Wang v Minister for Immigration & Multicultural Affairs

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT MERKEL J: 7 In this matter the Full Court ((2000) FCA 1599) allowed the appeal of the appellant and ordered that the matter be remitted to the Refugee Review Tribunal ("the RRT") to be determined in accordance with law. However, the Court also ordered that: "In the event there is a dispute over the constitution of the Refugee Review Tribunal that is to determine the matter the parties have liberty to apply on that issue." 8 In explaining my reasons for reserving liberty to apply in respect of the constitution of the RRT on the remittal I stated (at [112]) that, although the Court has power to direct that the matter be heard by a differently constituted RRT, that direction may not be appropriate in the present case as to do so might deprive the appellant of findings that were favourable to the outcome of his application. However, I desisted from directing that the matter be referred back to the RRT constituted by the member who made the decision the subject of the review, as I said that there might be circumstances, including a view by the appellant that that was not appropriate, that ought to be considered before that course is ordered. I concluded that in those circumstances it was appropriate to reserve liberty to apply on the issue of the constitution of the RRT that is to determine the outcome of the appellant's application for a protection visa. 9 Gray J at [27] was of the view that justice for the appellant can only be done by referring the matter back to the RRT constituted by the member who made the original decision. 10 Wilcox J at [11]-[12] agreed for the reasons stated by Gray J and myself that, in the particular circumstances of the case, it was not inappropriate for the matter to be determined, on remittal, by the RRT constituted by the member whose decision was under review. However, Wilcox J stated that as there may be some reason why the previous member cannot, or should not, deal with the matter it was appropriate to reserve liberty to the parties to apply on that issue in the event that there is a dispute over the constitution of the RRT that is to determine the matter. 11 The appellant applied to the RRT to have the matter relisted before the same RRT member who had heard his original application for review, but was informed by the Deputy Registrar of the Sydney Registry of the RRT that, because the appellant's address is in New South Wales, his case was being handled by the Sydney Registry of the RRT. He was also informed that the RRT was to be reconstituted by a member of the Sydney Registry rather than the original member, who was a member of the Melbourne Registry. 12 The appellant has applied to the Full Court, pursuant to the reserved liberty to apply for an order that the RRT be constituted by the same member who heard and determined the appellant's original application for review. The Court received submissions from the appellant and the Minister. In substance, the issues raised are whether the Court has power to make the order sought by the appellant and, if so, whether the Court should make that order in the exercise of its discretion in the present case. 13 The Court's powers on review of a judicially-reviewable decision of the RRT are set out in s 481(1) of the Migration Act 1958 (Cth) ("the Act") which, relevantly, provides: "On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the 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 to the Court thinks fit; (c) …" 14 In Kathiresan v Minister for Immigration and Multicultural Affairs [Federal Court of Australia, Gray J, 4 March 1998] at 13-14 and 19, Gray J expressed doubts as to the Court's jurisdiction under s 481(1)(b) of the Act to make an order referring the matter to which a decision under review relates, other than to the individual who made the decision. In Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 215-216 I concluded that when the context, scope and purpose of s 481(1) of the Act is considered, it is apparent that the "person" to whom the matter may be referred is a reference to the RRT or any other person or Tribunal required to make a decision under the Act or the regulations relating to visas. In substance, I expressed the view that s 481(1) conferred a broad power on the Court to make orders that were appropriate to meet the particular circumstances of the case. 15 In Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506 at [40] a Full Court said: "Setting aside a decision and directing a re-hearing before a differently constituted tribunal may be appropriate in some cases but, in others, orders under s 481(1)(a) and (b) setting a decision aside but remitting it with directions for additional findings may be sufficient. The relief that is appropriate in a particular case will depend on all the circumstances of the case, including whether adverse credit findings were made against the applicant: see generally Nguyen v Minister for Immigration (1998) 88 FCR 206 at 215-216." 16 The prevailing view in the Court is that it has power under s 481(1) to remit a matter with directions which include whether the matter should be heard by the same, or a differently constituted, RRT. Accordingly, I am satisfied that the Court has power to make the order sought by the appellant that the matter be heard by the RRT, as originally constituted, and not by a differently constituted RRT. 17 The remaining question is whether there is any reason why the Court should not order that the matter be heard by the originally constituted RRT. In the reasons for judgment of each of the members of the Court, to which I have referred above, the view was clearly expressed that the appellant was entitled to have the matter remitted to the originally constituted RRT, but two members of the Court favoured reserving liberty to apply in that regard on the basis that a reason why that was not an appropriate course may later emerge. 18 The Minister contends that that course ought not to be followed as to do so is an undue interference with the powers of the RRT to determine its own procedures, including the power of the Principal Member to determine, in accordance with ss 421 and 422A of the Act, the member who should reconstitute the RRT in a particular case. The Minister argued that no material has been put before the Court that would suggest, let alone establish, that the Principal Member had not exercised his functions properly in accordance with the Act in determining that the RRT ought to be reconstituted for the purpose of determining the matter remitted to it. 19 Section 421(2) confers power on the Principal Member to give a written direction as to who is to constitute the RRT in a particular case. Section 422A of the Act confers power on the Principal Member to direct that a member constituting the RRT for a particular review "be removed" and "another member constitute the RRT for the purposes of that review" if the Principal Member "thinks the reconstitution of the RRT is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1)". 20 Section 420(1) provides, inter alia, the RRT is "to pursue the objective of providing a mechanism of review that is fair, just, economic, informal and quick". Plainly, efficiency is not to be pursued at the expense of fairness or justice, yet that appears to be the approach taken by the RRT in the present case. All of the members of the Full Court expressed views to the general effect that it appeared to be fair and just that the RRT not be reconstituted. Without offering any real explanation to the appellant or the Full Court as to why a reconstitution was fair and just, the RRT, presumably by its Principal Member, determined that the RRT was to be reconstituted. The foregoing sequence of events suggests that the view might have been taken that it is more important that the RRT, which is the repository of Australia's international obligations concerning the fundamental human rights of asylum seekers, be "efficient" than it is to be "fair and just". Any such view has a Kafkaesque quality to it and is to be rejected: cf Inderjit Singh v The Minister for Immigration and Multicultural Affairs [2001] FCA 73 at [30]-[31]. 21 I need not pursue these issues further as the Minister's submission failed to meet the more fundamental point that the Full Court is not reviewing any decision of the Principal Member of the RRT. Rather, it is determining the issue in respect of which it reserved liberty to the parties to apply, namely the question of the constitution of the RRT in the event that there was a dispute over that matter. In the exercise of the discretion conferred upon the Court under s 481(1) of the Act, the Full Court reserved unto itself, and not the Principal Member, the power to direct whether the matter should be returned to the RRT constituted by the member who originally heard the matter or to a differently constituted RRT. The general powers reserved to the Principal Member under ss 421 and 422A of the Act in a particular matter are, plainly, subject to the specific powers of the Court, under s 481(1) of the Act, on review. As explained above, those powers include the power to direct whether a matter should be remitted to the same or a differently constituted RRT. 22 In the event that the Court determines that it is appropriate in the exercise of its discretion to remit the matter to the RRT that heard the matter originally, because it is in the interests of justice to do so, then (putting aside issues of unavailability etc) there is no power in the Principal Member to exercise a discretion to determine that a different course is to be followed. Accordingly, the issue is not whether the Court is interfering with the exercise of discretion of the Principal Member. Rather, it is whether the Principal Member is authorised under the Act to exercise a power in manner that is inconsistent, or in conflict, with an order of the Court under s 481(1). In that regard I am in no doubt that the Principal Member has no such power. 23 It is to be recalled that the decision of the original RRT was set aside by reason of errors of law and not by reason of any challenge to any of the factual findings made by it. Further, for the reasons set out in the reasons for judgment of each of the members of the Court, it seemed desirable that the same member re-hear the matter on the remittal. No valid reason has been put forward on behalf of the Minister as to why that should not occur. 24 Accordingly I regard it as appropriate to order that the matter be remitted to the RRT as originally constituted. The Minister should pay the appellant's taxed costs of the application in respect of the constitution of the RRT. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate: Dated: 8 May 2001 Counsel for the Appellant: JM Atkin

Solicitor for the Respondent: Australian Government Solicitor