Commission submission - NAAV

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:

No. N.265/2002

NAAV Appellant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

AND BETWEEN:

No. N.282/2002

NABE Appellant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

OUTLINE OF ARGUMENT

Summary of the Commission's argument

1. The key concept underlying the Commission's submissions is the proposition that the Australian legal system recognises, in various ways, an obligation to provide an effective remedy to persons present in this country whose interests have been adversely affected by a decision of an officer of the Commonwealth, where the decision is otherwise than in accordance with law. In this case, the need for an effective remedy is a need of non-citizens affected by decisions made under the Migration Act 1958 (Cth) ("the Act").

2. As in Abebe v The Commonwealth (1999) 197 CLR 510, yet in a different context, the central question raised in these appeals is whether s 474 of the Act requires, or can require, a Chapter III Court to affirm and/or assume that there has been a due administration of the law where there may not have been.

3. The Australian legal system recognises the obligation to provide an effective remedy from such a failure to provide due administration of the law:

• In a constitutional sense, by according primacy to the role of the High Court in supervising, under s 75(v), the lawfulness of actions taken by officers of the Commonwealth;
• At common law, by the repeated acknowledgement of the role of Ch III Courts in determining, declaring and enforcing the law which prescribes limits and governs the exercise of power: Attorney-General v Quinn (1990) 170 CLR 1 at % Abebe at [37];
• In the exercise of executive power under the Constitution to bind Australia to obligations in international law in respect of human rights, which it is to be assumed are undertaken intending that they be complied with and be reflected in our legal system: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at ġ Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).

4. Section 474 of the Act has the potential to compromise this obligation significantly.

A. Nature of claims under appeal

5. NAAV v Minister for Immigration and Multicultural and Indigenous and Affairs (N265/ߐ hereafter "NAAV") and NABE v Minister for Immigration and Multicultural and Indigenous and Affairs (N282/ߐ hereafter "NABE") both deal with the decisions of the Refugee Review Tribunal ("RRT"). The task of the RRT is one which fundamentally involves the construction of an international convention - Convention relating to the Status of Refugees [1] ("the Refugees Convention").

6. The nature of the Applicant's claims for protection visas, the RRT decisions and the grounds for review of those decisions articulated by each Applicant at first instance in the Federal Court are set out in the submissions filed in these appeal on behalf of each Appellant. The salient features for the purposes for the submissions made by the Commission are:

• In NAAV the RRT decision was said to involve an excess of jurisdiction because the RRT failed to afford procedural fairness to the applicants: see the decision of Gyles J at [11], AB 503.
• The failure identified was the reliance on undisclosed country information which was adverse to the applicants: at [11], AB 503, [47] AB 519.
• Gyles J distinguished the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 on the grounds that it did not extend to the production of country information which the decision maker had and further that the RRT's obligations on this question were governed only by s.424A of the Migration Act: at [71]; [79].
• By reason of that finding as to the law, His Honour held the RRT had made no error which was amenable to the Court's ordinary jurisdiction under s 39B of the Judiciary Act, "absent" s.474: at [46].
• In NABE the RRT decision was said to involve an excess of jurisdiction because the RRT misunderstood the applicant's claims and therefore failed to address the claims as they were actually made by the applicant: see the decision of Tamberlin J at [2], AB 173.
• Tamberlin J held that the RRT did err in its understanding of the applicant's claims and this error could have affected the outcome of the review: at [37], AB 184-185.
• By reason of His Honour's construction of s 474 as intending to permit the RRT authoritatively to decide questions of fact and law before it (see [30] AB · emphasis added), His Honour held that this error did not breach any inviolable or essential precondition going to jurisdiction: [38]; AB 185.

7. The difference between the two cases in terms of the Commission's arguments is important. In NAAV at [44] Gyles J relied on the proposition that there is no constitutional inhibition to the legislature defining the procedure of a tribunal so as to exclude the rules of natural justice. Putting to one side whether that proposition, in the broad way in which it is expressed, is correct, the central difference between failure to accord natural justice as a jurisdictional error, and the other kinds of jurisdictional error identified in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, is that in the former case there is at least scope for Parliament to constrain the duties of a decision maker in a way which may prevent the former kind of jurisdictional error arising. However, in any tribunal such as the MRT and RRT (or for that matter in respect of a delegate's decision) where the fundamental task the tribunal must discharge is circumscribed by clear limits as to its nature, content and function, then without removing those limits and giving the tribunal the power to decide whatever it likes, Parliament cannot prevent jurisdictional errors of the second kind from arising. In NABE, it is the second kind of error (in the sense outlined in Craig v South Australia (1995) 184 CLR 163 and Yusuf) which is identified.

B. Section 39B of the Judiciary Act and s 75(v) of the Constitution[2]

8. The Commonwealth's legislative powers in s.51 of the Constitution (including the aliens power) are expressed to be "subject to" the Constitution and therefore to the provisions of s.75(v). This includes the enactment of provisions such as s.474: Deputy Commissioner of Taxation v Richard Walter (1995) 183 CLR 168 at Í Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ.

9. Subject to exceptions which became important in the construction of privative clauses in the industrial jurisdiction (see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 270 per Brennan J), s.39B vests in the Federal Court (and, it must be assumed, the Federal Magistrates Court since its inception) the entirety of the jurisdiction conferred by the Constitution under s.75(v) on the High Court: Richard Walter (1995) 183 CLR 168 at µ 192-Á 212.

10. Therefore, the effect of s.474 on the powers of the Federal Court must be identical to the effect of s.474 on the powers of the High Court. The limitations which operate on Parliament's ability to affect the exercise of the powers of the High Court under s.75(v) must apply to the Federal Court and to the Federal Magistrates' Court. This must be so in the absence of an equivalent provision to s.39B (2)(a) in respect of officers exercising powers under the Act.

11. Section 75(v) is construed to permit the High Court always to be able to correct unlawful usurpations of power by judicial and non or quasi judicial officers: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR R v Commonwealth Court of Conciliation and Arbitration; ex parte Brisbane Tramways Co Ltd [No 1] (1914) 18 CLR 54 at 65.

12. The section is properly seen as part of the Constitution's guarantee of judicial process: Richard Walter at 204-205. It is a provision of "cardinal significance", for by it all officers of the Commonwealth are rendered accountable in the High Court to the Constitution and to the laws of the Commonwealth, and it is the means by which the rule of law is upheld throughout the Commonwealth: Re Carmody; ex parte Glennan (2000) 173 ALR 145 at [3]; Re Refugee Review Tribunal & Anor; ex parte Aala (2000) 204 CLR 82 at [140] per Kirby J.

C. Relevant Features of the Migration Act

13. The possession of a valid visa is the method by which a non-citizen acquires and retains a right to travel to, enter or remain in Australia (see s.29), and avoids exposure to deprivation of and interference with her or his liberty by mandatory detention and subsequent removal from Australia against her or his will (see ss.13-15, 189, 196 and 198) .

14. The Act establishes a detailed regime which prescribes classes of visas for which application can be made. Those classes are prescribed either by the Act itself (see ss 32-38 inclusive) or by the Migration Regulations in Reg 2.01 and in Schedule 1. Detailed criteria which an applicant must satisfy both at the time of application and then in order to be granted a visa of a particular class are set out in the Act (see for example ss.33 and 34), in the regulations (see s.31(3) and Schedule 2 of the Migration Regulations) or in both (as in the case of protection visas - see s.36 and Schedule 2 sub-class 866 - permanent protection visas; sub-class 785 temporary protection visas).

15. The criteria which are to be met may involve questions of fact, mixed questions of fact and law or questions of law ranging from: factual questions susceptible to definite proof [3]; relatively straightforward factual assessments [4]; assessments of whether a person possess an attribute given a particular meaning in the Act [5]; an assessment which relies heavily on discretionary considerations of the decision maker [6]; an assessment of whether a person falls within or outside a statutory definition seen as central to the person's entitlements to the particular visa [7]; or an assessment of whether a person falls within or outside a definition which is partially determined by statute and partially determined by the application of a definition contained in an international treaty. [8]

16. The Minister, and his delegates, have a statutory duty to consider and determine a valid application for a visa: s.7(1) and (2).

17. Subject to a discretion exercisable only by the Minister personally (see s.8B), a person may only make one application for a protection visa while she or he is in the migration zone: s.8A. In other words, such applicants have one chance, and one chance only to persuade the Minister that Australia owes them protection obligations.

18. The core criterion for the grant of a protection visa is satisfaction of the Minister that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention: s 36(2). Recent amendments to the Act have introduced statutory limitations to aspects of the traditional convention definitions: see ss 91A-91U. Nevertheless, ss.36 and 65 of the Act still constitute a statutory acceptance by Australia of obligations, in the circumstances identified in the Refugees Convention, to protect persons who qualify as refugees. The Refugees Convention, like the International Covenant on Civil and Political Rights ("the ICCPR"), gives practical effect to the 1948 Universal Declaration of Human Rights, and particular to Article 14(1).

19. If the Minister is satisfied that an applicant is a person to whom Australia owes protection obligations, then subject to satisfaction of health and security criteria (see s.65(1) (i) and (ii), Schedule 2 Clauses 785.224-785.227 in the Migration Regulations in relation to temporary protection visas), the Minister must grant that person a visa: s.65(1). This statutory duty applies to the grant of all visas under the Act. Satisfaction as to each criterion (eg the existence of protection obligations) is an essential precondition to the performance of this duty: SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565 at [46] per Tamberlin J.

20. Many decisions under the Act affect fundamental human rights. Those decisions include decisions to: permit a person who is married to an Australian citizen to enter or remain in Australia; permit children to remain in Australia (formative years visas); refuse to grant a protection visa (ss.36, 65); detain a person and/or not to release a person on a bridging visa (ss.189, 196, ss.37, 72-76 and Schedule 2, cl 050, 051 of the Regulations); and remove a person from Australia, and thus to return a person to the borders of another country, or to take them to a 'declared country" (ss.198 and 198A).

21. The jurisdiction of the Federal Court and the Federal Magistrates Court (which they might otherwise exercise under ss.39B and 44 of the Judiciary Act) is removed entirely in two ways in respect of certain decisions under the Act: see s.476. It is removed either by requiring an intermediate tier of merits review to occur first (s.476(1)) or by simply removing supervisory jurisdiction in relation to particular decisions altogether (s.476(2)).

22. Further, and depending on how one views the effect of a privative clause such as s.474, either: the ordinary jurisdiction of the Federal Court and the Federal Magistrates' Court under ss.39B and 44 of the Judiciary Act is not affected in respect of certain decisions set out in the Schedule which appears in s.474(4) of the Act; or the lawfulness of the decisions which are set out in the Schedule which appears in s.474(4) of the Act is not enlarged or protected by s.474(1).

23. The High Court's constitutional review jurisdiction under s.75(v) is not expressed to be affected by Part 8 of the Act, save as to the imposition of a non-extendable time limit on the making of applications for constitutional writs in the High Court: see s.486A

D. Correct construction of s.474

D.1 The statutory context of s.474 means a uniform approach to its construction may not be possible.

24. There are two arguments. First, s.474 is not contained in those parts of the Act conferring powers on each of the respective decision makers. Therefore it may not be possible to give it a wide protective function. Second, the disparate nature of the decision making powers under the Act may mean that the so called "Hickman approach" cannot apply uniformly across the Act.

25. Section 474 itself is not contained within that part of the Act dealing with the jurisdiction and powers of the RRT, the MRT, or the Minister's delegates. Rather it appears in that part of the Act (Part 8) dealing with the judicial review jurisdiction of the Federal Court and the Federal Magistrates' Court.

26. This produces two consequences - one of larger import than the other. First, it affects the application of the proviso relied on by the Minister in these appeals (general submissions paragraph 7) which appears in the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179 concerning the extent of the authority of an administrative tribunal authoritatively to determine questions of law. Read in context (especially given the immediate quotation from Lord Diplock's judgment in In re Racal Communications [1981] AC 374) the proviso refers to a conferring of a specific power on administrative tribunals to determine such questions. It would be a power to be found, in positive language, in that part of the Migration Act which confers all the RRT's other powers: namely, Part 7 and in particular s.415. The Minister's reliance on this proviso in Craig is misplaced.

27. Second, it may be that the presence of s.474 in Part 8 ( rather than in those parts of the Act dealing with jurisdiction and powers of each decision maker) is not a governing consideration in determining whether s.474 has the effect contended for by the Minister and found to exist in relation to provisions in Commonwealth industrial and taxation legislation. However each of those pieces of legislation was concerned with a single function (the making of an award, the making of an income tax assessment). In contrast, s.474 operates upon a myriad of decisions, each requiring the application of different statutory and non statutory criteria, involving different levels of factual and legal questions.

28. This feature of the Act may mean that the reconciliation (see Brennan J in O'Toole at 274) cannot be by the process set out in Hickman, but must proceed in a more fragmented way, or with less deference paid to the plain words of s.474.

29. The Commission sought and was granted leave to intervene in only NAAV and NABE. The application was limited to those two cases because of the more direct connection between RRT decision and Australia's international obligations. However, different considerations may apply in relation to the resolution, as a matter of statutory construction, of the provisions limiting the powers of the MRT and those limiting the powers of the RRT, or indeed to those limiting the powers of other decision makers making "privative clause decisions" which are reviewable by the Federal Court.

30. Alternatively, it simply may not be possible to prescribe in advance the operation of s.474 on all the various decisions which can be made by the RRT and the MRT under the Act. Assuming the orthodox approach in Hickman is endorsed as correct in respect of s.474 (which the Commission contends below is not necessarily the preferable approach), what is an "inviolable condition" in respect of an application for a spouse visa (see Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167) must differ from what is an inviolable condition for a protection visa. Within the latter, the same construction of s.474 may produce two divergent results because of the meaning attributed to the words "inviolable condition": compare Tamberlin J in NABE with His Honour's decision subsequently in SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565.

31. Similar observations have been made about the inappropriateness of determining what can and cannot be considered as a "bona fide attempt to exercise [a] power". [9]

D.2 Section 474 does not protect breaches of inviolable conditions including jurisdictional errors

32. The respondent contends (in paragraph 18 of the General Submissions) that "there is no scope to contend that limitations previously existing in the Act are 'inviolable' and not subject to the effect of the privative clause". What is an inviolable condition must, in the Commission's submission, involve the contemporary content of jurisdictional error as that has been expressed in recent authorities such as Craig, Yusuf and Miah.

33. The authorities which discuss and apply Hickman have recognised that, whether it is seen as an addition or clarification to Dixon J's statement in Hickman, the proposition that a privative clause cannot preclude review of a decision made in breach of an inviolable condition, limitation or restraint on the exercise of the jurisdiction of the decision maker is correct. [10]

34. This proposition is relied on in contrast to the proposition that Parliament can alter the substantive law to be applied by the High Court in exercise of its jurisdiction under s.75(v) (and therefore this Court under s.39B) so that the substantive and procedural law to be applied by the Court in exercise of that jurisdiction is different and protective of the validity of the decision. [11]

35. An example of the proposition in paragraph 34 is the codification of the definition of "persecution" in s.91R of this Act. What may have in the past constituted a jurisdictional error in relation to a construction placed by the RRT on the meaning of "persecution" may not, by reason of s.91R, now be such an error.

36. The making of this distinction has been adopted in this Court by some in relation to s.474. [12]

37. Where a decision maker has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, such conduct may mean that the decision maker did not have the authority to make the decision he or she purported to make, the decision exceeded his or her jurisdiction and was, in law, no decision at all: Craig v South Australia. [13]

38. Failure to afford procedural fairness results in the decision maker exceeding her or his jurisdiction in the sense necessary to attract prohibition under s.75(v) of the Constitution. [14]

39. In the absence of alteration to the substantive law to be applied by the High Court and this Court in respect of the decision makers affected by s.474 (eg a specific legislative attempt to exclude the common law rules of natural justice), the presence of s 474 itself does not alter the law as articulated by the High Court concerning the nature of jurisdictional errors and their effect on the validity of administrative decisions. That law remains applicable to decisions of the RRT, MRT and to other decisions made under the Act which fall within the definition of "privative clause decisions".

40. The Commission does not concede that any attempt to exclude the rules of natural justice by legislative prescription is necessarily effective, but simply uses this as an example. Further, given the specific functions of decision making under the Act, the kinds of jurisdictional errors identified in Craig and Yusuf (aside from natural justice) are simply incapable of being excluded by legislative prescription altering the substantive law.

41. The exercise of the powers conferred upon the RRT (under s.415 of the Act) is dependent upon whether the RRT is satisfied that an applicant is a person to whom Australia owes protection obligations. By s.415(4) the RRT must not make a decision which is not authorised by the Act or the regulations. A decision, for example, proceeding upon an incorrect construction of the circumstances in which Australia owes protection obligations to a person (and therefore under s.65, a visa must be granted if health and security criteria are met) is not a decision authorised by the Act. See for example the recent decision of the High Court in MIMA v Khawar [2002] HCA 14.

42. These are cases in which the RRT's decision is made in breach of inviolable conditions or restrictions on jurisdiction or is in breach of imperative duties. The legislature did not intend for such decisions to be effective: R v The Commonwealth Rent Controller and Ors; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 at 369. [15]

43. Whether in a given case, the error identified is of the kind outlined in Craig and Yusuf can only be decided on a case by case basis: for example, Tamberlin J's decision in SBBK.

44. The Supreme Court of Canada recognises precisely the same kind of limitations on the effect of privative clauses. In United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd [1993] 2 S.C.R. 316 Sopinka J, on behalf of the Court stated:

Where the relevant legislative provision is a true privative clause, judicial review is limited to errors of jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's powers or a patently unreasonable error on a question of law otherwise within the tribunal's jurisdiction... In the presence of a full privative clause, judicial review exists not by reason of the wording of the statute (which is, of course, fully preclusive) but because as a matter of constitutional law judicial review cannot be ousted completely: see Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. [16]

D.3 Other relevant principles of statutory construction

45. There are principles of statutory construction which support the contentions outlined by the Commission in D.2 above. They are:

(a) Where the subject matter of a decision involves or affects an individual's fundamental human rights, a construction enhancing procedural safeguards is to be preferred.

(b) Statutory provisions should be construed consistently with the established rules of international law, and to promote a construction which accords with Australia's treaty obligations.

46. A privative clause of the type under consideration is inherently ambiguous. It cannot have the meaning it bears on its face.

47. In relation to the respondent's submissions concerning the second reading speech and Explanatory Memorandum [17], the Commission notes the words of warning of McHugh J in Miah, where his Honour stated (at 132):

However, even when a minister, in introducing legislation, has expressed a view as to the meaning of that legislation, the court will not give the enactment that meaning if such a reading is not justified. The need to act on the text of the enactment and not the minister's statements is particularly important when the minister's meaning has serious consequences for an individual.

48. Indeed, as regards the extrinsic material upon which the respondent relies in this case, it is notable that the views expressed by the respondent therein were expressly said to be based upon "advice received from legal counsel". [18] The respondent did not table that advice in Parliament. Nor, to the Commission's knowledge, has he sought to assist this Court (or the Courts at first instance) by making that material available. In those circumstances, the Second Reading Speech and Revised Explanatory Memorandum are partial (and therefore opaque) expressions of the respondent's views upon the objects and desired effects of the legislation and should be accorded little weight.

49. The conventional approach to a clause such as s 474 is to examine those other statutory provisions which govern the task of the decision maker and attempt to reconcile the two through a process of statutory construction. [19]

50. Accepting for the purposes of this part of the Commission's submissions that this is the correct approach to a clause such as s 474 (cf section D.4 below), one starting point for any such statutory construction exercise is that in enacting new statutory provisions Parliament intends to respect and preserve recognised tenets or principles of contemporary Australian law. [20]

51. Those tenets or principles include:

a) Where the subject matter of a decision involves or affects an individual's fundamental human rights, this is a consideration to be taken into account in construing the powers and obligations which govern that decision. This includes favouring a construction of limits on the decision maker's powers which enhances, rather than detracts from procedural safeguards (such as judicial review) designed to ensure the decision is lawful.

b) That statutory provisions should be construed consistently with the established rules of international law, and to promote a construction which accords with Australia's treaty obligations. [21]

Principle (a): Decisions involving fundamental human rights

52. Whatever guide is used to determine the meaning of the privative clause, it should be formulated with the humanitarian purpose of the Convention in mind. [22]

53. The humanitarian character of the protection obligations assumed by Australia through s.36 of the Act and Article 1A of the Refugees Convention, and their source in the text of an international treaty, is accepted as a relevant consideration in the construction of this Act. In Miah, Kirby J said (in finding that the rules of procedural fairness had not been excluded from the Act prior to the amendments introducing the new s.474, at [186]):

…it is relevant to take into account the special significance of the decision for the person affected. Of its nature, the decision to grant or refuse a protection visa is not merely concerned with the financial interests or reputation of an applicant. It is not even a determination that necessarily concerns the liberty of an applicant, although in particular cases it may be so. Rather, the determination concerns persecution. It is a decision potentially affecting the life and physical safety of an applicant and perhaps his or her family and associates. It is also one that is designed to ensure compliance by Australia with international obligations of a humanitarian character which Australia has voluntarily accepted and enacted as part of its laws.

54. To similar effect, McHugh J arrived at the same conclusion on the basis of the following matters (at [128]:

The subject matter of the Act, the fact that it implements Australia's international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice…

55. Similarly, in Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, the Supreme Court of Canada indicated that Canada's international obligations will be relevant when determining what procedural protections will be required to be made available to a person at risk of deportation. [23] The appellant in that case alleged that, if deported, he faced persecution, including torture. The Court accepted that this potentially put Canada in breach of its international obligations under the ICCPR and the Convention Against Torture (see further below). The Court took those obligations into account in finding that the "importance of the right affected" favoured more substantial procedural protections:

… Article 3 of the CAT, which explicitly prohibits the deportation of persons to states where there are "substantial grounds" for believing that the person would be "in danger of being subjected to torture", informs s. 7 of the Charter. It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT's plain meaning. Given Canada's commitment to the CAT, we find that the appellant had the right to procedural safeguards, at the s. 53(1)(b) stage of the proceedings. More particularly, the phrase "substantial grounds" raises a duty to afford an opportunity to demonstrate and defend those grounds. [24]

56. The proposition that there is a presumption against the removal of access to judicial review in matters involving fundamental human rights is also supported by a number of recent decisions of the House of Lords. [25] In particular a "principle of legality" has been advocated by Lord Steyn under which Parliament is to be presumed not to have legislated contrary to the rule of law, which enforces certain minimum standards, both procedural and substantive (and has particular application to matters involving "basic or fundamental rights"). [26]

Principle (b): Consistency with international obligations

57. Where there is ambiguity, the Court has held, courts should favour a construction of a statute which accords with the obligations of Australia under an international treaty. [27] This is because common sense indicates that Parliament intended to legislate in accordance with Australia's international obligations. [28]

58. The concept of "ambiguity", in this context, is not intended to impose a severe constraint upon reference to international obligations. In principle, it is merely the obverse of the coin of Parliamentary supremacy: if Parliament expresses a clear intention to legislate in consistency with Australia's international obligations, that intention must be given effect by the courts. As noted by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-8:

In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.

59. Other members of the Court have confirmed that a narrow conception of ambiguity is to be rejected. [29]

60. The Minister contends for a wide construction of s 474 that would protect, inter alia, jurisdictional errors made by the Minister's delegates, the MRT and the RRT. That construction either violates (or, at least raises the real possibility of a violation of) Australia's international obligations under the ICCPR and other human rights instruments. These are:

a. Australia's obligation to avoid refoulement, which arises under articles 6, 7, 9 and 10(1) of the ICCPR. Australia will breach the ICCPR if persons are refouled as a result of a rejection of their application for a protection by a process that permits jurisdictional error. This is so because such a flawed process carries an unacceptably high, and therefore foreseeable, risk of refoulement.

b. The right not to be detained arbitrarily and not be deprived of one's liberty except on such grounds and in accordance with such procedures as are established by law (article 9(1) of the ICCPR).

c. The right of any person deprived of their liberty to take proceedings before a Court in order that that Court may decide without delay upon the lawfulness of their detention and order their release if the detention is not lawful (article 9(4) of the ICCPR).

d. The right to an effective remedy to persons whose rights or freedoms under the ICCPR are violated (Art 2(3) of the ICCPR).

e. Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") [30] which provides:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. (emphasis added)

61. The Commission's submission in this section hereafter focus on the issue of an effective remedy, as required by article 2(3) of the ICCPR. The breaches of human rights for which the Commission contends such remedies are required are detailed in Schedule 1 to these submissions, entitled "Human rights and freedoms affected by the Migration Act and for which an effective remedy is required".

62. Article 2(3) of the ICCPR states:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

63. Article 2(3) obliges states to develop effective remedies to prevent future (as well as existing) breaches of rights and freedoms guaranteed by the ICCPR. [31]

64. Whether a remedy is effective may only be determined in particular cases, having regard to the relevant circumstances, the particular national legal system in question and the features of the right or freedom in question. While the wording of Article 2(3) leaves State Parties some "margin of appreciation" regarding the nature of such remedies, in some cases, a formal judicial appellate system is the only remedy that will meet the requirement of effectiveness. [32]

65. The terms of Article 2(3)(b) make clear that State parties are obliged to give priority to judicial remedies. It appears from the travaux préparatoires to the ICCPR that the words "develop the possibilities of judicial remedy" were introduced as a "progressive realisation" type clause which recognized that:

… while judicial remedy was preferable, it might be impossible to impose upon States the immediate obligation to provide such remedies.[33]

66. Hence, while there is not an "immediate obligation" to develop judicial remedies, there is an obligation to provide such remedies over time.

67. An analogous requirement is imposed upon State Parties to the International Covenant on Economic, Social and Cultural Rights. State Parties to that Covenant are under an obligation to take steps with a view to "achieving progressively the full realization of the rights recognized in the present Covenant". [34]The Committee for Economic, Social and Cultural Rights (the "CESCR") has interpreted that obligation as requiring a continuous improvement of conditions over time without backward movement of any kind - which some commentators have described as a "ratchet effect". [35]

68. Commentators have suggested that the CESCR's views suggest that only two forms of justification will avoid a retrogressive measure constituting a breach: first, an economic crisis such that, even by using the maximum of available resources, a deterioration of the situation is inevitable. Second, where a retrogressive measure is taken for the purpose of improving the situation with regard to the "totality of the rights provided for in the Covenant". [36]

69. By analogy, in the context of Article 2(3)(b) of the ICCPR, any deliberate measures to remove judicial review as a remedy for rights guaranteed by the Covenant would need to be justified [37] to avoid that action being in breach of a State party's obligations under that article.

70. The significance of ensuring access to judicial remedies for breaches of the ICCPR may be seen in the jurisprudence of the United Nation Human Rights Committee (UNHRC) regarding Article 5(2)(b) of the First Optional Protocol to the ICCPR. That article provides that a person may not use the optional protocol complaint system of the ICCPR without first exhausting "all available domestic remedies". The UNHRC has interpreted that article as requiring a person to exhaust all available effective domestic remedies.

71. Article 5(2)(b) of the Optional Protocol and Article 2(3)(b) of the ICCPR are thus closely related: [38] if effective domestic remedies have been provided as required by Article 2, they must be exhausted prior to any complaint being brought to the UNHRC. It follows that the UNHRC's consideration of effectiveness for the purposes of Article 5(2)(b) of the Optional Protocol should be seen as co-extensive with the requirement for effectiveness in Article 2(3)(b). It is therefore significant to note that, when discussing effectiveness in the context of Article 5(2)(b) of the Optional Protocol, the UNHRC has stated:

The Committee recalled that domestic remedies must not only be available, but also effective, and that the term "domestic remedies" must be understood as referring primarily to judicial remedies. The Committee considered that the effectiveness of a remedy also depended on the nature of the alleged violation. In other words, if the alleged offence is particularly serious, as in the case of violations of basic human rights, in particular the right to life, purely administrative and disciplinary remedies cannot be considered adequate and effective. [39]

72. The jurisprudence of the European Court of Human Rights in relation to the similarly worded Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms is also relevant. [40] In KIass v Germany (1978) 2 EHRR 214, the Court found that the question of effectiveness is to be answered by considering the substance of the powers and procedures of an "authority" (at [63]):

In the Court's opinion, the authority referred to in Article 13 (art.13) may not necessarily in all instances be a judicial authority in the strict sense… Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective.

73. The Court has accordingly found that judicial review of an extradition decision was an effective remedy on the basis that the English courts conducting the review could rule an exercise of executive discretion unlawful on the ground that it is tainted with illegality, irrationality (in the sense of Wendesbury unreasonableness; Associated Provincial Picture Houses Ltd v Wendesbury Corporation [1948] 1 KB 223) or procedural impropriety, and would have jurisdiction to quash a challenged decision to extradite a person where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. [41]

74. In Vilvarajah v United Kingdom[42], the Court reiterated the significance of an asylum seeker's access to remedies in the form of review by a superior court:

… the courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicant's life or liberty may be at risk...

While it is true that there are limitations to the powers of the courts in judicial review proceedings… the Court is of the opinion that these powers, exercisable as they are by the highest tribunals in the land, do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13.

75. In the instant case, judicial review of decisions protected by the privative clause contained in s.474 of the Act is, on the narrow view suggested by the Minister, of an entirely different character to that found to be an "effective remedy" in the above cases.

76. The decision in Chahal v United Kingdom (1996) 23 EHRR 413 confirms that the mere existence of a judicial remedy is not determinative - any remedy must be "effective". In that case the availability of judicial review from a deportation decision did not provide an effective remedy because the court was limited to satisfying itself that the Home Secretary had balanced the risk to the individual against the danger to national security. [43]

77. The Court in Chahal also emphasised that the nature of harm feared by an applicant is relevant in determining "effectiveness" of the remedy (at [151]-[152]):

[G]iven the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3 (art. 3), the notion of an effective remedy under Article 13 (art.13) required independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (art. 3)…

Such scrutiny need not be provided by a judicial authority but if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective…

78. In the present context (ie construing legislation that deals with persons seeking protection from persecution) similar considerations should apply in considering whether or not the regime contemplated by a narrow construction of the privative clause offers an "effective remedy" as required by Article 2(3) of the ICCPR.

D.4 Hickman is not the appropriate approach to a privative clause in the Migration Act

79. The Commission contends, in the alternative to the matters in D.2 and D.3 the principles of statutory construction applied to a privative clause must be modified and developed because of the nature of the rights affected by decisions made under the Act and in light of Australia's contemporary international law obligations. Jurisdictional error should remain an available ground of review wherever one is dealing with the abrogation of fundamental rights and immunities. In addition, such review for jurisdictional error must be consistent with contemporary judicial assessments of the importance of the rules of natural justice.

80. The approach expressed by Dixon J in Hickman to a privative clause in the industrial legislation with which His Honour was dealing is inappropriate some sixty years later in the context of the Act.

81. The approach should be refined and developed to

a. Construe what may be seen as "inviolable limits" in a way which reflects the nature of the rights and freedoms affected under the Act;

b. Accommodate the central place now accorded to the obligation to afford natural justice in decisions of the kind made under the Act.

It is accepted Courts can develop the common law, and do so in accordance with international norms

82. In more recent times, the function of the courts in developing the common law has been freely acknowledged. [44] It is now beyond dispute that in appropriate cases, judges carry out their function by developing and refining the common law. [45] In Mabo [No. 2], Brennan J stated: [46]

The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.

83. To adopt such an approach is merely to recognise that values of justice and human rights are just as much aspirations of the contemporary Australian legal system as they are of the international legal regime. [47]

84. It has also been said that where the common law is uncertain, the Court should prefer an answer in conformity with international norms. [48] It would be incongruous that Australia should adhere to international human rights treaties such as the ICCPR if Australian courts did not, in some fashion, recognise the entitlements contained therein. [49] As Mason CJ and Deane J stated in Teoh: [50]

.. ratification by Australia of an international convention is not be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention [on the Rights of the Child].

UK Courts have recognised, at common law, that judicial review is an important method of providing individuals with effective remedies against official conduct

85. The principle of legality developed by Lord Steyn in Pierson referred to above may be seen as part of a wider concern on the part of United Kingdom superior Courts to ensure that the law provides effective judicial remedies for violations of fundamental rights. That may be seen in a line of authority which emphasises the importance of Article 13 of the European Convention on Human Rights (ECHR). [51]

86. Prior to the introduction of the Human Rights Act 1998 (UK), English Courts accepted the proposition that the ECHR had not been incorporated into domestic law. [52] Nevertheless, those same Courts focussed on the obligation set out in Article 13 of the ECHR in expanding and protecting domestic common law and statutory remedies dealing with fundamental human rights.

87. In R v Khan [1996] 3 All ER 289, the House of Lords considered the interpretation of a statutory judicial discretion to exclude evidence. Their Lordships accepted (despite finding that the provision conferring the discretion was unambiguous) that it was relevant to have regard to the question of whether the circumstances surrounding the potential admission of that evidence involved the breach of a right secured by the ECHR (in this case, the right to privacy). In so doing, their Lordships appeared to place some reliance upon the fact that that approach to the statutory discretion provided an "effective means of reviewing the admissibility of the evidence in light of the provisions of [the ECHR]" such that the United Kingdom met its obligations under article 13 of the ECHR. [53]

88. In Rantzen v Mirror Group Newspapers (1986) Ltd and others [1994] QB 670, the Court of Appeal considered the interpretation of a statutory power to order a new trial on the ground that the damages awarded by a jury (in this case in a defamation trial) were excessive. Prior to Rantzen, an appellant seeking an exercise of that power was required to overcome a very high "barrier". The Court of Appeal accepted that the effect of that approach, which left a jury with an almost limitless discretion to award damages in a defamation trial, raised issues in terms of article 10 of the ECHR (which guarantees rights of freedom of expression). In deciding that the power to order new trials should be more readily exercised, the Court again appeared to place reliance upon the United Kingdom's obligations under article 13. [54]

89. In R v Secretary of State for the Home Department; ex parte Launder [1997] 3 All ER 961, it was found that the House of Lords could, under the "ordinary principles of judicial review", examine an extradition decision in terms of its compliance with the ECHR where:

…the whole context of the dialogue between the [decision maker] and the [person to be extradited] was the risk of an interference with [the latter's] human rights. [55]

90. In R v Ministry of Defence, Ex Parte Smith [1996] QB 517 Bingham MR (with whom Henry and Thorpe LJJ agreed) accepted the following statement of the test for the "irrationality" (or unreasonableness) ground of review (at 554):

The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.

91. In rejecting a more onerous test for this head of review proposed by the Ministry, Bingham MR stated (at 555-6):

It is important to note that, in considering whether English law satisfies the requirement in art 13 of the European Convention that there should be a national remedy to enforce the substance of the convention rights and freedoms, the European Court of Human Rights has held that it does, attaching very considerable weight to the power of the English courts to review administrative decisions by way of judicial review (see Vilvarajah v UK (1992) 14 EHRR 248 at 291, 292).

What limits and conditions are "inviolable" in the context of the Act are different from those which might be inviolable in other legislation, in part because of the nature of the rights affected

92. In the context of legislation such as the Act, courts construing a provision such as s.474 should look beyond the Hickman approach and recognise that a privative clause cannot immunise decisions which affect fundamental rights and freedoms to the same extent such a clause might immunise other kinds of decisions.

93. The Commission has referred above to dicta of the High Court and the Canadian Supreme Court which stand for the proposition that conditions governing the exercise of a statutory power (such as the requirement to accord procedural fairness) will be more readily implied, and the importance of effective curial supervision emphasised where a country's international obligations are at stake and where human rights and freedoms are affected by the exercise of the power. [56]

94. Such conditions should, by reason of their nature and provenance, be more readily found to be "inviolable" or "imperative". [57]

95. Effective curial supervision is only achieved by courts retaining the power to correct excess of jurisdiction. It is a key aspect of the conduct of government under the Australian Constitution that it is emphatically the duty and province of the judicial department to say what the law is and every person is entitled to his personal liberty except so far as that is abridged by a due administration of law: Abebe at [137].

96. This proposition is supported by the reasoning of Spigelman J in Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78. In holding that the privative clause there considered did not oust the common law duty of procedural fairness, his Honour first noted that (at 108):

… nothing in [the Hickman authorities considered] suggests that the R v Hickman principle is intended to be an exhaustive statement of the categories of legal error in which a privative clause will be subject to particular stringency in the course of strict construction. The stringent standards applicable to the core categories of jurisdictional error, referred to in R v Hickman, may also be applicable to other categories of error.

97. His Honour went on to hold that breach of a duty to accord procedural fairness was one such additional category of error (to the extent that it did not fall within one of the existing Hickman grounds of review). In reaching that conclusion, his Honour characterised the duty to accord procedural fairness as a "fundamental" principle of the law. [58] His Honour also appeared prepared to contemplate that the Hickman grounds of review should be extended wherever one is dealing with the "abrogation of fundamental rights and immunities". [59]

98. Australia's obligation under Art 2(3) of the ICCPR supports a construction of s.474 which denies it the effect of broadening the lawful authority of decision makers to include excess of jurisdiction. [60] Since contemporary Australian law recognises the importance of the rights and freedoms guaranteed by international human rights instruments, and the importance of continued curial supervision of decision affecting those rights are, it is but a short step to the proposition that a provision such as s.474 simply cannot protect decisions made in excess of jurisdiction where those decisions operate to affect such fundamental rights.

99. In taking that short step, this Court should, as the UK Courts have, recognise the important relationship between the exercise of judicial power in the supervision of administrative and executive decisions and Australia's obligation under the ICCPR to provide effective remedies for breaches of fundamental rights.

Section 474 must be given a construction outside the traditional Hickman principles to accommodate the contemporary position given to the rules of natural justice in the making of administrative decisions

100. This argument applies to both the importance of the statutory natural justice provisions in the Act ( eg s 424A) and the role of common law rules of natural justice.

101.In other words, Gyles J was incorrect to find that a breach of s 424A would not be a breach of an inviolable condition on the exercise of the RRT's powers. Whether as a statutory expression of at least some of the principles of natural justice (ie s.424A), or as an assumption that Parliament intended that the common law principles of natural justice would continue to apply to decision made by the RRT, the duty to afford natural justice must be regarded as an inviolable condition of or limit to the powers of the RRT.

102. Gyles J's approach is inconsistent with contemporary judicial assessments of the importance of the rules of natural justice: see Aala at [18]-[41]; [51]-[52] per Gaudron and Gummow JJ where their Honours trace the development of the principles of natural justice, concluding that those principles now justify the conclusion that a failure to afford natural justice attracts prohibition under s 75(v); Aala also at [142] per Kirby J; [164]-[165] and [169]-[170] per Hayne J Miah at [89]-90]; [102] per Gaudron J; at [126] per Mc Hugh J [181]; [192] and [213] per Kirby J.

E. If s 474 protects jurisdictional errors, it is invalid

103. The Full Court decision in SZ v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 342, relied upon by Gyles J in NAAV at [39]-[42], AB 516-518, does not preclude this argument, nor does the argument require this Court to determine that the decision in SZ is "plainly wrong" (see Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304, 315, 333). SZ should be distinguished.

104. SZ concerned an attack on the decision making power not only of the RRT, but of a delegate as an invalid exercise of judicial power because of a comparison made between the outcome of an unsuccessful application for a protection visa and a criminal conviction. The Full Court did not accept the comparison was an appropriate one: at [33]-[37].

105. The attack centred on s 65 and, insofar as the RRT was concerned, on s 415(2)(a). Those provisions are concerned with the power to grant or refuse a visa. One (but only one) of the reasons given by the Full Court in SZ for rejecting the attack was that granting or refusing a visa is not making a binding determination as to existing rights, Attorney-General (Cth) v Breckler (1999) 197 CLR 83 being cited as authority for this proposition.

106. That proposition, as it stands, is not contested. However, the power to make a binding determination as to existing rights is not the only feature relied upon to determine whether a decision maker exercises judicial power. Whether a determination is properly construed as "binding" depends to some extent on the availability of curial methods of collateral challenge. In Breckler, the governing consideration for the High Court against the powers of the Superannuation Complaints Tribunal being characterised as judicial was the voluntary nature of the enforcement regime established by the relevant legislation: at [43]-[44]. However, the majority emphasised (at [46]) that the Superannuation (Resolution of Complaints) Act 1993 (Cth)

…does not purport to give determinations of the Tribunal that conclusive character which would prevent collateral challenge in proceedings to compel observance of those determinations… Conferral upon the determination of the Tribunal of the status of a decision of the trustee does not bring with it a preclusive effect which immunises the determination, and thus its status, from attack in properly constituted curial proceedings.

107. If decisions which involve jurisdictional error are protected by s 474, then the administrative decision makers under this Act (including of course, not just the RRT, but the MRT, the Minister and the Minister's delegates) have been given authority by parliament conclusively to determine questions of law which go to their authority to decide, and to make a decision otherwise than in accordance with law: Craig v South Australia (1995) 184 CLR 163 at ³ Yusuf at [82]; Aala at [166] per Hayne J.

108. A plain example of this is Tamberlin J's decision in SBBK. If such an error is protected at the RRT level, it will be protected at the delegate level. It will also be protected from the High Court's exercise of jurisdiction under s 75(v). The consequence is that a failure to decide whether the applicant in SBBK was a member of a social group, and what that social group was, could nevertheless constitute a discharge of the RRT's duty under the Act.

109. The determination of questions of law in a conclusive manner is a key feature of the exercise of judicial power: Brandy v HREOC (1995) 183 CLR 245 at 256-257, 267-268. Indeed, as outlined in Section B above, the conclusive determination of those questions and the judicial supervision inherent in such a conclusive determination is a fundamental aspect of the High Court's constitutional function under s 75(v).

110. Thus, the Court needs to reconsider whether, in the light of the amendments to the Act including s.474, and if the Minister is correct in his contentions about the breadth of a decision maker's lawful authority in making a privative clause decision, the RRT (in NAAV and NABE) and the MRT (in the other appeals) exercises judicial power otherwise than in conformity with Ch III of the Constitution.

111. Alternatively, if the RRT's decisions which involve jurisdictional error are protected by s 474 as the Minister appears to contend, then that section is invalid as being an impermissible intrusion by the Parliament into the exercise of judicial power, because the section purports to direct the courts as to the manner and outcome of the exercise of their jurisdiction: Chu Kheng Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 at 36-% Abebe at [236] per Kirby J.

112. On the Minister's argument, the Court should apply what he describes as the "Hickman principles" in a way which the Minister freely concedes will confine review to a very narrow compass and to extreme cases: see general submissions at paragraphs 19-20. In relation to the second and third categories, the Minister describes these as "unlikely ever" to arise. In other words, the Minister argues s.474 should be read almost literally.

113. Yet s.474, when read together with ss.475A and 476, does not limit the jurisdiction of the Federal Court under s.39B of the Judiciary Act. As submitted above, the Act says nothing specific to affect the jurisdiction of the High Court except for the imposition of a time limit by s.486A (a provision whose validity is questionable but not in issue in these proceedings).

114. Instead, what it does, accepting the Minister's arguments, is to direct each Court as to the manner and outcome of the exercise of their respective jurisdictions. The Minister's construction of s.474 says to each Court, for example, that it cannot not prohibit the making of the kinds of errors identified by the High Court in Chen Shi Hai v MIMA (2000) 201 CLR 293. [61]

115. Such a provision is not one which leaves to the courts of law the question whether there has been any excess of power, nor is it a provision which permits a court to pronounce void any decision which is ultra vires: R v Richards; ex parte Fitzpatrick & Browne (1955) 92 CLR at ¥ referred to in Lim at 36. In most cases, as the Minister freely admits, s 474 will dictate the outcome of the exercise of the Court's jurisdiction.

DATED 23 MAY 2002

D S Mortimer Counsel for the Human Rights and Equal Opportunity Commission

Susan Roberts Solicitor for the Human Rights and Equal Opportunity Commission

SCHEDULE 1

HUMAN RIGHTS AND FREEDOMS AFFECTED BY THE MIGRATION ACT AND FOR WHICH AN EFFECTIVE REMEDY IS REQUIRED

A. State responsibility for refoulement under the ICCPR

1. Article 33(1) of the Refugees Convention prohibits States parties from returning a refugee "in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." This is known as the prohibition of refoulement.

2. Articles 6, 7, 9 and 10(1) of the ICCPR also proscribe refoulement. The Commission submits that this follows from the fundamental nature of a State party's obligations under the ICCPR, as well as the General Comments and jurisprudence of the United Nations Human Rights Committee (the "UNHRC").

3. The general principle has been stated by the UNHRC in the following terms:

If a State party deports a person within its territory and subject to its jurisdiction in such circumstances that as a result, there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, that State party itself my be in violation of the covenant. [62]

4. That a State party is held responsible for foreseeable breaches of the ICCPR follows in part from the primary obligation of each State party, pursuant to article 2 of the ICCPR, "to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant". The obligation of the State party is owed to all those within its territory and subject to its jurisdiction and it would contravene that obligation to deliver a person by compulsion into the hands of a third party who might inflict harm proscribed by the ICCPR.

5. The fact that international obligations extend to indirect contraventions of a convention is also well established in domestic law. [63]

6. The principle is stated in General Comment 20 of the UNHRC:

In the view of the Committee, State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon their return to another country by way of their extradition, expulsion or refoulement.

7. This General Comment has been interpreted as "prohibit[ing] refoulement with regard to all article 7 treatment". [64] However, beyond the more limited scope of article 7, the UNHRC jurisprudence suggests that a State will breach the ICCPR if it places a person in a situation (for example by rejecting their claims to refugee status and having them deported) in which a breach of any of the fundamental rights protected by the ICCPR is likely to take place. This would extend to articles 6, 7 (apparently conceded by Australia in T.T.), 9(1) and 10(1) of the ICCPR which would be breached by refoulement of a refugee.

8. In Kindler v Canada (470/91), the UNHRC stated:

If a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. [65]

9. Further support for this approach is found in the approach of the European Court of Human Rights in interpreting article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which, in part, echoes article 7 of the ICCPR. The Court has found that a state can be in violation of article 3 by extraditing, expelling or otherwise returning a person to another state where there are substantial grounds for believing that he or she would be exposed to a real risk of being subjected to torture or inhuman or degrading treatment or punishment in that other state. [66]

10. Australia will breach the ICCPR if persons are refouled as a result of a rejection of their application for a protection by a process that permits jurisdictional error. This is so because such a flawed process carries an unacceptably high, and therefore foreseeable, risk of refoulement.

B. Right to liberty: Article 9 of the ICCPR

11. Article 9 of the ICCPR provides:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. …

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

12. Article 9(1) creates a right to liberty and then provides for certain limitations on that right. Any such limitations must satisfy the separate requirements of "lawfulness" and absence of "arbitrariness". The UNHRC has clearly indicated that those requirements should not be conflated:

The drafting history of article 9, paragraph 1, confirms that 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. [67]

13. Similarly, in A v Australia[68], the UNHRC stated:

[T]he Committee recalls that the notion of 'arbitrariness' must not be equated with 'against the law', but interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.

14. "Lawfulness" in the context of article 9(4) does not simply mean "lawfulness" under municipal law. Rather, it means lawfulness under the covenant. This was made clear by the UNHRC in A v Australia, where the Australian government sought to argue that there had been no breach of article 9(4) because the author of the complaint had access to the Courts (and was simply unable to be released by virtue of the effects of division 4B of the Migration Amendment Act 1992 (Cth)). The Committee rejected that argument stating:

… court review of the lawfulness of detention under article 9, paragraph 4, which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release "if the detention is not lawful', article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant.

15. A second aspect of article 9 is the right to bring proceedings to have the lawfulness of one's detention determined without delay: see art 9(4).

16. The relevance of article 9(4) in the context of the Act is twofold:

a. First, in respect of decisions to detain unlawful non-citizens under s 189 of the Act;

b. Second, in respect of decisions whether to release persons from detention (for example, on bridging visas or pursuant to a specific statutory power such as s 253(9) in relation to deportees).

17. Take the example of a decision maker in respect of a bridging visa who asks for a security bond of $50,000 from an unlawful non-citizen in detention, with no assets, no money, no means of support in Australia and no right to work before that person can be released from detention. Assuming no lack of good faith but rather a plain misunderstanding of the purpose of the power conferred by s 269 of the Act to require a security payment, on the Minister's argument that decision is protected by s 474. See Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615.

18. If the content of proceedings to determine the lawfulness of a person's detention (in terms of available grounds of challenge) are so denuded by s 474 that a Court must refuse relief where it is plain that the decision maker has exceeded his or her jurisdiction, then Australia is in breach of Art 9(4).

1. ATS 1954 No 189 UNTS No 2545 at 137. Australia is also a party to the Protocol Relating to the Status of Refugees (the "Protocol", ATS 1973 No % 606 UNTS No 8791 at 267), which entered into force for Australia on 13 December 1973.

2. This addresses the comments made by Gyles J in NAAV at [45].

3. Such as whether a person has paid the application fee for the particular visa: see s 46 (1)(c)

4. Such as whether a person is in or outside Australia at the time of application: see s 40 and Schedule 1, Clause 1401 (3), although more difficult construction questions may arise in respect of persons attempting to enter Australia through parts of Australia now excised from the migration zone.

5. For example, whether a person was "immigration cleared" (as defined in s 172(1) of the Act) determines whether she or he can obtain a permanent or only a temporary three year protection visa - see Schedule 2, cl. 866.212(1)(a). Whether a person is an "offshore entry person" determines if that person can apply for a protection visa in Australia at all: see s 46A and s 5.

6. eg whether an applicant for a bridging visa releasing him or her temporarily from immigration detention will or will not comply with conditions to be attached to that visa: see Schedule 2, cl 050.223

7. Such as whether a person is or is not a "spouse" as in the Migration Regulations: see Reg 1.15A(1A) or whether a person has suffered "persecution", in part defined by the Act in s 91R

8. See s 36 in its present form, cf the form prior to amendments in 2001.

9. See Daihatsu Australia Pty Ltd v Commissioner of Taxation (2000) 184 ALR 576 at [34] per Finn J, referred to and adopted by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34].

10. R v Metal Trades Employers' Association; ex parte Amalgamated Engineering Union, Australia Section (1951) 82 CLR 208 at ø R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 at ƣ O'Toole at Ē Darling Casino at 632-633.

11. See Richard Walter at 206-Ï Darling Casino at 632-ɹ Abebe at 536-537 per Gleeson CJ and McHugh J. And in a different context (conclusive certificates), see Shergold v Tanner (2000) 179 ALR 150 (Full FC) at [65]-[70]. Judgment on appeal in Shergold is currently reserved before the High Court.

12. Wilcox J in Boakye-Danquah v MIMIA [2002] FCA ƶ Mansfield J in Wang v MIMIA [2002] FCA § Merkel J in Walton v Ruddock [2001] FCA ܯ Finkelstein J in Kwan v MIMA [2002] FCA Dz Tamberlin J in SBBK v MIMA [2002] FCA 565, North J in Awan v MIMIA [2002] FCA Ɉ Hill J (obiter) in Ratumaiwai v MIMA [2002] FCA 311 at [50].

13. (1995) 184 CLR 163 at 179. See Aala [163] per Hayne J; Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 75 ALJR 889 at [80] per Gaudron J ; Yusuf at [1], [41]-[42], [82]; Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51]-[53].

14. Aala at [41] and [59] per Gaudron and Gummow JJ; [142] per Kirby J; [168]-[170] per Hayne J; Miah at [26] per Gleeson CJ and Hayne J, [102] per Gaudron J.

15. This is also the approach taken in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 per Mansfield J; Awan v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 594 per North J.

16. See also Pasiechnyk v. Saskatchewan (Workers' Compensation Board) [1997] 2 S.C.R 890

17. See paragraphs 13-18 of the respondent's "General Submissions" of 13 May 2002 (the "General Submissions")

18. See the extract of the Second Reading Speech that appears at paragraph 13 of the General Submissions.

19. R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at ű R v Murray; Ex parte Proctor (1949) 77 CLR 387 at Ƌ R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at ɧ R v Coldham; ex parte Australian Workers' Union (1983) 153 CLR Ɵ O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248-ù 273-ē 286-287.

20. Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 at ] Coco v R (1994) 179 CLR 427 at 436-438. See, to similar effect in the UK , R v Home Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587-588 per Lord Steyn.

21. Leroux v Brown (1852) 12 C.B. ̡ The Zollverein (1856) Swab. ` The Annapolis (1861) Lush. ħ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR ĵ Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127

22. Chen Shi Hai v MIMA (2000) 201 CLR 293 per Kirby J at [47]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 at [128] per McHugh J and [186] per Kirby J.

23. The significance of this case, for the purposes of section 474 of the Act, was discussed by North J in Awan v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 594 at [155]-[160].

24. See at [118]. Although those procedural rights were derived from section 7 of the Canadian Charter of Rights and Freedoms which provides "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice", the Court made clear that those rights overlapped with and were informed by the common law right to procedural fairness.

25. R v Home Secretary of State for the Home Department Ex Parte Pierson [1998] AC 539 per Lord Steyn at 589 and ɏ Boddington v British Transport Police [1999] 2 AC 143 at 173 per Lord Steyn.

26. Pierson, op cit at pages 589 and 591

27. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.

28. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 at pars 142-144 (Kirby J), and also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.

29. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ. Generally A Simpson & G Williams, "International Law and Constitutional Interpretation" (2000) 11 Public Law Review 205 at Ð J Spigelman, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.

30. Entered into force 26 June 1987, Ratified by Australia 8 August 1989

31. Herrara Rubio v Colombia No 161/1983. See also M Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993), NP Engel p62, cf CF v Canada No 113/1981.

32. M Nowak, op cit, p60

33. Proceedings of the Commission on Human Rights, E/CN.4/SR.328.

34. See article 2(1)

35. M Craven "The International Covenant on Economic Social and Cultural Rights" (1995), Clarendon p131. See also CESCR General Comment No 3: …any deliberately retrogressive measures…would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum of available resources; (1990) UN Doc E/1991/23

36. M Craven, op cit, page 132

37. As a measure necessary to cope with a drastic resource shortage or to improve the position regarding the totality of other rights under the ICCPR.

38. As has been noted by Nowak, op cit, page 58.

39. See Vicente v Colombia 612/1995.

40. Article 13 provides that "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity"

41. Soering v United Kingdom 11 EHRR 439

42. Op cit. The approach in Soering and Vilvarajah has been followed in the recent cases of Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Hilal v United Kingdom (2001) 33 EHRR 2.

43. Ibid at para 153. Similarly, the Court found that a right of appeal against the deportation decision to an advisory panel (prior to the judicial review stage) was not an effective remedy because "the advisory panel could not be considered to offer sufficient procedural safeguards for the purposes of Article 13". In proceedings before the advisory panel the applicant was not entitled to legal representation, was only given an outline of the grounds for the notice of intention to deport and the decision of the panel was neither binding upon the Home Secretary nor was it disclosed to the applicant.

44. Dietrich v The Queen (1992) 177 CLR 292 at 319 per Brennan J.

45. The Hon Murray Gleeson AC, Boyer Lectures 2000: The Rule of Law and The Constitution (ABC Books 2000) at  The Hon Michael McHugh, "The Law Making Function of the Judicial Process" (1988) 62 Australian Law Journal 15, 116.

46. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed). See also Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J, at 319-321 per Brennan J, at 360 per Toohey J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499 per Mason CJ and Toohey J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288-289 per Mason CJ and Deane J.

47. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).

48. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 687-88 per Gleeson CJ, at 699, 709-710 per Kirby P.

49. Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J.

50. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 289 per Mason CJ and Deane J. See also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 343 and Tavita v Minister for Immigration (1994) 2 NZLR 257 at 266.

51. See above, Section D.3.

52. See Brind v Secretary of State for the Home Department [1991] 1 AC 696. The introduction of the Human Rights Act 1998 has altered that position with many, but not all, of the rights conferred by the ECHR now guaranteed by that legislation.

53. See at 298 per Lord Nolan.

54. Which Neill LJ noted was drawn to the attention of the Court (see at 686).

55. At 988 per Lord Craighead, with whom the other Law Lords agreed. In so holding, his Lordship specifically referred to article 13 of the ECHR.

56. Miah at [128] per McHugh J and at [186] per Kirby K, Suresh at [119]

57. In the sense discussed in R v Coldham (1982) 153 CLR 415 at 419. See also R v Metal Trades Employers' Association Ex Parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248.

58. See at p109 [149], p 110 [157] and 112 [174].

59. See 110 [156]

60. See paragraphs 6 and 15 of the respondent's submissions of 13 May 2002.

61. The errors in that case related to China's "black children" constituting a social group and there not needing to be "enmity" or "malignity" for there to be persecution.

62. T.T. v Australia (706/96), also referred to as G.T. v Australia - complaint brought by Mrs G.T. on behalf of her husband T.

63. R v Secretary of State for the Home Department; Ex parte Bugdaycay [1987] AC 514, Minister for Immigration and Multicultural Affairs v Thiyagarajah. (1997) 80 FCR 543 at 558-559

64. S Joseph et al, The International Covenant on Civil and Political Rights (2000) OUP at p162

65. See also Ng v Canada (469/91), Cox v Canada (539/93) and T.T v Australia op cit.

66. Soering v United Kingdom (1989) 11 EHRR 439 at 467- Cruz Varas v Sweden (1991) 14 EHRR 1 at 33- Vilvarajah v United Kingdom (1991) 14 EHRR 248 at 290.

67. Van Alphen v The Netherlands UNHRC 305/88

68. UNHRC 560/93

Last updated 11 June 2002.