Minister for Immigration and Multicultural Affairs V Yusuf:1 One Door Closed, Another Opened?

AuthorStephen Rebikoff
Published date01 September 2001
Date01 September 2001
Subject MatterComment
Stephen Rebikoff*
At first glance the High Court's decision in Yusuf represents merely another instance of
that Court's recent trend towards judicial deference in the review of decisions under
the Migration Act 1958 (Cth) ('the Act').2 A majority of the High Court overruled a line
of Federal Court authority—including, expressly, the decision of a five member Full
Court in Minister for Immigration and Multicultural Affairs v Singh3—which had held that
a failure by the Refugee Review Tribunal to set out findings on material questions of
fact in accordance with s 430 of the Act was reviewable as a failure to observe
procedures in connection with the making of a decision for the purposes of s 476(1)(a)
of the Act. The High Court's decision means that a failure to comply with s 430 can no
longer ground review by the Federal Court under the limited regime for judicial
review contained in Part 8 of the Act.4
* BA (Hons), LLB (Hons) (ANU). I am grateful to John Gibson, Michael Mathieson and Katie
Fraser for their comments on earlier drafts of this paper. The opinions expressed, and any
errors, are my own.
1 (2001) 180 ALR 1 ('Yusuf').
2 See Mary Crock, 'Of Fortress Australia and Castles in the Air: The High Court and the
Judicial Review of Migration Decisions' (2000) 24 Melbourne University Law Review 190.
3 (2000) 98 FCR 469.
4 In relation to Part 8, see Mary Crock, 'Judicial Review and Part 8 of the Migration Act:
Necessary Reform or Overkill?' (1996) 18 Sydney Law Review 267, and Mary Crock,
Immigration and Refugee Law in Australia (1998) ch 13. It should be noted that Part 8 has now
been substantially amended by the Migration Legislation Amendment (Judicial Review) Act
2001 (Cth) ('the Judicial Review Act'), which replaces 'judicially reviewable' decisions with
a new scheme of 'privative clause' decisions that cannot be challenged, appealed against,
reviewed, quashed or called into question in any court. Unless otherwise specified, this
454 Federal Law Review Volume 29
However, rather than completing, with Abebe v Commonwealth5 and Minister for
Immigration and Multicultural Affairs v Eshetu,6 a triumvirate of cases in which the High
Court has affirmed the effectiveness of Part 8, and in so doing quashed attempts by the
Federal Court to circumvent the limitations on judicial review of migration decisions
which are there expressed,7 the High Court's decision in Yusuf appears instead to
represent a significant shift away from judicial deference and towards a broadening
conception of judicial review, both under Part 8 and at common law. Indeed, the
Court's emphatic statements regarding the scope of jurisdictional error, and explicit
acknowledgment of the availability of review under Part 8 for failing to take into
account relevant considerations or taking into account irrelevant considerations, has
led one Federal Court judge to state: 'it can perhaps be said that while Yusuf closes the
s 430 door it opens the considerations ground with the consequence that the ambit of
Pt 8 review may be wider than previously thought.'8
Wider it may be, but the precise scope of judicial review under Part 8 following the
High Court's decision is nevertheless uncertain. The Court's clear endorsement of its
earlier remarks in Craig v South Australia9 suggests that, at the very least, review will be
available where the Refugee Review Tribunal 'identifies a wrong issue, asks a wrong
question, ignores relevant material or relies on irrelevant material'.10 Yet if, as some
commentators have suggested, the decision in Craig purported to abolish the
distinction between jurisdictional and non-jurisdictional error of law for administrative
tribunals,11 then the scope of review is potentially wider still—particularly as the ambit
of jurisdictional error has expanded in recent years, encompassing errors not
traditionally concerned with 'excess of jurisdiction'.12 The decision also raises crucial
questions about the interaction between the notion of jurisdictional error and the
express limitations on judicial review contained in Part 8 of the Act, both in its original
form, and in light of subsequent legislative amendments. Even the most unequivocal
aspect of the decision—the availability of the considerations ground—has been subject
to dispute in the Federal Court surrounding its scope.
This comment will map some of the boundaries of judicial review under Part 8
following the decision in Yusuf, and discuss some of the issues raised by the Court's
comment, which was written before the amendments occasioned by the Judicial Review
Act came into operation on 2 October 2001, addresses the Act as it stood prior to its
5 (1999) 197 CLR 510 ('Abebe').
6 (1999) 197 CLR 611 ('Eshetu').
7 In relation to Abebe and Eshetu, see Crock, above n 2. In relation to the ongoing dispute
between the Federal Court and the Minister for Immigration and Multicultural Affairs over
the scope of Part 8, see John MacMillan, 'Federal Court v Minister for Immigration' (1999)
22 AIAL Forum 1.
8 Thirukkumar v Minister for Immigration and Multicultural Affairs [2001] FCA 864, [27]
(Heerey J).
9 (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
10 Yusuf (2001) 180 ALR 1, 22[83] (McHugh, Gummow and Hayne JJ).
11 Margaret Allars, Administrative Law: Cases and Commentary (1997), 674. See also Chris Finn,
'Jurisdictional Error: Craig v South Australia' (1996) 3 Australian Journal of Administrative Law
177. Cf Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000),
12 See Geoff Airo-Farulla, 'Rationality and Judicial Review of Administrative Action' (2000) 24
Melbourne University Law Review 543.

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