MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND
JI DONG WANG RESPONDENT
Minister for Immigration and Multicultural Affairs v Wang
[2003] HCA 11
12 March 2003 S295/2001
ORDER
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court made on 3 April 2001 and, in their place, order that the application to that Court pursuant to the liberty reserved by the order of 10 November 2000 be dismissed.
On appeal from the Federal Court of Australia
Representation:
J Basten QC with N J Williams SC for the appellant (instructed by Australian Government Solicitor)
J T Gleeson SC with M R Speakman for the respondent (instructed by Stuart & Mills)
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 Wang
Immigration – Review – Refugee Review Tribunal – Orders made by Federal Court on application for review – Where Tribunal erred in law in making earlier decision – Power of Court to refer matter to Tribunal constituted by member who made earlier decision – Power of Court to give direction as to constitution of Tribunal – Proper considerations in exercise of such discretion – Whether direction in the interests of justice – Whether necessary to do justice to preserve Tribunal's findings of fact on first review.
Immigration – Review – Refugee Review Tribunal – Nature of proceedings before – How Tribunal in second hearing should regard findings of fact made in first hearing.
GLEESON CJ. The Full Court of the Federal Court, after allowing an appeal from a single judge of that Court, who had dismissed an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"), set aside the decision of the Tribunal and then ordered that the matter be remitted to the Tribunal as previously constituted. The appellant challenges the order as to the constitution of the Tribunal on the grounds of lack of power or, alternatively, error in the exercise of discretion.
The facts are set out in the reasons of Gummow and Hayne JJ. I will refer to them only to the extent necessary to explain my conclusion.
The power of deciding the constitution of the Tribunal for the purpose of a particular review proceeding was vested in the Principal Member of the Tribunal by the Migration Act 1958 (Cth) ("the Act"), (ss 420, 420A, 421, 422, 422A). It was the Principal Member who had the primary responsibility of deciding what was in the interests of the efficient conduct of the review. In the ordinary case, it would be the Principal Member who would be in possession of the information necessary for a proper discharge of that responsibility. The Principal Member allocates work among Tribunal members, is aware of…
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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AGLC
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11
Case
[2003] HCA 11
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 power of the Federal Court under section 481 of the Migration Act 1958 (Cth) to direct that a matter, previously decided by the Refugee Review Tribunal and subsequently remitted for review following a successful challenge, be heard by the Tribunal as previously constituted. The Minister contended that the Federal Court lacked such power or, alternatively, that the exercise of this discretion was erroneous.
The High Court was required to determine whether section 481 of the Migration Act conferred power on the Federal Court to order that a remitted matter be heard by the specific member of the Refugee Review Tribunal who made the original decision under review. It also had to consider, if such power existed, the proper considerations for its exercise, particularly whether directing the matter to the original Tribunal member was in the interests of justice and necessary to do justice, including preserving the Tribunal's findings of fact from the first review.
The High Court allowed the appeal, holding that the Federal Court did not have the power to make such a direction. The Court reasoned that while section 481 of the Act grants broad power to make appropriate orders on judicial review, it does not extend to dictating the specific constitution of the Tribunal for a remitted matter. The Court found that the Federal Court's previous orders, which directed the remittal to the Tribunal as previously constituted, were beyond its statutory authority.
Consequently, the High Court set aside the orders of the Full Court of the Federal Court made on 3 April 2001. In their place, the Court ordered that the application to the Federal Court, made pursuant to liberty reserved by an earlier order, be dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court made on 3 April 2001 and, in their place, order that the application to that Court pursuant to the liberty reserved by the order of 10 November 2000 be dismissed.
Background
Background to the litigation
The Minister for Immigration and Multicultural Affairs ("the Minister") appeals from a judgment of the Full Court of the Federal Court of Australia[60]. It upheld that Court's power under s 481 of the Migration Act 1958 (Cth) ("the Act") to order, or direct, that, following a successful challenge to a decision of the Refugee Review Tribunal ("the Tribunal"), the matter should be remitted for review to the Tribunal as previously constituted[61]. The Minister submits that the Federal Court had no power to so order. Alternatively, he contends that, if there was power, the order made represented an erroneous exercise of the discretion of the Federal Court.[60]Wang v Minister for Immigration and Multicultural Affairs (No 2) (2001) 108 FCR 167 ("Wang (No 2)"). See also Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 ("Wang (No 1)").[61]Order of the Full Court, 3 April 2001.The facts Mr Ji Dong Wang ("the respondent") is a national of the People's Republic of China. He arrived in Australia in 1997. He promptly applied for a protection visa as a refugee[62]. He asserted that he was unwilling to return to his country of nationality because of a well-founded fear of being persecuted for reasons of his religion[63]. A delegate of the Minister refused to grant such a visa. The respondent then sought review of that decision by the Tribunal. For the purpose of the review, the Tribunal was constituted by Ms Kerry Boland.[62]The Act, s 36. In particular, s 36(2) provided: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."[63]Art 1A(2) of the Refugees Convention. In conducting the review, in accordance with s 430 of the Act, the Tribunal was required to prepare a written statement setting out its decision, the reasons for the decision and the findings of any material questions of fact as well as providing references to the evidence or other material on which the findings were based. On 10 December 1999, Ms Boland's decision was handed down[64]. In accordance with the foregoing requirements, the written statement set out the respondent's claims and the evidence adduced before the Tribunal. It concluded with what were described as "findings and reasons".[64]The Act, ss 430A, 430B. Some of the findings, either expressly or implicitly, accepted a number of assertions that had been made by the respondent during the hearing. He had been closely questioned about his knowledge concerning Christianity and his claimed adherence to the Protestant faith[65]. Ms Boland concluded that the respondent's knowledge of the Bible and of the basic doctrines of Christianity was "rudimentary". Nonetheless, she accepted that, in following his religious practices in China, the respondent had been subject to a "stiff penalty", including detention on five occasions between December 1995 and October 1996 "because the authorities wanted him to stop attending unregistered religious meetings". Arguably, Ms Boland implicitly found that there was a real chance that the respondent would be persecuted if he continued to practise his religion in China otherwise than at registered churches approved, and monitored, by the Chinese government.[65]Re Ji Dong Wang, decision of the Refugee Review Tribunal, 10 December 1999.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HUGH J
GUMMOW AND HAYNE JJ
KIRBY J
A number of further letters to the Tribunal on the respondent's behalf requested that the matter be relisted before Ms Boland. Those letters were not answered. There was no suggestion that the Minister had urged a different view on the Tribunal. Subsequently, an application was made to the Full Court on 3 April 2001 pursuant to the liberty reserved by order 4 of the Full Court's orders. In the result, the Full Court added to its previous orders an order that "[t]he matter be remitted to the [Tribunal] as previously constituted for the [respondent's] application for review". It is from that supplementary order that, by special leave, the Minister has appealed to this Court.The two Full Court decisions The first Full Court decision: Because this appeal concerns the Full Court's power, and if there be power, the occasion of its exercise, it is unnecessary to examine much more of the Full Court's reasons about the substance of the respondent's challenge to the Tribunal's decision. In the second Full Court decision the judges, in response to arguments addressed to the points now in issue, stated their reasons for reserving their power and for their conclusion that it should be exercised in this case. In the first Full Court decision, each of the judges considered that an available (and in this instance the proper) course to be followed was for the application, when remitted to the Tribunal, to be determined by Ms Boland. Wilcox J agreed with Merkel J that "in the particular circumstances of this case" such a course was "not inappropriate" and indeed "desirable"[73]. Merkel J only desisted initially "from directing that the matter be referred back to the [Tribunal] constituted by the member who made the decision the subject of the review as there may be circumstances, including a view by the [respondent] that that was not appropriate, that ought to be considered before that course is ordered"[74]. Wilcox J was of the same view, saying that "there may be some reason, not known to us, why the previous member cannot, or should not, deal with the matter"[75].[73]Wang (No 1) (2000) 105 FCR 548 at 551 [11].[74]Wang (No 1) (2000) 105 FCR 548 at 571-572 [112].[75]Wang (No 1) (2000) 105 FCR 548 at 551 [12]. In an earlier case, Gray J had expressed a view that an order pursuant to s 481(1)(b) remitting the matter for further consideration had to be directed to the Tribunal member who made the original decision[76]. Within the Federal Court that opinion has not prevailed. The contrary opinion, expressed by Merkel J in Nguyen v Minister for Immigration and Multicultural Affairs[77], has been preferred. This was that s 481(1) of the Act was "intended to confer broad power on the [Federal] Court to make orders that are appropriate, in all the circumstances of the case, on an application for judicial review"[78]. In this case, in the first Full Court, Gray J accepted that s 481 empowered the Federal Court to make an order that a matter be remitted to the Tribunal, as distinct from the particular member who had made the original decision[79]. However, in his Honour's view in the particular case, "justice to the [respondent could] only be done" by "making an order referring the matter to which the decision relates to the [Tribunal] constituted by the member who made the decision set aside"[80].[76]Kathiresan v Minister for Immigration and Multicultural Affairs unreported, Federal Court of Australia, 4 March 1998 at 13-14, 19. This view was later adopted by Ryan J in Rajalingam v Minister for Immigration and Multicultural Affairs unreported, Federal Court of Australia, 14 September 1998 at 20. In his approach, Gray J accepted that directions could be given that, in a particular case, the Tribunal be constituted by a different member.[77](1998) 88 FCR 206 ("Nguyen") at 215-217. See also Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506 at 515-516 [40].[78](1998) 88 FCR 206 at 216.[79]Wang (No 1) (2000) 105 FCR 548 at 553 [23]. See also Wang (No 2) (2001) 108 FCR 167 at 168 [4].[80]Wang (No 1) (2000) 105 FCR 548 at 554 [27].
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HUGH J,
GUMMOW AND HAYNE JJ,
KIRBY J