Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611; 162 ALR 577; 73 ALJR 746

Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611; 162 ALR 577; 73 ALJR 746 - HCA 1999 case summary — Zoe

[72]

"First, the objectives referred to in [s] 420(1) will often be inconsistent as between themselves. In particular, a mechanism of review that is 'economical, informal and quick' may well not be 'fair' or 'just'. It is difficult to accept that the legislature intended in [s] 476(1)(a) to provide a ground of review where a mechanism of review in its application to a particular case, although 'fair' and 'just', was not 'economical', 'informal' and 'quick'. Similarly, I do not think that the legislature intended by [s] 476(1)(a) to afford a ground of review wherever the [Tribunal] provided a mechanism of review which, in its application to a particular case, was 'economical', 'informal' and 'quick', but which might be considered to be somewhat less than 'fair' and 'just' in some respect. > > The second consideration is derived from the nature of non-observance of the supposed 'procedure' laid down in [s] 420(1). Non-observance would be, for example, a 'failure to pursue the objective of providing a mechanism of review that is fair' or a 'failure to pursue the objective of providing a mechanism of review that is economical'. The nature of the complaint made in a particular case might make relevant evidence of the [Tribunal's] staff and financial resources and its internal organisation and practices. A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in [s] 420(1), would not necessarily establish that the [Tribunal] had not been pursuing the specified objective. The difficulty, perhaps practical impossibility, of proving a failure to pursue that objective in some cases suggests that the requirement of [s] 420(1) was not intended to fall within the ground of review described in [s] 476(1)(a). > > The third consideration is founded on [s] 476(2)(a) ... [T]hat [section] provides that a breach of the rules of natural justice is not grounds upon which an application may be made under [s] 476(1). If [s] 420(1) requires observance of a 'procedure' for the purpose of [s] 476(1)(a), in so far as it refers to a 'fair' and 'just' mechanism of review, it must refer to 'procedural fairness' - an expression synonymous with 'natural justice'[63]. But [s] 476(2)(a) provides expressly that breach of the rules of natural justice is not a ground of review. This suggests that the legislature did not intend the 'procedures' of [s] 476(1)(a) to embrace the standards which [s] 420(1) requires the [Tribunal] to pursue. > > There is another argument based on [s] 476(2)(a) that leads to the same result. The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule')[64]. While [s] 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, [s] 476(1)(f) provides that actual bias is such a ground, while [s] 476(1)(a) and [s] 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the [Tribunal] to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that [s] 476(1)(f) and [s] 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in [s] 476(2)(a), 'the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules. > > The fourth consideration derives from the Explanatory Memorandum which accompanied the Migration Reform Bill. That Memorandum makes clear that s 476 was intended to introduce a regime of limited grounds of review which were 'certain' in their meaning[65]. To permit review on the ground that a mechanism of review is not 'fair' or 'just' is discordant with that intention."

[164]

"Refugee Review Tribunal's way of operating > > > 420 (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. > > > > (2) The Tribunal, in reviewing a decision: > > > > (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. > > > > . . . > > Where review 'on the papers' is not available > > 425 (1) Where section 424 does not apply, the Tribunal: > > > (a) must give the applicant an opportunity to appear before it to give evidence; and > > > > (b) may obtain such other evidence as it considers necessary. > > > > (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. > > > > . . . > > Application for review > > > 476 (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. > > > > > (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. > > > > ..."

[168]

"Sub-section 420(1) directs the RRT [the Tribunal] 'in carrying out its function under [the] Act ... to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick'. A requirement that the RRT pursue an objective of providing a mechanism of review satisfying such a general description is not, in my respectful opinion, a requirement that it observe a procedure in connection with the making of a particular decision, with which para 476(1)(a) is concerned. > > This view gains support from four more specific considerations. First, the objectives referred to in sub-s 420(1) will often be inconsistent as between themselves. In particular, a mechanism of review that is 'economical, informal and quick' may well not be 'fair' or 'just'. It is difficult to accept that the legislature intended in para 476(1)(a) to provide a ground of review where a mechanism of review in its application to a particular case, although 'fair' and 'just', was not 'economical', 'informal' and 'quick'. Similarly, I do not think that the legislature intended by para 476(1)(a) to afford a ground of review wherever the RRT provided a mechanism of review which, in its application to a particular case, was 'economical', 'informal' and 'quick', but which might be considered to be somewhat less than 'fair' and 'just' in some respect. > > The second consideration is derived from the nature of non-observance of the supposed 'procedure' laid down in sub-s 420(1). Non-observance would be, for example, a 'failure to pursue the objective of providing a mechanism of review that is fair' or a 'failure to pursue the objective of providing a mechanism of review that is economical'. The nature of the complaint made in a particular case might make relevant evidence of the RRT's staff and financial resources and its internal organisation and practices. A mere conclusion that a mechanism of review in its operation in a particular case did not satisfy one or more of the epithets in sub-s 420(1), would not necessarily establish that the RRT had not been pursuing the specified objective. The difficulty, perhaps practical impossibility, of proving a failure to pursue that objective in some cases suggests that the requirement of sub-s 420(1) was not intended to fall within the ground of review described in para 476(1)(a). > > The third consideration is founded on para 476(2)(a) the terms of which were set out earlier. It will be recalled that that paragraph provides that a breach of the rules of natural justice is not grounds upon which an application may be made under sub-s 476(1). If sub-s 420(1) requires observance of a 'procedure' for the purpose of para 476(1)(a), in so far as it refers to a 'fair' and 'just' mechanism of review, it must refer to 'procedural fairness' - an expression synonymous with 'natural justice'[138]. But para 476(2)(a) provides expressly that breach of the rules of natural justice is not a ground of review. This suggests that the legislature did not intend the 'procedures' of para 476(1)(a) to embrace the standards which sub-s 420(1) requires the RRT to pursue. > > There is another argument based on para 476(2)(a) that leads to the same result. The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule')[139]. While para 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, para 476(1)(f) provides that actual bias is such a ground, while para 476(1)(a) and para 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the RRT to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that para 476(1)(f) and para 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in para 476(2)(a), 'the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules. > > The fourth consideration derives from the Explanatory Memorandum which accompanied the Migration Reform Bill 1992. That Memorandum makes clear that s 476 was intended to introduce a regime of limited grounds of review which were 'certain' in their meaning[140]. To permit review on the ground that a mechanism of review is not 'fair' or 'just' is discordant with that intention. > > For all the foregoing reasons, I think that the better view is that sub-s 420(1) does not lay down a procedure required to be observed in connection with the making of a decision by the RRT. Before parting with sub-s 420(1), however, I make the following further observation. It should not be thought that all non-observances of statutory directives addressed to a public body must give rise to a civil remedy. Statements of broad objectives to be pursued afford a paradigm illustration of statutory commands which are not intended to generate a private right of action. An example is found in s 9 of the Disability Services Act 1992 (Qld) which was considered in Criminal Justice Commission v Queensland Advocacy Incorporated[141]."

[171]

"Of course, it is possible to distinguish from the statutory provisions with which his Honour was concerned, the words '[t]he Tribunal ... is to pursue the objective of providing ... ' in sub-s 420(1) of the Act. The construction of any statutory provision must depend on its own terms and context. However, in my view the general sense of the passage quoted is aptly applied to sub-s 420(1). > > I do not need to resolve the issue of construction finally, because it is not shown that the Smidt Tribunal failed to provide a mechanism of review that was fair, just, economical, informal and quick. The numerous specific complaints made by Mr Sun are considered later. In particular, however, I do not think that the fact that the Smidt Tribunal embarked upon a hearing de novo shows that it adopted a mechanism of review which failed to satisfy those epithets. > > ... I turn now to para 420(2)(b). I earlier gave reasons for construing both this paragraph and sub-s 420(1) as not laying down 'procedures'. In addition, the third and fourth specific considerations which I identified in relation to sub-s 420(1) apply, with necessary adaptations, to para 420(2)(b). > > It will be recalled that sub-s 420(2) provides that the RRT, in reviewing a decision: > > > '(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.' > > These two paragraphs are related by way of contrast. The RRT would fail to observe the command contained in para (b) if it relied on technicalities, legal forms or rules of evidence in preference to acting 'according to substantial justice and the merits of the case', even if it did not regard itself as 'bound by' them. This view is consistent with the following passage from the Explanatory Memorandum that accompanied the Migration Reform Bill 1992: > > > '"Substantial justice" is used to emphasise that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT in making its decisions. It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words.' > > I agree with Foster J in Yao-Jing Li[143] that para 420(2)(b) requires that the RRT must come to grips with the substance and merits of an application before it. His Honour said[144]: > > > ' ... the term "substantial justice" is concerned with the decision of the issues raised in the case rather than the process of deciding them.' > > If the last part of this passage is correct, and in any event for reasons given elsewhere, with respect I disagree with his Honour's conclusion that '[a] failure to [act in accordance with substantial justice] would be a non-observance of a procedure required by the Act and reviewable under s 476(1)(a)'[145]. > > On the other hand, if, contrary to my view, para 420(2)(b) lays down a procedure, it lays down a requirement of procedural fairness, non-compliance with which is not a ground of review because of para 476(2)(a) of the Act. Again, this suggests that the legislature did not intend para 476(1)(a) to embrace the standard which para 420(2)(b) imposes."

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Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611; 162 ALR 577; 73 ALJR 746 (13 May 1999)