Minister for Immigration and Multicultural Affairs v Wang

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh,Gummow,Hayne JJ,Kirby J
• Judgment Date: 12 March 2003
• Neutral Citation: 2003-0312 HCA A,[2003] HCA 11
• Docket Number: S295/2001
• Date: 12 March 2003

[2003] HCA 11

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ

S295/2001

Minister for Immigration and Multicultural Affairs

Appellant

and

Ji Dong Wang

Respondent

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)

Migration Act 1958 (Cth), s 481(1)(b), s 481(1)(d).

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.

Words and phrases — ‘necessary to do justice’.

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.

1 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.

2 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.

3 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 their commitments and availability, and makes administrative arrangements within the Tribunal.

4 At the relevant time, s 481 of the Act empowered the Federal Court, on an application for a review of a decision of the Tribunal, to make various orders, including an order setting aside the decision in whole or in part, and referring the matter to which the decision related to the person who made the decision for further consideration, ‘subject to such directions as the Court thinks fit’. The ‘person who made the decision’ was the Tribunal. The power to give directions included, in a proper case, a power to direct that, on a further hearing, the Tribunal should be differently constituted from the original Tribunal whose decision was under review. So much was conceded by the appellant 1. To that extent, at least, the powers of the Principal Member were subject to those of the Federal Court. Once it is accepted that it was within the power of the Federal Court, under s 481, in some circumstances to give a direction as to the constitution of the Tribunal on a further hearing, it is difficult to see a basis, as a matter of statutory construction, for limiting the power to any particular circumstances, or any particular kind of direction. Accordingly, I am prepared to accept that there was a power in the Federal Court to direct that a matter be remitted to the member who constituted the original Tribunal. However, the propriety of the exercise of such a power, as a matter of judicial discretion, and comity, is another matter. To take the most obvious considerations that might arise, the Federal Court would ordinarily be unaware of the availability of the member who conducted the original hearing, or of other facts or circumstances

that might bear upon matters relevant to the internal administration of the Tribunal. However, the principal reason for the exercise by the Full Court of the power in the present case was clear; and it had nothing to do with administrative convenience or efficiency

5 On 10 November 2000, the Full Court of the Federal Court 2 (Wilcox, Gray and Merkel JJ) allowed an appeal from Lindgren J 3, set aside the decision of the Tribunal (constituted by Ms Boland) on the ground of error of law, and ordered that the matter be remitted to the Tribunal.

6 One of the powers of the Federal Court, under s 481(1)(c) of the Act, was to make an order declaring the rights of the parties in respect of any matter to which the Tribunal's decision related. The Tribunal's decision related to an application by Ji Dong Wang (‘the respondent’) for a protection visa. It was reviewing an unfavourable decision by a delegate of the Minister for Immigration and Multicultural Affairs. The basis of the application was a claim that the respondent, being outside the country of his nationality, the People's Republic of China, was unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion. The Tribunal's reasons for decision set out in some detail its view of the facts. The findings of fact were not in all respects clear, but to a substantial extent they accepted the respondent's assertions in support of his claim for refugee status. The Full Court found that the Tribunal made an error of law. However it did not hold that a correction of the error of law necessarily entitled the respondent to a protection visa. Indeed, the Full Court expressed some reservations as to the correctness of the Tribunal's approach to some issues of fact. Gray J questioned the manner in which the Tribunal tested the respondent's claim to religious belief by reference to the adequacy of his knowledge of religious doctrine. Merkel J criticised the Tribunal for giving ‘only scant attention’ to the available information as to the penalties in the respondent's country of nationality for practising his religion. His Honour also considered that the Tribunal's findings as to his intentions about religious observance if he returned to his country of nationality were unclear. In brief, although the Full Court observed that the Tribunal's findings of fact were generally favourable to the respondent, there were said to be some respects in which they were deficient. The Full Court ordered that the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be determined in accordance with law.

7 The consequence of that order was that the Tribunal, in dealing with the remitted matter, would be obliged to determine, in the light of the circumstances

existing at the date of such new determination, and of the information before the Tribunal at that time, all questions of fact and law relevant to the respondent's claim to refugee status. However, the members of the Full Court expressed concern about the possibility that the Tribunal, on the further hearing, might make findings less favourable to the respondent than had been made by Ms Boland. The existence of such a possibility resulted from the provisions of the Act, and from the terms of the order made by the Full Court. Two members of the Full Court, Wilcox and Merkel JJ, were content, at that stage, to leave the question of the constitution of the Tribunal on remittal unresolved, subject to liberty to apply. However, they made clear what they thought should happen, subject to unforeseen difficulties. Merkel J, with whom Wilcox J agreed, said:

‘Although the Court has power to direct that the matter be heard by a differently constituted RRT, that direction may not be appropriate in the present case as to do so might deprive the appellant of findings that were favourable to the outcome of his application. However, I would also desist from directing that the matter be referred back to the RRT constituted by the member who made the decision the subject of the review as there may be circumstances, including a view by the appellant that that was not appropriate, that ought to be considered before that course is ordered. In the circumstances it is appropriate to reserve liberty to apply on the issue of the constitution of the RRT that is to determine the outcome of the appellant's application for a protection visa.’

8 The references to ‘the appellant’ are to the present respondent. Presumably, the reference to the possibility that he might have a ‘view’ that it was ‘not appropriate’ for Ms Boland further to hear his matter was intended to mean that he might wish to make submissions on that question.

9 Gray J would have gone further. He thought that justice required, at that stage, an order referring the matter back to Ms Boland. He said:

‘If the RRT were to be reconstituted, there is a danger that the appellant might lose the benefit of the favourable findings of fact to which I have referred. There is a risk that a differently constituted RRT might take a different view as to the appellant's credit, or as to the weight of the evidence, and arrive at findings of fact that would be unfavourable to him. If that were to occur, the appellant would be deprived of the fruits of his successful appeal and the result would be unjust to him.’

10 The concerns of all three...