Nguyen v MIMA

[1998] FCA 1307

MINH QUANG NGUYEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. VG 724 of 1997
FED No. 1307/98
Number of pages - 11
Immigration
(1998) 158 ALR 639

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

MERKEL J

Immigration - Review of decision of Immigration Review Tribunal - Application for Preferential Relative (Migrant) Visa - whether a visa applicant is an 'orphan relative' by reason of his mother being 'permanently incapacitated' from caring for him - whether 'permanently incapacitated' is confined to physical or mental impairment - whether the decision involved an error of law - circumstances in which a court might exercise its discretion not to refer matter back for rehearing - whether Court is to refer matter back to the tribunal or to the individual who made the decision under review

Words And Phrases - "permanently incapacitated" - "person"

Migration Act 1958 (Cth) ss 476(1)(e), 481(1)(b)

Migration Regulations (Cth) Reg 1.14

Chen v Minister for Immigration (1992) 37 FCR 501 - distinguished

Rahim v Minister for Immigration (1997) 78 FCR 232 - considered

Yuk Shan Cheung v Minister for Immigration (Federal Court of Australia, Einfeld J, 27 October 1997) - cited

Morales v Minister for Immigration (1995) 60 FCR 550 - cited

Ranatora v Minister for Immigration 154 ALR 693 - cited

Wasfi v The Commonwealth of Australia and Another (Federal Court of Australia, Merkel J, 5 June 1998) - considered

Mobil Oil Canada Ltd v Canada-New Foundland Offshore Petroleum Board (1994) 111 DLR (4^th) - cited

Santa Sabina College v Minister for Education (1985) 58 ALR 527 - cited

Kathiresan v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998) - not followed

Kizon v Palmer (1997) 72 FCR 409 - cited

Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 - cited

Re Australian Railways Union and Others; Ex parte Public Transport Corporation (1993) 117 ALR 17 - cited

Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 - cited

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 - cited

Vaitaiki v Minister for Immigration 150 ALR 608 - cited

Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 - cited

MELBOURNE, 23 September 1998 (hearing), 16 October 1998 (decision)

#DATE 16:10:1998

Appearances

Counsel for the Applicant: Mr T Hurley

Solicitor for the Applicant: Barlow & Co

Counsel for the Respondent: Mr W Mosley

Solicitor for the Respondent: Australian Government Solicitors

THE COURT ORDERS THAT:

1. The decision of the Immigration Review Tribunal made on 18 November 1997 be set aside.

   2. The matter be referred back for rehearing before a differently constituted Immigration Review Tribunal.

   3. The respondent pay the applicant's costs of the application for review.

MERKEL J

INTRODUCTION

The applicant is an Australian citizen and resident. He has applied to the Court under Pt 8 of the Migration Act 1958 (Cth) ("the Act") for the review of a decision of the Immigration Review Tribunal ("the IRT"). The IRT affirmed the decision of the Migration Internal Review Office not to grant a Preferential Relative (Migrant) (Class AY) Subclass 104 (Preferential Family) visa ("the preferential family visa") which would enable his grandson, Quoc Khoi Nguyen ("the grandson") to migrate from Vietnam to Australia.

The issue before the IRT was whether the grandson, who was the applicant for the visa, was an "orphan relative" as defined in reg 1.14 of the Migration Regulations. An "orphan relative" is defined as follows:

"Regulation 1.14. Orphan relative

1.14. An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

(a) the applicant:

(i) has not turned 18; and

(ii) does not have a spouse [is unmarried]; and

(iii) is a relative of that other person; and

(b) the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

(c) it is in the best interests of the applicant if he or she settles with that other person in Australia."

At all material times the grandson was under the age of 18, was unmarried and was a relative of the applicant for the purposes of reg 1.14. The IRT treated the main issue between the parties as whether the evidence established that the grandson cannot be cared for by either of his parents because each of them is either dead, permanently incapacitated or of unknown whereabouts. It was accepted by the parties that the grandson's father had disappeared in 1980 and was either dead or his whereabouts is unknown. Accordingly, the primary question raised by the visa application was whether the grandson cannot be cared for by his mother (who is alive and whose whereabouts are known) because she is permanently incapacitated.

Initially, counsel for the applicant challenged the decision of the IRT on a number of grounds but ultimately contended that the decision of the IRT involved an error of law, being an incorrect interpretation of reg 1.14: see s 476(1)(e) of the Act.

The issues that arise on the application for review are:

* whether the IRT erred in law in its interpretation of reg 1.14?

* whether the decision not to grant the visa involved an error of law?

* whether the Court, in the exercise of its discretion to grant relief, ought to make an order setting aside the decision of the IRT and refer the matter back to the IRT for further consideration?

THE FACTS

Documentary material and oral evidence was placed before the IRT. The main facts can be summarised as follows.

On 2 February 1980 the grandson was born in Vietnam. In 1980 his father disappeared whilst departing Vietnam and his whereabouts are unknown. Between 1980 and 1982 the grandson and his mother lived with the grandson's paternal grandparents in Ho Chi Minh City. In 1982 the grandson's mother returned to her parent's home which was 700 kms from Ho Chi Minh City. From 1982 to 1993 the grandson lived with his paternal grandparents. During 1993 the applicant arrived in Australia as a migrant. For a short time after the applicant's departure for Australia, the grandson returned to live with his mother who had remarried in 1990. Some months later, the applicant returned to Vietnam and placed his grandson in the care of another daughter, the grandson's aunt, with whom the grandson has been living since that time. The grandson has had contact with his mother from time to time when she has been able to visit him and also on some special occasions when he has stayed at her home for periods of up to ten days.

Since about 1982 the grandson's mother entrusted the care and upbringing of her son to the applicant and, in more recent years, to the grandson's aunt.

Since her remarriage the grandson's mother has had two children. In a report on her family situation made in October 1997, the mother indicated that she had been subject to illness, had no stabilised employment for earning her own living and had basically entrusted her son to his grandfather and aunt "for bringing him up in better conditions". Evidence was given by the applicant that when his grandson visited his mother he was made unwelcome by his stepfather and that, in general, his family life in the mother's home was an unhappy one. The applicant also gave evidence that entrusting the upbringing of a child to the paternal grandparents, after the death of the child's father, accorded with Vietnamese custom.

In substance before the IRT, the applicant's solicitor contended that the grandson's mother was unfit and unable to care for her son and met the criteria set out in reg 1.14 with the consequence that the grandson was an "orphan relative" for the purposes of the regulation.

THE DECISION OF THE IRT

The IRT conducted a hearing at which the applicant was represented by his solicitor and gave evidence. As pointed out above, the IRT also had before it a substantial amount of documentation in relation to the matter. In its decision, after setting out a summary of the evidence and material before it, the IRT made an adverse finding in relation to the applicant's credit:

"The Tribunal found Mr Nguyen to be somewhat condescending and contradictory in his evidence. He appeared anxious and at times quite agitated. The Tribunal generally did not find him credible or convincing and his explanations of a number of circumstances like the Applicant's meetings with his mother, her health situation and her involvement with him not plausible."

The IRT expressed its conclusions as follows:

"The Tribunal notes that the Applicant is the grandson of his grandfather sponsor Mr Nguyen an Australian citizen. The Applicant was 15 years of age at the time of the application and was not married. The Applicant therefore satisfies clauses 1.14(a)(i)(ii) and (iii) of the Regulations. His father is deceased, his mother has remarried and has other children from that union. It was submitted in part that given the Applicant's mother's circumstances, the Applicant's relationship with his stepfather and his mother that she is 'permanently incapacitated' and he is unable to be cared by her.

The Tribunal note Mr Nguyen's reference to Vietnamese culture and to the paternal grandparents caring for their son's child. However the Tribunal has on occasions commented on Applicants and others referring to 'cultural practices' and clothing aspects of their applications in 'ethno cultural garbe' and the need for caution in this regard in some circumstances (see e.g. Re Setiawan IRT Decision 15 January 1992). The references by Mr Nguyen to different cultural values in this matter are unable per se to override or displace the requirements of an 'orphan relative' as set out in the legislation.

The Tribunal notes that the expression 'permanent incapacitation' has been considered by the Federal Court in relation to different criteria for the grant of a Class 104 visa, namely that regarding a 'special need relative'. The Tribunal can see no reason to give the expression 'permanently incapacitated' a different meaning or interpretation for the regulation under consideration in this case. In Chen v Minister for Immigration, Local Government and Ethnic Affairs and Another [(1992) 37 FCR 501 at 504] Jen[k]inson J stated:

...all that appears is that the father is unwilling to give the needed assistance, not that he lacks the capacity to give it. ...Even if his commitment to his business could be regarded as constituting an incapacity to give assistance to the child, that incapacity could not be regarded as permanent. He could relinquish his business activities.

There is no independent evidence before the Tribunal to support a conclusion that the mother of the Applicant is 'permanently incapacitated' in those terms. Indeed the evidence is that she conducts a business and travels in Vietnam. Further, she has agreed to the Applicant coming to Australia. She has other children from her second marriage and she visits the Applicant when able to. While the Tribunal acknowledges the situation, the Applicant's mother's intentions and the grandfather's desires are not sufficient to override the conclusion that the Applicant's mother is not permanently incapacitated for the purposes of definition of 'orphan relative'.

On all of the evidence and material before it, the Tribunal is unable to find on balance that the Applicant's mother is 'permanently incapacitated' for the purposes of the Regulations. Therefore the Applicant cannot meet the definition of an 'orphan relative' within the Regulations.

Although the Tribunal notes the situation, the wishes of the Applicant, and his family in Australia, it is unable to grant a visa on 'humanitarian or compassionate grounds'. It is bound by the legislative criteria set out in the migration legislation."

The IRT's approach in its decision to ethnic and cultural issues raised by the applicant is a matter of concern. The IRT made reference to the misuse in hearings before it of "cultural practices" by some applicants and expressed the need for caution in relation to applicants' clothing aspects of their applications in "ethno-cultural garb". In particular the IRT, referring to a previous decision by the same member, suggested that some applicants clothe their visa applications in "ethno-cultural garb" in an endeavour to circumvent the legislative criteria. By implication, it appears to have been suggested by the IRT that the applicant was endeavouring to achieve the same result in the present case. That suggestion is likely to have had some influence upon the adverse findings made against the applicant by the IRT in respect of certain credit issues.

The applicant did not speak English and gave his evidence through an interpreter. Not surprisingly, the applicant did not appear to be familiar with the detail of the criteria to be satisfied for the grant of the preferential family visa. Indeed, as I later explain, the IRT itself was in error in its view of a critical aspect of one of the criteria.

The approach of the IRT to the applicant and his evidence was surprising. It is not apparent to me, from the material to which I was taken, why certain evidence given by the applicant was found by the IRT to have been "not plausible". The applicant did seek to emphasise the difficulties the mother's new family created for her in caring for her son and the importance in Vietnamese culture of the obligation of paternal grandparents to look after a grandson when the father of the son had died. That evidence was clearly of relevance to the criterion in reg 1.14 as to whether it was in the best interests of the grandson that he settle with his grandfather in Australia. I was not taken to any "ethno-cultural" evidence that would justify the implicit suggestion that the applicant was tailoring his evidence to overcome the criterion that the mother cannot care for her child by reason of permanent incapacity. It is far from clear that the applicant's evidence concerning cultural issues was directed to anything other than his obviously genuinely held view that it was in the best interests of his grandson to settle with his grandfather and his family in Australia.

In the present matter the IRT appears to have displayed a certain insensitivity to the role that ethnic and cultural issues might have in relation to the proper operation of reg 1.14. As I shortly point out, contrary to the view of the IRT, such issues might have a role in relation to "permanent incapacity" for the purposes of reg 1.14. This aspect of the case may have led the IRT into error in its approach to the credit of the applicant and to the applicant's evidence that was suggested by the IRT to constitute "ethno cultural garb". These factors cause me to approach the findings of the IRT in relation to the applicant's evidence with greater caution than might otherwise have been the case. In particular, they cause me to hesitate to extend the findings of the IRT beyond those it has expressly or clearly made on the basis of the material before it.

THE INTERPRETATION OF "PERMANENTLY INCAPACITATED"

In its decision the IRT adopted the same interpretation of the expression "permanently incapacitated" as was adopted by Jenkinson J in Chen v Minister for Immigration (1992) 37 FCR 501. Chen's case concerned, inter alia, the question of whether the normal disabilities of infancy could constitute "permanent incapacitation" for the purposes of an extended eligibility (family) permit under reg 127(1)(a)(iii) of the Migration Regulations. The regulation concerned a visa to a person to provide assistance for a special need relative. Jenkinson J referred to the observation of Fox J in Repatriation Commission v Moss (1982) 59 FLR 226 at 232:

"[T]he very notion of incapacity involves consideration of capacity for something; some external frame of reference is necessary."

His Honour, after considering the requirements of the regulation and its context, concluded that:

"...the expression 'permanent incapacitation' in reg 127(iii) has reference merely to the lack of one or several physical or mental faculties."

His Honour's definition of "incapacitation" was clearly influenced by the particular requirements set out in the regulation in relation to a "special need relative".

In addition to relying upon the decision in Chen, the respondent contended that, in its context, the phrase "permanently incapacitated":

"...is directed at a situation in which parents are unable to care for an applicant by reason of physical or mental infirmity."

In explaining that contention the respondent submitted:

"Such incapacity cannot include the diminished capability of parents to care for an applicant where such diminished capability does not arise from either physical or mental infirmity. It is submitted that it does not include a situation where either parent has refused to care for an applicant for reasons not related to mental or physical infirmity. In context a refusal to care, or an abandonment of care or a mere unwillingness to care for an applicant does not come within the purview of incapacity. Incapacity cannot be an act of choice."

I agree that a refusal to care, abandonment of care or an unwillingness to care, do not amount to "permanent incapacity". However that conclusion does not have the consequence that permanent incapacity cannot result in a refusal to care, unwillingness to care or abandonment of care. The issue involves the consideration and ascertainment of the reason why a parent cannot care for his or her child.

Further, the requirements of the regulation in relation to an "orphan relative" are quite different to those considered by Jenkinson J in Chen in relation to a "special need relative". For the purposes of the present case, the external frame of reference for "incapacitation" in relation to an orphan relative is that the relative, who is under 18 years of age, cannot be cared for, that is looked after, by a parent because that parent is permanently incapacitated from doing so. The requisite "incapacitation" must relate to an impairment of a parent's power, capacity or ability to care for his or her child. In that context, incapacitation will include impairment of the physical or mental faculties required to care for a child. However, I see no reason to treat physical or mental impairment as exhaustive of the circumstances in which the relevant incapacity can occur. Obviously, the facts of each case will need to be considered in the context of the particular circumstances of the relevant parent, including the social or cultural environment within which the incapacitation of that parent is said to be occurring.

The incapacity referred to in reg 1.14 can occur in any community outside of Australia. Thus, a range of social or cultural circumstances might, in an appropriate case, result in incapacitation to care for a child. For example, in some communities a mother who relinquishes her child after birth might justifiably fear that she will be cast out of the society in which she has lived, and on which she depends, if found to have given birth to a child out of wedlock or outside of other socially accepted circumstances. In that situation it would be more accurate to say that the cultural norm of her society, rather than any choice by her, has resulted in her being unable to care for her child.

I have concluded that there is no reason to give the expression "permanently incapacitated" in reg 1.14 any meaning other then its ordinary meaning which can include, but is not necessarily limited to, physical or mental infirmity. In my view, the ordinary meaning in the context in which the words appear in reg 1.14, is:

* "permanent" means indefinite or not temporary;

* "incapacitated" means not having the power, ability or possibility of caring for the child.

These meanings have been derived from the Macquarie Dictionary (see "permanent", "incapable" "incapacity" and "capacity").

Accordingly, the question of fact for the IRT in the present case was whether, upon the material before it, the IRT was satisfied that the grandson could not be cared for by his mother because she indefinitely lacked the capacity (ie the power or ability) to care for her child.

The IRT said that it could see no reason to give the expression "permanently incapacitated" a different meaning or interpretation in reg 1.14 to that given to the almost identical expression in reg 127(1)(a)(iii) by Jenkinson J in Chen. It follows, for the reasons set out above, that the IRT erred in law in adopting and applying the Chen interpretation.

WAS THE ERROR IN LAW MATERIAL TO THE DECISION OF THE IRT?

For the applicant to succeed he must establish, not only that the IRT erred in law, but that "the decision" involved an error of law: see s 476(1)(e). Accordingly, it is necessary to consider whether the erroneous interpretation of reg 1.14 led the Tribunal into error in its decision to affirm the decision under review not to grant the visa applied for by the grandson.

It was submitted by the Minister that a fair reading of the IRT's reasons for the decision demonstrates that it did not apply its definition of "permanent incapacity" to the facts. Rather, it is said, the IRT concluded that the grandson's mother was merely unwilling, rather than lacking the capacity, to care for her son. If the IRT found mere unwillingness, and no more, then the applicant must fail on the basis of both the view of Jenkinson J in Chen, and my view of the definition of "permanent incapacity".

However the Minister's submission ought to be rejected. After the IRT stated it was adopting the Chen definition, it made no express or clear finding that the mother was merely unwilling to care for, rather than incapacitated from caring for, her son. The IRT expressly based its conclusions on the failure of the grandson's mother to meet the requirement of "permanent incapacity" in the definition of "orphan relative" in reg 1.14. That definition, which was the Chen definition, appears to have been a critical factor in the decision of the IRT.

I accept that the IRT may well have been able to dispose of the present matter by a clear finding that the mother was merely unwilling to care for her son, but in my view it did not do so. The IRT's reference to there being no "independent evidence" to support incapacity rather than unwillingness, as I later explain, does not go far enough. In the absence of a clear finding of mere "unwillingness", it seems to me that I should not strain to interpret the IRT's reasons (which so clearly rely upon an erroneous definition of "orphan relative" in reg 1.14) to conclude that its reliance on the definition was not material to or did not affect its decision.

In these circumstances I am satisfied that IRT's erroneous interpretation of reg 1.14 was material to its decision to affirm the decision to refuse the preferential family visa. Accordingly, the decision involved an error of law.

SHOULD THE COURT EXERCISE ITS DISCRETION TO GRANT RELIEF?

Section 481(1) of the Act confers power on the Federal Court, in its discretion, to make a number of orders including setting aside the decision the subject of the application for review, and referring the matter back for further consideration.

Although the discretion in s 481(1) of the Act to grant relief is conferred in general terms, it is a discretion that must be exercised judicially. Prima facie, upon an applicant establishing that the ground for review under Part 8 has been made out, the applicant is entitled to appropriate relief unless a valid reason exists for refusing it. As was pointed out by Sackville J in Rahim v Minister for Immigration (1997) 78 FCR 232 at 238, it is a proper exercise of the discretion conferred by s 481(1) to decline to grant relief and to affirm a decision of the IRT, notwithstanding that it has erred in law, if the IRT's findings of fact preclude the applicant from satisfying the criteria upon which the fate of the application depends. Sackville J states that remittal of the matter in those circumstances "would be futile". See also Yuk Shan Cheung v Minister for Immigration (Federal Court of Australia, Einfeld J, 27 October 1997) at 17-18; Morales v Minister for Immigration (1995) 60 FCR 550 at 560-561 and Ranatora v Minister for Immigration 154 ALR 693 at 697-698.

I considered the discretion of a court to refuse relief in respect of an administrative decision where there was a denial for natural justice in Wasfi v The Commonwealth of Australia and Another (Federal Court of Australia, Merkel J, 5 June 1998) at 19-20. In that case, I concluded that even without a provision such as s 481(1), there is a discretion in the Court to decline to grant relief if the administrative body on the remitter would be "bound in law" to arrive at the same decision, as the case that could be put for any other decision was "hopeless". See for example Mobil Oil Canada Ltd v Canada-New Foundland Offshore Petroleum Board (1994) 111 DLR (4^th) 1 at 18-19. However, as Beaumont J pointed out in Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540, the Court ought not to exercise the discretion to refuse relief if it is "possible" that the end result might not be the same at a further hearing.

Each of the parties referred to the material before the IRT on the issue of whether there was evidence upon which the tribunal could find permanent incapacity on the part of the mother to care for her son. There was a substantial amount of material before the IRT upon which it, as the arbiter of fact, was to determine the matter before it. In such circumstances, I consider that the Court ought to approach, with considerable caution and hesitation, the issue of refusing relief based upon the Court's, rather than the IRT's, evaluation of the material. Thus, in general, relief should only be refused if remittal would be futile in the sense discussed above.

Although it would have been open to the IRT, as the arbiter of fact, to find that the grandson's mother was not "permanently incapacitated" in accordance with the correct definition of that expression for the purposes of reg 1.14 which I articulated above, the findings of fact made by the IRT fall short of such a finding. The closest that the IRT comes to that finding is its statement that there is "no independent evidence" before it to support a conclusion that the mother of the grandson lacks the capacity to care for him as opposed to being unwilling to care for him. However, the finding relates to the absence of independent evidence, rather than the absence of any evidence or material upon which such a finding could be made. Even if regard is had to the adverse findings against the applicant on credit, overall, such findings of fact as were made by the IRT fall short of findings of fact which could be said to have precluded the grandson from satisfying the criteria upon which the fate of his application depends: see Rahim at 238.

I am also not satisfied that a remittal of the matter back to the IRT would be futile on the basis that the case of the applicant is, or would be, hopeless. Although it appears that the grandson's mother has been unwilling to care for her son and that, long ago, she relinquished her responsibility to care for him, the evidence is far from clear as to why that has occurred. Accordingly, I am not satisfied that evidence could not be adduced that might establish the requisite incapacity on the part of the mother.

Although the grandson has now turned 18, that fact does not preclude him from meeting the criteria of an "orphan child" in regulation 1.14, as a result of amendments made by Statutory Rule No. 104 of 1998.

Accordingly, there is no proper basis for the Court to refuse to grant relief under s 481(1).

RELIEF

For the above reasons, I am satisfied that the IRT erred in its interpretation of reg 1.14 and that that error was material to its decision to affirm the previous decision not to grant a preferential family visa to the grandson of the applicant. I am also satisfied that it is appropriate in the exercise of the Court's discretion to make an order setting aside the decision of the IRT and to refer the matter back to the IRT for further consideration. As the IRT, as previously constituted, made adverse credit findings against the applicant, it is appropriate to order that the matter be referred for rehearing before a differently constituted IRT.

However, in Kathiresan v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998), at 13-14 and 19, Gray J expressed doubts as to the Court's jurisdiction under s 481(1)(b) of the Act to make an order referring the matter to which the decision relates, other than to the individual who made the decision. In particular, his Honour appeared to consider that the only "person" to whom the Court could refer the matter was:

"the person who constituted the Tribunal which made the decision concerned."

As Gray J was of the view that it was inappropriate for the person who had previously constituted the RRT in Kathiresan's case to re-hear the matter, his Honour made an order referring the matter to the member of the RRT who made by the original decision for further consideration but directed that that member disqualify himself from further consideration of the matter and inform the Principal Member of the RRT that he was not available to conduct the review ordered by the Court. Ryan J in Rajalingam v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Ryan J, 14 September 1998) at 20, shared the doubts expressed by Gray J.

Gray J arrived at his view in reliance upon a literal reading of s 481(1)(b) which confers power on the Court to make 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 sees fit."

The issue arising is whether the Court can only refer the matter back to the individual who made the tribunal's decision rather than to the tribunal which made the decision. The resolution of this issue requires consideration of whether the reference to a "person" in s 481(1)(b) includes a tribunal.

The word "person" is commonly used in statutes to denote a range of persons including an individual and a body corporate. Section 22(1)(a) of the Acts Interpretation Act 1901 (Cth) provides that in any Act, unless the contrary intention appears, expressions used to denote persons include a body politic or corporate as well as an individual. The RRT which is established by s 457 of the Act, consists of a number of natural persons (s 458) and does not fall within the definition in s 22(1)(a) of the Acts Interpretation Act. However, that definition is an inclusive one leaving open the question as to whether in a particular statutory context a "person" may include persons other than an individual or a body politic or corporate. Accordingly, the range of persons intended to be encompassed by the reference to a "person" in any statute, including s 481(1), will depend upon the context, scope and purpose of the statutory provision in question: see Kizon v Palmer (1997) 72 FCR 409 at 430-431 per Lindgren J where his Honour considered whether a "person" included a court.

In my view, when the context, scope and purpose of s 481(1) of the Act is considered it is apparent that the "person" to whom a matter may be referred is a reference to the IRT, the Refugee Review Tribunal ("the RRT") or any other person who has made a decision under the Act or the regulations relating to visas. I briefly summarise my reasons for arriving at that conclusion:

1. Orders under s 481(1) can only be made in respect of judicially-reviewable decisions which are defined in s 475(1) as decisions of the RRT, the IRT and other decisions made under the Act or regulations relating to visas. Such decisions may be made by a number of different individuals including the Minister.

   2. Under the Act, a decision of the IRT or of the RRT is a decision of the tribunal rather than a decision of the individual member constituting the Tribunal: see ss 368 and 430 respectively.

   3. Section 481(1) is not relevantly distinguishable in its terms from s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and, as with s 16(1), is intended to confer broad power on the Court to make orders that are appropriate, in all the circumstances of the case, on an application for judicial review.

   4. It is well settled that a court on judicial review, may after setting aside the decision under review, refer the matter back to the court or tribunal which made the decision under review rather than to the person making the original decision. A court may make a direction that the tribunal be differently constituted to hear the review (Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 269) or may refer the matter back to the court or tribunal without such a direction, leaving the future course which the matter is to take to the parties or the court or tribunal in question (Re Australian Railways Union and Others; Ex parte Public Transport Corporation (1993) 117 ALR 17 at 25).

   5. The Court has often made orders on judicial review under the ADJR Act or the Act that matters be referred back to a differently constituted tribunal: see Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at 44 and Vaitaiki v Minister for Immigration 150 ALR 608 at 615. It has also been common to refer or remit a matter back to the tribunal for further hearing, rather than to the individual member who made the decision under review: see for example Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 566.

   6. I cannot discern any reason or principle for seeking to limit the Court's broad discretionary powers on judicial review to remit a matter to the tribunal making the decision under review, with appropriate directions in relation to the re-hearing, including a direction that the tribunal be differently constituted where appropriate. In particular I cannot discern any reason or principle for restricting a court's powers to ordering remission to the individual member who previously constituted the tribunal.

   7. To construe the sub-section as conferring on the Court a broad power to make such orders as may be appropriate on judicial review is consistent with, and better gives effect to, the legislative intent and the scope and purpose of s 481(1)(b). Such orders ought to include an order that the matter be referred back to the tribunal which made the original decision with such orders as are appropriate in respect of the rehearing. In these circumstances, an interpretation of s 481(1)(b) which treats a "person" to whom a matter may be referred as including the tribunal which made the decision under review, is to be preferred to an interpretation which restricts the meaning of a "person" to the individual, rather than the tribunal, making the decision.

As pointed out above in Kathiresan, Gray J expressed "some doubts" (which have since been shared by Ryan J) as to whether s 481(1)(b) permitted a referral to the tribunal making the decision with a direction that it be differently constituted. In expressing doubt on that issue Gray J adopted a literal, rather than a purposive, approach to the interpretation of s 481(1)(b). For the reasons set out above, it is my view that a purposive, rather than a literal, approach is required: see s 15AA of the Acts Interpretation Act and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 855.