Qui v Minister for Immigration &Ethnic Affairs

BEAUMONT J: 1 Since publication of my reasons for judgment on 29 August 1995 the following has occurred in this matter: 2 The applicant's second further application was remitted to the Refugee Review Tribunal ("the Tribunal"), constituted by Roselyn Schmidt, for a third decision ("the third decision") and was again rejected on 1 April 1996. The applicant then applied for judicial review of the third decision. On 6 May 1997 Lindgren J refused that application. On 23 December 1997 the applicant then appealed to the Full Federal Court. Burchett and North JJ found that the third decision was affected by actual bias. Wilcox and Burchett JJ also found a breach of s 420 of the Migration Act 1958 (Cth) ("the Act"). The third decision was set aside and remitted for further hearing. Subsequently, the Minister exercised his power under s 417 of the Act and granted the applicant a visa. 3 The applicant now seeks an order for costs of the proceedings before me. The respondent opposed this, submitting instead that there should be no order made for the costs of those proceedings. 4 It is clear that, ordinarily, after a hearing on the merits, a successful party is entitled to his or her costs. However, in this case, the hearing was only part heard, the matter having been resolved by a supervening event, the Minister granting the applicant a visa. In these circumstances, the question is how costs should be allocated in the absence of a conclusive hearing on the merits. As I indicated in my earlier reasons, it was not necessary that I then express a concluded view. 5 It is common ground that the proper approach is to apply the principles laid down in Re Minister for Immigration and Multicultural Affairs; Ex parte Lai Qin (1997) 186 CLR 622. McHugh J there said (at 624): "The Court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided." 6 In situations where there has been no hearing on the merits, ordinarily no costs order is made for this reason. McHugh J referred to two exceptions to this general proposition. First, costs may be awarded if one party has acted so unreasonably as to compel the other party to have no reasonable alternative but to commence litigation (at 624-5). Secondly, if both parties have acted reasonably and it can be shown that one party was "almost certain" to have succeeded if the matter had been fully tried (at 625). 7 The applicant relies on the second exception. 8 As I indicated in the course of the present argument, the application of the second exception in Qin must depend upon my being persuaded that the recent High Court decisions in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 would not have affected my ultimate reasoning in any final decision given in the substantive proceedings. 9 The applicant submited that Wu and Guo did not affect the jurisprudence of this Court in that area. The applicant further submitted that those decisions related to the proper application of the Chan "real chance" test, in that "speculation" as to the future was necessarily required by the Tribunal. It was submitted that those decisions go no further than this. 10 I have difficulty accepting this. In my opinion, Wu and Guo do go further than simply affirming the necessity of "speculation" of the future when applying the Chan test. They also define the proper role of a court, specifically this Court, reviewing an administrative decision in refugee cases. 11 In Wu, Brennan CJ, Toohey, McHugh and Gummow JJ said (at 264): " … a decision which determines that 'refugee status' exists differs in nature and quality from one recording the satisfaction of the decision-maker that this is the case. The significance of the change in the legislative scheme since Chan appears to have been insufficiently appreciated by the Full Court." 12 Further the Court warned that "any court reviewing a decision upon refugee status must beware of turning a review of the reasons for a decision-maker upon proper principles into a reconsideration of the merits for the decision" (at 272) (see also per Kirby J at 291-2). 13 In Guo, this approach was confirmed. Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said (at 580): "The court expressed different views as to the question the tribunal should have addressed. To some extent , the judgments suggest that their Honours, with the encouragement of the present respondents, were influenced by their own views of the state of affairs in the PRC. As Mason CJ points out in Chan, this is to trespass into the forbidden field of review on the merits." 14 The decisions in Wu and Guo now define the scope of judicial review of administrative decision-making in applications for refugee status (see for example Sir Anthony Mason, "Life in Administrative Law Outside the ADJR Act" and Justice Ronald Sackville, "Commentary", Australian Institute of Administrative Law Seminar, 17 July 1996; Ronald S Huttner, "Judicial Review of Refugee Decisions: The High Court's Decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang" (1996) 3 (4) Australian Journal of Administrative Law 222). 15 Specifically, Wu qualifies the inference drawn from the attribution of weight formulations used consistently in previous judicial review decisions of this Court: "Greater weight is a relative term and, as such, admits of lesser weight. Giving greater weight to one matter indicates that less weight is being given to another. Lesser weight is not the equivalent of rejection." (at 280). 16 After Wu it cannot be said that the decision-maker's attribution of greater weight to one matter as against another is an incorrect application of the Chan test and hence subject to judicial review as an error of law (at 281). 17 In Wu, the majority said (at 263) that the "Full [Federal] Court… developed what appears to be a false line of authority as to the proper scope of judicial review in such cases". 18 In my earlier reasons I adopted the formulation of the Chan test as stated in the Full Federal Court decision in Wu. That approach necessarily involved a close analysis of the reasons for the Tribunal's decision and an assessment of the attribution of weight in respect of material placed before it. But that approach is no longer open in judicial review proceedings of refugee decisions. 19 The applicant submits that "[t]here can be little doubt that the separate question if answered finally would have been answered in favour of the applicant - the arguments were fully ventilated and there was no further argument or material favourable to the Minister which could have been put forward". 20 In the last paragraph of my reasons for judgment I expressed a "provisional view" that the first Tribunal decision was "arguably" unreasonable (at 51). I qualified this further by acknowledging that the matter was required to be remitted to the Tribunal for fresh consideration and, if necessary, the jurisdiction of this Court could be invoked in order for a final answer to be given to the separate question (at 56-7). This falls short of the standard of "almost certain" success which the applicant must meet. 21 In my earlier reasons I expressed concern that the proceedings were not remitted to the Tribunal for reconsideration prior to the matter coming before this Court for judicial review. The respondent consented to this course of action on 8 August 1995 in a directions hearing before Moore J. The applicant opposed this course of action. During that hearing the applicant claimed that the operation of s 416 would render reconsideration of the second decision a mere formality, and that the decision of the Tribunal would accordingly remain unchanged. 22 In my earlier decision, I mentioned that the Tribunal, as the specialist administrative tribunal, should undertake the resolution of the matter on the merits. I also noted that, in the event that the reconsideration of the second decision resulted in the application being rejected, this Court's jurisdiction to review the decision was unaffected. This would have been the preferable course of proceedings. The applicant opposed this course of action at a stage in the proceedings when it was appropriate for the matter to be reconsidered by the Tribunal. 23 In all these circumstances, I propose to make no order for the costs of the proceedings before me. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.