FEDERAL COURT OF AUSTRALIA NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 MIGRATION – appeal – where conceded error of construction by primary judge because of subsequent decision of High Court – whether Full Court should hear all issues arising in materially different case advanced by appellant based on decision of High Court – whether primary judge's orders should be set aside and the proceedings remitted. Migration Act 1958 (Cth), s 474 Federal Court of Australia Act 1976 (Cth), s 28(1)(c) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, (2002) 193 ALR 449 referred to S157/2002 v Commonwealth of Australia [2003] HCA 2 referred to Allesch v Mauntz (2000) 203 CLR 172 referred to NADH OF 2001, NADI of 2001 and NADJ of 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 900 of 2002 MOORE, TAMBERLIN & HELY JJ SYDNEY 19 FEBRUARY 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N900 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADH of 2001 FIRST APPELLANT NADI of 2001 SECOND APPELLANT NADJ of 2001 THIRD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: MOORE, TAMBERLIN & HELY JJ DATE OF ORDER: 19 FEBRUARY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The orders of the Primary Judge made on 9 August 2002 be set aside. 2. The proceeding be remitted to the Primary Judge for further hearing and determination. 3. The costs of this appeal be the appellants' costs in the cause. 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 N900 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADH of 2001 FIRST APPELLANT NADI of 2001 SECOND APPELLANT NADJ of 2001 THIRD APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: MOORE, TAMBERLIN & HELY JJ DATE: 19 FEBRUARY 2003 WHERE MADE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of a Judge of this Court of 9 August 2002 (the primary judge) in which his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") on the ground that s 474 of the Migration Act 1958 (Cth) operated in the way ultimately determined by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, (2002) 193 ALR 449. Since the primary judge gave judgment, the High Court has given judgment in S157/2002 v Commonwealth of Australia [2003] HCA 2. The High Court has determined the meaning and scope of s 474. It is clear from the reasons of the High Court that the construction of the section hitherto adopted by many judges in this Court (including the primary judge in this matter) and by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs was wrong. 2 In his reasons, the primary judge was highly critical of aspects of the reasoning of the Tribunal and its consideration of the material advanced by the appellants in support of their claims and the approach adopted by the Tribunal during the hearing. However, his Honour ultimately concluded that the appellants had not demonstrated the Tribunal's decision fell within the Hickman provisos which was the question arising from the construction of s 474 adopted by his Honour. At the conclusion of his judgment his Honour said: "Some errors in fact-finding made by the Tribunal in the present case are, in my view, egregious. At times they demonstrate an extraordinary obtuseness. However, I am not able in all of the circumstances of this case to draw an inference that the Tribunal did not reach its decision in good faith. The Tribunal is allowed to exhibit a degree of scepticism. This may contribute to error on its part, but the first condition in Hickman will be met so long as the Tribunal has acted honestly in the task committed to it." 3 In this appeal, counsel for the appellants has pointed to the reasoning of the Tribunal criticised by his Honour and to other material to support an argument that the Tribunal's decision was attended by jurisdictional error. The jurisdictional error included apprehended bias and a failure to rationally evaluate the material advanced by the appellants in support of their application for protection visas leading to an unreasonable finding of jurisdictional fact. This material is detailed and lengthy. The submissions counsel for the appellants proposes to make appear to raise issues of substance. It is apparent to us that to consider properly those submissions and the material the appellants rely on, and properly evaluate them (and the submissions in response of the respondent), it will require not only a hearing of some length (perhaps a day and certainly more than the half day allocated for the hearing of this appeal) but also some further considerable period of time once we have reserved judgment, as would be likely. 4 It is not in issue that the primary judge erred in principle by incorrectly applying the law because of a mistaken view of the scope of s 474 (though plainly only because the meaning and scope of the section had not then been clarified by the High Court). This Full Court is being invited to consider at length and in detail the reasons of the Tribunal, the material advanced by the appellants to the Tribunal and the transcript of the hearing before the Tribunal and to apply the law determined by the High Court. It was not a task undertaken by the primary judge though, in our opinion, it is a task more appropriate to be undertaken by a single judge rather than a Full Court. In these circumstances, in our opinion, and in the face of a conceded error of construction by the primary judge, we consider we should exercise the power conferred by s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth) to remit the matter, though we accept that we could also adopt the course of hearing and determining the entire appeal and deal with all issues sought to be raised. The approach of remitting the matter, which is opposed by the respondent, is not inconsistent with the observations of Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Mauntz (2000) 203 CLR 172 at [23] that our powers as an appellate court are exercisable only where the appellant can demonstrate that the order of the primary judge is a result of some legal error. As noted earlier, the order of the primary judge in this matter was a result of a misapplication of the law resulting from a misconstruction of s 474 with consequential failure to consider whether the Tribunal's decision was infected by jurisdictional error. Indeed, that submission (that there was jurisdictional error) was not put below (for obvious reasons) as we understand the course the proceedings took before the primary judge. 5 Accordingly we set aside the order of the primary judge dismissing the application for judicial review and remit the matter to his Honour, for further hearing and determination. 6 Having heard the submissions of both parties on the question of costs, we have decided that, on balance, the fairer orderis that costs of this appeal be the appellants' costs in the cause. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Tamberlin & Hely. Associate: Dated: 21 February 2003 Counsel for the Appellants. Mr D Godwin Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 February 2003 Date of Judgment: 19 February 2003