AustLII Home | Databases | WorldLII | Search | Feedback

Melbourne University Law Review

Melbourne Law School
You are here:  AustLII >> Databases >> Melbourne University Law Review >> 2000 >> [2000] MelbULawRw 6

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Crock, Mary --- "Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu" [2000] MelbULawRw 6; (2000) 24(1) Melbourne University Law Review 190

Case Note

Abebe V Commonwealth[*]
Minister For Immigration And Multicultural Affairs V Eshetu[†]

Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions


In April and May 1999 the High Court handed down rulings in two cases of some moment within the scheme of Australian federal administrative and constitutional law. Both involved non-citizens who had sought and been refused recognition as refugees. The cases are important because each tested the special regime established in 1994 for the judicial review of migration decisions by the Federal Court of Australia.[1] In Abebe the central issue was whether the Australian Constitution permits a legislative regime that operates to constrain the Federal Court’s power to review the legality of administrative action by an officer of the Commonwealth. In Eshetu the High Court explored the effect of the same restrictive legislation, rejecting categorically an attempt by the Federal Court to reassert its power by opening a judicial loophole in the regime. The two cases also involved parallel applications to the High Court in its original jurisdiction for judicial review of the adverse refugee decisions. The (negative) response of the High Court to these applications provides an important insight into its views on the reach of the prerogative writs and the equitable relief that migration applicants might expect if they seek recourse against an adverse decision in this most powerful court.

This article begins by explaining a little of the background to the cases, setting out who the applicants were and how they came to be before the High Court. Part III details the legal matrix that was at the centre of the two actions, examining both the effect of Part VIII of the Act and its interaction with Chapter III of the Constitution. The article then looks sequentially at the two cases, studying first the constitutional issues and then the applications in the High Court’s original jurisdiction. It will be my argument that the majority ruling in Abebe is unsustainable in the longer term and that the decision of the majority in Eshetu amounts to an unwarranted and unhealthy abdication of the curial function of overseeing the legality of administrative decision-making. In Part VII, I make some observations about how the two cases are likely to affect future applications for judicial review in the Federal Court, using some recent cases as a guide. The piece concludes with some reflections on the essential indeterminacy of the judicial review process and on the role played by the High Court as the final arbiter of basic principles of justice and the rule of law.


Ms Seniet Abebe is an Ethiopian woman who arrived in Australia on 6 March 1997 without a valid passport. She was taken into custody from whence she applied for recognition as a refugee and for a class 866 protection visa pursuant to s 36 of the Act. The relevant provisions operate to allow the grant of permanent residence to non-citizens who are determined to be ‘refugees’. They reflect the international legal obligations Australia has assumed as a signatory to the United Nations Convention Relating to the Status of Refugees and its attendant Protocol.[2] The most important of these is the obligation not to return or refoule a non-citizen who fits the Convention definition of ‘refugee’.[3] A refugee is defined as a person who is outside her or his country of nationality and who is unable or unwilling to return to that country because of a ‘well founded fear of persecution’ by reason of the person’s race, nationality, religion, membership of a particular social group or political opinion.[4]

In deference to its international legal obligations, Australia has established mechanisms for determining refugee claims which involve processing within the Department of Immigration and Multicultural Affairs (‘the Department’) and an appeal to the Refugee Review Tribunal (‘RRT’). This tribunal operates in the same quasi-inquisitorial manner as the other specialist immigration tribunal, the Migration Review Tribunal. It is constituted by single members who have broad-ranging powers to determine what evidence they hear and from whom. Although applicants have a right to an oral hearing if a favourable decision cannot be made ‘on the papers’, they have no right to be represented by a lawyer or other adviser.[5] Proceedings before the RRT are distinguished by the fact that hearings are held in camera and the written reasons for decisions must not contain anything which would expose the identity of a refugee claimant. Complaints have been made about both the perceived lack of independence of the RRT and the poor quality of advice provided by government-funded advisers.[6] Decisions refusing refugee status are administrative decisions in respect of which judicial review can be sought.[7]

Ms Abebe’s application was refused both at primary level and on appeal to the RRT, essentially on the ground that the many changes in her story destroyed her credibility. The case became something of a cause célèbre for women’s groups because of allegations made by Ms Abebe that she had been detained in Ethiopia and raped repeatedly in prison because of her Amhara ethnicity and her political connections.[8] The RRT accepted that she ‘might have suffered some form of abuse’,[9] but found nevertheless that her story lacked credibility. On this basis, the Tribunal found that she could not be characterised as a refugee. The decision aroused concern both in its substance and in the way it was made. Ms Abebe’s advocates challenged the apparent presumption that evidence of lying should be taken on its face to support a finding that a person is not a refugee. They also questioned the fact that the Tribunal member chosen to hear Ms Abebe’s claim was male when guidelines produced by the Government suggest strongly that women officers and Tribunal members should hear claims by female asylum-seekers, especially when allegations of sexual abuse are made.[10] The assertion was that it is precisely in situations where refugee claimants feel culturally alienated, afraid and distrustful that they will withhold information, change their story and even tell lies.

Moges Eshetu is also an Ethiopian citizen. He grew up in Addis Ababa in the 1970s during a period of political instability and repression. In his claim for refugee status he alleged that members of his family suffered imprisonment and torture as a result of activities engaged in as members of the Ethiopian Peoples’ Revolutionary Party. Eshetu also alleged that he fled his country in fear of his life, asserting that he had developed a (dangerous) profile as a political activist during his time as a student both at secondary school and later as a member of the Student Council of the University of Addis Ababa.

Mr Eshetu claimed that his situation improved slightly in May 1991, when former President Mengistu fled Ethiopia and the Ethiopian Peoples’ Revolutionary Democratic Front (‘EPRDF’) took control. However, he gave evidence that the abuses which characterised the administration of the former president continued. Like Ms Abebe, Eshetu alleged that his problems stemmed from his membership of the Amhara clan, whereas the EPRDF was a coalition of ethnic groups dominated by Tigrayans, who do not like the Amhara. When his case went on appeal to the RRT, the Tribunal accepted that Eshetu had a genuine fear of being returned to Ethiopia. However, it rejected his contention that his fear was well founded. In the end, Mr Eshetu’s case, like that of Ms Abebe, also failed on grounds of credibility.

The RRT did not accept claims by Eshetu that, following a political rally, he had been detained for three days along with 25 other students and tortured. The RRT found that human rights agencies such as the Ethiopian Human Rights Council and Amnesty International had not reported any of the events alleged, although they had documented other incidents involving student demonstrations, deaths and disappearances. The Tribunal’s decision suggests that the member accepted some parts and not others of Mr Eshetu’s evidence. The Tribunal found that he held a genuine (subjective) fear for his life, but rejected some of the evidence upon which he alleged that fear to be founded.[11] As at March 2000 Mr Eshetu remained in detention. Ms Abebe has fared better, winning her freedom and permanent residence through the personal intervention of the Minister.[12]

By the time a matter is accepted for hearing before a full bench of the High Court, the identity of an applicant is often lost beneath the weight of the legal arguments raised by the case.[13] As explored in Part V below, the rulings of the Court in Abebe and Eshetu underscore the strict line that the present bench draws between the legal issues and the ‘merits’ of the cases before them in which judicial review of an administrative decision is sought. At the same time, the cases represent interesting examples of the impossibility of divorcing the law from its human impact where there is a constitutionally guaranteed right to High Court review.[14] It is one of the ironies of the ruling in Abebe that the deferential approach adopted by the majority will lead inevitably to more, rather than less, involvement of the High Court in the ‘first-line’ review of migration decisions. This is the site where the difficulties are most apparent in separating questions of fact and preference for a different result from questions of ‘pure’ law.

The applications made by Abebe and Eshetu are not isolated incidents. The two are part of a new phenomenon in Australia: mobile refugee claimants who come to the country and seek a right to protection, even though they arrive without a visa or any other authority to enter. Not only has the number of ‘onshore’ asylum-seekers risen sharply in recent years; so too has the tendency to litigate adverse rulings by the RRT. Refugee appeals account for the majority of the migration cases going to the Federal Court under Part VIII of the Act. An increasing number is now turning to the High Court in its original jurisdiction.

Whether the high rate of applications is a reflection of the desperation of the claimants or of problems within the refugee determination and appeals system is a moot point.[15] The challenge facing the High Court is twofold. The fact that more and more refugee claimants are becoming litigious is significant. Just as important is the nature of refugee claims. The codification of migration decision-making in recent years[16] has rendered legal disputation about most classes of visa very rule-oriented. Judicial review of these types of decisions is less affected by the constraining provisions in Part VIII of the Act. The test for determining refugee status, however, is the subject of more complex legal constructs that have evolved through court-made jurisprudence rather than through rules made by the Australian Parliament. It is precisely in the cases that raise the most ‘grey’ areas for lawyers that most reliance has been placed on the broader grounds of judicial review. As is explored in the following section, these are the grounds now excluded from review by the Federal Court — they are available only in the High Court.


One of the defining features of the Constitution is that the document establishes three distinct arms of government — legislative, executive and judicial, which form a system of checks and balances on the exercise of power. The rule of law Australian-style is predicated on the notion that judicial power can only be exercised by a court of law. This power is vested in the High Court of Australia — the only court provided for expressly by the Constitution.[17] Sections 75 and 76 of this document detail the original jurisdiction of the High Court. The first of these provisions specifies five matters, two of which are of particular significance in the present context.[18] Section 75(iii) gives the High Court original jurisdiction in cases in which the Commonwealth or one of its officers is a party. Section 75(v) provides that the Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The phrase ‘officer of the Commonwealth’ has been read broadly to include everyone from Ministers of the Crown (and their delegates) to judges of lower federal courts.[19] Although no mention is made of the ‘quashing’ writ — certiorari — the High Court has found ways of getting around this omission where this writ can be issued in conjunction with the other named remedies.[20] The provisions operate to create a constitutionally guaranteed right to seek judicial review of most federal administrative action in the High Court.[21] As the s 75 jurisdiction is specified in the Constitution, it cannot be abrogated by the Parliament.[22] On the other hand, the legislature can confer further jurisdiction on the High Court.[23] It can also confer on other federal courts jurisdiction commensurate with that of the High Court under ss 75 and 76.[24]

The Federal Court of Australia was created by the Federal Parliament in 1976 to alleviate what had become an unmanageable workload for the High Court.[25] In October 1980 that court was vested with its most significant judicial review powers with the coming into force of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). The creation of the Federal Court and the advent of the ADJR Act heralded a virtual revolution for individuals affected by an adverse migration decision.[26] Judicial review became both accessible to applicants and an effective avenue through which to seek redress. For the Government, the new involvement of the judiciary threw open to an unprecedented degree the issues of the role of the courts in the administrative process and where the balance of power should lie in cases which involve the exercise of open-ended discretions.

The intervening years have seen a number of initiatives in the migration field that have been targeted quite specifically at reducing the scope for judicial intervention in the migration decision-making process.[27] These include the codification of the decisional referents,[28] the establishment of specialist tribunals to review the ‘merits’ of migration decisions,[29] and explicit measures restricting the powers of the Federal Court. The most extreme of these latter measures are contained in what is now Part VIII of the Act.

The operation of Part VIII has been described elsewhere.[30] For present purposes, it suffices to note that the legislation creates a separate regime for the judicial review of migration decisions. For ‘judicially-reviewable decisions’ made after 1 September 1994,[31] neither the ADJR Act nor s 39B of the Judiciary Act 1903 (Cth) is available to challenge an adverse ruling. The guarantees of s 75(v) of the Constitution continue, but, should the High Court decide to remit an immigration matter back to the Federal Court under s 44 of the Judiciary Act 1903 (Cth), the Federal Court may only review the matter on the grounds set out in Part VIII of the Act.[32] Part VIII restricts the range of people who can seek the judicial review of a migration decision, and it limits access to the Federal Court altogether in relation to some classes of migration decisions.[33] Most importantly, it constrains the grounds on which the Federal Court can review ‘judicially-reviewable decisions’.

In effect, the changes narrow the scope of judicial review to that of simple jurisdictional error, failure to make a decision in strict conformity with the (substantive and procedural) terms of legislation, and actual bias.[34] Sections 476(2) and (3)(d)–(g) provide expressly that the Federal Court may not review migration decisions on the ‘broader’ grounds. These are: denial of natural justice, unreasonableness, taking an irrelevant consideration into account, failure to take into account a relevant consideration, bad faith, and any other abuse of power. These are the heads of review that have brought the courts close on occasion to using judicial review as a vehicle for reviewing the merits of decisions made.

When Part VIII of the Act became law on 1 September 1994, the guarantee of judicial review under s 75(v) of the Constitution became something of a two-edged sword for the High Court. If Part VIII operates to confine the power of the Federal Court to review all aspects of the legality of a migration decision, it follows that the only court vested with the full array of judicial review powers is the High Court. With immigration a large and growing source of judicial review litigation in the Federal Court, it seemed inevitable that applicants barred from relief in the Federal Court would turn their attention to the High Court and to the prerogative relief available under s 75(v) of the Constitution.[35]

In practice, however, applications to the High Court in migration cases did not skyrocket after 1994, although there was an increase in numbers seeking constitutional writs. Instead, the case load of the Federal Court continued to rise. Interestingly, while the ‘success’ rate for applicants plummeted in the period immediately following the introduction of Part VIII of the Act,[36] by the time Abebe and Eshetu came to be heard in the High Court, the Federal Court was remitting for redetermination according to the law close to 20 per cent of all cases heard by it.[37] Taking into account the cases conceded on behalf of the Government (that is, remitted for redetermination by consent), almost one in every four cases was achieving a result of sorts by applying for judicial review under Part VIII of the Act.[38] The cause for the change in the Federal Court was due in part to the ruling of the Full Court of that Court in Eshetu v Minister for Immigration and Multicultural Affairs.[39] However, as is explored below, the judicial resistance to Part VIII seems to have gone deeper than the issues canvassed in that case. One of the fascinating aspects of the final rulings in Abebe and Eshetu is the quite radical difference in the approach taken by the High Court to the legislative constraints on the Federal Court’s powers. The High Court not only upheld the constitutionality of Part VIII of the Act, but also quashed firmly the Federal Court’s attempts to undermine the effectiveness of the constraints imposed by Part VIII.


Ms Abebe first brought an action against the Minister in the Federal Court of Australia on 30 September 1997 under s 476 of the Act. To make the action a test case, the application was amended to seek relief on the grounds that Ms Abebe had been denied natural justice and that the RRT’s decision was legally ‘unreasonable’.[40] Davies J refused to consider these broad grounds of review on the basis that s 485 of the Act made the provisions of s 476(2) of the Act non-reviewable grounds of judicial review in the Federal Court. The plaintiff’s application was dismissed. Instead of appealing this ruling to the Full Federal Court, Ms Abebe went straight to the High Court so as both to challenge Part VIII of the Act[41] and to seek prerogative relief in respect of the RRT’s refusal to grant a protection visa.[42] The case came before Kirby J on 22 December 1997 and then before Gummow J, who stated the following question relating to the constitutional challenge for the Full Bench of the High Court:

In their application to the review by the Federal Court of Australia of decisions of the Refugee Review Tribunal, when the Tribunal is reviewing decisions of the nature referred to in section 411(1)(c) of the Migration Act 1958 (Cth), are the provisions of Part 8 of that Act (or any of them) outside the legislative powers of the Commonwealth?[43]

In closely reasoned judgments the High Court split 4:3, answering the question stated in the negative. The result is that this first challenge to the constitutionality of Part VIII of the Act failed.

A Can the Federal Court Be Vested with Authority to Deal with
Part of a ‘Matter’?

The first of the arguments raised in Abebe was that it is not permissible for the Australian Parliament to confer on a federal court jurisdiction to deal with anything less than all aspects of a legal ‘matter’. The second, related assertion was that the constriction of the Federal Court’s powers under Part VIII of the Act amounted to the conferral on the Federal Court of a non-judicial function. The essence of the issues to be decided in Abebe was summarised by Kirby J:

[T]wo considerations ... must be examined to respond to the arguments raised concerning the validity of the provisions of Pt 8 of the Act. The first involves the meaning of the word ‘matter’ or ‘matters’ where appearing in ss 75, 76, 77 and 78 of the Constitution. The second concerns the implications to be derived from the creation, by Ch III of the Constitution, of ‘the Judicature’ as a separate and independent branch of government, and the further implications to be drawn from the language, structure and purposes of that Chapter and the provisions within it.[44]

Section 77 of the Constitution stipulates that the jurisdiction of any federal court may only be defined in a law made by the Federal Parliament ‘[w]ith respect to any of the matters mentioned’ (emphasis added) in ss 75 and 76. The relevant provisions read as follows (emphasis added):

75 In all matters:

... (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

76 The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

... (ii) arising under any laws made by the Parliament ...

77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

(i) defining the jurisdiction of any federal court other than the High Court ...

The applicant argued that ‘matter’ has to be read to cover the full range of issues canvassed in a legal dispute. Although there was no precedent exactly on point before Abebe, the term has been the subject of judicial consideration. As the majority noted, the tendency has been to give the term a wide meaning: something more than ‘a legal proceeding’ as framed by parties, that is, something which constitutes ‘the subject matter for determination in a legal proceeding’[45] or, in other words, ‘subject matter which is apt for determination by a court of law by reference to some “immediate right, duty or liability” susceptible of determination by such a court’.[46] Kirby J pointed out that this interpretation of ‘matter’ explains the constitutional bar on Australian federal courts (including the High Court) providing advisory opinions on issues not founded in particular litigation[47] or deciding abstract questions divorced from the actual administration of the law.[48]

Where the High Court split was on the issue of whether it was constitutionally permissible for Parliament to ‘divide’ a ‘matter’ by conferring jurisdiction on a court to deal with less than the whole of a legal dispute. The majority of Gleeson CJ, McHugh, Kirby and Callinan JJ took the view that the term ‘matter’ impliedly included part of a matter, rejecting the argument that the word was indivisible.[49]

In the leading judgment of Gleeson CJ and McHugh J, the judges ruled that a ‘matter’ cannot be conceived in alienation from the remedies that are available in the forum within which a dispute is litigated. Nor, indeed, can the notion of ‘matter’ exist separate from the standing of an individual to enforce a right, duty or liability so as to make a matter justiciable.[50] They found that the fact that Parliament may not have vested a court with all the remedies that might be available to resolve a controversy does not alter the fact that ‘parliament has defined the jurisdiction of the court with respect to a matter’.[51]

In support of their interpretation, the majority judges cited the tradition in the Australian courts of vesting State courts with federal jurisdiction both in the past under what was known as the ‘autochthonous expedient’[52] and at present with the cross-vesting of State and federal jurisdictions[53] so as to facilitate the efficient determination of cases crossing over the federal–State divide.[54] The judges noted that to give a narrow meaning to the word ‘matter’ would run against the tenor of earlier rulings on the term and wreak havoc within the Federal Court administration. Gleeson CJ and McHugh J pointed out wryly that the plaintiff’s interests would not really be served in effectively locking the Federal Court out of the judicial review of migration decisions.[55]

In contrast, the dissenting judges in Abebe based their judgments on the presumption that the notion of ‘matter’ is tied inexorably to the notion of ‘judicial power’. They ruled that anything short of a full adjudication of the legality of a matter cannot be an exercise of the judicial power. While the majority focused on standing and remedies as the essential attributes of a ‘matter’, the minority looked to the nature of the dispute itself. Gaudron, Gummow and Hayne JJ all emphasised the principle that there can be no ‘matter’ in the absence of ‘an immediate right, duty or liability’ to be established by determination of a court.[56] The minority view was that it is not permissible to vest a federal court with anything less than the power to determine conclusively the existence or otherwise of those rights, duties or liabilities. Put another way, it is not possible to divide the curial determination of a legal ‘matter’.

The majority’s ruling on the second limb of Ms Abebe’s case is an interesting addition to the High Court’s jurisprudence on the nature of the ‘judicial power’ conferred by the Constitution on Chapter III courts. In essence, the majority accepted that it was permissible for the Federal Parliament to legislate to confine the Federal Court’s exercise of its judicial power. All members of the Court agreed that the effect of Part VIII of the Act was to narrow the grounds on which the legality of ‘judicially-reviewable’ migration decisions could be reviewed by that court. The practical implication of that finding is that in some instances the Federal Court could be asked to ‘affirm’ a decision that was in fact unlawful. All members of the Court recognised that the only avenue available to applicants in these circumstances is the High Court. The Chief Justice and McHugh J remarked:

In the present case, the 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. Nevertheless, we can see nothing in ss 75, 76 and 77 of the Constitution which prevents the parliament from enacting ss 476, 485 and 486 of the Act.[57]

The other members of the Court made similar comments, with some calling directly on the Government to reconsider the wisdom of Part VIII of the Act.[58]

The problem with the majority’s analysis of both the term ‘matter’ and the nature of the judicial power is the gulf between the examples they cited in support of their conclusions and the reality of Part VIII of the Act. Although the majority acknowledged that the issues before them had never been litigated before, they did not emphasise the most significant point in the case. This is simply that Part VIII of the Act has no precedent as legislation that truncates the judicial powers of a federal court of law. The provisions do not expand the jurisdiction of the migration decision-makers. Accordingly, a situation is created whereby the restricted remedies require the Federal Court to sit on its hands when presented with decisions that are unlawful according to accepted principles of administrative law.

In answer to the majority’s reference to the practice of defining and confining the role of the State courts, Gaudron J pointed out that confining the remedies available in particular causes of action (as is the effect of Part VIII) is quite different from defining the jurisdiction of a court according to locality or specified monetary amount. Gaudron J drew on the reasoning in a line of precedents, including cases to the effect that, once federal jurisdiction is attracted, it attaches to the whole of a matter and not just to the federal aspect of a dispute. Her Honour concluded:

[T]o construe s 77 as permitting parliament to confer jurisdiction in respect of part of a dispute — partial authority to adjudicate — would be to enable parliament to subvert the efficacy of the integrated legal system established by Ch III.[59]

In my view, this reasoning is compelling, as is the minority’s conclusion that finality is a necessary component of the judicial power.[60] The ruling in Abebe means that the Federal Court will stand in a position that differs little from the position of a common (administrative) tribunal, with the exception that it probably has less power than a tribunal. It has the power to determine whether the terms of the Act have been complied with to the letter. Beyond this, however, the Court cannot act to correct an error of law that is a breach of procedural fairness — including perceived bias, a failure to consider all (and only) relevant considerations, or other gross error of law resulting in a legally unreasonable decision. Indeed, as even the majority conceded (and noted as ‘unfortunate’),[61] the Federal Court is obliged under Part VIII to ‘affirm’ such legally flawed decisions. How this action can amount to an exercise of ‘judicial’ power is difficult to comprehend, more particularly in light of the subsequent decision of the High Court which struck down the State–federal legislative cross-vesting scheme.[62] One can only be left to wonder whether the majority would have taken this view of the provisions if the subjects of the powers in question were not non-citizens, marked as they have been as the consummate constitutional outsiders.[63]


The question on everyone’s lips following Abebe’s case was whether the High Court would be open to finding a way around the restrictive provisions of Part VIII of the Act. In Eshetu the High Court examined one vehicle for maintaining a forceful judicial role for the Federal Court in the review of migration decisions. Its ruling makes this second case very much a companion piece for Abebe. The High Court confirmed both the power deficit in the Federal Court under Part VIII of the Act and the preparedness of the High Court to take a deferential approach in the review of migration decisions.

The central issue in Eshetu was the reach of Part VIII of the Act and the relationship between the grounds of review there enumerated and other provisions of the Act going to the manner in which the review of (refugee) decisions is to be conducted. Interestingly, all members of the High Court in Eshetu acknowledged that Part VIII of the Act does not act as a ‘full’ privative clause: it merely constrains some of the grounds on which decisions can be reviewed by the Federal Court. It will not operate to stop the Federal Court from granting relief where the RRT has applied the wrong test for refugee status.[64] The situation becomes more complex if the error of law is one that involves the manner in which a statutory power was exercised.

The problem facing the applicant in Eshetu was that the Act (as it then was)[65] did not set out in any detail the procedures that had to be followed by the RRT when reviewing a refusal to grant refugee status. As noted earlier, the Act requires the RRT to provide an oral hearing, save in those cases where a positive determination can be made on the papers.[66] Otherwise, the only directions issued to the Tribunal were those set out in s 420 of the Act. This section requires the RRT to ‘pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’, and states that the Tribunal ‘is not bound by technicalities, legal forms or rules of evidence’ and must act according to ‘substantial justice and the merits of the case’.[67] This legislative construction is not novel: the words used are virtually the same as those used first in the veterans’ affairs jurisdiction.[68]

Under s 476(1)(a) of the Act, the Federal Court retains the ability to review migration decisions where there has been a failure to observe the procedures required by the Act to be observed. In this context, the first question for the High Court was whether s 420 prescribes ‘procedures’ with which the RRT is required to conform. In other words, was the RRT required as a matter of procedure to provide a certain type of review? The second, related issue was the content of any procedural rights, given the reference to fairness and justice and the direction that decisions be made in accordance with ‘substantial justice’ and the merits of the case. The final question went to the effect of the exclusion of particular grounds of review in s 476(2).

The High Court disposed of the first issue in short measure by endorsing a line of authority to the effect that s 420 does not establish procedures that are required to be followed. All the judges[69] agreed with the reasoning of Lindgren J at first instance in Sun v Minister of Immigration and Ethnic Affairs who found that

s 420 contains general exhortatory provisions, the terms of which do not conform to the common understanding of a ‘procedure’, which ... signifies the steps, more or less precisely identified, which are or may be involved in particular proceedings ...[70]

Lindgren J noted the mutual inconsistencies in s 420. He held that the RRT’s failure to meet one or more of the objectives may not mean that it had failed to pursue the specified objectives. The High Court confirmed that the reference to ‘fair, just, economical and quick’ decision-making in s 420 does not mandate particular procedures. It operates merely as an exhortation to pursue a certain way of conducting the review process.[71] Gleeson CJ, McHugh and Hayne JJ held that the provision was intended to be ‘facultative, not restrictive’, and was designed to free the tribunals from the burdensome procedures deemed appropriate for courts of law.[72]

In Eshetu v Minister for Immigration and Multicultural Affairs, a majority of the Full Federal Court ruled that s 420 compels the conclusion that the RRT must ensure that review is ‘fair, just, economical, informal and quick’ and that it is directed to the ‘substantial justice and merits of the case’.[73] In determining the content of this obligation, the judges followed a line of authority which posits that ‘substantial justice’, as a bare minimum, requires compliance with common law principles of natural justice or procedural fairness.[74] Burchett J held that the Act substitutes for a broad conception of natural justice a series of specific provisions by one or other of which each rule of natural justice is given effect.[75] The other majority judge, Davies J, held that the requirement of substantial justice has a substantive as well as a procedural component.[76] In dissent, Whitlam J concurred with the approach taken by Lindgren J in Sun v Minister for Immigration and Ethnic Affairs.[77] The High Court’s ruling settled a debate that had split the Federal Court judges almost exactly down the middle.[78] Although the resolution of this debate is welcome, it is a matter of some disappointment that no member of the High Court canvassed at any length the reasoning of the judges who were so comprehensively overruled.

For example, the High Court judges make no reference to the care taken by the majority in the Federal Court to examine the context of the legislative provisions in question so as to determine the original purpose of the legislature. No mention is made in the High Court of the Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), which suggests that the phrase ‘substantial justice’ was intended to be the functional equivalent of common law procedural fairness requirements.[79]

After his ruling in Eshetu, Davies J stressed that his interpretation of s 420 did not create a new ground of review, but was merely a matter of statutory interpretation of the phrase ‘substantial justice’ and a determination of whether there had been compliance with the phrase.[80] The High Court disagreed. In so doing, it rebuffed the Full Federal Court’s assumption that s 476 provides a remedy when the RRT fails to act in accordance with ‘substantial justice and the merits of the case’. All members of the High Court were resolute that, whatever the meaning of the phrase ‘substantial justice’, Part VIII operates to prevent the Federal Court from reviewing decisions on the broader grounds of natural justice, relevance and reasonableness.[81] Gleeson CJ and McHugh J stated:

In s 476(2)(b) the legislature has expressed an intention to define the jurisdiction of the Federal Court in such a manner as to exclude review of a tribunal’s decision upon the ground presently under consideration. The ground thus excluded corresponds to that referred to, for example, in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).[82]

It is not an acceptable approach to statutory interpretation to negate the clear intention of the legislature by reliance on s 420 of the Act. In any event, s 420, when understood in its legal and statutory context, is an inadequate foundation for an attempt to overcome the provisions of s 476(2).

In Jit v Minister for Immigration and Ethnic Affairs[83] Davies J ruled that the essence of s 420 is in the RRT’s obligation to focus on the central issues in a case, avoiding technicalities and making due allowance for matters such as problems of proof which claimants encounter. In other cases the Federal Court has held that decisions that are legally unreasonable, based on irrelevant or wrong considerations[84] or affected by (apprehended) bias[85] cannot have been made in accordance with ‘substantial justice’.[86] Finkelstein J has equated the duty to accord substantial justice with the ‘obligation to act judicially’.[87] In some respects, the High Court’s ruling does not dispute any of these statements about the meaning of the phrase ‘substantial justice’. It confirms simply that the Federal Court is powerless under Part VIII of the Act to grant any remedy. The importance of the distinction between breach of law and remedy is demonstrated by the judgment of Hill J at first instance in Eshetu v Minister for Immigration and Ethnic Affairs.[88] Hill J concluded (incorrectly, according to the High Court) that s 420 did establish procedures which the RRT was required to observe. However, he ruled that the permissible grounds of review must be read subject to the exclusion of the particular grounds of judicial review in s 476(2). He stated that ‘if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded, notwithstanding the terms of s 420’.[89] The same applies in case of review on grounds of unreasonableness. After examining the decision of the RRT, Hill J stated: ‘The tribunal’s conclusion totally lacks logic. The tribunal’s decision as reached was so unreasonable that no reasonable tribunal could reach it. But sadly, that is not a ground of review.’[90]

The conclusion of the High Court is encapsulated in the conclusion reached by Gleeson CJ and McHugh J. The two ruled:

The proposition that the Tribunal’s decision manifested ‘Wednesbury unreasonableness’ has not been sustained. Even if it had been sustained, Hill J was right to conclude that it did not provide a ground upon which the Federal Court could set aside the Tribunal’s decision.[91]

The decision of the High Court in Eshetu is totally consistent with the majority’s ruling in Abebe. Hayne J made this very clear at the outset of what can only be described as a grudging judgment: he reiterates forcefully his view that the whole regime established by Part VIII of the Act is unconstitutional but that he is bound by the majority decision.[92] Nevertheless, one cannot avoid the conclusion that the High Court in this case, as in Abebe, has fashioned a stout rod for its own back.


The two cases of Abebe and Eshetu are also of interest in their second aspect, namely in their application for prerogative relief under s 75(v) of the Constitution in the High Court’s original jurisdiction. The two cases demonstrate both the limitations of any process confined to the identification of pure ‘legal’ errors and the fungible nature of judicial review when different judges go about the business of identifying errors of law.

Ms Abebe failed before all members of the bench on the ground that no legal error was demonstrated in the ruling of the RRT. The essence of the plaintiff’s case was that the Tribunal had denied her procedural fairness and had committed other errors of law by dismissing her story as lacking credibility. She failed before the Tribunal because she changed her account of events on a number of occasions, usually in response to information discovered by the Tribunal which seemed to contradict her version of events. Although finding no reviewable error in the ruling made by the Tribunal, various members of the Court expressed their concern about any tribunal assuming that lying is evidence per se of a lack of bona fides in a refugee claimant. On the contrary, they pointed out, lack of candour might denote no more than the desperation of the claimant to escape return to the place where they face persecution. In cases where the claimant is a woman and the harms alleged involve rape and sexual abuse, there is a multitude of evidence suggesting that great care needs to be taken in the treatment of claimants. Gummow and Hayne JJ said:

Inquiring whether a person has a well-founded fear of persecution is attended by very great difficulties. It is as well to begin such inquiries from two premises that, while obvious, may possibly be overlooked. First, the fact that a person in the applicant’s position does not complain of rape to the first immigration officer who speaks to her on arrival in this country, a country in which she seeks asylum, is anything but compelling evidence that no such assault occurred. Even if the ‘primitive rule of hue-and-cry’ spoken of by Wigmore in connection with doctrines of recent complaint in cases of rape may once have had some basis in the society in which it grew up, there is no warrant for some unthinking application of such a rule to a person from a wholly different society coming to a new country in which she seeks asylum, leave aside the fact that the rape may have occurred months if not years ago as one more horror in a history of horror.
Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the tribunal in the execution of its tasks, not by a court that is asked to review the way in which the tribunal reached its decision.[93]

In spite of the promulgation in 1996 of Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers,[94] it must remain a matter of concern that Ms Abebe’s case was handled almost entirely by males. She was interviewed at the airport by a male officer of the Department (using a female interpreter); her first legal aid adviser was male;[95] the Tribunal in her case was constituted by a male; and the interpreter at the hearing was male. The Tribunal’s written reasons show no evidence of the gender guidelines being considered directly. Nor do they show much understanding of Ms Abebe’s cultural background. In the longer term, Ms Abebe’s case may stand as an example of how little the administrative appeals and judicial review processes can help where fundamental misunderstandings arise at the very earliest stages in an administrative process.

By the time Eshetu’s case reached the High Court, three of the four judges who had reviewed the decision by the RRT had declared the ruling legally unreasonable: in other words, that it was so unreasonable that the decision could have been made by no reasonable person.[96] No member of the High Court agreed with this assessment of the RRT’s ruling, although Gaudron and Kirby JJ concurred that the RRT’s decision was legally flawed. In its comprehensive dismissal of the case, the High Court confirmed the ruling in Abebe that prerogative relief will be available only where a clear legal error is apparent. It also communicated a broader resistance to (if not overt hostility towards) applications for the judicial review of refugee rulings, stressing that these cases turn in most instances on findings of fact and the assessment of credibility. These are matters, the Court makes plain, that are best left to bodies such as the RRT which are charged with determining the merits of applications.

Gleeson CJ and McHugh J dismissed the application for prerogative relief under s 75(v) of the Constitution on the ground that the challenge was one that went to the weighting of factors taken (or not taken) into account. In other words, their Honours took the view that the applicant’s complaint was one that went to the merits of the decision and not to a matter of law. In reaching this conclusion, the two judges noted that three members of the Federal Court had found the RRT’s ruling illogical or obviously flawed. However, they cited the opposite ruling by Whitlam J as evidence that the perception of the decision is one on which reasonable minds could differ.[97] The implication almost seems to be that the very fact that a decision can be categorised in different ways takes the decision outside the proper realm of judicial review.

The problem facing Mr Eshetu is typical of refugee claims in that he could point to no direct evidence to corroborate his version of the events leading up to his flight from Ethiopia. Evidence obtained from independent sources such as the Ethiopian Human Rights Council and Amnesty International seems to have been neutral at best; it certainly did not go so far as to refute the claims made by Eshetu.[98] Some members of both the Federal Court and the High Court were, however, willing to find fault with the way in which the RRT made use of the limited data.

In the Federal Court the major concern of Davies J was that the Tribunal had asked itself the wrong questions, focusing too narrowly on the factual question of whether the events alleged by the applicant had occurred rather than on the issue of why the applicant feared persecution. His Honour plainly disagreed with the factual findings made by the Tribunal, but just as importantly he found that the Tribunal had not made findings on some crucial matters. He said:

Neither in the Tribunal’s questioning of Mr Eshetu during the hearing nor in the Tribunal’s lengthy reasons for decision did the Tribunal seriously enter into the question as to why Mr Eshetu had left Ethiopia, whether he had in fact been a student member of the University, whether he had suffered an injury to his foot and if so in what circumstances and whether he had gone into hiding, and if so why.[99]

For both majority judges in the Full Federal Court, however, the critical error committed by the RRT was in the narrow focus of its fact-finding on the particular incidents alleged by Mr Eshetu.[100] Although he dissented in the result, Whitlam J also acknowledged the force of Davies J’s criticism of the methodo-logy adopted by the Tribunal.[101]

One of the more interesting features of the High Court judgments in Eshetu is the different approach taken to the judicial review of factual findings in the case. Gummow J identified this as the central issue in the case. His Honour pointed out that arguments about the legal reasonableness of the RRT’s decision are misplaced because ‘Wednesbury unreasonableness’ is a ground that has developed to constrain the exercise of a statutory discretion. Refugee determinations, his Honour noted, are rulings made on the basis of certain factual and legal conditions and not upon the exercise of a discretion. The complicating factor in Eshetu’s case was that the decision was not made simply on the basis of the claimant’s compliance with the international legal definition of ‘refugee’. Rather, the terms of s 36 of the Act mean that determinations go to the Minister’s satisfaction as to whether a claimant does or does not meet the UN Convention definition of ‘refugee’. Gummow J found that, for Eshetu to succeed, he had to show more than that the RRT had made mistakes in its fact-finding: he had to show that there was no evidence upon which a reasonable person could form the opinion that was formed by the Minister’s delegate.[102]

Interestingly, Gummow J held that prerogative relief under s 75(v) of the Constitution should not encompass the jurisdictional fact doctrine as espoused by the English courts. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council Lord Wilberforce said:

If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, [and] whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge: see Secretary of State for Employment v ASLEF (No 2) ...[103]

Gummow J ruled that it is not for the Court to second-guess the existence of facts and the manner in which they have been compiled and assessed. Like the Chief Justice, McHugh, Hayne and Callinan JJ,[104] his Honour found the mere existence of different opinions on the RRT ruling compelling evidence that the decision was one over which reasonable minds could differ. He said:

I would prefer the scrutiny of the [RRT’s] written statement [of reasons] provided under s 430 by a criterion of ‘reasonableness review’. This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.[105]

As is explored further below, this formulation suggests that review of factual findings for Gummow J will be limited to what is characterised now as the ‘no evidence’ ground. However, his reference to ‘reasonableness’ is just as self-referential and no less enlightening than the famous test established by the famous English case of Associated Provincial Picture Houses Ltd v Wednesbury Corp.[106]

The one point on which Gaudron and Kirby JJ dissented in Eshetu relates not to the factual findings made by the RRT but to the test that it used in assessing those findings. These two judges found a simple legal error in the Tribunal’s failure to consider correctly whether Mr Eshetu’s fear was based on a political opinion that could be imputed in all the circumstances of the case. It was on this basis that the two dismissed the appeal by the Minister. On the application for prerogative relief, the judges found that the error identified may constitute a constructive failure to exercise jurisdiction. However, their Honours declined to grant relief because of the remedies available in the parallel (appellate) proceedings.[107]


It is interesting to note that the mood of judicial deference that is so apparent in the High Court in both Abebe and Eshetu is not nearly so evident in the lower Federal Court. In recent months the Federal Court has continued to develop the jurisprudence of refugee decision-making, finding new grounds for reviewing decisions and putting to the test some of the ‘judge-proofing’ strategies being adopted by the tribunals. The evolving line of cases must be affected by the High Court’s rulings in Abebe and Eshetu. However, it is also likely that the lower court will continue to do its best to find avenues through which to provide relief for litigants.

For example, the Federal Court has begun to take an interest in legal requirements of an inquisitorial process and the specific obligation of the RRT to consider all of the substantive issues raised by the material and evidence before it. It has been frequently accepted by the courts that the RRT is required to consider all the arguments and materials put to it by an applicant, and may even in some cases have a duty to gather more material.[108] In general, in other areas of administrative law a tribunal is entitled to be guided by the issues that parties choose to put before it[109] and to have regard to the nature of the case presented.[110] Recent cases in the Full Federal Court have affirmed a strong duty on the part of the Tribunal, even where the applicant is represented. In addition, the Federal Court has on several occasions referred to a failure by the Tribunal to consider the ‘real question which it was its duty to consider’ or failure to ask and determine the ‘real question’ as constituting a ‘constructive failure by the Tribunal to exercise its jurisdiction’.[111] Such a characterisation, if pursued, might survive even the attempts to introduce privative clauses into the Act.[112]

Closely related to the requirement that the Tribunal consider all the material and evidence before it is the duty, frequently cited in recent cases by the Federal Court, of the RRT to give reasons for its decision. This obligation is set out in s 430 of the Act. The basic law on the requirement to provide reasons is well settled,[113] despite doubts expressed occasionally as to whether a breach of the obligation can found a basis for judicial review or remittal to the Tribunal.[114]

While the Federal Court remains an avenue for the judicial review of migration decisions, there seems to be little doubt that individual judges will continue to use the available mechanisms to find ways in which to provide remedies for persons affected by Tribunal decisions. They may be assisted in this task by the recent articulation in the Act of the procedures that must be followed in reviewing a refugee-status determination.

It is my personal view that the Court is correct to take seriously its role in reviewing Tribunal decisions. In spite of the complexity of refugee law and of the inquisitorial role, RRT members are not required to be legally trained,[115] and few members are appointed with experience relevant to the function they are asked to perform. Dissatisfaction with the way hearings are conducted is apparent in the number of court cases in which complaints are made about the bias of members or other denial of procedural fairness.[116] With RRT members on contracts that vary presently from one year’s to 18 months’ duration, there is a perceived, if not actual, danger that members may fear losing their jobs if they adopt too lenient an approach to refugee claimants. Overarching these concerns is the plight of the refugee claimant. In spite of the Minister’s rhetoric about abusive claimants,[117] recent evidence given by the Acting Principal Member of the RRT to the Senate was that most of those who appear before the RRT have serious concerns about their personal wellbeing and safety should they be returned to their country of origin.[118] In some cases the grant or refusal of refugee status can be quite literally the difference between life and death. At the end of the day, the persistence of some judges of the Federal Court to use whatever powers are available to them to grant a remedy in refugee cases may come down simply to the immediacy of the applicant’s plight and even of their physical presence in the courtroom.


One of the more enervating aspects of the rulings in Abebe and Eshetu is the confidence with which the High Court articulated the scope of judicial review both under Part VIII of the Act and under s 75(v) of the Constitution. In truth, there is nothing either simple or straightforward about how the different judges characterised the findings of the RRT in the two cases as either susceptible to or immune from judicial remedy. The conflicting findings of the judges in Eshetu are an acute example of the indeterminacy of the concept of the rule of law: where Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ could see no error, Gaudron and Kirby JJ identified an obvious flaw. Having rejected ‘Wednesbury unreasonableness’ as a ground for reviewing findings of fact, it is somewhat bemusing that Gummow J’s ultimate guide for checking the legality of the written reasons of a decision was the equally circuitous ‘reasonableness review’. Without accusing the Court of casuistry, one might yet applaud the honesty of Lord Denning MR’s suggestion that how judges characterise the legality of decision-making is determined most often by judicial preference for the outcome of a legal dispute. The simple test is whether or not the judge is moved to quash the decision made.[119]

The peril for the refugee claimant is that the human impact of an administrative ruling is easily lost in the face of political and practical pressures should the High Court be seen to be encouraging refugee litigation. While judges of the High Court are expected to be above politics, no court can divorce itself entirely from popular concerns and opinions. As I have noted elsewhere, it is my view that hostility to unauthorised asylum-seekers and a simple fear of numbers is reflected in the growth in conservatism of the High Court in refugee matters:[120] until Chen Shi Hai v Minister for Immigration and Multicultural Affairs,[121] no refugee claimant had ‘won’ in the High Court since 1989. The present Minister has run a very public campaign airing his views about what he perceives as abusive refugee claimants,[122] Tribunal members who are wont to ‘reinvent’ the definition of refugee,[123] Federal Court judges who are transgressing by intervening too readily in the review of migration decisions,[124] and lawyers who have been running class actions involving large numbers of refugee claimants.[125] The flexibility of the judicial review process — and the ease with which rulings can be justified in purely doctrinal terms — makes it impossible to determine the extent to which the High Court has been affected, consciously or otherwise, by the current discourse. For present purposes, one can do no more than note the congruence between the mood expressed in the Minister’s now familiar outbursts and the losing streak of migration applications in the High Court.

The High Court has made its concerns about being inundated with refugee appeals plain.[126] Even though the majority in Abebe took a deferential approach in determining the constitutionality of Part VIII of the Act, Gleeson CJ, McHugh and Kirby JJ all made their concerns about the legislation — and its likely effect on the High Court — abundantly clear. Although the Court is vested with original jurisdiction to review the legality of federal administrative action, one can have some sympathy with the judges’ view that the Court is ill-equipped to take on the task of broad-scale judicial review.

Just as every child born alive is either ‘Liberal or Conservative’,[127] it is reasonable to suppose that opinions will differ on whether it is appropriate for the Federal Court to adopt a proactive approach in the fashion that some of its judges have in reviewing refugee decisions. Opinions will also differ on the merits of the approach taken by the High Court in Abebe and Eshetu. As matters stand, the message from the Court is that refugee claimants can expect little from a direct approach under s 75(v) of the Constitution, while the Federal Court can expect little support should it adopt an activist approach to the review of refugee decisions. However unpopular, I maintain my view that vigorous judicial review in these cases is No Bad Thing.

I note again the points that I made in reviewing the Full Federal Court’s ruling in Eshetu v Minister for Immigration and Multicultural Affairs.[128] Refugee claimants who come to Australia as unauthorised arrivals could not be more vulnerable in our society. They evoke little sympathy from the public, even though they may face the most dire threats to their lives and liberty if returned to their countries of origin. The system for determining their status as refugees places these people at a significant disadvantage, most particularly when an application is made in immigration detention. Claimants have no automatic right to legal or other assistance. The inquisitorial nature of the application and review processes means that claimants are most often on their own before their interrogator, with no ‘outsider’ to explain the process. In camera hearings mean that the conduct of hearings is mostly unsupervised. The system contains no obvious mechanisms for either detecting or remedying flaws in the hearing process that may be caused by compassion fatigue or even political bias in an adjudicator.

Access to curial review is essential because of the role the judiciary can play in encouraging free and fair decision-making. The need for judicial oversight is especially acute for tribunals such as the RRT, where there are various factors acting against independence. These include ministerial control over appointments and the brevity of membership contracts: in September 1999 no member had held a commission longer than 16 months.[129] As I have noted in other contexts, the Minister has taken an active interest in Tribunal decisions, and on one occasion openly threatened members with non-renewal of their contracts for purporting to ‘rewrite’ the definition of refugee.[130]

Although the High Court is at a physical and metaphorical remove from the immediate and human needs of refugee claimants, this need not prevent the Court from making the quantum leap required in reconceptualising refugee law as human rights protection. This is the approach advocated by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs.[131] It is one in which the alienage of the asylum-seeker is subsumed by concern for the principle that human beings should enjoy fundamental rights and freedoms without discrimination.[132]

In his play, A Man for All Seasons, Robert Bolt has Sir Thomas More make an eloquent defence of the English legal system and of the rule of law. More’s son-in-law, Will Roper, reprimands him for allowing an unsavoury character to go free because he had not broken the law. To Roper’s suggestion that the end should justify the means ― that he would ‘cut down every law in England’ to get after the Devil ― More replies:

Oh? And when the last law was down, and the Devil turned around on you ― where would you hide, Roper, the laws being flat? This country’s planted thick with laws from coast to coast ― Man’s Laws, not God’s ― and if you cut them down ... d’you really think you could stand upright in the winds that would blow then?[133]

We live today in a climate where politicians are buffeted by the insecurities and resentments of a public affronted by the very concept of the (uninvited) asylum-seeker. In this context the courts embody the anti-popularist ‘rule of law’ that underpins the Australian version of the Westminster style of government. While the matter may be one of high controversy, it is my view that the courts should stand firm against the attempts that have been made to undermine the nature and extent of judicial power in this country. The courts’ function as ‘bulwark against tyranny’, as some romantics would describe the judicial role, cannot be predicated on the exclusion of some from the protective shield. As we justify the felling of each tree, it is all too easy to ignore the bigger picture while the forest disappears. Today, it is migrants who are the outsiders. Who will it be tomorrow?


[*] [1999] HCA 14; (1999) 162 ALR 1 (‘Abebe’).

[†] [1999] HCA 21; (1999) 162 ALR 577 (‘Eshetu’).

[1] See Migration Act 1958 (Cth) (‘the Act’) pt VIII. See also Mary Crock, Immigration and Refugee Law in Australia (1998) ch 13; Mary Crock, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ [1996] SydLawRw 14; (1996) 18 Sydney Law Review 267.

[2] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). The Convention covers events causing a refugee problem before 1 January 1951, while the Protocol extends the definition to events occurring after that date.

[3] Convention Relating to the Status of Refugees, above n 2, art 33.

[4] Ibid art 1A; Protocol Relating to the Status of Refugees, above n 2, art 1(2).

[5] See ss 425 and 427(6) of the Act.

[6] Such complaints are common in the written submissions to the Senate Legal and Constitutional References Committee Inquiry into the Operation of Australia’s Refugee Determination System, instituted in May 1999. The Committee was due to report in October 1999, but the time to report has now been extended to 29 June 2000. See the Terms of Reference for the Inquiry in Commonwealth, Journals of the Senate, No 42, 13 May 1999, 861. While limited funding is available for assistance in completing the form for setting out a refugee status claim, the Immigration Advice and Application Assistance Scheme does not cover the provision of advice beyond the initial application phase. This scheme is administered by the Department and is controlled by way of a tender system. Successful tenderers are allocated individual cases and are subject to contracts permitting the Department to access any client files created in the course of providing advice.

[7] The workings of this tribunal are described in Crock, Immigration and Refugee Law in Australia, above n 1, 257–60. The jurisprudence surrounding the definition of ‘refugee’ is discussed in ch 7.

[8] The National Council of Women and the Australian Federation of Business and Professional Women Inc intervened as amicus curiae in the case.

[9] See Abebe [1999] HCA 14; (1999) 162 ALR 1, 23.

[10] See Department of Immigration and Multicultural Affairs, Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers (1996). See also Ruth Fincher, Lois Foster and Rosemary Wilmot, Gender Equity and Australian Immigration Policy (1994). There is a great deal of academic writing on the issue of gender bias in refugee law and policy: see, eg, Jacqueline Greatbach, ‘The Gender Difference: Feminist Critiques of Refugee Discourse’ (1989) 1 International Journal of Refugee Law 518; Nancy Kelly, ‘Gender-Related Persecution: Assessing Asylum Claims of Women’ (1993) 26 Cornell International Law Journal 625; United Nations High Commissioner for Refugees Division of International Protection, ‘Gender-Related Persecution: An Analysis of Recent Trends’ (1997) International Journal of Refugee Law — Special Issue 79 and other articles in this special issue.

[11] RRT Reference No N94/05067 (Unreported, Rosyln Smidt, 30 November 1995) <> at 27 April 2000. Copies of all Internet sources cited in this case note are on file with the author. See the comments made in Mary Crock and Mark Gibian, ‘Before the High Court: Minister for Immigration and Ethnic Affairs v Eshetu[1998] SydLawRw 19; (1998) 20 Sydney Law Review 457, 459.

[12] Although Ms Abebe was unsuccessful in the High Court, she made a personal plea to the Minister for the exercise by him of his overriding discretion to grant her protection on humanitarian grounds under s 417 of the Act. This discretion is not one that Ms Abebe could compel the Minister to exercise, nor is the exercise a matter that can be litigated in the courts.

[13] This criticism applies equally to most aspects of the judicial review process. On this point, see the evocative article by Kristen Walker, ‘The Importance of Being Out: Sexuality and Refugee Status’ [1996] SydLawRw 32; (1996) 18 Sydney Law Review 568.

[14] See the discussion in below Part V.

[15] In May 1999 a motion was passed in the Senate that the system for determining refugee status be the subject of a broadscale inquiry by the Senate Legal and Constitutional References Committee: Commonwealth, Parliamentary Debates, Senate, 13 May 1999, 4935.

[16] See Sean Cooney, The Transformation of Migration Law (1995) ch 4; Sean Cooney, ‘The Codification of Migration Policy: Excess Rules?’ (Pt 1) (1994) 1 Australian Journal of Administrative Law 125; Sean Cooney, ‘The Codification of Migration Policy: Excess Rules?’ (Pt 2) (1994) 1 Australian Journal of Administrative Law 181.

[17] The Court’s creation is envisaged by s 71 of the Constitution, which provides that the Court be comprised of a Chief Justice and at least two other Justices. The High Court was created by the Judiciary Act 1903 (Cth). It reached its present size of seven Justices (inclusive of the Chief Justice) in 1912. See J Bennett, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980 (1980) 12–20; James Crawford, Australian Courts of Law (3rd ed, 1993) 178–98.

[18] Sections 75(i) and (ii) relate to matters arising under any treaty or affecting consuls or other foreign representatives. Neither jurisdiction has been used in the High Court, in part because no treaty has force in Australia until its terms are enacted by the Federal Parliament. Section 75(iv) gives the High Court power to hear disputes between two or more States and between residents of two or more States. It is referred to as the High Court’s diversity jurisdiction. See Zelman Cowen and Leslie Zines, Federal Jurisdiction in Australia (2nd ed, 1978) ch 1.

[19] See, eg, R v The Judges of the Commonwealth Industrial Court; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313.

[20] On this point, see L Aitken, ‘The High Court’s Power to Grant Certiorari — The Unresolved Question’ (1986) 16 Federal Law Review 370.

[21] See generally Margaret Allars, Introduction to Australian Administrative Law (1990) 99–100.

[22] In this context, cf the doctrine of judicial deference that has been developed to constrain the Court’s review of administrative decisions. See R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 and recent cases such as R v Coldham; Ex parte Australian Workers’ Union [1983] HCA 35; (1983) 153 CLR 415, 418 (Mason ACJ and Brennan J), 421 (Murphy J); O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, 250 (Mason CJ); Re Australian Railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17, 25 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ); Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, 194 (Brennan J).

[23] Section 76 enables Parliament to confer original jurisdiction on the High Court. This is referred to as the Court’s ‘vested’ jurisdiction. See Crawford, above n 17, 181–2.

[24] See Constitution s 77.

[25] See, eg, the comments made by the Court in Moller v Roy [1975] HCA 31; (1975) 132 CLR 622, 632–3 (Gibbs J). See also the Federal Court of Australia Act 1976 (Cth).

[26] See Mary Crock, Administrative Law and Immigration Control in Australia: Actions and Reactions (PhD thesis, The University of Melbourne, 1994).

[27] See ibid.

[28] See the Migration Regulations 1989 (Cth) and subsequent regulations culminating in the present Migration Regulations 1994 (Cth).

[29] Namely, the Immigration Review Tribunal, now the Migration Review Tribunal, and the RRT. For an account of the operation of these tribunals, see Crock, Immigration and Refugee Law in Australia, above n 1, ch 12.

[30] See ibid ch 13; Crock, ‘Judicial Review and Part 8’, above n 1.

[31] The phrase ‘judicially-reviewable decisions’ is defined in s 475 of the Act.

[32] See s 485 of the Act.

[33] See s 475(2) of the Act and the discussion in Crock, ‘Judicial Review and Part 8’, above n 1, 270–1.

[34] Section 476(1) of the Act allows challenges on the basis of:

(a) a failure to follow prescribed procedures;

(b) a lack of jurisdiction in the decision-maker;

(c) the decision not being authorised by the Act or the regulations;

(d) an improper exercise of power;

(e) an error of law, being an incorrect interpretation or application of the law;

(f) fraud or actual bias in the decision-maker; or

(g) no evidence.

Improper exercise of power under s 476(1)(d) is defined in sub-s (3) as:

(a) the exercise of power for a purpose other than that for which it was conferred;

(b) acting under dictation; and

(c) the exercise of a discretionary power without regards to the merits of a case.

[35] See Crock, ‘Judicial Review and Part 8’, above n 1, 302–3.

[36] See Department of Immigration and Multicultural Affairs, DIMA Fact Sheet 86: Litigation Involving Migration Decisions (1998) <> at 15 March 2000.

[37] In 1997–98, 308 Federal Court applications (81 per cent of all applications) were dismissed and 60 decisions (19 per cent of applications that were the subject of decisions of the Court) were remitted for reconsideration: see ibid.

[38] I say ‘a result of sorts’ because the number of applicants that ultimately succeed in obtaining a different substantive result is very low. It is always open to the decision-maker to maintain the same decision after a rehearing. In his speech to the Victorian Chapter of the Australian Institute of Administrative Law on 12 November 1997, the Minister claimed that, of 10 008 decisions taken by his Department to refuse refugee status that were affirmed by the Refugee Review Tribunal, 979 have been appealed to the Federal Court. One hundred and forty-three were sent back to the Tribunal for reconsideration, but only 21 favourable decisions resulted after the rehearing. The Minister uses these statistics as evidence of his view that judicial review is a waste of time and money. See Philip Ruddock, ‘The Balancing Act: Immigration and Decision-Making: The Department, the Tribunals and the Courts’ (Speech presented at the Australian Institute of Administrative Law Meeting (Victorian Chapter), Melbourne, 12 November 1997) <> at 15 March 2000.

[39] [1997] FCA 603; (1997) 71 FCR 300.

[40] See the test expressed in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223.

[41] See Transcript of Proceedings, Abebe v Commonwealth (High Court of Australia, Gummow J, commencing 24 August 1998) <

html> at 15 March 2000.

[42] See Transcript of Proceedings, Minister for Immigration and Multicultural Affairs; Ex parte Abebe (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Kirby, Hayne and Callinan JJ, commencing 11 November 1998) <

3.html> at 15 March 2000.

[43] Transcript of Proceedings, Abebe v Commonwealth (High Court of Australia, Gummow J, commencing 12 November 1998) <

2.html> at 15 March 2000. His Honour was acting pursuant to s 18 of the Judiciary Act 1903 (Cth).

[44] Abebe [1999] HCA 14; (1999) 162 ALR 1, 57–8.

[45] Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).

[46] Abebe [1999] HCA 14; (1999) 162 ALR 1, 58 (Kirby J), quoting ibid. See also Abebe [1999] HCA 14; (1999) 162 ALR 1, 11 (Gleeson CJ and McHugh J), 73–4 (Callinan J).

[47] As did pt XII of the Judiciary Act 1903 (Cth), which was introduced under the Judiciary Act 1910 (Cth) and repealed under the Statute Law Revision Act 1934 (Cth). See ss 88, 89 and 93 of the Judiciary Act 1903 (Cth) as then enacted. Cf North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595, 612 (Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ), 642 (McHugh J), 665–8 (Kirby J). See also Abebe [1999] HCA 14; (1999) 162 ALR 1, 58 (Kirby J).

[48] Mellifont v A-G (Qld) [1991] HCA 53; (1991) 173 CLR 289, 303 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ); Croome v Tasmania (1997) 191 CLR 119, 125 (Brennan CJ, Dawson and Toohey JJ), 135–6 (Gaudron, McHugh and Gummow JJ).

[49] Abebe [1999] HCA 14; (1999) 162 ALR 1, 17 (Gleeson CJ and McHugh J), 59–65 (Kirby J), 74 (Callinan J).

[50] Ibid 12.

[51] Ibid 11–14.

[52] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 268 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

[53] See Cowen and Zines, above n 18, 174–233; Crawford, above n 17, 38–43.

[54] It is still the case that much federal jurisdiction is exercised by State judges and magistrates. The illegal importation of drugs is an example in point. Although a federal offence, committals and criminal trials are heard by the State courts. This harmonious approach to federal jurisdiction has made our court structure more unified than it otherwise might have been. The dominant player, however, remains the Federal Court. On this point, see Mary Crock and Ronald McCallum, ‘Australia’s Federal Courts: Their Origins, Structure and Jurisdiction’ (1995) 46 South Carolina Law Review 719.

[55] Abebe [1999] HCA 14; (1999) 162 ALR 1, 14–15, see also 58 (Kirby J), 73–4 (Callinan J).

[56] Ibid 34 (Gaudron J), 46 (Gummow and Hayne JJ). See Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).

[57] Abebe [1999] HCA 14; (1999) 162 ALR 1, 17.

[58] Kirby J made the following comment in ibid 56:

The prospect of this court’s having to hear and determine, in its original jurisdiction, applications of this kind, in default of the availability of equivalent redress in the Federal Court (or of effective remitter to the Federal Court), is extremely inconvenient. It is also expensive and time-consuming. These considerations suggest the need for further attention to legislation which has such an outcome.

See also Callinan J at 74.

[59] Abebe [1999] HCA 14; (1999) 162 ALR 1, 36.

[60] See ibid 38, 46–7 (Gummow and Hayne JJ).

[61] Ibid 65 (Kirby J), see also 18 (Gleeson CJ and McHugh J), 34 (Gaudron J), 48 (Gummow and Hayne JJ), 75–6 (Callinan J).

[62] See Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 163 ALR 270.

[63] See, eg, Kim Rubenstein, ‘Citizenship as Democratic Participation and Exclusion: The High Court’s Approach to Judicial Review and Refugees’ (Paper presented at the Retreating from the Refugee Convention Conference, Darwin, 7–10 February 1997).

[64] On this point, see the comments of Gaudron and Kirby JJ in Eshetu [1999] HCA 21; (1999) 162 ALR 577, 599.

[65] Subsequent amendments to the Act have seen the introduction of a code of procedures for the RRT: see Migration Legislation Amendment Act (No 1) 1998 (Cth).

[66] See above n 5 and accompanying text.

[67] These provisions are replicated for the Immigration Review Tribunal in s 353 of the Act.

[68] See Veterans’ Entitlements Act 1986 (Cth) s 138(1), discussed in Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404, 410–11 (Lee J).

[69] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 588 (Gleeson CJ and McHugh J), 594 (Gaudron and Kirby JJ), 600–1 (Gummow J), 615–19 (Callinan J). Hayne J agreed with the Chief Justice and McHugh J: at 613.

[70] [1997] FCA 324 (Unreported, Lindgren J, 6 May 1997) <

cth/federal_ct/1997/324.html> at 15 March 2000. See ibid 600 (Gummow J).

[71] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 583 (Gleeson CJ and McHugh J), 592–4 (Gaudron and Kirby JJ), 600–1 (Gummow J), 613 (Hayne J), 617–20 (Callinan J).

[72] See ibid 588 (Gleeson CJ and McHugh J), 613 (Hayne J).

[73] [1997] FCA 603; (1997) 71 FCR 300, 303–4 (Davies J), see also 316–17 (Burchett J).

[74] See R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404; Kumar v Immigration Review Tribunal (1992) 36 FCR 544.

[75] Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300, 317.

[76] Ibid 305–6.

[77] [1997] FCA 324 (Unreported, Lindgren J, 6 May 1997) <

federal_ct/1997/324.html> at 15 March 2000.

[78] See the comments of North J in Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71, 136–7.

[79] Cf the comments of Davies J in Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300, 305–6 and Burchett J at 317.

[80] Velmurugu v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 193, 196; Jit v Minister for Immigration and Ethnic Affairs [1998] FCA 511 (Unreported, Davies J, 15 May 1998) <> at 15 March 2000. See further Crock and Gibian, above n 11.

[81] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 588 (Gleeson CJ and McHugh J), 594 (Gaudron and Kirby JJ), 601 (Gummow J), 613 (Hayne J), 620 (Callinan J).

[82] Ibid 588.

[83] [1998] FCA 511 (Unreported, Davies J, 15 May 1998) <

federal_ct/1998/511.html> at 15 March 2000.

[84] Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71, 120–1 (Wilcox J).

[85] Singh v Minister for Immigration and Multicultural Affairs [1997] FCA 809 (Unreported, Mansfield J, 19 August 1997) < 809.html> at 15 March 2000.

[86] Thambythurai v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 661, 662 (Finkelstein J). Finkelstein J derives the obligation of ‘acting judicially’ from the decision of Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 366–7.

[87] Thambythurai v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 661, 662. On the point of failure to rationally consider probative evidence, see Epeabaka v Minister for Immigration and Multicultural Affairs [1997] FCA 1413; (1997) 47 ALD 555, 559–60 (Finkelstein J).

[88] [1997] FCA 19; (1997) 142 ALR 474.

[89] Ibid 485.

[90] Ibid 486–7.

[91] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 589, see also 594 (Gaudron and Kirby JJ).

[92] Ibid 613.

[93] Abebe [1999] HCA 14; (1999) 162 ALR 1, 52 (citations omitted), citing John Wigmore, Wigmore on Evidence (3rd ed, 1940) vol 4, 219. See also Abebe [1999] HCA 14; (1999) 162 ALR 1, 57 (Kirby J).

[94] Department of Immigration and Multicultural Affairs, above n 10.

[95] In a discussion with the author, this adviser stated that Ms Abebe did not mention the sexual assaults that she had endured until three months after he had taken on the running of her case: Interview with Officer of the Legal Aid Commission (Sydney, November 1999).

[96] See Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; (1997) 142 ALR 474 (Hill J); Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300 (FFC). Note, however, the strong dissent by Whitlam J in the Full Federal Court. See also Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223.

[97] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 585.

[98] Davies J sets out in some detail the statements made by both of these organisations: Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300, 307–8.

[99] Ibid 312. Davies J held that the Tribunal also committed an error of law in using a ‘remoteness’ test in determining refugee status. His Honour emphasised that the sole basis for determining refugee status is the UN definition of ‘refugee’ that requires an assessment of whether a claimant has a well-founded fear of persecution for a Convention reason: at 312–13.

[100] On the legal errors identified by the Full Court, see also the discussion in above Part IV.

[101] Eshetu v Minister for Immigration and Multicultural Affairs [1997] FCA 603; (1997) 71 FCR 300, 369.

[102] See the discussion in Eshetu [1999] HCA 21; (1999) 162 ALR 577, 608–10.

[103] [1976] UKHL 6; [1977] AC 1014, 1047, citing Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen [No 2] [1972] 2 QB 455, 493 (Lord Denning MR).

[104] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 587–9 (Gleeson CJ and McHugh J), 613 (Hayne J), 621–3 (Callinan J).

[105] Ibid 611 (citations omitted), citing Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118–19.

[106] [1947] EWCA Civ 1; [1948] 1 KB 223. The test is described in a way that permits judicial intervention when an administrative decision is found to be so unreasonable that it could be made by no reasonable person.

[107] Eshetu [1999] HCA 21; (1999) 162 ALR 577, 598–9.

[108] Note, however, that the Court has hesitated to criticise tribunals for failing to consider cases not put to them, at least where the applicant was represented before the Tribunal. See Perampalam v Minister for Immigration and Multicultural Affairs [1998] FCA 1337 (Unreported, Hill J, 23 October 1998) <> at 15 March 2000; ‘Z’ v Minister for Immigration and Multicultural Affairs [1998] FCA 1578 (Unreported, Katz J, 11 December 1998) <

1998/1578.html> at 15 March 2000; Ibrahim v Minister for Immigration and Multicultural Affairs [1998] FCA 1292 (Unreported, Katz J, 15 October 1998) <

au/cases/cth/federal_ct/1998/1292.html> at 15 March 2000 [17]; Emiantor v Minister for Immigration and Multicultural Affairs [1998] FCA 1186 (Unreported, Olney, Sundberg and Marshall JJ, 20 July 1998) <> at 15 March 2000. Cf Bouianov v Minister for Immigration and Multicultural Affairs [1998] FCA 1348 (Unreported, Branson J, 26 October 1998) <

federal_ct/1998/1348.html> at 15 March 2000 [2]; Saliba v Minister for Immigration and Ethnic Affairs [1998] FCA 1461; (1998) 89 FCR 38, 50 (Sackville J). In the latter two cases, it was held that the Tribunal was required to consider matters not specifically articulated by the unrepresented applicant.

[109] Sullivan v Department of Transport [1978] FCA 48; (1978) 1 ALD 383, 402 (Deane J); Repatriation Commission v Hughes [1991] FCA 245; (1991) 23 ALD 270, 274 (Beaumont and Hill JJ); Tuite v Administrative Appeals Tribunal [1993] FCA 71; (1993) 40 FCR 483, 487–9 (Davies J); van Oostveen v Comcare [1998] FCA 1124 (Unreported, Kiefel, Finn and Finkelstein JJ, 9 September 1998) <

cases/cth/federal_ct/1998/1124.html> at 15 March 2000.

[110] Noble v Repatriation Commission [1997] FCA 1159 (Unreported, Beaumont, Branson and Merkel JJ, 3 November 1997) <> at 15 March 2000.

[111] Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287,

292–3 (Wilcox and Madgwick JJ), relying on Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, 577 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) and Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, 480 (Barwick CJ), 483 (Gibbs J). See also Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24, 57; Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, especially Einfeld and Foster JJ.

[112] See Migration Legislation (Judicial Review) Bill 1998 (Cth). As at 19 April 2000, this Bill was before the Senate. Its effect would be to repeal Part VIII of the Act and to replace the Part with a wide-ranging privative clause.

[113] Summarised by Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 1342; (1996) 62 FCR 402, 414–15.

[114] See Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647, 656–9 (Finkelstein J); Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422, 445–6 (Brennan J). But see Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 (Unreported, Spender, North and Merkel JJ, 9 March 1999) <> at 15 March 2000 [37] (Spender, North and Merkel JJ), where the Full Court addressed directly the question whether a breach of s 430(1) is a ‘technical breach’. The basis under s 476 on which a failure to comply with s 430 may be a reviewable error has been considered recently by Sackville J in Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376; (1999) 93 FCR 166.

[115] According to the RRT, 29 of the current 52 RRT members have law degrees: see Senate Legal and Constitutional References Committee, Operation of Australia’s Refugee and Humanitarian Program, 20 July 1999, 72 (John Godfrey, Acting Principal Member, Refugee Review Tribunal).

[116] See Susan Kneebone, ‘The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role?’ (1998) 5 Australian Journal of Administrative Law 78; Mary Crock, ‘Reviewing the Merits of Refugee Decisions: An Evaluation of the Refugee Review Tribunal’ (Paper presented at the Retreating from the Refugee Convention Conference, Darwin, 7–10 February 1997).

[117] See below nn 122125 and accompanying text.

[118] See evidence of John Godfrey, Acting Principal Member, Refugee Review Tribunal: Commonwealth, Parliamentary Debates, Senate Legal and Constitutional References Committee, Operation of Australia’s Refugee and Humanitarian Program, 20 July 1999, 56–96. The following exchange occurred between Senator Brian Harradine and Mr Godfrey (at 90):

Senator HARRADINE Can I just follow up on what Senator Cooney has said. Could you provide the committee with a number of failed asylum seekers who allege gross abuse of human rights, torture or persecution?


Mr Godfrey I just want to clarify, if I can. People who come to the tribunal and make claims make a variety of claims. Most of those involve the fact that they have suffered some degree of torture or trauma in their home country.

[119] See Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374.

[120] See Mary Crock, ‘Apart from Us or a Part of Us: Immigrants’ Rights, Public Opinion and the Rule of Law’ (1998) 10 International Journal of Refugee Law 49.

[121] [2000] HCA 19 (Unreported, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, 13 April 2000) <> at 27 April 2000. This case involved a child born in Australia of Chinese parents in contravention of the People’s Republic of China’s ‘One Child’ policy. The High Court held that for the purposes of the Convention Relating to the Status of Refugees, the child belonged to a particular social group identified by the title ‘black children’. The case opens the way for the recognition of such children as refugees, provided that their parents can show (as a matter of fact) that their child faces a real chance of persecution because of their status.

[122] See, eg, the sensationalist report of statements made by the Minister concerning abusive refugee claims in Nathan Vass, ‘Refugee Racket Costs Us $60m’, The Sunday Telegraph (Sydney), 11 January 1998, 11.

[123] In December 1996, the Minister appealed against two decisions by the RRT in which refugee status was granted to victims of domestic violence. The Minister is reported to have warned Tribunal members that their reappointment prospects (in April 1997) would be threatened by such attempts to rewrite the Convention. See ‘Ruddock Warns Tribunal’, The Canberra Times (Canberra), 27 December 1996, 6; Editorial, ‘Ruddock’s Threats to Refugee Body’, The Canberra Times (Canberra), 27 December 1996, 14. The Minister repeated his statements in a public forum, ‘Immigrant Justice: Courts, Tribunals and the Rule of Law’, held at the University of Sydney on 6 June 1997.

[124] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1136 (Philip Ruddock, Minister for Immigration and Multicultural Affairs): ‘Notwithstanding the fact that the parliament has made it clear and the High Court has made it clear, there are Federal Court judges still out there on a frolic of their own’; Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1246 (Philip Ruddock, Minister for Immigration and Multicultural Affairs). See also Richard McGregor, ‘Judges Accused of Legal Frolic’, The Australian (Sydney), 7 December 1998, 1; Philip Ruddock, quoted in Bernard Logan, ‘Lawyers Appalled at Attack on Judges’, The Sydney Morning Herald (Sydney), 8 December 1998, 7: ‘I am not going to name them [the judges], but a small number have determined that they are still going to get into the game — that’s what it’s all about.’ See also Ruddock, ‘The Balancing Act’, above n 38; Philip Ruddock, ‘Immigration Reform: The Unfinished Agenda’ (Address presented at the National Press Club, Canberra, 18 March 1998) <

transcripts/spe18-3.htm> at 15 March 2000:

Only two weeks ago a decision to deport a man was overturned by the Federal Court although he had been convicted and served a gaol sentence for possessing heroin with an estimated street value of $3 million. Again, the courts have reinterpreted and rewritten Australian law — ignoring the sovereignty of Parliament and the will of the Australian people. Again, this is simply not on.

[125] See, eg, Glenn Milne, ‘Ruddock’s Assault on Profiteers’, The Australian (Sydney), 14 June 1999, 15; Fia Cumming, ‘Lawyers Help Boat People Avoid Boot’, The Sun-Herald (Sydney), 13 June 1999, 9; ‘Greedy Lawyers Abuse the System: Ruddock’, The Canberra Times (Canberra), 15 June 1999, 3. See also the Migration Legislation Amendment Bill (No 2) 2000 (Cth), introduced on 14 March 2000. If passed, this would introduce time limits on applications to the High Court and would ban representative and class actions in both the Federal Court and the High Court.

[126] See above nn 5758 and accompanying text.

[127] See Gilbert and Sullivan, Iolanthe (1882) Act II, in which Private Willis sings:

I often think its comical ...

How Nature always does contrive ...

That every boy and every gal

That’s born into the world alive

Is either a little Liberal

Or else a little Conservative!

[128] [1997] FCA 603; (1997) 71 FCR 300. See Crock and Gibian, above n 11, 470–1.

[129] See ss 457–70 of the Act on the establishment and membership of the RRT.

[130] See ‘Ruddock Warns Tribunal’, The Canberra Times (Canberra), 27 December 1996, 6; Editorial, ‘Ruddock’s Threats to Refugee Body’, The Canberra Times (Canberra), 27 December 1996, 14. Whether or not the threats can be proved to have influenced RRT members, it is alarming to note that ‘set aside’ rates for refugee appeals in the first half of 1997 plummeted from 14–19% in the previous year to less than 3%. See Crock and Gibian, above n 11, 472.

[131] (1997) 190 CLR 225.

[132] Ibid 259–60. See further Crock, ‘Apart from Us or a Part of Us’, above n 120.

[133] Robert Bolt, A Man for All Seasons (1960) 39.

[*] BA (Hons), LLB (Hons), PhD (Melb); Senior Lecturer in Law, University of Sydney. I wish to thank Ron McCallum for his valued comments and suggestions upon reading this paper in draft and Kim Weatherall for her research assistance in relation to material used in Parts VII and VIII. I also acknowledge the contributions made by Mark Gibian, who co-authored an earlier piece with me on the Eshetu case: see Crock and Gibian, above n 11.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback