Judicial Review: Recent Trends

Publication Date01 September 2001
Date01 September 2001
AuthorJohn Basten
John Basten QC*
In an oft-cited passage from Attorney-General (NSW) v Quin1 Brennan J identified the
scope of judicial review in terms which bear repe ating:
The duty and jurisdiction of the Court to review administrative action do not go beyond
the declaration and enforcing of the law which determines the limits and governs the
exercise of the repository's power. If, in so doing, the Court avoids administrative
injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative
injustice or error. The merits of administrative action, to the extent that they can be
distinguished from legality, are for the repository of the relevant power and, subject to
political control, for the repository alone.2
The passage emphasized the centrality of the distinction between review for error
of law and merits review. However, the qualification that the dichotomy, which is so
readily stated in principle, is not always easy to apply in practice is also well-taken.
It was this intersection of law and merits review which underpinned a number of
recent decisions in the High Court, setting aside judgements of the Full Court of the
Federal Court. Several of these judgments were concerned with the review of decisions
in relation to refugee claimants under the Migration Act 1958 (Cth) ('Migration Act').
This area of decision-making has attracted considerable interest for a number of
reasons, not least of which is the concern aroused by individual cases, where it appears
that a refugee claimant may have been harshly refused a protection visa in
circumstances where significant doubt may attend his or her fate if returned to the
relevant country of nationality or former habitual residence.3 The tension is heightened
when placed in the legal context. Part 8 of the Migration Act seeks to preclude review
* I should thank many people for their contribution to my understanding of the topics
touched on in this paper. At the risk of failing to do justice to many, may I thank Prof Mark
Aronson for his comments on the appropriate scope of the paper, Neil Williams for his
assistance with various arguments and Kathleen Crawley for assistance with research. I
recommend, for a much more comprehensive and instructive review of the recent cases,
John MacMillan's paper "Federal Court v Minister for Immigration" (1999) 22 AIAL Forum
1 (1990) 170 CLR 1, 35–36.
2 Cited in the majority judgement in Minister for Immigration and Ethnic Affairs v Wu Shan
Liang (1996) 185 CLR 259, 272.
3 See United Nations Convention Relating to the Status of Refugees 1951, opened for signature 28
July 1951 (entered into force 22 April 1954), Art 1A(2).
366 Federal Law Review Volume 29
by the Federal Court of decisions of the Refugee Review Tribunal on particular
grounds, which would generally be available under the Administrative Decisions
(Judicial Review) Act 1977 (Cth) ('ADJR Act') and under the common law. The particular
grounds on which review is not permitted at all under the Migration Act are a breach of
the rules of natural justice and Wednesbury unreasonableness;4 the improper exercise of
power ground is also subject to limitation. 5
The purpose of this paper is to review some recent developments in this area and to
consider possible directions for judicial review in the near future. It addresses certain
ways in which attacks have been made by unsuccessful claimants on the approach of a
tribunal to its fact-finding exercise, while attempting to avoid over-stepping the
boundary into merit review. A full discussion of this issue would require consideration
of the line between 'jurisdictional facts', which may be reviewed, and facts which are
within the power of the tribunal to determine.6 That area is not dealt with below.7
Judicial review is a limited legal mechanism in pursuit of a substantive social goal.
That social goal is likely to be the obtaining of a personal benefit, such as a protection
visa, allowing the applicant to remain in Australia indefinitely. However, the more
immediate result of initiating proceedings will be to delay the applicant's removal
from Australia as an unlawful non-citizen. That relief may be obtained by a different
mechanism, namely an injunction prohibiting the removal. Injunctive relief is not
directly subject to the constraints attending judicial review. However, a person seeking
an injunction is entitled, indeed obliged, to establish the factual circumstances which
would give rise to a claim for such relief.8
Whether an injunction will provide an alternative remedy to judicial review of the
exercise of a power, rather than an ancillary remedy in support of other relief, will
depend upon the nature of the question to be determined. For example, for a refugee
claimant, the legal analysis depends upon specific statutory provisions. Section 198 of
the Migration Act relevantly provides:
198(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:
(a) who …
(ii) has made a valid application for a substantive visa that can be granted
when the applicant is in the migration zone, that has been finally
If the person is still an unlawful non-citizen, it follows that the application must have
been determined adversely to his or her claim. An application is 'finally determined'
when a decision has been made in respect of the application and that decision is no
4 Migration Act, s 476(2).
5 Migration Act, s 476(3).
6 This issue was identified obiter by Gummow J in Minister for Immigration and Multicultural
Affairs v Eshetu (1999) 197 CLR 611, paras 130-140.
7 See Aronson, 'The Resurgence of Jurisdictional Facts' (2001) 12 Pub Law Review 17.
8 See generally Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit
Fund Pty Ltd (1998) 194 CLR 247; Enfield City Corporation v Development Assessment
Commission (1999) 199 CLR 135.

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