Abebe v Commonwealth

The applicant submitted a statutory declaration of the kind contemplated by s 423(1) in support of her application for review by the Tribunal. In it she stated that she had made a number of untrue statements to immigration officers when she first arrived in Australia and sought to explain certain other statements that she had made to officials in Australia and to officials in South Africa (where she had earlier sought asylum). The Tribunal conducted a hearing on 6 August 1997 but adjourned after only a short time. The then solicitor for the applicant was later to say in a letter to the Tribunal that the decision to adjourn the hearing "was made in light of the Tribunal's difficulty in adducing information from the applicant regarding certain very straightforward matters relating to the applicant's background". The solicitor arranged for the applicant to be examined by a clinical psychologist. After the hearing had resumed and been completed on 28 August 1997, a copy of a report by the psychologist was provided to the Tribunal. That report suggested that the applicant's inability to answer questions at the first hearing was the result of "debilitating anxiety" and that "it would thus be unfair to draw any negative inferences from her non-response".

Nevertheless, the Tribunal found that the applicant was an unreliable witness. It concluded that "[o]n the evidence [it was] not satisfied that the Applicant faces a real chance of Convention-related persecution in Ethiopia".

The applicant gave a number of grounds in her application for review by the Federal Court. As amended, those grounds were:

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

(d) that the decision was an improper exercise of the power conferred by [the] Act or [the] regulations:

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

(3) the improper exercise of a power [being] construed as being a reference to:

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

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

In his reasons for judgment dismissing the application, Davies J said:

It is important to keep in mind that, in fulfilling the function conferred upon it by s 476 of the Act, the Court must look to the matters specified in the grounds of review. It is not the function of the Court itself to review the merits of the case or to decide the facts of the case. The facts are for the administrative decision-maker, the Refugee Review Tribunal. The function of the Court is to see whether there was something having the nature of an error of law in the decision of the Tribunal including an error in the approach of the Tribunal to the questions before it. The present case falls very much into the category of a fact case, for the Tribunal did not accept the substance of the claims made by the applicant.

The relevant statutory framework is complicated but it is as well to refer to it in some detail.

Provisions for review by the Refugee Review Tribunal

Part 7 of the Act (ss 410-473) provides for Review of Protection Visa Decisions by the Refugee Review Tribunal, a body established by s 457 of the Act. In particular, the Tribunal may be asked to review a decision to refuse to grant a protection visa (s 411(1)(c)). For the purposes of the review, the Tribunal may "exercise all the powers and discretions that are conferred by [the] Act on the person who made the decision" (s 415(1)) and may affirm the decision, vary it, set it aside and substitute a new decision or, in some circumstances, remit the matter for reconsideration (s 415(2)). The Minister, if he or she thinks it is in the public interest to do so, may substitute for a decision of the Tribunal a decision more favourable to the applicant (s 417(1)).

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

The manner of conducting the review is further regulated by Div 4 of Pt 7 (ss 423-429). An applicant for review may submit a statutory declaration "in relation to any matter of fact that the applicant wishes the Tribunal to consider" (s 423(1)(a)) and may submit written arguments relating to the issues arising in relation to the decision under review (s 423(1)(b)). The Tribunal will have available first, this material, secondly, a statement provided by the Secretary to the Department that sets out findings of fact, evidence and reasons for the decision under review (s 418(2)) and thirdly, any other document in the possession or control of the Secretary that is considered by the Secretary to be relevant to the review of the decision (s 418(3)). If, having considered the material, the Tribunal is not prepared to make the decision or recommendation that is most favourable to the applicant, the Tribunal must notify the applicant of his or her rights (ss 424-426). The Tribunal must notify the applicant that he or she may appear before the Tribunal to give evidence and that, if he or she wants the Tribunal to obtain oral evidence from one or more named persons, the applicant may give notice to that effect [101] . Section 427 of the Act gives the Tribunal various powers, including power to take evidence on oath or affirmation (s 427(1)(a)) and to summon persons to give evidence (s 427(3)(a)) or produce documents (s 427(3)(b)). 1. s 426(1) and (2). Sub-section (3) provides that if notice is given that the applicant wants the Tribunal to obtain oral evidence from others "the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice". It is not necessary to consider what is the effect of this provision.

Provisions for judicial review by the Federal Court

152. Part 8 of the Act (ss 474-486) provides that certain decisions (including decisions of the Refugee Review Tribunal (s 475(1)(b)) are judicially-reviewable decisions. Section 476(1) of the Act provides that, subject to sub-s (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any of seven stated grounds:

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

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

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

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

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

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

Sub-section (2) of s 476 provides: The following are not grounds upon which an application may be made under subsection (1):

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

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

Sub-section (3) seeks to elucidate what is meant by an improper exercise of a power. It provides: The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

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

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

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

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

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

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

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

Sub-section (4) provides that the ground specified in s 476(1)(g) (the ground that there was no evidence or other material to justify the making of the decision) 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 reasonably be 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.

Section 481(1) specifies the powers of the Federal Court on an application for review of a judicially-reviewable decision. It provides: On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

(2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under s 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

154. We deal first with the issue of validity raised by the question reserved in the action. It is necessary, therefore, to consider the proper construction of the provisions of Pt 8. The validity of the provisions can be examined only in the light of what it is that they provide.

155. Section 486 gives the Federal Court jurisdiction with respect to judicially-reviewable decisions that is exclusive of the jurisdiction of all other courts other than the jurisdiction of this Court under s 75 of the Constitution. Section 485(1), however, limits the jurisdiction conferred on the Federal Court in respect of judicially-reviewable decisions to the "jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903 ". As the subsection says, "In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions" other than the jurisdiction provided by Pt 8 of the Act or s 44 of the Judiciary Act (emphasis added).

156. Although s 485(1) seeks to limit the jurisdiction conferred on the Federal Court, it is not a privative clause of the kind considered in cases such as R v Hickman; Ex parte Fox and Clinton [102] . Section 486 expressly recognises this Court's jurisdiction under s 75 of the Constitution. It therefore recognises that the decisions and actions of the Tribunal are amenable to judicial review in this Court and, unlike the cases concerning privative clauses, no question arises of resolving an apparent tension between provisions of the Act that appear to limit the powers of the Tribunal and a provision of the Act that appears to contemplate that the Tribunal's conduct or decision is not open to review in any court. It is, however, necessary to notice some of the other provisions of the Act in a little more detail.

1. (1945) 70 CLR 598. See also R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168

157. It will be recalled that Pt 7 makes provision for the way in which the Tribunal is to go about its task. In particular, Div 4 of Pt 7 provides for the way in which the Tribunal is to conduct its review. To the extent to which the Act prescribes the steps that are to be taken (and prescribes what steps need not be taken [103] ) it may determine the content of that aspect of the requirements of procedural fairness often referred to as the "hearing rule". If that were so, it may be doubted that a decision may be challenged for want of a sufficient hearing so long as the statutory procedures have been followed. There being power to challenge a decision on the ground that procedures required by the Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)), the exclusion by s 476(2)(a) from the grounds for judicial review by the Federal Court of a ground that a breach of the rules of natural justice occurred in connection with the making of the decision may, therefore, have less practical effect than may be thought at first sight. Again, because the Act permits judicial review by the Federal Court on the ground that the decision was "induced or affected by fraud or by actual bias" (s 476(1)(f)), at least some aspects of the "bias rule" are dealt with, and the practical consequences of the exclusion of the ground of breach of the rules of natural justice may be reduced still further.

1. eg, s 425(2) provides that, subject to giving the applicant an opportunity to appear before it to give evidence, the Tribunal "is not required to allow any person to address it orally about the issues arising in relation to the decision under review".

158. It is not necessary, however, to say whether the grounds for judicial review that are permitted by s 476(1) cover the whole field that would otherwise be covered by an allegation that there was a breach of the rules of natural justice in connection with the making of the decision. That is not necessary because it is clear that there are grounds on which prohibition would lie to the Tribunal under s 75(v) of the Constitution that are excluded by s 476 from consideration by the Federal Court. In particular, prohibition would lie to the Tribunal in at least some cases where it is shown to have fallen into error of law which causes it to ignore relevant material or rely on irrelevant material [104] . And yet such questions are expressly excluded from consideration by the Federal Court (s 476(3)(d), (e)) in exercising its jurisdiction under s 486.

1. Craig v South Australia (1995) 184 CLR 163 at 179, per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

159. Conversely, it may be that the Act extends the ground that it describes as "an improper exercise of a power" conferred by the Act or the regulations (s 476(1)(d), (3)(a)-(c)) beyond matters that would found the grant of prerogative relief. But we do not stay to consider whether that is so.

160. For present purposes two points are important. First, the limits imposed by s 476 on the grounds for judicial review are different from, and in important respects narrower than, the grounds on which prerogative relief would lie under s 75(v). Secondly, on its true construction, the Act is not to be read as identifying the only limits on the Tribunal's exercise of its powers as being those encompassed by the grounds specified in s 476.

161. On their face the provisions of Pt 8 purport to define the jurisdiction of a federal court other than the High Court [105] with respect to a matter arising under a law made by the Parliament [106] . Since the judgment of Griffith CJ in Ah Yick v Lehmert [107] the term "defining" in s 77(i) has been understood as being used in the sense of the giving or conferring of jurisdiction or, as Harrison Moore put it, a "power to commit" to the federal court in question "jurisdiction in the matters referred to [it]" [108] . Section 77(ii) has a different operation. It directs attention to the jurisdiction which "belongs to" the courts of the States independently of s 77(iii) or which was invested in them under the authority conferred by s 77(iii), and permits their deprivation of jurisdiction [109] . Here the phrase "defining the extent" is used, as Isaacs J put it, "to mark out the boundaries" [110] of the exclusiveness of the jurisdiction of any federal court, including this Court, with respect to that which otherwise belongs to or is invested in State courts. This is so, although it "is a strain upon language to speak of an "extent" of exclusiveness - a matter is either exclusive or not" [111] .

1. Constitution, s 77(i). 2. Constitution, s 76(ii). 3. (1905) 2 CLR 593 at 603-604. See also Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 539-540, per Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ; Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 622-623, per McHugh J. 4. The Constitution of the Commonwealth of Australia, 2nd ed (1910), p 210. 5. Pirrie v McFarlane (1925) 36 CLR 170 at 176-178, per Knox CJ; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 470-471, per Gibbs J; at 479-480, per Stephen, Mason, Aickin and Wilson JJ. 6. The Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 407 Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978), pp 199-203. 7. Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed (1976), p 436.

162. The validity of the impugned provisions depends upon the related questions whether there is a "matter" and whether, under those provisions, the Federal Court exercises judicial power.

163. The Commonwealth contended that the provisions are valid because, although there can be no "matter" and no exercise of judicial power without there being an adjudication of rights or duties, here the rights the subject of adjudication are those conferred by Pt 8 - the right to have the decision set aside on any of the stated grounds. The fact that other rights might be adjudicated in an application under s 75 of the Constitution was, so it was contended, irrelevant. The applicant contended, on the other hand, that there is no "matter" and there is no exercise of judicial power because the controversy between the parties is whether the Tribunal acted in accordance with law. That controversy is wider than a controversy about the grounds specified in Pt 8 and is not quelled by the decision of the Federal Court.

164. Since the decision in In re Judiciary and Navigation Acts [112] it has been accepted that there can be no matter "unless there is some immediate right, duty or liability to be established by the determination of the Court" [113] . And it has long been recognised that an important aspect of federal judicial power is that, by its exercise, a controversy between the parties about some immediate right, duty or liability is quelled. In Huddart, Parker & Co Pty Ltd v Moorehead [114] , Griffith CJ said that:

the words "judicial power" as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. And as the majority in Fencott v Muller [115] said: The unique and essential function of the judicial power is the quelling of such controversies [ie controversies of the kind described by Griffith CJ in Huddart Parker] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. 1. (1921) 29 CLR 257. 2. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ. 3. (1909) 8 CLR 330 at 357. 4. (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan and Deane JJ.

165. The contention that Pt 8 of the Act confers jurisdiction on the Federal Court with respect to a "matter" requires, in this case, consideration of three questions: first, what is the subject matter for determination in a proceeding [116] ; secondly, what right, duty or liability is to be established [117] ; thirdly, what is the controversy between the parties? [118] But although each may be considered separately, all are related aspects of the single question: is there a "matter"?

1. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 2. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ. 3. Fencott v Muller (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan and Deane JJ.

166. The fact that Pt 8 entitles a person dissatisfied with a decision of the Refugee Review Tribunal to commence a proceeding in the Federal Court does not mean that the proceeding relates to a matter. Much of the argument advanced in favour of the validity of Pt 8 proceeded from the unstated premise that the existence of a matter can be demonstrated by showing that a litigant may commence a proceeding.

167. But the majority of the Court in In re Judiciary and Navigation Acts [119] rejected the contention that "matter" means no more than legal proceeding. It was held there that matter in s 76 means the subject matter for determination in a legal proceeding rather than the proceeding itself [120] . Thus, to say that a party may bring a proceeding under Pt 8 does not mean that the subject of the proceeding is a "matter". The answer put forward on behalf of the Commonwealth was, in effect, that the "matter" was not the right to bring a proceeding but the right to have the Tribunal's decision set aside if one or more of the grounds specified in Pt 8 was established. That invites attention to what are the rights or duties that are to be judicially established.

1. (1921) 29 CLR 257. 2. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265, per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ.

No doubt a lay observer may say that the grievance of a person like the present applicant is that she was not granted refugee status. But no person who claims to be a refugee has any right recognised in law to have the merits of the executive's decision about refugee status reconsidered and decided in the exercise of the judicial power of the Commonwealth. By contrast, however, and as indicated earlier in these reasons, an applicant for refugee status does have a right to have the executive make its decision about an application for a protection visa in accordance with law. And that right may be vindicated by seeking the exercise of the judicial power of the Commonwealth. Thus, to cast the issue in terms of rights and duties, what is significant for immediate purposes is that the Tribunal has a duty to reach its decision according to law and an applicant to that Tribunal has a right enforceable in the exercise of federal judicial power to have it do so. That right does not find its origin in Pt 8 of the Act.

It is not necessary to embark upon any further consideration of whether, under the system of government established under the Constitution, judicial review of administrative action is founded in the common law or finds some or all of its origins in the proper construction of laws of the Commonwealth that empower administrative decision making [121] . It is enough for present purposes to recall that the premise from which the cases about privative clauses (such as Hickman ) proceed is that:

[i]t is impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. [122] For present purposes, it does not matter whether the limits on the executive's powers are to be found in the proper construction of the statutory provisions conferring the power or are to be found in the common law, or whether s 75(v) of the Constitution is concerned only with remedies or creates rights. Section 75(v) gives this Court power to grant relief against an unlawful exercise of or refusal to exercise Commonwealth executive authority [123] . The right to have the executive make its decision according to law is, then, not a right that is created by Pt 8 of the Act. Likewise, the duty of the executive to act according to law does not find its origin in Pt 8 of the Act. 1. See Aronson and Dyer, Judicial Review of Administrative Action (1996), pp 103-115. 2. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616, per Dixon J. 3. Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 204-205, per Deane and Gaudron JJ.

What Pt 8 of the Act seeks to do is to say that some, but not all, allegations of breach of that duty may be raised in and decided by the Federal Court. The inevitable consequence of limiting the kinds of allegation that may be made is that the Federal Court can never conclude that the decision challenged was made according to law. It may decide only that the particular grounds of challenge that were raised in the proceeding were not made out. The statute forbids it from embarking on some aspects of the more general inquiry whether the decision was made according to law.

Nevertheless, the provisions of s 481 of the Act indicate that proceedings before the Federal Court under Pt 8 will lead to a conclusive determination about the lawfulness of the decision of the Tribunal that is impugned. Among the orders that the Court is empowered to make are "an order affirming the decision, or a part of the decision" (s 481(1)(a)) and "an order declaring the rights of the parties in respect of any matter to which the decision relates" (s 481(1)(c)). These are orders that would be rightly made if all questions affecting the legality of the decision were resolved by the outcome of the proceedings. But that is not and cannot be so.

There was some debate in the course of argument about what was meant by "affirming" when it appears in s 481(1)(a). The word "affirm" is commonly used in forms of order disposing of appellate or review proceedings. Older precedent books give the form of order for disposing of an appeal that has failed as an order that affirms the judgment below and dismisses the appeal [124] . It is commonplace for orders disposing of unsuccessful appeals to a Court of Criminal Appeal to affirm the sentence passed on the offender. And so examples could be multiplied. There is no reason to think that "affirming" was intended to be used in some different sense in s 481. Thus, were such an order to be made pursuant to s 481 it would amount to the Court ordering that the decision is one to which the parties to the proceeding may give effect. It would be appropriate to make an order affirming the decision if (and only if) the Court could hold that the decision had been made according to law. But the Federal Court cannot do that.

1. See, eg, Chitty's Queen's Bench Forms, 18th ed (1956), Pt XVII, Ch 1, s 1, Form 11, pp 1187-1188; Seton's Judgments and Orders, 7th ed (1912), vol 1, pp 811-812.

173. Similar difficulties emerge when consideration is given to what declarations might be made pursuant to the power given by s 481(1)(c). What "rights of the parties" might be declared "in respect of any matter" to which the decision (ie, the decision of the Tribunal) relates? At most it would seem that a declaration might be made about the entitlement of an applicant to the relief sought. (No other possible forms of declaration were suggested in argument.) But it may be doubted that there would ever be occasion to make a declaration that an applicant was, or was not, entitled to the relief sought. If the applicant was entitled to substantive relief quashing or setting the decision aside then there seems no reason to think that a declaration should be made in addition to, or instead of, granting the substantive relief. If, however, the applicant is not entitled to substantive relief, it follows, for the reasons given earlier, that it would not be right to declare that the decision was validly made and there would seem no point to declaring that the applicant has not established any of the grounds referred to in s 476.

174. It was submitted that if no order could be made affirming the decision, the word "affirming" should be severed from s 481(1)(a) and that, if this was done, the remaining provisions in Pt 8 would be valid. Severance of the kind proposed is not possible.

175. Section 481(1) says that "the Federal Court may, in its discretion, make all or any of" the orders listed in the subsection. At first sight, the reference to discretion might suggest that the excision of one item from the list of available remedies would be of little moment. Ordinarily, however, if a statute gives a court a power to make any of a range of orders, the statute will be construed as obliging the court to make one of those orders if the occasion for its making is proved to exist [125] . And there is no reason to construe s 481(1) in any different way, at least in so far as it refers to affirming, quashing or setting aside the decision of the Tribunal. Whatever may be the position with other kinds of orders mentioned in s 481 (such as orders in the nature of injunction (s 481(1)(d))), if a case were made for affirming, quashing or setting aside the decision there seems no basis for concluding that such an order could properly be refused as a matter of discretion. But whether or not this is so, when Pt 8 is read as a whole, it can be seen that it "was intended to operate fully and completely according to its terms, or not at all" [126] . There can, therefore, be no severance of the kind suggested.

1. Ward v Williams (1955) 92 CLR 496 at 506-507, per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ. 2. Pidoto v Victoria (1943) 68 CLR 87 at 108, per Latham CJ; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 502, per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.

Consideration of what orders the Federal Court may make is important because it reveals a more fundamental difficulty than a narrow point about the remedies that may be granted or a point about severance. What the difficulties about the possible forms of order that may be made under Pt 8 illustrate is that the rights and duties of the parties are not adjudicated in a proceeding under that Part. Only some of the considerations affecting their rights and duties may be agitated and decided and the controversy between them is not quelled by any decision in the proceeding. There is, therefore, no conferring on the Federal Court of jurisdiction over a "matter" arising under a law made by the Parliament, within the meaning of ss 77(i) and 76(ii) of the Constitution.

As is apparent from what we have said about severing the word "affirming" from s 481(1)(a), we do not consider that it is possible to sever or read down Pt 8 in such a way as to preserve part of its operation. In large part that conclusion follows inexorably from the conclusion that the Parliament has attempted to confer jurisdiction over something less than the justiciable controversy. It is not surprising that severance or reading down is not available in such a case.

It is necessary, however, to deal separately with s 485 which, it will be recalled, seeks to limit the jurisdiction of the Federal Court in relation to judicially-reviewable decisions covered by s 475(2) and to limit that jurisdiction to that conferred by Pt 8 of the Act or by s 44 of the Judiciary Act. Section 485(3) provides that, if a matter relating to a judicially-reviewable decision is remitted to the Federal Court by this Court pursuant to s 44 of the Judiciary Act, "the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under [Pt 8]". Standing alone, this and the other provisions of s 485 might possibly be said to suggest an intention that the jurisdiction of the Federal Court should be limited to whatever is validly given by Pt 8 and that, if Pt 8 otherwise falls, the excluding effect of s 485 should still be given work to do. But this is to rewrite the statute altogether. Part 8 was intended to be a comprehensive set of provisions regulating judicial review of certain decisions. If part of that comprehensive scheme falls, the whole scheme falls. The invalidity of the provisions permitting review means that the provisions limiting review must also fall.

The amended question reserved should be answered "Yes, the whole of Part 8". The Commonwealth should pay the applicant's costs of this proceeding.

We turn, then, to the application for prerogative relief in this Court. It is necessary to say something more about the events that relate to the applicant's claim to be a refugee and that bear upon her claim to prerogative relief.

After the applicant arrived in Australia, she was interviewed by officers of the Department of Immigration and Multicultural Affairs, first at Sydney airport and later, on more than one occasion, in the Villawood Immigration Detention Centre. In the Detention Centre she told the interviewing officers that she was wanted by the Ethiopian Government because she held political views opposing the government and because she had escaped from gaol. (She had, she said, been arrested and questioned in Ethiopia and detained for more than two months.) According to the applicant, she had joined the All Amhara Peoples Organisation or "AAPO" in January 1994 and did so because she saw that organisation and its aims as defending her interests as an Amhara. She said that she had attended meetings of the organisation and that two or three months after she joined it, she began to type letters of invitation to its meetings and letters asking for financial aid. She was, she said, just an "ordinary" member although exactly what was meant by that expression (which may have been used first by the interviewers rather than the applicant) was not explored in the interviews. In the interviews at the Detention Centre she spoke of her husband and said that he too had been an "ordinary" member of AAPO who had attended meetings, organised some demonstrations and fee collections.

For the first time, in one of the interviews held at the Detention Centre, the applicant spoke of an incident during her imprisonment when two policemen raped her in her cell. She had not mentioned this fact on arrival at Sydney airport or in accounts she had previously given of her history when she had sought (unsuccessfully) refugee status in South Africa.

The information she gave in the various interviews with Australian officials was not always consistent and it differed in a number of ways from information she had given to the South African authorities in 1994. She had said in South Africa that her husband had been killed by the government in 1994 and that it was for that reason she left her country. She made no mention of having been raped. Although she answered the question "Have you ever been arrested or detained?" by checking the box marked "No", a handwritten statement she later made to the South African authorities (after her South African application had been refused) spoke of her being "thrown to jail for 5 days".

There were several other inconsistencies between her accounts to officers at Sydney airport, to officers who interviewed her at the Detention Centre and to the South African authorities. Her accounts of how she had travelled from Ethiopia to Australia, via South Africa, varied; her accounts of the fate of her husband varied. We need not notice the detail of these inconsistencies.

In the course of the proceedings before the Tribunal she made a statutory declaration in which she sought to record these inconsistencies, to acknowledge that some of the statements she had made were untrue, and to assert the truth of some other of those statements. As has been mentioned earlier, a report from a clinical psychologist was submitted to the Tribunal concerning what appeared to be the difficulty in obtaining information from the applicant about her background. Nevertheless, the Tribunal found that the applicant was an unreliable witness.

The applicant submitted in this Court that the essence of her claim was that because she was a member of a political party (the AAPO) which was in opposition to the government and because she is a member of the Amhara ethnic group, she had been arrested (following her husband's arrest), raped, and detained in custody for more than two months until she escaped. Much emphasis was placed in the applicant's submissions on her claim to having been detained and raped. It was described as being the central part of her claim and it was submitted that the Tribunal did not deal with it properly. The attack was put in several ways: as a breach of procedural fairness, as a failure to take relevant considerations into account, and as evidencing a manifestly unreasonable exercise of the Tribunal's power.

The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision maker, the delegate of the Minister, said in the reasons for her decision that " I do not find the applicant to be a reliable witness, and have grave doubts about her credibility, as in South Africa and at the Airport, the applicant did not mention that she had been raped or imprisoned in Ethiopia". After that, there could be no doubt that her story of detention and rape while in detention might not be accepted. And indeed her provision to the Tribunal of the statutory declaration dealing with inconsistencies in her accounts can be explained only on the basis that she and her advisers were alive to the difficulties in having what she said was the true account of events accepted by the Tribunal.

The remaining two bases of attack on the Tribunal's decision were not always kept separate in the course of argument. It was said that the Tribunal failed to take into account a relevant consideration, namely, whether the applicant had been raped by State officials while in detention because of her political affiliations and racial background, and it was said that the Tribunal's failure to investigate those matters meant that the Tribunal's decision was so unreasonable that no reasonable person could have exercised the Tribunal's powers as it did. At once, then, it can be seen that the attacks focus upon the factual basis for the Tribunal's decision. Should it have concluded that the applicant was raped in detention? Should it have made further inquiries to discover whether she had been raped?

Inquiring whether a person has a well-founded fear of persecution is attended by very great difficulties. It is as well to begin such inquiries from two premises that, while obvious, may possibly be overlooked. First, the fact that a person in the applicant's position does not complain of rape to the first immigration officer who speaks to her on arrival in this country, a country in which she seeks asylum, is anything but compelling evidence that no such assault occurred. Even if the "primitive rule of hue-and-cry" spoken of by Wigmore [127] in connection with doctrines of recent complaint in cases of rape [128] may once have had some basis in the society in which it grew up, there is no warrant for some unthinking application of such a rule to a person from a wholly different society coming to a new country in which she seeks asylum, leave aside the fact that the rape may have occurred months if not years ago as one more horror in a history of horror.

1. Wigmore on Evidence, 3rd ed (1940), vol 4, p 219, par 1134. 2. cf Kilby v The Queen (1973) 129 CLR 460 Jones v The Queen (1997) 191 CLR 439 Suresh v The Queen (1998) 72 ALJR 769153 ALR 145.

191. Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.

192. The question that the Tribunal was called on to decide in this case was whether the applicant showed that she then had a well-founded fear of persecution on a Convention ground. What is meant by "well-founded" has been considered by this Court in several cases [129] and it is not suggested that the Tribunal failed to apply the correct principles in this regard. No doubt, a Tribunal will often find assistance in deciding whether a person has a well-founded fear of persecution by looking at that person's prior experiences. If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded. But proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution. Regrettably, cases can readily be imagined where an applicant's fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past.

1. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, per Mason CJ; at 396-398, per Dawson J; at 406-407, per Toohey J; at 428-429, per McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275, per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

193. In this case the applicant maintained that she had been persecuted in the past. If that contention were disbelieved then, for the reasons just discussed, it did not mean that her claim to protection must inevitably fail. There would remain for consideration any other basis on which it was said that her fear of persecution was well founded. The contentions that were advanced in support of her application for prerogative relief must be examined in light of those considerations.

194. The submission that the Tribunal should have made further inquiries about the possibility that the applicant had been raped in detention can be dealt with shortly. No plausible and possible line of inquiry was suggested, whether in this Court or in the course of the Tribunal's inquiries, that the Tribunal might have undertaken and that might have shed any light on the issue. That being so, it is not necessary to consider the validity of the premise from which this limb of the argument proceeded, namely, that the Tribunal was under some obligation to make some further inquiries. But it follows that the asserted ground of unreasonableness fails. And it is, therefore, not necessary to examine, in this case, what are the limits of what has become known as the Wednesbury ground [130] . In particular, we need not consider whether the ground of unreasonableness is confined to cases of the same kind as Wednesbury , in which a decision maker is called on to exercise a discretion and the decision taken lies outside the range of decisions at which a reasonable person could arrive [131] . Nor is it necessary to consider the kinds of question referred to by Mason CJ in Australian Broadcasting Tribunal v Bond [132] concerning the review of findings and inferences of fact on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts.

1. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 2. cf R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1998] QB 477 3. (1990) 170 CLR 321 at 355-357.

The submission that the Tribunal had failed to take into account a relevant consideration - described as being whether the applicant had been raped in detention - appeared, in the course of argument, to slide sometimes to a contention that the Tribunal should have concluded that the applicant had been raped. We need not, and do not, express any concluded view on whether the first form of the contention, if made out, would reveal a failure to take into account a relevant consideration. There appears much to be said, however, for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision maker to act [133] rather than from the particular facts of the case that the decision maker is called on to consider. But leaving this issue to one side, it must be noted that the latter form of contention (that the Tribunal should have concluded that the applicant had been raped) is self-evidently a contention that depends upon the Court reviewing the merits of the Tribunal's decision rather than the process by which it arrived at its conclusion. Such a contention could not be advanced as a ground for the grant of prerogative relief [134] . As Brennan J said in Attorney-General (NSW) v Quin [135] :

The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison [136] : "It is, emphatically, the province and duty of the judicial department to say what the law is." 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. 1. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, per Mason J. 2. See, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ. 3. (1990) 170 CLR 1 at 35-36. 4. (1803) 1 Cranch 137 at 177 [5 US 87 at 111].

If, however, the applicant's contention is that the Tribunal failed to inquire into whether the applicant had been raped in detention, that contention must fail. The Tribunal did consider that question. In its reasons for decision the Tribunal recorded that the applicant claimed "that five days after her husband was arrested, she was also arrested and then detained for two months, during which she was interrogated by authorities and raped" and concluded that it "considers it possible that the Applicant might have suffered some form of abuse in the past". Plainly, then, the Tribunal examined the question.

It may be accepted that, as the applicant submitted, much of the Tribunal's statement of reasons focuses upon what the applicant said about her husband's arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal's reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.

The Tribunal did consider whether the conditions in Ethiopia were such that Amharas (as a group) were liable to discrimination. It rejected that contention. It concluded:

However, the Tribunal is prepared to accept that the Applicant is an Amhara and notes her claims to the effect that the Amhara are disliked by the current government and suffer discrimination. Nevertheless, the Tribunal considers the above-cited (DFAT and other) information as to the circumstances of the Amhara in Ethiopia to negate her claims as to the existence of a real chance of persecution for reasons of her membership of this particular social ethnic group. There was evidence before it (being the cables from the Department of Foreign Affairs and Trade to which it referred in its reasons) that suggested that only politically active Amharas were at risk of being persecuted. And it was open to the Tribunal to conclude that the applicant was not politically active to the degree necessary to attract adverse attention from the authorities in Ethiopia.

The material about her past experiences (if accepted) may have been a sufficient basis for concluding that her stated fears of persecution were well founded. But that material was not a necessary step along that path. The rejection of her version of events therefore did not conclude the question. It was necessary to deal with the more general question: whether the applicant had a well-founded fear of persecution for a Convention reason. This the Tribunal did.

No ground is made out for the grant of prerogative relief and the application should be dismissed with costs.

One other aspect of the matter should be mentioned. Counsel for the Minister submitted that the Court should not consider the questions that the applicant sought to agitate in the application for prerogative relief because she had made application under Pt 8 of the Act and she had not sought to appeal against the judgment of Davies J that was given in that proceeding. Counsel for the Minister put the point as a discretionary bar and expressly disclaimed any contention that there was an estoppel. Because no ground for prerogative relief is established, we need not consider what, if any, effect follows from the bringing of proceedings under Pt 8 or the absence of challenge to the judgment given in those proceedings.

The Court is divided over a constitutional question. The resolution of the differences may be found by resort to a facultative principle of constitutional interpretation.

The Australian Constitution is expressed in statutory form. The elucidation of its meaning must therefore observe the basic principles followed in the construction of any statute [137] . But a constitution is a special kind of statute. This fact requires that it should always be construed with its constitutional character in mind [138] . Our Constitution is notoriously difficult to amend by formal process [139] . It is intended to operate indefinitely and in a fast-changing world. In elucidating ambiguities, the constitutional text should therefore be approached as a "facility of rational and efficient government" [140] for the people of Australia. It is not correct to construe it by a search for what its framers "intended", helpful as their remarks about those purposes may be from time to time [141] . We are not bound to the imaginings of the men who, in the last decade of a past century, wrote the Constitution. It is the governmental charter of today's Australians. It belongs to the present and the future. It is not chained to the past [142] . It should be construed, so far as its text and structure permit, to avoid irrational rigidities or seriously inconvenient outcomes. Ordinarily, such rigidities and serious inconvenience will be inconsistent with the enduring character of the Constitution as the charter of government of a modern nation.

1. Tasmania v The Commonwealth (1904) 1 CLR 329 at 338cf Graves v New York; Ex rel O'Keefe (1939) 306 US 466 at 491, per Frankfurter J. 2. McCulloch v Maryland (1819) 17 US 159 at 200 Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368 R v Brislan; Ex parte Williams (1935) 54 CLR 262cf Street v Queensland Bar Association (1989) 168 CLR 461 at 537 3. Constitution, s 128. In ninety-eight years, only eight of forty-two proposals to amend the Constitution have been approved by the requisite majorities of the electors of the Commonwealth. 4. Gould v Brown (1998) 193 CLR 346 at 476cf Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 140 5. Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 17 Cole v Whitfield (1988) 165 CLR 360 at 385 New South Wales v The Commonwealth (the Incorporation Case) (1990) 169 CLR 482 at 501-503; Leeth v The Commonwealth (1992) 174 CLR 455 at 485 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197cf Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208 at 240 6. Victoria v The Commonwealth (1971) 122 CLR 353 at 396, per Windeyer J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 171-173, per Deane J.

204. The facts are stated in the reasons of the other members of the Court. So are the relevant constitutional provisions and the sections of the Migration Act 1958 Cth (the Act) the validity of which is challenged. I will not repeat these.

205. Two proceedings are before us. For convenience they have been dealt with together. Ms Seniet Abebe is the prosecutor in a summons claiming the issue out of the Court of one of the constitutional writs [143] . She has sought that relief against the Minister for Immigration and Multicultural Affairs and the officer of the Commonwealth constituting the Refugee Review Tribunal (the Tribunal) concerned in her case. Ms Abebe is also the plaintiff in an action which she has brought against the Commonwealth. In that action she claims a declaration that the provisions of Pt 8 of the Act are invalid. It is in the latter proceeding that the constitutional question, which is set out in other reasons, has been reserved for the opinion of the Full Court [144] .

1. Provided by the Constitution, s 75(v). 2. Pursuant to the Judiciary Act 1903 Cth, s 18.

206. The application for a constitutional writ has required a detailed examination of the facts contained in the record of the Tribunal. In defence of the efficient discharge of its primary responsibilities, the Court would normally remit a matter, or that part of the matter, involving factual or non-constitutional questions, to another court [145] . Quite apart from the identity of the parties to the proceedings and the federal character of this matter, because of the provisions of the Act [146] , the court to which the matter (or part of the matter) would be remitted in this case would be the Federal Court of Australia.

1. Pursuant to the Judiciary Act 1903 Cth, s 44. 2. The Act, s 486. The text is set out in the reasons of Gleeson CJ and McHugh J.

207. For reasons explained by the other members of the Court, as the Parliament has limited the grounds upon which the Federal Court may review a decision of the Tribunal [147] (and has applied those limitations to any matter or part of a matter remitted to that Court by this Court [148] ), the jurisdiction of the Federal Court, however engaged, would be narrower than that of this Court as provided by the Constitution. To avoid the risk of injustice to Ms Abebe, were she to be able to make out an entitlement to a constitutional writ, it was therefore necessary for this Court to hear and determine her application. This is a consequence of the legislation. It must have been understood by the Parliament and appreciated by the Executive Government. It has certainly been called to notice [149] . The prospect of this Court's having to hear and determine, in its original jurisdiction, applications of this kind, in default of the availability of equivalent redress in the Federal Court (or of effective remitter to the Federal Court), is extremely inconvenient. It is also expensive and time-consuming. These considerations suggest the need for further attention to legislation which has such an outcome.

1. The Act, s 476(2). The text is set out in the reasons of Gummow and Hayne JJ. 2. The Act, s 485(1) and (3). The text is set out in the reasons of Gummow and Hayne JJ. 3. cf Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [No 1] (1997) 72 ALJR 574 at 575151 ALR 711 at 713; Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [No 2] (1997) 72 ALJR 630 at 633152 ALR 177 at 180.

208. All other members of the Court are of the opinion that Ms Abebe has failed to make out an entitlement to the issue of a constitutional writ on any of the three grounds stipulated by her before this Court. The grounds which Ms Abebe pressed were: (1) the alleged failure of the Tribunal to observe the requirements of natural justice in relation to the hearing of her case; (2) the alleged failure of the Tribunal to take into account a relevant consideration, namely that she had been raped by State officials when in custody in Ethiopia; and (3) the Tribunal's arrival at a conclusion criticised by Ms Abebe as manifestly unreasonable, in the sense that it was so unreasonable that no donee of the relevant statutory power, exercising such power in accordance with law, could properly have come to such a conclusion [150] .

1. cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, applying Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230

By the Act, these three heads of challenge to the decision of the Tribunal are excluded from the jurisdiction of the Federal Court (the Act, s 476(2), (3)(e)). However, if included within the constitutional jurisdiction of this Court, they cannot be removed by legislation and no attempt has been made to do so.

Given the purposes of the constitutional writs, I accept that their availability is not today to be confined to the narrower categories which were doubtless within the "intentions" of the framers when the Constitution was originally written. In this, as in other respects, the meaning of the constitutional text marches in step with developing understandings of the law of judicial review, stimulated by important decisions of the courts and (in a general way at least) by statutory developments affecting the legal culture within which the Constitution operates.

I agree with the remarks of Gummow and Hayne JJ concerning the two considerations which can easily be overlooked in fact-finding, both by the Minister's delegate and by the Tribunal. Such oversight can readily arise when it is shown that an applicant for refugee status (or the visa appropriate to that status) has made untrue statements to officials or given false evidence to the Tribunal. I agree with the comment by their Honours that, even if an applicant is disbelieved, the primary decision-maker and the Tribunal must still consider whether, on any other basis asserted, a fear of persecution exists which is well founded so as to ground the protection claimed.

Nevertheless, for the reasons which Gummow and Hayne JJ give, no basis is established in any of the grounds propounded by Ms Abebe upon which she is entitled to the issue of a constitutional writ. I therefore agree with the orders favoured in that regard by all members of the Court. Those proceedings should be dismissed with costs.

No decision of this Court determines the controversy presented by the question reserved in Ms Abebe's other proceedings. The past authority of this Court addresses attention, relevantly, to two considerations. Each must be examined to respond to the arguments raised concerning the validity of the provisions of Pt 8 of the Act. The first involves the meaning of the word "matter" or "matters" where appearing in ss 75, 76, 77 and 78 of the Constitution. The second concerns the implications to be derived from the creation, by Ch III of the Constitution, of "the Judicature" as a separate and independent branch of government, and the further implications to be drawn from the language, structure and purposes of that Chapter and the provisions within it.

Ms Abebe's first challenge to the validity of the provisions of Pt 8 of the Act depends upon the suggested incompatibility between the requirement of the Constitution [151] that the jurisdiction of any federal court (such as the Federal Court of Australia) may only be defined in a law made by the federal Parliament "[w]ith respect to any of the matters mentioned" in ss 75 and 76, and the limitations which the concept of "matter" imports. (Emphasis added.)

The meaning of the word "matter" is elusive. Established doctrine, not challenged in these proceedings, holds that the word has the same meaning in each of the sections in Ch III in which it is used [152] . It does not connote "a legal proceeding" as the parties may have chosen to frame it [153] . Rather it refers to "the subject matter for determination in a legal proceeding" [154] . It is not any subject matter upon which the parties may disagree or about which they have a dispute susceptible to independent determination. It must be a subject matter which is apt for determination by a court of law by reference to some "immediate right, duty or liability" susceptible of determination by such a court [155] . Upon this notion of "matter" rest the restrictions which this Court has applied to legislative attempts to confer upon a Ch III court, including this Court, a jurisdiction to provide advisory opinions [156] or to decide abstract questions divorced from the actual administration of the law [157] .

1. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-266. 2. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. 3. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. 4. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. 5. As the Judiciary Act 1903 Cth, Pt XII did in 1910. See ss 88, 89 and 93 of that Act as then enacted; cf North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612, 642, 665-668. 6. Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 303 Croome v Tasmania (1997) 191 CLR 119 at 125, 135.

216. In these proceedings, the latter aspects of authority on the meaning of the word "matter" were not directly engaged. There was nothing advisory about the jurisdiction which Pt 8 of the Act confers on the Federal Court. That jurisdiction is far from "abstract", particularly for Ms Abebe. If the challenged provisions are valid they effectively determine Ms Abebe's claim to refugee status unless relief were afforded to her in the form of a constitutional writ issued by this Court, which I have held to be unavailing in her case.

217. The question is thus whether the word "matter", as it has been elucidated, carries within it the irreducible notion of the entire legal controversy between the parties. It is whether nothing less than the jurisdiction over the entire matter may be conferred on a federal court if jurisdiction is given to that court at all.

218. Ms Abebe asserts that the notion of the indivisibility of a "matter" is inherent in the meaning of the word, understood in its context. In support of her submission, she deploys several arguments. They are by no means insubstantial. First, she relies on the cases concerned with the jurisdiction of federal courts with respect to non-federal claims arising out of transactions and facts common with a federal claim [158] . A law purporting to confer on a federal court jurisdiction over connected non-federal claims will be valid, being a law "with respect to" the "matters" supporting the federal legislation. Ms Abebe argued that the opposite was equally true. An attempt to provide jurisdiction over part only of a matter was constitutionally invalid.

1. cf Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 Fencott v Muller (1983) 152 CLR 570 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261

219. Secondly, Ms Abebe submitted that only if federal courts were engaged to state the entire law with respect to a justiciable controversy would there be a proper exercise of the judicial power of the Commonwealth. On this footing, a "matter" could not be split by a law made by the Parliament, whether as between different federal courts upon which federal jurisdiction is conferred or as between those courts and the courts of the States which are invested with federal jurisdiction relevant to the matter. In support of this argument Ms Abebe pointed to the suggested inconvenience of the division of a single matter as between this Court and the Federal Court, as illustrated by the present case. She argued that such a division of jurisdiction carried inherent risks of inconsistent or incomplete findings, of barren jurisdictional contests and of attendant costs and delays to litigants. These considerations combined to support the conclusion that this was not the kind of provision for the jurisdiction of a federal court which the Constitution envisaged when empowering the Parliament to make laws with respect to "matters" within its constitutional authority. So went Ms Abebe's main arguments on this point.

"Matter" does not import indivisibility of proceedings

220. The argument that the meaning of the word "matter" and of the other relevant provisions in Ch III of the Constitution is to be ascertained by reference to the intention of the original framers is rejected. Such "intention" is a fiction [159] . It has no place in constitutional elucidation. It is apt to divert the reader to the historical origins of a word rather than the word's contemporary meaning and operation. The latter are to be found from the way the provisions in question operate in their current constitutional context. Relevantly, that involves the chapter of the Constitution providing for a separate and independent judicature functionally charged with upholding the rule of law [160] . In deriving the meaning of a particular provision of the Constitution, this Court should adopt the approach stated at the outset of these reasons.

1. Brest, The Misconceived Quest for the Original Understanding, Boston University Law Review, vol 60 (1980) 204, at, 215-216; Patapan, The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia, Federal Law Review, vol 25 (1997) 211; Dawson, Intention and the Constitution - Whose Intent?, Australian Bar Review, vol 6 (1990) 93; cf Mills v Meeking (1990) 169 CLR 214 at 234 2. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193, per Dixon J.

221. Provisions in statutes for the conferral of jurisdiction on courts are ordinarily read to accord the broadest ambit and flexibility to the jurisdiction so provided. This is done out of recognition of the multitude of situations with which courts must typically deal [161] . How much broader must be the construction of a constitutional grant of lawmaking power affording to the Parliament the authority to "make laws" in terms of that ample phrase "with respect to" any "matter" [162] ? In such a context, none of the words of the grant of power should be narrowly construed.

1. Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205, per Gaudron J. 2. cf Re East; Ex parte Nguyen (1998) 196 CLR 354 at 383cf Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 577

222. Viewed from this perspective it is hardly surprising that the decisions of this Court uphold the validity of laws made by the Parliament extending the jurisdiction of federal courts over non-federal claims which can be regarded as part of a single legal controversy. The same logic which demands a recognition of the ample power afforded to the Parliament to make such laws forbids a restrictive approach when the issue is the Parliament's power to make a law effectively confining such jurisdiction to some aspects only of the parties' legal controversy.

223. Take the present case. It must be assumed that the Parliament enacted the restrictions on the jurisdiction of the Federal Court of Australia for a reason. Ostensibly, that reason was because of a conclusion that all of the grounds of judicial review, provided by the common law or by other federal laws [163] , were not appropriate to review of decisions concerning the status of a person claiming to be a refugee. The delays, uncertainties and costs attending litigation of such cases have been noticed, including by this Court [164] . Those who framed and those who supported such legislation may have concluded that some applications for judicial review in this context were thinly disguised attempts to procure judicial redeterminations of the facts or the merits [165] . If that were the conclusion of the Parliament, it would be open to it to decide that such proceedings were diverting courts and the immigration process into peripheral issues of limited ultimate relevance to the true merits of the claim to refugee status in the particular case.

1. eg, Administrative Decisions (Judicial Review) Act 1997 Cth. 2. See, eg, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579-580 3. cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341 Aronson and Dyer, Judicial Review of Administrative Action (1996), pp 186-202.

224. Such a conclusion might be disputed. The presence of the unremovable facility to seek constitutional review in this Court would doubtless fuel such a dispute. Yet for the bulk of cases of this kind, working their way through the various levels of first instance, tribunal and judicial review determinations, it is by no means obvious that the conclusion is constitutionally forbidden. The Parliament may, in making laws conferring rights and privileges or imposing duties and obligations, take a broad or a narrow view. That is what the exercise of legislative power involves. Subject to the Constitution, it is a privilege that is inherent in the representative character of our democracy. Neither in expounding a grant of legislative power, nor in defining its restraints, should this Court adopt a construction restrictive of the constitutional grant. The only possible warrant for such a restriction would be the existence of a word, or phrase, or an implication necessarily arising from the structure of the Constitution itself. Is that so here?

225. It is true, as Gaudron J has pointed out, that the use in the Australian Constitution of the word "matter" rather than "cases" and "controversies", as appearing in the United States Constitution [166] , suggests, on textual grounds, that "matter" has a broader meaning than a particular legal proceeding. However, that conclusion has not been in doubt since the decision of this Court in In re Judiciary and Navigation Acts [167] . Acceptance of that truth casts no light, in my respectful opinion, upon the suggested restriction on the grant of legislative power which would prevent the Parliament from conferring jurisdiction with respect to some criteria and withholding jurisdiction with respect to others.

1. United States Constitution, Art III, s 2(1); Cohens v Virginia (1821) 19 US 120 at 170cf Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 507 Croome v Tasmania (1997) 191 CLR 119 at 133 2. (1921) 29 CLR 257 at 265.

226. When one goes to the other relevant textual considerations, they speak with a single voice. They contradict the supposed limitation on the legislative power which Ms Abebe would have us read into the word "matter". The amplitude of the opening words of s 77 argues against such a limitation. The particular provisions of pars (i) and (ii) of s 77 are also incompatible with the theory of an indivisible and irreducible matter. In s 77(i) the word "defining" connotes the fixing of the bounds or limits of the jurisdiction conferred on a federal court. The word "defining" should be given its full meaning. It connotes the imposition of restrictions on the jurisdiction of the federal court in question. It does so in the context of laws made "with respect to" "matters". It contradicts the rigid indivisibility and irreducibility of the notion of a "matter" urged by Ms Abebe.

227. An even more telling indication of what the Constitution permits is found in the text of s 77(ii). The reference in that paragraph to "defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States" (emphasis added) makes the constitutional purpose still clearer. The Parliament's power to make laws which confer jurisdiction extends to delineating precisely those aspects of the "matter" which are to be the subject of the conferral of jurisdiction and, by so doing, identifying those which are not. Here is an express recognition of the Parliament's power to divide a "matter" according to the "extent" which it considers to be appropriate. The express provisions of s 77(ii) throw additional light on the kind of "defining" of the jurisdiction of a federal court for which s 77(i) provides.

228. Of their nature, legal controversies commonly display several layers. Because of the delays and expense of litigation, parties frequently endeavour to confine their legal dispute in manageable ways. They may move to strike out a pleading. They may select particular issues to be fought. They may separate a question of law to be decided in advance of the trial. They may take one of the myriad interlocutory steps which are features of litigation, particularly modern complex litigation. Because legal controversies present so many potential faces, it must be accepted that drawing a line around the boundaries of the legal controversy, and defining it for constitutional purposes, presents a challenge upon which minds will easily differ. Particular aspects of the controversy may be appropriate to different treatment, before different courts according to their different jurisdictions. Different rights of appeal may be provided with respect to different decisions in relation to the matter and in respect of different parts of the conflict. To describe every part of such a legal controversy as indivisible and irreducible within the one constitutional "matter" and to insist that each and every such proceeding must, for that reason, be heard in a federal court if jurisdiction is conferred on it, is to impute a most serious inflexibility to the Constitution.

229. Only the clearest necessity of the text or of the structure of Ch III would justify imposing such a straitjacket on the Parliament when deciding how to "define" the jurisdiction of a federal court so as to assign to it some aspect of the legal controversy and to withhold other aspects. When the text and structure of the Constitution are examined, they do not require such a result. When the history of the Australian court system is studied, with its generally sensible interrelationship between State, territory and federal courts, it would be extraordinary to compel such an outcome. When statutory provisions for the rational assignment of legal proceedings within the Australian court system are remembered [168] , the need to impose such a doctrine of indivisibility (and thereby to limit the choices open to the Parliament) is revealed as unnecessary. It is disharmonious with the interpretation of the Constitution as a facility of rational and efficient government [169] .

1. As to the Judiciary Act 1903 Cth, s 40, see Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 602As to the jurisdiction of the Federal Court under the Trade Practices Act 1974 Cth, s 86, see Fencott v Muller (1983) 152 CLR 570As to the pendant or "associated" jurisdiction of the Federal Court under the Federal Court of Australia Act 1976 Cth, s 32(1), see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261As to cross-vesting legislation, see Gould v Brown (1998) 193 CLR 346 2. cf Flaherty v Girgis (1985) 4 NSWLR 248 at 254

Differentiated remedies do not suggest indivisibility

230. These conclusions leave only the question of whether something beyond the word "matter" imposes a restriction on the Parliament, either because of the implications to be derived from the irremovable facility of constitutional review in this Court (provided by s 75(v) of the Constitution) or because of implications to be drawn from the character and functions of the Judicature as established by Ch III.

231. There is no incompatibility between the facility given to this Court to provide the constitutional writs against an officer of the Commonwealth (s 75(v)) and the power given to the Parliament, elsewhere in Ch III, to make laws defining the jurisdiction of a federal court, other than the High Court, in a way which falls short of the constitutional grant of jurisdiction to this Court. In the hierarchy of courts, common to the legal system which preceded the Constitution and for which it now provides, it was not at all unusual for jurisdiction and powers to be enjoyed by higher courts which other courts, lower in the hierarchy, did not enjoy. Such distinctions are a product of legal history. Indeed, they are an inescapable feature of hierarchy. Fragmentation of proceedings, concerned with what may otherwise be notionally classified as a single legal controversy, is relatively common in our legal tradition. It may indeed be inconvenient, including to this Court, that the legal controversy between Ms Abebe, the Commonwealth and various officers of the Commonwealth is potentially divided between different courts. In addition to the two proceedings now before this Court there was even a third possible proceeding, by way of appeal to the Full Federal Court and (if special leave were granted) a further appeal to this Court. But such proceedings arise out of the different legal rights which Ms Abebe enjoyed, although all were concerned with substantially the same facts and circumstances.

232. The facility of appeal, where it exists, has never been taken as a reason to restrict or confine the availability of constitutional review provided by s 75(v) of the Constitution [170] . Courts exercising constitutional and judicial review usually develop practical ways of avoiding the worst problems associated with fragmentation of the proceedings [171] . However, the existence of such fragmentation is common. Its potential is actually increased by the advent of federation. The coincidence of the avenues of redress available to a person under s 75 of the Constitution, and under laws made pursuant to s 77, should therefore scarcely cause surprise. Still less should it occasion a suggestion of the implied constitutional incompatibility of the differentiated remedies. As is usually the case, the fragmentation may be explained simply by reference to the different laws affording different rights and privileges, imposing different duties and obligations and affording different forms of redress, sometimes in different courts.

1. It should be noted that appeals lie from "judgments, decrees, orders, and sentences" and not in respect of "matters". See Constitution, s 73. 2. cf R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 214 Ballam v Higgins (1986) 17 IR 131 at 133, per McHugh JA; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508-512, 519, 523; In re Preston [1985] AC 835 at 862; R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd [1966] 1 QB 380 at 400 R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720 at 728 Ex parte Waldron [1986] QB 824 at 852.

233. The Federal Court provides the relief appropriate to the rights, privileges, duties and obligations afforded in the relevant statutory definitions of its jurisdiction. This Court, having a larger jurisdiction founded in the Constitution itself [172] , is empowered to provide the constitutional remedies which belong to it. Because a "matter" presupposes a pre-existing foundation in law for the right or privilege claimed (or the duty and obligation imposed), far from being incompatible with past authority, the fragmentation complained of is an inherent consequence of the dependence of every matter, and every part of a matter, upon the pre-existing law which defines its content.

Separation of powers does not require indivisibility

234. Ms Abebe next argued that the division of the "matter", and the way it was effected in this case by the Act, conflicted with the implications to be derived from the Constitution and, specifically, those arising from the creation of a Judicature in which is vested the judicial power of the Commonwealth [173] . This argument had two parts. The first suggested that the fragmentation of the judicial process, inherent in the exclusion of the Federal Court from specified grounds of judicial review which would otherwise be within its jurisdiction, led to a result that was so incompatible with the character of a "federal court" (as Ch III envisaged it) as to render unconstitutional the attempt of the Parliament to confine the court's jurisdiction as it has. On this view s 77(i), when it provides for "defining the jurisdiction of any federal court", would be read so as to exclude this form of "definition" because it would be incompatible with the nature and functions of the kind of court which Ch III contemplates.

235. There can be no doubt that the power conferred on the Parliament by s 77(i) of the Constitution to define by law the jurisdiction of a federal court should be understood as one permitting the "definition" of jurisdiction in terms proper to a body which truly answers the description of a "federal court". To this extent, the limitations of the legislative power in s 77(i) derive as much from the imputed character of "federal courts", as envisaged by the Constitution, as from implications inherent in the word "matter". An attempt by the Parliament to make a law "defining" the jurisdiction of a federal court so as to include the provision of a purely advisory opinion, or the making of decisions on abstract questions divorced from any attempt to administer the law [174] , would be beyond legislative power. The judicial power of the Commonwealth can thus only be exercised in "accordance with the essential attributes of the curial process" [175] . This fact, and the characteristics which inhere in every "federal court", as such, undoubtedly place restrictions on the laws which the Parliament may make, including those which purport to "define" the jurisdiction of a federal court.

1. Croome v Tasmania (1997) 191 CLR 119 at 125, 135 citing Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 303 2. Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 607, per Deane J; at 703, per Gaudron J; cf Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 115-116

236. However, such restrictions are concerned (relevantly) with an attempt by the Parliament to require a federal court to do something which it may not do because of its constitutional character or an attempt to oblige it to do something which is incompatible with its constitutional independence. This point was explained in Chu Kheng Lim v Minister for Immigration [176] . The provisions of the Act considered in that case [177] purported to prohibit a court, otherwise having jurisdiction, from ordering the release from custody of "a designated person" who might be held unlawfully [178] . This Court found that provision to be constitutionally invalid. The majority drew an important distinction in the course of explaining their reasons [179] :

In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates. 1. (1992) 176 CLR 1. 2. See, eg, the Act, s 54R (see now s 183). 3. The Act, s 54L (see now s 178). 4. Chu Kheng Lim (1992) 176 CLR 1t 36-37, per Brennan, Deane and Dawson JJ. Emphasis added. Gaudron J agreed with this passage: see at 53.

237. Here, then, is the point which is critical to the provisions of Pt 8 of the Act, challenged in these proceedings. Those provisions grant certain jurisdiction to the Federal Court. They also withhold jurisdiction from the Federal Court. Specifically, they withhold jurisdiction although, by the Constitution, jurisdiction of a similar kind is granted to this Court and cannot be withdrawn from it by any law made by the Parliament. Yet within the jurisdiction so granted to the Federal Court, the Parliament has made no attempt whatever to dictate to it "the manner and outcome" of the exercise of that court's jurisdiction. It remains wholly independent. It performs functions proper to a federal court. The objection that the Parliament ought not to have granted and withheld jurisdiction in the precise manner that it has is an objection of a political or practical character. The practical implications for the work of this Court are potentially significant. But such political and practical arguments must be addressed to the Parliament not the Court [180] . So long as the law which it enacts offends no requirement or limitation of the Constitution and "defines" the jurisdiction of a federal court "with respect" to a "matter" within the Parliament's authority, such a law is constitutionally valid.

1. cf McCulloch v Maryland (1819) 17 US 159 at 206 Burton v Honan (1952) 86 CLR 169 at 179, per Dixon CJ; Herald and Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418 at 437 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 368 Leask v The Commonwealth (1996) 187 CLR 579 at 599

238. Finally, during argument, a question was raised whether the limited powers conferred on the Federal Court could require it to "affirm" the legality of a decision which might not, in truth, have been lawful and which this Court, exercising its constitutional jurisdiction, might later hold to have been unlawful. Did this possibility offend the implications derived from Ch III as to the independence of federal courts? The argument was that no law made by the Parliament could impose such an embarrassing obligation on a federal court in the guise of conferring jurisdiction upon it.

239. The practical reasons for Ms Abebe's apparent lack of enthusiasm for this point are explained by Gleeson CJ and McHugh J. Nevertheless, the question having been raised, it is the duty of the Court to answer it, for it goes to the validity of the contested legislation. It is relevant to the proper disposition of the question reserved for this Court's opinion.

240. I agree that, although the phrase in question is common to other federal legislation, the use by the Act of the word "affirming" (see, eg, s 481(1)) is unfortunate. Yet in its context, the word means no more than that the Federal Court has the power to confirm the decision of the Tribunal in so far as it possesses jurisdiction to review that decision. The word "affirming" would not be construed to effect some higher judicial approbation of the decision. This is because the Federal Court, a statutory court bound to conform to any valid law conferring jurisdiction upon it, is limited in the orders which it may lawfully make in a case of this kind. It reads too much into the word "affirming" to suggest that an order of the Federal Court, expressed in such terms, stamps the decision under review with the imprimatur of complete legality on every conceivable basis, whether litigated or not, whether within the jurisdiction of the Federal Court or not. Like any court order, that of the Federal Court here in question must be understood in the context, and for the purposes, of the jurisdiction being exercised [181] . As that jurisdiction is confined to particular grounds of review, as envisaged by the Act, the order "affirming" would be so understood. Nothing more would be read into it.

1. cf Rajah Tasadduq Rasul Khan v Manik Chand (1902) LR 30Ind App 35 at 39 (PC); The Commonwealth v Bank of NSW (1949) 79 CLR 497 at 625(PC); [1950] AC 235 at 294.

The fact that, in this case, the actual order made by the Federal Court was, in terms, expressed as a "dismissal" of the appeal is not determinative of the constitutional validity of the statutory provision upon which the order rested. That provision remains to be measured against the requirements of the Australian Constitution. It is possible that the order, as made in this case, reflected a distaste felt by some judges at having to "affirm" a decision which they have reviewed, but only on specified grounds and not on others. However that may be, an order "affirming" the decision of the Tribunal amounts, in law, to nothing more than a dismissal of the application for review before the Federal Court. Orders of dismissal and affirmation are not uncommonly linked interchangeably in this context. The argument that the Act, by providing for an order "affirming" the decision of the Tribunal, imposed on the Federal Court a duty incompatible with its constitutional independence fails.

On this footing it is unnecessary, in disposing of the referred question, to decide any argument about the severance of the provision for "an order affirming" the decision as contained in s 481(1)(a) of the Act. The section is valid. To the extent that there was ultimately before the Court any separate question as to the validity of par (a), I would reject the challenge.

In light of these conclusions, it is also unnecessary to consider the Commonwealth's arguments, whether based on discretion or on the law of estoppel, to resist the consideration by the Court of the application for constitutional relief. As that application fails, no separate question arises concerning the impediments (if any) to the provision of relief.

The application for relief under s 75(v) of the Constitution should be dismissed. As a matter of practicality, Ms Abebe was obliged to bring those separate proceedings in this Court only because of the procedural divisions imposed upon the court system by Pt 8 of the Act. I do not believe that two costs orders should be made in favour of the Commonwealth's interests. I would therefore make no order as to the costs of the s 75(v) proceedings. In the question reserved on the amended case stated, the answer given should be: No The plaintiff should pay the costs of the hearing in the Full Court. The proceedings should be remitted to a single Justice to be disposed of in accordance with the answer given by the Full Court.

Mrs Abebe, to whom I will refer as the plaintiff, is an Ethiopian national who arrived in Australia at Sydney Airport on a flight from Johannesburg, South Africa, on 6 March 1997. As she could not produce a valid passport she was interviewed and subsequently detained by an official of the Department of Immigration and Multicultural Affairs upon arrival. The plaintiff claimed that she had travelled from South Africa on a false passport provided to her by a friend which she had destroyed during the journey. She was held, and remains in immigrant detention in Sydney.

On 18 March 1997, the plaintiff applied to the Department for a protection visa pursuant to s 36(2) of the Migration Act 1958 Cth (the Act). That application was made on the basis that the plaintiff is a non-citizen in Australia to whom this country has protection obligations pursuant to the 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) of the Convention defines a refugee to be any person who:

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.

In her application for a protection visa, upon arrival at Sydney Airport and in an application for asylum in South Africa, the plaintiff stated the circumstances which had led her to flee from her country of origin and upon which she relied in support of her application for refugee status.

In doing so she made various, and some contradictory claims: that she was an ordinary member of the political party the All Amhara People's Organisation (the AAPO); that her husband also was a member of the AAPO and had been killed by the Ethiopian Government in 1994; that he had had his leg injured (and later amputated) in fighting the current regime; that he had been arrested and has not yet been released; that she had never been arrested or detained; and contrarily, that she was the victim of persecution and had been arrested, detained, raped and abused by guards of the current regime during that detention.

The plaintiff claimed a fear of persecution in Ethiopia on two grounds: for reasons of "political opinion", owing to her membership of the AAPO, and "race"; and, "membership of a particular social group": that as a social group to which she belonged, the Amhara ethnic group were subject to systematic persecution by the Ethiopian People's Revolutionary Democratic Front, an organisation in effective control of the Ethiopian Government.

On 21 June 1997, a delegate of the Minister refused the plaintiff's application. The delegate referred, in so doing, to the unreliable nature of the plaintiff's inconsistent statements to immigration officials both here and in South Africa, and found that she had not been truthful in her accounts. The delegate therefore refused to accept the plaintiff's claim of a well-founded fear of harm or mistreatment if she were to return to Ethiopia. The delegate had a "positive state of disbelief" [182] of the plaintiff's claims, based, in part at least, on the plaintiff's failure to mention to officials in South Africa and at Sydney Airport, that she had been imprisoned and then raped by Ethiopian police during her detention.

1. Minister for Immigration and Ethnic Affairs v Guo (1996) 64 FCR 151 at 191

252. On 25 June, the plaintiff applied to the Refugee Review Tribunal for review of that decision. The application for review was heard by Mr Hardy, a member of the Tribunal, on 6 and 28 August 1997. On 3 September 1997, the Tribunal held that the plaintiff was not a refugee and affirmed the decision not to grant a protection visa. The Tribunal rejected the plaintiff's claims and accordingly held that she did not have a well-founded fear of persecution in Ethiopia within the meaning of the Convention.

253. In a statutory declaration sworn on 5 August 1997 in evidence at the Tribunal hearings, the plaintiff admitted that aspects of her evidence were not truthful and offered the explanation that she was "simply telling the officer anything that came into my head to try and get him to let me through the airport" and that "I was telling lies because I thought it would help me get through the airport and I was scared that if I didn't keep talking I would be sent straight back to South Africa". In an earlier interview with an official of the Department, the plaintiff had alleged that interpreters in South Africa did not correctly represent her claims to them. The plaintiff herself later conceded that in part, the statutory declaration was not accurate and required correction. The plaintiff by the time of the second hearing by the Tribunal had retained the services of a clinical psychologist who made a report which sought to explain and justify some of the inconsistencies in the plaintiff's various accounts of events in her home country. The Tribunal did give consideration to this report although it might not have been admissible in evidence in conventional legal proceedings [183] .

1. See Farrell v The Queen (1998) 194 CLR 286 at 300, per Kirby J; at 321-322, per Callinan J.

The Tribunal's conclusions are contained in the following passage:

The Tribunal has considered the claims made by the Applicant at the second hearing and does not, in the context of the number of distorted claims made by the Applicant, accept her account of her husband's arrest. It follows that the Tribunal is not, in the circumstances, prepared to rely on the evidence before it as to her own.

The Tribunal considers it possible that the Applicant might have suffered some form of abuse in the past: her difficulty with the truth might be argued to be consistent with a disturbed past; however, it is not able to accept on [sic] the Applicant's evidence to the effect that she and her husband were the sole victims of a 1994 police swoop on their small suburban branch of the AAPO in isolation of anyone else in the branch, such as its leader and office holders, and in isolation of the kind of events that attracted such action during that year. The Tribunal concludes that the Applicant's claims about her husband still being detained are no more than a poorly-argued ambit. She did not convince the Tribunal that, for the reasons she gave, she had tried unsuccessfully to find out about him. The Applicant now has a long history, much of it admitted by her, of having told untruths. Her claims as to fear and confusion wear thin after six or seven occasions of "clearing the slate" as it were.

It appears to the Tribunal that the Applicant's corrections of her evidence can virtually all be attributed to adjustment subsequent to discovery. This does not help her case. At no point did she draw attention to corrections of untruths ahead of their possible discovery. This is evidence of something other than good faith on her part.

The Tribunal finds the Applicant an unreliable witness in this matter. Her claims in relation to "political opinion" are unsuccessful.

However, the Tribunal is prepared to accept that the Applicant is an Amhara and notes her claims to the effect that the Amhara are disliked by the current government and suffer discrimination. Nevertheless, the Tribunal considers the above-cited ([Department of Foreign Affairs and Trade] and other) information as to the circumstances of the Amhara in Ethiopia to negate her claims as to the existence of a real chance of persecution for reasons of her membership of this particular social ethnic group.

On the evidence, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Ethiopia. (Emphasis in original.)

The plaintiff filed in the Federal Court of Australia an application to review the decision of the Tribunal. That application was made pursuant to s 476 of the Act and was heard by Davies J on 11 December 1997. His Honour held that there was no reviewable error pursuant to s 476(1)(a), (d) or (e) of the Act in the Tribunal's decision. His Honour declined to entertain that part of the plaintiff's application raising matters which were, by s 475(2)(a) and (b) of the Act, declared to be unavailable as grounds upon which the Federal Court might review a decision of the Refugee Review Tribunal.

It is convenient to set out at this point, the provisions of s 476 of the Act which state the grounds upon which an application for review may be made:

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

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

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

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

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

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

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

Sub-sections (2) and (3) of s 476 then expressly exclude grounds upon which reliance might otherwise be sought to be placed:

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

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

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

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

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

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

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

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

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

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

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

Davies J examined the Tribunal's decision on the basis that the Court's task, pursuant to s 476 of the Act, was to ascertain whether there was an error of law in the Tribunal's decision, as opposed to the making of a review of the merits, or any entry upon a reconsideration of factual matters. His Honour said of the decision made by the Tribunal:

The substance of the case as put by the counsel for the applicant was based upon the allegation that the applicant had been detained and held in prison for two months by soldiers and had been repeatedly raped and abused during that period. Counsel submitted that the Tribunal erred by reaching a conclusion adverse to the applicant as there was no finding that that did not occur. It seems to me, however, that the Tribunal did not accept that evidence and that the Tribunal made that clear. The Tribunal certainly considered it possible that the applicant might have suffered some form of abuse in the past and that her difficulty with the truth may be consistent with a disturbed past. However, the Tribunal did not accept that such abuse had occurred as a result of her arrest by government soldiers, that she had been arrested because she had been a member of AAPO or that the mistreatment of which she complained was attributable either to her membership of AAPO or to her ethnicity.

On 22 December 1997 the plaintiff commenced proceedings for prerogative relief in this Court against the Tribunal and the Minister, pursuant to s 75(v) of the Constitution.

On 28 January 1998, Gummow J ordered that the application for prerogative relief be, pursuant to O 55, r 2 of the High Court Rules, made by notice of motion to a Full Court of this Court. That notice of motion was filed and served on 27 February 1998. Gummow J further ordered, on 24 August 1998, that the following question be reserved for the determination of the Full Court:

Are sections 476(2), (3) and 485 of the Migration Act 1958 beyond the legislative competence of the Commonwealth Parliament?

Subsequently a larger question for consideration by the Court was substituted:

In their application to the review by the Federal Court of Australia of decisions of the Refugee Review Tribunal, when that Tribunal is reviewing decisions of the nature referred to in section 411(1)(c) of the Migration Act 1958 Cth, are the provisions of Part 8 of that Act (or any of them) outside the legislative powers of the Commonwealth?

The sections to be considered need to be placed in context. Section 65 specifies the matters of which the Minister must be satisfied for the issue of a visa. In their absence, the Minister is to refuse to grant a visa. The Minister may delegate the making of the relevant decision [184] . Section 411(1)(c) provides that a decision to refuse to grant a protection visa is a decision that may be reviewed by the Refugee Review Tribunal.

1. Section 496(1) provides: "The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act."

Section 412 sets out the procedures and periods for the making of an application for review. By s 414, the Tribunal is obliged to review a decision to refuse a visa, save for a decision in respect of which the Minister has issued a conclusive certificate pursuant to s 411(3). Section 415 confers upon the Tribunal a power to reverse or affirm the decision, to make a new decision or to remit the matter for reconsideration.

Because counsel for the plaintiff places reliance on it, I set out s 420 in full:

(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

An oral hearing will only be necessary if, on a consideration of the papers filed by the parties, the Refugee Review Tribunal is not prepared to make the decision or recommendation most favourable to the applicant (ss 424, 425).

The Principal Member of the Refugee Review Tribunal may refer a decision raising an important principle or issue, or a matter of general application, to the President of the Administrative Appeals Tribunal, who may accept such a referral (ss 443, 444).

Section 475 provides that a decision of the Refugee Review Tribunal is a judicially reviewable decision, and s 476, which I have already quoted, prescribes the available grounds of review. Those grounds mirror some of the grounds of review for which the Administrative Decisions (Judicial Review) Act 1977 Cth provides but fall well short of the latter in their breadth and totality. The Federal Court is given, by s 481, extensive powers of dealing with the decision if any of the available grounds are made out:

(1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(2) On an application for a review in respect of a failure to make a judicially-reviewable decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court may make any or all of the following orders:

(b) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(3) The Federal Court may, at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.

Section 485 confines the jurisdiction of the Federal Court to the jurisdiction expressly conferred by Pt 8 of the Act and s 486 is in these terms:

The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under s 75 of the Constitution.

The plaintiff's principal submission was that apart from the instances referred to by Kirby J in Gould v Brown [185] , conferral of original jurisdiction upon any federal court under s 77(i) of the Constitution may only be with respect to "matters" as referred to in ss 75 and 76 [186] of the Constitution. In argument, the plaintiff developed this submission by arguing that although the legislature might define the "matter" for consideration by a member or officer of the executive, or a delegate, or any other original decision maker, narrowly or broadly, the matter for decision once so defined must remain intact and complete, in the sense that all issues that might have been relevant at the first level of decision making must remain as issues for decision at any subsequent level of review or appeal, especially the Federal Court, as a court created pursuant to Ch III of the Constitution. (This limb of the plaintiff's argument was confined to the jurisdiction of a federal tribunal or court other than the High Court.)

1. (1998) 193 CLR 346 at 493. 2. Sections 75, 76 and 77(i) provide: "75 In all matters - (i) Arising under any treaty: (ii) Affecting consuls or other representatives of other countries: (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: (iv) Between States, or between residents of different States, or between a State and a resident of another State: (v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction. 76 The Parliament may make laws conferring original jurisdiction on the High Court in any matter - (i) Arising under this Constitution, or involving its interpretation: (ii) Arising under any laws made by the Parliament: (iii) Of Admiralty and maritime jurisdiction: (iv) Relating to the same subject-matter claimed under the laws of different States. 77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws - (i) Defining the jurisdiction of any federal court other than the High Court."

270. Counsel for the plaintiff relied upon a passage in the judgment of Mason, Brennan and Deane JJ in Stack v Coast Securities (No 9) Pty Ltd [187] :

[T]he content of a "matter" in s 76 and the scope of federal jurisdiction in a proceeding are not restricted to the determination of the federal claim or cause of action in the proceeding, but extend beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part. 1. (1983) 154 CLR 261 at 290.

271. Reliance was also placed on a statement to a similar effect of Gibbs CJ [188] in which his Honour said that it had been held in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [189] and Fencott v Muller [190] that "when jurisdiction is conferred on the Federal Court with respect to a matter, that Court has jurisdiction to determine all the questions which form part of that matter".

1. Stack (1983) 154 CLR 261 at 278 2. (1981) 148 CLR 457. 3. (1983) 152 CLR 570.

272. The plaintiff contended that in identifying a matter within the meaning of s 76(ii), it is erroneous to exclude a substantial part of what is a single justiciable controversy and effectively to preclude thereby the exercise of judicial power to determine the whole of that controversy [191] . This submission, if correct, could have very far reaching ramifications for many federal statutory and specialist tribunals whose decisions may be subject to review, or to appeal upon grounds more limited than those in issue at first instance [192] .

1. Fencott v Muller (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan and Deane JJ; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 282, per Gibbs CJ. 2. The grounds available for review generally of a decision by a member of the executive progressively shrink at each ascending level pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act. The latter confine the issues for determination by the Federal Court to issues of law only: see, eg, s 43(1) of the Administrative Appeals Tribunal Act 1975 Cth.

273. The Federal Court is a court created by the Parliament pursuant to s 71 of the Constitution. Section 71 itself does not by its language suggest that a court created pursuant to it must have unlimited federal jurisdiction, or any particular quantum of federal jurisdiction. It is the jurisdiction of the High Court only that Ch III of the Constitution expressly defines and which cannot be legislatively truncated. The Commonwealth legislature can confer upon other federal courts jurisdiction in various forms and quantities: in short, as s 77(i) states, it may define that jurisdiction.

Under the Constitution, the jurisdiction of a federal court can be defined only by an Act of the Parliament, and the jurisdiction so defined can be as wide as, or narrower than, (but not of course wider than) the matters mentioned in ss 75 and 76. 1. (1983) 154 CLR 261 at 281.

275. Some reliance was placed by the plaintiff upon the reasoning of this Court in O'Toole v Charles David Pty Ltd [194] in which it was unanimously held that in proceedings for the enforcement of an award, the presence of the privative clause could not operate to prevent the Federal Court from considering the constitutional validity of the award. Attention was focused upon s 5 of the Commonwealth of Australia Constitution Act 1900 UK by the Court in that case. But that case decides what is self-evidently correct: that that section operates to ensure that no body, that is to say, no person, corporation, tribunal or court may apply or act upon a law which lacks constitutional validity [195] . Here, Pt 8 of the Act does not purport to direct or require the Federal Court or anyone else to defy the Constitution or act otherwise than in accordance with it.

1. (1991) 171 CLR 232. 2. O'Toole (1991) 171 CLR 232 at 250-252, per Mason CJ; at 272-273, per Brennan J; at 307-308, per Dawson J (with whom Toohey J agreed).

276. For the purposes of ss 75-77 of the Constitution, the term "matter" means the subject matter for determination in a legal proceeding [196] , and not necessarily the legal proceeding itself in exactly the form in which it was first presented. And, as Griffith CJ said in South Australia v Victoria [197] , a matter must be such that it can be determined on principles of law.

1. See In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-266; see also Croome v Tasmania (1997) 191 CLR 119 2. (1911) 12 CLR 667 at 675.

277. The cases which held or affirmed that the Federal Court possessed accrued jurisdiction in respect of cases brought under the Trade Practices Act 1974 Cth [198] in order to enable that Court to determine completely a "matter" within ss 75 and 76 do not establish that jurisdiction may only be conferred on a federal court in relation to all matters in controversy at the inception of the process in respect of which either a review or an appeal is made available by statute. Those cases effectively hold no more than that the Federal Court has a jurisdiction no wider or greater than a jurisdiction to decide such non-federal claims as are inseparable from federal claims based upon the same factual situations. There is no reason why Parliament, within power, may not reduce or take away rights earlier conferred. As Brennan CJ and McHugh J said in Kartinyeri v The Commonwealth [199] , the power to make laws includes the power to unmake them. Here, the Parliament gave entrants to Australia (by the adoption of the Convention and the passage of Pt 8 of the Act) certain rights in respect of what would otherwise be matters for the executive exclusively, rights which extended to recourse to the Federal Court. It follows, as the plaintiff was bound to concede, that had no provision been made for the creation of these rights then the decision of the Minister would have been conclusive.

1. See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Fencott v Muller (1983) 152 CLR 570 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261cf in relation to State courts exercising federal jurisdiction Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 2. (1998) 195 CLR 337 at 355.

278. Legislation made under the Constitution cannot determine its interpretation, but an examination of the legal consequences of the invalidation or validation of that legislation may assist in the search for the intended operation of a constitutional provision. Section 44 of the Judiciary Act 1903 Cth expressly contemplates that the High Court may remit "any part" of a matter before it to a lower court. Section 2 of that Act contains a statutory definition of "matter" for the purposes of that Act. Newcrest Mining (WA) Ltd v The Commonwealth [200] is an example of such a remittal. The legislature assumed that pursuant to s 44 it is possible for a court (including a federal court) to exercise jurisdiction in relation to a part of a "matter" falling within s 75 or s 76 of the Constitution. In my opinion that assumption is correct. Were s 44 to be invalidated such a remitter would not be possible.

279. If a matter arises under a law (within power) made by the Parliament, the scope of the matter is to be ascertained by reference to the statute which creates the right or duty and confers jurisdiction on the Court to enforce it. The content of the matter will depend on the terms of the relevant law under which the matter arises. Any issue which is declared not justiciable by that law will not form part of the matter as defined by s 76(ii). As Gummow J observed in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [201] :

It may be that with respect to matters which arise under a law made by the Parliament, it is for the Parliament to create the rights or obligations in question and in so doing to determine the content of matters arising under that law. In other words, the rights and obligations, which supply the foundation for the controversy which is the "matter", would be provided by the statute. The statute itself thus would govern the content of that matter. 1. (1988) 82 ALR 175 at 181; 19 ATR 1067 at 1072; 88 ATC 4,279 at 4,282. See also O'Toole v Charles David Pty Ltd (1989) 29 IR 1 at 22-2390 ALR 112 at 136, per Northrop J; at 44-46, per Gummow J (with whom Bowen CJ and Morling J agreed).

280. Thus "[a] matter arising under a law made by the Parliament referred to in s 76(ii) of the Constitution is that which is specified, or indicated, as a justiciable subject matter by the law defining the jurisdiction of the court" [202] . The same provision can both create a right in respect of which a matter may arise, and invest a court with jurisdiction in that matter; "[a] right is created by the provision that a court may make an order, and such a provision also gives jurisdiction to the court to make the order" [203] .

1. West Australian Psychiatric Nurses' Association (Union of Workers) v Australian Nursing Federation (1991) 30 FCR 120 at 123, per Lee J. 2. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 155, per Latham CJ; see also at 168, per Dixon J.

The submissions of the plaintiff that the Federal Court was wrongly deprived of a jurisdiction to decide a "matter" within the meaning of that term as used in Ch III of the Constitution because a matter must remain unfragmented as to all issues when it comes to be reviewed by a federal court must be rejected.

I would also reject the plaintiff's proposition that s 476 in its current form requires the Federal Court to exercise its powers in a manner inconsistent with the essential character of a court. It was put that a statutory provision which seeks to preclude the determination by a federal court of matters in controversy constitutes an impermissible intrusion into the exercise of judicial power. In support of that contention, counsel for the plaintiff referred to a passage from the judgment of Mason CJ in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [204] :

[A] statutory provision which attempts to preclude the determination by a federal court of facts in controversy constitutes an impermissible intrusion into the exercise of judicial power. 1. (1995) 183 CLR 168 at 185.

By the time the "matter" comes to the Federal Court, the facts are no longer in controversy. The facts are those that have been found by the Refugee Review Tribunal. The controversy, as a "matter", by the time that it comes before the Federal Court, is as defined by such grounds as the plaintiff is able to invoke, and as s 476 of the Act makes available, and falls to be resolved on the factual findings made below.

As to the argument that s 476 should be read as subject to s 420 of the Act, I would hold that the very general provisions of s 420(1) cannot operate to alter the clear meaning of the very specific provisions of s 476 which are intended to state, and do clearly state and limit with precision, the grounds upon which those proceedings may be reviewed. In short the imposition of an obligation upon the Tribunal pursuant to s 420(1) to conduct its proceedings in a certain way cannot enlarge the grounds prescribed by s 476 for review in another place, the Federal Court, of the decision of the Tribunal.

In arguing that s 481(1) of the Act was beyond the legislative power of the Parliament, the plaintiff fixed upon the word "affirming" in s 481(1) of the Act.

The argument proceeded upon the basis that if a decision of the Refugee Review Tribunal was flawed, for reasons which s 476 excluded from consideration by the Federal Court but which would otherwise ground relief which could be granted by the High Court in the exercise of its prerogative jurisdiction, were the Federal Court to "affirm" that decision, that Court might be seen to be legitimising judicially activities of the executive branch of the government that were unlawful. The short answer to this argument is that Davies J in the Federal Court did not, in terms, "affirm" the decision of the Refugee Review Tribunal. His Honour's conclusion was expressed in this way:

In these circumstances, I am not satisfied that there was any error in the Tribunal's decision and, in particular, I am not satisfied that there was any error which this Court would have jurisdiction to correct. For those reasons the application must be dismissed with costs.

Words should not be read into his Honour's explicit conclusion. He did not "affirm" the decision of the Tribunal. He dismissed the application.

A further answer is that, simply because a court may dismiss an application which perhaps it might not dismiss if its powers to deal with the application were unlimited, or even were of the very broad kind customarily exercised by an appellate court conducting a rehearing, does not mean that the court in dismissing the application is affirming the objective correctness in all respects of the decision under review.

The meaning of the word "affirming" in s 481(1) of the Act should in any event be taken to be no more than the abstaining from interference with the decision of the Refugee Review Tribunal. Accordingly the use of the word "affirming" does not, as argued by the plaintiff, involve any breach of the doctrine of the separation of powers.

I now turn to the application for prerogative relief pursuant to s 75(v) of the Constitution.

This application is based upon grounds of the kind which the Federal Court, in reviewing a decision of the Refugee Review Tribunal, is not entitled to entertain, by reason of s 476(2) and (3)(d) and (e). Davies J in the Federal Court declined to entertain the application for review insofar as it relied on those grounds and, as I have held, correctly so. The High Court's jurisdiction however is relevantly governed only by the Constitution so that if the plaintiff can make out a case for prerogative relief, (subject only to discretionary considerations) she must have that relief.

The plaintiff submitted that the statements which she made in Australia as to the events which caused her to flee Ethiopia and seek refugee status were consistently to the same effect: that essentially she held well-founded fears of the kind to which the Convention referred, of persecution because of her membership of the AAPO, and membership of the Amhara ethnic group, in consequence of either, or both of which, she had been arrested, raped and held in custody for more than two months.

The submissions were made as if the proceedings before the delegate and the Tribunal were almost exclusively of an adversarial and not of an investigative kind and that her allegations of rape were either not, or not sufficiently challenged in those proceedings.

The plaintiff submitted that the failure by the Tribunal to challenge these matters involved a failure to comply with s 420(1) of the Act: that for the Tribunal to disbelieve her without expressly putting these matters to her, and to make no assertion to her that her statement that she had been raped was false, was to fail to accord her natural justice.

There are two answers to this submission. One is that the Tribunal in undertaking its essentially investigative function is not obliged to put, as an adversary in adversarial proceedings might be bound to do, in respect of each and every key matter, an assertion of apparent falsity or unreliability. Secondly, examination of the proceedings before the Tribunal shows that the member who constituted it made plain in a number of ways, and at numerous times, that the plaintiff's reliability on all matters was of great importance to the final matter which he had to decide.

Undoubtedly rape would be an act of oppression or persecution of the kind contemplated by the Convention if it occurred in relation to a victim's political or ethnic affiliations or membership. But an examination of the Tribunal's approach to this matter and decision generally do not suggest that the Tribunal was of any different opinion. What the Tribunal was concerned to do, and did not improperly or inadequately do, was to try to establish whether what the plaintiff stated, both as to matters of detail and generally, was accurate. In the end the Tribunal formed the view that the plaintiff was unreliable and that the plaintiff did not genuinely hold a well-founded fear (whether by reason of rape or otherwise) of persecution within the meaning of the Convention.

The plaintiff also submitted that the Tribunal failed to take into account a relevant consideration. The relevant consideration was said to be that the plaintiff had been raped by State officials while in detention because of her political affiliations and racial background. If however there was no rape, as the Tribunal effectively found, that matter did not arise.

A related submission was that the decision was manifestly unreasonable in the sense in which that concept is developed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [205] , because the Tribunal in reaching it failed to investigate an essential aspect of the plaintiff's claim, that is, the genuineness of the claim of rape and the circumstances surrounding it. That submission is met with the same answer as the previous one. The Tribunal did, but largely at the plaintiff's invitation, characterise the central element of the plaintiff's contentions as abuse whilst in detention. If there had been no detention, then abuse during it could not have occurred, or, alternatively, absent detention, possible abuse would be unrelated to any Convention ground and would therefore be irrelevant [206] .

1. [1948] 1 KB 223. 2. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240-241, per Dawson J; at 257-258, per McHugh J.

299. Finally, on this limb of the plaintiff's argument, even if it were possible to find differences between the evidence and the complexion put upon it by the Tribunal, no reviewable error of law was established [207] .

1. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, per Mason CJ.

300. Only one other matter need be mentioned. The plaintiff did not appeal as she might have done from the decision of the Federal Court to the Full Court of the Federal Court [208] . Although the point was not fully articulated by the respondent, it was at least suggested that there was an issue estoppel, or what is sometimes described as an Anshun type estoppel [209] precluding the plaintiff from pursuing any separate remedies in this Court. Although it is open to doubt whether such an estoppel can arise in relation to the exercise of the judicial power of this Court pursuant to s 75(v) of the Constitution, to the extent that discretionary considerations may be relevant to the grant of any prerogative or injunctive relief sought pursuant to that subsection of the Constitution, that consideration would certainly be relevant.

1. Federal Court of Australia Act 1976 Cth, s 24. 2. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

301. However it is unnecessary to pursue that matter as the plaintiff has not made out a case for prerogative or other relief.

302. I would dismiss the notice of motion with costs and order that the substituted reserved question be answered "no". The plaintiff should also pay the respondent's costs of and incidental to the reserved question.