Minister for Immigration & Multicultural Affairs v Villa

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the RRT") under s 476 of the Migration Act 1958 (Cth) ("the Act"). 2 Prior to the hearing, I was informed that the parties had agreed that there was an error of law on the part of the decision-maker and that the matter should be remitted to the RRT for further consideration. 3 I was informed that the error of law said to have occurred was that the decision-maker had not considered whether the visa applicant had the opportunity to seek protection in Panama and whether Panama would provide protection from "refoulement" to Colombia. In substance, this was the only ground on which the application for an order of review was sought by the Minister. 4 When I asked the legal representative for the Minister to clarify the basis for the assertion that there had been an error of law, the only matter to which I was directed was the fact that the applicant had passed through Panama City for a short period, in the order of two weeks, after leaving Colombia and before entering Australia. It was said that the failure of the decision-maker to consider the question whether the applicant could have gained protection in Panama was an error of law. 5 Making orders by consent for the setting aside of a decision of the RRT is often an expedient and time saving procedure. However, the making of such orders requires the exercise of judicial power. Such orders are not an automatic rubber stamp or a matter of routine administration. The Court should exercise its power in such a matter in a judicial manner: see Xiao v Minister for Immigration and Multicultural Affairs [2001] FCA 459; Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557. Where a matter is remitted on the basis of an error of law, the nature of that error should be communicated to the RRT so that it can avoid repetition of the error. It is part of the role of the Court to provide guidance as to the relevant law and approach. This is the basis for the remittal of matters to the RRT for consideration "in accordance with law". In the present case, as I indicated to the parties, the basis for the assertion that there has been an error of law is somewhat meagre. However, I consider that the point raised is not so unarguable that it would be inappropriate for a decision-maker to consider the consequences of the short stay in Panama and, accordingly, I am prepared to set aside the decision to enable this question to be ventilated. 6 However, that is not the end of the matter. There was a live dispute between the parties in relation to the appropriate orders which ought to be made to achieve this purpose. The respondents submitted that the appropriate orders on remittal should be that: "1 The decision of the Refugee Review Tribunal be set aside. 2 The matter be remitted to that Tribunal as originally constituted. 3 The Refugee Review Tribunal consider and decide the sole issue of whether return of the respondents or any one of them to Panama would constitute a breach of Australia's obligations under Article 33 of the Refugees Convention. 4 The applicant pay the costs of the proceedings concerning the terms of the remitter to the Refugee Review Tribunal. 5 Otherwise, there be no order as to costs." 7 The applicant Minister contested the making of orders 2 and 3 in the terms set out above. 8 The powers of the Federal Court on an application for review of a judicially reviewable decision are set out in s 481(1) of the Act as follows: "481 Powers of the Federal Court (1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders: (a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties." 9 In relation to par 3 formulated by the respondents, the Minister submitted that if the decision is set aside it should be left to the RRT to make its own decision as to whether it will reconsider all issues or whether it limits the reconsideration to the specific issue which has been said to constitute an error of law. 10 It was not suggested that there is any error in the reasoning of the decision-maker apart from the failure to consider the discrete issue of whether deportation to Panama would constitute a breach of Australia's obligations under Art 33 of the Refugees Convention. 11 I do not accept the submission of the Minister because s 481(1)(a) provides that a Court may make an order setting aside part of a decision and, in my view, in the present case the appropriate course is to set aside only that part of the decision which is necessary to enable the agreed issue to be considered. It is not appropriate, in my view, to set aside any of the findings made by the RRT or to find that any part of the reasoning discloses any error except in so far as the new question has not been canvassed. Indeed, it was not suggested that there is any error in the findings which have been made on the issues considered by the RRT. In these circumstances, there is no legal barrier to the Court remitting the matter on a limited issue; namely, that raised in the application for review. 12 Reference was made to the decision of the Full Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 where the Full Court considered the effect of an order for remittal by a single Judge of the Court to the Administrative Appeals Tribunal. However, that case is distinguishable from the present case in that it turned on a difference as to interpretation of the order by the RRT which had been made by the Judge at first instance on an application for judicial review. The Court decided in that case that the Deputy President of the Administrative Appeals Tribunal had erred in considering that the RRT was bound to conduct a full re-hearing with further evidence when, on its true construction, the order did not require such a course to be taken: see, in particular, 82 FCR 374 at 387-390. 13 The second issue raised in the present case is whether the Court has power to remit the matter to the RRT as originally constituted and, if so, whether it is appropriate to do so. 14 Section 481(1)(b) confers, in express terms, power on the Court, on an application for review of a judicially reviewable decision, to make an order referring the matter to which the decision relates to the person who made the decision for further consideration. That is precisely what is sought in the present case by the respondent. There is no basis for reading down the clear language of s 481(1)(b). In terms, the provision is not made subject to any other provision of the Act. The prima facie indication is that it should go back to the actual decision-maker. The Full Court has held in Wang v Minister for Immigration and Multicultural Affairs [2001] FCA 448 that the Court has power to remit a matter on an application for judicial review to the RRT as originally constituted and also that, in the circumstances of that case, it was appropriate that such a course be adopted. In reaching that conclusion, Merkel J referred, at 4, to the requirement in s 420 of the Act that the RRT is to "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick" and that it "must act according to substantial justice and the merits of the case". 15 In the present case, the point raised is a discrete point which is additional to and distinct from the matters already considered. It does not involve reconsideration of the findings and conclusions reached in the decision under review. The decision-maker is familiar with the factual background and has already given detailed consideration to the circumstances surrounding the matter. It would clearly be more economical, informal and quick to have the additional matter considered by the original decision-maker. In addition, in circumstances where there is no attack made on the original reasoning or findings embodied in the decision, it is fair and just that these questions should not be re-canvassed, having regard to the obvious adverse impact and disturbance to the respondents in an alternative course being adopted in a situation such as the present where they have obtained favourable rulings from the RRT. 16 It was submitted for the applicant that remittal to the original decision-maker would cut across the discretion of the Principal Member under s 422A of the Act in relation to the conduct of the review. I am not convinced that it does so because that provision is not specifically concerned with remittal by the Court but with the constitution of the RRT for the purpose of review generally. In any event, the specific wording of s 481 is clear that where the Court thinks it appropriate in the case of remittal there is power to refer the matter to the person who made the decision. If the subsection had been intended to operate to permit remittal only to the RRT for general reassignment to such persons as the RRT thought fit, it might be expected that reference would have been made "to the RRT" rather than to "the person who made the decision". The general wording of s 422A should be read down in order to accommodate the more specific provisions of s 481: see Wangat 5. 17 For the reasons given above, I am satisfied that the appropriate orders in the present case are that: (1) The decision of the Refugee Review Tribunal be set aside but only insofar as it is necessary to enable consideration of the additional matter raised in the grounds for the order of review filed on 19 June 2001. (2) The matter be remitted to the person who made the decision for consideration of this additional question. (3) The applicant pay the costs of this proceeding concerning the terms of the remittal to the Refugee Review Tribunal.