Re Refugee Review Tribunal; Ex Parte Aala
[2000] HCA 57(Judgment by: Gleeson CJ)
Re Refugee Review Tribunal; Ex Parte Aala
Court:
Judges:
Gleeson CJGaudron J
Mchugh J
Gummow J
Kirby J
Hayne J
Callinan J
Subject References:
Immigration
Refugees
Review Tribunal
Failure to afford procedural fairness
Prosecutor de-nied opportunity to be heard on matters affecting credibility
Whether prosecutor denied possibility of a successful outcome
Administrative law
Constitutional writs
Nature of Constitutional writ of prohibition
Procedural fairness
Availability of writ of prohibition for failure to accord procedural fairness
Whether prohi-bition available as of right or by discretion
Whether application should be rejected due yto delay
Constitutional law
Construction of Constitution
Meaning to be given to words in s75(v)
Rele-vance of meaning at time of commencement of Constitution
Words and phrases
'a writ ... of prohibition', 'procedural fairness', 'prerogative writ'
Legislative References:
Constitution - s 75(iii); s 75(v)
Migration Act 1958 (Cth) - The Act
Case References:
-
Judgment date: 16 November 2000
Judgment by:
Gleeson CJ
[1] The facts, which are not in dispute, are set out in the reasons for judgment of other members of the Court.
[2] The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the Tribunal, there was a denial of procedural fairness, and, if so, whether the consequence is that prohibition should go under s75(v) of the Constitution.
[3] As to the first issue, the statement in question covered a matter which had a bearing upon the credibility of the prosecutor. It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct. Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility.
[4] It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding [1] . The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent mis-statement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal.
[5] I agree with what has been said by Gaudron and Gummow JJ as to availability of prohibition as a remedy, under s75(v) of the Constitution, in a case of denial of procedural fairness, and as to the discretionary nature of the remedy.
[6] I agree with the orders proposed by Gaudron and Gummow JJ.