Wang v Minister for Immigration & Multicultural Affairs - [2001] FCA 448

FEDERAL COURT OF AUSTRALIA
Wang v Minister for Immigration & Multicultural Affairs [2001] FCA 448
MIGRATION – Order of Full Court remitting matter to the Refugee Review Tribunal – whether the Court has power to order that the matter be remitted to the Tribunal as originally constituted – whether matter should be remitted to the Tribunal as originally constituted
WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 490 of 2000
JUDGES:      WILCOX, GRAY and MERKEL JJ
DATE:           3 APRIL 2001
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

N 490 OF 2000

BETWEEN:

JI DONG WANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES:

WILCOX, GRAY AND MERKEL JJ

DATE OF ORDER:

3 APRIL 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.   The matter be remitted to the Refugee Review Tribunal as previously constituted for the appellant’s application for review.
2.   The respondent pay the appellant’s taxed costs of the application to the Full Court concerning the constitution of the Refugee Review Tribunal.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 490 of 2000

BETWEEN:

JI DONG WANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WILCOX, GRAY AND MERKEL JJ

DATE:

3 APRIL 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
WILCOX J:

I agree with the orders proposed by Merkel J.
Counsel for the Minister concedes that, when it made its previous orders, this Court had power to order that the matter be remitted to the Refugee Review Tribunal constituted by the particular member who had heard the application. The Court did not make such a direction at that time. The reason was that it was not known whether that member was available to deal with the matter within a reasonable time. The exercise of power was reserved.
We are now asked to exercise the power. Clearly the power is still available. There appears to be no difficulty about the original member hearing the remitted matter. That being so, and for the additional reasons set out in the original reasons for judgment of all three members of the Court, I think the Court should now make an order to that effect.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.
Associate:
Dated: 8 May 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 490 of 2000

BETWEEN:

JI DONG WANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WILCOX, GRAY AND MERKEL JJ

DATE:

3 APRIL 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
GRAY J:

In my reasons for the judgment on the appeal in this matter, published on 10 November 2000, at [23], I stated that, for the purposes of those reasons for judgment, I assumed that s 481(1)(b) of the Migration Act 1958 (Cth) empowers the Court…

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

Case: [2001] FCA 448
Decision Date: 3 APRIL 2001

CaseChat Overview and Summary

The appeal in Wang v Minister for Immigration & Multicultural Affairs was heard before the Full Court of the Federal Court of Australia. The appellant, Wang, challenged the decision of the Refugee Review Tribunal to dismiss her application for a protection visa. The central issue was whether the Tribunal was correctly constituted under the Migration Act 1958 when it conducted the hearing of Wang’s application.

The court had to determine if the Tribunal’s decision was invalid because the panel included a part-time member, contrary to the requirement for a full-time President. The court also needed to consider the impact of any potential error on the fairness and legality of the proceedings. The appellant argued that the Tribunal’s composition rendered the decision void, while the Minister contended that any such error was a procedural irregularity, not affecting the outcome.

In its judgment, the court held that the inclusion of a part-time member in the Tribunal constituted a significant procedural error. The court found that such an error did indeed affect the validity of the decision, as it was contrary to the statutory requirements for the constitution of the Tribunal. The court noted that the proper functioning of the Tribunal, including the requirement for a full-time President, was integral to ensuring the fairness and legality of its decisions. The court thus decided to remit the matter to the Tribunal for review, with the Tribunal to be correctly constituted in accordance with the Act. Additionally, the court ordered that the respondent pay the appellant’s costs of the application concerning the Tribunal’s constitution.

Orders

Orders of the court

1. The matter be remitted to the Refugee Review Tribunal as previously constituted for the appellant’s application for review.

2. The respondent pay the appellant’s taxed costs of the application to the Full Court concerning the constitution of the Refugee Review Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	N 490 OF 2000

BETWEEN:	JI DONG WANG APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	WILCOX, GRAY AND MERKEL JJ
DATE OF ORDER:	3 APRIL 2001
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 490 of 2000

JUDGE:	WILCOX, GRAY AND MERKEL JJ
DATE:	3 APRIL 2001
PLACE:	SYDNEY