MIMA v Thiyagarajah

[1998] FCA 152

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…