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Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Administrative review, Judicial review, Privative Clauses Facts; The plaintiff was a Bangladeshi who arrived in Australia in 1997 and sought a protection Visa. This was refused by a delegate of the minister, and then on review by the refugee review tribunal. On appeal, the federal court found for the plaintiff, and remitted the matter to the refugee review tribunal, which again decided against the plaintiff. The plaintiff wish to appeal to the High Court on the basis that they had been a breach of procedural fairness. However, s474 of the Migration Act 1958 (Cth) purported to exclude judicial review of all privative clause decisions (which were defined as decisions of an administrative character… Made under this act uncovered the vast majority of decisions under the act). Further, section 486 a limited the timeframe during which applications to the High Court for a constitutional writ (For instance, a writ of certiorari quashing the decision) could be made. The plaintive apply to the High Court for a determination on whether subsection 474 and 486 a were invalid for precluding a constitutional right to judicial review.

Application; Once it is accepted, as it must be, that section 474 is to be construed conformably with chapter 3 of the Constitution, specifically, section 75, the expression decisions made under this act must be read so far as to refer decisions which involve neither a failure to exercise jurisdiction nor an access of the jurisdiction conferred by the act. Indeed so much is required as a matter of general principle.. This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all.” Thus, if there has been jurisdictional error because, for example, of failure to discharge imperative duties or to observe inviolable limitations or restraints their decision in question cannot properly be described in the terms used in section 474 (two) as a decision made under this act and is, thus, not a privative clause decision. Holding; The High Court found that neither section was invalid, because neither section applied to decisions involving jurisdictional error. Decisions involving jurisdictional error could not be privative clause decisions, because they were not in fact decisions made under the act. The plaintiffs right to apply to seek judicial review under section 75 (v) of the Constitution of a decision involving jurisdictional error, of which procedural fairness would be an example, still existed.


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