Minister for Immigration and Multicultural Affairs v Thiyagarajah

Minister for Immigration and Multicultural Affairs v Thiyagarajah - [2000] HCA 9 - HCA 2000 case summary — Zoe

[12]

GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. This is an appeal from orders made by the Full Court of the Federal Court of Australia (von Doussa and Moore JJ; Sackville J dissenting)[1]. One effect of these orders was to dismiss an appeal by the Minister against so much of the orders made by the primary judge (Emmett J)[2] as set aside a decision of the Refugee Review Tribunal ("the Tribunal"). However, the Full Court had decided that the Tribunal had made no error of law, the ground of review relied upon. The Minister contends that, this being so, the Full Court should have allowed the appeal and, in place of the orders of the primary judge, dismissed the application to the Federal Court for review. At the hearing of the appeal in this Court, the respondent did not pursue a proposed notice of contention.
The matter had come before the Federal Court on an application for review under Div 2 of Pt 8 (ss 475-486) of the Migration Act 1958 (Cth) ("the Act"). The Tribunal had been dealing under Div 2 of Pt 7 of the Act (ss 411-419) with one of the class which s 411(1) defines as "RRT-reviewable decisions". Section 414 obliged the Tribunal to review an RRT-reviewable decision if a valid application were made to it under s 412. The decision in the present case was that of a delegate of the Minister[3] on 11 October 1995 to refuse an application to grant to the respondent a protection visa (s 411(1)(c)). The wife and child of the respondent were included in the application. The Tribunal had upheld the refusal of the protection visa.
In addition to setting aside the Tribunal's decision, the primary judge ordered that the matter be remitted to the Tribunal for further consideration and decision according to law. The Full Court set aside that order and instead made an order (order 3) remitting the matter to the Tribunal with a direction that it consider "whether facts exist which … now impose protection obligations on Australia under the Refugees' Convention in relation to the respondent … his wife and child".
The ground of review relied upon by the respondent to attract the jurisdiction of the Federal Court had been that specified in par (e) of s 476(1) of the Act. This was:

[14]

In reasons for judgment delivered on 19 December 1997[4], von Doussa J, with whom Moore J and Sackville J agreed, had indicated a disposition to reinstate the decision of the Tribunal by orders allowing the appeal from Emmett J, setting aside his Honour's orders and in place thereof ordering that the application for judicial review be dismissed with costs[5].
However, the Full Court granted leave to the parties to make submissions as to the proposed orders and, after receipt of those submissions, the Full Court on 4 March 1998 delivered unreported supplementary reasons for judgment. The Full Court then, by majority, made the orders against which the Minister appeals to this Court.
The Minister submits that, in view of the grounds for decision of the Full Court delivered on 19 December 1997, that Court had no power to do other than allow the appeal and, in place of the orders made by the primary judge, to dismiss the application for an order of review.
It is necessary now to turn to the relevant facts. The respondent was born in Sri Lanka in 1955 and is of Tamil origin. He arrived in metropolitan France in May 1985 and in November 1988 was granted refugee status. Article 28 of the Convention Relating to the Status of Refugees ("the Convention")[6] obliges Contracting States to issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory. In 1990 the respondent went to India to marry his fiancée. They appear to have returned to France where they lived until December 1994. On 30 November 1994, the respondent obtained a visitor's visa from the Australian authorities in France. The visa was valid until 12 March 1995. The respondent, his wife and child arrived in Australia on 12 December 1994. The respondent's wife has two brothers in Australia.
The respondent disclosed in his application for an Australian protection visa dated 15 February 1995 that he held a French travel document issued on 2 October 1989 and valid until 1 December 1996. At the time of the decision of the Tribunal on 28 March 1996, the respondent also held a Carte de Resident issued by the French authorities. This was valid for 10 years, was automatically renewable and was equivalent to permanent residence. Having lived in France for more than five years, he was eligible to apply for French citizenship.
In the course of the hearing before the Tribunal, the respondent's solicitor had raised but not sought to answer by placing material before the Tribunal the question whether, if the travel document expired, his client would be able to obtain a replacement document.
The Tribunal found:

[50]

The effect of the orders in the Full Court supported by the majority, particularly order 3, was to oblige the Tribunal to enter upon and determine the factual inquiry as to whether protection obligations were "now" imposed upon Australia. The use of "now" leaves uncertain the identification of the time to which the facts were to speak, but it may be read as identifying the date on which the determination was to be made by the Tribunal. However, a bare determination that such obligations existed would not be an exercise of the powers conferred upon the Tribunal by the Act.
The "RRT-reviewable decision" in question was "a decision to refuse to grant a protection visa" (s 411(1)(c)). The Tribunal was empowered to exercise all the powers and discretions conferred by the Act upon the decision-maker (s 415(1)). Section 415(2) gave the Tribunal authority to deal in various ways with the decision of the Minister's delegate. The Tribunal might affirm or vary that decision, or set it aside and substitute a new decision. The decision as varied or substituted would be taken, except for the purpose of appeals from decisions of the Tribunal, to be a decision of the Minister (s 415(3)). Further, the Minister was empowered by s 417, in certain circumstances, to substitute for a decision of the Tribunal under s 415 another decision, more favourable to the applicant, whether the Tribunal had the power to make that other decision.
The Tribunal was enjoined not to purport to make decisions which were not authorised by the Act or the Regulations (s 415(4)). It was not empowered by the Act to deal with RRT-reviewable decisions solely by making findings as to matters upon which the decision depended and then go no further.
For order 3 made by the Full Court to be supported as a direction with which the Tribunal might properly comply, it must be understood as directing the Tribunal to act upon a finding to be made at the later date by either affirming, varying or setting aside the decision made by the delegate of the Minister on 11 October 1995. However, on 28 March 1996, the Tribunal had already affirmed that decision and the Full Court had held that the ground of review in the Federal Court, error of law, had not been made out. Order 2 of the orders of Emmett J remitting the matter to the Tribunal for further decision according to law was set aside by the Full Court.
Yet the Full Court dismissed the Minister's appeal against order 1 made by Emmett J. This order had set aside the decision of the Tribunal. The incongruous effect of the Full Court's order thus was to keep the Tribunal's decision on foot so as to provide subject-matter for further action for the Tribunal, where the Full Court had found no reviewable error by the Tribunal in respect of that decision.
Before the Tribunal the question whether protection obligations were owed by Australia had been determined by reference to facts found on 28 March 1996, when the Tribunal made its decision. This selection of the determinative date for fact-finding was in accordance with authority in the Full Court[20]. That authority fixed upon that date, not the earlier date of the application for a protection visa.
In the present case, von Doussa J correctly pointed out[21], with reference to the judgment in Chan v Minister for Immigration and Ethnic Affairs[22], the fallacy in the notion of "once a refugee always a refugee", because the circumstances giving rise to the obligation of protection may change. However, the Act posits the determination of a particular application at a particular time. The Act contemplates changed circumstances which might found a fresh application, but imposes the limitations found in ss 48A and 48B.
It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the Tribunal as provisional in nature. In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate made on 11 October 1995, the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.
The powers of the Federal Court under Div 2 of Pt 8 were exercisable in respect of applications made for review upon grounds limited to those spelled out in s 476. Upon the consequences of this state of affairs for the validity of Div 2 of Pt 8, this Court divided in Abebe v The Commonwealth[23]. The decision in that case establishes that, when an application fails and is dismissed, the Federal Court may exercise the power conferred by s 481(1) to make an order affirming the decision although the grounds upon which the application for review has been prosecuted are narrower than those in this Court under s 75(v) of the Constitution. The consequence is to deny any general proposition that proceedings for judicial review, at least under a structure provided by a law of the Commonwealth to which s 76(ii) of the Constitution applies to provide federal jurisdiction for that review, necessarily involve the giving of effect to the whole of the legal rights and duties of the parties. In any event, the Minister seeks no such order in the present case. The Minister seeks, in place of the orders made by the Full Court, no more than an order that the appeal to that Court be allowed and the application for review be dismissed.
Section 481 deals first with the orders which may be made by the Federal Court on an application for review of a judicially reviewable decision (s 481(1)) and then with the orders which may be made on an application for review in respect of a failure to make such a decision (s 481(2)) and, finally, empowers the Federal Court to revoke, vary or suspend the operation of any order made by it under the earlier sub-sections (s 481(3)). These provisions reflect the terms of sub-ss (1), (3) and (4) of s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). However, the rights conferred by the ADJR Act were stated by s 10 thereof to be additional to other rights. The ADJR Act plainly was designed to provide a more streamlined procedure for the obtaining of relief which was formerly available only by way of prerogative writ, injunction or declaration of right. The terms of s 16 should not be the subject of any narrow or restrictive construction[24]. On the other hand, with respect to Div 2 of Pt 8 of the Act, s 485 limits the jurisdiction of the Federal Court.
Section 481 of the Act must be read with the limitation upon the grounds of review imposed by s 476. In the present case, the sole ground of review put forward before Emmett J was that the decision of the Tribunal affirming the decision of the delegate to refuse the grant to the respondent, his wife and child of protection visas involved an error of law, being an error involving an incorrect interpretation of the Act or an incorrect application of it to the facts as found by the Tribunal (s 476(1)(e)). The situation before the Federal Court in this case thus has some affinity with that of appeals to the Federal Court on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act").
In Minister for Immigration and Ethnic Affairs v Gungor[25], the Full Court of the Federal Court considered s 44 of the AAT Act. The provisions thereof empowered the Federal Court to make such order as it thought appropriate by reason of its decision and to make an order remitting the case to be heard and decided again by the AAT, either with or without the hearing of further evidence and "in accordance with the directions of the Court". In Gungor, Sheppard J said of these provisions[26]:

[59]

In making order 3, the Full Court appears to have relied upon par (b) of s 481(1). This conferred a discretion upon the Full Court to make an order referring the matter to which the decision relates to the decision-maker for further consideration "subject to such directions as the Court thinks fit". Where the Federal Court has affirmed part of the decision and set aside another part of the decision, by orders supported by par (a) of s 481(1), the occasion may arise for an order of the nature spelled out in par (b). The more obvious case would arise where a decision is wholly quashed or set aside. But here the application for review should have been dismissed because the alleged error of law by the Tribunal in reaching its decision had not been made out. The decision of the Tribunal had not been one to be reached upon provisional or prospective findings of fact. The scheme of the Act was to the contrary. In those circumstances, there could be no case for the exercise of the discretion conferred by s 481(1) to make an order under par (b) of the nature made here by the Full Court.
No doubt the powers listed in s 481(1) fall to be exercised in a variety of circumstances but the relevant significance of this is that those circumstances, including the particular legislative framework in which the application for review is placed, will indicate the limits upon the exercise of those powers in the case in question. For example, where there exists a duty "which is unqualified by any discretionary judgment still remaining to be exercised"[28], an order under s 481(1)(d) might properly be made directing that that duty be performed. On the other hand, as is illustrated by Minister for Immigration and Ethnic Affairs v Guo[29], a declaration under s 481(1)(c) as to the present rights of the parties would not be appropriate where those rights would only arise upon the satisfaction of statutory conditions, including a determination by the Minister.
Here, for the reasons given by Sackville J and further outlined above, the Full Court fell into error in making the orders in question. The orders which on the findings of the Full Court should have been made were orders allowing the appeal, setting aside orders 1 and 2 of the orders of Emmett J and in place thereof dismissing the application for review. This Court should allow the appeal, set aside orders 1, 2 and 3 of the orders made by the Full Court and in place thereof substitute the above orders.
The Full Court ordered that there be no costs in the proceedings either at first instance before Emmett J or in the Full Court. Order 4 so provided. It was a term of the grant of special leave in this Court that in any event the Minister pay the reasonable costs of the respondent in this Court. Such a condition was not opposed by the Minister. In the circumstances, we would make the order foreshadowed by the special leave condition to allow the reasonable costs of the respondent in this Court, including costs of senior counsel. We would not disturb the position respecting costs established in the Full Court.
GAUDRON J. The respondent, Mr Thiyagarajah, applied for a protection visa under ss 36 and 45 of the Migration Act 1958 (Cth) ("the Act"). His application was considered by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") and refused. He thereupon applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision under s 412 of the Act. The Tribunal affirmed the delegate's decision. Pursuant to s 476, application was then made to the Federal Court of Australia for review of the Tribunal's decision. The application was allowed by Emmett J[30] and, so far as is presently relevant, his Honour made orders as follows:

[79]

It is not in issue that, in reviewing a decision under Pt 7 Div 2 of the Act, the Tribunal proceeds as though it were the original decision maker and, itself, determines those matters which are necessary for the decision[40]. Thus, in this case it was for the Tribunal to proceed in the manner required of the Minister, or, by s 496[41] of the Act, his delegate, when deciding whether or not to grant a protection visa.
By s 47(1) of the Act, the Minister is required "to consider a valid application for a visa." It is common ground that, in this case, the application was valid. Section 65(1)(a) provides that, after considering an application for a visa, the Minister if satisfied of various criteria, including the "criteria ... prescribed by [the] Act or the regulations ... is to grant the visa". By s 65(1)(b), the Minister, "if not so satisfied, is to refuse to grant the visa".
The first matter which emerges from the combined operation of ss 47(1) and 65(1) of the Act is that the decision maker - relevantly, in this case, the Tribunal - had a duty to consider the application[42]. Correspondingly, Mr Thiyagarajah had a right to have it considered by the Tribunal. The second is that he had a right to have his application determined by reference to the Tribunal's and only the Tribunal's satisfaction or non-satisfaction with respect to the criteria specified in s 65(1)(a) of the Act. The third is that if the Tribunal was satisfied as to those matters, he had a right to obtain a protection visa; if it was not, the Tribunal had a duty to refuse it.
It is common ground that the Tribunal was satisfied as to all criteria specified in s 65(1)(a) of the Act, except that "prescribed by [the] Act". In that regard, it was necessary for the Tribunal to consider and determine whether, in terms of s 36(2) of the Act, it was or was not satisfied that "the applicant ... [was] a non-citizen in Australia to whom Australia ha[d] protection obligations under the Refugees Convention as amended by the Refugees Protocol."[43] It is convenient to refer to that Convention and the Protocol together as "the Convention".

[84]

The Full Court noted that "the possible application of Art 33 was not in terms referred to by the [Tribunal]"[50]. In the view of the Full Court that was of no consequence because, in the context of Art 1E, the Tribunal had found that "there [was] no real chance that the French authorities [were] unable or unwilling to provide such protection"[51]. In essence, the Full Court was of the view that the appeal should be dismissed because, had the Tribunal considered Art 33, it would necessarily have concluded that Australia did not owe protection obligations to Mr Thiyagarajah.
Where an administrative decision maker has considered all relevant issues and made findings which permit of only one outcome but has failed to reach that decision, a court may, in an appropriate case, make orders giving effect to the decision that should have been made. Similarly, in an appropriate case, if fresh consideration would permit of only one decision, orders can be made giving effect to that decision[52]. It will be necessary later in these reasons to consider whether orders of that nature can be made where the decision in question depends on the satisfaction or non-satisfaction of the primary decision maker as to some particular matter or state of affairs.
Leaving aside any question that might arise when a decision depends on the satisfaction or non-satisfaction of the primary decision maker, it cannot be said, in this case, that fresh consideration of the visa application by the Tribunal by reference to the terms of Art 33 would permit of only one conclusion. That is because it is not now certain that Mr Thiyagarajah can return to France. The more difficult question is whether it can be said that the Tribunal considered all relevant issues - more precisely, in terms of s 47 of the Act, whether the Tribunal considered the visa application - and made findings which permitted of only one conclusion. In this regard, the Tribunal considered the factual question raised by Art 33, but did not consider the application of that Article.
As already indicated, the Full Court found that the Tribunal's decision involved an error of law. It was an error of law which, in the view of the Full Court, resulted in the Tribunal posing the wrong question with respect to Art 1E of the Convention. In proceedings for review under s 75(v) of the Constitution[53], an error of that kind would constitute a constructive failure to exercise jurisdiction[54]. Given that and given also that the Tribunal did not consider the application of Art 33, the better view, it appears to me, is that the Tribunal did not consider the visa application, as required by s 47 of the Act. Rather, it considered only part of that application.
Moreover and as already indicated, Mr Thiyagarajah had a right to have his application determined by reference to the satisfaction or non-satisfaction of the Tribunal with respect to the criteria for the grant of a protection visa. That raises a question as to the orders that may be made in review proceedings with respect to a decision which depends on the satisfaction or non-satisfaction of the primary decision maker. In this regard two distinct questions may emerge. The first is whether, although it is not so stated, the decision maker was, in fact, satisfied; the second is the hypothetical question whether he or she would have been or would be satisfied if the matter had been or were to be considered. Both questions were considered in Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation[55].
In Kolotex, a taxpayer's entitlement to deductions depended on the satisfaction of the Commissioner of Taxation as to certain matters. As to the question whether the Commissioner was, in fact, satisfied, Barwick CJ said[56]:

[96]

It must be taken, following Guo, that, in review proceedings, a court cannot make orders giving effect to rights which depend on the satisfaction of the primary decision maker even if he or she should be or should have been satisfied as to the matters upon which those rights depend. However, the present case is the obverse of Guo.
It seems to me that, where the primary decision maker was not, in fact, satisfied and could not properly be satisfied as to matters upon which rights depend and it is clear that there has been no material change with respect to those matters, a court may properly make orders giving effect to the decision under review. However, that is not to say that a court must make orders of that kind. Certainly, s 481(1) does not require that course for it is expressed in terms of what the Court "may, in its discretion", do.
What has been said above is premised on there being no material change with respect to the matters as to which the primary decision maker must be satisfied. If there were a material change of that kind, it would not, in my view, be open to a court to make orders giving effect to its view as to whether the primary decision maker would or would not be satisfied. That would be to proceed beyond judicial review and to exercise the powers conferred, not on the court, but on the primary decision maker.
Once it is accepted, as in my view it must be, that Mr Thiyagarajah was entitled to have his application considered by the Tribunal and determined by reference to its satisfaction or non-satisfaction with respect to the criteria specified in s 65 of the Act, it follows that the Full Court's finding that the Tribunal's decision involved reviewable error permitted it to return the matter to it for determination in accordance with law. Moreover, there was another factor in this case. There may have been a material change with respect to matters relevant to the Tribunal's satisfaction or non-satisfaction of the criteria specified in s 65. The Full Court was unable to determine whether or not that was so. In circumstances where the application had not been fully considered by the Tribunal and it could not be said that, on further consideration, the Tribunal could not properly be satisfied as to the matters it had to consider, it was not appropriate for the Full Court to make orders allowing the appeal and dismissing the application for judicial review. It follows that the Full Court's order was correct.
The correctness of the Full Court's order depends on its finding of reviewable error on the part of the Tribunal. Had there been no such finding, in my view, the Full Court would have been obliged to allow the appeal and dismiss the application. This follows from what was described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd as the "limited role of a court reviewing the exercise of an administrative discretion"[65]. In that case his Honour said[66], in relation to a discretionary decision:

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