denial of procedural fairness issue
98 Ground of appeal: The appellant did not immediately appeal against the decision of the Federal Magistrate, as he might have done. Instead, he allowed his circumstances to be the subject of submissions to the Department and Minister through the UNHCR by letter dated 12 October 2011. Only when the outcome of that process appeared not to be favourable to him did he then seek to appeal. At that point, however, the time to appeal under the Migration Act had expired and it was necessary for the appellant to apply for an extension of the period within which to lodge a notice of appeal.
99 By order dated 14 February 2012, I extended the time for filing a notice of appeal to 14 February 2012 and ordered that the notice of appeal attached to the appellant's affidavit filed 3 February 2012 in support of the application for an extension of time be taken to be the notice of appeal, but that the sole ground of appeal be, in substance, that advanced in ground 1(e) of the judicial review application in the Court below.
100 Accordingly, the sole ground of this appeal, aside from the jurisdictional issues, is whether the Federal Magistrate erred in law in not finding that the independent merits reviewer failed to accord the appellant a fair hearing by failing to take into account the appellant's answer to questions posed by the reviewer as to his relationship with his aunt and why the appellant, rather than his aunt, would be targeted by the EPDP.
101 Minister's submissions on ground 1(e): The Minister does not doubt the jurisdiction of the Federal Magistrates Court to deal with an application for judicial review of the kind that the appellant made in this case. The Minister generally supports the reasons given by the Federal Magistrate for dismissing the application for declarations and injunction. This means, generally speaking, that the Minister accepts the effective treatment of the reviewer by the Federal Magistrate as an administrative decision-maker, if not the alter ego of the Minister, when making the impugned recommendation.
102 As a result, on behalf of the Minister, it is submitted that the Federal Magistrate was correct to interpret the reviewer's statement at [29] as meaning that the appellant "could not adequately explain" why the EPDP had not targeted his aunt and, on the authority of the Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, to find otherwise would be to read the decision with an impermissible eye "attuned to the perception of error".
103 The Minister submits that if the reviewer's statement at [29] incorrectly described the appellant's evidence it had no bearing on the reviewer's decision in any event. In relation to this proposition, the Minister contends that [29] is found in the reviewer's recitation of the appellant's evidence. It is not mentioned in the findings and reasons at [67]-[77] and is immaterial to the reviewer's recommendations that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugee's Convention.
104 The Minister contends that for the reasons set out in [70] of the reviewer's report, the reviewer did not accept the appellant's claim that his father provided information to the LTTE that led to the killing of two members of the EPDP. The reviewer was also not satisfied that there was any causal link between the alleged events or that the EPDP would have perceived any causal link between their attempt to recruit the appellant's father and the subsequent death of the two brothers.
105 The Minister submits the reviewer found that the appellant's claims to have been targeted by the EPDP due to his father's connection with the alleged assassination had not been substantiated. In the alternative, the reviewer found, for the reasons set out in [71] of the report, that even if there was a relevant link the reviewer was not satisfied that the appellant would be persecuted if he returned to Sri Lanka because of the alleged event.
106 The Minister notes that the reviewer, at [72], did not accept the photo of the appellant had been taken from his aunt's house, because of a lack of any relevant information as to who, when or why people would enter his aunt's house to take such a photo. Further, the reviewer did not accept that, even if the photo was taken, it was taken in circumstances that would give rise to a real chance that the appellant would be at a risk of harm from the EPDP in the foreseeable future.
107 Thus, it is clear, the Minister submits, that the statement at [29] that the appellant could not explain why the EPDP had not targeted his aunt played no part in the reviewer's reasons for her decision. Accordingly, if there was an error by the reviewer in describing the appellant's evidence in relation to the photograph in this way, it could not be said that the error had affected the exercise of the reviewer's power so as to amount to "jurisdictional error".
108 The Minister finally submits that, taking the appellant's case at its highest, the reviewer gave an incorrect description of the evidence and that does not impugne the fairness of the process or amount to a breach of procedural fairness.
109 Appellant's submissions on ground 1(e): On behalf of the appellant, counsel raises issues relating to the ground 1(e), as well as jurisdictional questions.
110 Counsel for the appellant notes that the independent reviewer appears to have accepted that the appellant's fear of harm if he were to return to Sri Lanka was real and refers to the findings of the reviewer at [68] of the report. With that submission I agree. As counsel for the appellant submits, the question was whether such a fear was well-founded.
111 Counsel for the appellant submits that in assessing whether the fear was well-founded the reviewer considered whether the seizure of the photograph, firstly, had occurred, and, secondly, whether it had occurred in the circumstances claimed by the appellant. In finding that even if it had occurred, it had not occurred in the circumstances claimed, the reviewer relied upon the agreed circumstance that the aunt had not been targeted and sought comment from the appellant on this aspect of his claim.
112 Counsel for the appellant accepts that where a misunderstanding of evidence cannot be demonstrated to have affected the exercise of a statutory power, the decision-maker will not commit "jurisdictional error". But counsel submits that the Federal Magistrate, in advancing and applying this proposition, impermissibly relied upon what was said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at 353, as this was a case concerned with the failure to comply with s 430 of the Migration Act, and not the application of the broader common law principles of procedural fairness, as required by Plaintiff M61.
113 Consideration: There is no doubt Plaintiff M61 underpins the judicial review application for a declaration and injunction made in this case to the Federal Magistrates Court. In Plaintiff M61, two citizens of Sri Lanka (called for reasons of anonymity Plaintiff M61 and Plaintiff M69), like the present appellant, entered Australia at Christmas Island without a visa. Like the appellant, they each requested refugee status. Like the appellant, an RSA record was produced denying each that status. Each then requested independent merits review, like the appellant, and the reviewer in each case found they did not meet the definition of a refugee in the Refugees Convention, as occurred in the appellant's case.
114 Plaintiff M61 then made an application to the High Court under s 75(v) of the Constitution for an order quashing the recommendation of the reviewer and an order requiring reconsideration of the review according to law. As against the Minister the application sought an order restraining the Minister from taking any steps to remove the plaintiff from Australia until the proper determination of the merits review application. Plaintiff M69 separately applied to the High Court pursuant to s 75(v) of the Constitution for declarations that s 46A of the Migration Act was invalid, that the independent merits review scheme was invalid, and so that the request made for refugee status had not been properly determined. The application sought orders directing the Minister to proceed according to law. Each of these applications was referred for further hearing to a Full Court of the High Court.
115 Section 75(v) of the Constitution gives the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
116 The Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) noted that s 46A(1) of the Migration Act provides that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non-citizen. By s 46A(2), however, the Minister may, if the Minister thinks it is in the public interest to do so, determine that s 46A(1) does not apply to an application by an offshore entry person for a visa of a specified class. This is colloquially referred to as the power to "lift the bar". The independent merits review process is intended to assist the Minister in deciding whether or not to lift the bar. The Court also noted that s 195A(2) of the Migration Act authorises the Minister, if the Minister thinks it is in the public interest to do so, to grant a visa of a particular class to a person who is in detention as an unlawful non-citizen under s 189. Section 195A(4) provides that the Minister does not have a duty to consider whether to exercise the power and s 195A(5) requires the power to be exercised only by the Minister personally.
117 The Court said, at [70], that the exercise of the powers given by s 46A and s 195A is constituted by two distinct steps. First, the decision to consider exercising the power to lift the bar or grant a visa and, secondly, the decision whether to lift the bar or grant a visa. The Minister is not obliged to take either step. Section 46A(7) and s 195A(4) expressly provide that the Minister does not have a duty to consider whether to exercise the relevant power, and ss 46A(2) and (3) and ss 195A(2) and (5) make plain that it is for the Minister personally to decide whether to exercise the relevant power.
118 But the Court noted that the Minister had previously announced as a matter of administration or policy that he would have regard to an independent merits review process established by his department in relation to these powers. It said the effect of the announcement was that, instead of removing offshore entry persons from Australia to a declared country under the powers given under s 198A, consideration would be given to exercising the powers given by s 46A and s 195A in every case in which an offshore entry person claimed that Australia owed that person protection obligations. Thus, their Honours concluded that the outcome of that consideration in any individual case would depend upon the result of the processes established by the department in response to the Ministerial announcement. Having decided that he should consider the exercise of power under s 46A or s 195A with respect to every offshore entry person who thereafter claimed that Australia owed that person protection obligations, the Minister required his department to undertake the inquiries necessary to make an assessment and, if needs be, review the conclusion reached.
119 The Court, at [78], further noted that, in circumstances where the Minister had decided to consider the exercise of the power under either or both of s 46A and s 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead, at some point, to the result that further consideration of the exercise of the power is stopped, does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. Thus, consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.
120 Each plaintiff, in seeking what are often called constitutional writs under s 75(v) alleged error of law and denial of procedural fairness as grounds supporting the grant of such writs or orders. There was no allegation of "jurisdictional error" as such, presumably on the view that because the Minister had not yet made any decision under s 46A or s 195A no "jurisdiction", that is to say "power", had been exercised by the Minister or constructively by the Minister through the reviewer. The reviewer of course had no separate statutory jurisdiction or power. It is also generally understood that relief under s 75(v) may go for error of law or denial of procedural fairness, something to which I will return.
121 In support of his grounds, Plaintiff M61 noted it was submitted to the reviewer on his behalf that he feared that if he were returned to his country of nationality he would suffer persecution or substantial discrimination amounting to a gross violation of human rights (or both) at the hands of the authorities. The submission stated that the feared prosecution or discrimination was upon a count of six matters including ethnicity and imputed political opinion on account of his brother's membership of LTTE. The submission went on to state a second and separate claim. It said that country information indicated that the plaintiff also faced a risk of harm on account of his membership of particular social groups of Tamils, including business owners or Tamils who are perceived to be wealthy. The Court held that the reviewer considered the first set of claims but did not examine, and did not refer in his reasons, to the second claim. The Court also noticed that the reviewer did not accept that the plaintiff had left his country, and could not return there, for the reasons he claimed. An important basis for the conclusion that his fears were not well founded was information provided to the reviewer by the Department as country information. None of that information was put to the plaintiff.
122 The Court held that each aspect of the reviewer's reasons revealed error. First, the determinative determination of whether Australia had protection obligations was to be made according to law, one of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless the determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. The RSA Manual and the Independent Merits Review (IMR) Manual that govern decision-making, including by the reviewer, referred to Australian legislation and relevant case law merely as aids to the interpretation of the Refugees Convention, rather than as binding upon those who made the assessments.
123 Secondly, by failing to address one of the claimed bases for the plaintiff's fear of persecution meant the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. This constituted a denial of procedural fairness.
124 Thirdly, procedural fairness required the reviewer to put the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Court noted that particular provisions of the Migration Act which applied in the Refugee Review Tribunal, did not apply to the independent merits review process and that the reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made.
125 Plaintiff M69 alleged the reviewer made the same error of law as was made in the case of Plaintiff M61 by treating the Migration Act and decided cases as no more than guides to determining the issues presented. The plaintiff further alleged that he had been denied an opportunity to deal with adverse country information. He further alleged that after the reviewer had completed her review the plaintiff made a sur place claim, which arose out of the broadcasting of some images of persons in immigration detention who were being moved from Christmas Island to a detention centre on the mainland. This sur place claim was not considered by the reviewer. Put very simply, a sur place claim is one in which a person claims refugee status on the basis of conduct engaged by them in the country in which they currently seek recognition of their refugee status.
126 The Court, as in the case of Plaintiff M61, concluded that the first and second complaints made on behalf of Plaintiff M69 were made good. Thus, the reviewer made an error of law by treating the Migration Act and decided cases as no more than guides to decision-making. Further, while some of the facts concerning country information were sufficiently put to the plaintiff, the reviewer did not put to the plaintiff country information she had before her concerning the treatment of failed asylum seekers returning to Sri Lanka. By not putting the substance of the country information to the plaintiff for his consideration and comment the reviewer denied him procedural fairness. As a result of these findings, the Court did not find it necessary to consider the failure to consider the sur place claim.
127 As no decision had been made by the Minister, and there was no compulsion on the Minister to make any decisions under s 46A or s 195A, the Court considered there was no decision for a writ of certiorari to quash, and no obligation to do anything to be enforced by Mandamus.
128 However, in each matter, the Court, at [105], considered that there existed appropriate circumstances for the making of a declaration that, in recommending to the Minister that the plaintiff was not a person to whom Australia has protection obligations, the reviewer made an error of law, in that they did not treat the provisions of the Migration Act and the decisions of Australian courts as binding, and had also failed to observe the requirements of procedural fairness.
129 Thus, as noted above, in the Federal Magistrates Court in this case the appellant sought injunction against the Minister to prevent the making of a decision relying on the alleged flawed assessment and recommendation of the reviewer and a declaration that the recommendations were flawed on the grounds set out above. Those grounds alleged denial of procedural fairness and error of law. They did not, as noted above, complain of "jurisdictional error".
130 I mention that "jurisdictional error" was not the subject of the appellant's application to the Federal Magistrates Court, just as it was not a ground complained of to support the grant of relief in Plaintiff M61. Jurisdictional error is a well-recognised ground for the grant of some of the constitutional writs (for example, prohibition) which has its own special rules. It may be revealed, depending on whether a decision-maker is an inferior court or more general administrative tribunal or public officer, that the decision-maker by committing an error of law or by denying procedural fairness in a way that affects the relevant exercise of power has exceeded their authority or power.
131 The decision of the High Court in Craig v The State of South Australia (1995) 184 CLR 163 (Craig) is a foundation case on the nature of jurisdictional error in this country. Craig involved an application by the State for an order in the nature of certiorari in the order of the District Court to stay criminal proceedings, there being no statutory right to appeal. Ultimately, the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that there was neither jurisdictional error nor error on the face of the record of the District Court proceedings and there was no ground to quash the stay order. At 175-176, the Court noted that certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record. At 176, the Court noted that the grounds upon which certiorari may properly issue glosses over a number of difficulties about the content of those grounds. Their Honours explained that two of those difficulties were of direct relevance in that case where it is argued that the alleged error on the part of the trial judge was either "jurisdictional error" or "error of law on the face of the record".
132 The Court, at 176, further explained that in considering what constitutes jurisdictional error it is necessary to distinguish between, on the one hand, inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. The Court, at 177, explained that an inferior court falls into jurisdictional error if it mistakenly assumes or denies the existence of jurisdiction or if it miscomprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. It will fall into jurisdictional error where it makes an order or decision which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction
133 The Court, at 179, however, considered that the circumstances in which other tribunals may be considered to have committed jurisdictional error were quite different. In this context, the Court was plainly intended to include a wide range of administrative tribunals or public officers whom have lawful power to make decisions by reference (at 179) to what Lord Diplock had said in In re Racal Communications Ltd [1981] AC 374 at 383. The Court said, at 179, that if such 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.
134 Since Craig, the High Court has held that denial of procedural fairness may also constitute jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 26 CLR 57.
135 Having regard to Craig, however, it is clear that not every error of law will amount to "jurisdictional error". See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Ex parte Aala).
136 In Yusuf, the Court had occasion to consider the grounds for judicial review under Pt 8 of the Migration Act, s 476(1) which, as it applied at the time, included the following:
(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;
…
(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.
137 In the joint judgment of McHugh, Gummow and Hayne JJ, their Honours, at [82] noted that the different kinds of errors mentioned in Craig may well overlap and the circumstances of the particular case may permit more than one characterisation of the error identified. For example, a decision-maker may have both asked the wrong question and ignored relevant material. Their Honours noted that:
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
138 Having regard to s 476(1)(b) of the Migration Act, as then in force, at [83], their Honours said it was important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material it "exceeds its authority and powers". If that is so, their Honours said the person who purported to make the decision "did not have jurisdiction" to make the decision and the decision was "not authorised" by the Migration Act.
139 Their Honours went on, at [84], to note that in such a case the decision may well, within the meaning of para (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.
140 At [84], their Honours further noted that it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. Their Honours said:
That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.
141 These decisions serve to remind that the concept of "jurisdictional error" is a broad one under the general law and that in a statutory context such as that discussed in Yusuf it may be equally large. The particular grounds of review in s 476(1) discussed in Yusuf also serve to remind that it is open to Parliament to modify or qualify the grounds upon which traditionally available remedies may be issued - with the constitutional exception being in relation to s 75(v) of the Constitution.
142 Where a particular remedy is only available for jurisdictional error generally understood or a statutory equivalent of it, then the relevant error will need to be shown to go to jurisdiction. But where a particular remedy is available simply for error of law, then the position may be different.
143 It seems to me wrong simply to equate every error of law or denial of procedural fairness as a "jurisdictional error" case. As much as administrative law in Australia seems today to be discussed in terms of jurisdictional error, it remains important to have regard to what remedy is sought in a particular case and what the grounds for obtaining that remedy are - whether one is proceeding under the general law or under a statutory review provision. While jurisdictional error may be a convenient shorthand reference to a range of reviewable errors, care still needs to be taken to identify the particular ground or grounds that allow the grant of a particular general law or statutory remedy.
144 Thus, as noted above, "jurisdictional error" was not alleged in Plaintiff M61. The High Court granted declaratory relief on the basis that the plaintiffs had established an error of law and denial of procedural fairness. As noted above, nor would one have expected jurisdictional error to be claimed given the Minister had not purported to exercise any "jurisdiction" by making or refraining from making any decision authorised by statute and the reviewer did not have any separate "jurisdiction" or statutory power to decide anything.
145 While there may be some debate about the proposition, it would seem generally to be recognised that the remedies of injunction and declaration, at the least, including when sought under s 75(v) of the Constitution, are available to correct an error of law whether or not that error amounts to a "jurisdictional error". In Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [105], Gaudron J considered that it may well be that an injunction, being a remedy mentioned in s 75(v) of the Constitution, would lie to prevent an officer of the Commonwealth from giving effect to an administrative decision based on an error, "even if that error is not jurisdictional error". In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [211], Kirby J would appear to have accepted (at least did not disapprove) of her Honour's observations. Plaintiff M61 would appear plainly to support the proposition as the Court did not purport to grant relief on the basis of any alleged jurisdictional error, and the language of jurisdictional error does not appear in the Court's reasoning.
146 However, whether the demonstration of any error of law or any apparent denial of procedural fairness will automatically entitle a party to the relief of injunction or declaration, if sought, may be doubted. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond), a decision of the Tribunal was challenged on a ground permitted by s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that "the decision involved an error of law". Chief Justice Mason at 353 said that a decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been or might have been different. The Chief Justice said:
The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.
147 In their joint judgment in Bond, Toohey and Gaudron JJ in a similar way emphasised that, for the purposes of this statutory ground of judicial review, for an error of law to be "involved in a decision" something more than the mere occurrence of error is necessary. Their Honours said, "The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute". Their Honours added that conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.
148 Justices Toohey and Gaudron added, however, that the approach just adumbrated may be compared with the operation of the rules of natural justice where an allegation is made to which a person has had no opportunity to respond. Their Honours referred to what was said in this regard in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 603, where Wilson J said that a deportation order in respect of the appellants should be set aside for want of procedural fairness "with some reluctance" because at most it awarded a very slender technical victory to the appellants. His Honour noted that given the immigration policy it was difficult to see how even an emphatic reversal of the imputation in the successfully impugned reasons for decision could affect the result. However, his Honour considered that, having decided that decisions under the Migration Act must be attended with procedural fairness, "it would frustrate the purpose of the A.D.(J.R.) Act if a breach of the rules of natural justice were to be condoned, in the exercise of the discretionary powers of disposition conferred…merely because the breach was not shown to have affected the decision".
149 It also seems generally to be accepted that it is no answer, where denial of procedural fairness is demonstrated, to resist relief on the basis the error involved is "trivial": see for example, Ex parte Aala at [59] (Gaudron and Gummow JJ).
150 However, in Ex parte Aala at [104], McHugh J considered that the breach of the rules of natural justice does not automatically invalidate a decision adverse to the party affected by the breach. His Honour referred to Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 where the Court said that not every departure from the rules of natural justice at trial will entitle an aggrieved party to a new trial. His Honour in Ex parte Aala added, however, that once a breach of natural justice is proved the Court should refuse relief only where it is confident that the breach "could not have affected the outcome", recognising that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial could have had no bearing on the outcome. His Honour then considered the facts and took the view that the denial of natural justice found did not affect the outcome in that case.
151 Justice McHugh, however, was alone in his consideration of the facts, the other members of the Court not sharing his Honour's confidence as to the outcome. Chief Justice Gleeson, for example, at [4] said it could not be concluded that the denial of the opportunity made no difference to the outcome of the proceeding.
152 Generally speaking, however, where grounds for the issue of a constitutional writ, or the making of a declaratory order in lieu thereof (as occurred in Plaintiff M61) arise, the Court has a discretion under s 75(v) to withhold the remedy. In Ex parte Aala, Gaudron and Gummow JJ (with whom Gleeson CJ agreed on this point), at [53], concluded that there is a discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition. Their Honours said the first question is whether officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the applicant in the course of the administrative proceeding or in other relevant circumstances. Their Honours, at [54], added that so far as mandamus is concerned, it is well settled that it is a remedy which does not go either as of right or as of course, and that the same "certainly is true of the injunction".
153 Their Honours, however, added, at [55], that the discretion no doubt with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy. Their Honours in this regard referred to what her Honour, Gaudron J had said in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [56], to the effect that courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the law which governs their exercise and that "the rule of law requires no less".
154 There may be a tendency to encapsulate the principles I have just recounted as meaning that, if there is "no practical injustice", then a remedy should be refused even if the ground of relief contended for is made out. I consider one needs to be cautious in summarising the relevant principles under this catchphrase, as it may lead a court into making an impermissible inquiry into the merits of a decision made and being inclined to substitute its view of what an appropriate outcome would have been instead of allowing an original decision-maker to make the decision entrusted to them. See generally Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541.
155 In this case, as noted above, I do not consider it was reasonably open to the Federal Magistrate to construe the words of the reviewer, in relation to the appellant's explanation as to why his aunt had not been targeted, in the way he did. Taking the reviewer's words at face value and then comparing them to what the appellant actually said, the reviewer either misunderstood or misconstrued the clear evidence of the appellant. Either way the appellant was denied the opportunity to have the reviewer consider his answer to a question evidently considered relevant by the reviewer. That was a denial of procedural fairness, as the appellant had claimed in ground 1(e). It was not an issue advanced as an error of law or as jurisdictional error, although the Federal Magistrate proceeded to deal with the issue as if it were the latter. The Federal Magistrate treated the identified difficulty with the evidence substantively as an instance of "jurisdictional error", and as one falling "within jurisdiction". The Federal Magistrate considered the denial of procedural fairness not to be material to the decision ultimately made by the reviewer. He did not think it affected the assessment and recommendation made.
156 I have already noted the close interrelationship between conduct by an administrative decision-maker that may lead to findings of error of law, denial of procedural fairness and jurisdictional error. One can understand how, in relation to any error of law or denial of procedural fairness, legal principle requires some demonstration that the error actually led to a failure to exercise the jurisdiction given, that it was material in some way. Nonetheless, as discussed above, in Bond the Court was able to encapsulate that requirement because the statutory ground of judicial review was that the impugned decision "involved an error of law". The use of the verb "involved" fortified the dicta that the error must have been material to the decision made. As a general law concept, it is not as evident that the identified error of law must have been material before relief can be granted.
157 The position, as noted above, in relation to denial of procedural fairness is less ambiguous. Ultimately the decision in Ex parte Aala, following Stead, is that denial of procedural fairness, while not falling into a distinct category of its own, will often lead to the effective invalidation of an impugned decision. One can understand how this is so. It will often be extremely difficult to say what decision might have been made by an administrative decision-maker if there had been no denial of procedural fairness in a given case - and it is not for the review court to speculate. To try to reconstruct a decision-making process or to rework the apparent basis upon which a decision has been made, in order to state with any confidence what the result might have been or would have been but for denial of procedural fairness, is likely to be a speculative and unproductive task and certainly one likely to lead to injustice, because the judicial reviewer is not equipped and is not charged with responsibility to make the sort of administrative decision that the primary decision-maker has been set up to determine.
158 In my view, that is particularly so in this case. The detailed reasons of the reviewer leading to the assessment and recommendation prepared for the purposes of the Minister are dismissive of many of the bases of the claims made by the appellant. I have mentioned a number of the findings at [24] above. The reviewer accepted (putting this generally) that the appellant's father was involved with the LTTE, prior to leaving Sri Lanka, but only "by force" and did not accept that the father provided information that led to the killing of the two brothers - because he had been "involved by force", not by alliance. The reviewer was not satisfied that there was any causal link between the two alleged events and so the EPDP would not have perceived any causal link between their attempt to coerce the father and the subsequent death of the two brothers, given the limited information provided. The reviewer was not satisfied and did not accept that there was any relevant link between the father's actions and the alleged death of those brothers. Nothing in the chain of reasoning or particular findings made in the end expressly relied upon the reviewer's statement in the assessment made that the appellant could not explain why the aunt had not been targeted. But the fact that the reviewer pressed that line of questioning concerning the aunt with the appellant who gave a perfectly understandable response to it, which was then ignored by the reviewer leads me to be quite uncertain as to the significance of the reviewer's appreciation of the facts overall when completing the assessment and recommendation. Proper attention to what the appellant said may possibly have caused the reviewer to take a different view on the other issues noted above. I cannot say with any assurance that the failure to consider the information properly did influence the outcomes, but nor can I say it did not. In the end I consider this is one of those cases where, a little like Wilson J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, one might think the same decision-maker may not have made a different decision if they had properly regarded the information supplied, but where the fact that there has been a denial of procedural fairness should, in the event, lead to relief being granted.
159 In these circumstances, I find that ground 1(e) - the sole ground of review of the decision of the Federal Magistrate for error of law - is made out. I consider that his Honour was in error not to find there had been a denial of procedural fairness. As a result there should be relief granted substantially in the terms sought in paras (2) and (3) of the application as set out above in [25].