Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: followed
The process of judicial review is to do with procedures and observance by those charged with carrying out the procedures required by law, rather than with the substantive outcome: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 598 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 104 However, I am of opinion that the way in which the committees approached the application of the tests 'exceptional circumstances' was erroneous and that on any further hearing, a committee will be able to reconsider the whole of the evidence and take further evidence, if so advised, having regard to the proper legal standards to be applied. Each committee followed an incorrect procedure and their decisions were affected by jurisdictional error. There is no reason why the doctors should not be granted the relief they seek: SZBEL 231 ALR at 598 [25] where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said: 'It is, therefore, not to the point to ask whether the tribunal's factual conclusions were right. The relevant question is about the tribunal's processes, not its actual decision.' See also Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1229 ; (2006) 154 FCR 536 at 548-553 [56] - [81] . 105 I am opinion, for the reasons that I have given, that each committee misconstrued or failed to apply the tests for 'exceptional circumstances' under s 106KA(2) and reg 11(a). For those reasons I do not consider that this ground arises. 106 The doctors argued that because the committees focused on practice management as a substantive answer to the doctors' reliance on 'exceptional circumstances', this demonstrated that each committee had an inflexibility of approach which would entitle a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, reasonably to apprehend that each committee might not have brought an impartial mind to making the decision. In deciding that question, the Court determines the issue objectively: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at 459 [68] per McHugh J citing Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at 990 [28] ; [2001] HCA 28 ; 179 ALR 425 at 434-435 per Gleeson CJ, Gaudron and Gummow JJ. 107 Because I am of opinion that each committee made an error of law in their approach, as explained above, I am not satisfied that an apprehension of bias would be perceived by the hypothetical fair-minded lay person. Rather that person would consider that the committee was applying a wrong view of the law to its task and there is no reason to think that if properly instructed as to the law to be applied, the committee would not reapply itself appropriately to the issue. 108 However, I am more troubled about the question raised late in the argument that each of the committees has been the active respondent in the proceedings. Each of the committees submitted that there was no other respondent who had a right of appearance and that the committees were the only proper respondents in proceedings brought for judicial review of their decisions. 110 The members of the tribunal are the relevant officers of the Commonwealth for the purposes of the proceedings and it is necessary that they be joined as parties to the proceedings: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 173 [43] per McHugh J, 185-186 [91] per Gummow J, 199 [153] per Kirby J, 204 [180] per Hayne J. Here, the tribunal took what the High Court said in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36 was an unusual course of contesting the doctors' case for relief by presenting a substantive argument. Gibbs, Stephen, Mason, Aickin and Wilson JJ said: 'In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which may take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.'