Australia: The High Court's refugee swap decision: Beware the hidden jurisdictional fact

Clayton Utz Insights
Last Updated: 30 September 2011
Article by John Carroll

Key Points:

The High Court's decision expands the scope of what were traditionally thought to be jurisdictional facts.

The High Court's decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 attracted much media attention. While the case centred on the Government's refugee swap deal with Malaysia, the High Court's decision has important implications for administrative law and government administration more broadly.

What did the High Court say about jurisdictional facts?

A large part of the High Court's decision in Plaintiff M70 concerned the Minister for Immigration's declaration under section 198A(3) of the Migration Act 1958 (Cth) that Malaysia was, essentially, a safe country to send refugees. Section 198A(3) provides that the Minister may declare in writing that a specified country:

  • provides access to effective procedures for assessing refugee claims
  • provides protection for people seeking refugee status
  • provides protection to people who have been granted refugee status, and
  • meets relevant human rights standards in providing that protection.

Six members of the Court found that these four things were "jurisdictional facts". Five of the High Court judges found that the facts must actually exist before the power to issue a declaration was enlivened. The Chief Justice found that it was the Minister's satisfaction about the four matters which was the jurisdictional fact, not the matters themselves. What is important about the High Court's decision is the characterisation of the Minister's power to issue a declaration as being conditional upon the jurisdictional facts.

A jurisdictional fact normally arises where a statutory power is conditional upon something. For example, "An authorised officer may close a road if the road is dangerous." In this example, the road being dangerous is the jurisdictional fact; if the road is not dangerous, the officer has no power (or jurisdiction) to close the road. These are called "objective" jurisdictional facts.

Opinions or states of mind can also be jurisdictional facts, for example, "An authorised officer may close a road if the officer is of the opinion that the road is dangerous." It is the officer's opinion that is the jurisdictional fact; if the officer has not formed that opinion, the officer has no power to close the road. Jurisdictional facts of this type are called "subjective" jurisdictional facts.

On its face, section 198A(3) allows the Minister to make a declaration about certain things. It is not expressed as a power to make a declaration if certain things are true (or even if the Minister is satisfied about those things). However, the High Court found that they were indeed jurisdictional facts. It is an important finding because it signals that powers which were not previously thought to be conditioned by jurisdictional facts may now be.

What effect will the refugee swap case have on other judicial review cases?

It may take some years for the actual effect of Plaintiff M70 to be known. It is possible that, in time, the finding in relation to Plaintiff M70 will be confined to its own facts. That is, in later decisions, courts may attribute the finding that s 198A(3) contained jurisdictional facts to the particular circumstances in Plaintiff M70 (for instance, the non-refoulement obligations in the Refugee Convention).

In the meanwhile, however, jurisdictional fact challenges are likely to rise in reliance on Plaintiff M70. That, in turn, has implications for the way in which judicial review challenges are conducted. For objective jurisdictional facts, a court exercising judicial review can receive evidence and decide for itself whether or not the fact exists (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63).

For subjective jurisdictional facts, not only can a court determine whether the decision make in fact had the requisite state of mind, but the High Court has recently confirmed that a court can inquire into whether that state of mind was logically formed.

In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, a majority of the High Court found that illogicality is a ground of review for subjective jurisdictional facts. Justices Crennan and Bell held that "'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error means the decision ... is one at which no rational or logical decision-maker could arrive on the same evidence."

The High Court's decision in Plaintiff M70 warns against assuming a decision does not contain a jurisdictional fact. Agencies should therefore review their legislation and decision-making procedures to ensure that all jurisdictional facts are identified. Furthermore, SZMDS highlights the importance that findings of fact about jurisdictional matters are properly made.

Take out: what you need to know about Plaintiff M70

  • Jurisdictional facts are conditions which must exist before a statutory power is enlivened.
  • A majority of the High Court found that a power to make a declaration about certain things was actually a power to make a declaration if those certain things were correct.
  • The High Court's decision expands the scope of what were traditionally thought to be jurisdictional facts.
  • Agencies should examine their legislation and decision-making procedures to make sure decisions which have jurisdictional facts are identified, and that appropriate procedures are in place for making findings about those jurisdictional facts.

For further information, please contact John Carroll.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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