MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND
VARATHARAJAH THIYAGARAJAH RESPONDENT
Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 2 March 2000 S200/1998
ORDER
Appeal allowed.
Set aside Orders 1, 2 and 3 of the orders made by the Full Court of the Federal Court of Australia on 4 March 1998 and in place thereof order that:
(a)the appeal to that Court be allowed;
(b)Orders 1 and 2 of the orders made by Emmett J on 3 March 1997 be set aside; and
(c)in place thereof the application for review be dismissed.
Appellant to pay the reasonable costs of the respondent in this Court, including costs of senior counsel.
On appeal from the Federal Court of Australia
Representation:
J Basten QC with N J Williams for the appellant (instructed by Australian Government Solicitor)
D F Jackson QC with E A Wilkins for the respondent (instructed by McDonells Solicitors)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Multicultural Affairs v Thiyagarajah
Administrative law – Judicial review of administrative decision – Error of law – Rejection of application for protection visa – Error must affect decision to affirm the refusal of grant of a protection visa – Refugee Review Tribunal made no error of law – Absence of power in RRT to reconsider its own decision by reason of later changed circumstances – Appeal against decision to affirm RRT's decision to refuse protection visa – Power of Federal Court to review decisions limited by Migration Act 1958 (Cth), s 476 – Power of applicant to seek second application for protection visa limited by ss 48A and 48B – Whether Federal Court has power under s 481 to refer matter to RRT for further consideration to take account of changed circumstances.
GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. This is an appeal from orders made by the Full Court of the Federal Court of Australia (von Doussa and Moore JJ; Sackville J dissenting)[1]. One effect of these orders was to dismiss an appeal by the Minister against so much of the orders made by the primary judge (Emmett J)[2] as set aside a decision of the Refugee Review Tribunal ("the Tribunal"). However, the Full Court had decided that the Tribunal had made no error of law, the ground of review relied upon. The Minister contends that, this being so, the Full Court should have allowed the appeal and, in place of the orders of the primary judge, dismissed the application to the Federal Court for review. At the hearing of the appeal in this Court, the respondent did not pursue a proposed notice of contention.
[1]Minister for Immigration and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9
Case
[2000] HCA 9
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Multicultural Affairs appealed to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia. The dispute concerned the Federal Court's power to review a decision of the Refugee Review Tribunal (RRT) to refuse a protection visa to the respondent, Mr Thiyagarajah, a citizen of Sri Lanka. The Full Court had allowed Mr Thiyagarajah's appeal from a decision of Emmett J, which had affirmed the RRT's refusal.
The primary legal issue before the High Court was whether the Full Court of the Federal Court had the power, under section 481 of the Migration Act 1958 (Cth), to refer the matter back to the RRT for further consideration, particularly in light of circumstances that may have changed after the RRT's original decision. This involved determining the scope of the Federal Court's appellate jurisdiction and its ability to make orders beyond simply affirming or setting aside the RRT's decision, especially when new factual circumstances arose.
The High Court allowed the Minister's appeal. It reasoned that the Full Court's power under section 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) was not unfettered and was confined by the subject matter of the proceedings. The Court held that the Full Court should have made the orders that could and should have been made at first instance. In this context, the Court found that the RRT had made no error of law in its decision. The Court also noted that the Migration Act itself limited an applicant's ability to seek a second application for a protection visa, and that the RRT did not have the power to reconsider its own decisions based on later changed circumstances.
Consequently, the High Court set aside the orders of the Full Court of the Federal Court and ordered that the appeal to that Court be allowed, with the original application for review being dismissed. The Minister was ordered to pay the reasonable costs of the respondent in the High Court.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside Orders 1, 2 and 3 of the orders made by the Full Court of the Federal Court of Australia on 4 March 1998 and in place thereof order that:
(a) the appeal to that Court be allowed;
(b) Orders 1 and 2 of the orders made by Emmett J on 3 March 1997 be set aside; and
(c) in place thereof the application for review be dismissed.
3.
Appellant to pay the reasonable costs of the respondent in this Court, including costs of senior counsel.
Background
Background to the litigation
The question in this appeal is whether the Full Court had power to do anything other than allow the appeal from the orders of Emmett J.Facts The respondent, who is a citizen of Sri Lanka, fled from that country to France. In France he was granted refugee status, issued with a Carte de Resident and a Titre de Voyage (together referred to as "French papers") which allowed him to travel in and out of France[33]. He and his family left France and came to Australia using the Titre de Voyage. He applied for a protection visa after his arrival in this country[34].[33]Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 546 per von Doussa J.[34]Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 545 per von Doussa J. It is not in issue that, when the Tribunal considered Mr Thiyagarajah's application, his French papers were then current. He was able to return to France and again take up residence in that country, although, at some stage, he would need to apply for a renewal of his French papers. It seems that, had he returned to France at that stage, he would have been entitled to have them renewed automatically[35]. However, they appear to have expired before his application for review was determined by Emmett J. His Honour was unable to determine whether they could then be renewed[36]. Similarly, the Full Court was unable to determine that question[37] and, for that reason, refused to allow the Minister's appeal and made the orders to which reference has been made.[35]Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 569 per von Doussa J.[36]Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 176 at 186 per Emmett J.[37]Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 569-570 per von Doussa J. Section 28(1) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") relevantly allows that, in the exercise of its appellate jurisdiction, that Court may:"(a) affirm, reverse or vary the judgment appealed from;(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order". The power conferred by s 28(1)(b) of the Act is not at large. It is confined by the subject-matter of the proceedings and the issues joined between the parties. Ordinarily, that has the consequence that, on appeal, the Federal Court can and should make those orders which, in its view, could and should have been made at first instance. At least that is so in the case of an appeal in the strict sense where the issue is simply whether the decision appealed from was or was not correct when given. It is not necessary to determine the precise nature of an appeal to the Full Court from a decision reviewing a decision of the Tribunal[38]. It is sufficient to proceed on the basis that it is an appeal in the strict sense. And on that basis, the critical issue is what order or orders could and should have been made at first instance. So far as that question is concerned, s 481(1) of the Act provides:" 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."[38]As to the different types of proceedings encompassed by the term "appeal", see Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298 per Glass JA; Wigg v Architects Board of South Australia (1984) 36 SASR 111 at 112-114 per Cox J; Clarke & Walker Pty Ltd v Secretary, Department of Industrial Relations (1985) 3 NSWLR 685 at 690-691 per Kirby P; Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234 at 249-250 per McHugh JA; ReColdham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 273-274 per Deane, Gaudron and McHugh JJ; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 84 IR 314 at 339-343. Note that s 27 of the Federal Court Act provides:" In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:(a)on affidavit; or(b)by video link, telephone or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or(c)by oral examination before the Court or a Judge; or(d)otherwise in accordance with section 46."The terms of that provision would suggest that appeals to the Full Federal Court are not confined to appeals in the strict sense.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW AND HAYNE JJ
(dissent)
GAUDRON J
(dissent)
When reviewing an administrative decision, a court is not simply exercising a supervisory function directed to determining whether, by reference to one or more of the permissible grounds of review, the decision was right or wrong. Rather, review proceedings are the mechanism by which the court gives effect to the underlying rights and duties of the parties, whether those rights and duties be procedural or substantial. So much appears from the terms of ss 481(1)(b) and (c) which, respectively, permit of orders "referring the matter to which the decision relates ... for further consideration" and "declaring the rights of the parties in respect of any matter to which the decision relates". Thus, when considering the orders that can and should be made under s 481(1) of the Act, it is necessary to identify the precise rights and duties which underlie the decision in question.The nature of the Tribunal's decision: underlying rights and duties It is not in issue that, in reviewing a decision under Pt 7 Div 2 of the Act, the Tribunal proceeds as though it were the original decision maker and, itself, determines those matters which are necessary for the decision[40]. Thus, in this case it was for the Tribunal to proceed in the manner required of the Minister, or, by s 496[41] of the Act, his delegate, when deciding whether or not to grant a protection visa.[40]Section 415.[41]Section 496 relevantly provides:"(1)The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act.(1A)The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister." By s 47(1) of the Act, the Minister is required "to consider a valid application for a visa." It is common ground that, in this case, the application was valid. Section 65(1)(a) provides that, after considering an application for a visa, the Minister if satisfied of various criteria, including the "criteria ... prescribed by [the] Act or the regulations ... is to grant the visa". By s 65(1)(b), the Minister, "if not so satisfied, is to refuse to grant the visa". The first matter which emerges from the combined operation of ss 47(1) and 65(1) of the Act is that the decision maker – relevantly, in this case, the Tribunal – had a duty to consider the application[42]. Correspondingly, Mr Thiyagarajah had a right to have it considered by the Tribunal. The second is that he had a right to have his application determined by reference to the Tribunal's and only the Tribunal's satisfaction or non-satisfaction with respect to the criteria specified in s 65(1)(a) of the Act. The third is that if the Tribunal was satisfied as to those matters, he had a right to obtain a protection visa; if it was not, the Tribunal had a duty to refuse it.[42]See s 414. It is common ground that the Tribunal was satisfied as to all criteria specified in s 65(1)(a) of the Act, except that "prescribed by [the] Act". In that regard, it was necessary for the Tribunal to consider and determine whether, in terms of s 36(2) of the Act, it was or was not satisfied that "the applicant ... [was] a non-citizen in Australia to whom Australia ha[d] protection obligations under the Refugees Convention as amended by the Refugees Protocol."[43] It is convenient to refer to that Convention and the Protocol together as "the Convention".[43]Section 36(2) states that this is "[a] criterion for a protection visa", and subclass 866.22 of Sched 2 of the Migration Regulations (Cth) adds the further criteria that the applicant has undergone a medical examination; has undergone a chest x-ray examination (unless under 16 years of age); satisfies public interest criteria 4001 to 4003; and that the Minister is satisfied that to grant a protection visa is in the national interest.The Convention and the Tribunal's consideration of the application
Ratio Decidendi
Legal Principle Established
Established by:
It is common ground that the Tribunal was satisfied as to all criteria specified in s 65(1)(a) of the Act, except that "prescribed by [the] Act". In that regard, it was necessary for the Tribunal to consider and determine whether, in terms of s 36(2) of the Act, it was or was not satisfied that "the applicant ... [was] a non-citizen in Australia to whom Australia ha[d] protection obligations under the Refugees Convention as amended by the Refugees Protocol."[43] It is convenient to refer to that Convention and the Protocol together as "the Convention".[43]Section 36(2) states that this is "[a] criterion for a protection visa", and subclass 866.22 of Sched 2 of the Migration Regulations (Cth) adds the further criteria that the applicant has undergone a medical examination; has undergone a chest x-ray examination (unless under 16 years of age); satisfies public interest criteria 4001 to 4003; and that the Minister is satisfied that to grant a protection visa is in the national interest.The Convention and the Tribunal's consideration of the application So far as is relevant to the Tribunal's decision, the Convention defines a refugee to include a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country"[44]. By Art 1E, the Convention does "not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country."[44]Article 1A(2). The Tribunal approached the question whether "Australia ha[d] protection obligations" to Mr Thiyagarajah by asking whether, by force of Art 1E, the Convention did not apply to him. The Tribunal considered that that Article did not require that the rights and obligations accorded by a country in which a refugee has taken up residence correspond precisely with those of its nationals. In particular, it was of the view that it did not require that the refugee have the same rights to work in the public service, enter certain professions or engage in certain business activities. However, the Tribunal considered that it did require that the refugee "have recourse to the authorities for protection against persecution". In this last regard, it found that "there [was] no real chance that the French authorities [were] unable or unwilling to provide such protection." The Full Court differed from the view taken by the Tribunal with respect to Art 1E of the Convention. It held[45] that that Article was to be construed in accordance with the decision in Barzideh v Minister for Immigration and Ethnic Affairs[46]. In that case Hill J held that Art 1E is not "rendered inapplicable merely because the person who has de facto national status does not have the political rights of a national ... [b]ut short of matters of a political kind ... the rights and obligations of which the Article speaks must mean all of those rights and obligations and not merely some of them."[47][45]Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 566 per von Doussa J.[46](1996) 69 FCR 417.[47](1996) 69 FCR 417 at 429.