Editors --- "Abebe v The Commonwealth - Case Note" [1999] AdminRw 17; (1999) 51 Admin Review 47

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Abebe v The Commonwealth

High Court, Full Court, 14 April 1999

[1999] HCA 14

Constitutionality of changes to the Migration Act

This case arose from a decision of the Refugee Review Tribunal ('RRT') not to grant refugee status to the applicant, Ms Abebe. The RRT had held that Abebe's credibility had been seriously undermined during the interview process through her continued lying to officials about her background.

Abebe sought judicial review of the RRT's decision in the Federal Court, on the grounds that she had been denied natural justice and that the decision of the RRT was 'unreasonable' (in the Wednesbury sense).

A single judge of the Federal Court heard the review application, but held that the grounds relied on by Abebe were no longer grounds for review in the Federal Court following amendments to the Migration Act 1958 ('Act'). The amendments severely limited the grounds on which the Federal Court could review migration decisions by declaring that the improper exercise of power did not include taking irrelevant considerations into account, failing to take relevant considerations into account, showing bad faith, a breach of natural justice, or decisions that were so unreasonable that no reasonable person could have made them. The judge consequently upheld the original decision by the RRT.

Abebe then applied to the High Court in its original jurisdiction for review of the RRT's decision. One of the issues raised by her application to the High Court was the constitutional validity of the amendments to the Act. This question was addressed by the Full Court of the High Court.

A majority of justices (Gleeson CJ, McHugh, Kirby, and Callinan JJ) determined that the Parliament had the constitutional power to restrict the Federal Court's jurisdiction and that, consequently, the amendments to the Act were valid.

The majority held that nothing in the Constitution required the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation. The Constitution, therefore, allows the Parliament to make laws defining the jurisdiction of any federal court. To hold otherwise, the majority said, would be to create problems for the administration of federal laws, and to restrict the ability of the Commonwealth to create specialist federal courts.

The High Court was unanimous in warning of the serious implications of the decision for judicial procedure and the workload of the High Court.

In effect, appeals based on those areas of judicial review precluded from the jurisdiction of the Federal Court by the Act, will now have to be taken directly to the High Court. Chief Justice Gleeson and Justice McHugh warned that the effect of the legislation would make judicial review in the migration area 'extremely inconvenient ... expensive and time-consuming'.

The Court was also unanimous in holding that the RRT had been entitled to dismiss Abebe's refugee claim on the ground that her evidence was unreliable.