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Basten QC, John --- "Judicial Review: Recent Trends" [2001] FedLawRw 18; (2001) 29(3) Federal Law Review 365

Judicial Review: Recent Trends

John Basten QC[*]


In an oft-cited passage from Attorney-General (NSW) v Quin[1] Brennan J identified the scope of judicial review in terms which bear repeating:

The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[2]

The passage emphasized the centrality of the distinction between review for error of law and merits review. However, the qualification that the dichotomy, which is so readily stated in principle, is not always easy to apply in practice is also well-taken.

It was this intersection of law and merits review which underpinned a number of recent decisions in the High Court, setting aside judgements of the Full Court of the Federal Court. Several of these judgments were concerned with the review of decisions in relation to refugee claimants under the Migration Act 1958 (Cth) ('Migration Act'). This area of decision-making has attracted considerable interest for a number of reasons, not least of which is the concern aroused by individual cases, where it appears that a refugee claimant may have been harshly refused a protection visa in circumstances where significant doubt may attend his or her fate if returned to the relevant country of nationality or former habitual residence.[3] The tension is heightened when placed in the legal context. Part 8 of the Migration Act seeks to preclude review by the Federal Court of decisions of the Refugee Review Tribunal on particular grounds, which would generally be available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') and under the common law. The particular grounds on which review is not permitted at all under the Migration Act are a breach of the rules of natural justice and Wednesbury unreasonableness;[4] the improper exercise of power ground is also subject to limitation.[5]

The purpose of this paper is to review some recent developments in this area and to consider possible directions for judicial review in the near future. It addresses certain ways in which attacks have been made by unsuccessful claimants on the approach of a tribunal to its fact-finding exercise, while attempting to avoid over-stepping the boundary into merit review. A full discussion of this issue would require consideration of the line between 'jurisdictional facts', which may be reviewed, and facts which are within the power of the tribunal to determine.[6] That area is not dealt with below.[7]


Judicial review is a limited legal mechanism in pursuit of a substantive social goal. That social goal is likely to be the obtaining of a personal benefit, such as a protection visa, allowing the applicant to remain in Australia indefinitely. However, the more immediate result of initiating proceedings will be to delay the applicant's removal from Australia as an unlawful non-citizen. That relief may be obtained by a different mechanism, namely an injunction prohibiting the removal. Injunctive relief is not directly subject to the constraints attending judicial review. However, a person seeking an injunction is entitled, indeed obliged, to establish the factual circumstances which would give rise to a claim for such relief.[8]

Whether an injunction will provide an alternative remedy to judicial review of the exercise of a power, rather than an ancillary remedy in support of other relief, will depend upon the nature of the question to be determined. For example, for a refugee claimant, the legal analysis depends upon specific statutory provisions. Section 198 of the Migration Act relevantly provides:

198(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:
(a) who ...
(ii) has made a valid application for a substantive visa that can be granted when the applicant is in the migration zone, that has been finally determined.

If the person is still an unlawful non-citizen, it follows that the application must have been determined adversely to his or her claim. An application is 'finally determined' when a decision has been made in respect of the application and that decision is no longer subject to any form of review under Parts 5 or 7.[9] To prevent removal, the claimant must establish that he or she does not fall within the obligation to remove, because the Minister has not resolved properly the question of entitlement to a visa, or, put another way, a valid application for that visa has not been finally determined.

On the face of it, the ultimate question does not provide much scope for injunctive relief.[10] The Migration Act provides criteria in relation to a protection visa, including that 'the applicant ... is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention'.[11] Viewed in the abstract, that provides an objective test which might be determined by the Court as a jurisdictional fact. However, the operative provision of the Migration Act requires the Minister to grant a visa "if satisfied" that relevant criteria have been fulfilled and to refuse to grant a visa if not so satisfied. Accordingly, legal entitlement to a visa depends upon the satisfaction of the Minister as to the fulfilment of the criteria. Where a decision has been made by a Minister or the Minister's delegate, the claimant, to succeed in restraining his or her removal from Australia, will need to demonstrate that the decision was not a valid decision. That takes one straight back to the grounds of judicial review.

Accordingly, it is not clear that injunctive relief in an area where the ultimate entitlement to a benefit depends upon satisfaction of the administrative decision-maker, will achieve that which cannot be achieved by judicial review. Where there is a statutory pre-condition to the exercise or refusal to exercise a power, other than the satisfaction of the decision-making, the condition will usually constitute that which is described in administrative law as a 'jurisdictional fact'. An applicant for injunctive relief will be entitled to establish that fact before a court, but not so as to achieve a substantive result beyond that available by way of judicial review. In Abebe v The Commonwealth[12] Gaudron J noted that:

Jurisdictional error is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction, situations which fall within s 476(1)(b) and (c) of the [Migration] Act and, thus, ground review by the Federal Court. Rather, a tribunal falls into jurisdictional error if 'it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers'. Section 476 does not include a ground of review specifically concerned with failure to exercise jurisdiction.

Her Honour was concerned in that passage with the possibility that a failure to have regard to relevant matters, or to disregard irrelevant matters, may lead the tribunal to fall into jurisdictional error as defined in Craig. [13]

The two grounds to which her Honour referred provided for review in the Federal Court where the person who purported to make the decision 'did not have jurisdiction to make the decision' and in which 'the decision was not authorised by' the Migration Act or Regulations. The reason for noting these statutory grounds was to identify areas in which the power of the High Court to grant relief pursuant to s 75(v) of the Constitution might need to be invoked where the statutory jurisdiction of the Federal Court did not extend. In that context, her Honour noted the exclusion from Federal Court jurisdiction of a ground involving taking irrelevant considerations into account or failing to take account of a relevant consideration. However, those exclusions[14] only apply to the ground of 'improper exercise of a power', which is separately provided for in s 476(1)(d). They are not, in terms, a limitation on other grounds, within the Federal Court's jurisdiction, identified as not having jurisdiction and making decisions not authorised by the Act.[15]

Thus the real force of her Honour's point may depend upon the extent to which an error by a tribunal can be described as a failure to exercise jurisdiction, as opposed to making a decision which it did not have jurisdiction to make,[16] and in relation to which prohibition is not available. Putting to one side the rare cases in which a decision-maker wrongly concludes that a particular case is not within the ambit of his or her authority, that circumstance may arise if a purported exercise of jurisdiction can be dismissed as a nullity which can be ignored without the need for a court order setting it aside. However, such a situation would only have practical significance if the Court from which the injunction was sought had no jurisdiction to set the decision aside.[17] That might be true of the Federal Court in relation to decisions under the Migration Act, or the High Court in a case in which jurisdictional error had not been established.[18]

Constitution, s 75(v)

This discussion invites attention to the interrelationship of the jurisdiction of the High Court under s 75(v) of the Constitution, which is expressly recognised in s 486 of the Migration Act, and the jurisdiction of the Federal Court which the Act makes exclusive, except for the jurisdiction of the High Court under s 75 of the Constitution. Correctly, this latter jurisdiction is not aptly described as 'judicial review': rather, it is jurisdiction to grant certain relief specifically identified in s 75(v).[19] That relief, while including the two common law remedies, writs of mandamus and prohibition, makes no reference to certiorari which is the standard form of common law relief for setting aside a decision. The section also expressly includes injunctions, which are not a common law form of judicial review relief.[20]

Whilst accepting the need to avoid inappropriate classification of the jurisdiction of the High Court under s 75(v), there are nevertheless important lessons to be learned from a comparison of the limits of the Constitutional jurisdiction and the scope of statutory judicial review, whether under the Migration Act or the ADJR Act. The issues arise because of the exclusion from Part 7 of the Migration Act of jurisdiction in the Federal Court to review decisions on the particular grounds, specifically breach of natural justice and manifest unreasonableness. The result has been a spate of applications in the High Court for Constitutional relief in circumstances where Federal Court review is apparently unavailable.[21] The questions raised by these cases require identification of the scope of available relief and the date at which the exercise must be undertaken. Thus it becomes necessary to determine two separate questions. The questions are, first, whether the grounds of the relevant relief are limited to "jurisdictional error" and, secondly, whether the concept of jurisdictional error is to be identified in modern terms or in accordance with the law (if different) at 1901 and thus, whether the grounds which might be relied upon are to be determined in accordance with contemporary authority or that which was current in 1901.

The origins and nature of the jurisdiction created by s 75(v) were considered by the High Court[22] in Deputy Commissioner of Taxation v Richard Walter Pty Ltd.[23] Deane and Gaudron JJ noted, referring to sub-ss 75(iii) and (v):

Together, the two sub-sections constitute an important component of the Constitution's guarantee of judicial process in that their effect is to ensure that there is available, to a relevantly affected citizen, a Ch. III court with jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority. Necessarily, there lies at the heart of that jurisdiction the authority to determine whether an impugned law is or is not in fact ultra vires and whether an impugned administrative decision or impugned administrative conduct is or is not in fact invalid or unlawful.

There can be no doubt that the availability of mandamus is restricted to jurisdictional error. Numerous cases attest to or assume the accuracy of that proposition.[24] It is then necessary to consider the possible effect of Anisminic Ltd v Foreign Compensation Commission[25] in this country, a matter discussed by Aronson and Dyer in Judicial Review of Administrative Action.[26] The authors start with the proposition that the common law remedies all require jurisdictional error,[27] with the historical exception of certiorari. Whilst there may be some doubt as to whether Anisminic itself sought to abolish the distinction between jurisdictional and non-jurisdictional error of law, the subsequent case law tending in that direction in England has not been followed by the High Court.[28]

Jurisdictional error could, in 1901, have been founded on breach of natural justice. What is encompassed by the latter phrase has, however, expanded significantly over the last century and particularly the last three decades[29] particularly to cover decisions which do not affect legal rights.[30] The question raised is whether the changes which have occurred by expansion of the circumstances to which the principles of procedural fairness apply are picked up by the invocation of the Court's jurisdiction under s 75(v), so as to allow (and require) the review of decisions which would not have been subject to such relief in 1901. Whether this is a different issue from that which would arise were the Court to adopt the expansion of the concept of 'jurisdictional error' which has occurred in England since Anisminic may perhaps be put to one side for present purposes. But the distinction may be illustrative of the difference between a major shift in approach and a process of gradual development to fit an old concept to changing circumstances.[31]

The problem now raised was identified by Sir Owen Dixon in 1927 in his evidence to the Royal Commission on the Constitution. As noted by Cowen and Zines:[32]

He said that it was by no means clear how much of the common law governing the character and nature of these remedies, the procedure by which they are administered, the occasions upon which they may be granted, is stereotyped and made immutable by this provision.

The uncertainty was side-stepped by the Commonwealth Administrative Review Committee (the Kerr Committee) in 1971 in considering reform of the complexity and technicalities attending the common law writs. Instead of seeking to reform the existing remedies, it recommended a new scheme of judicial review which was duly established.[33]

In Re Refugee Review Tribunal; Ex parte Aala,[34] the Minister argued that the best approach may be to look to the scope and purpose of the provision, read in its Constitutional context. Section 75(v) is one of the provisions which defines and delimits the respective powers of the legislature and executive, on the one hand, and those of the judiciary on the other. If the common law grounds for grant of mandamus were to be capable of substantial expansion by judicial development, there would be vested in the judiciary a power to vary the scope and operation of a Constitutional provision in a manner not clearly envisaged by the Constitution itself. An expansion of the grounds on which mandamus would lie would effectively expand the role of the Court and restrict the field within which the Parliament might validly pass laws. By parity of reasoning, absent immutable grounds for such relief, the Parliament could alter the role of the Court by legislative restriction of the common law grounds of review in relation to the conduct of Commonwealth officers. This argument suggested that it might be necessary to place clear limits on an ambulatory approach to the grounds justifying the relief available under s 75(v).[35]

It would be in keeping with this approach that a removal of technical restrictions on the availability of relief would not be a departure from the Constitutional regime, but that a significant expansion of its scope of operation would be. This would be consistent with the approach adopted by Barwick CJ in Kotsis v Kotsis[36] that if the composition of a State Supreme Court were changed "in a radical way", the Constitutional reference would not be satisfied.[37]

Whilst there might be some inconvenience in the need to identify a more limited set of grounds in considering an application for mandamus or prohibition under s 75(v), that approach would, in one sense, preserve rather than undermine the Constitutional guarantee provided by the sub-section.[38]

The extent to which this question is a significant one depends upon the extent to which the grounds of judicial review have expanded since 1901 and the extent to which the Court considers it necessary to intervene in exercise of its Constitutional mandate to ensure that the executive arm of the government operates within the law. The principal developments in this area have occurred in relation to rules of procedural fairness, discussed further below. However, the High Court unanimously rejected an historically restricted approach to its powers in Re Refugee Review Tribunal; Ex parte Aala.[39] Thus, Hayne J stated:[40]

The grounds for issue of mandamus or prohibition are not frozen according to practices prevailing at 1900. ... The common law rules describing the kinds of departure from the lawful manner of exercise of power that will attract a grant of prohibition have changed over time. ... Of course, in cases concerning s 75(v) jurisdiction, the development must take account of the purpose served by the jurisdiction. ... What is constitutionally entrenched is the jurisdiction of this Court when the writs are sought, rather than any particular ground for the issue of the writs. The tension to which this may give rise (and the resolution of that tension) is examined in the privative clause cases, particularly the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton. As those cases demonstrate, the Parliament may lawfully prescribed the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed. Parliament may not, however, consistently with s 75(v) and Ch III generally, withdraw from this Court the jurisdiction which it has to ensure that power given to an officer of the Commonwealth is not exceeded.

Of a possible limitation on the grounds authorising prohibition under the common law, Gaudron and Gummow JJ stated that if 'this limitation is not required for the adaptation of the remedy for the exercise of the judicial power of the Commonwealth under s 75(v), then it should not now be read into the constitutional provision.'[41] Accordingly their Honours concluded:[42]

The doctrinal basis for the constitutional writs provided for in s 75(v) should be seen as accommodating that subsequent development when it is consistent with the text and structure of the Constitution as a whole. [43]

Aala may not be the last word on these issues: the principle stated by the Court will no doubt demand further elucidation in different circumstances.[44]


The restraints imposed on judicial review in the Federal Court by Part 8 of the Migration Act have given rise to a level of frustration, which is reflected in some judgements of the Federal Court. To an extent, however, that apparent level of frustration is puzzling. If, as has commonly been stated, illogicality in a process of reasoning toward a finding of fact is not a reviewable error,[45] many of the decisions of the Refugee Review Tribunal in particular which appear to have given rise to concern were not properly challengeable even under the ADJR Act. The real source of frustration in such cases appears to be a feeling that the decision of the delegate, affirmed by the Tribunal, is one which is harsh and unfair and demonstrates a miserly approach to our international obligations under the Refugees Convention.

In many cases, the Federal Court has justified intervention on the basis that the decision under review involved an error of law for the purposes of s 476(1)(e), in an unexceptionable manner. However, on occasions the Court has sought to justify intervention on the basis of either an error of law or failure to observe statutory procedures[46] on the part of the Tribunal -

The first approach was unanimously rejected by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu.[47] The second was rejected in Minister for Immigration and Multicultural Affairs v Yusuf and Israelian.[48] The third is presently under challenge.[49]

The extensive line of authority which developed in the Federal Court concerning the role of s 420 of the Migration Act grew out of concern as to the scope of the exclusion from reviewable grounds of a failure to comply with the rules of natural justice. This exclusion was apparently off-set by a specific ground in the following terms:[50]

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.

Read together, these two provisions had the effect, at least in the Federal Court, of excluding reliance on any aspect of procedural fairness which might be implied, as opposed to those requirements which were specified by the Act. This scheme had its own peculiarities, not least of which was the absence from the Act of anything which might be described as a 'code of procedure' in relation to the operation of the Refugee Review Tribunal.[51] A number of decisions of single judges of the Federal Court, which ultimately received the imprimatur of a Full Court in Eshetu v Minister for Immigration and Multicultural Affairs,[52] relied upon the broad provision in s 420 noted above as itself imposing an express statutory obligation on the Tribunal. The High Court held that this provision, which appears in common form in many statutory schemes establishing administrative tribunals, was intended to be 'facultative, not restrictive'.[53] The High Court was unanimous in rejecting the use of s 420 as a basis for review of procedural failings under s 476(1)(a). As a result, s 476(2)(a) not being a privative clause which sought to relieve the decision-maker of the obligation of following the rules of procedural fairness, a challenge based on non-compliance with implied elements of a fair procedure could be brought in the High Court in its Constitutional original jurisdiction, but only in that Court.

The role of reasons in administrative decision-making has been the subject of debate for many years. One question involves the underlying obligation to give reasons. That obligation is now frequently found in statute, particularly in the Commonwealth jurisdiction.[54]


The first, and perhaps critical, issue in this context is the correct characterization of the obligation to give reasons. There has been a burgeoning line of authority under the Migration Act suggesting the existence of a more substantial right, contravention of which will result in invalidity of the affected decision. Curiously, the growing common law recognition of such an obligation has been viewed rather differently from the statutory provisions.

Failure to provide reasons: the statutory obligation

The statutory provisions are commonly found in schemes establishing tribunals.[55] A general provision applying to Commonwealth decision-making, in what is now an increasingly common form, is also found in the ADJR Act, although that provision requires a request to trigger the operation of the obligation.[56] The Migration Act, which established the Refugee Review Tribunal, provides an automatic obligation in similar terms in relation to that Tribunal:

430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.[57]

In Muralidharan v the Minister for Immigration and Ethnic Affairs[58] Sackville J, with whom Davies and Beazley JJ agreed, considered what his Honour identified as a failure to give reasons in accordance with the statutory requirements of the Migration Act and considered the limitations of that obligation. His Honour continued:

Within these limitations, it nonetheless remains true that a failure by a tribunal to comply with the statutory duty to give reasons may justify judicial review of the tribunal's decision. In Dornan v Riordan[59] a Full Court (Sweeney, Davies and Burchett JJ) held[60] that a substantial failure to state reasons for a decision, where a statement of reasons is a requirement of the exercise of the decision-making power under the statute, constitutes an error of law. The Court cited, among other authorities, Pettitt v Dunkley[61] where it was held that the failure of the trial judge to give reasons made it impossible for an appellate court to determine whether or not the verdict was based on an error of law.

His Honour concluded that there was a failure to observe the procedures required by law to be observed in connection with the making of the decision. On that basis the decision of the tribunal was set aside. Davies J, however, whilst agreeing with the judgement of Sackville J, concluded that the failure to provide proper reasons for decision 'constituted an error of law justifying the setting aside of the decision'. The precise ground was perhaps not critical in that case, there being a unanimous view of the Court that the obligation to provide reasons had not been satisfied.

By contrast, in Repatriation Commission v O'Brien[62] Brennan J had stated:

It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give out reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law..., the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law... An obligation to give oral or written reasons for a decision is cast on the AAT by s 43(2) of the AAT Act, but the remedy for failure to fulfil that obligation adequately is a mandatory order by the court to do so.

The omission of reference to this approach was noted by Finkelstein J in Comcare Australia v Lees.[63] His Honour noted that the Full Court in Dornan had considered the comments of Brennan J in O'Brien but had rejected them as not being a correct statement of the law. Finkelstein J suggested that the authority relied upon in Dornan was not persuasive. His Honour then noted the line of cases in the New South Wales Court of Appeal concerning the common law obligations of a judge to give reasons for his or her decision.[64] His Honour concluded:

There are two reasons why these authorities are of limited assistance in determining whether the breach of a statutory obligation to give reasons amounts to an error of law. The first is that unless the failure to give adequate reasons is an appellable error of law no other remedy would be available to a person who is adversely affected by the order of the court. A writ of mandamus cannot issue against a superior court of record of a State. The second and more important reason is that these cases are not concerned with the construction of a statute that imposes an obligation to give reasons.

With respect, neither of these propositions is entirely persuasive. The first depends upon whether mandamus would provide an alternative remedy and the second assumes that the common law cannot helpfully assist with the construction of a statutory obligation. Why this should be so is not explained.[65]

The correct approach will no doubt depend on the specific statutory context. In relation to Migration Act cases one factor which supports the view that the obligation to give reasons should be treated as an independent obligation, contravention of which will result in an invalid decision, is the limited right of review provided by Part 8. Thus, an application to the Federal Court must be made within 28 days of the applicant being 'notified of the decision'.[66] That period cannot be extended by the Court.[67] Although the provisions of the Act relating to the handing down of decisions are not entirely clear, the applicant may or may not be given a copy of the statement of reasons at the time the decision is made and the time at which he or she is notified of the decision.[68] In any event, it would be impossible to obtain an order that the tribunal provide reasons before the time available to seek review of the decision has lapsed. The obligation would thus be largely unenforceable unless it can be said that the failure to give reasons vitiates the decision itself.

Differing views in the Federal Court as to whether failure to comply with s 430 constituted a ground under s 476(1) were reflected in the earlier decisions in Minister for Immigration and Multicultural Affairs v Yusuf, [69] which held that it did, and Xu v Minister for Immigration and Multicultural Affairs[70] in which a majority (Whitlam and Gyles JJ) held that it did not. Possible support for the negative view was also to be found in the decision of the High Court in Abebe, where both Gaudron J and Gummow and Hayne JJ referred to the procedural requirements as those contained in ss 423-429, but without express reference to s 430. The conflict was addressed by a five judge Full Court of the Federal Court in Singh, [71]which upheld Yusuf.

In Minister for Immigration and Multicultural Affairs v Yusuf,[72] the High Court, Kirby J dissenting, rejected the Full Court's approach and held that there was no reviewable procedural or legal error in failing to comply with s 430.

In order to identify the significance of this decision, is it necessary to note the manner in which the reasons of the Tribunal had been attacked. It was not suggested that the Tribunal had failed to set out its decision,[73] nor that it had failed to reveal its 'reasons' for the decision,[74] rather it was said that the case required the Tribunal to address a particular allegation and make a finding in relation to the asserted facts. Failure to do so, it was argued, was a contravention of par (c) which, in combination with the statutory obligation to give proper consideration to an application,[75] imposed an implied obligation to make findings of all material facts.

However, the over-ruling by Yusuf of the line of authorities which identified a ground of review in s 430 leaves open a related issue. In Minister for Immigration and Multicultural Affairs v Singh ('Singh') four members of the Federal Court stated:[76]

The reasoning process a Tribunal adopts may require a decision of a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.

That approach not only inferred an obligation to make findings of fact, but appeared to import a further legal obligation to reason logically. The latter obligation requires justification, as it appears to be inconsistent with the oft-repeated nostrum from the judgment of Menzies J in R v District Court; Ex parte White, quoted with approval by Mason CJ in Australian Broadcasting Tribunal v Bond[77] to the following effect:[78]

Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact, would not disclose an error of law.

Applying that principle in the context of administrative decision-making, Mason CJ stated in Bond that 'even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.'[79]

The corollary of that conclusion is either that there is no obligation to reason logically, or that a failure to do so does not result in invalidity.

That conclusion is, of course, subject to the qualification that illogicality which can be characterised as manifest unreasonableness, traditionally a high hurdle for a challenger to clear, is a common law ground of review. But it cannot have been that principle that the Federal Court was relying on in Singh, as that was not an available ground of review in that Court.[80] Significantly, the traditional formulation of manifest unreasonableness has a role to play in relation to what may be described as discretionary decisions: a different approach may be appropriate in relation to decisions which are not truly discretionary, although they may require factual findings which involve an evaluative process.[81]

Thus it was argued by one member of the Full Court of the Federal Court, prior to the High Court decision in Yusuf, that

[t]he obligation to provide reasons in the form prescribed discloses a requirement of the Act that the procedure by which a decision is made be a rational procedure, not arbitrary or capricious. ... Section 430 of the Act is to be construed according to the principle underlying it, namely, that (sic) the requirement that the determination of the Tribunal be based upon some probative material or logical grounds. [82]

Before considering the possible relevance of this approach, post-Yusuf, it is useful to note two other considerations that have affected the analysis under the Migration Act. First, the ground that was said to be triggered by a breach of s 430 was a failure to observe procedural requirements.[83] Although some Federal Court judges have taken a narrow approach to what constitutes such a procedure,[84] the common law cases discussed below take a similar but possibly more expansive approach in adopting the ground of breach of procedural fairness as relevant to the obligation to provide reasons.

Secondly, there is the somewhat different issue, namely, the exclusion from Federal Court review of the ground of failing to take account of a relevant consideration.[85] The s 430 cases could be seen (as argued by Kiefel J in dissent in Singh)[86] as an evasion of that statutory limitation on jurisdiction. In other words, the Court reads the reasons (or the case as revealed by the reasons) as demonstrating the need to find a particular fact, being one which needs to be found in order to reach a particular conclusion. If the finding is absent, a contravention of the implied obligation to make findings of all material facts may be established, but in truth that is no more than a failure to consider what is (at least arguably) a 'relevant consideration'. Failure to take account of a relevant consideration, defined both in the ADJR Act and in the Migration Act as a sub-head of the 'improper exercise of a power' ground, may require further discussion: it is not excluded generally from the jurisdiction of the Federal Court under the Migration Act, but only as a limb of that specific ground.[87] In Thevendram, Lee J relied on the requirement to give reasons in s 430 to form the basis of an implied obligation to decide a matter rationally. In Bruce v Cole, Spigelman CJ noted doubt that 'a logically probative decision was a requirement of natural justice', in Australia.[88] However, because the body in question in that case was required to act on the basis of 'proved misbehaviour or incapacity', his Honour[89] concluded that the statutory opinion could only be formed 'on the basis of probative evidence.'[90] That required 'a logical process of reasoning to draw an inference.'[91]

If such an approach is, as a matter of statutory construction, available under the Migration Act, the next question is to ask what ground of review is available for breach of that obligation. Is it a required procedure under the Migration Act (as Lee J held) and, if so, would it also be treated as a breach of procedural fairness under the general law? If, as the High Court has now held, the giving of reasons (or acting rationally) is not a 'procedure' required by the Act to be observed 'in connection with the making of the decision',[92] for the purposes of review in the Federal Court, it may nevertheless constitute an aspect of procedural fairness, and thus a ground of review available in the High Court.

The common law obligation

The provision of reasons was held to be an element of procedural fairness by the decision of the NSW Court of Appeal in Osmond v Public Service Board of NSW[93] and was so treated by the High Court in reversing that decision in Public Service Board of NSW v Osmond[94] ('Osmond'). Thus, in the leading judgement, Gibbs CJ stated:[95]

There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.

A number of more recent decisions of the Court of Appeal and the House of Lords in England have followed this approach. The earliest, for present purposes, is R v Civil Service Appeal Board, Ex parte Cunningham ('Cunningham')[96]. In that case the Court of Appeal comprised Lord Donaldson MR and McCowan and Leggatt LJJ, the leading judgement being that of the Master of the Rolls. There was some irony in that, as his Lordship suggested, the origin of the line of authority which has now developed in England commenced with a number of cases which pre-dated Osmond.[97] Whilst affirming the proposition that there was no general rule that required administrative tribunals to give reasons, the Court held that such an obligation could arise as an incident of procedural fairness in appropriate circumstances. In Cunningham, the decision-making Appeal Board was held to be a 'fully judicial body'.[98] After a lengthy quote from Lord Lane CJ in Kahn,[99] being the same passage partially quoted by Gibbs CJ in Osmond,[100] Lord Donaldson continued:

Judged by that standard, the Board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the Board to the status of a free-wheeling palm tree.

His Lordship also accepted the ground upon which the primary judge had upheld the application, namely that the conduct of the Minister in vesting jurisdiction to deal with unfair dismissals in the public service in a body equivalent to the tribunal which operated in the private sector, created a legitimate expectation that the Board would comply with a similar obligation to give reasons for adverse decisions. Both the other members of the court were content to rest the obligation upon the principles of procedural fairness without reference to the supposed legitimate expectation. Thus McCowan LJ concluded:[101]

I cannot believe that 'procedure' for these purposes ends with final speeches. It would produce a most unsatisfactory situation if it did. To accord with natural justice a tribunal must permit a party to state his case. But how will that avail him if he has no idea whether any attention has been paid by the tribunal to what he said?... How could he, in the absence of reasons, know that they had not rejected his submission...? How could he formulate a case on the point for judicial review?

Leggatt LJ concluded as follows:[102]

I have not been much assisted by the articles relied on by [the appellant]...but it seems obvious that for the same reason of fairness that an applicant is entitled to know the case he has to meet, so should he be entitled to know the reasons for an award for compensation, so that in the event of error he may be equipped to apply to the Court for judicial review. For it is only by judicial review that the Board's award can be challenged.

The correctness of that approach was affirmed by the House of Lords in R v Secretary of State for the Home Department, Ex parte Doody ('Doody').[103] All members of the House agreed with the reasons given by Lord Mustill. The request for reasons in that case arose from decisions made by the Home Secretary in fixing non-parole periods for various prisoners sentenced to life imprisonment. Lord Mustill commenced his consideration of this aspect of the matter with the following comment:[104]

I accept without hesitation, and mention it only to avoid misunderstanding, that the law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied, and I agree with the analyses by the Court of Appeal in R v Civil Service Appeal Board, Ex parte Cunningham ... of the factors which will often be material to such an implication.

In respect of the decisions in question, his Lordship continued:[105]

The giving of reasons may be inconvenient, but I can see no ground at all why it should be against the public interest: indeed, rather the reverse. This being so, I would ask simply: Is refusal to give reasons fair? I would answer without hesitation that it is not.

His Lordship's first rationale was based on the nature of the sentencing regime of which a life sentence constituted a part. He continued:[106]

My Lords, I can moreover arrive at the same conclusion by a different and more familiar route, of which Ex parte Cunningham ... provides a recent example. It is not, as I understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount any effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the Court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed.

The decisions in Cunningham and Doody were not without their ambiguities, as noted by the Queen's Bench Division (Mann LJ and Sedley J) in R v Higher Education Funding Council, Ex parte Institute of Dental Surgery.[107] First, as the Court noted, it was not entirely clear whether each case asserted an independent right to reasons, absent which a decision would be set aside as unlawful and ultra vires, or whether the right merely gave rise to a form of mandamus. The Court concluded:[108]

In [Cunningham] ... a declaration was made and upheld on appeal that refusal to give reasons was unlawful and ultra vires, strongly suggesting the existence of an independent legal obligation.[109] In [Doody], the House of Lords declared that the Home Secretary is obliged to give reasons for departing from the period recommended by the judiciary. If in such a case the maximum remedy was simple remission for the giving of reasons with the threat of quashing if none were given, mere non-compliance would frustrate the Court's order without redress. The prisoner would lose, by its quashing, even the first review date set by the Home Secretary. This too powerfully suggests that the obligation to give reasons, where it is established, is an independent and enforceable legal obligation and hence a ground of nullity where it is violated. Such an outcome has the satisfactory symmetry with the ordinary consequence of non-compliance with a statutory requirement to give reasons. In both cases, the discretion as to remedy would of course remain.[110]

The other uncertainty left by Doody was the assertion that there was no general obligation to give reasons, together with the apparently sufficient basis in that case for the drawing of the specific inference being that the decision should be open to effective review. The Court considered a number of criteria which might affect the conclusion in a particular case. These were summed up by the Court in R v Higher Education Funding Council; Ex parte Institute of Dental Surgery[111] in the following terms:

In summary, then: (1) There is no general duty to give reasons for a decision, but there are classes of case where there is such a duty. (2) One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right. (3) (a) Another such class is where the decision appears aberrant. Here fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengeable) or apparent; (b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. A pure exercise of academic judgement is such a decision. And (c) Procedurally, the grant of leave in such cases will depend upon prima facie evidence that something has gone wrong.[112]

The fourth of the quartet was the decision of the Court of Appeal in R v City of London Corporation; Ex parte Matson.[113] The case involved a formal attendance of an elected Alderman for confirmation of his election. The Court of Aldermen (a court of record) after interviewing the applicant declined to confirm his election, but no reasons were given for that decision. The Court quashed the decision and remitted the matter to the Court with the direction that it reach a reasoned decision.

Finally, it is necessary to consider the recent decision of the Canadian Supreme Court in Baker v Canada (Minister of Citizenship and Immigration).[114] The judgement of the majority (not dissented from on this point by the two concurring judges)[115] was delivered by L'Heureux-Dubé J. The case concerned an application by a woman with Canadian-born dependent children to set aside a deportation order. The application was unsuccessful, but she claimed she was given no reasons for that rejection. Her case before the Court was that 'the duty of fairness, in these circumstances, requires that reasons be given by the decision-maker'.[116] The Court affirmed the proposition that the duty of fairness does not generally require reasons and then noted '[i]n England, a common law right to reasons in certain circumstances has developed in the case law...'. [117]

Express reference was made to Cunningham and Doody. Her Ladyship concluded:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of [such a] decision to those affected ... militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. [118]

The Court nevertheless held that the notes provided by the case officer were a sufficient record of the reasons for making the decision and hence the obligation had not been contravened.

As already noted, the reason for this excursus into the common law obligation is to note that it is grounded firmly in the doctrine of procedural fairness and that a failure to comply will, in appropriate circumstances, lead to the decision being set aside and not merely an order directing the provision of adequate reasons. Further, in tandem with the obligation to act on logically probative material, addressed below, the obligation to provide reasons suggests a further obligation to decide rationally.

Another aspect of procedural fairness

It has always been understood that the content of the obligation of procedural fairness is flexible and will depend on the circumstances in which it arises. Where a statutory provision describing procedural rights is expansive, the scope of the common law will not be an issue. Where statutory provisions expressly provide an exclusive code, again the scope of any common law obligation will not usually be in issue. However, where there is a statutory procedural scheme which is not stated to be exclusive, there may well be a question as to the implication to be drawn for the content of the overall obligation.[119]

A further question, not clearly resolved in Kioa v West [120] ('Kioa') concerns the full extent of the duty, expressed by Mason J in that case as 'a common law duty to act fairly, in the sense of according procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention.'[121] In Haoucher v Minister for Immigration and Ethnic Affairs[122] McHugh J identified the legitimate expectation of a person seeking a benefit or privilege as being that 'he or she is entitled to be informed of the matters which are relied on to defeat his or her expectation.'[123]

Similarly, in Minister for Immigration and Ethnic Affairs v Teoh[124] McHugh J repeated the broad terminology adopted by Mason J in Kioa that the obligation involves bringing to a person's attention 'the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.'[125] Any limit on the nature of the material which should be disclosed would also be inconsistent with the broad definition of the duty espoused by Deane J in Australian Broadcasting Tribunal v Bond ('Bond').[126]

Although Kioa (and most subsequent cases) concerned material personal to an applicant, there is no specific reason to restrict the obligation in that manner. Until the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah,[127] discussion of this aspect of the duty had been limited, although Wilcox J had rejected any such limitation in Lek v Minister for Immigration, Local Government and Ethnic Affairs.[128]

Miah not only confirmed that conclusion, but also demonstrated the unwillingness of the Court to infer from statutory provisions which, although labelled as a 'code', clearly did not extend to all aspects of procedural fairness, an implication that some other aspects of procedural fairness should be excluded. Miah involved a review of a primary decision with respect to a refugee application. The question concerned the disclosure of country information, which did not emanate from the claimant and was relied upon by a decision-maker in a manner which was not readily foreseeable and which was adverse to his claim.


The third basis upon which the Federal Court has recently sought to avoid the constraints imposed by Part 8 of the Migration Act is by use of the so-called 'no evidence' ground, which appears in Part 8 in similar form to that contained in the ADJR Act. The ground derives from two provisions in s 476 of the Migration Act, which provide:

(1) Subject to sub-section (2), application may be made for review by the Federal Court ... on any one or more of the following grounds: ...
(g) that there was no evidence or other material to justify the making of the decision; ...
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could be reasonably satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

In Curragh Queensland Mining Limited v Daniel[129] ('Curragh') the Chief Justice, with whom Spender and Gummow JJ agreed, adopted the following basic analysis of the second limb:

The first proposition is not a real constraint on the operation of sub-section (4)(b): if a fact were jurisdictional, its non-existence would provide a separate ground of review on the basis of facts to be determined by the Court. That aspect of the matter may be disregarded for present purposes.

The second and third requirements are critical to the approach adopted by the Full Court. The first question is what constitutes a 'fact' for these purposes. It may be accepted that the reference to a 'fact' is not limited to a reference to the ultimate issue. Nor, given the presence of paragraph (a), should it be limited to those particular matters which are pre-conditions to the relevant decision being made. However, it is significant that paragraph (a) refers to 'a particular matter' being established, on the basis of evidence or other material, whereas paragraph (b) speaks of 'a particular fact', which did or did not exist. One reason for the different terminology is that paragraph (a) may be taken to refer to both primary facts and the inferences which might reasonably be drawn from them, whereas paragraph (b) refers only to facts, as opposed to inferences. This is consistent with the analysis provided by Mason CJ in Bond.[130] The distinction flows from three passages in his Honour's judgement:

The question whether there is any evidence of a particular fact is a question of law. ... Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... . So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In accordance with what I have already said, a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing.

Analysis of the approach taken by the Full Court in Curragh requires a brief reference to the circumstances of the case. Curragh sought a concessional rate of duty on imported equipment. The Comptroller-General of Customs was entitled to apply the concessional rate in certain circumstances. Those circumstances included that the imported goods were goods for which a suitable equivalent, manufactured in Australia, 'is not reasonably available'. The Comptroller-General declined to exercise his power because he was not satisfied that a suitable Australian equivalent was 'not reasonably available'. The critical question, in relation to availability, was the time at which Curragh required the equipment. That depended upon when it needed to mine the coal for which the equipment was needed. Black CJ stated:

The finding of fact that Curragh could have had a later date for the supply of coal was a finding of a particular fact upon which the decision was based. It was a finding that was critical to the decision in several ways. [131]

Evidence was tendered before the primary Judge in that case, which was not available to the decision-maker. Of that material, the Chief Justice stated:[132]

In my view, the unchallenged evidence of both witnesses was such that the only finding reasonably open was that a materially later delivery date could not have been achieved and that the facts as to a later delivery date upon which the decision-maker based his decision did not exist.

In Bond, the Chief Justice referred to the ground as requiring 'proof of the non-existence of a fact critical to the making of a decision'.[133] That concept was developed by Black CJ in Curragh in the following terms:

A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. [134]

The correctness of the approach adopted in Curragh must be assessed against a consideration of the purpose of the ground.

The primary ground, subject to two conditions clearly intended to be restrictive, is that there was 'no evidence ... to justify the making of the decision.' This formulation requires the identification of 'the decision'. In relation to Migration Act decisions about refugee claims the judgement of the majority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang held:

A condition of determination is the Minister's satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. This is the 'decision' for which provision is made by the Act. [135]

The next step in the analysis is the proposition that neither the ADJR Act, nor Part 8 of the Migration Act, were intended to expose to judicial review 'all findings of fact, or the generality of them'.[136] For that reason, findings of fact are not, as such, reviewable. Further, as was said in Bond in relation to the scheme of the AAT Act and the ADJR Act, so it may be said in relation to the scheme of Parts 7 and 8 respectively of the Migration Act, that the two elements 'draw a sharp distinction between errors of fact and errors of law.'[137]

After considering whether the equivalent 'error of law' and 'no evidence' grounds in the ADJR Act should be treated as mutually exclusive, Mason CJ stated:[138]

However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. The better view, one which seeks to harmonise the two grounds of review, is to treat "error of law" ... as embracing the "no evidence" ground as it was accepted and applied in Australia before the enactment of the AD(JR) Act and to treat the 'no evidence' ground ... as expanding that ground of review in the applications for which pars (a) and (b) of section 5(3) make provision.[139]

At common law, a decision could only be set aside for want of evidence if the want of evidence went to a fact which had to be established to support a positive decision. A failure to be satisfied was not subject to the same analysis. Thus, in Azzopardi v Tasman UEB Industries Ltd Glass JA noted:

To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. ... The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof. [140]

Whilst it is not appropriate to speak of onus of proof in relation to administrative decision-making, the need for satisfaction of a particular fact, involves the same danger of masking by use of double negatives.

A further question as to the scope of the common law arises from Azzopardi, namely whether a finding of primary facts, as opposed to ultimate facts in issue, could ever give rise to a question of law.[141] However, par. (4)(b) resolves this question in favour of the wider approach.

The next question is whether, and to what extent, the statutory scheme expanded the common law 'no evidence' ground. The historical background to the statutory scheme was discussed by Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal.[142] As his Honour noted, the origin of the ground may be found in the report of the committee chaired by the then Solicitor-General, RJ Ellicott QC, entitled 'Review of Prerogative Writ Procedures'.[143] The Explanatory Memorandum which accompanied the ADJR Bill stated:

The inclusion of this ground as formulated may have the effect of widening the grounds on which the courts would grant relief in Australia. The formulation is intended to embody the reasons for decision of the House of Lords in the Tameside case.[144]

As noted by Wilcox J, the case referred to is Secretary of State Education and Science v Tameside Metropolitan Borough Council,[145] in which there was a challenge to a direction given by the Secretary of State to the Council. The statutory provision under which the direction was issued required that the Secretary of State be satisfied that the relevant authority had acted or was proposing to act 'unreasonably' with respect to the exercise of its powers under the Act. The relevant passage in the opinion of Lord Wilberforce stated:

If a judgement requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must enquire whether those facts exist, and have been taken into account, whether the judgement has been made upon a proper self-direction as to those facts, whether the judgement has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgement, however bona fide it might be, becomes capable of challenge. ...[146]

The analysis in Tameside involved two stages. The ultimate matter, absent satisfaction of which the Secretary had no power to act, was whether the Council was proposing to act 'unreasonably'. Lord Wilberforce was prepared to assume that the Secretary had asked himself the right question:[147] the issue was whether there were facts upon which it could be said that the position taken by the Council was such that no reasonable authority could adopt it. Their Lordships were positively satisfied that there were no such facts.

If it was intended to give effect to this approach, the statutory provision must be read as involving two limbs which are logically related. Accordingly, if the primary 'no evidence' ground has operation only where a statutory power has been exercised, there is nothing in the sub-section which would extend the ground to cases where the power was not exercised for want of the relevant satisfaction. It follows that Curragh, in applying the equivalent provision of the ADJR Act to a decision that the decision-maker was not satisfied of the ultimate fact in issue, expanded Tameside significantly. It did so without discussion as to whether the extension was justified. It is clearly arguable, in accordance with the underlying purpose of the 'no evidence' ground that such an expansion was not appropriate.

Other federal court authority

This ground has been addressed in four recent Full Court decisions in the Federal Court.

In Abdalla v Minister for Immigration and Multicultural Affairs[148] the Full Court applied the 'no evidence' provision in relation to an assumption by the Tribunal that the applicant came from Gedo in Somalia.[149] The judgement is far from satisfying in terms of the legal analysis. The Full Court set out material from which it might have been inferred that the applicant came from Gedo.[150] Further, at no stage did the Court apply the 'critical fact' test.

In Yilan v Minister for Immigration and Multicultural Affairs[151] the possible operation of the ground was considered.[152] The fact in question was a finding by the RRT that no demonstration concerning Kurdish rights had occurred in Ankara on a particular date. The Tribunal concluded that the applicant could not have been arrested at the demonstration, as she claimed. Some material was presented to the Court to establish that a demonstration had indeed occurred on the date in question. It failed in its purpose. Accordingly, the ground was not made out. However, the Full Court noted that there was an underlying constructional question namely whether the 'no evidence' ground could ever apply to a finding that a particular event did not happen.[153] That question was not decided.

The third decision of the Full Court was Vichlenkova v Minister for Immigration and Multicultural Affairs[154]. The leading judgement in that case was that of Heerey J, in which his Honour referred back to an analogy which he had drawn in the earlier decision of Fernando v Minister for Immigration and Multicultural Affairs.[155] In the earlier case he had noted:

In the circumstances of the present case the appropriate metaphor is not the chain or the fork in the road, but rather the net. A net does not necessarily fail because one or more of its constituent strands fail. It all depends on how strong the remaining strands are and the size or mass or power of the object which the net is being used to restrain or support. There were a number of other strands, unchallengeable in a review of this nature, which supported the Tribunal's conclusion. The Tribunal, which heard the applicant in person and engaged in dialogue with him, simply did not accept him as a truthful person.

In Vichlenkova, the same analysis was adopted.[156] However, in that case Carr J, with whose further remarks Tamberlin J agreed, made a further statement:[157]

Furthermore, in my view, the factual assessments made in relation to the credibility of the Appellant which the Appellant challenged in this appeal, were not facts of the type referred to in section 476(4) of the Migration Act. There was, in my view, no appellable error in the essential factual conclusions reached by the Tribunal concerning past persecution. There was ample evidence upon which it was open for the Tribunal to make the factual conclusion on which it had based its decision, namely, that the applicant had not been persecuted for reasons of her partial Chechen ethnicity.

Although the argument is not made explicit, it appears that his Honour was of the view that the 'particular facts', perhaps in order to be 'critical' facts, must have gone directly to the ultimate issue for the Tribunal.

More recently the Full Court appears to have expanded this ground even further, to allow the Court to review a decision as to credibility. In Minister for Immigration and Multicultural Affairs v Rajamanikkam the Full Court stated:

Often, the Tribunal rejects a visa applicant's claim because the applicant is found not to be a credible witness. There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in section 476(4)(b). [158]

Position in England

The English authorities in relation to review of wrong findings of fact are discussed by Aronson and Dyer in Judicial Review of Administrative Action.[159] They need not be reviewed here. However, there is a line of authority, including in the House of Lords, for the view that a decision based upon a fact for which there was no evidence and which was proved not to exist may be set aside, whether or not the fact was the basis for a finding in terms of paragraph (a) of the statutory provision, if the fact could be said to be 'decisive'.[160]


In a number of cases discussed above, mainly in the area of refugee claims, it has been suggested that the Federal Court has sought to stretch the boundaries of judicial review to allow it to set aside what appeared to be unsatisfactory decisions. As many of the cases are claims for protection visas, it may be suggested that 'hard cases make bad law': refugee claims often appear to be, and perhaps often are, cases which cry out for a flexible and sympathetic application of the broad principles found in the Convention.

But the aphorism has a pejorative tone: it invites the inference that judges are regularly distracted from their judicial obligations by a wish to 'do the right thing' by the individual claimant. If there is such a pattern of decisions, it demands a further enquiry. One lesson to be derived from such an enquiry may be that the Court is seeking to affirm, rather than undermine, the proper judicial role. There may be disquiet at the idea that the Parliament can legislate for an 'unfair' process of administrative decision-making by trying to put review beyond the reach of the average claimant - by requiring them to seek such relief in the High Court alone. Further, a basic understanding of our Constitutional structures suggests that such a role is inappropriate for the High Court. Accordingly, an attempt to relieve the High Court of its burden, without disadvantaging the parties, may be an understandable, if subconscious, tendency.

The cases discussed above also highlight the difficulty, accepted by Brennan J in his summary in Quin of the role of judicial review,[161] in identifying the contentious boundary between fact-finding and law. Attempts to draw the line are not possible, absent a clear understanding of the policies and values which underlie the exercise. Whilst this jurisdiction is the bread and butter of the Federal Court's work, it is disappointing that there is not more recitation, if not analysis, of the principles which underlie judicial review as challenges are upheld.

[*] I should thank many people for their contribution to my understanding of the topics touched on in this paper. At the risk of failing to do justice to many, may I thank Prof Mark Aronson for his comments on the appropriate scope of the paper, Neil Williams for his assistance with various arguments and Kathleen Crawley for assistance with research. I recommend, for a much more comprehensive and instructive review of the recent cases, John MacMillan's paper "Federal Court v Minister for Immigration" [1999] AIAdminLawF 8; (1999) 22 AIAL Forum 1.

[1] (1990) 170 CLR 1, 35–36.

[2] Cited in the majority judgement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

[3] See United Nations Convention Relating to the Status of Refugees 1951, opened for signature 28 July 1951 (entered into force 22 April 1954), Art 1A(2).

[4] Migration Act, s 476(2).

[5] Migration Act, s 476(3).

[6] This issue was identified obiter by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, paras 130-140.

[7] See Aronson, 'The Resurgence of Jurisdictional Facts' (2001) 12 Pub Law Review 17.

[8] See generally Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135.

[9] Section 5(9).

[10] Generally speaking, interlocutory injunctions are not sought: where the review process has been properly instituted and is being pursued on available grounds, steps are not taken to remove litigants during the course of the review proceedings.

[11] Section 36(2).

[12] [1999] HCA 14; (1999) 197 CLR 510, para 107.

[13] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177.

[14] Contained in s 476(3)(d) and (e).

[15] See now Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 75 ALJR 1105, paras 48-51 (Gaudron J), 76-83 (McHugh, Gummow and Hayne JJ, Gleeson CJ concurring), cf 211 (Callinan J).

[16] Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132, 160 (Dawson and Gaudron JJ).

[17] See discussion in judgment of Madgwick J in Minister for Immigration and Multicultural Affairs v Bhardwaj [1999] FCA 1806 para 16; upheld on appeal– [2000] FCA 789; (2000) 99 FCR 251, but subject to a further appeal reserved in the High Court.

[18] Whether an exercise of power could ever be treated as a nullity absent jurisdictional error is doubtful.

[19] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52.

[20] But see discussion of the inter-relationship of equitable and administrative law remedies in Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135; Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247.

[21] It must also be noted that the Migration Act seeks to preclude remitter under s 44 of the Judiciary Act 1903 (Cth) of any matter in relation to which the Federal Court does not have power under Part 8 of the Migration Act: s 485(3). Similarly, there is an exclusion of jurisdiction in the Federal Court pursuant to s 39B of the Judiciary Act, to the extent that that jurisdiction would exceed the jurisdiction conferred by Part 8: s 485(1).

[22] See also Morling and French JJ in a joint judgement in David Jones Finance and Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484, 491-497.

[23] [1995] HCA 23; (1994-95) 183 CLR 168, 178-180 (Mason CJ) and 204-207 (Deane and Gaudron JJ) 231-2 (Toohey J). See also Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 24-28; David Jones Finance was disapproved on a separate issue: 183 CLR, 185-186 (Mason CJ), 239-242 (McHugh J).

[24] For example, Re Coldham; Ex parte Brideson [1989] HCA 2; (1988-89) 166 CLR 338, 349: see also Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1996-97) 191 CLR 602, 632-633 (Gaudron and Gummow JJ; Brennan CJ, Dawson and Toohey JJ agreeing).

[25] [1968] UKHL 6; [1969] 2 AC 147.

[26] In particular, 166 ff. See also Hayne J in Ex parte Aala, above n.19, para 168.

[27] Encompassing within that concept a contravention of procedural fairness and want or excess of power: 166.

[28] See Aronson and Dyer, above n.23, 166-167.

[29] See discussion in Oates v Attorney-General [1998] FCA 775; (1999) 84 FCR 348.

[30] Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1989-90) 169 CLR 648, 679-80 (McHugh J).

[31] See discussion in Wik Peoples v Queensland (1996) 187 CLR 1, 177-184 (Gummow J).

[32] Cowen & Zines, Federal Jurisdiction in Australia (2nd ed, 1978), 52 and, identifying the Royal Commission, xvii.

[33] See Cowen & Zines, ibid and Administrative Decisions (Judicial Review) Act 1977 (Cth).

[34] Above n.19

[35] The operation of s 75(v) is, of course, ambulatory in the sense that it will have application to a new statutory regime such as that provided by the Migration Act with respect to protection visas (to the extent that it would in 1901, had such a regime then existed).

[36] [1970] HCA 61; (1970) 122 CLR 69, 77.

[37] That such matters of degree may be involved is also apparent from the Court's treatment of the term "aliens": see Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101, 109 (Gibbs CJ) and Nolan v Minister for Immigration & Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, 134 and 186.

[38] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [1910] HCA 33; (1910) 11 CLR 1 and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. Ltd (No. 1) [1914] HCA 15; (1914) 18 CLR 54.

[39] [2000] HCA 57; (2000) 176 ALR 219.

[40] Ibid paras 164-166.

[41] Ibid para 25.

[42] Ibid para 34.

[43] Gleeson CJ agreed with the reasons of Gaudron and Gummow JJ; Kirby J gave a separate judgment to similar effect, at paras 135-137 and 141-142. Callinan J found it unnecessary to address the issue as perogative relief would have been available at the time of Federation for the breach of the rules of natural justice identified in the instant case: para 216.

[44] The Hickman principle relied on by Hayne J is itself likely to attract further attention in due course.

[45] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356.

[46] Under paras (a) or (e) of s 476(1).

[47] [1999] HCA 21; (1999) 197 CLR 611.

[48] [2001] HCA 30; (2001) 75 ALJR 1105.

[49] See Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023; (2000) 179 ALR 495, subject to an appeal before the High Court.

[50] Section 476(1)(a).

[51] That there was no exclusive code in relation to primary decision-making was addressed by another s 75(v) case, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889.

[52] [1997] FCA 603; (1997) 71 FCR 300.

[53] [1999] HCA 21; 197 CLR 611 at para 49 (Gleeson CJ and McHugh J).

[54] The best known example is s 13 of the ADJR Act, but more relevant to the case law discussed below, there is express provision to similar effect imposing an obligation on the Refugee Review Tribunal: Migration Act, s 430.

[55] See, eg, Administrative Appeals Tribunal Act 1975, s 43(2) and (2B).

[56] Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13(1).

[57] See also s 368 in relation to the Migration Review Tribunal.

[58] [1996] FCA 1342; (1996) 62 FCR 402.

[59] [1990] FCA 383; (1990) 24 FCR 564.

[60] 24 FCR at 573.

[61] [1971] 1 NSWLR 376 (CA (NSW)).

[62] [1985] HCA 10; (1984-85) 155 CLR 422, 445-446.

[63] [1997] FCA 1415; (1997) 151 ALR 647, 656-659.

[64] Pettit v Dunkley, above n 61; Apps v Pilet (1987) 11 NSWLR 350 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725; Yates Property Corp Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639. See now Health Care Complaints Commission v Beck [1999] NSWCA 236 (15 July 1999) approving dissenting views of Fitzgerald P in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; (1996) 2 Qd R 462 at 475.

[65] Support for his Honour's reasoning was recently given by Kiefel J in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, a decision of the Full Court (Black CJ, Sundberg, Katz and Hely JJ, Kiefel J dissenting on this point).

[66] Section 478(1)(b).

[67] Section 478(2).

[68] See s 430D(1).

[69] [1999] FCA 1681; (1999) 95 FCR 506.

[70] (1999) 95 FCR 925.

[71] [2000] FCA 845; (2000) 98 FCR 469.

[72] [2001] HCA 30; (2001) 75 ALJR 1105.

[73] See s 430(1)(a).

[74] See s 430(1)(b).

[75] In a series of cases, the Federal Court has upheld an obligation 'to give proper, genuine and realistic consideration upon the merits': Kahn v Minister for Immigration, Local Government and Ethnic Affairs; Broussard v Minister for Immigration and Ethnic Affairs; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs. See also Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1, 12-13.

[76] Ibid para 55.

[77] [1990] HCA 33; (1990) 170 CLR 321, 356.

[78] [1966] HCA 69; (1966) 116 CLR 644, 654.

[79] [1990] HCA 33; (1990) 170 CLR 321 at 356. See also discussion of 'perversity' in Bruce v Cole (1998) 45 NSWLR 163, 188-189 (Spigelman CJ), and in the judgments of the Chief Justice and Fitzgerald JA in Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161.

[80] Because it is expressly excluded by s 476(2)(b) of the Migration Act.

[81] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, paras 123-127; see characterization of 'discretion' in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348, para 19.

[82] Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 (21 December 2000) Lee J, paras 35-36.

[83] Migration Act, s 476(1)(a).

[84] Particularly, the majority judgment in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741; (1999) 95 FCR 425, followed by Kiefel J in Singh (in dissent). And see the approach taken to the statutory obligation to provide an opportunity to appear before the Tribunal (s 425) in Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193; (1999) 55 ALD 365, paras 31-36.

[85] Section 476(3)(d).

[86] [2000] FCA 845; 98 FCR 469, para 106.

[87] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 75 ALJR 1105 at para 78.

[88] (1998) 45 NSWLR 163, 186G-7C and 187G-189G. Compare the discussion in the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) CLR 611, paras 130ff concerning the irrational formation of an opinion by the decision-maker.

[89] With whom Mason P, Priestley, Sheller and Powell JJA agreed.

[90] Ibid 189E-F.

[91] Ibid 189G.

[92] Section 476(1)(a).

[93] [1984] 3 NSWLR 447

[94] (1985-86) 159 CLR 656.

[95] Ibid 662.

[96] [1991] 4 All ER 310.

[97] Ibid 317-319 and see 159 CLR 656, 664-5.

[98] Ibid 318j.

[99] R v Immigration Appeal Tribunal; Ex parte Kahn (Mahmud) [1983] QB 790, 794-5.

[100] 159 CLR 656, 664; cf [1991] 4 All ER 319.

[101] Ibid 322d.

[102] Ibid 323j.

[103] [1993] UKHL 8; [1994] 1 AC 531.

[104] Ibid 564E-F.

[105] Ibid 564H.

[106] Ibid 565F-G.

[107] [1993] EWHC Admin 5; [1994] 1 WLR 242.

[108] Ibid 257-8.

[109] The question, not expressly addressed, was whether, absent proper reasons for it, the underlying decision was incomplete or invalid.

[110] In the particular circumstances the question may have been whether aspects of the decision were severable.

[111] [1993] EWHC Admin 5; [1994] 1 WLR 242.

[112] Ibid 263. The reference to a need for leave was a reference to the requirements of the Supreme Court Act 1981 (UK) s 31(3).

[113] [1997] 1 WLR 765.

[114] [1999] 2 SCR 817.

[115] Cory and Iacobucci JJ.

[116] Ibid para 35.

[117] Ibid para 41.

[118] Ibid para 43.

[119] It will be rare that a partial statement of procedural rights gives rise to an implied exclusion of other rights: see Baba v Parole Board of NSW (1986) 5 NSWLR 338, 334- 5 (Hope JA), 347 (Mahoney JA) at 349 (McHugh JA), cited with approval in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).

[120] [1985] HCA 81; (1985) 159 CLR 550.

[121] Ibid 584.

[122] [1990] HCA 22; (1989-90) 169 CLR 648, 683.

[123] Ibid 657 (Dawson J).

[124] [1995] HCA 20; (1995) 183 CLR 273, 312.

[125] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587.

[126] [1990] HCA 33; (1990) 170 CLR 321, 366-367.

[127] (2000) 75 ALJR 889.

[128] [1993] FCA 297; (1993) 43 FCR 100, 129; see also David v Minister of Immigration, Local Government and Ethnic Affairs (Wilcox J, unrep 12 October 1995).

[129] [1992] FCA 44; (1992) 34 FCR 212 (Black CJ, Spender and Gummow JJ).

[130] [1990] HCA 33; (1990) 170 CLR 321, 355-360.

[131] [1992] FCA 44; 34 FCR 212, 221.

[132] Ibid 225.

[133] [1990] HCA 33; 170 CLR 321, 357-358.

[134] [1992] FCA 44; 34 FCR 212, 220-221.

[135] (1996) 185 CLR 259, 274-275.

[136] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 341.5.

[137] Ibid 357.5.

[138] Ibid 358.4.

[139] The equivalent of s 476(4).

[140] (1985) 4 NSWLR 139, 156 (Glass JA, Samuels JA agreeing).

[141] (1995) 4 NSWLR 139, 156.

[142] (1986) 70 ALR 147, 155-157.

[143] Paras 41, 42 and 43.

[144] Para 22, set out in 70 ALR, 156 (10).

[145] [1976] UKHL 6; [1977] AC 1014 (HL).

[146] [1977] AC 1047 D-E.

[147] [1977] AC 1051E and 1052D.

[148] (1998) 51 ALD 11 (Burchett, Tamberlin and Emmett JJ).

[149] There was no doubt that she came from Somalia and was a member of the Marehan clan.

[150] 51 ALD 11, 16(30)-(40).

[151] [1999] FCA 854; (1999) 55 ALD 600 (French, RD Nicholson and Finkelstein JJ).

[152] Paras 57-59.

[153] Ibid para 59.

[154] [1999] FCA 1338.

[155] [1999] FCA 962 para 26.

[156] Ibid para 17.

[157] Ibid para 25.

[158] [2000] FCA 1023; (2000) 179 ALR 495 para 21.

[159] (2nd ed) Chapter 5 Part 4.

[160] See Wade and Forsyth, Administrative Law (7th ed) 318-320.

[161] See above, Introduction.

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