Forming a belief and jurisdictional facts – M70

Subject: Preliminary views formed by decision makers and jurisdictional facts – when a decision maker has to form a view about something, can that view be reviewed by the court on an objective basis? – High Court – M70 – the Malaysia solution case

Case: M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32, High Court

Court: French CJ; Gummow, Hayne, Crennan and Bell JJ (maj); Heydon and Kiefel JJ.

Held: The Minister’s declaration under s 198A(3) of the Migration Act 1958 that Malaysia “provides protection for persons seeking asylum” was unlawful because Malaysian law did not recognise the status of refugees.

Quote: The criteria in s 198A(3)(a) “must be provided as a matter of legal obligation” (maj at [116]).  If criteria, being jurisdictional facts, did not exist, then it was not “open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)” (maj at [135]).

Quote: If an opinion is “based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened” (per French CJ at [59]).  The Minister did not find “any basis for his declaration in Malaysia’s international obligations or relevant domestic laws”, and the declaration was therefore “affected by jurisdictional error” (French CJ at [66], [68]).

Comment: Jurisdictional facts which include assessments by a decision-maker abound in administrative decision making.  The case of M70 contains important findings to the effect that such assessments must have an objective basis: these findings apply outside the migration jurisdiction.