Case: SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 , 102 ALD 54
Outcome: cited
for the Respondent Minister has properly referred to the following conclusion of Lander J in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 , 102 ALD 541: [97] It should only be in exceptional circumstances that a Court should refuse to issue the constitutional writs once the court has determined that the Tribunal has failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted. His Honour had there previously referred to the following observations of Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 , 204 CLR 82. [57] It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, "[t]he court does not act in vain" ( Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595; [1971] 2 All ER 1278 at 1294). For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse ( Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228; Wade and Forsyth, Administrative Law , 7 th ed (1994) at 528). Or the prosecutor's complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor (See Stead v State Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145). Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission [1992] HCA 10 ; ((1992) 175 CLR 564 at 580-581), where the remedy refused was certiorari, indicates that prohibition will not lie ( Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553-554 [113] ). [58] However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v). Moore and Marshall JJ agreed with Lander J.