Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah1 a Statute in the Eye of its Beholder

Published date01 September 2001
Date01 September 2001
Subject MatterComment
Lyria Bennett2
The case of Re Minister for Immigration and Multicultural Affairs; ex parte Miah3 should
serve as a reminder to legislative drafters that the principles of natural justice can only
be excluded where there are 'plain words of necessary intendment' evincing an
intention to do so. The case also resurrected the controversial question of the
jurisdictional basis for imposing natural justice requirements on administrative
decision-makers, although the position of the High Court on this issue remains far
from clear. Other issues discussed include the degree of latitude that is to be given
when identifying errors in the reasons of an administrative decision-maker, the
operation of 'privative clauses' in statutes granting administrative power and the
circumstances in which the Court will use its discretion not to grant relief when a
decision-maker has acted in excess of jur isdiction.
Section 36(1) of the Migration Act 1958 (Cth) (The Act) establishes the class of
'protection' visas. A person is not eligible for a protection visa unless he or she:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and being outs ide the country
1 (2001) 179 ALR 238, [2001] HCA 22, decided by the High Court on 3 May 2001.
2 LLB (UNSW), BSc (Hons) (UNSW). Associate to her Honour Justice Stone in the Federal
Court of Australia. The opinions expressed in this comment are those of the author.
438 Federal Law Review Volume 29
of his former habitual residence, is unable or, owing to such fear, is unwilling to return to
Section 65 is the operative provision in relation to the power of the Minister for
Immigration and Multicultural Affairs (Minister) to grant or refuse to grant visas
(including protection visas). That section provides that, if satisfied that all relevant
criteria have been satisfied, the Minister is to grant the visa and, if not so satisfied, is to
refuse to grant the visa. Section 496 provides that the Minister's powers under s 65 can
be exercised by an appointed delegate. For convenience, I have referred throughout
this comment to the relevant decision-maker as 'the Minister', rather than referring to
'the Minister or his or her appointed delega te'.
The Refugee Review Tribunal (RRT) has the power to affirm, set aside or vary the
Minister's decision to refuse to grant a protection visa provided the applicant was in
the migration zone when the decision was made and the Minister has not issued a
conclusive certificate in relation to the decision.5 The Minister's decision could not
have been the subject of an application for review in the Federal Court.6 The Act does
not (nor could it) prevent an applicant applying to the High Court for constitutional
writs (also known as prerogative writs) in relation to the Minister's decis ion.
Mr Miah was a citizen of Bangladesh who had entered Australia on 9 March 1996.
With the assistance of a firm of solicitors, he applied for a protection visa on 1 April
1996. In that application, he claimed to fear persecution by certain fundamentalist
Muslims, in particular those associated with the Jamat-i-Islam party. Mr Miah claimed
that the government would not protect him because it supported the fundamentalists.
After Mr Miah's application was lodged, elections were held in Bangladesh and the
Bangladesh Nationalist Party was replaced by the Awami League. Mr Miah's
application had referred to the fact that the Awami League had once considered
forming an alliance with Jamat-i-Islam and had dealt with the relationship between the
Bangladesh Nationalist Party and Jamat-i-Islam in more detail.
The application was refused by a delegate of the Minister for Immigration and
Multicultural Affairs ('Delegate') on 13 May 1997. As required by the Act, the Delegate
gave reasons for the decision. Although he was prepared to accept the applicant's
account of what had happened, he stated :
While the government has reportedly failed at times to denounce, investigate or
prosecute the Islamic extremist attacks on religious minorities and women, there is no
indication that it is totally powerless to stop those violations of other people's rights. The
current government can still be said to be capable of offering persons like the applicant
effective protection against the religious fundamentalists.7 (emphasis added)
On this basis, the Delegate refused to grant the prosecutor a protection visa.
4 United Nations Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as
amended by the Protocol relating to the Status of Refugees done at New York on 31
January 1967, Article 1A(2) and Migration Act 1958 (Cth), s 36(2).
5 Migration Act 1958 (Cth), ss 411, 415
6 Ibid, ss 475(2)(d), 485(1).
7 Paragraph 3.4.3 of the Delegate's reasons set out at (2001) 179 ALR 238, 242[12].

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