Legal Briefing No. 42

Number 42

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.

Notes

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

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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