27 August 1998
JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS
To what extent are courts prepared to review the fact-finding aspect of administrative decisions? This briefing looks at the approach taken by the High Court in a series of cases about refugee law. It aims to identify some useful principles for decision-makers in the area of refugee law and in other areas.
In principle, judicial review of administrative decisions is limited to declaring and enforcing the law. Courts have no jurisdiction to review the merits of an administrative decision.1 But in practice, it is often difficult for a reviewing court to draw a clear distinction between the merits and the legality of a particular decision.
It is especially difficult to distinguish between the merits and legality of a decision when in order to make the decision, the decision-maker has to come to a view on factual issues. In such cases the court has to try to separate the fact-finding process from the way in which the decision-maker has applied the law to the facts.
Often the statute which confers power to make the decision requires the decision-maker to be 'satisfied' that a particular set of facts exists. This subjective element further complicates the reviewing court's task.
Chan v Minister for Immigration and Ethnic Affairs (Chan)2
Article 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (the Convention), defines a 'refugee' as any person who:
'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.'
Successive provisions of the Migration Act 1958 have required the Minister and his or her delegates to apply the Convention definition of 'refugee' when making certain decisions under that Act.3
In Chan, the High Court identified both subjective and objective elements in the Convention definition.4 The subjective element requires the person to have an actual fear of persecution for the reasons listed in the definition. The objective element requires that subjective fear to be well-founded.
On the question of what constitutes a well-founded fear, the High Court said that it is not necessary for there to be a 50% or greater chance of persecution in order for a person's fear of persecution to be well-founded. In other words, it is not necessary for persecution to be more probable than not. The High Court said the definition would be satisfied provided there is a real chance of persecution. This is known as the 'real chance' test.5
Following the High Court's decision in Chan, the Federal Court was asked to review a number of decisions involving the application of the real chance test.6 The Federal Court looked at the reasons of the decision-maker in each case. The decision-makers had referred to the real chance test and had purported to apply it. But in describing the process of coming to a view about the factual question in each case - whether the fear of persecution was well-founded - the decision-makers had used language which indicated that they had attributed greater weight to some pieces of evidence than to others.
The Federal Court said that this showed that the decision-makers had not really applied the real chance test referred to in Chan. Having attributed relatively little weight to some of the evidence, the decision-makers must have discarded that evidence when coming to a final view on the facts. In effect, said the Federal Court, the decision-makers had applied a balance of probabilities test. In light of the High Court's decision in Chan, this was an error of law.7
Minister for Immigration and Ethnic Affairs v Wu Shan Liang Ors (Wu Shan Liang)8
One of the cases in which the Federal Court held that there had been an error of law was that of Wu Shan Liang.9 The High Court granted the Minister for Immigration and Ethnic Affairs special leave to appeal from the Federal Court decision.
The High Court disagreed with the Federal Court's conclusion that the decision-maker in Wu Shan Liang's case had failed to apply the real chance test. It said that the fact that the delegates had attributed weight to particular material did not mean they had rejected the real chance test and adopted a balance of probabilities test. In fact, attributing the proper weight to material relevant to a person's refugee status was an essential part of applying the real chance test.10
Before the High Court handed down its judgment in Wu Shan Liang, the Federal Court decided another case concerning an applicant named Guo.11 The Federal Court took the same approach in that case that it had taken in the earlier cases. The Minister again appealed to the High Court. On appeal, the High Court took the opportunity to expand on what it had said in Wu Shan Liang.
Minister for Immigration and Ethnic Affairs v Guo Anor (Guo)12
In Guo, the majority13 emphasised that the real chance test in Chan was intended to explain the meaning of the Convention term 'well-founded', not to replace it. They recommended that decision-makers adopt the term 'well-founded', bearing in mind the point being made by the High Court when it formulated the real chance test - that a fear of persecution may be well-founded even if the evidence does not show that persecution is more likely than not to occur.14
As to decision-makers attributing weight to particular material, the High Court explained that there is a place for weighing up probabilities in the course of deciding whether a person's fear is well-founded. But that is not to say that the question should be decided on the balance of probabilities. The High Court's approach can be summarised as follows.
When a decision-maker is required to assess the chances of some future event, he or she is entitled to make findings about past events. This is because what has happened in the past is often the most reliable guide as to what might happen in the future. The process of making findings about the past will normally involve the decision-maker attributing weight to particular material. That is not an error of law.15
However, the decision-maker's findings about past events cannot by themselves determine the chances of a particular event happening in the future. There are two reasons for this.
First, the findings about past events may be inaccurate. What decision-makers should do about this depends on how confident they are about their findings. If there is no real doubt that the findings are correct, the High Court held that the decision-maker need not consider the possibility that they were wrong. However, if it is only slightly more probable than not that a particular finding about a past event is correct, the decision-maker cannot discard the possibility that that finding is wrong when considering the chances of a future event occurring.16
Second, the future may not turn out like the past. That is why, having made findings about past events, the decision-maker must go a step further and consider whether there is a real chance of future persecution. Kirby J referred to this process in Wu Shan Liang as a process of speculation. He emphasised that it is a necessary part of applying the real chance test from Chan.17 In Guo the majority confirmed this. However, they pointed out that 'speculation' in this context means not 'conjecture' or 'surmise' but simply 'looking to the future'.18
Decisions based on the Satisfaction of the Decision-maker
Many statutes conferring power to make decisions require the decision-maker to be satisfied that a particular state of affairs exists before making the decision.
There is some old authority for the proposition that a court cannot review a decision based on the opinion or satisfaction of the decision-maker.19 But it has since been established that such a decision can be reviewed by a court.20
When the power to make a decision contains a subjective element, what effect should that have on the way the court exercises its jurisdiction to review the decision?
In Chan, the decision under review was made under a provision of the Migration Act 1958 which required the decision-maker to make a determination as to refugee status. Between Chan and Wu Shan Liang the legislation was changed so that it required the decision-maker to be satisfied as to refugee status.21
All the members of the High Court in Wu Shan Liang regarded the legislature's use of the word 'satisfied' as important. The majority said:
'while the subjective nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law.'22
This suggests that following Wu Shan Liang, courts will take a more restrained approach to judicial review of decisions based on the decision-maker's satisfaction compared to review of decisions which do not contain a subjective element.23
The High Court warns against 'Over-zealous' Judicial Review
In Wu Shan Liang the High Court decided that the Federal Court had exceeded the proper limits of judicial review. It made some general comments about the role of a reviewing court.
The majority (Brennan CJ, Toohey, McHugh and Gummow JJ) said:
'[T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.'24
Kirby J delivered a separate judgment. He said:
'The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.'25
In his judgment in Guo, Kirby J reiterated the comments of the majority in Wu Shan Liang quoted above.26
The significance of the High Court's warning in Wu Shan Liang goes beyond the immediate context of refugee law. It has been echoed by courts and tribunals in a range of contexts, including migration, native title, taxation, corporations, workers' compensation, criminal and discrimination law.27
The enthusiasm with which the High Court's comments have been adopted suggests that following Wu Shan Liang, decision-makers should feel more able to make decisions on the basis of their knowledge of the relevant facts without worrying that the language they use in their reasons will be reinterpreted by a court.
Even so, decision-makers should be aware of the qualifying remarks made by Kirby J in Wu Shan Liang and Guo. In Wu Shan Liang he said:
'[T]he reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision…. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.'28
Implications for Clients
The High Court's approach provides the basis for the following suggestions, which may prove useful for decision-makers not only in the area of refugee law but in other areas as well.
Satisfaction of the Decision-Maker
Where a decision-maker is required to base a decision on his or her subjective view of the facts, the decision can be reviewed by a court. However, the subjective nature of the decision may make the court more reluctant than it otherwise would be to find an error of law in the decision.
Examination of Reasons
The High Court has warned reviewing courts to avoid over-zealous scrutiny of the reasons given by decision-makers. The decision-maker's words should be given the meaning intended by the decision-maker, not the meaning that might be ascribed to them by a lawyer.
The warning acknowledges that the decision-maker will usually have advantages over a reviewing judge in evaluating evidence and submissions. Often the decision-maker will have experience in applying rules consistently and fairly to a wider range of people than come before the courts.29
The High Court's warning can be expected to lead to greater restraint on the part of reviewing courts generally. But decision-makers should be aware that people affected by their decisions still have the right to analyse their reasons closely to see whether they contain an error of law.
Refugee Law: Fear of Persecution
Decision-makers should apply the Convention term 'well-founded'. The real chance test should not be treated as replacing the language of the Convention but rather as an explanation of what it means. Decision-makers should bear in mind that a fear may be well-founded even if it is based on a less than 50% chance of persecution.
Decision-makers are entitled to make findings about past events when assessing the chance that a future event will take place. It is legitimate for a decision-maker to attribute weight to particular material when making findings about the past.
Decision-makers must not base their assessment of the chance of future persecution solely on their findings about past events. They must also consider what might happen in the future. Unless decision-makers have no real doubt that their findings about the past are correct, they must take into account the possibility that the findings are inaccurate.
1 A-G v Quin (1990) 170 CLR 1 at 35-36 per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272
2 (1989) 169 CLR 379
3 At present s.36 of the Migration Act 1958 provides for a class of visa known as a protection visa. To be successful an applicant for that visa must be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. These terms are defined by s.5 of the Act.
4 Chan (1989) 169 CLR 379 at 396
5 Chan (1989) 169 CLR 379 at 389, 398, 407 and 429
6 See Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375; Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432; Chen v Minister for Immigration and Ethnic Affairs (1995) 58 FCR 96; Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151.
7 The Federal Court's reasoning in this line of cases is described in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 278 to 280
8 (1996) 185 CLR 259
9 Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432
10 Wu Shan Liang (1996) 185 CLR 259 at 280 to 281 per Brennan CJ, Toohey, McHugh and Gummow JJ; at 288 per Kirby J
11 Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151
12 Unreported; High Court of Australia; 13 June 1997 (S151 and S152 of 1996)
13 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ
14 Guo, unreported; High Court of Australia; 13 June 1997 at paragraph 48
15 Guo at paragraph 57
16 Guo at paragraphs 59-61; cf Wu Shan Liang (1996) 185 CLR 259 at 293 per Kirby J
17 Wu Shan Liang (1996) 185 CLR 259 at 293 per Kirby J
18 Guo, unreported; High Court of Australia; 13 June 1997 at paragraph 48
19 Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 per Knox CJ at 67
20 See Wu Shan Liang (1996) 185 CLR 259 at 275
21 In Chan, the relevant administrative decision on refugee status had been made on application by the appellant for an entry permit under what was then s.6A(1)(c) of the Migration Act 1958. One of the circumstances in which the grant of a permanent entry permit was allowed was that the appellant was the holder of a temporary entry permit and 'the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention Relating to the Status of Refugees'. At the time of the administrative decisions in Wu Shan Liang and Guo, s.22AA of the Act provided that 'if the minister is satisfied that a person is a refugee, the minister may determine in writing that the person is a refugee'. The term 'refugee' was defined in s.4(1) of the Act as having the same meaning as in the Refugees Convention.
22 Wu Shan Liang (1996) 185 CLR 259 at 276
23 The High Court's comments in Wu Shan Liang regarding review of decisions having a subjective character have been discussed in several subsequent Federal Court cases, including ASC v Deloitte (1996) 138 ALR 655; Simplot Australia Pty Ltd (t/as Edgell-Birds Eye) v Nettlefold Anor (1996) 139 ALR 371; Ferriday v Repatriation Commission (unreported, Lee J, 17 September 1996); A1 and A2 v National Crime Authority Ors (unreported, Merkel J, 26 June 1996); Minister for Immigration, Local Government and Ethnic Affairs v Nguyen and RRT (unreported, Merkel J, 2 August 1996); Minister for Immigration and Multicultural Affairs v Jia Le Geng (unreported, Carr J, 29 December 1996).
24 Wu Shan Liang (1996) 185 CLR 259 at 272
25 Wu Shan Liang (1996) 185 CLR 259 at 291
26 Guo, unreported; High Court of Australia; 13 June 1997 at paragraph 112
27 See, for example, State of Western Australia v Bropho Ors (unreported, Lee J, 18 November 1996); Zeroz Pty Ltd v DFCT (1996) 96 ATC 4740; Australian Trade Commission v F and F Asia Pty Ltd (unreported, Carr J, 29 August 1996); Comcare v McGuire (unreported, Carr J, 7 August 1996); A1 and A2 v National Crime Authority Ors (unreported, Merkel J, 26 June 1996); Simplot Australia Pty Ltd (t/as Edgell-Birds Eye) v Nettlefold Anor (1996) 139 ALR 371.
28 Wu Shan Liang (1996) 185 CLR 259 at 291; see also Guo, unreported; High Court of Australia; 13 June 1997 at paragraph 112
29 Wu Shan Liang (1996) 185 CLR 259 at 292 per Kirby J
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