Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615 | Case summary

THE COURT ORDERS THAT: 1. The decision of the Migration Review Tribunal made on 8 December 2000, affirming the decision to require a security of $15,000 (for compliance with indicated conditions if a subclass 050 bridging visa were granted in respect of the application for a Bridging E (Class WE) visa, subclass 050 (General) made by the applicant on 25 November 2000), be set aside. 2. The decision of the Migration Review Tribunal made on 8 December 2000 affirming the decision to refuse the grant of a Bridging E (Class WE) visa, subclass 050 (General) to the applicant, be set aside. 3. The matter the subject of each of those decisions be referred to the Migration Review Tribunal differently constituted for further consideration according to law. 4. The respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

10 On 23 November 2000, whilst in immigration detention, Mr Suranga Tennakoon made an application for a Bridging E (Class WE) visa, subclass 050. On 27 November 2000, an authorised officer for the purposes of s 269 of the Act decided that it was necessary to require the payment of a security deposit and set the amount of the security deposit at $50,000. On the same day, a delegate of the Minister for Immigration and Multicultural Affairs (who, as it happened, was the authorised officer who had fixed the amount of the security) decided to refuse to grant the visa. On 29 November 2000, Mr Suranga Tennakoon lodged an application to the MRT for review of the decision to refuse to grant the visa. On 30 November 2000, he also lodged a separate application to the MRT for review of the decision to fix a security deposit of $50,000. 11 On 25 November 2000, whilst in immigration detention, Mr Kosala Tennakoon lodged an application for a Bridging E (Class WE) visa, subclass 050. On 28 November 2000, an authorised officer for the purposes of the Act decided that it was necessary to require the payment of a security deposit and set the amount at $15,000. On 28 November 2000, a delegate of the Minister for Immigration and Multicultural Affairs decided to refuse to grant the visa. On 30 November 2000, Mr Kosala Tennakoon lodged an application for review by the MRT of the decision to refuse to grant the visa. On 4 December 2000, he lodged a separate application to the MRT for review of the decision to require a security deposit in the sum of $15,000. 12 On 7 December 2000, the MRT conducted a hearing in respect of both of Mr Suranga Tennakoon's applications for review. On 8 December 2000, the MRT, constituted by the same senior member, conducted a hearing with respect to Mr Kosala Tennakoon's two applications for review. On 8 December 2000, the MRT made four decisions, each accompanied by written reasons. In respect of Mr Suranga Tennakoon's application for review of the decision to require a security of $50,000, the MRT's decision was: "The Tribunal remits the decision to require a security of $50,000 (for compliance with indicated conditions if a subclass 050 bridging visa were granted in respect of the application for a Bridging E (Class WE) visa subclass 050 (General) made by the visa applicant on 23 November 2000) to the Department of Immigration and Multicultural Affairs for reconsideration with a direction that a security of $20,000 be required for compliance with those conditions." 13 In relation to Mr Suranga Tennakoon's application for a bridging visa, the MRT affirmed the decision to refuse the grant of the visa. In relation to Mr Kosala Tennakoon, the MRT affirmed the decision to require a security of $15,000 for compliance with indicated conditions if a bridging visa were granted and affirmed the decision to refuse the grant of a bridging visa. (By virtue of amendments to the Migration Regulations made by the Migration Amendment Regulations 2000 (No. 7) (Cth), since 14 December 2000, reg 4.12(5) has provided that if a person applies for review by the MRT of a decision to which reg 4.02(4)(f) applies and a decision to refuse to grant a visa for which a security has been required, the applications for review by the MRT are taken to be combined. In other words, separate decisions in relation to the security and the refusal of the visa are no longer necessary.) 14 The two applications to the Court for the review of these four decisions were heard together. At the hearing, I granted leave to each applicant to amend his application, so as to make it clear that each applicant sought review of both decisions relating to him, and so as to clarify the grounds of review. (The original applications had been hand-written by the applicants and had obviously been made without legal advice or without an adequate understanding of the function of the Court pursuant to s 476 of the Migration Act.) The result was that each applicant invoked: the ground specified in s 476(1)(d) of the Migration Act, contending that each decision was an improper exercise of the power conferred by the Migration Act or the Migration Regulations; the ground specified in s 476(1)(e), that each decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found; and the ground specified in s 476(1)(a), that procedures that were required by the Act to be observed in connection with the making of the decision were not observed. 15 Section 348 of the Migration Act provides that, if an application is properly made under s 347 for a review of an MRT-reviewable decision, the MRT must review the decision. This obligation is imposed in terms similar to that imposed on the Refugee Review Tribunal by s 414(1) of the Migration Act. In Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, at [68] - [80], the Full Court expressed its view of the nature of the obligation imposed on that tribunal. In my view, the same conclusions should be reached as to the function of the MRT. The MRT must therefore conduct its review by way of a fresh hearing (called a hearing de novo in Allesch v Maunz [2000] HCA 40, (2000) 173 ALR 648, at [22] - [23] and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, (2000) 174 ALR 585 at [12] - [13]). The MRT must determine what was the correct or preferable decision on the material before it. It has an obligation to consider a valid application for a visa and to consider whether a security deposit should be required and, if so, in what amount. In the performance of this function, the MRT has, pursuant to s 349(1) of the Migration Act, all the powers and discretions that are conferred by the Migration Act on the person who made the decision. 16 The purpose for which an authorised officer may require and take security is indicated in the terms of s 269(1) of the Migration Act. In the context of the present case, the relevant purpose was to secure compliance with conditions imposed in pursuance of, or for the purposes of, the Migration Act or the Migration Regulations. In Mitrevski v Minister for Immigration & Multicultural Affairs [2001] FCA 221 at [8], Merkel J said: "The power to fix a security amount is a decision that affects the liberty of an individual. The fixing of an amount that is oppressive will necessarily result in the continued involuntary detention of an individual who has not been convicted of any offence. In such circumstances, caution should be exercised to ensure the amount fixed as security is reasonable in all the circumstances. In that regard it is to be noted that in O'Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 at 48 Mason, Murphy Brennan and Deane JJ observed that any statutory power: 'must be used bona fide for the purposes for which it was conferred and that involves that its exercise be not excessive in the circumstances of the case.'" If the power to fix the amount of a security is to be exercised for a proper purpose, it must be exercised with the facts of a particular case in mind. Since the purpose is to secure compliance with conditions to be attached to the grant of a visa, it is necessary for the decision-maker to know what those conditions are or will be. 17 To assist those making decisions, the Department of Immigration and Multicultural Affairs issues from time to time documents called Migration Series Instructions (abbreviated as MSI). MSI-294 contains guidelines for dealing with an application for a Bridging E visa (subclass 050). Par 3.3.5 of those guidelines relates to the requiring of a security under cl 050.224. The following are extracts from those guidelines: "For what reasons can a security be required? 3.3.5.3 A security serves to ensure compliance with specific visa conditions, primarily to ensure that a non-citizen maintains contact with the Department whilst pursuing a substantive visa application, or making arrangements to depart. That is, the decision maker is making an assessment about the risk of the applicant not maintaining contact with the department. What is the process for requiring a security? 3.3.5.4 In considering the application, decision-makers should consider, · the outcome of their determination of whether the applicant meets the requirements of clause 050.223 (Whether the applicant will abide by conditions); and, · whether the prospects of the applicant abiding by those conditions would be significantly enhanced if they were to lodge a financial security. … Refusal 3.3.5.5 Where the decision-maker is satisfied that the applicant would not comply with one or more of the conditions of the visa, irrespective of whether the applicant was requested to lodge a security, the applicant fails to meet clause 050.224. The decision-maker should proceed to refuse the visa. … Grant with conditions, security required 3.3.5.7 Where the decision-maker considers that the lodgement of a security is necessary in order for him/her to be satisfied that an applicant will abide by the conditions that the decision-maker proposes to impose on the visa, they should inform the applicant · of all the conditions that will be imposed on the applicant's visa if the visa is granted; and · that the decision-maker is not satisfied that the applicant would abide by these conditions without the lodgement of a security. (i) If the applicant agrees to the conditions, and pays the security, the applicant now meets clause 050.224, and the Bridging E visa may be granted. (ii) If the applicant had agreed with the conditions at the time when they were informed of them and indicated that a security would be lodged, but they fail to lodge it within the required period in which an application for a Bridging E visa must be decided, then the decision-maker should refuse the application. (iii) If the applicant refuses to lodge a security, the decision-maker must refuse the application. Section 74 provides that no further application for a Bridging E visa can be made for 30 days after the first application is finally determined, unless prescribed circumstances exist. These circumstances are, according to regulation 2.23, that the Minister is satisfied that the applicant now satisfies the criterion for grant. Therefore, if an applicant who had been refused only because they could not lodge the requested security subsequently was now able to do so, a new application could be allowed within the 30 day period. In these circumstances, the security should be lodged before the applicant is permitted to lodge his or her application. 3.3.5.8 The applicant (and any guarantor, if relevant) must be aware of all the conditions that are going to be imposed on the visa before the security is requested and the visa is granted. For that reason, decision-makers must not impose further conditions on the visa after the security is lodged. … What is the appropriate amount of a security? 3.3.5.10 There is no limit to the amount of security an officer may require from a Bridging E visa applicant. Decision makers should take into account what is reasonable in light of the individual and financial circumstances of the applicant. In addition, decision makers are instructed to consider the applicant's dealings with the Department when setting the bond. Hence, people who have demonstrated that they have breached migration law on a prior occasion(s) would expect to have a higher security requested. Applicants who would fall into this category would be those whose visas have been cancelled due to breach of conditions and those found working unlawfully. (Decision-makers should also read the section entitled Refusal earlier in this MSI). 3.3.5.11 The security requested should be sufficiently high to act as a strong incentive for compliance with any conditions imposed on the visa." 18 The scheme established by the provisions of the Migration Act and the Migration Regulations with respect to the requiring of security for a bridging visa ("the legislative scheme") requires various steps to be taken. As is recognised by the guidelines in MSI-294, for the scheme to operate in any sensible fashion, those steps need to be carried out in a logical order. The first step is that the decision-maker must decide what conditions will be appropriate to attach to the visa if it should be granted. Only when the conditions to be imposed are known will it be possible to determine whether security for compliance with them should be required. The decision-maker must then determine whether the applicant for a visa will abide by those conditions if no security is required. If the decision is that the applicant will abide by the conditions without the need for any security, then the criterion in subclause 050.223 will be satisfied and it will not be necessary to proceed to consider the question of a security. If not, the decision-maker must consider whether it will be necessary to provide for an incentive by way of security for compliance with the conditions. If the decision is that the applicant will not abide by the conditions in any event, then the decision-maker will refuse to grant a visa, because the criterion expressed in subclause 050.223 will not have been satisfied. Only if the decision-maker is of the view that it will be necessary to provide for an incentive by way of security for compliance with the conditions will it be necessary to consider whether a security is to be required and, if so, in what amount. Because these decisions can only be made by a person authorised by the Minister under s 269(1) of the Migration Act, it may be necessary for the decision-maker, if he or she is not an authorised officer, to invite an authorised officer to consider these matters. 19 In considering whether to require a security and the amount of any security to be required, the decision-maker will need to consider the nature of the conditions to be imposed. He or she will also need to consider the financial status of the applicant. To fix an amount of a security without reference to the financial circumstances of the particular applicant would not be an exercise of the power granted by s 269(1) for the purpose for which that power is given. This is recognised in par 3.3.5.10 of the guidelines in MSI-294. It is obvious that a failure to consider the financial circumstances of the individual applicant would be likely to result in the fixing of a security inappropriate to the particular applicant. The fixing of a trivial amount would not be expected to have a significant effect in securing compliance with conditions by a very wealthy applicant. On the other hand, the fixing of an amount well beyond the means of the particular applicant would inevitably result in the refusal of the application for a visa, because the applicant will be unable to satisfy the criterion in subclause 050.224, namely that the security has been lodged. Thus, the fixing of an arbitrary amount, without regard to the financial circumstances of the particular applicant, will not be an exercise of the power conferred by s 269(1). There may be other considerations which the decision-maker should take into account in determining whether to require a security and the amount of any security to be required. Par 3.3.5.10 of the guidelines in MSI-294 suggests that the previous record of an applicant in dealing with the Department of Immigration and Multicultural Affairs is one of these. As a matter of logic, it would be appropriate to require a higher amount of a security deposit from an applicant who has disregarded his or her obligations in the past. 20 The assessment of the amount of a security will obviously be a difficult decision. The relative weight to be given to the nature of the conditions to be imposed, the financial circumstances of the individual applicant and the individual applicant's record in relation to compliance with requirements under the Migration Act will be assessed differently by different decision-makers. The mere fact that a security deposit is set at an amount that appears to be high will not necessarily be an indication that the power to fix it has been misused. The conditions that will be imposed may be so stringent, and the applicant's previous record of compliance may be so bad that the decision-maker may feel constrained to fix an amount that the applicant is unable to be likely to meet, given his or her financial circumstances. The security deposit need not be readily affordable by the applicant in every instance. It must, however, be fixed by reference to the applicant's ability to lodge it. 21 If a decision is made to impose the security, and the amount of the security is fixed by an officer authorised under s 269(1), the officer considering whether to grant the visa must then determine whether, in the light of the determination of the conditions to be imposed, and in the light of the fact that a security has been required in the amount fixed, it is appropriate to grant the visa. In other words, the decision-maker must consider the matter again in the light of the criterion specified in subclause 050.223. The question for the decision-maker at this stage will be, having regard to the conditions to be imposed, and to the amount of the security fixed, is the decision-maker satisfied that the applicant will abide by the conditions? If so, the decision-maker must then proceed to consider the criterion in subclause 050.224, namely whether the security has been lodged. In considering this criterion, it is obvious that the decision-maker must be satisfied that the applicant has had an opportunity to lodge the security. In most cases, it will be necessary for the decision-maker to allow a reasonable time to elapse to see whether the security has been lodged. If this were not so, and the decision-maker were to proceed to a final decision immediately after the fixing of the security, every applicant for a visa for which a security was required for compliance with the conditions would fail on the ground that the security had not been lodged. Neither the parliament, nor the minister responsible for making the Migration Regulations can have intended to set up such an irrational system. The right afforded by the Migration Regulations to an applicant for a visa to lodge a security for compliance with conditions to be imposed must have been intended to be a real right. It can only be a real right if the applicant has an opportunity to find and lodge the security. It is possible that cases might arise in which an applicant, when invited to lodge a security, will make it clear that he or she will not do so, no matter how much time is allowed. A decision-maker may act upon such an indication. 22 It is apparent from this description of the process required to carry out the legislative scheme that it cannot be completed at one time. Indeed, it appears that it will rarely be possible for an application for a bridging visa to be determined in a single day, once the decision-maker is of the view that a security may be required. If that decision-maker is not also an authorised officer for the purposes of s 269(1) of the Migration Act, it will be necessary to refer the question whether a security should be required and, if so, in what amount, to such an officer. Even if the decision-maker also happens to be an authorised officer for the purposes of s 269(1), it will be necessary to provide to the visa applicant a reasonable opportunity to lodge the security. It will then be necessary to return the matter to the original decision-maker for consideration of the application for a visa against the criteria in subclauses 050.223 and 050.224. 23 Because the function of the MRT is to conduct a fresh hearing in relation to each decision, and because it exercises all the powers and discretions of the original decision-maker, it is plain that the MRT must follow the process which I have described, in order to give effect to the legislation. The need to follow the steps I have described may cause inconvenience in the conduct of the business of the MRT, because the process will usually not be completed without adjournment of the case. Convenience, however, cannot dictate the proper construction of the Migration Act and the Migration Regulations. 24 In these cases, the MRT acted properly in treating the decision to refuse a visa as a separate decision from the decision with respect to security in each case. In each case, however, it dealt with both decisions on the same day. In its statement of reasons in each of the decisions affirming the decision to refuse to grant a visa, the MRT made reference to the parallel application for review of the relevant decision relating to a security deposit. Beyond those mentions, the MRT seems to have treated each application with respect to the grant of a visa as a matter entirely separate from and unrelated to each application involving the security. As I have indicated, it is not possible to give effect to the legislative scheme by treating the matters entirely separately. 25 Counsel for the Minister for Immigration and Multicultural Affairs submitted that such separate treatment was appropriate. In her submission, if the MRT had reached the point of considering whether each applicant had satisfied the criterion laid down in subclause 050.224, namely that a required security had been lodged, it would have been appropriate for the MRT to consider that question on the basis that the security required by the original decision-maker had not been lodged and to determine the application accordingly. Such an approach would make the right to seek a review of the decision with respect to the security entirely illusory. The right to seek such a review is given specifically by reg 4.02(4)(f)(i). Once the right to seek review of a decision requiring a security has been exercised, the MRT cannot ignore the fact that it has been exercised and proceed to deal with its review of an application for a visa on the footing that a security required by a decision that is subject to review has not been paid. As I have said, the MRT is obliged itself to follow the steps to which I have referred, in order to make the legislative scheme effective. 26 In each of the present cases, the MRT did not follow the required steps. In each case, the MRT concluded that it was not satisfied that the applicant concerned would abide by a specified condition. In the case of Mr Suranga Tennakoon, the MRT was not satisfied that he would refrain from working. In the case of Mr Kosala Tennakoon, the MRT was not satisfied that he would report to the Department of Immigration and Multicultural Affairs as required. Because it was not satisfied in each case that the applicant concerned would abide by a specified condition, the MRT concluded that the applicant concerned could not satisfy the criterion specified in subclause 050.223. In view of this conclusion, the MRT took the view that there was no necessity for it to consider other criteria. It did not therefore consider whether any security had been lodged. 27 The flaw in this process of reasoning was that the MRT failed to ask itself the question whether the requirement of a security, if imposed, would have any effect on the likelihood that the applicant concerned would abide by the conditions. The MRT considered the question of compliance without any consideration of the question of security. This was so despite the fact that, in each case, a decision had been made to require a security and an amount had been fixed for each security, and that each such decision was also subject to review at the same time by the MRT constituted by the same senior member. In those circumstances, the MRT was obliged to consider whether requiring a security might assist in producing compliance with the proposed conditions. If it thought compliance might be made more likely by the requirement of a security, the MRT was then required to move to its review of the decision with respect to requiring a security and the amount of the security. Once that review was completed, the MRT was obliged to return to its review of the decision to refuse a visa and to consider, in the light of its decision in relation to a security and the amount of the security, whether the criterion in subclause 050.223 was satisfied. If it had considered the question of a security, and its amount, at the earlier stage, the MRT might have reached the conclusion that it would be possible to impose a requirement of a security in an appropriate amount that would, in its view, bring about compliance. By treating the visa application and the requirement of a security as entirely separate issues, the MRT denied itself the chance to consider the case in this way. 28 The MRT's decision in relation to the review of each of the security decisions was also the result of failure to follow the steps required to give effect to the legislative scheme. In its reasons for decision on Mr Suranga Tennakoon's application for review of the decision relating to the requirement of a security of $50,000, the MRT stated: "With the information available to the Tribunal concerning the financial and individual circumstances of the visa applicant, including his credibility and his dealings with the Department, the Tribunal considers that an appropriate amount for a security to act as a strong incentive for compliance with conditions is $20,000." The problem is that, at no time did the MRT make a finding as to what were the individual financial circumstances of Mr Suranga Tennakoon. 29 In its reasons for decision, the MRT recited evidence that Mr Suranga Tennakoon had become a 50 per cent partner in a cleaning business with Emmanuel Rapinett, which employed fifteen persons and that he had been able to buy into the partnership after selling his house in Sri Lanka, although he had not yet transferred the money to Australia. It referred to claims by Mr Rapinett that the applicant had not paid monthly amounts of $2,000 as required under the contract, and to the applicant's denial of those claims. It referred to an inconsistency between the applicant's denial that he had been working in the business, but was a shareholder only, and a previous admission that he had worked in the administration of the business. It referred to evidence of the applicant that he had taken out a loan of $3,000 to pay for the bond and rent on a house he was renting with his wife and her child, that his financial position was poor and he had only $500 in his bank account, that he was expecting further funds from his parents shortly and would be able to lodge his visa application with that money and that he had sold a property owned by his parents in Sri Lanka for about $100,000 but the proceeds of the sale were being sent in small amounts by his parents. It referred to evidence by the applicant that documents such as bank statements that would support his application were still at his property, which had now been taken over by an estate agent and he had nowhere to live. The MRT concluded that it did not find Mr Suranga Tennakoon to be a credible witness. It said that his responses to questions about his financial position were evasive and unconvincing. It referred to the fact that he was unable to produce documents to support his claims that his parents had sent him money, that he was repaying a bank loan, that he had been fulfilling his contractual obligations to Mr Rapinett for the business and that he had sold a house in Sri Lanka. 30 The MRT did not reach any conclusion about Mr Suranga Tennakoon's financial circumstances. It made no finding as to what those circumstances were. It merely recited the evidence and gave a general indication as to the lack of credibility of the principal witness. It did not state what specific parts of the evidence it accepted or rejected and it did not express a conclusion based on the evidence it accepted. It did not even say that the acceptable evidence did not permit it to make a finding, although to do so might have raised questions about the extent to which the MRT is obliged to act in an inquisitorial fashion. Despite its failure to make any finding, the MRT claimed to rely on the information available to it concerning "the financial and individual circumstances" of Mr Suranga Tennakoon, in fixing $20,000 as the appropriate amount for a security. 31 Similarly, in its reasons for decision relating to Mr Kosala Tennakoon's application for review of the security decision, the MRT said: "Taking the individual and financial circumstances of the matter into account, including the credibility of the visa applicant and his dealings with the Department, the Tribunal considers that an appropriate amount for a security is $15,000." In those reasons, the MRT referred to a denial by the applicant that he had been working in contravention of his visa conditions, and to his evidence that he had been supported by his brother Mr Suranga Tennakoon or from money sent by his mother in Sri Lanka. It referred to evidence from the applicant that he could provide a security of $2,500 that would be sought from his parents and should be available within several weeks. It referred to his evidence that his parents sent him about $700 each month for living expenses, that he had no assets and no access to other sources of funds such as friends or relatives and that his brother was in immigration detention and could not assist financially. The MRT said that it did not find the applicant to be a "convincing" witness. It pointed out that he was unable to produce documents to support his claims that his parents have sent him money, or that they would be in a position to send additional funds for the payment of a security deposit. It noted that the applicant had not informed his parents of his current circumstances, so that there was no guarantee that such funds would be offered. Again, the MRT made no finding as to the financial circumstances of the applicant. Despite its recitation to the effect that it was taking into account those circumstances, it could not do so, because it had not undertaken the task of determining what were the circumstances that it took into account. Nevertheless, it proceeded to decide that an appropriate amount for a security would be $15,000. 32 In the case of each decision relating to the fixing of an amount of a security, the MRT did not follow the steps to which I have referred as being necessary to make the legislative scheme effective. In each case, its choice of an appropriate amount for a security must be regarded as arbitrary, because it was fixed without reference to the individual financial circumstances of the applicant concerned. 33 In my view, by approaching the applicants' cases in the way it did, without following the steps necessary to give effect to the legislative scheme, the MRT did not observe procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of each of the decisions. Each of the applicants has therefore made good the ground specified in s 476(1)(a) of the Migration Act. I am also of the view that, in failing to make, or to express, findings as to the individual financial circumstances of each applicant in the reasons for its decisions relating to the requirement of security deposits, the MRT failed to comply with the requirements of subss 430(1)(b) and (c) of the Migration Act, in that it failed to set out the reasons for each decision and to set out its findings on a material question of fact in each case. In that sense also, the procedures required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed, and the ground referred to in s 476(1)(a) is made out. See Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845, (2000) 98 FCR 469. I am also of the view that the failure by the MRT to take the steps necessary to give effect to the legislative scheme constituted an error of law, in that the MRT misconceived its function in dealing with the related issues of the requirements of a security, the amount of a security and the consideration of the grant of a visa. The applicants have therefore succeeded in making out the ground in s 476(1)(e) of the Migration Act. 34 Counsel for the applicants also attempted to argue that each decision was an improper exercise of the power conferred by the Migration Act or the Migration Regulations, within the meaning of s 476(1)(d), in that it was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case, within the meaning of s 476(3)(c). I am not persuaded that this ground has been made out. In essence, the real complaint of counsel for the applicants was that the MRT had applied part, but not all, of the guidelines in MSI-294. If that were the case, it would not be sufficient to bring the matters within s 476(1)(d). 35 My conclusion that the applicants have made out grounds for challenging the validity of the decisions of the MRT means that I should make an order pursuant to s 481(1)(a) setting aside each of the decisions and an order pursuant to s 481(1)(b), referring the matter to which the decision relates to the person who made the decision for further consideration. This latter power has frequently been construed to permit the Court to make an order referring the matter back to the Refugee Review Tribunal, or to the MRT, as the case requires. The power of the Court to refer the matter back subject to such directions as the Court thinks fit, found in s 481(1)(b) is sufficient to entitle the Court to direct that the matter be heard afresh by a differently constituted tribunal. See Wang v Minister for Immigration & Multicultural Affairs [2001] FCA 448. Such a direction may be important in the administration of justice. Even where there is no suggestion that a tribunal has given anything other than impartial consideration to the issues before it, the reconstitution of the tribunal will avoid any apprehension that the tribunal will be motivated to appear to have performed its task correctly, whilst confirming the decision that it has already reached. 36 For these reasons, in each case there will be an order that each of the decisions the subject of the application for review be set aside and that the matter the subject of each such decision be referred to the MRT with a direction that it be dealt with by a differently constituted tribunal according to law. 37 It would be usual for the Court to make an order that the respondent pay each applicant's costs of the application. Counsel who appeared for both applicants was appointed to do so pursuant to O 80 of the Federal Court Rules, to assist the applicants and the Court in accordance with the scheme of referral for legal assistance. By O 80 r 9(1), ordinarily a legal practitioner who provides legal assistance to a litigant under that scheme must not seek or recover any professional fees or disbursements for the legal assistance. Order 80 r 9(2) provides, however, that if an order for costs is made in favour of a litigant who is assisted under the scheme, the legal practitioner who has provided the legal assistance is entitled to recover the amount of fees and disbursements that another party is required to pay under the order. In view of that provision, an order in the normal form with respect to costs is appropriate.

Tennakoon v Minister for Immigration & Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)

Cited By (5)