Re Refugee Review Tribunal; Ex parte Aala

Facts

The applicant, a citizen of Guinea, sought a writ of prohibition in the High Court against the Refugee Review Tribunal after the Tribunal decided he was not a refugee. The Tribunal had received and relied upon information adverse to the applicant without giving him an opportunity to respond, thereby breaching the hearing rule of procedural fairness. The applicant contended that this breach warranted the issue of constitutional writs under s 75(v) of the Constitution.

Issues

1. Whether a breach of procedural fairness (the hearing rule) by the Refugee Review Tribunal constitutes jurisdictional error that enlivens the High Court's original jurisdiction under s 75(v) of the Constitution. 2. Whether the constitutional writs of prohibition and certiorari are available as a matter of right where jurisdictional error is established, or whether their grant remains discretionary.

Holding

The High Court held that the Tribunal's failure to afford the applicant an opportunity to respond to adverse information constituted a breach of procedural fairness amounting to jurisdictional error, and that prohibition should issue. The Court confirmed that the constitutional writs under s 75(v) are available as of right where jurisdictional error is made out, subject only to limited discretionary grounds for refusal.

Ratio decidendi

A denial of procedural fairness by an inferior court or tribunal constitutes jurisdictional error, and where such error is established, the High Court's jurisdiction under s 75(v) of the Constitution to grant prohibition or certiorari cannot be ousted by privative clause or statute; the writs issue as a matter of right save in exceptional circumstances where discretionary refusal is warranted.

Obiter dicta

Several justices observed that the constitutional guarantee in s 75(v) operates as a floor of judicial review that Parliament cannot remove, ensuring that officers of the Commonwealth remain subject to the rule of law. It was also noted that the discretion to refuse constitutional writs should be exercised very sparingly, and that mere delay or the availability of an alternative remedy will not ordinarily suffice to deny relief where jurisdictional error is established.

Significance

Re Refugee Review Tribunal; Ex parte Aala is a foundational authority in Australian administrative law confirming that procedural fairness breaches by Commonwealth tribunals constitute jurisdictional error and attract constitutional writs under s 75(v), thereby entrenching a non-excludable minimum of judicial review. The decision has been consistently applied in migration and administrative law to resist privative clause attempts to exclude curial review.

Key authorities

• Plaintiff S157/2002 v Commonwealth Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476cited
• R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208considered
• Craig v South Australia Craig v South Australia (1995) 184 CLR 163applied
• Kioa v West Kioa v West (1985) 159 CLR 550applied
• R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546considered
• Annetts v McCann Annetts v McCann (1990) 170 CLR 596applied
• R v War Crimes Tribunal; Ex parte von Luschan R v War Crimes Tribunal; Ex parte von Luschan (1946) 72 CLR 74considered