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Bennett, Lyria --- "Re Minister for Immigration and Multicultural Affairs; ex parte Miah: A statute in the eye of its beholder" [2001] FedLawRw 22; (2001) 29(3) Federal Law Review 437

owing to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.[4]

Section 65 is the operative provision in relation to the power of the Minister for Immigration and Multicultural Affairs (Minister) to grant or refuse to grant visas (including protection visas). That section provides that, if satisfied that all relevant criteria have been satisfied, the Minister is to grant the visa and, if not so satisfied, is to refuse to grant the visa. Section 496 provides that the Minister's powers under s 65 can be exercised by an appointed delegate. For convenience, I have referred throughout this comment to the relevant decision-maker as 'the Minister', rather than referring to 'the Minister or his or her appointed delegate'.

The Refugee Review Tribunal (RRT) has the power to affirm, set aside or vary the Minister's decision to refuse to grant a protection visa provided the applicant was in the migration zone when the decision was made and the Minister has not issued a conclusive certificate in relation to the decision.[5] The Minister's decision could not have been the subject of an application for review in the Federal Court.[6] The Act does not (nor could it) prevent an applicant applying to the High Court for constitutional writs (also known as prerogative writs) in relation to the Minister's decision.


Mr Miah was a citizen of Bangladesh who had entered Australia on 9 March 1996. With the assistance of a firm of solicitors, he applied for a protection visa on 1 April 1996. In that application, he claimed to fear persecution by certain fundamentalist Muslims, in particular those associated with the Jamat-i-Islam party. Mr Miah claimed that the government would not protect him because it supported the fundamentalists.

After Mr Miah's application was lodged, elections were held in Bangladesh and the Bangladesh Nationalist Party was replaced by the Awami League. Mr Miah's application had referred to the fact that the Awami League had once considered forming an alliance with Jamat-i-Islam and had dealt with the relationship between the Bangladesh Nationalist Party and Jamat-i-Islam in more detail.

The application was refused by a delegate of the Minister for Immigration and Multicultural Affairs ('Delegate') on 13 May 1997. As required by the Act, the Delegate gave reasons for the decision. Although he was prepared to accept the applicant's account of what had happened, he stated:

While the government has reportedly failed at times to denounce, investigate or prosecute the Islamic extremist attacks on religious minorities and women, there is no indication that it is totally powerless to stop those violations of other people's rights. The current government can still be said to be capable of offering persons like the applicant effective protection against the religious fundamentalists.[7] (emphasis added)

On this basis, the Delegate refused to grant the prosecutor a protection visa.

Ten days later, Mr Miah instructed his solicitors to apply to the RRT for a review of the Delegate's decision. Due to a mistake at the solicitors' office, the application was not filed until after the time within which Mr Miah could apply to the RRT had expired.[8] He twice asked the Minister for permission (pursuant to s 48B of the Act) to make a fresh protection visa application and each time was refused.[9] In December 1999, Miah applied to the High Court seeking writs under s 75(v) of the Constitution. McHugh J granted an order nisi for prohibition, certiorari and mandamus on 17 January 2000, and the matter was referred to the Full Court for hearing. There were two grounds in the application, being that the Delegate had failed (constructively or otherwise) to exercise his jurisdiction and that the Delegate had failed to comply with natural justice.

The prosecutor succeeded before the High Court, Gleeson CJ and Hayne J dissenting in a joint judgment. Gaudron, McHugh and Kirby JJ held that the Delegate had failed to accord the prosecutor natural justice. Gaudron J also found that the Delegate had constructively failed to exercise his jurisdiction; Gleeson CJ, Kirby and Hayne JJ reached the opposite conclusion and McHugh J did not need to decide this issue.


The prosecutor submitted that the Delegate had asked whether the government had the power to protect the applicant when it should have asked whether the government would willingly do so. It was submitted that, in addressing the wrong question, the Delegate constructively failed to exercise his jurisdiction.

Three of the four judges who addressed this issue (Gleeson CJ, Hayne and Kirby JJ) found against the prosecutor on the basis that, on a fair and contextual reading of the Delegate's reasons, he was intending to express a conclusion about the practical likelihood of effective protection.[10] All three judges quoted passages from Minister for Immigration and Ethnic Affairs v Wu Shan Liang[11]: Gleeson CJ and Hayne J quoted the majority that reasons of an administrative decision-maker 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'[12] while Kirby J preferred to rely on his own formulation, being that judicial review of administrative decisions should avoid 'combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.'[13]

Gaudron J dissented on this point in finding that this was 'a clear case of constructive failure to exercise jurisdiction'.[14] Her Honour did not reach this conclusion on the basis of the prosecutor's submission.[15] Rather, she based her conclusion on the fact that, in her view, the Delegate had misunderstood the definition of 'refugee' contained in the Convention.

In order to understand her Honour's reasons, it is necessary to consider the position taken by her in Chan v Minister for Immigration and Ethnic Affairs.[16] In Chan, Gaudron J held that, once a person had a well-founded fear, that person's continuing fear ought to be accepted as well-founded unless 'it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality'.[17] Gummow J commented in Minister for Immigration and Multicultural Affairs v Eshetu[18] that Gaudron J's comments did not represent the view of the Court in Chan. In Miah,[19] Gaudron J accepted this but responded that there was no authority to the effect that what she had said in Chan was wrong.

In Miah, the Delegate had left open the possibility that the prosecutor had a well-founded fear of persecution when he left Bangladesh. Since that date, there had been a change in government. However, because the applicant feared persecution by persons acting independently of government, this fact was not of itself determinative of his claims. In Gaudron J's view, because of the prosecutor's continuing fear and history of persecution and because of the Delegate's finding that the current government had reportedly failed to denounce, investigate or prosecute Islamic extremist attacks, the Delegate was bound to consider whether Mr Miah's pre-existing fear could no longer be regarded as well-founded because of the change in government.[20] The Delegate also erred in considering whether 'people like Mr Miah' would be afforded effective protection rather than whether the government was willing and able to protect Mr Miah from a group that had already attempted to kill him.[21]


The approach adopted by Gaudron J risks substituting the concept of a 'continuing fear' for the words of the Convention.[22] If her Honour's position is correct, in considering the well-foundedness of an applicant's fear, it will be necessary to consider whether an applicant has had a well-founded fear at any time in the past. In my view, this additional requirement imposes an impermissible gloss on the Convention definition.


Following Re Refugee Review Tribunal; Ex parte Aala,[23] the Court agreed that a writ of prohibition may issue if a decision-maker fails to observe the principles of natural justice.[24]



In Kioa v West,[25] two different jurisdictional bases were proposed for the Court's power to intervene in decisions made contrary to the principles of natural justice.[26] Mason J stated that a decision-maker was under a common law duty to accord procedural fairness to a person whose rights, interests and legitimate expectations would be affected by the decision unless there was a 'clear manifestation of a contrary statutory intention'.[27] Brennan J expressed the test differently, stating that the principles of natural justice only arise as an implication drawn from legislation that delegates power to make administrative decisions.[28]

In Annetts v McCann,[29] the majority (Mason CJ, Deane and McHugh JJ) adopted Mason J's formulation in Kioa v West.[30] It is useful to set out the relevant passage from their Honours' judgment:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment... In Tanos[31], Dixon C.J. and Webb J. said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice...In Kioa v West[32], Mason J. said that the law in relation to administrative decisions "has now developed to a point where it may be accepted that there is 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."[33]

In Annetts v McCann[34] Brennan J maintained his view that it was the statute giving rise to the decision-making power, rather than common law, that gave the court jurisdiction to review decisions where the requirements of procedural fairness have not been observed. However, he also stated that the common law will usually imply a condition into a statute that grants decision-making power, namely that the power be exercised in accordance with the principles of procedural fairness.[35]

The question was again subject to comment in Re Refugee Review Tribunal; ex parte Aala.[36] Gaudron, Gummow and Hayne JJ stated that the same question arose whichever analysis applied, namely whether the statute has, on its proper construction, 'relevantly (and validly) limited or extinguished any obligation to accord procedural fairness'[37] or whether the obligation of procedural fairness asserted 'is compatible with the terms of the relevant legislation'.[38]

The views expressed by the High Court in Miah

Unfortunately, despite the apparent clarity in the law since Annetts v McCann[39], it would seem that the waters have once again become murky.[40] McHugh J unambiguously adopted the position taken by the majority (of which he was a member) in Annetts v McCann.[41] Gaudron J re-iterated her view in Aala[42] that the practical content of both formulations was the same for most purposes.[43] Gleeson CJ and Hayne J, on the other hand, adopted[44] Brennan J's approach in Kioa v West[45] and Annetts v McCann[46].

Kirby J's judgment is ambiguous on this issue. He formulates the test as whether the applicable principles of natural justice 'may be implied in the Act or added by the common law to the provisions of the code'.[47] Throughout his reasons, he uses language attributable to both approaches, on some occasions referring to the fact that the obligations of natural justice are 'imposed by law'[48] on the Minister and, on a different occasion, referring to the fact that the rules of natural justice are normally 'treated as implicit in legislation enacted by the parliament'.[49] Perhaps the closest he comes to an adoption of the 'common law' approach is in his discussion of s 69(1), discussed below.


In most circumstances, Gaudron J is clearly correct when she asserted that the jurisdictional basis for natural justice is often irrelevant. However, the difference can be important.[50] For the reasons explained below under the heading, 'Attempts to validate decisions', in my view the distinction had implications in this case.


The statutory context in which the Delegate made his decision is contained in Subdivision AB of Division 3 of Part 2 of the Act (Subdivision AB) headed 'Code of procedure for dealing fairly, efficiently and quickly with visa applications'. According to the explanatory memorandum, Subdivision AB would 'replace uncodified principles of natural justice with clear and fixed procedures which are drawn from these principles'.[51] Both of these are important; the explanatory memorandum is to be taken into account in interpreting the Act and the heading is part of the Act itself.[52]

Some relevant provisions in Subdivision AB can be set out briefly. Section 54(1) requires the Minister to have regard to all information set out in the application (including attachments) as well as information provided by the applicant prior to the Minister's decision.[53] Section 54(3) provides that the Minister may make the decision without giving an applicant an opportunity to make written or oral submissions. Section 56 provides:

(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant...
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

Section 57 sets out circumstances, which did not apply in this case, in which the Minister must give particulars of the relevant information to the applicant and invite comment.


It was alleged by the prosecutor that he did not have a sufficient opportunity to meet the case put against him because he was not given an opportunity to respond to relevant material that was adverse to his interests and that the decision-maker proposed to take into account. Natural justice will normally require that a person whose interests are likely to be affected by a decision be given such an opportunity.[54]

In this case, the 'relevant material' was the fact that the Delegate was proposing to reject the prosecutor's claim because the Awami League government would be able to offer Mr Miah 'effective protection' from those whom he feared.


Four judges (Gleeson CJ, Hayne, McHugh and Kirby JJ) addressed the question of whether the Delegate failed to comply with the relevant principles of natural justice in a multi-stage test. Although expressed differently in each judgment, the relevant questions can be summarised as follows:

(1) (a) Was the exercise of the power conditioned upon the principles of natural justice, or, more precisely, (b) was the exercise of the power conditioned upon the principle of natural justice invoked by the prosecutor;
(2) What does that principle of natural justice require in the circumstances;[55] and
(3) Did the decision-maker fail to comply with the relevant principle of natural justice, as described in (2).[56]


The Court rejected the Minister's argument that the 'Code of procedure for dealing fairly, efficiently and quickly with visa applications' was a code in the sense that it contained every obligation of natural justice with which the Minister was obliged to comply. In other words, the unanimous answer to question 1(a) above was yes. This is not surprising given that, as noted by Gleeson CJ, Hayne, McHugh and Kirby JJ, the code makes no reference to bias on the part of the Minister.[57]

Gleeson CJ and Hayne J, in dissent, answered question 1(b) in the negative. Their Honours referred to the following considerations as relevant to this finding:

Gaudron J placed a great deal of emphasis on the word 'fairly' in the heading to subdivision AB which, pursuant to the Acts Interpretation Act 1901 (Cth), forms part of the Act.[66] The presence of that word, according to her Honour, indicated that the powers were to be exercised so as to accord procedural fairness to a visa applicant. This included the discretionary powers conferred by s 54(3) (enabling the Minister to make a decision without giving the applicant an opportunity to make submissions) and 56(2) (allowing Minister to seek further information). Her Honour, therefore, did not need to consider the effect of the right of appeal, because an appeal could not 'deprive the provisions of Subdiv AB of the meaning and effect which the heading to that subdivision directs'.[67]

McHugh J answered question 1 affirmatively. McHugh J held that nothing in the Act expressed a sufficiently clear statutory intention to exclude the rules of natural justice.[68] In particular, the use of the word 'code' in the heading to Subdivision AB was insufficient, as was the fact that the 'code' mandated certain principles of procedural fairness.[69] McHugh J was reluctant to rely on the sentiments expressed in the explanatory memorandum,[70] especially in circumstances where the Minister's meaning, if adopted, would have serious consequences for visa applicants.[71] In favour of the prosecutor's construction of the Act, his Honour pointed to the use of the word 'fairly' in the heading of Subdivision AB and the fact that the Act implemented Australia's international obligations.[72]

McHugh J gave a detailed analysis of the relevant factors that a court should take into account when considering an argument that a right of appeal excludes or limits the requirements of natural justice. Although this addresses both question 1 and question 2, I have set those factors here. His Honour commenced by noting that a right of appeal will not necessarily exclude the rules of natural justice.[73] The factors referred to by McHugh J are as follows:[74]

Kirby J gave a detailed explanation as to why the Minister's 'code' argument failed. In his Honour's view, the rules of natural justice would be implied in the absence of the 'clearest possible indication to the contrary'.[75] He gave two justifications for this approach, being that the rules of natural justice are 'deeply entrenched'[76] and that jurisdiction to provide relief where a decision is made contrary to the rules of natural justice stems from the Constitution itself.[77] Kirby J stated 'courts will normally assume that an Australian parliament does not intend to work serious procedural injustice upon persons whose interests are adversely affected by legislation'.[78] In his Honour's view, the Act did not manifest a sufficiently clear intention to exclude the rules of natural justice because:

Kirby J rejected the proposition that the right to appeal renders the Minister's decision inconsequential so that the rules of natural justice that need to be complied with are excluded or limited. He pointed out that the Minister's delegates are statutory office-holders who are, in some respects, subject to obligations beyond the normal requirements of natural justice, making decisions that will, as a practical matter, have serious consequences.[84]


Gaudron J did not accept that there were any limits on the normal rule of natural justice that a person should have an opportunity to put a case and to meet the case put against him or her.[85]

McHugh J found that natural justice conditioned the Minister's exercise of the discretion in s 56 of the Act. In the circumstances of the Act, the Minister is not required to invite the applicant to comment on every relevant document (such as non-adverse, generally applicable material) but is required to invite comment on material that post-dates the application of which the applicant may be unaware and which is decisive against his or her refugee claim.[86] As his Honour pointed out, the case is even stronger where the material 'is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it'.[87]

Kirby J felt that the obligation of natural justice at stake, being one of the more important such obligations, was of particular importance because the prosecutor's response would have provided the Minister with additional information relevant to his or her decision. By depriving himself or herself of relevant information, the Minister was less likely to make a 'correct or preferable decision'.[88] Although he stressed that it was important to keep in mind the existence of a right to appeal, Kirby J concluded that there were many factors indicating that the Delegate was under an obligation to invite the prosecutor to comment on the change of government in Bangladesh.[89] The prosecutor had given an apparently reliable description of past violence and persecution; the practical consequences of the Delegate's decision were potentially great. The information known to the Delegate, namely the importance attached to the change of government in Bangladesh, was not confidential and was determinative of the outcome. There was no apparent urgency; the long delay between the lodging of the application and the date of the Delegate's decision would have allowed sufficient time for comment.

Three judges (Gaudron, McHugh and Kirby JJ) answered question 2 in a manner that required the Delegate to invite Mr Miah to comment on the change of government in Bangladesh. Because it was not in dispute that the Delegate had failed to do so, each of those judges concluded that the Delegate had failed to comply with the rules of natural justice, thereby answering question 3.


The next question that was considered was the effect of section 69 of the Act, which provided as follows:

Section 69(1)

Gaudron J, with whom McHugh J agreed,[90] stated that the words 'might be set aside if reviewed' in s 69(1) included review by the High Court pursuant to s 75(v) of the Constitution. In her view, s 69(1) merely ensured that the Minister's decision remained in force until such time as it was set aside on review. If it purported to exclude judicial review of a decision that exceeded the authority conferred by legislation, it would be unconstitutional.[91]

Kirby J disagreed with Gaudron J, expressing the view that s 69(1) was an attempt to limit judicial review.[92] However, his Honour observed that the subsection was of no application where the prosecutor's complaint was not non-compliance with Subdivision AB but rather 'failure to comply with a fundamental principle of natural justice not stated in that subsection but binding on the delegate nevertheless'.[93]

Section 69(2)

Both Gaudron and McHugh JJ had concluded that the Delegate was obliged to observe natural justice when exercising his powers under Subdivision AB.[94] In this case, the Delegate was required to invite the prosecutor to comment on the change of government in Bangladesh pursuant to s 56(1). By failing to do so, Gaudron J, with whom McHugh J agreed[95] found that the Minister had not dealt with the visa application in a way that complied with Subdivision AB and that s 69(2) was therefore irrelevant.[96]

Because Kirby J had concluded that the Delegate's error could not be classified as a failure to comply with Subdivision AB, he considered the application of s 69(2) in more detail than Gaudron J. In his view s 69(2) was of no effect because


As noted by Isaacs, Rich and Starke JJ in The Commonwealth v New South Wales,[98] the 'jurisdiction conferred by s 75 is beyond the power of Parliament to affect'.[99]

This principle does not prevent the legislature formulating the decision-making power to ensure that certain conduct does not prevent a decision being valid and lawful.[100] As the Court observed in Miah, the legislature can, by indicating a sufficiently clear intention, exclude certain principles of natural justice that would otherwise be implied.[101] For example, a statute may provide that, in making a particular decision, the decision-maker is not obliged to give any person affected by that decision an opportunity to be heard. However, to provide both that a decision-maker must give a person affected by his or her decision an opportunity to be heard and that failure to provide such an opportunity does not attract the writ of prohibition, would be unconstitutional. Similarly, provisions seeking to render decisions immune to judicial review are unconstitutional. The position is neatly summarised by Hayne J in Re Refugee Review Tribunal; ex parte Aala.[102]

None of the above prevents a statute from protecting a decision against a minor procedural irregularity.[103] Even if a privative clause falls into the 'unconstitutional' category, it does not necessarily follow that it is of no effect. In Hickman,[104] Dixon J pointed out that a privative clause purporting to limit judicial review:

is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.[105]

The logic behind this reasoning is that, where a decision-making power contains limitations (such as an obligation to accord procedural fairness to affected persons), and at the same time provides that the decision is valid despite those limitations having been ignored, the instrument should be read as a whole to give effect to the parliament's intentions within constitutional limitations. The 'Hickman principle' was approved in R v Coldham; ex parte Australian Workers' Union,[106] O'Toole v Charles David Pty Ltd[107] and DCT v Richard Walter Pty Ltd.[108]

On the basis of the above authorities, I would disagree with Kirby J that s 69(2), even if given a wide reading, is unconstitutional. The subsection provides that the Minister 'need not do' certain things, it therefore purports to limit the obligations on the Minister rather than validate an unlawful decision. I also disagree with his proposition that s 69(2) does not apply where Subdivision AB has not dealt with the relevant obligation. If the subsection is read in that way, it has no content; such interpretations should be avoided.[109] Finally, while I would agree that s 69(2) would not apply to 'unlawful decisions', in my view Kirby J's argument is circular, in that the effect of s 69(2) needs to be considered in determining whether the decision is lawful.

I stated earlier that the jurisdictional basis of natural justice was important in this case. Section 69(1) operates to 'protect' decisions that fail to comply with certain provisions of the Act. If the requirements of natural justice are implicit in Subdivisions AA and AB, then one must consider whether a decision made contrary to the principles of natural justice is (validly) protected by s 69(1). On the other hand, if the requirements of natural justice are properly seen as being imposed by the common law, s 69(1) is probably irrelevant. Similarly, whether a failure to comply with natural justice requirements is a failure to comply with Subdivision AA, AB and AC for the purposes of s 69(2), may depend on whether those requirements are implicit in or external to the Act.

Accordingly, it might follow from Kirby J's approach to s 69(1) that he prefers the view that the principles of natural justice are imposed by the common law rather than implied from the terms of the relevant statute.

I have some difficulties with the approach to s 69(2) adopted by McHugh J. Interestingly, Mr Basten QC, counsel for the prosecutor, conceded that s 69(2) would operate to deny relief to the prosecutor unless the jurisdictional basis for natural justice were found to be the statute itself.[110] It would have been useful if McHugh J had explained how Gaudron J's approach to s 69(2) could be justified on his assumption that the requirements of natural justice are imposed by the common law. It is possible that, in his view, the words 'complies with Subdivision AB' included common law obligations imposed on the exercise of discretionary powers contained in Subdivision AB, but this is not clear from his judgment.


The Minister submitted that the court should refuse relief on the ground of the applicant's delay in bringing proceedings. It is clear that the Court has a discretion as to whether to grant constitutional writs and that this discretion must be exercised judicially.[111] The majority (Gaudron, McHugh and Kirby JJ) were of the view that the delay had been explained and thus relief should be granted. Kirby J noted, in accordance with comments in R v Ross-Jones; ex parte Green[112] and Re Refugee Review Tribunal; Ex parte Aala,[113] that the writ of prohibition will issue 'almost as of right' in the case of want or excess of jurisdiction. Gleeson CJ and Hayne J obviously did not need to consider this issue.


Consequences for decisions under the Migration Act 1958 (Cth)

The finding that the 'code of procedure' in Subdivision AB is not an exhaustive list of the requirements of natural justice has serious practical consequences. Subdivision AB is not confined to protection visa applications, although some of the comments made by the High Court indicate that natural justice obligations might be less onerous in the case of other types of visas.[114]

Broader consequences

The High Court continues to require very clear words to be used when attempting to exclude the requirement for a decision-maker to comply with the usual requirements of natural justice. It is not sufficient to:

In my view, this makes it difficult for Parliament to provide for layered decision-making, where the initial decision is used to resolve applications that, on the papers, obviously fall within the prescribed criteria while providing other applicants with the right to a hearing at the next stage. In fact, it leaves open the possibility that it may be, for practical purposes, impossible.

Changes to Migration Act

The case of Miah was decided before the recent amendments to the Migration Act 1958 (Cth), some of which will have a significant effect on judicial review of decisions made under the Act. It is still the case that the decision in Miah could not be the subject of an application for review in the Federal Court.[115] In addition, it would now be classified as a 'privative clause decision'[116] and, as such, would be subject to s 474(1) which provides:

A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

The explanatory memorandum and second reading speeches relating to the amending Act[117] which introduced these changes express the government's hope that the 'Hickman principle' will apply. This would seem to be a rather unusual drafting technique, namely drafting a provision that is prima facie unconstitutional because the courts will, in the course of construing the Act as a whole, treat it as having an effect that is constitutional. The High Court's approach to s 474(1) remains to be seen.

[1] (2001) 179 ALR 238, [2001] HCA 22, decided by the High Court on 3 May 2001.

[2] LLB (UNSW), BSc (Hons) (UNSW). Associate to her Honour Justice Stone in the Federal Court of Australia. The opinions expressed in this comment are those of the author.

[3] (2001) 179 ALR 238.

[4] United Nations Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, Article 1A(2) and Migration Act 1958 (Cth), s 36(2).

[5] Migration Act 1958 (Cth), ss 411, 415

[6] Ibid, ss 475(2)(d), 485(1).

[7] Paragraph 3.4.3 of the Delegate's reasons set out at (2001) 179 ALR 238, 242[12].

[8] Migration Act 1958 (Cth), ss 412(1)(b), 414; Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407.

[9] Section 48A of the Migration Act 1958 (Cth) provides that, subject to s 48B, a non-citizen who has been refused a protection visa may not make a fresh application. Section 48B provides that the Minister may personally determine that s 48A does not apply to prevent a non-citizen making a fresh application for a protection visa.

[10] (2001) 179 ALR 238, 243-245[19]-[25] (Gleeson CJ and Hayne J) 287-288[197]-[202] (Kirby J).

[11] (1996) 185 CLR 259.

[12] Ibid 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287.

[13] Ibid 291 (Kirby J).

[14] Ibid 257[81].

[15] The prosecutor had submitted that the Delegate erred in only addressing the question of whether, in theory, the government could offer the applicant effective protection.

[16] (1989) 169 CLR 379.

[17] Ibid 415.

[18] [1999] HCA 21; (1999) 197 CLR 611, 658[150].

[19] (2001) 179 ALR 238, 254[69].

[20] Ibid 256-257[80]-[86]. As Gaudron J points out at 254[70], this may also involve a consideration of whether, if effective protection is available, the visa applicant would be unwilling to avail himself or herself of that protection due to well-founded fear.

[21] Ibid [84].

[22] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

[23] [2000] HCA 57; (2000) 176 ALR 219 221[5] (Gleeson CJ), 223[17] and 231[41] (Gaudron and Gummow JJ) 258[142] (Kirby J) 265[170]-[171] (Hayne J).

[24] Mandamus and certiorari are also available; ibid 244[84] (Gaudron and Gummow JJ) 258[142] (Kirby J).

[25] [1985] HCA 81; (1985) 159 CLR 550.

[26] For an interesting discussion of some broader issues arising out of this debate, see S Gageler, 'The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?' (2000) 28 Federal Law Review 303.

[27] Ibid 584.

[28] Ibid 609.

[29] [1990] HCA 57; (1990) 170 CLR 596.

[30] [1985] HCA 81; (1985) 159 CLR 550, 584.

[31] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396.

[32] [1985] HCA 81; (1985) 159 CLR 550, 584.

[33] [1990] HCA 57; (1990) 170 CLR 596, 598.

[34] Ibid 604.

[35] Ibid.

[36] [2000] HCA 57; (2000) 176 ALR 219.

[37] Ibid 231[41] (Gaudron and Gummow JJ).

[38] Ibid 264-265[168] (Hayne J).

[39] [1990] HCA 57; (1990) 170 CLR 596.

[40] May v Commissioner of Taxation [1999] FCA 287; (1999) 92 FCR 152, 160[22].

[41] (2001) 179 ALR 238, 266[126], Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598.

[42] [2000] HCA 57; (2000) 176 ALR 219, 231[41].

[43] (2001) 179 ALR 238, 258[90].

[44] (2001) 179 ALR 238, 251[52]-[53].

[45] [1985] HCA 81; (1985) 159 CLR 550, 609.

[46] [1990] HCA 57; (1990) 170 CLR 596, 605.

[47] Ibid 278[170].

[48] Ibid 282[179] and 283[182]

[49] Ibid 282-283[181]

[50] For example, where the duty to accord procedural fairness is implied by common law, there might be a basis for concluding that the duty applies to the exercise of non-statutory powers by public bodies; see P Bayne, 'The common law basis of judicial review' (1993) 67 ALJ 781.

[51] Explanatory memorandum to the Migration Reform Bill 1992 (Cth) par 51.

[52] Acts Interpretation Act 1901 (Cth) ss 13(1), 15AA, 15AB(2)(e).

[53] Ibid, s 55 permits an applicant to provide additional relevant information to the Minister at any time before the Minister makes the decision.

[54] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J) and 628-629 (Brennan J), FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 350 (Gibbs CJ).

[55] This derives from Brennan J's colourful description of the principles of natural justice as 'chameleon-like'; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 612.

[56] (2001) 179 ALR 238, 246[29] (Gleeson CJ and Hayne J), 266-267[127]-[129] (McHugh J), 278[170].

[57] Ibid 249-250[43] (Gleeson CJ and Hayne J), 268[131] (McHugh J) and 282[180] (Kirby J).

[58] Ibid 247[34]

[59] Ibid 250[46], [49], s 54(3) of the Migration Act 1958 (Cth).

[60] Ibid 250[44]-[49].

[61] Citing Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106.

[62] (2001) 179 ALR 238, 247[35].

[63] Ibid [49].

[64] Migration Act 1958 (Cth) s 69(1); (2001) 179 ALR 238, 250[47]

[65] Migration Act 1958 (Cth) s 69(2); (2001) 179 ALR 238, 250[48]

[66] Acts Interpretation Act 1901 (Cth) s 13(1).

[67] (2001) 179 ALR 238, 260[96].

[68] Citing Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 598.

[69] (2001) 179 ALR 238, 266[126], 267-268[131], 269[139]; to conclude that the presence of some obligations indicated that Parliament did not intend to impose other obligations is to rely on the doubtful maxim expressio unius personae vel rei, est exclusio alterious.

[70] Explanatory memorandum to the Migration Reform Bill 1992 (Cth) par 51.

[71] (2001) 179 ALR 238, 268[132] relying on Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 520 (Mason CJ, Wilson and Dawson JJ), 532 (Deane J).

[72] (2001) 179 ALR 238, 267[128].

[73] Ibid 271[146] citing Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 (see [1976] HCA 58; (1976) 136 CLR 106 , 111 (Barwick CJ), 116 (Mason J), 118 (Jacobs J).

[74] (2001) 179 ALR 238, 271-274[146]. Many of these factors are derived from Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 and Calvin v Carr [1979] UKPC 1; [1980] AC 574.

[75] (2001) 179 ALR 238, 283[183].

[76] Ibid 282-283[181].

[77] Ibid 283[182].

[78] Ibid 283[183].

[79] Ibid 282[179].

[80] Ibid 282-283[180],[183].

[81] Ibid 282[179], Migration Act 1958 (Cth) s 501(5) provides that 'The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision...'.

[82] Ibid 284[186].

[83] Ibid.

[84] Ibid 283-284[184]-[185]. In particular, his Honour pointed out that the RRT rarely overturns decisions of the Minister and his or her delegates.

[85] Ibid 260[99].

[86] Ibid 269-270[141]-[143]

[87] Ibid 269-270[141].

[88] Ibid 284[187].

[89] Ibid 285-286[190],[193].

[90] Ibid 270[144].

[91] Ibid 261-262[102]-[103].

[92] Ibid 289[204].

[93] Ibid.

[94] Ibid 260[95] (Gaudron J) and 270[143] (McHugh J).

[95] Ibid 270[144].

[96] Ibid 261[101].

[97] Ibid 289-290[205]-[209].

[98] (1923) 32 CLR 200 216.

[99] This principle has been confirmed in numerous cases, including R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 606 (Latham CJ), 614 (Dixon J) and 620 (McTiernan J), R v Coldham; ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415, 418 (Mason ACJ and Brennan J) and 421 (Murphy J), DCT v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, 179 (Mason CJ), 192 (Brennan J) and 205-207 (Deane and Gaudron JJ) and Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 631-632 (Gaudron and Gummow JJ).

[100] Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 633 (Gaudron and Gummow JJ).

[101] (2001) 179 ALR 238, 251[53]-[54] (Gleeson CJ and Hayne J), 258[90] (Gaudron J), 266[126]-[127] (McHugh J) and 283[183] (Kirby J).

[102] [2000] HCA 57; (2000) 176 ALR 219, 264 [166].

[103] Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 632 (Gaudron and Gummow JJ), Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, 180 (Mason CJ), 206-207 (Deane and Gaudron JJ).

[104] R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598.

[105] Ibid 615.

[106] [1983] HCA 35; (1983) 153 CLR 415, 418 (Mason ACJ and Brennan J), 422 (Murphy J).

[107] (1990) 171 CLR 232, 248-250 (Mason CJ), 274-275 (Brennan J), 286 (Deane, Gaudron and McHugh JJ), 304-305 (Dawson J with whom Toohey J agreed).

[108] [1995] HCA 23; (1995) 183 CLR 168, 179-180 (Mason CJ), 194-195 (Brennan J), 240 (McHugh J).

[109] Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320.

[110] Transcript, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, 6 September 2000, 25.

[111] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219, 221[5] (Gleeson CJ), 235-236[54]-[55] (Gaudron and Gummow JJ), 259[148] (Kirby J), 265[172] (Hayne J), 275[217] (Callinan J).

[112] (1984) 156 CLR 185, 194 (Gibbs CJ).

[113] [2000] HCA 57; (2000) 176 ALR 219, 221[5] (Gleeson CJ), 235[51]-[52] (Gaudron and Gummow JJ), 259-260[149] (Kirby J).

[114] (2001) 179 ALR 238, 273[146] (McHugh J), 284[185]-[186] (Kirby J).

[115] Migration Act 1958 (Cth), s 476(1)

[116] Ibid, s 474(2)

[117] Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

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