The Administrative Law of Australia

            The Administrative Law of Australia

Re Minister for Immigration and Multicultural Affairs; ex parte Miah was a landmark case in administration law. It was argued in that case that the principles of natural justice could not be excluded, while making any legislation. Thus, law – makers should take all care to give preference to the principle of natural justice. This can be excluded only under circumstances that specifically express an intention to exclude them. Thus, there should be the necessary intent to exclude the principles of natural justice. The case required the decision makers to respect the principles of natural justice. It also provided a legal basis to impose that requirement on administrators and decision makers. However, the High Court did not commit itself on this requirement[1].

This case was also concerned with other administrative issues. The reasons put forward by the administrator should not contain any errors and if such errors are found, then the degree of latitude to be given and to what extent is to be determined. In addition, the private clauses of statutes and their operability have to be determined. In particular, statutes that grant administrative power to the decision makers have to be dealt with very carefully. The level of discretion the courts can employ in refusing the grant of relief, under circumstances where the administrator has exceed his scope of operation was also discussed in this case[2].

It is incumbent upon decision makers to decide whether the evidence produced is important and this has to be done on a logical basis. The implication of this requirement is that the courts can appraise the subjective rationality of the evidence. Whether a review should be permitted on these grounds has long caused considerable aggravation. For instance, in Epeabaka v. Minister for Immigration and Multicultural Affairs the Full Federal Court ruled that the mere fact that the decision maker had not evaluated the evidence logically, could not invalidate the latter’s decision. In Re Minister for Immigration and Multicultural Affairs, guidelines Vis – a – Vis the extent to which earlier case law could be relied upon were not specified by the High Court. In fact, there was lack of unanimity in the Full Federal Court, as to whether such a ground could be relied upon. In this case, it becomes impossible to concede that the High Court had not scrutinized, whether the decision maker had not evaluated the evidence rationally.

The High Court held that the decision should not be illogical, irrational, or not based on findings or illogical inferences. Such decisions would be deemed to be unreasonable or to have been formed reasonably[3].

A decision maker must have substantial finding to take a decision. Such findings must be based on constructive evidence. The findings of the decision maker must have reasonableness and be in accordance with the evidence. Moreover, the decision maker must have believed that the evidence was essential for the decision made by him[4].

            The courts assess whether the decision maker had used his judgment and discretion in assessing the evidence. However, judicial review cannot be applied to decisions that are based on factual findings. This is because there is a possibility of arriving at a totally different outcome if the courts assess the legality of factual findings[5].

            Decision makers who arrive at contrasting finding are subject to judicial criticism. The Courts annul decisions by decision makers, if it finds that the decision maker had failed to understand the applicable law. In addition, if the wrong questions had been asked, while arriving at the decision, the court would render the decision null and void. Moreover, if the decision fails to meet the satisfaction of the state, then courts make it invalid. Furthermore, if  the decision maker is biased, the court invalidates his decision[6].

The ruling in this case is best explained by the principle of Wednesbury unreasonableness. This principle supplies a highly relevant and straightforward portrayal of the actual problem. The contention was that an examination of the evidence by any reasonable decision maker could not have resulted in such a finding of fact. It was also suggested that the decision maker had either wrongly assessed the question or had been prejudiced; and that such an inference was to be drawn by the court. Notwithstanding these contentions, the court ruled that the principle of Wednesbury unreasonableness was inapplicable to such situations. The court went on to clarify as to the instances where this principle could be employed, and held that the latter was applicable, only to the exercise of discretion. This precludes the use of this principle for contesting factual findings that were not transparent, in respect of the evidence under consideration[7].

Nevertheless, the implication is certainly not that immunity has been granted to such factual findings. The court infers, in instances where the factual finding ignores conclusive evidence, that the decision maker had either employed the incorrect legal test or had abstained from asking the correct question. Furthermore, the ruling in this case had specified that a decision maker should decide on the basis of factual findings, based on logical grounds; and this rendered it broad enough to include factual findings that were not reasonable from an objective point of view[8].

As such, this case permits the review of a decision taken by a decision maker, who had not treated the evidence before him in a reasonable manner. Such incorrect decision making is comparatively simpler to establish than attempting to demonstrate that the factual findings were not reasonably open. The import is that if there are sufficient defects in the decision maker’s ruling, then such a decision can be rescinded. In this case, one of the presiding judges had opined that although the decision had been depicted reasonable openness regarding the evidence, it clearly demonstrated that the decision maker had not considered the evidence rationally; hence it was to be deemed to be invalid[9].

In this case the applicant for refugee had contended that he had been persecuted. However, the evidence proffered by him during those occasions had suffered from contradictions. This led the Refugee Review Tribunal to reject his application, despite the presence of corroborative evidence from independent sources. The applicant contested this decision and argued that the issue under dispute should have been whether the evidence supported his credibility. He prevailed upon the court to take cognizance of the fact that the absence of credibility in him did not render the corroborative evidence worthless, because such evidence had not emanated from him[10].

Therefore, the tribunal should have deferred any conclusion about his credibility, till such time as it had not estimated the admissibility or otherwise of the corroborative evidence. However, the trial court, while agreeing to this contention, all the same held that this lapse on the part of the tribunal did not render its decision to be sufficient grounds for being subjected to a review. Moreover, the court held that the tribunal’s decision could be annulled, only if the latter defied reason and was not on the basis of the facts adduced. Furthermore, most of the judges presiding over this case, opined that the tribunal’s decision was not illogical. The line of reasoning adopted by the court was that it was possible for an applicant’s credibility to be so badly compromised that no amount of independent substantiating evidence could reinstate it[11].

The common law has not lost its capacity to create novel reasons justification for resorting to a judicial review; and this important fact is borne out by the decision in Re Minister for Immigration and Multicultural Affairs. The decision in this case served to reduce the scope of Wednesbury unreasonableness to just an evaluation of the manner in which the discretionary power had been employed. Furthermore, it established that the fact finding process could be reviewed if grave irrationality could be demonstrated[12].

Moreover, in this case, the question of procedural fairness was thrown up; and the High Court took cognizance of the fact that despite being assured of the obtention of additional information from a third party, no such information was procured about the applicant. Obviously, evenhandedness may be considerably compromised by what is stated or done during decision making. In addition, such effect may ensue from occurrences transpiring during such decision making, and this could also include representations regarding the modus operandi to be employed[13].

As such, unfairness is established if a decision maker communicates to an affected person, that additional arguments would be taken up regarding some issue, and then fails to do. However, the requirement is to establish injustice and not the mere departure from a representation. The fact remains that just because an expectation is not realized, due to a departure from a declared goal, it does not connote injustice. On occasion, procedural fairness may be extended, due to the presence of an expectation that is legitimate. The case under discussion, entailed a context, in which there was a compulsion to extend procedural fairness. Under such circumstances, the generation of an obligation to extend procedural fairness, could affect what that obligation was expected to consist of, from a practical point of view. Nevertheless, such expectation cannot substitute the requirement; and what is of consequence, is whether justice is inherent in the decision and not whether there has been a frustration of an expectation[14].

An administrative decision maker must not act ultra vires. Similarly, a decision maker should not rely on undisclosed material, while arriving at a decision. That undisclosed material must be made available to the relevant party, before taking a decision. This is because such undisclosed material may contain adverse information, which may affect the interests of that person, even though such information may be considered as relevant for the decision that is going to be taken[15].

            It is the duty of the decision maker to inform the concerned party about the important issue or subject that is to be the basis for taking the decision. This will provide an opportunity to that person to deal with such a decision[16]. An administrative decision – maker should not attempt to provide false information in an effort to mislead the pertinent person about the important issue that constitutes the basis for taking the decision. He should not attempt to mislead the parties either impliedly or expressly[17].

            An administrative decision maker has to adhere to his promise, which could be given either expressly or by implication. Similarly, a public decision maker must adopt a regular and consistent practice for taking decisions. He should not deviate from that adopted practice; because, such deviation or failure to uphold his promise could prove to be inequitable towards the concerned parties[18].

            Furthermore, an administrative decision maker must invariably follow the established practice, while taking decisions. If there is any change in the existing practice of taking a decision, he should inform the concerned party about such change. This will provide an opportunity to the affected person to submit a response to that changed policy. This will ensure that the concerned party is provided with an opportunity to object to such changes, if he so desires[19].

            An administrative decision maker has to inform the affected parties about the relevant issues that require him to take into consideration findings, which may not be in the interests of the affected parties. This applies to circumstances where there are no fixed issues or factors for taking decisions. Such information may provide the affected parties an opportunity to deal with the decision or to respond to it[20].

             Courts apply a rule of restraint to the decision makers. This restraint ensures that the decision maker has not acted beyond his jurisdiction, in taking the decision. The courts allow the decision maker to use judgment and experience, and the decision maker has to submit the reasons for excluding the requirements of natural justice. However, each and every statement submitted by the decision maker is not taken for granted. Moreover, separate justification is not required for every factual statement made by the decision maker. If any finding is regarded as contrasting to the decision taken, then the courts annul the decision, and render it invalid[21].

            Therefore, the finding must have been reasonably open on the evidence. Decision makers never arrive at a decision or take a decision without proper findings and findings lacking in evidence. The decision maker must assess the applicability and practicality of evidence, before taking a decision. Thus, the decision maker must use his discretion and judgment, while assessing the applicability of the evidence. The legislature has provided the power of taking decisions to the decision makers, by employing their judgment and discretion, and this constitutes the principal objective of the statute[22].

Bibliography

 Books

Matthew Groves, H.P. Lee, Cambridge University Press, Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 453. ISBN 052169797905

Peter Sutherland, John Ballard, Allan Anforth, Federation Press, Annotated Safety, Rehabilitation and Compensation Act 1988, (2007) 563. ISBN 1862876630

Case Law

Annets v McCann (1990) 170 CLR 596 at 601

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney General (NSW) v Quin (1990) 170 CLR 1

Muin v Refugee Review Tribunal (2002) 76 ALJR 966

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6

[1] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [2] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [3] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [4] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [5] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [6] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [7] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [8] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [9] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [10] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [11] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [12] Matthew Groves, H.P. Lee, Cambridge University Press, Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 453. ISBN 052169797905 [13] Peter Sutherland, John Ballard, Allan Anforth, Federation Press, Annotated Safety, Rehabilitation and Compensation Act 1988, (2007) 563. ISBN 1862876630 [14] Peter Sutherland, John Ballard, Allan Anforth, Federation Press, Annotated Safety, Rehabilitation and Compensation Act 1988, (2007) 563. ISBN 1862876630 [15] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 [16] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6 [17] Muin v Refugee Review Tribunal (2002) 76 ALJR 966 [18] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) HCA 6 [19] Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney General (NSW) v Quin (1990) 170 CLR 1 [20] Annets v McCann (1990) 170 CLR 596 at 601 [21] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59 [22] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant 520/2002 (2003) 198 ALR 59