Minister for Immigration & Multicultural Affairs v Varatharajah Thiyagarajah [1998] FCA 152 (4 March 1998)

Last Updated: 5 March 1998

IN THE FULL COURT OF THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY	ng 221 OF 1997
BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant
AND:	VARATHARAJAH THIYAGARAJAH Respondent
JUDGES:	VON DOUSSA, MOORE & SACKVILLE JJ
DATE OF ORDER:	4 march 1998
WHERE MADE:	sydney

THE COURT ORDERS THAT:

1. The appeal against paragraph 1 of the orders of Emmett J made on 3 March 1997 which set aside the decision of the Refugee Review Tribunal made on 28 March 1996 is dismissed.

2. The orders in paragraph 2 and 3 of the said orders of Emmett J are set aside.

3. The matter is remitted to the Refugee Review Tribunal with a direction that the Tribunal consider whether facts exist which, in accordance with the principles referred to in the Reasons for Judgment of this Court published on 19 December 1997, now impose protection obligations on Australia under the Refugees' Convention in relation to the respondent, Varatharajah Thiyagarajah, his wife and child.

4. There be no order for costs either in the proceedings at first instance before Emmett J or in the Full Court of the Federal Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FULL COURT OF THE FEDERAL COURT OF AUSTRALIA new south wales district registry

ng 221 of 1997

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant
AND:	VARATHARAJAH THIYAGARAJAH Respondent

JUDGES:	VON DOUSSA, MOORE & SACKVILLE JJ
DATE:	4 march 1998
PLACE:	sydney

SUPPLEMENTARY REASONS FOR JUDGMENT

VON DOUSSA & MOORE JJ: The Court delivered Reasons for Judgement in this matter on 19 December 1997. Orders disposing of the appeal were not entered at the time. Liberty was granted to either party to file and serve written submissions as to the terms of the orders (including the order as to costs) proposed in the Reasons for Judgment, and to the other party to file and serve written submissions in reply.

The Reasons for Judgment of von Doussa J in which the other members of the Court agreed, subject to one qualification, proposed the following orders:

1. Appeal allowed.

2. Set aside the order of Emmett J made on 3 March 1997 and in lieu thereof order that the application for Judicial Review be dismissed with costs.

3. The respondent pay the costs of the appeal in the Full Court of the Federal Court.

The proposed order dismissing the application for Judicial Review would have the effect of reinstating the decision of the Refugee Review Tribunal ("the RRT") which affirmed the decision of a delegate of the appellant to refuse to grant the respondent and his wife and child protection visas.

The qualification to the proposed orders arose from comments made by Emmett J at first instance which suggested that the respondent's travel documents, issued by the French authorities, may have expired after the date of the decision of the RRT. The findings of the RRT relevant to the issue of whether the respondent presently has a right to return to France are canvassed in the Reasons of von Doussa J, who said at p 38:

"There is plainly insufficient material before this Court to determine whether the respondent's travel documents can or cannot now be renewed or whether, if Australia attempted to return the respondent to France, he would now face a danger of refoulement to Sri Lanka. The latter would seem highly unlikely, since France would continue to have obligations under Article 33 of the Convention. Nonetheless it is perhaps a possibility. Moreover, it would seem that the respondent is precluded by s 48A of the Act 1958 [the Migration Act 1958] from taking a further application for a protection visa, unless the Minister exercises the discretionary power conferred on him under s 48B to permit such an application to be made."

Pursuant to the liberty granted, counsel for the respondent has submitted that in lieu of the orders proposed, the Court should make the following orders:

1. The appeal be allowed.

2. The matter be remitted to the Refugee Review Tribunal to determine the questions of

(a) whether the applicant would be able to renew his Convention travel documents so as to be permitted to return to and live in France, and

(b) whether if he were able to return to and live in France, there is a real chance that he could be refouled to Sri Lanka.

3. The appellant and the respondent pay their own costs of the appeal in the Full Court of the Federal Court.

4. The applicant pay the costs of the matter heard and determined by Emmett J.

It is contended on the respondent's behalf that on the information adduced before the RRT the French authorities might not renew the respondent's travel documents, and that if Australia does not protect the respondent he could be without protection from refoulement. No new material has been placed before the Court. On the question of costs, the respondent submits that the case was in the nature of a test case, and the argument which succeeded before the Full Court was not advanced before Emmett J.

In reply, counsel for the appellant has submitted that it is not appropriate to remit the matter to the RRT to determine questions of fact that have arisen after its decision, where the RRT's decision is otherwise not attended by reviewable error; that the appeal should be allowed; and that the decision of the RRT should stand. It is submitted that unless the decision of the RRT is set aside it is functus officio. On the question of costs, whether the case is properly to be considered a test case or not, the appellant has submitted that as the respondent sought a personal benefit from the proceedings, the respondent should be ordered to pay the costs of the appeal to the Full Court. However, the appellant accepts that there should be no order for costs in favour of the appellant before Emmett J because the successful argument in the Full Court was not advanced at that stage.

The submissions of the parties do not provide this Court with any new material to establish whether the respondent's travel documents have in fact expired since the decision of the RRT, and if so whether they can or cannot be renewed. Nor do the submissions provide any additional material regarding the risk that the respondent might face a danger of refoulement to Sri Lanka if Australia attempted to return him to France. This Court is in no better position now than it was when the Reasons for Judgment were delivered to form a view on these matters. It is not appropriate for this Court to instigate further investigations about these factual questions, although they remain questions that need to be explored. It is therefore necessary that the appeal to this Court be disposed of by an order framed to enable the outstanding factual questions to be considered and determined.

As there may be substance in the qualification expressed to the orders proposed in the Reasons for Judgment of von Doussa J, the Court is not justified in now making those orders.

The power of the Full Court on an appeal from a single Judge who has heard and determined an application for review under s 476 of the Migration Act (Cth) arises under s 481 of that Act, and s 28 of the Federal Court of Australia Act 1976 (Cth). The power of the Federal Court under s 481(1) includes power to make 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.

On appeal from a single Judge, the Full Court is empowered by s 28(1)(b) of the Federal Court of Australia Act to "give such judgment, or make such order, as, in all the circumstances, it thinks fit...". This power is expressed in wide terms, and enables the Full Court to make any order that could have been made at first instance: see Watkins Ltd v Renata [1985] FCA 210; (1985) 8 FCR 65 at 73-74. This Court therefore has the power to refer "the matter to which the decision relates" back to the RRT for further consideration. The matter to which the decision relates is the claim by the respondent and his family for protection visas. Essential to the determination of that claim is the question whether the respondent and his family are non-citizens in Australia to whom Australia has protection obligations under the Refugees Convention: s 36(2) of the Migration Act. If the matter is remitted to the RRT for further consideration, of necessity the earlier decision of the RRT must be set aside so that, on further consideration, the RRT (in accordance with such directions as are contained in the order for remittal) can make a decision which gives effect to its further consideration.

The remittal of the matter to the RRT therefore requires that the substantive appeal to this Court be dismissed, although incidental orders made by Emmett J will need to be varied. On the main issue raised and considered on the appeal, the appellant was nevertheless successful, although the argument which succeeded had not been raised before Emmett J. In these circumstances we think that there should be no order for costs either in relation to the proceedings below or in this Court.

This Court should make the following orders to dispose of the appeal:

1. The appeal against paragraph 1 of the orders of Emmett J made on 3 March 1997 which set aside the decision of the Refugee Review Tribunal made on 28 March 1996 is dismissed.

2. The orders in paragraph 2 and 3 of the said orders of Emmett J are set aside.

3. The matter is remitted to the Refugee Review Tribunal with a direction that the Tribunal consider whether facts exist which, in accordance with the principles referred to in the Reasons for Judgment of this Court published on 19 December 1997, now impose protection obligations on Australia under the Refugees' Convention in relation to the respondent, Varatharajah Thiyagarajah, his wife and child.

4. There be no order for costs either in the proceedings at first instance before Emmett J or in the Full Court of the Federal Court.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa & Moore JJ

Associate:

Dated: 4 March 1998

IN THE FULL COURT OF THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY	NG 221 of 1997
BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	VARATHARAJAH THIYAGARAJAH Respondent
JUDGES:	VON DOUSSA, MOORE & SACKVILLE JJ
DATE OF ORDER:	4 MARCH, 1998
WHERE MADE:	SYDNEY

SUPPLEMENTARY REASONS FOR JUDGMENT

SACKVILLE J:

The judgment of von Doussa and Moore JJ explains the submissions received from the parties as to the nature of the orders that should be made in the proceedings. As the joint judgment points out, the submissions did not provide any further material clarifying the risk (if any) that the respondent might be sent to Sri Lanka, should Australia seek to return him to France. Nor did the submissions provide substantial assistance on the scope of the Court's powers to make orders by reason of circumstances arising after the Refugee Review Tribunal ("RRT") made its decision.

The application before the primary Judge was to review the decision of the RRT, made on 28 March 1996. The application for review was brought pursuant to s 475(1)(b) of the Migration Act 1958 (Cth) ("Migration Act 1976 "), which provides that decisions of the RRT are "judicially-reviewable decisions". The ground relied on by the present respondent ("Mr Thiyagarajah") was that the RRT had committed errors of law: Migration Act, s 476(1)(e). Section 481(1) of the Migration Act provides that, on an application for review of a judicially-reviewable decision, the 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."

The RRT found that Mr Thiyagarajah, his wife and child were not persons to whom Australia had protection obligations under the Convention Relating to the Status of Refugees ("Convention"). At the time the RRT made its decision, Mr Thiyagarajah's travel documents had not expired and there was no question that he could return to France without danger of refoulement to Sri Lanka. However, according to documents in the Appeal Book which were before the primary Judge, Mr Thiyagarajah's travel documents expired on 1 December 1996.

The application for review of the RRT's decision was filed on 26 April 1996 and heard on 7 February 1997. Judgment was delivered on 3 March 1997. The primary Judge ordered that the decision of the RRT be set aside and that the matter be remitted to the RRT for further consideration and decision according to law. His Honour referred to the apparent expiry of Mr Thiyagarajah's travel documents only in passing.

If the orders made by the primary Judge remain on foot, the RRT would be seized of Mr Thiyagarajah's application to review the decision of the delegate to reject his application for a Protection Visa (866). It is now established that the critical time to determine whether the person claiming refugee status has a well-founded fear of persecution if he or she is returned to the country of nationality or (as in this case) of refuge, is the time at which the decision is made: Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191 (FCA/FC). As the five member Court said (at 194):

"The fear is not a fear in the abstract, but a fear owing to which the applicant is unwilling to return, and thus it must exist at the time the question of return arises, namely at the time the decision is made whether the applicant is a refugee".

In these proceedings, the judgment of von Doussa J, with which Moore J and I agreed, held that the decision of the RRT was correct, although the decision was arrived at for different reasons. As von Doussa J pointed out (at 36) the case was similar to Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, where the High Court held (at 580-581) that the RRT, although not posing the questions in the way the High Court considered appropriate, nonetheless made findings that answered those questions. Accordingly, since the RRT "did ask itself and decide the real question in the case", the Minister's appeal to the High Court from the orders of the Full Court of this Court setting aside the RRT's determination succeeded. The High Court (at 582, 600) made orders setting aside the orders of the Full Court and dismissing the appeal to that Court from the primary Judge. These orders left in place the decision of the RRT, which affirmed decisions of the Minister's delegate refusing refugee status to the respondents in the High Court.

But for the apparent expiry of Mr Thiyagarajah's travel documents after the RRT's decision in the present case, I think it clear that the appropriate orders (leaving aside the question of costs) would be those foreshadowed by von Doussa J, namely:

1. Appeal allowed.

2. Set aside the order of Emmett J made on 3 March 1997 and in lieu thereof order that the application for judicial review be dismissed with costs.

Mr Thiyagarajah submits that these orders should be varied so as to reopen the matter before the RRT, thereby allowing it to take account of developments after its decision, in particular the expiry of his travel documents. In considering this submission it must be remembered that there is no basis in the Migration Act (or under any other legislation or under the common law) for setting aside the RRT's decision. In my view, whatever the scope of s 481 of the Migration Act, it is not an appropriate exercise of the Court's powers under that section to set aside a decision of the RRT, otherwise unchallengeable, solely for the purpose of allowing the RRT to take into account developments that have occurred since the date of the RRT's decision. The powers conferred by s 481 arise on "an application for review of a judicially-reviewable decision". In exercising those discretionary powers, the Court must take account of the outcome of the very application which enlivens the discretion in the first place. I do not think that, in exercising the powers conferred by s 481(1), the Court is entitled to take account of circumstances quite extraneous to the application for review. Nor do I think that s 28(1)(b) of the Federal Court of Australia Act (Cth) changes the position.

If there is any potential injustice in this case (a question on which there is insufficient information to make any judgment), it arises from s 48A of the Migration Act, which prevents Mr Thiyagarajah from making a further application for a protection visa, unless the Minister thinks it is in the public interest to exercise the power conferred by s 48B. I do not think it appropriate to attempt to ameliorate possible injustice flowing from s 48A by remitting a matter to the RRT under s 481(1) for reasons unconnected with the grounds of the application to review the RRT's decision.

I agree with von Doussa and Moore JJ that there should be no order for costs either in the proceedings at first instance or in the Full Court.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated: 4 March, 1998

Counsel for the Appellant:	Mr J Basten QC with Mr N J Williams and Mr T Reilly
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr S C Churches
Solicitor for the Respondent:	McDonells
Date of Hearing:	8 September 1997
Date of Judgment:	4 March, 1998