Case: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
FM ultimately addressed what became the critical discretionary issue as to delay by the appellants in their pursuit of their second Tribunal application, before proceeding to address the three issues broadly formulated as above by his Honour, and which I have outlined in the preceding paragraph. That issue of delay became ultimately the basis for dismissal of the appeal, which occurred at the culmination of his Honour's consideration of the various other issues raised in the Federal Magistrates Court below. The issue of delay was described by his Honour as 'unexplained and inconsistent with the action of someone who claims to fear persecution and who claims to be aggrieved by a Tribunal decision which did not recognise these claims' . His Honour referred to authority involving recognition of the element of discretion attending the exercise of the grant or refusal of prerogative relief in a migration law context, in particular in circumstances of unwarrantable delay. An exemplification of High Court authority on the subject of circumstances of unwarrantable delay identified by his Honour was Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [53] and [82] (Gaudron and Gummow JJ). Reference was also made to what was observed subsequently by McHugh J in SAAP at [80] on the matter of delay. It was in any event in the context of the appellants' case for contravention of s 424A that the appellants drew attention to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [230] - [234] (Allsop J), where in the light of what was said in Aala and SAAP , his Honour observed as follows as to consequences flowing generally from a beach by the Minister of s 424A: Section 424A not having been complied with, the appellant is entitled to statutory writs under s 39B(1) of the Judiciary Act 1903 unless a legitimate reason to withhold such relief can be identified. ... subject to what follows, if s 424A is not complied with, the Court does not engage in an enquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision. In the operation of s 424A and the principles of procedural fairness, adherence to mandated process and procedure is vital... as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP . No such considerations apply here... if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld. ... What the majority in SAAP stated was that one did not engage in an evaluative analysis of the triviality or seriousness of the failure to observe the statutory requirements. The same was said by Gaudron and Gummow JJ in Aala. However, Aala and SAAP leave open... the basis to refuse relief if it can be shown that grant of relief would lack utility. The examples given... in Aala ... were: (a) where the decision-maker was bound by the governing statute; (b) where the submissions could only have been answered, as a matter of law, against the person denied the opportunity of making them; and (c) if the decision under review has no legal effect. If it can be shown that there was a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in...Aala to warrant withholding of relief. The federal magistrate concluded that the Tribunal found that "even if the claims made by the applicant were true he was not a refugee". Unlike the federal magistrate, I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal. The failure to comply with s 424A has not been shown to be entirely separate from an unimpeached basis for the decision.' The further issues remain therefore, first as to whether in all the circumstances, the Tribunal did contravene s 424A in the light of what was held at [233] of SZEEU above as to 'a basis for the Tribunal's decision which [is]... entirely independent of the failure to follow s 424A', and in any event, whether any discretionary factor (being delay in particular) should so operate as to deny relief to the appellants. As to the existence of any contravention of s 424A, there remains of course the issue of an absence or otherwise of operation of subsection (1) thereof in any of the circumstances excepted by the terms of subsection (3) thereof relating to '... information... not about the applicant... and... just about a class of persons of which the applicant... is a member' , or, 'information... that the applicant gave for the purpose of the application...'. The appellants contended next that what his Honour was primarily required to consider was whether 'the circumstances of the case made the withholding of [relief] the proper course', given that '[t]he writ issues as of right unless it is unjust to withhold it', the appellants citing in that regard R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400, and Aala at [51]-[52] and [56] per Gaudron and Gummow JJ. In cases of unwarrantable delay, so the appellants' submissions on the subject of delay proceeded, the exercise the Court was required to undertake included 'weighing the primary consideration of ensuring the legality of government action against the secondary consideration of the finality of litigation', the appellants further citing respectively Aala at [55] (Gaudron and Gummow JJ). That scope of finding by Nicholls J referrable to delay was however in my opinion clearly open to his Honour to find, at least in the circumstances to which his Honour referred. I am unable to accept that his Honour did not pay regard to considerations that were appropriate to the circumstances of the case.