Abebe v. Commonwealth; Minister for Immigration and Multicultural Affairs v. Eshetu - Of Fortress Australia and Castles in the Air: The High Court and the Judicial Review of Migration Decisions

Abstract:     
In April and May 1999 the High Court handed down rulings in two cases of some moment within the scheme of Australian federal administrative and constitutional law. Both involved non-citizens who had sought and been refused recognition as refugees. The cases are important because each tested the special regime established in 1994 for the judicial review of migration decisions by the Federal Court of Australia. This article begins by explaining a little of the background to the cases. It then details the legal matrix that was at the centre of the two actions. The article then looks sequentially at the two cases, studying first the constitutional issues and then the applications in the High Court's original jurisdiction. The author argues that the majority ruling in Abebe is unsustainable in the longer term and that the decision of the majority in Eshetu amounts to an unwarranted and unhealthy abdication of the curial function of overseeing the legality of administrative decision-making.

Keywords: administrative law, constitutional law, immigration, refugees, Federal Court of Australia, High Court of Australia

JEL Classifications: K10, K23, K30, K33

Accepted Paper Series