//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2000] HCA 1
respondent. Application dismissed with costs.
A Sri Lankan Tamil man who had lived in Germany returned briefly to marry, then claimed that former associates in the PLOTE group tried to force him to spy on the LTTE in Jaffna and that his family was threatened when he refused. The Refugee Review Tribunal rejected the story as implausible, accepted he faced only a remote risk in Colombo, and found relocation reasonable. He asked the High Court to quash the decision, arguing the Tribunal ignored evidence, failed to consider all inferences, did not weigh his claims cumulatively and breached its duty to give proper reasons. McHugh J held the Tribunal had considered everything required, made clear factual findings it was entitled to make, and that any defect in the written statement of reasons under s 430 could not invalidate the decision because the obligation arises only after a decision is made. The application was dismissed, with additional comments criticising laws that overload the High Court with migration cases.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,874 words · generated 24/04/2026
4 cited instruments linked from this judgment.
The prosecutor, Mr Durairajasingham, is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia on 21 June 1994 with his wife and child and lodged an application for a protection visa on 22 July 1994. The Minister’s delegate refused the application on 3 August 1995. The prosecutor sought review by the Refugee Review Tribunal. On 9 April 1996 the Tribunal, constituted by Ms Roslyn Smidt, affirmed the refusal, finding that the prosecutor was not a refugee within the meaning of the 1951 Convention because he did not hold a well-founded fear of persecution for a Convention reason.
The Tribunal accepted much of the prosecutor’s background: attendance at college in Jaffna in the early 1970s where he was prominent in cricket and student politics, involvement in protests against government policies towards Tamils, brief membership of the Tamil United Liberation Front in the 1970s, six months’ membership of PLOTE in 1983, friendships with LTTE members who had pressured him to join them, departure from Sri Lanka in 1983, residence in Germany until 1993, and return to Sri Lanka solely to marry on 18 October 1993. The two central factual claims, however, were rejected. First, the Tribunal found “utterly implausible” the allegation that, two weeks after the wedding, a young man who had not seen the prosecutor for 25 years recognised him in a market, took him to a hotel, and, together with an old PLOTE associate named Manikathasan, asked him to return to Jaffna as a spy on LTTE because his brother was said to be an LTTE member or adviser. The Tribunal gave two reasons: the inherent unlikelihood of the sequence given the passage of time and the prosecutor’s limited past involvement with PLOTE, and, more importantly, the unacceptability of the claim that the brother was linked to LTTE, because security forces would have detained the brother had that been known to PLOTE, which was then cooperating with the government. Because the recruitment claim was rejected, the Tribunal necessarily rejected the wife’s evidence that PLOTE members came to the family home three times after the prosecutor left for Germany and that the young man later threatened to kidnap the step-daughter.
Second, the Tribunal found that while the prosecutor faced a chance of persecution in the Jaffna region because of his Tamil ethnicity, that chance was not so remote as to be insignificant, but that it would be reasonable to expect him to relocate to Colombo. In Colombo the risk of serious harm was remote unless the person was suspected of LTTE involvement. The prosecutor had no such profile, had visited Colombo without difficulty in 1993 (including during a period of intense security activity), possessed the ability to adapt (demonstrated by ten years in Germany), had family links in Colombo through his wife, and therefore did not face a real chance of persecution there.
On 17 May 1996 the prosecutor commenced proceedings in both the Federal Court (under Pt 8 of the Migration Act) and the High Court under s 75(v) of the Constitution. He elected to proceed in the High Court. A consent order purporting to remit certain grounds to the Federal Court was later characterised by McHugh J as a nullity because the originating process had not invoked the precise remedies sought in the remitted matter. Davies J dismissed the remitted application on 11 November 1997; the Full Federal Court refused leave to appeal on 13 July 1998. When the matter returned to the High Court the prosecutor abandoned the remitted grounds. The hearing before McHugh J on 21 January 2000 therefore concerned the remaining grounds alleging failure to take relevant considerations into account, failure to consider the cumulative effect of claims, failure to identify available inferences relevant to the real chance test, breach of s 430(1), and overall unreasonableness. The Minister argued that no arguable case for an order nisi had been shown. McHugh J agreed, dismissed the application with costs, and delivered reasons that also contained extensive obiter observations on the legislative policy that funnels migration matters into the High Court’s original jurisdiction.
McHugh J’s reasoning proceeds from the constitutional and statutory limits on the High Court’s role. Because s 75(v) does not expressly confer power to issue certiorari, any such writ can be granted only as ancillary to one of the expressly named remedies—prohibition, mandamus or injunction—and only where a jurisdictional error is demonstrated. The prosecutor’s entire case therefore depended on showing that the Tribunal’s decision was a nullity.
Grounds 3 and 4 alleged failure to take into account a long list of considerations said to be relevant to the risk in Colombo and the reasonableness of relocation. McHugh J held that several of these were merely assertions of fact that the Tribunal had considered but found incorrect or overstated on the evidence. The remaining matters, framed as “claims” or “evidence”, had been expressly addressed: the Amnesty International letter was referred to but discounted in light of other country information; the wife’s evidence was rejected once the predicate recruitment claim was disbelieved; the absence of German identity documents was implicitly taken into account when the Tribunal noted that even Tamils unable to produce identification were usually released within 48 hours. Because the Tribunal had turned its mind to each matter, no relevant-consideration error arose. The complaints were, in substance, invitations to engage in merits review, which prerogative relief does not permit.
Ground 5, which asserted failure to consider the cumulative effect of the claims, was characterised as no more than a disguised attack on the factual finding that the prosecutor did not hold a well-founded fear. Once the discrete claims had been lawfully rejected, there was nothing left to cumulate.
Ground 14 contended that the Tribunal had failed to identify inferences that could be drawn from the primary facts and which might have produced a different outcome on the real chance test. McHugh J applied the joint judgment in Minister for Immigration and Ethnic Affairs v Guo: where a Tribunal has no real doubt about its factual findings, it is not irrational for it to decline to speculate on what the position would be if those findings were wrong. The Tribunal’s language—“utterly implausible”—demonstrated such confidence. The suggested inference that PLOTE members might have believed the brother was an LTTE member even if he was not amounted to no more than conjecture, which has no role in the well-founded fear inquiry. The wife’s evidence required no separate inferential analysis once the foundational recruitment allegation was lawfully disbelieved.
Ground 15 alleged breach of s 430(1). McHugh J first held that the Tribunal had in fact complied: it set out its decision, gave reasons, made findings on the material questions of fact (including the explicit rejection of the PLOTE approach and the consequent rejection of the wife’s claims), and referred to the evidence on which those findings were based. The Tribunal was not obliged to give a line-by-line refutation of every contrary piece of evidence; such a requirement would be inconsistent with the statutory command in s 420 to pursue a fair, just, economical, informal and quick review. Even if there had been a breach, it would not sound in jurisdictional error. The opening words of s 430(1)—“Where the Tribunal makes its decision”—presuppose that a decision has already been made. The subsection therefore imposes a subsequent obligation that does not condition the Tribunal’s authority to decide. It cannot therefore be an integral part of the jurisdictional fact of “satisfaction” required by ss 36 and 65. This conclusion followed the reasoning in Addo and distinguished earlier Full Federal Court authority that had appeared to require reference to contrary evidence.
Ground 13, resting on Wednesbury unreasonableness, failed because it depended on the preceding grounds and because the Tribunal’s factual findings were open to it. McHugh J found it unnecessary to decide whether Wednesbury unreasonableness is available under s 75(v).
The application therefore disclosed no arguable jurisdictional error. In accordance with ordinary practice the respondents filed submitting appearances and the Minister alone argued the matter. The application was dismissed with costs.
Prior to the 1990s amendments, the Federal Court possessed broad jurisdiction to review migration decisions. The insertion of Pt 8 and the privative clause in s 474, together with restrictions on the grounds of review, were intended to limit that jurisdiction. As noted by Gleeson CJ and McHugh J in Abebe, the practical consequence was to drive refugee claimants into the High Court’s constitutionally entrenched s 75(v) jurisdiction. The judgment records that, of 102 prerogative relief applications then pending in the High Court, 66 arose under the Migration Act. The inability to remit all aspects of such matters (the purported remittal in this case being a nullity) produced duplicated hearings, prolonged detention and inefficient use of judicial resources. McHugh J observed that this reversed the long-standing parliamentary policy, commencing with the creation of the Federal Court in 1976 and reinforced by the 1983 and 1984 amendments to the Judiciary Act, of relieving the High Court of trial work so that it could concentrate on constitutional and important appellate functions. The judgment therefore constitutes a strong judicial call for legislative reconsideration of the jurisdictional architecture.
On the s 430(1) issue, the law before this decision was unsettled. Some Full Federal Court decisions (Paramananthan, Logenthiran, Thevendram) had suggested that the obligation to set out findings on material questions of fact and to refer to the evidence on which they were based required the Tribunal to deal with evidence contrary to its conclusions. Other Full Courts (Ahmed, Addo, Sivaram) took the narrower view that s 430 requires only reference to the evidence supporting the findings actually made and does not oblige the Tribunal to explain why it rejected other evidence. McHugh J expressly preferred the latter line, citing Addo with approval at paragraph 66. The decision therefore settled, at High Court level, that s 430 does not require a detailed rebuttal of every contrary assertion and, more fundamentally, that breach of the section is not jurisdictional. That proposition has become a cornerstone of subsequent authority on the limits of judicial review of Tribunal reasons.
The constitutional position regarding certiorari under s 75(v) was also clarified: it remains ancillary only and cannot expand the occasions on which prohibition or mandamus will issue.
Paragraph 14 contains the principal obiter criticism of the legislative scheme: “The reforms brought about by the amendments are plainly in need of reform themselves if this Court is to have adequate time for the research and reflection necessary to fulfil its role as ‘the keystone of the federal arch’ and the ultimate appellate court of the nation.” In plain English, McHugh J is saying that the Migration Act changes have forced the High Court to do the kind of day-to-day administrative law trial work that Parliament itself had earlier decided the Court should not have to do. The metaphor of the keystone emphasises that the High Court’s proper constitutional function is endangered when it is overloaded with routine visa cases.
At paragraph 31 the judgment restates the Craig principle: “If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.” Translation: a tribunal steps outside its legal powers if it overlooks something important it was legally required to consider, or looks at something it was forbidden to consider, or asks itself the wrong legal question. But this does not let a court simply substitute its own view of the facts.
On the real chance test and inferences, paragraph 55 applies Guo: “In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. … Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.” Plain English: if the Tribunal is firmly convinced that the applicant’s story is false, it does not have to waste time asking “but what if we are mistaken and the story is true?”
The core passage on s 430 appears at paragraph 66: “Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made.” Translation: the Tribunal must tell you what facts it found and which evidence it relied on for those facts. It does not have to write an essay explaining why it disbelieved every piece of evidence that pointed the other way. Paragraph 70 adds the jurisdictional point: “The language of s 430(1) indicates that the requirement that the Tribunal give reasons for its decision is not a requirement which goes to jurisdiction. The opening words of s 430(1) presuppose that the Tribunal has made a decision.” In other words, you cannot say the Tribunal lacked power to decide because it later wrote an imperfect statement of reasons; the duty to write reasons kicks in only after the decision has already been validly made.
This decision is triggered whenever a protection visa applicant alleges that the Tribunal overlooked country information, witness statements or claims said to be “relevant considerations”, yet the Tribunal’s reasons show that it referred to those matters and simply reached adverse factual conclusions that were open on the material. It applies to cases in which credibility findings are challenged on the basis that the Tribunal did not expressly refute every contrary detail; the precedent confirms that an express statement that the claim is not accepted is sufficient. It is engaged where an applicant argues that the Tribunal should have asked “what if I am wrong” about a factual finding that the Tribunal itself expressed no doubt about. The decision is centrally relevant to any contention that breach of s 430(1)—whether by omitting a finding on a material fact or failing to list every piece of evidence—invalidates the decision or grounds prerogative relief. Fact patterns involving relocation to a safe area within the country of nationality, especially for Tamil applicants from Sri Lanka in the 1990s security environment, will also attract the case because the judgment endorses the Randhawa principle and the detailed factual assessment the Tribunal undertook. Finally, any s 75(v) application that seeks certiorari without a concurrent viable claim for prohibition or mandamus will engage the ancillary-nature holding.
The judgment itself treats earlier conflicting Full Federal Court authority by preferring the narrower reading of s 430 adopted in Addo and Sivaram and rejecting the broader view in Paramananthan and Logenthiran. Subsequent courts have consistently followed the proposition that breach of s 430 is not jurisdictional. The decision is routinely cited for the principle that a Tribunal confident in its adverse credibility findings need not engage in speculative “what if I am wrong” analysis; that proposition was drawn directly from Guo and has been reinforced rather than undermined. The obiter criticism of the jurisdictional split between the Federal Court and the High Court has been echoed in later single-judge observations about the inefficient use of judicial resources, although the legislative framework criticised has itself been replaced by the privative clause jurisprudence that began with Plaintiff S157. The ancillary nature of certiorari under s 75(v) has been accepted and applied in later constitutional cases. Overall the ratio on jurisdictional error, relevant considerations and the limits of s 430 review has been treated as authoritative and has not been distinguished on its core holdings in subsequent High Court or Federal Court migration jurisprudence.
McHugh J expressly left undecided whether Wednesbury unreasonableness can ground mandamus or prohibition under s 75(v), noting only that the point did not arise once the other grounds failed. That question remained live after this decision. The precise boundaries of the High Court’s power to grant certiorari as an incident of accrued jurisdiction under s 75(v) were not finally settled; the judgment notes that the Court had not yet decided the issue beyond the ancillary principle. The broader policy question—whether Parliament should restore a general power to remit all migration matters to the Federal Court—remains a matter for legislative rather than judicial resolution, although the judgment makes clear that the existing restrictions are, in the Court’s view, unsustainable. Finally, the exact content of a “material question of fact” for s 430(1)(c) purposes is not exhaustively defined; while the judgment confirms that the Tribunal need not deal with every peripheral detail, the line between material and immaterial facts continues to generate dispute in later cases. These issues illustrate that, while the decision closed off several avenues of challenge to Tribunal reasons, it left room for further refinement of the constitutional and statutory limits on judicial review of migration decisions.
Re The Minister for Immigration and Multicultural Affairs;
R T Beech-Jones for the first respondent (instructed by Australian Government Solicitor)
R W Killalea for the prosecutor (instructed by Sheila Foliaki-Singh & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham
Immigration law and Administrative law - Refugee - Refugee Review Tribunal decision refusing to grant protection visa - Application in original jurisdiction of High Court for prerogative relief - Whether Tribunal failed to take into account relevant considerations and evidence - Whether Tribunal failed to consider all available inferences from evidence - Whether s 430(1) of the Migration Act 1958 (Cth) required the Tribunal to refer to evidence contrary to its findings - Whether a breach of s 430(1) amounts to a jurisdictional error grounding prerogative relief.
Constitutional law - Federal jurisdiction - Role of the High Court under the Constitution - Extent of High Court's jurisdiction to grant certiorari pursuant to s 75(v) of the Constitution.
Words and phrases - "well-founded fear of persecution" - "reasons for the decision".
Convention relating to the Status of Refugees of 1951.
(a) a writ of prohibition directed to the Minister, prohibiting him or his agents or delegates from acting upon, giving effect to, proceeding further upon, or enforcing, the Tribunal's Decision;
(b) a writ of certiorari directed to the Tribunal removing the Tribunal's Decision into this Court to be quashed;
(c) a writ of mandamus directed to the third respondent directing him to appoint a member of the Tribunal to rehear and redetermine the prosecutor's application for a protection visa according to law; and
(d) an injunction against the third respondent requiring him to appoint a member of the Tribunal other than the second respondent to rehear and redetermine the prosecutor's application for a protection visa according to law.
"The Court or Justice may, in its or his discretion, in a case in which it appears necessary for the advancement of justice, grant an order absolute in the first instance for a writ of habeas corpus, certiorari, mandamus or prohibition, or for the production of a person."
The effect of the amendments to the Migration Act 1958 (Cth)
"[T]he Parliament has chosen to restrict severely the jurisdiction of the Federal Court to review the legality of decisions of the Refugee Review Tribunal. That restriction may have significant consequences for this Court because it must inevitably force or at all events invite applicants for refugee status to invoke the constitutionally entrenched s 75(v) jurisdiction of this Court. The effect on the business of this Court is certain to be serious."
"My own basic objective in proposing a new federal superior court was to free the High Court of Australia, as of this time but particularly for the future, for the discharge of its fundamental duties as interpreter of the Constitution and as the national court of appeal untrammelled by some appellate and much original jurisdiction with which it need not be concerned ... [T]he jurisdiction, appellate and original, vested in the High Court partly by the Constitution itself and partly by the action of the Parliament under section 76 [of the Constitution], appears now to be too great. Its exercise requires judicial time and energy which would serve Australia better if they could be added to what is now available for the performance of the two fundamental responsibilities of the Court".
(a) had attended college in Jaffna in the early 1970's and had become well-known through playing cricket and being elected president of the College Union;
(b) had been involved in activities protesting against the Sri Lankan government's policies towards Tamils in the early 1970's;
(c) had been involved, for a period in the 1970's, with the Tamil United Liberation Front (TULF), a party which was formed in 1976 to unite all Tamil parties and fight the government to liberate Tamils;
(d) had belonged to a Tamil party known as PLOTE for about six months in 1983, which he believed was a non-violent organisation;
(e) had friends in the Liberation Tigers of Tamil Eagles ("LTTE"), another Tamil party, who had tried to force the prosecutor to join LTTE and go to India for military training and that, as a result of this pressure, he had paid an agent to arrange for him to go to Germany;
(f) had left Sri Lanka in 1983 and had been granted temporary residence in Germany; and
(g) had returned to Sri Lanka from Germany on 14 October 1993 in order to be married and had been married on 18 October 1993.
"I do not believe that members of PLOTE tried to recruit him to go to Jaffna and obtain information on the LTTE for them. In the first place, I find the claim that he was recognised in the market by a young man who had not seen him for some 25 years, then asked by an organisation which he had only belonged to for six months ten years earlier to go to Jaffna, where he had not lived for ten years, to spy on the LTTE because his brother was a member, to be utterly implausible, particularly as his brother was only in Jaffna occasionally during the period in question. Second and more importantly, I do not accept that his brother was a member of or an adviser to the LTTE. As the information set out below indicates, LTTE members were detained whenever and wherever they were found by the Sri Lankan security forces for most of the period during which Mr Durairajasingham's brother was studying in Kandy. If he had been a member or important associate of the LTTE during that period and his membership had been known to PLOTE, which as Mr Durairajasingham himself pointed out, was working with the government to crush the LTTE, he would, I am sure, have been detained by the security forces.
As I do not accept that Mr Durairajasingham was approached by PLOTE and asked to spy for them in Jaffna, it follows that I do not accept that his wife and step-daughter were threatened by members of PLOTE seeking him after he left Sri Lanka."
"Applicants who would be safe from persecution if they stayed away from [their home] area will not be eligible for a protection visa, unless it is unreasonable to expect them to try and live in another part of the country."
"From the evidence cited above it is clear that most Tamils in Colombo will be required to identify themselves and, if not long term residents in the city, explain their presence. Those who are unable to identify themselves or cause suspicion for some other reason may be detained for a brief period and some of those detained are held for little or no reason other than the fact that they are Tamils; those most likely to be found in this latter group are young men from Jaffna. However, even during the 1993 crackdown and the security tightening following the bombing of Colombo, the evidence does not suggest that Tamils in Colombo faced more than a remote chance of serious harm amounting to persecution unless they were seriously suspected of involvement in the LTTE. Mr Durairajasingham has never been involved with the LTTE nor is there any suggestion that he was suspected of involvement with them in the past. He had no problems with the authorities on his last two visits to Colombo, one of which occurred in the latter half of 1993 when there were particularly intense security activities in the capital and I do not consider he faces a real chance of being detained for a prolonged period or ill-treated by members of the security forces in Colombo."
(a) The evidence of the increased risk of persecution of the prosecutor by reason of the fact that if he returned to Colombo he would be likely to be detained for a longer than usual period as a returning Tamil who did not have an identity card and that he would be questioned as to the reasons for his presence in Colombo and as to his previous political activities.
(b) The fact that, if detained for a longer than usual period, the prosecutor faced an increased risk of ill-treatment amounting to persecution while in detention.
(c) The increased risk of persecution of the prosecutor in Colombo by reason of his background as a Tamil from Jaffna which was a terrorist stronghold.
(d) The increased risk to the prosecutor by reason of the fact that the authorities may become aware of his previous anti-government political activities in Jaffna, particularly by reason of his earlier arrest and detention as a result of those activities.
(e) The deteriorating security situation in Colombo since the bombing in January 1996 including independent evidence of subsequent large scale and repeated arrests and detentions of Tamils in Colombo.
(f) The information from Amnesty International contained in a letter to the prosecutor's solicitor dated 4 March 1996 which formed part of the evidence before the Tribunal.
(g) The prosecutor's claim that he fears persecution by LTTE, a terrorist organisation in Sri Lanka.
(h) The increased risk to the prosecutor by reason of the possibility that the authorities in Colombo will suspect that his brother is a member of, or associated with, LTTE.
(i) The oral evidence given by the prosecutor that during his last two visits to Colombo he had his German travel documents as evidence of his identity, and he would not now have those documents.
(j) The prosecutor's claim that PLOTE tried to recruit him, in Colombo, to spy on LTTE.
(k) The prosecutor's wife's claim that members of PLOTE came to her home looking for the prosecutor "about three times in the two months or so after he [the prosecutor] left for Germany" and that a "young man … came to her home shortly after he [the prosecutor] left for Germany and that about two months later came again and threatened to kidnap her daughter"[21].
"If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
(b) The evidence given by the prosecutor at the hearing held by the second respondent on 21 March 1996 to the effect that his parents no longer live in Colombo and that they are presently homeless, their whereabouts being unknown to him.
(c) The increased difficulties faced by recently arrived Tamils in Colombo in finding employment and accommodation.
(d) The fact that the prosecutor does not speak Sinhalese.
(e) The evidence of the previous difficulties faced by the prosecutor in attempting to relocate to Colombo.
(f) The unpredictability of the political and security situation in Sri Lanka, and particularly in Colombo.
(g) The quality of any internal protection available to the prosecutor in Colombo.
(h) The prosecutor's claim that PLOTE tried to recruit him, in Colombo, to spy on LTTE.
(i) The prosecutor's wife's claim that members of PLOTE came to her home looking for the prosecutor "about three times in the two months or so after he [the prosecutor] left for Germany" and that a "young man … came to her home shortly after he [the prosecutor] left for Germany and that about two months later came again and threatened to kidnap her daughter."
"There is a large Tamil population in Colombo. Mr Durairajasingham has previously lived and worked in Colombo. Members of Mr Durairajasingham's family have lived in Colombo and other parts of Sri Lanka at different times over a period of many years and his sister is a long term resident of the city. Mr Durairajasingham has not lived in Jaffna for many years and his ability to live and work in Germany for some ten years demonstrates his ability to adapt to life in places where the language and culture differ from his own. Perhaps most importantly of all, his wife has lived in Colombo for most of her life and members of her extended family still live there. In these circumstances, I do not believe it would be unreasonable to expect Mr Durairajasingham to relocate to Colombo to avoid the possibility of persecution or the violence associated with the war in the north."
"In the first place, I find the claim that he was recognised in the market by a young man who had not seen him for some 25 years, then asked by an organisation which he had only belonged to for six months ten years earlier to go to Jaffna, where he had not lived for ten years, to spy on the LTTE because his brother was a member, to be utterly implausible, particularly as his brother was only in Jaffna occasionally during the period in question. Second and more importantly, I do not accept that his brother was a member of or an adviser to the LTTE."
"[it] involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the 'real chances' affecting the treatment of the applicant if he or she were to be returned".
"the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan[[38]] cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: 'What if I am wrong'[39]? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems 'likely' or 'entitled to greater weight', the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a 'real chance' of persecution."
"In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong."
"As I do not accept that Mr Durairajasingham was approached by PLOTE and asked to spy for them in Jaffna, it follows that I do not accept that his wife and step-daughter were threatened by members of PLOTE seeking him after he left Sri Lanka."
"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based."
"Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."
"(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."
"A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution."
The prosecutor argued at the hearing[53] that s 430(1)(c) "feeds into the ascertainment of the Minister's satisfaction" and that it is "an integral part of ascertaining the jurisdictional fact".
"'jurisdiction' is not used in the wide and almost meaningless sense to which Lord Reid disapprovingly referred in Anisminic Ltd v Foreign Compensation Commission[55]. It is used in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them."
The power arose from the conferral of jurisdiction on the Federal Court to hear claims for prerogative relief, subject to certain exceptions, by s 39B of the Judiciary Act, which was inserted by the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth). This Court already had power under s 44(1) of the Judiciary Act to remit matters commenced in this Court to a court having jurisdiction to hear them. ↑
Industrial Relations Reform Act 1993 (Cth), s 56. ↑
Workplace Relations and Other Legislation Amendment Act 1996 (Cth), Sched 16. ↑
"The Australian Judicial System: The Proposed New Federal Superior Court" (1964) 1 Federal Law Review 1 at 2-3 quoted in Bennett, Keystone of the Federal Arch (1980), at 91. See also the discussion by Bennett at 91-94. ↑
As it was described by Alfred Deakin as Attorney-General of the Commonwealth speaking on the introduction of the Judiciary Bill: House of Representatives, Parliamentary Debates (Hansard), 18 March 1902 at 10967. The phrase was first used by Josiah Symon in 1897 at the Adelaide Convention Debates: Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 20 April 1897 at 950. ↑
Unreported, Refugee Review Tribunal, N95/08732, 9 April 1996 ("Tribunal's Reasons"), at 10-11. ↑
R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125 per Mason J. ↑
Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 149. ↑
The Tribunal re-exercises the discretion originally exercised by the Minister (or his delegate). Section 415(1) of the Act provides that "[t]he Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision." ↑
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. ↑
See the discussion by Gummow J in Minister for Immigration and Ethnic Affairs v Eshetu (1999) 73 ALJR 746 at 766-767; 162 ALR 577 at 605-606, particularly at par 126. ↑
(1999) 73 ALJR 584
(1994) 52 FCR 437
(1989) 166 CLR 338
(1997) 188 CLR 595
(1980) 147 CLR 15
(1995) 184 CLR 163
(1996) 185 CLR 259
(1989) 169 CLR 379
(1996) 135 ALR 421
(1997) 191 CLR 559
(1998) 160 ALR 24
(1999) 73 ALJR 746
(1991) 173 CLR 132
(1978) 142 CLR 113
Application dismissed with costs.