Alhila v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant applied under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal"). The applicant is a citizen of Syria who arrived in Australia on 10 October 2000 and has been in "immigration detention" since that date. He applied for a protection visa on 26 October 2000. Grant of the visa was refused by a delegate of the respondent ("the Minister") on 9 February 2001. The decision of the Minister was affirmed by the Tribunal on 16 May 2001. 2 It was not in issue that upon commencement of an application for review in this Court, the Court had jurisdiction in the matter pursuant to s 486 of the Act. In the exercise of the jurisdiction so conferred, the Court was empowered, under s 481 of the Act, with a discretion to make orders as set out in s 481, including an order setting aside the decision of the Tribunal. 3 The application came on for hearing on 30 October 2001. In the course of the hearing, as recorded in the transcript of the proceeding, it became apparent that it was arguable that the Tribunal had erred in the decision-making process it carried out under s 414 of the Act and that ground for review of the decision of the Tribunal could be established under s 476 of the Act. 4 At the end of the hearing on that day the matter stood adjourned "sine die" to permit the parties to take steps to adduce material not then before the Court relevant to the decision-making process undertaken by the Tribunal. 5 On 9 November 2001 the parties presented to the Court, pursuant to O 35 r 10 of the Federal Court Rules, a minute of consent orders pursuant to which the Court was asked to set aside the decision of the Tribunal and remit the matter to the Tribunal for re-determination "according to law", the respondent to pay the applicant's reasonable costs. The applicant was not represented by a legal practitioner. According to an affidavit filed by the Minister the applicant had signed the minute after the terms thereof had been interpreted to him by an interpreter in possession of a copy of the minute. 6 As noted above, at all times the Court has had jurisdiction in the matter. The only issue is whether the consent of the parties is sufficient to satisfy the Court that it should exercise the discretion to make an order under s 481 of the Act. The minute of consent is an acknowledgment by the parties that ground for review under s 476 would have been established if the trial of the proceeding had continued and that the parties were satisfied that the Court may, and should, exercise its discretion under s 481 of the Act. 7 In the circumstances described I am satisfied that such a concession is appropriate and that it is sufficient to enliven the power of the Court provided by s 481. I am also satisfied that it is proper to exercise that discretion in the manner sought by the parties. The Tribunal will have to decide the matter afresh, not restricted to the issue the parties agreed provided ground for review of the earlier decision of the Tribunal. In so far as it may assist the Tribunal, however, the basis on which the parties agreed that an order should be made that the Tribunal should re-determine the matter, may be identified by perusal of the transcript. 8 It is not necessary that a particular ground of review be recited in the order as a pre‑condition for the making of the order (See: Xiao v Minister for Immigration & Multicultural Affairs [2001] FCA 459; Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142; Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265; Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186). Similarly, it is not necessary that the court explain why a consent order has been made if it is apparent that the Court has jurisdiction in the matter and that the proposed order is within the power of the Court. It is sufficient that the Court be satisfied that it is appropriate that the order be made as requested by the parties. (Cf: Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674). 9 As noted earlier, the task of the Tribunal will be to determine the matter again but on circumstances as they exist at the time of the decision. In that regard there would appear to be no utility in providing a specific instruction to the Tribunal to reconsider the matter "according to law". Such an instruction may be misunderstood as a direction to address no more than the issues which constituted the ground at law on which the order for review was made. 10 I will make an order in terms of the minute save for deletion of the words "according to law". I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.