Tji, Lay Kon v Minister for Immigration and Ethnic Affairs

[1998] FCA 1597

FEDERAL COURT OF AUSTRALIA

MIGRATION – judicial review – refusal of protection visa – decision of the Refugee Review Tribunal set aside –  whether matter should be remitted to the Tribunal.

LAY KON TJI V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

VG 331 of 1996

JUDGE:         FINKELSTEIN J
PLACE:         MELBOURNE

DATE:           23 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 331 of 1996

BETWEEN:	LAY KON TJI Applicant
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent
JUDGE:		FINKELSTEIN J
DATE OF ORDER:		23 NOVEMBER 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Tribunal be set aside.

1. The matter be remitted to the Tribunal to be heard and determined again according to law.

1. The respondent pay the applicant's costs of and incidental to the review.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 331 of 1996

BETWEEN:	LAY KON TJI Applicant
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

JUDGE:	FINKELSTEIN J
DATE:	23 NOVEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: On 30 October 1998, I delivered my reasons for judgment in this application.  There I found that the Refugee Review Tribunal (the Tribunal) had erred in arriving at its decision that the applicant was not a refugee because he was a national of Portugal, that Portugal recognised his nationality and that Portugal was willing to provide relevant protection to him.  I indicated that I proposed to order that the decision of the Tribunal be set aside with costs to be awarded in favour of the applicant and that I would hear the parties on what other orders should be made.

The applicant now submits that I should, in effect, declare the applicant to be a refugee rather than to remit the matter for reconsideration by the Tribunal.  The principal reason for this submission is the contention that, having regard to my reasons, the Tribunal must inevitably find in favour of the applicant so that no useful purpose will be served if the matter is remitted to the Tribunal.  The applicant is also concerned that if his application is reheard by the Tribunal it is possible that the question whether the applicant has a well founded fear of persecution in relation to Indonesia might be put in issue.  Thus it was said that the applicant will be greatly prejudiced if the matter is remitted.

Dealing with this last point first, I should immediately say that it is most unlikely that the applicant is at any real risk.  I have read some of the material that was before the Tribunal on this issue, as well as the Tribunal’s reasons for its decision.  Unless there has been a dramatic change of circumstances in East Timor, it seems to me that it would be perverse if the Tribunal was to find that the applicant did not have a real fear of persecution if required to return to Indonesia. 

Thus the only issue that I must consider is whether the Tribunal is bound to arrive at the decision that the applicant is a refugee.  In my view it is not inevitable that such a finding will be made. It will be recalled that the basis of my decision was that, contrary to the true legal position as explained by Professor Ramos, the Government of Portugal does not recognise that persons born in East Timor are automatically nationals of Portugal.  However, if Professor Ramos is correct in the evidence that he gave to the Tribunal, namely that East Timorians in the position of the applicant are Portuguese nationals, I cannot be confident that the attitude and stated position of Portugal will not change.  It may even do so before any rehearing by the Tribunal. 

In that event, the Tribunal would be in a position to find against the applicant.  Whether it is likely that the Portuguese authorities will change their stance I cannot tell, but I have no basis for holding that the possibility is so remote that it should be altogether disregarded.  Accordingly, the orders that I propose to make are as follows:

1. The decision of the Tribunal is to be set aside.

1. The matter is to be remitted to the Tribunal to be heard and determined again according to law.

1. The respondent is to pay the applicant's costs of and incidental to the review.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein

Associate:

Dated:                December 1998

Counsel for the Applicant:	B.A. Keon-Cohen QC
Solicitor for the Applicant:	F. Roden & Associates
Counsel for the Respondent:	R. Tracey QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 1998
Date of Judgment:	23 November 1998