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[2010] HCA 48
appellant. Appeal allowed with costs. Paragraphs 1 and 2(a) and (b) of the Federal Court order of 24 November 2009 set aside and, in lieu, the appeal to that Court dismissed.
The High Court decided that the Refugee Review Tribunal made no legal mistake when it refused protection visas to a Nepali teacher and his wife. The couple feared Maoists because they had been forced to pay 'revolutionary taxes' and attend training camps. After Nepal's civil war ended and the Maoists joined the government, the Tribunal thought the danger had passed, especially in Kathmandu where the couple's children lived safely. It gave no weight to letters from school principals saying the family was still being sought, because the letters did not match the man's own evidence that conditions had improved and because he had exaggerated his activism. The Tribunal called one part of his evidence a 'baseless tactic' because he only stressed his teacher status after the Tribunal pointed out that others were no longer hiding. The Federal Court said this showed the Tribunal had not genuinely considered the letters and appeared biased. The High Court said no: weighing evidence is the Tribunal's job, not the court's. Disagreeing with the weight given is not the same as finding a legal error. The language used, read fairly in the whole decision, did not show the Tribunal had closed its mind. The Minister's appeal succeeded and the original refusal stands.
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5 cited instruments linked from this judgment.
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The first and second respondents, a married couple from Nepal, arrived in Australia on 22 February 2006 during the final months of the Nepalese civil war. Within weeks they lodged applications for protection visas, claiming a well-founded fear of persecution under the Refugees Convention for reasons of political opinion and membership of particular social groups (teachers and business people). The first respondent had been a school teacher and shopkeeper in the remote Turang village in the Gulmi District. He claimed that Maoists had compelled him and other teachers to pay increasing "revolutionary taxes" deducted from wages, rising from one day's pay per month to one week's pay, and had forced him to attend Maoist training camps where he was required to incorporate Maoist curriculum. He also claimed to have paid additional taxes on the family shop. Both the Maoists and the Royal Nepalese Army and police suspected him of sympathising with the opposing side. He feared that relocation to Kathmandu would be unsafe because Maoists maintained networks there.
A delegate refused the applications on 3 July 2006. The first Tribunal affirmed that refusal on 10 October 2006. The Federal Magistrates Court quashed that decision and remitted the matter. A second, differently constituted Tribunal again affirmed the refusal; that decision was also quashed by consent orders in the Federal Magistrates Court. On 15 October 2008 a third Tribunal, differently constituted, affirmed the delegate's decision for the third time. That Tribunal accepted that "school teachers" and "business people" or "shopkeepers" could constitute particular social groups for Convention purposes. It accepted that the first respondent had been forced to attend Maoist training camps in the past. However, it found that significant social and political changes had occurred in Nepal since the respondents' departure. A Comprehensive Peace Agreement had been signed in November 2006, the Maoists had entered government, parliamentary elections had been held in 2008, and the civil war had ended. The first respondent himself gave evidence at the 13 August 2008 hearing that many people previously in danger or hiding were no longer in danger or hiding, and that his children remaining in Nepal faced no danger. He nevertheless maintained that he personally would not be safe.
Critical to the subsequent litigation were three letters written after the respondents' arrival in Australia. Two letters dated 20 March 2006 and 18 May 2006 from the headmaster of the first respondent's former school in Gulmi stated that Maoists and armed forces were searching for him and that his teaching position had been terminated for safety reasons. A third letter dated 20 March 2006 from the principal of the Polaris Secondary Boarding School attended by the respondents' daughters stated that the school could no longer accept the children as boarders because of Maoist pressure. The third Tribunal gave "no weight" to the content of these letters. It found that the first respondent had exaggerated his membership of Amnesty International and that the letters were solicited. It considered that the letters were undermined by the first respondent's own evidence that Maoists had treated pro- and anti-Maoist teachers the same and by the absence of evidence that such practices continued in larger cities. In relation to the revolutionary taxes claim, the Tribunal found that the first respondent's late emphasis on his teacher vocation (when asked why he could not live openly in Kathmandu like his brother) was "a baseless tactic" to meet the adverse impression created by his own evidence that former targets were now living safely.
The Federal Magistrates Court dismissed an application for judicial review. On appeal, Rares J in the Federal Court held that the Tribunal had committed jurisdictional error by failing to give "proper, genuine and realistic consideration" to the letters, by characterising evidence as a "baseless tactic" without evidence and contrary to the evidence, and that the reasons as a whole gave rise to a reasonable apprehension of bias. The Minister was granted special leave to appeal to the High Court on conditions that he not disturb costs orders below and that he pay the respondents' costs in any event. The High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) unanimously allowed the appeal, set aside the Federal Court's orders, and restored the Tribunal's decision.
The High Court began by recalling foundational principles of judicial review. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd and Brennan J in Attorney-General (NSW) v Quin were cited for the proposition that courts do not review the merits of administrative action; mere preference for a different factual outcome is insufficient to overturn a decision. The Court traced the statutory evolution of migration judicial review from the ADJR Act grounds (including improper exercise of power and failure to consider relevant matters) through the introduction and later repeal of restrictive Pt 8 provisions to the current s 474 privative clause, which does not protect jurisdictional error (Plaintiff S157/2002). Within that framework, the Court accepted that the statutory duty under s 414(1) and s 425(1) of the Migration Act to review and to afford a hearing implies that evidence must be given proper, genuine and realistic consideration, as the Minister had conceded.
However, the Court emphasised that the epithets "proper, genuine and realistic" must not be taken out of context so as to licence impermissible merits review, citing Basten JA in Swift v SAS Trustee Corporation. The Federal Court's conclusion that the Tribunal had not genuinely considered the letters was held to be an emphatic disagreement with the Tribunal's factual weighing rather than identification of legal error. On a fair reading of the Tribunal's reasons as a whole, the statement that it gave the letters "no weight" was not a formulaic dismissal but a conclusion that the letters did not establish ongoing danger in Kathmandu once weighed against the first respondent's own evidence of changed country conditions, his concessions that many former targets were now safe, the safety of his children in private schools in Kathmandu, and his exaggeration of Amnesty International membership. The Tribunal had accepted the letters originated from the schools but found their content undermined; that was a merits assessment, not a failure to take relevant considerations into account in the Peko-Wallsend or Yusuf sense, nor a failure to respond to a substantial argument as in Dranichnikov.
Similarly, the phrase "baseless tactic" was read in context. The Tribunal had pointed out to the first respondent that his own evidence suggested improved conditions. When he responded by emphasising his teacher status (while not suggesting his brother, who was not a teacher, was at risk), the Tribunal evaluated that response as a "tactic" to overcome the adverse impression. The Court held that the Tribunal had accepted the first respondent had been a teacher; what it found baseless was the claim that teacher status would now attract persecution in Kathmandu. The evaluation of that evidence was for the Tribunal. The language, though perhaps inelegant, did not reveal conclusions lacking any basis in the material.
On apprehended bias, the Court distinguished Re Refugee Review Tribunal; Ex parte H, noting that the allegation here rested on language in the written reasons rather than conduct during the hearing. A fair-minded lay observer, properly informed that the Tribunal conducts an inquisitorial inquiry and is not required to accept claims uncritically, would not apprehend bias. The assessment that the first respondent could safely join his family in Kathmandu was based on his own evidence about changed circumstances and the absence of country information showing risk to teachers in large cities. The Court also distinguished NAIS, observing that the first respondent's evidence before three Tribunals had not been impaired by significant delay affecting credibility assessment; rather, the relevant assessment date was 2008, when country conditions had materially changed. The Federal Court's reliance on delay and repetition was therefore misplaced. In short, the High Court decided the case this way because the Federal Court had crossed the line between legality and merits, contrary to long-established principle.
Prior to this decision the law on judicial review of migration decisions had undergone significant statutory and judicial development. The ADJR Act grounds in ss 5 and 6 included improper exercise of power, failure to consider relevant matters, unreasonableness, and abuse of power. In Khan v Minister for Immigration and Ethnic Affairs Gummow J held that a decision-maker must give proper, genuine and realistic consideration to the merits and be prepared to depart from policy. The 1992 and 1994 amendments introduced Pt 8 which sought to restrict review by excluding certain grounds including failure to consider relevant considerations and breach of natural justice. Minister for Immigration and Multicultural Affairs v Yusuf nevertheless recognised that ignoring relevant material could amount to jurisdictional error affecting the exercise of power.
From 2001, s 474 inserted a privative clause that was read in Plaintiff S157/2002 as not protecting decisions involving jurisdictional error, preserving the constitutional jurisdiction under s 75(v). NAIS confirmed that the statutory opportunity to appear before the Tribunal implied that evidence must receive proper, genuine and realistic consideration. Swift v SAS Trustee Corporation warned that the Khan language, taken out of context, risked sliding into merits review.
This judgment clarified and reinforced the narrow compass of judicial review. It confirmed that "proper, genuine and realistic consideration" does not authorise a court to re-evaluate the weight the Tribunal gave to evidence or to substitute its own view on whether letters were "highly supportive" or "powerfully corroborative". The Court reiterated that describing reasoning as irrational may be no more than emphatic disagreement. The decision stands as an emphatic restatement that the Tribunal's assessment of country conditions, inconsistencies in applicant evidence, and the probative force of corroborative documents remains within the merits sphere. After the decision, lower courts must be careful not to characterise disagreement with a Tribunal's factual conclusions as a constructive failure to exercise jurisdiction or as unreasonableness of the Wednesbury type. The judgment also narrowed the circumstances in which language in Tribunal reasons will ground an apprehended bias claim, requiring the reasons to be read as a whole and in their inquisitorial context. The distinction between legality and merits, drawn from Peko-Wallsend and Quin, was given renewed prominence in the migration jurisdiction.
At paragraph 8 the Court quoted Brennan J: "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." In plain English this means courts check whether the Tribunal followed the legal rules, but they do not decide whether the Tribunal reached the correct factual answer on protection claims.
Paragraph 18 cites Basten JA in Swift: "That which had to be properly considered was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review." This warns judges that the famous Khan formula can be misused to let courts redo the Tribunal's fact-finding under the guise of legal review.
The Tribunal's treatment of the letters is set out at paragraphs 12-13 of its reasons (extracted in the judgment). It said the claim of continued Maoist pursuit in Kathmandu "appears supported by the text in the Gulmi headmaster's letters" but "the Tribunal gives no weight to it" because it was "undermined by the [first respondent's] evidence" about equal treatment of teachers and his exaggerated activism, and the letters appeared solicited. Plain English: we have read the letters but other evidence, including what you yourself said, makes them unpersuasive, so we give them no weight.
On the "baseless tactic" the Tribunal stated (extracted at paragraph 16 of the judgment): "The Tribunal is of the view that to a very large part, the [first respondent]'s reference to being a school teacher at this point was a baseless tactic to help him address the potentially adverse impression the Tribunal disclosed to him after he said that people who used to be in hiding from the Maoists are now living out in the open." Plain English: when we pointed out that your own evidence showed conditions had improved, you suddenly stressed that you are a teacher. We think that was just a last-minute argument that does not stack up, because your brother is safe in Kathmandu without being a teacher.
The core ratio appears at paragraph 23: "The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters 'no weight' it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written." Translation: the Tribunal did not ignore the letters; it simply decided they were outweighed by later evidence of changed circumstances. That is not a legal mistake.
Paragraph 24 states: "It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it." In plain English, sometimes when a judge says a decision is irrational they are really just saying they would have decided the facts differently.
On bias, paragraph 27 notes that the allegation rested on language in the reasons rather than hearing conduct, and that the inquisitorial nature of the Tribunal would be understood by a fair-minded observer. Paragraph 28 concludes that the expression "baseless tactic" was used as part of an evidence-based rejection and did not pre-judge a central issue.
This precedent is triggered whenever a Refugee Review Tribunal evaluates country information showing material change in circumstances since an applicant left their home country and weighs that information against late or inconsistent claims by the applicant. It applies where an applicant produces letters or documents written after departure that appear corroborative but the Tribunal finds them undermined by the applicant's own oral evidence (for example, concessions that many people previously at risk are now safe) or by the safety of family members remaining in the home country. The case is engaged when the Tribunal gives "no weight" to such documents after expressly considering their origin and content but preferring other evidence, including the applicant's concessions about improved conditions after a peace agreement or regime change.
The decision also governs cases in which the Tribunal uses robust evaluative language such as "baseless tactic", "exaggerated", or "solicited" in its reasons, provided that language is anchored in identified inconsistencies or country information and the reasons are read as a whole. It applies to situations where an applicant has given evidence before multiple differently constituted Tribunals over several years and seeks to characterise that repetition or the passage of time as creating unfairness or delay impairing credibility assessment; the precedent holds that the relevant date for assessing well-founded fear remains the date of the current Tribunal decision, and that changed country conditions are the operative factor rather than delay per se.
Fact patterns that engage the case further include any judicial review application in which a Federal Court or Federal Magistrates Court judge describes Tribunal reasons as failing to give "proper, genuine and realistic consideration" or as displaying "apparent bias" on the basis that the judge would have treated corroborative letters as determinative or would have viewed particular language as disturbing. The precedent is triggered whenever a court is invited to find jurisdictional error merely because it considers the Tribunal's weighing of evidence to be "irrational" or "unreasonable" in the sense that the court itself would have given the letters substantial weight. It applies to claims based on imputed political opinion or particular social group membership (teachers, shopkeepers) in countries that have undergone peace agreements or governmental restructuring during the applicant's absence. Finally, it governs cases in which the Tribunal notes that an applicant modified claims in light of updated country information put to him at hearing and then evaluates the modification against the remainder of his evidence.
Although the judgment itself does not cite subsequent decisions, its treatment of earlier authorities demonstrates the approach later courts are expected to follow. The Court applied Peko-Wallsend and Quin for the legality/merits distinction and cited Yusuf for the proposition that ignoring relevant material can constitute jurisdictional error only where it affects the exercise of power. It distinguished NAIS on the basis that the evidence in the present case was not impaired by significant delay affecting credibility; the relevant assessment occurred in 2008 against 2008 country conditions. The distinction drawn between hearing conduct (Ex parte H) and language in written reasons has guided subsequent analysis of bias claims based on reasons alone. The approval of Basten JA's warning in Swift against sliding into merits review via the Khan formula has reinforced a stricter approach to the "proper, genuine and realistic consideration" ground.
The judgment reversed the Federal Court's finding that giving "no weight" to the letters while reciting that they had been considered amounted to a constructive failure to exercise jurisdiction. Later courts are therefore directed to examine the reasons as a whole to determine whether the Tribunal has in fact engaged with the material. The Court's insistence that the "baseless tactic" language did not reveal pre-judgment, when read with the Tribunal's acceptance that the first respondent had been a teacher and its reliance on his own concessions, indicates that robust evaluative language will not lightly ground bias or error findings where it forms part of an evidence-based chain of reasoning. The decision's emphasis that a fair-minded lay observer understands the inquisitorial nature of Tribunal proceedings has narrowed the scope for apprehended bias claims founded on tone alone. By restoring the Tribunal decision and characterising the Federal Court's approach as impermissible merits review, the High Court signalled that similar Federal Court reasoning would be corrected on appeal. The precedent therefore operates as a corrective to over-expansive readings of jurisdictional error in protection visa cases involving changed country conditions and post-departure corroborative documents.
The judgment leaves open the precise boundary at which evaluative language in Tribunal reasons might cross from robust fact-finding into apparent pre-judgment. While the Court held that "baseless tactic" in context did not demonstrate bias, it acknowledged that the Tribunal "might have used a simpler expression". The question remains what degree of pejorative language, unaccompanied by clear anchoring in identified evidentiary inconsistencies, would cause a fair-minded lay observer to apprehend that the Tribunal had closed its mind before completing its assessment.
Another open question is the extent to which a Tribunal may treat post-departure letters as "solicited" or of no weight solely on the basis of the timing of their creation and perceived inconsistencies, without making an explicit finding that the authors were prepared to write falsehoods. The Federal Court had said it could not conceive how any rational approach could give the letters no weight once their authors were not found to be dishonest. The High Court rejected that as merits review, but the limits of permissible inference from timing and inconsistency are not exhaustively stated.
The interaction between the duty to give proper, genuine and realistic consideration and the obligation to consider the "real chance" test in the reasonably foreseeable future also remains nuanced. The Tribunal rejected the claim that the first respondent would face forced training camps "irrespective of where he might take up a teaching role" in "current-day Nepal". Whether a Tribunal must always expressly weigh each letter against the most recent country information for every claimed risk factor, or whether a global assessment of changed circumstances suffices, is not fully resolved.
The judgment distinguished NAIS on its facts because the evidence here was not impaired by significant delay. The precise point at which repeated remittals and rehearings before multiple Tribunals might nevertheless affect the fairness of the process or the capacity to assess credibility remains open, particularly where country conditions have changed but the applicant's core narrative has been consistent. Finally, the Court did not address the position where an applicant's evidence about changed conditions is itself given "no weight"; the present case turned on the applicant's own concessions. How a Tribunal should reason when it rejects both the applicant's evidence and corroborative documents on the same changed-conditions basis may require further elucidation. These questions illustrate the continuing tension between the statutory duty to review and the prohibition on merits review that practising lawyers must navigate with care.
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
S J Gageler SC, Solicitor-General of the Commonwealth with G T Johnson for the appellant (instructed by DLA Phillips Fox Lawyers)
B W Walker SC with J R Young for the first and second respondents (instructed by Simon Diab & Associates Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Immigration - Refugees - Review by Refugee Review Tribunal ("RRT") - RRT gave "no weight" to certain letters tendered in evidence by first respondent - RRT described the giving of certain oral evidence by first respondent as "baseless tactic" - Whether RRT fell into jurisdictional error by failing to give "proper, genuine and realistic consideration" to letters or by describing certain oral evidence of first respondent as "baseless tactic" - Whether RRT's reasons, including use of expression "baseless tactic", gave rise to reasonable apprehension of bias by reason of pre-judgment.
Words and phrases - "jurisdictional error", "proper, genuine and realistic consideration", "reasonable apprehension of bias".
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6.
"Having been unsatisfied with the social work and teaching you had been performing in VDC; Turang Majuwa Gulmi. We here by inform you that, the place you have been hiding can be protective.
After your leave acceptance, too, they have been searching through dictators and some times by arm forces. Therefore we would like you not to come out and just stay at where you are."
"We had been teaching your kids for nine years long period. [Name] (Class-Seven), [Name] (Class-Five) & [Name], (Class-Four) who had been studying at this institution for 9, 7 and 6 years accordingly. We are now unable to be accepted as the boarders students for Maoist, the terrorists, have been challenging us time and again not to admit in this institution. Therefore we here by request you to manage your children where ever you feel comfortable and safe."
"This is to inform you [first respondent] that your position as a teacher in [name of school] in Gulmi is no longer exist [sic] as you have not join [sic] the School after taking leave for three months until 2061/11/4 (Nepalese date) 16th February, 2006 (Australian date) due to your safety reason and various threats given to you. You are not required to come back and continue your job as a teacher in this School".
"The [first respondent's] claim to the effect that he would still face harm even in Kathmandu stems partly from his claim that the Maoists have been searching for him since he left Gulmi because they suspect he spied on them to the local authorities back there. Although this claim appears supported by the text in the Gulmi headmaster's letters dated 20 March and 18 May 2006, the Tribunal gives no weight to it. It is undermined by the [first respondent's] evidence at the 13 August 2008 hearing about the local Maoist insurgents having treated pro- and imputed anti-Maoist teachers the same, requiring all of them to attend the training camps and incorporate the Maoist curriculum into their own. The claim also appears dependent on the [first respondent's] suggestion that he had been a member of [Amnesty International] long enough for him to become or appear to be an activist, and this claim is already dismissed.
Although the Tribunal accepts that these two letters originated from the relevant school, the Tribunal gives no weight to their content in view of evidence the [first respondent] has presented the Tribunal over time undermining his claims about his purported political and social activism."
"Although the 'Polaris' school letter does not refer to the [first respondent] being a political activist, and is therefore not undermined by the [first respondent's] oral evidence to the Tribunal over time, the Tribunal still gives this no weight. Even allowing for the possibility that the local Maoist insurgents in Gulmi stopped schools from having boarders, no evidence before the Tribunal suggests that such action in itself was, or would be indicative of a real chance of, Convention‑related persecution. The letter speaks of an action undertaken in the past in a particular location prior to the recent [change] in the social‑political map in Nepal. The Tribunal gives weight to the fact that the [first respondent's] children are all attending private schools in Kathmandu, and facing no pressure from the Maoists. The [first respondent] has not satisfied the Tribunal that their situation as students and resident of Kathmandu is in any even remote danger of changing."
"The [first respondent] claimed to the Department and to the [Tribunal] that as teachers and business people he and his wife were harassed and punished by the Maoists in the form of obligatory, increasing revolutionary taxes, the donations referred to throughout this decision.
The Tribunal is not satisfied on the evidence before it that school teachers are currently being charged revolutionary taxes under threat of violence in Kathmandu, where the [first respondent] was last residing. The Tribunal is not satisfied that if the [first respondent] became a school teacher in Kathmandu or other large cities, he would be obliged to donate to the Maoists or face persecutory threats for refusing …
For that matter, the Tribunal is not satisfied on the evidence before it that, irrespective of where he might reside in Nepal, the [first respondent] would face a real chance of the resumption in forced donations to the Maoists upon his becoming a businessman or shopkeeper again. When the Tribunal asked him why he could not come out of hiding in Kathmandu now and live there like his brother, he did not suggest that this was because he is a businessman and because his brother is not, or suggest that businessmen in Kathmandu face a real chance of Convention‑related harm. He cited, as the only distinguishing factor, the fact that he is by vocation a school teacher.
The Tribunal is of the view that to a very large part, the [first respondent]'s reference to being a school teacher at this point was a baseless tactic to help him address the potentially adverse impression the Tribunal disclosed to him after he said that people who used to be in hiding from the Maoists are now living out in the open."
"The … [T]ribunal did not find that the two headmasters were prepared to write falsehoods in the letters. I cannot conceive how any rational, reasonable approach to the evaluation of that evidence could give it 'no weight'. I am satisfied rather that the … [T]ribunal was not genuinely considering the [respondents'] claims as corroborated by the letters on the material before it. It used the formula of giving material 'no weight' as a basis on which it might ignore probative, relevant and highly supportive material corroborating the factual basis of the fears which the [first respondent] claimed. It did this simply as a basis for putting the evidence to one side, having said that it had looked at it. …
I am of opinion that when the … member said that he gave no weight to the three letters, he simply recited that he had considered them only to discard them. This was not a proper, genuine or realistic evaluation of this material. …
Here, the … [T]ribunal disabled itself from assessing the [first respondent's] case in relation to his fear of persecution in [Kathmandu], by putting to one side as having no weight, letters that corroborated his claim that he continued to be pursued in [Kathmandu] and by characterising as 'a baseless tactic' the continued maintenance of his original claim that as a teacher in [Kathmandu] he feared suffering persecution because the Maoists were still pursuing him. …
Not only was the attribution of a 'baseless tactic' made without evidence, it was contrary to the evidence. …
A fair-minded lay observer or properly informed lay person would find the use of the language 'baseless tactic' disturbing in the context of this tribunal's reasoning. Coupled with the … member using the 'no weight' formulation to shut out powerfully corroborative independent evidence, verified at the [T]ribunal's earlier request by the Australian Embassy in Nepal, I am satisfied that a fair‑minded lay observer or properly informed lay person would regard this [T]ribunal member as having an apparent bias against the [first respondent's] account".
"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."
"That which had to be properly considered was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review".
SZJSS v Minister for Immigration and Citizenship [2007] FMCA 1495. ↑
SZJSS v Minister for Immigration and Citizenship [2009] FMCA 886. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 at 281 [46] and 282 [49]. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 at 284 [59]-[61]. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 at 285. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 at 280‑284 [43]-[61]. ↑
(1987) 14 ALD 291 at 292; see also Shand v Minister for Immigration and Ethnic Affairs [1987] FCA 103, and Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472. ↑
As a result of the Migration Reform Act 1992 (Cth). Note that Pt 8 was initially numbered Pt 4B but was later renumbered by the Migration Legislation Amendment Act 1994 (Cth). ↑
Of the Immigration Review Tribunal (the forerunner of the Migration Review Tribunal) and the Tribunal. ↑
Migration Act, s 476(3)(e) (as it then stood). ↑
Migration Act, s 476(2)(a) (as it then stood). ↑
Abebe v Commonwealth (1999) 197 CLR 510 at 580 [197] per Gummow and Hayne JJ; [1999] HCA 14. ↑
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1167 [5] per Gleeson CJ; 198 ALR 59 at 61; [2003] HCA 30. ↑
(2003) 77 ALJR 1088; 197 ALR 389; [2003] HCA 26. ↑
(2001) 75 ALJR 982; 179 ALR 425; [2001] HCA 28. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 at 282‑283 [54]. ↑
(2005) 228 CLR 470 at 475 [8] per Gleeson CJ. ↑
(2008) 102 ALD 366 at 380 [83] per Weinberg J. ↑
SZJSS v Minister for Immigration and Citizenship (2009) 113 ALD 270 at 283 [55]-[57] and 285 [64]. ↑
Minister for Immigration and Citizenship
SZJSS
[2007] FMCA 1495
[2009] FMCA 886
(1986) 162 CLR 24
(1990) 170 CLR 1
(1989) 21 FCR 472
(2001) 206 CLR 323
(2003) 211 CLR 476
(2005) 228 CLR 470
(2010) 240 CLR 611
(1999) 197 CLR 510
(2003) 77 ALJR 1165
(2003) 77 ALJR 1088
(2001) 75 ALJR 982
[2001] HCA 30
Appeal allowed with costs. Paragraphs 1 and 2(a) and (b) of the Federal Court order of 24 November 2009 set aside and, in lieu, the appeal to that Court dismissed.