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Good MRT decisions and judicial review. Paper presented at the joint annual conference of the Refugee Review Tribunal and the Migration Review Tribunal, Sydney, 1-2 November 2001

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Good MRT Decisions and Judicial Review

Arthur Glass

The question I am to speak to, as I understand it, is - in what ways has judicial review contributed to good MRT decision-making? We are concerned with this question, of course, not simply to better understand our past. Our concern is with things that will influence our job in the future. We are a group of practical decision makers not a gathering of legal historians. So the discussion cannot avoid the dramatic changes to Part 8 of the Act, of effect from 2 October 2001.

If we wish to assess the Court’s contribution to good MRT decision-making we must first consider, if only in outline, what it means to say that a Tribunal decision is good. We all know and acknowledge that good decision-making is swift and inexpensive but it is the other virtues I have in mind. These other values may be described in different ways but they point to two basic ideas. First that the Tribunal reach a decision that is correct and second that in doing this it adopt means that are procedurally fair.

In saying that our goal is to reach the “correct” answer I have in mind the following familiar ideas. First, it would be nice if we could uncover the true facts but this is not always, or even often, possible. It is enough if we make a thorough investigation of the salient facts and at the appropriate moment close off the inquiry; and then make findings that we can publicly justify. Second, the job would be easier if the lawmaker spoke to us in simple unequivocal terms but the legal material does not always come to us in this form. It is sufficient however if we explore the legal possibilities to the full and where there is a dispute as to what the applicable law and policy means we adopt the most appropriate reading. Third, it would be comforting if once we had the salient facts and the appropriate law there were impersonal procedures that allowed us to decide a case as we might a mathematical problem. But, as it is put, in the application of law there are no rules for the application of rules. There is only an act of judgement. Implicit in these three activities - finding facts, understanding the law, exercising judgment - is the idea that reasonable people may disagree about these matters. That presumably is the point of merits review. If review is only to guard against obvious error then you do not need a tribunal to do this.

Procedural fairness in the tribunal context extends to such matters as - proper notice to the applicant, proper factual inquiries, disclosure of adverse information, fairness in the running of the hearing (no bias, no interpreting problems, etc); and as the culmination of this process, a persuasive justification for the decision. The Migration Act and Regulations set out some of these obligations often in great detail but, to make a point crucial to understanding the dynamic of judicial review, no matter how

specific these provisions are they can never exhaust the idea of procedural fairness. Legal ideas are inevitably always more than their present-day formulation. This is a point I return to below.

So far I have discussed decision making in individual terms. But there is an institutional side to this. Good decision-making will render decisions consistent with other Tribunal decisions. And it will attempt where appropriate to stabilise an area of

migration law by working out a language that could govern a range of cases over time.

To turn now to judicial review. No doubt there are negatives. It is costly. It can be abused. At times it imposes upon the Tribunal a standard of review that is simply unattainable under present circumstances. Worse, some court decisions do not appear to understand the legal and administrative context in which they operate.1 But despite these disadvantages judicial review has contributed to the quality of our decision making in at least four ways.

First, it checks the lawfulness of Tribunal decisions. Knowing that there is the possibility of review (initiated by the applicant or Minister) lifts the standard of our work. Second, review helps to promote consistency as Court decisions bind the

Tribunal. For instance, a not uncommon problem concerns the retrospective reach of a new provision to matters not finally determined. A Court decision can determine this point conclusively.2

Third, review refurbishes the Act and Regulations in the light of basic legal principles. For one thing, the Court unlike the Tribunal is in a position to question the validity of the Regulations.3 For another, the judges see the basic notions of migration law from a different perspective. Such ideas as “spouse”, “special need relative”4, “orphan”5 “dependence”6, “usual residence”7 look different to the Court. Not just because judges decide few cases on these topics while we decide many; but because judges understand these notions in a different framework. We work with a context of specific criteria, policy, fragments of cases and many examples. They work with the regulatory definitions and place these in the larger context of other legal ideas. So if the issue is due process, for instance, then the Court cannot help but approach the relevant specific provisions in the Act and Regulations with these broader ideas about the notion of due process in mind. In my view, this aspect of judicial work explains (better than other more sinister suggestions) many of the cases on ss 353 (420), 368 (430), 359A (424A).

Fourth, judicial review helps the Tribunal to maintain a degree of independence from the Department and others. It facilitates the questioning of policy that seems unfair in the particular case.8 It adds weight to the Tribunal’s position in its dealings with “third party decision-makers”.9 For the Court requires the Tribunal to ensure (as far as it can) that the medical officer or relevant trade assessor give assessments via the criteria in the migration regulations and not some other criteria.10 M o r e

1 Without naming names I have in mind here cases dealing with the meaning of such terms of art in the Regulations such as “trade”, “usual occupation”, “work”. 2

Pradhan (1999) 94 FCR 91 3 Din (1997) 147 ALR 673, Seligman (1999) ALR 173 4

Narayan [2001] FCA 789 5 Phung (1997) 49 ALD 566 6

Ha [1996] FC 21 August 1996 7 Gauthiez (1994) 35 ALD 439 8

Bagus (1994) 33 ALD 601 9 By this I mean other bodies who make decisions often relevant to migration decisions, medical officers of the Commonwealth, bodies carrying out trade assessments. 10

Bui (1999) 85 FCR 134, Alkaab [1998] FCA 1353, Inguanti [2001] FCA 1046 (but see Blair [2001] FCA 1014)


controversially the Court is in a stronger position to interpret the Regulations in a way that leads to justice in the particular case.11 In appropriate cases the Tribunal can follow these decisions.12

So much for the past; the present possibilities for judicial review of our decisions is unclear. No doubt we will hear more about this in other sessions. But as we are interested in how these changes may affect our ability to make good decisions, I need to say something about what I think will happen.

Probably we will have to wait a year or more before the High Court speaks on this matter. That Court may reject the Hickman approach and find the changes to Part 8 unconstitutional, at least as far as they apply to it.13 More likely, the High Court judges will re-understand the Hickman principle in a way that according to them makes it workable for migration law.14 In the meantime applicants will seek review of our decisions before the Federal Court (or Magistracy) or the High Court. But wherever the application is lodged it will end up in the Federal Court. And it is that Court that will have the initial task of working out the grounds of review presently available under Part 8.15

Without elaborating, in my view two important grounds of review will emerge. First, apprehended bias. If the Migration Legislation Amendment (Procedural Fairness) Bill 2001 is passed this will limit the operation of one aspect of the ground of natural justice - the fair hearing rule. But the rule against bias will remain, freed up as a ground of review from the limitations imposed upon it in September 1994. So develop a second skin, if you have not already, for there will be more arguments about tribunal bias.

The second ground is jurisdictional error, understood as the decision maker exceeding in a basic way the powers given by the Act. Of course the concept of jurisdictional error is unstable and its eventual understanding in this context unpredictable.16 But if the present s 474 and Hickman are to be taken seriously then a way of separating more serious from less serious excesses of power must be worked out. If this approach is taken, jurisdictional error is unlikely to extend (at least immediately) to such errors of law as - errors made in interpreting the law, or applying the law to the facts; or to errors of reasoning17, or errors in the fact finding process. In other words,

11 Nong [2000] FCA 1575, Shrestha [2001] FCA 359 12 The question of the penetration of the Court’s decisions, in the sense of their immediate influence upon tribunal practice, is another matter. 13

Perhaps this will be a significant case setting out the constitutional basis and limits for judicial review in our rule of law state. 14 For the possibilities see Aronson & Dyer Judicial Review of Administrative Action (2nd) ed LBC 2000 ch 18. And of interest is the analysis of Spigelman CJ in Vanmeld v Fairfield Council (1999) NSWCA 6 (5 February 1999) 15

That’s the starting point - how to reconcile the apparent contradiction of ss 474 (no review at all) and 475A (review for the grounds that attach themselves to the Constitutional writs). The Hickman principle is merely one way to read this. While the legislative intention appears to have been to make Hickman central, intention is one thing its realisation another. 16

See Yusef (2001) 180 ALR 1 17 Epeabaka (1999) 84 FCR 411



jurisdictional error will be a far narrower ground of review than the error of law ground previously given by the much-used old s 476(1)(e).18

If only these type of claims emerge as grounds for review then for some time there will be much less checking and guidance from the Federal Court. The problem for us is if the Court withdraws, do we have the time and the will to do the four things identified above for ourselves? Will we check the lawfulness of our own decisions, take measures to promote consistency, where appropriate refurbish the Act and Regulations and make efforts to maintain a suitable degree of independence in our thinking?

Of course the Tribunal presently addresses these issues in different ways, especially the problem of consistency. There are templates for decisions, Principal Member Directions, Principal Member Advices, Legal Policy Advices, Registrar’s Advices. All worthy initiatives no doubt. But the aim is good decision-making and these are

only some of the preconditions for good decision-making. The Tribunal can facilitate achieving this goal with new institutional arrangements - perhaps, members meetings to discuss legal issues, two member cases at times or other ways of encouraging exemplary decisions, occasional referrals to the AAT. But only the members individually and collectively can raise the standard of tribunal decisions.

18 For some discussion of this point see Dabera [2001] FCA 1390 (2 October 2001), a nice example of where perceived procedural unfairness did not give rise to a ground for review. And for how what might be called errors of law are described as errors of fact see Ex Parte Cohen (2001) 177 ALR 473, Narayan [2001] FCA 789