accordance with the doctrine enunciated in R v Hickman; ex parte Fox,[174] limiting the grounds of review, in effect, to exceeding constitutional limits, mala fides, and 'narrow jurisdictional error.'[175]

It remains critically uncertain, however, whether the High Court will adopt this interpretation, or whether it will continue to expand the scope of jurisdictional error, and complete the unification of jurisdictional and non-jurisdictional errors of law for administrative tribunals that it commenced in Craig.[176] In Re Minister for Immigration and Multicultural Affairs; ex parte Miah,[177] Kirby J called for 'the old insistence upon preserving the chimeral distinction between jurisdictional and non-jurisdictional error of law' to be 'interred, without tears, in Australia as has happened elsewhere.'[178] If that occurs, then no privative clause will be effective to insulate decisions under the Act from the expansive reach of the courts.[179]

The scope of the considerations ground

A final, somewhat surprising consequence of the way in which the High Court approached the issues for determination in Yusuf is that the Court's decision did not resolve the essence of the dispute that split the Federal Court in Xu and Singh. This is because the competing approaches in Xu and Singh did not concern the availability of review for failure to comply with s 430, but rather, whether a failure to deal with a submission put by an applicant could ground judicial review. The majority in Singh recognised this when they stated:

Xu does not deny that the RRT is required to make findings on material questions of fact. Nor does it deny that the facts that are material are to be objectively ascertained. However, the majority in Xu conclude that materiality does not depend upon the way in which a particular applicant chooses to present that applicant's case. Rather it depends upon the facts on which the Act expressly or impliedly requires the decision-maker to make findings when making the decision, or on which the Act expressly or impliedly requires findings not to be made when making that decision.[180]

The approach taken by the majority in Xu was rejected by the majority in Singh, who concluded that 'whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.'[181]

In Yusuf the High Court called for the phrase 'material question of fact' to be abandoned in assessing the adequacy of the decision-maker's findings, describing it as misleading and prone to 'extend the ambit of judicial review beyond accepted and well-established limits.'[182] The majority stated: 'If it is not intended to have that effect, it is not useful to formulate the duty in that way.'[183] The Court also acknowledged the overlap between that notion and the considerations ground, warning: 'the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.'[184]

This overlap was the reason that Kiefel J, in particular, refused to interpret the requirements of s 430 by reference to the terms of the particular statute as 'it would appear to import into the question of construction the grounds for review which depend upon what are relevant and irrelevant considerations'.[185] In Yusuf the High Court declared that those questions of construction are appropriate in the context of review for failing to make findings under the Act, but only within the 'accepted and well-established limits' of the considerations ground. The Court's decision, however, provides few indications of the answers either to those questions, or to the debate which split the Federal Court.[186]

McHugh, Gummow and Hayne JJ stated: 'the considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.'[187] Nevertheless, their Honours went on to refer to Minister for Immigration and Ethnic Affairs v Guo,[188] in which six members of the Court held that findings in relation to past events were 'ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future'.[189] As Heerey J noted in Thirukkumar v Minister for Immigration and Multicultural Affairs,[190] this suggests that factual issues can, at least in certain circumstances, constitute relevant considerations.

In Chhour v Minister for Immigration and Multicultural Affairs,[191] Weinberg J noted: 'it must be remembered that a consideration is not “relevant” for this purpose unless the decision-maker is bound to take it into account'.[192] His Honour cited Minister for Aboriginal Affairs v Peko Wallsend.[193] In that decision, Mason J emphasised the limited role of a court reviewing the exercise of an administrative discretion.[194] However, Mason J went on to say:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors ... are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.[195]

In other words, the determination of relevant and irrelevant considerations is simply a matter of statutory construction, and in the absence of express specification, they are to be determined by implication. In this regard it should be noted that the Act does not specify the matters that are to be taken into account in determining whether an applicant satisfies the Convention definition of refugee, merely that if a decision-maker is so satisfied, the applicant is to be granted a protection visa.[196]

In Yusuf the High Court acknowledged that 'considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration.'[197] McHugh, Gummow and Hayne JJ cited the example of a 'particular statute' that 'makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker.'[198] In Thirukkumar,[199] Heerey J rejected a submission by counsel for the Minister that 'for the purposes of Pt 8 review there are no “relevant considerations” at all'[200] because the Act is not the kind of 'particular statute' referred to by their Honours.

It has been noted elsewhere that the considerations grounds 'complement the natural justice requirement of giving people a fair hearing.'[201] In Lek v Minister for Immigration, Local Government and Ethnic Affairs,[202] Wilcox J held that an applicant should have been allowed to comment on information relating to changed political circumstances that was 'decisive of the outcome'[203] of a refugee application. If such material is required to be put to an applicant, it is difficult to see how a failure to take the applicant's response into consideration is not a failure to take into account a relevant consideration. Indeed, in Yusuf, Gaudron J declared that 'a decision can only be reviewed if regard is had to such of the material that was available to the primary decision-maker as might be decisive of the outcome of the application.'[204] That such a result would interpret the requirements of the Act in conformity with the principles of natural justice, when relief for breach of those rules has been specifically excluded by the Act, only illustrates once again the difficulty of segregating what are in reality inter-woven and intersecting grounds of review.

CONCLUSION

The High Court's decision in Yusuf has provoked uncertainty and disagreement among the judges whose task it is to apply the decision to the applications that continue to flow, at least for the moment, to the Federal Court from the Tribunal. Even the most obvious consequence of the judgment—that a breach of s 430 can no longer ground review under Part 8—has been the subject of dispute.[205] Moreover, despite its purported overruling of Singh, and the exclusion of the grounds of review in s 476(2) and (3), one consequence of the decision that seems irrefutable is that those migration decisions that reach the Federal Court will continue to be reviewed on the basis that decision-makers have neglected to make findings on crucial aspects of an applicant's case. In this respect the decision represents a significant break from the High Court's previous attitude of judicial deference.

The High Court has made clear its dissatisfaction with being compelled to act as court of first instance in relation to migration decisions.[206] It is tempting to see a connection between the High Court's decision and its recent workload,[207] just as others have noted the congruence between the Minister's vocal attitude to judicial activism, and the Court's previous line of deference.[208] Yet the gulf between the Court's jurisprudential dynamism and the practical result of the case suggests that the High Court has not abandoned completely its reluctance to intervene in the Tribunal's decisions. It is important, therefore, to appreciate the basis of the Court's decision before condemning it as mere opportunism. In Eshetu, Gleeson CJ and McHugh J declared that s 420 was 'an inadequate foundation for an attempt to overcome the provisions of s 476(2).'[209] In Yusuf the High Court has ruled that a more solid foundation may be found in the doctrine of jurisdictional error. The crucial question now, particularly in light of the recent legislative amendments, is how that foundation will be built upon by the Court.

* BA (Hons), LLB (Hons) (ANU). I am grateful to John Gibson, Michael Mathieson and Katie Fraser for their comments on earlier drafts of this paper. The opinions expressed, and any errors, are my own[.]

1 [2001] HCA 30; (2001) 180 ALR 1 ('Yusuf').

[2] See Mary Crock, 'Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions' [2000] MelbULawRw 6; (2000) 24 Melbourne University Law Review 190.

[3] [2000] FCA 845; (2000) 98 FCR 469.

[4] In relation to Part 8, see Mary Crock, 'Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?' [1996] SydLawRw 14; (1996) 18 Sydney Law Review 267, and Mary Crock, Immigration and Refugee Law in Australia (1998) ch 13. It should be noted that Part 8 has now been substantially amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ('the Judicial Review Act'), which replaces 'judicially reviewable' decisions with a new scheme of 'privative clause' decisions that cannot be challenged, appealed against, reviewed, quashed or called into question in any court. Unless otherwise specified, this comment, which was written before the amendments occasioned by the Judicial Review Act came into operation on 2 October 2001, addresses the Act as it stood prior to its amendment.

[5] [1999] HCA 14; (1999) 197 CLR 510 ('Abebe').

[6] [1999] HCA 21; (1999) 197 CLR 611 ('Eshetu').

[7] In relation to Abebe and Eshetu, see Crock, above n 2. In relation to the ongoing dispute between the Federal Court and the Minister for Immigration and Multicultural Affairs over the scope of Part 8, see John MacMillan, 'Federal Court v Minister for Immigration' [1999] AIAdminLawF 8; (1999) 22 AIAL Forum 1.

[8] Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864, [27] (Heerey J).

[9] [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[10] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 22[83] (McHugh, Gummow and Hayne JJ).

[11] Margaret Allars, Administrative Law: Cases and Commentary (1997), 674. See also Chris Finn, 'Jurisdictional Error: Craig v South Australia' (1996) 3 Australian Journal of Administrative Law 177. Cf Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000), 171-172.

[12] See Geoff Airo-Farulla, 'Rationality and Judicial Review of Administrative Action' [2000] MelbULawRw 23; (2000) 24 Melbourne University Law Review 543.

[13] See above n.4

[14] Compare the decisions of the Full Court in Singh [2000] FCA 845; (2000) 98 FCR 469 (Black CJ, Sundberg, Katz and Hely JJ, Kiefel J dissenting) and Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741; (1999) 95 FCR 425 (Whitlam and Gyles JJ). For a full discussion of this issue, see John Basten QC, 'Judicial Review: Recent Trends' (2001) 29 F L Review Forthcoming.

[15] Minister for Immigration and Multicultural Affairs v Yusuf, Re Minister for Immigration and Multicultural Affairs; ex parte Yusuf, Minister for Immigration and Multicultural Affairs v Israelian, Re Minister for Immigration and Multicultural Affairs; ex parte Israelian.

[16] Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681; (1999) 95 FCR 506 (Heerey, Merkel and Goldberg JJ) and Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 (Einfeld and North JJ, Emmett J dissenting).

[17] Decisions of the Refugee Review Tribunal and the Migration Review Tribunal were defined as 'judicially-reviewable decisions' in s 475 of the Act. This regime has now been replaced by the Judicial Review Act. See above n 4.

[18] The High Court's original jurisdiction under s 75 is constitutionally entrenched, and cannot be abrogated by an Act of Parliament. To the extent that it purports to oust judicial review, therefore, the constitutional validity of the Judicial Review Act is open to question. See Colin Campbell, 'An Examination of the Provisions of the Migration Legislation Amendment Bill (No 4) 1997 Purporting to Limit Judicial Review' (1998) 5 Australian Journal of Administrative Law 135 for a full discussion of the issues raised by the Judicial Review Act.

[19] See Yusuf [2001] HCA 30; (2001) 180 ALR 1, 25-6 [103] (Kirby J).

[20] See ss 36(2) and 65 of the Act and reg 2.03, Sch 2, cl 866.221 of the Migration Regulations 1994 (Cth).

[21] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). Article 1A(2) of the Convention defines a refugee as any person who:

'owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'.

[22] It is well established that past events are relevant in determining whether a person has a well-founded fear of persecution in the future: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 387 (Mason CJ) and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

[23] Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1053 (Finn J).

[24] Ibid [27].

[25] Section 430(1) of the Act provides:

Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

sets out the decision of the Tribunal on the review; and

sets out the reasons for the decision; and

sets out the findings on any material questions of fact; and

refers to the evidence or any other material on which the findings of fact were based.

[26] Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681; (1999) 95 FCR 506 (Heerey, Merkel and Goldberg JJ).

[27] Ibid 510 [12]. The Full Court cited Muralidharan v Minister for Immigration and Multicultural Affairs [1996] FCA 1342; (1996) 62 FCR 402, 413-416; Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28, 31, 35-36, 42, 53, 70; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; Hughes v Minister for Immigration and Multicultural Affairs [1999] FCA 325; (1999) 86 FCR 567; Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287; V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182; Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348, [26], [27]; and Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940.

[28] It is well established that to amount to persecution, punishment must involve discriminatory conduct: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 388 (Mason CJ), 429-430 (McHugh J); Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 570 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293..

[29] Israelian v Minister for Immigration and Multicultural Affairs [1998] FCA 447 (R D Nicholson J).

[30] Ibid [13] (R D Nicholson J).

[31] Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 (Einfeld and North JJ, Emmett J dissenting).

[32] Ibid [6] (Einfeld and North JJ).

[33] Ibid [35] (Emmett J).

[34] [1999] FCA 1741; (1999) 95 FCR 425 (Whitlam, R D Nicholson and Gyles JJ) ('Xu').

[35] Whitlam and Gyles JJ. R D Nicholson J did not consider it necessary to express a view on the issue.

[36] Xu [1999] FCA 1741; (1999) 95 FCR 425, 432 [20] (Whitlam and Gyles JJ).

[37] Ibid.

[38] Ibid 437[32] (Whitlam and Gyles JJ).

[39] Ibid 437-438[33] (Whitlam and Gyles JJ).

[40] Ibid 437[32] (Whitlam and Gyles JJ).

[41] Ibid.

[42] Ibid 438[36] (Whitlam and Gyles JJ).

[43] Ibid 437-8[33].

[44] [2000] FCA 845; (2000) 98 FCR 469 (Black CJ, Sundberg, Katz and Hely JJ, Kiefel J dissenting) ('Singh').

[45] Black CJ, Sundberg, Katz and Hely JJ.

[46] Singh [2000] FCA 845; (2000) 98 FCR 469, 478[34] (Black CJ, Sundberg, Katz and Hely JJ).

[47] Ibid 481[48].

[48] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 50[204] (Callinan J).

[49] Singh [2000] FCA 845; (2000) 98 FCR 469, 491-2[92] (Kiefel J) (citations omitted).

[50] Ibid 493[100] (Kiefel J).

[51] Ibid.

[52] Ibid.

[53] Ibid 494[102] (Kiefel J).

[54] [1985] HCA 10; (1985) 155 CLR 422, 445-446 (Brennan J). See also Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647, 656-659 (Finkelstein J).

[55] Hereafter denoting Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

[56] Singh [2000] FCA 845; (2000) 98 FCR 469, 481[48] (Black CJ, Sundberg, Katz and Hely JJ).

[57] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 17[68] (McHugh, Gummow and Hayne JJ).

[58] Ibid.

[59] Ibid.

[60] [1985] HCA 10; (1985) 155 CLR 422, 445-446 (Brennan J).

[61] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 17-18[69] (McHugh, Gummow and Hayne JJ). See also Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323, 348-349 (Deane J), 353 (Fisher J).

[62] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 17[69] (McHugh, Gummow and Hayne JJ).

[63] Ibid.

[64] See also ibid 10 [35] (Gaudron J).

[65] Ibid 19 [73] (McHugh, Gummow and Hayne JJ).

[66] See Xu [1999] FCA 1741; (1999) 95 FCR 425, 436[28], 439-40[38] (Whitlam and Gyles JJ); Singh [2000] FCA 845; (2000) 98 FCR 469, 491-2[92]-[93] (Kiefel J, dissenting).

[67] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 20[77] (McHugh, Gummow and Hayne JJ).

[68] Ibid 19[74] (McHugh, Gummow and Hayne JJ).

[69] Ibid 5[10] (Gleeson CJ).

[70] Ibid 4-5[7] (Gleeson CJ).

[71] See text below n 81 and following.

[72] See, especially 10-11[34]-[35] of her Honour's judgment.

[73] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 54[217] (Callinan J).

[74] Citing Pettitt v Dunkley [1971] 1 NSWLR 376 and Fleming v The Queen (1998) 197 CLR 250, [22] (Gleeson CJ, McHugh, Gummow, Kirby, and Callinan JJ).

[75] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 52[211] (Callinan J).

[76] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 32-33[130] (Kirby J).

[77] Ibid [112] (Kirby J), citing Liversidge v Anderson [1941] UKHL 1; [1942] AC 206.

[78] [1941] UKHL 1; [1942] AC 206, 245 (Atkin LJ), citing Lewis Carroll, Through The Looking Glass, ch vi (emphasis in original):

'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean—neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master—that's all.'

[79] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 34[137] (Kirby J), citing Singh [2000] FCA 845; (2000) 98 FCR 469, 482[57] (Black CJ, Sundberg, Katz and Hely JJ).

[80] Ibid 20[78] (McHugh, Gummow and Hayne JJ).

[81] Section 476(1)(b).

[82] Section 476(1)(c).

[83] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 21[79] (McHugh, Gummow and Hayne JJ).

[84] Ibid.

[85] Section 476(1)(d).

[86] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 21[80] (McHugh, Gummow and Hayne JJ). See also Yusuf [2001] HCA 30; (2001) 180 ALR 1, 10[31] (Gaudron J).

[87] [1995] HCA 58; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[88] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 21[82] (McHugh, Gummow and Hayne JJ).

[89] Craig [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[90] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 22[83] (McHugh, Gummow and Hayne JJ).

[91] Ibid 22[84] (McHugh, Gummow and Hayne JJ).

[92] Ibid 21-22[82] (McHugh, Gummow and Hayne JJ). Significantly, here they cited Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 176 ALR 219. See text at n 136 and following, below.

[93] Ibid.

[94] See Yusuf [2001] HCA 30; (2001) 180 ALR 1, 21-22[82]-[84] (McHugh, Gummow and Hayne JJ).

[95] Ibid 22[84] (McHugh, Gummow and Hayne JJ).

[96] Ibid 21-22[82] (McHugh, Gummow and Hayne JJ).

[97] See particularly, ibid 10[31] and 11-12[38]-[44] (Gaudron J).

[98] Ibid 11-12[39]–[44] (Gaudron J). The test for constructive failure to exercise jurisdiction is whether the tribunal has committed a mistake of law which causes it 'to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test", or to "misconceive its duty", or "not to apply itself to the question which the law prescribes", or "to misunderstand the nature of the opinion which it is to form."' Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) SR (NSW) 416, 420 (Jordan CJ) (citations omitted). See also R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 267-268 (Aickin J); Re Coldham; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338, 350 (Wilson, Deane and Gaudron JJ); Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132, 143-144 (Brennan J); and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585, 594[31] (Gleeson CJ, Gaudron and Hayne JJ). The approach to an excess of jurisdiction is the same.

[99] Ibid.

[100] See text above n 68, above.

[101] Gleeson CJ, McHugh, Gummow, Callinan, Hayne JJ.

[102] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 23[90] (McHugh, Gummow and Hayne JJ).

[103] Ibid 23[91] (McHugh, Gummow and Hayne JJ).

[104] Ibid 13[49] (Gaudron J).

[105] Ibid 13[50] (Gaudron J).

[106] Ibid.

[107] Ibid 24[95] (McHugh, Gummow and Hayne JJ).

[108] Ibid.

[109] Ibid 24[96] (McHugh, Gummow and Hayne JJ).

[110] Ibid 24-25[97] (McHugh, Gummow and Hayne JJ).

[111] Ibid 14[55] (Gaudron J). Gleeson CJ agreed with McHugh, Gummow and Hayne JJ. Kirby J and Callinan J both based their conclusions on their view of the proper interpretation of s 430 and s 476(1)(a)—Kirby J would have dismissed each appeal, Callinan J would have allowed each appeal.

[112] Ibid 14[56] (Gaudron J), 23-24[92], [97] (McHugh, Gummow and Hayne JJ), 45[184] (Kirby J), 55[221], 60[248] (Callinan J).

[113] [2001] FCA 1036 (Weinberg J).

[114] Ibid [44]. Gyles J's view has also been upheld in Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911 (Weinberg J) and Capa v Minister for Immigration and Multicultural Affairs [2001] FCA 898 (Hely J).

[115] [2001] FCA 746, [15] (Gyles J).

[116] The writ of certiorari, which the High Court has held is also available under s 75(v), does not require jurisdictional error but will issue for error of law on the face of the record: R v Northumberland Compensation Appeal Tribunal; ex parte Shaw [1951] EWCA Civ 1; [1952] KB 338.

[117] See Airo-Farulla, above n 12, 551.

[118] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177-178; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585, [82] (Kirby J).

[119] Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 and R v Hull University Visitor; ex parte Page [1992] UKHL 12; [1993] AC 682.

[120] The High Court has affirmed the existence of the distinction in R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351; Hockey v Yelland (1986) 159 CLR 656; Public Service Association (SA) v Federated Clerks' Union (SA) [1991] HCA 33; (1991) 173 CLR 132 and most recently in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 and Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238, though cf ibid [212] (Kirby J).

[121] [1995] HCA 58; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) ('Craig').

[122] Ibid 178.

[123] [1968] UKHL 6; [1969] 2 AC 147.

[124] Ibid 171.

[125] Craig [1995] HCA 58; (1995) 184 CLR 163, 178 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[126] Ibid 179. The High Court cited Lord Diplock in Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374, 383.

[127] Ibid. This is the passage that was quoted by McHugh, Gummow and Hayne JJ in Yusuf.

[128] The distinction has now also been abolished in relation to courts. See R v Hull University Visitor; ex parte Page [1992] UKHL 12; [1993] AC 682. Curiously, in rejecting the abolition of the distinction the High Court's decision makes no reference to Hull.

[129] See Allars, above n 11, and Finn, above n 11.

[130] See Aronson and Dyer, above n 11, 170-172. Also Returned & Services League of Australia (Victorian Sub-branch) Inc v Liquor Licensing Commission [1999] VSCA 37, [27]; Hartley v O'Loughlin [1999] VSC 138, [28] and CFMEU v Australian Industrial Relations Commission [1999] FCA 847; (1999) 164 ALR 73, 94-97[63]-[74]. Cf Edwards v Guidice [1999] FCA 1836 (Finkelstein J).

[131] Aronson and Dyer, above n 11, 172, citing Re Bennett-Borlase; ex parte Commissioner of Police (unreported, WA Sup Ct, Full Ct, 20 June 1997); Re Robbins; ex parte West Australian Newspapers Ltd [1999] WASCA 16; and Re Real Estate and Business Agents Supervisory Board; ex parte Cohen [1999] WASCA 47, [19].

[132] See Aronson and Dyer, above n 11, 167-172.

[133] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 21[82] (McHugh, Gummow and Hayne JJ).

[134] See Allars, above n 11, 458.

[135] Airo-Farulla, above n 12, 557.

[136] Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), 6(1)(a), 5(1)(f), 6(1)(f), 13.

[137] [2000] HCA 57; (2000) 176 ALR 219 ('Aala').

[138] Ibid 221[5] (Gleeson CJ), 231[41]-[42] (Gaudron and Gummow JJ), 258[142] (Kirby J), 265[170] (Hayne J), and 275[216] (Callinan J). McHugh J did not decide the issue.

[139] Aala [2000] HCA 57; (2000) 176 ALR 219, 231[41] (Gaudron and Gummow JJ).

[140] Ibid 265[169] (Hayne J). See also ibid 258[142] (Kirby J) ('With today's eyes, we see clearly that a performance by a repository of statutory power (including a federal tribunal) of its functions in breach of the rules of procedural fairness is (at least where the breach is substantial) no true exercise of jurisdiction and power in accordance with law. Such a purported exercise therefore amounts to an excess of jurisdiction.')

[141] [1999] HCA 21; (1999) 197 CLR 611.

[142] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The term is used to decide a decision that is so unreasonable that no reasonable decision-maker could have reached it.

[143] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 627-8 [45] (Gleeson CJ and McHugh J), 659[159] (Hayne J), 669[183] (Callinan J).

[144] [1997] HCA 27; (1997) 190 CLR 1, 36 (Brennan CJ).

[145] Cited in Eshetu [1999] HCA 21; (1999) 197 CLR 611, 650[126] (Gummow J).

[146] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 650[126] (Gummow J).

[147] [2000] HCA 57; (2000) 176 ALR 219, 230-1[40] (Gaudron and Gummow JJ).

[148] See also Airo-Farulla, above n 12, who argues that the organising principle of administrative law has shifted from jurisdiction to legality, and that a key element of the latter is 'rationality'.

[149] Crock (1996), above n 4, 272.

[150] [1985] 1 AC 374, 407.

[151] In relation to the broadening of the notion of 'jurisdictional error', see Airo-Farulla, above n 12.

[152] In that case s 420 of the Act, which required the Tribunal in reviewing a decision to act 'according to substantial justice and the merits of the case'. See Eshetu [1999] HCA 21; (1999) 197 CLR 611.

[153] Eshetu [1999] HCA 21; (1999) 197 CLR 611, [48] (Gleeson CJ, McHugh J).

[154] Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300 (Davies and Burchett JJ, Whitlam J dissenting).

[155] Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; (1997) 142 ALR 474, 486-487 (Hill J).

[156] Eshetu [1999] HCA 21; (1999) 197 CLR 611.

[157] Ibid 628[47] (Gleeson CJ and McHugh J).

[158] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 20[77] (McHugh, Gummow and Hayne JJ).

[159] Ibid 21[80] (McHugh, Gummow and Hayne JJ).

[160] See Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1) and 6(1).

[161] [1999] HCA 14; (1999) 197 CLR 510, 552[108] (Gaudron J). Cf Yusuf [2001] HCA 30; (2001) 180 ALR 1, [40]-[44] (Gaudron J).

[162] [1999] HCA 21; (1999) 197 CLR 611, 628[47]-[49] (Gleeson CJ and McHugh J), [109] (Gummow J). Also Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Lindgren J).

[163] [2001] FCA 699 (Conti J).

[164] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 656-7[145] (Gummow J), cited in Cujba v Minister for Immigration and Multicultural Affairs [2001] FCA 699, [105] (Conti J).

[165] Ibid.

[166] Ibid [154] (Gummow J). It is interesting to observe in this reasoning a clear forerunner of McHugh, Gummow and Hayne JJ's decision in Yusuf.

[167] Airo-Farulla, above n 12, 567.

[168] [2001] FCA 565 (Hill, Finkelstein and Stone JJ).

[169] Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565, [28] (Finkelstein J, dissenting). His Honour cited Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 (Spigelman CJ). Cf Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1998) 84 FCR 411 (Black CJ, von Doussa and Carr JJ).

[170] Ibid [33] (Finkelstein J, dissenting).

[171] See Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482, Australian Coal and Shale Employees' Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168.

[172] Abebe [1999] HCA 14; (1999) 197 CLR 510.

[173] In relation to the Judicial Review Act, see above n 4.

[174] [1945] HCA 53; (1945) 70 CLR 598. See also R v Coldham; ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415.

[175] Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth), 6. In relation to the courts' historically narrow interpretation of privative and ouster clauses, see Susan Kenny, 'Principles of Statutory Interpretation Relating to Government' in Paul Finn (ed), Essays on Law and Government: Volume 2, The Citizen and the State in the Courts (1996) 215.

[176] Unfortunately this question is beyond the scope of this paper. For a discussion of the High Court's likely approach to an earlier form of the Judicial Review Act, see Campbell, above n 17.

[177] (2000) 179 ALR 238, [212] (Kirby J).

[178] Ibid.

[179] Crock, above n 11, 212.

[180] Singh [2000] FCA 845; (2000) 98 FCR 469, 481[49] (Black CJ, Sundberg, Katz and Hely JJ).

[181] Ibid 482[54] (Black CJ, Sundberg, Katz and Hely JJ).

[182] Yusuf [2001] HCA 30; (2001) 180 ALR 1, [75] (McHugh, Gummow and Hayne JJ).

[183] Ibid.

[184] Ibid.

[185] Ibid 25[100] (Kiefel J, dissenting). Cf Xu [1999] FCA 1741; (1999) 95 FCR 425, 437[32] (Whitlam and Gyles JJ).

[186] Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196, [78]-[79] (Allsop J). In relation to the debate within the Federal Court over the effect of the High Court's decision in Yusuf, see Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 (Gyles J), Subramaniam v Minister for Immigration and Multicultural Affairs [2001] FCA 891 (Ryan J) and Ragunathan v Minister for Immigration and Multicultural Affairs [2001] FCA 1142 (Beaumont J).

[187] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 19[73] (McHugh, Gummow and Hayne JJ).

[188] [1997] HCA 22; (1997) 191 CLR 559.

[189] Ibid 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

[190] [2001] FCA 864 (Heerey J).

[191] [2001] FCA 911 (Weinberg J).

[192] Ibid [58]. See also Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036 (Weinberg J).

[193] [1986] HCA 40; (1986) 162 CLR 24 (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ).

[194] Ibid 39 (Mason J).

[195] Ibid 39-40 (Mason J).

[196] Section 36(2). In this respect the position of applicants for protection visas can be contrasted with that of applicants for other types of visa under the Act, where there has been extensive codification of the matters to be taken into account. See Crock, above n 4, 277-280. The only issue in relation to those applicants would be whether the factors described in the Migration Regulations 1994 (Cth) are to be interpreted exhaustively or inclusively. See Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).

[197] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 19[74] (McHugh, Gummow and Hayne JJ).

[198] Ibid.

[199] [2001] FCA 864 (Heerey J).

[200] Ibid [23].

[201] Aronson and Dyer, above n 11, 222. See also Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 46, where Mason J declared the considerations grounds 'conform to the principles of natural justice'.

[202] [1993] FCA 297; (1993) 43 FCR 100, 129 (Wilcox J).

[203] Cited in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2000) 179 ALR 238, 269[140] (McHugh J).

[204] Yusuf [2001] HCA 30; (2001) 180 ALR 1, 13[49] (Gaudron J) (emphasis added).

[205] In relation to the availability of review where a finding of fact is made but not recorded pursuant to s 430(1)(b) see Zyfi v Minister for Immigration and Multicultural Affairs [2001] FCA 978 (Sundberg J); Zhang v Minister for Immigration and Multicultural Affairs [2001] FCA 1045 (Heerey J) and Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854 (Stone J). Cf Applicant RV v Minister for Immigration and Multicultural Affairs [2001] FCA 1034 (Weinberg J).

[206] See Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, [7]-[15] (McHugh J). Also Abebe [1999] HCA 14; (1999) 197 CLR 510, 534[50] (Gleeson CJ, McHugh J), 582-3[207] (Kirby J).

[207] See McHugh J's comments in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, 407 (n 2) (McHugh J) where his Honour recited statistics that of the 102 applications for prerogative relief pending at that time in the High Court, 66 arose under the Act.

[208] See Crock, above n 2, 215.

[209] Eshetu [1999] HCA 21; (2000) 162 ALR 577, 588[48] (Gleeson CJ and McHugh J).

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