Kapagama v Minister for Immigration & Multicultural Affairs

[1999] FCA 1881

FEDERAL COURT OF AUSTRALIA
Kapagama v Minister for Immigration & Multicultural Affairs [1999] FCA 1881

KAPAGAMA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 695 of 1999

WHITLAM J
SYDNEY
25 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 695  OF 1999

BETWEEN:	SUDESH KAPAGAMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	25 NOVEMBER 1999
WHERE MADE:	SYDNEY

BY CONSENT, THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal dated 25 June 1999 be set aside.

2.The matter be remitted to the Refugee Review Tribunal for reconsideration.

3.The respondent pay the reasonable costs of the applicant as agreed or assessed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 695  OF 1999

BETWEEN:	SUDESH KAPAGAMA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	25 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding involves an application under s 476 of the Migration Act 1958 ("the Act") for review of a decision of the Refugee Review Tribunal.  Prior to the date fixed for hearing the parties notified my Associate that they had settled the matter.  A minute signed by counsel for the applicant and by the solicitor for the respondent was sent to my chambers consenting to the making of an order in the following terms:

   "The Court orders, by consent, that:

   1.The decision of the Refugee Review Tribunal dated 25 June 1999 be set aside.

   2.The matter be remitted to the Refugee Review Tribunal, differently constituted, for reconsideration according to law.

   3.The respondent pay the reasonable costs of the Applicant as agreed or assessed."

2. Order 35, rule 10 of the Federal Court Rules permits a Judge sitting in chambers to direct the entry of consent orders without a hearing.  Through my Associate, I indicated to the parties that I was unwilling to make the order requested.

3. My concern was and is the phrase in paragraph 2 of the proposed order "according to law".  This is a time-honoured phrase used in a writ of mandamus.  Content is generally given to the command in such an order by reference to the reasons for judgment delivered when the order is made.  Ordinarily consent orders do not require reasons.

4. Mr Basten QC, who appears for the respondent, has urged me to make the order in the form requested.  However, very properly, he has drawn my attention to the unreported judgment of French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557, in which his Honour declined to make a similar order. Whilst I respectfully agree with what French J said at [13] about the "substantial discourtesy" that may be perceived in making such an order, my main objection is the lack of utility. If such a phrase as "according to law" is to be employed, not only is the Tribunal entitled to know where it went wrong, but more importantly what it is required to do. This is particularly so in the case of a body such as the Refugee Review Tribunal which is perforce facing a dynamic situation and will have to deal with any matter remitted on the facts as it finds them at the time of reconsideration.

5. Counsel on both sides have not resiled from submitting that I should make the order consented to in writing.  However, faced with my resistance to the specification in paragraph 2 (including the unexplained prescription that the Tribunal be "differently constituted"), they asked, in the alternative, that I make an order omitting the words that I regard as inappropriate.

6. Section 481(1) of the Act provides:

   " 481. (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."

7. Notwithstanding the parties' failure to record the basis upon which the matter is to be remitted, I am satisfied that the order I am prepared to make is within the powers given by pars (a) and (b) of s 481(1). Accordingly, by consent, I make the following order:

   1.The decision of the Refugee Review Tribunal dated 25 June 1999 be set aside.

   2.The matter be remitted to the Refugee Review Tribunal for reconsideration.

   3.The respondent pay the reasonable costs of the applicant as agreed or assessed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             25 November 1999

Counsel for the applicant:	D.D. Knoll
Counsel for the respondent:	John Basten QC
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	25 November 1999
Date of judgment:	25 November 1999