CATCHWORDS MIGRATION - reconsideration of reasons given by Full Court for allowing appeal - no orders made by Court when reasons delivered - Court's attention not drawn to significant evidence - withdrawal of Court's earlier reasons - whether matter to be referred for reconsideration to Refugee Review Tribunal or to the Minister. Migration Act 1958, ss. 118(5), 411-414. Migration Reform Act 1992, s.39 Migration Laws Amendment Act 1993, s.6 Migration Laws Amendment Act 1994 LI SHI PING & LIU XIU LING v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS No. WAG98 of 1994 CORAM: SHEPPARD, GUMMOW, CARR JJ PLACE: PERTH DATE: 13 April 1995 IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) No. WAG98 of 1994 GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia. BETWEEN: LI SHI PING and LIU XIU LING Appellants AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Respondent MINUTE OF ORDERS BEFORE: SHEPPARD, GUMMOW, CARR JJ PLACE: PERTH DATE: 13 APRIL 1995 THE COURT ORDERS THAT: 1. In the case of the appellant Li Shi Ping the appeal be dismissed. 2. The appellant Li Shi Ping pay to the respondent his costs of the appeal and of the respondent's notice of motion of 13 December 1994 in so far as they concerned the appellant Li Shi Ping. 3. There be otherwise no order in respect of the notice of motion of 13 December 1994 in so far as it concerned the appellant Li Shi Ping. 4. The orders made by Drummond J on 19 August 1994 in relation to the appellant Liu Xiu Ling be varied by:- (a) omitting para 4 of the orders and substituting therefor an order in the following terms: "4. The matter be remitted to the Refugee Review Tribunal to be heard and determined according to law." (b) Adding a further order as follows:- "5. It be declared that the Refugee Review Tribunal in addition to any other matters it is required by law to take into account take into account both the matter referred to in the reasons for judgment of Drummond J published on 19 August 1994 and the further matter dealt with in the reasons of this Court published on 28 November 1994 and today." 5. The appeal, in so far as it concerned the appellant Liu Xiu Ling, be otherwise dismissed. 6. The notice of motion of 13 December 1994, in so far as it concerned the appellant Liu Xiu Ling be dismissed. 7. The respondent pay to the appellant Liu Xiu Ling one-half of the costs of the appeal and of the notice of motion in so far as they concerned the appellant Liu Xiu Ling. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) No. WAG98 of 1994 GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia. BETWEEN: LI SHI PING LIU XIU LING Appellants AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS Respondent BEFORE: SHEPPARD, GUMMOW, CARR JJ PLACE: PERTH DATE: 13 APRIL 1995 SUPPLEMENTARY REASONS FOR JUDGMENT THE COURT: On 28 November 1994 reasons for judgment were published in respect of these two appeals. Those reasons outline the orders which were proposed. They were that Ms Liu's appeal be dismissed but on the basis that there were at least two matters which needed reconsideration in her case rather than the one upon which the trial judge remitted her application for reconsideration. In respect of Mr Li, we indicated that we proposed to grant his application for an extension of time in which to apply for judicial review of the decision to deport him and to set aside that decision. At the hearing of the appeal there was a dispute as to whether, in those circumstances, both applications would need to be assessed de novo (as the appellants submitted) or whether the primary decisions in each case should be referred to the Refugee Review Tribunal. Consequently the following orders were made:- "1. The parties file an agreed short minute of orders, reflecting the accompanying reasons, within 7 days. 2. Failing agreement on the abovementioned minute, the appeal be relisted for mention, by videolink, on a date to be fixed between 7 December 1994 and 16 December 1994." The parties were unable to agree on a short minute of orders and, in any event, the matter took a different turn on 13 December 1994. On that date the respondent filed a notice of motion seeking leave to make further submissions. Leave was sought on the ground that the reasons for judgment proceeded on a factual basis which was contrary to the evidence. It was also claimed that the point upon which the appellants had succeeded had not been the subject of any ground of appeal. This is not a case such as Smith v New South Wales Bar Association (1992) 176 CLR 256 and Autodesk Inc. v Dyason (1993) 176 CLR 300. There, what was in question was the exercise of power to recall a judgment where orders disposing of the proceeding had been pronounced but not entered. Here the matter has not gone so far. No orders have been pronounced, other than those set out above. In substance, the present application is one for leave to make further submissions on the appeal. The fundamental point in the application is that, unless leave be granted, the Court will pronounce final orders under a misapprehension of the facts in a critical respect. We heard full argument on the application for leave. This was on the footing that, if we concluded leave should be granted, we should proceed to deal with the matter. We have reached the conclusion that leave to reopen should be granted the respondent and that the submissions made by the respondent in the case of the appeal by Mr Li should be accepted. The result will be that in his case final orders will be made which differ from those proposed in the earlier reasons for judgment. To the extent that there is an inconsistency between these reasons and the earlier reasons, the earlier reasons are withdrawn. The basis upon which the earlier decision was to be adverse to the respondent appears from the following passages in the reasons of Carr J, with whom the other members of the Court agreed: "I have examined the reasons given by the primary decision-maker (Mr Laidlaw) and by Mr Barnsley in respect of Mr Li's application. In my view, the only relevant matter was whether Mr Li had made statements of his political opinions before leaving China. There is no reference to this claim in Mr Laidlaw's reasons for decision and Mr Barnsley states that Mr Li had not made such a claim prior to the review stage. ... The evidence shows ... that ... the tape-recording of Mr Li's interview with Mr Laidlaw failed at 12.45 pm and resumed at 1.34 pm (some 49 minutes). There is a typed version headed 'The notes which were taken during the 45-odd minutes of the interview when tape two, side two should have been recording'. These notes comprise forty-one lines of typed text, some of which is so abbreviated as to be virtually meaningless. In my view, the reasonable possibility remains that Mr Li may have made some reference during the course of that interview to a political statement made by him in China - see for example the third of the four paragraphs which comprise the abbreviated notes of what took place whilst the tape-recorder was not working. ... ... in respect of Mr Li the 45 or 49 minutes gap in tape-recording with what I regard to be an inadequate transcript of what took place during that period resulted in unfairness to the extent that Mr Li should have been accorded an oral hearing by Mr Barnsley to clear up whether it was during that stage of the interview that Mr Li referred to political statements which he may have made in China." One of the appellants' grounds of appeal was that the trial judge erred in fact and in law in holding that, in the circumstances, procedural fairness did not require that each of the appellants be offered an oral hearing by the respondent's delegate. On the hearing of the appeal before us, counsel for the appellants made at least two references to the fact that the recording of the primary interview of each appellant was incomplete. Counsel for the respondent did not address us on that point. We are satisfied that, if counsel for the respondent had addressed us on the question of the incomplete tape-recordings, we would have delivered reasons which would have led to the dismissal of the appeal by Mr Li. We would have done so because, from the materials to which counsel for the respondent took us during the hearing of this motion, it is abundantly clear that Mr Li had not, during the oral hearing by the primary decision-maker, referred to political statements which he may have made in China. In fact, Mr Li expressly disavowed having made reference to such political statements and gave reasons for not having done so, reasons which the trial judge rejected. Accordingly, our judgment in respect of Mr Li has proceeded on the basis of a misapprehension of the facts in a critical respect. The respondent argued that Ms Liu's appeal should also be dismissed because it relied in part upon the fact that there was an incomplete tape-recording of Ms Liu's interview with the primary decision-maker. However, on the hearing of the motion, the respondent did not press that submission in respect of Ms Liu. We think that was an appropriate course. In Ms Liu's case, there was an admittedly incorrect translation of a vital answer during the course of the interview. As outlined in the previous reasons, this went to whether Ms Liu's father had been engaged in a political transgression or a criminal transgression in China. While we acknowledge that evidence to which we have now been referred tends to establish that there was a second tape-recording of Ms Liu's interview with the primary decision-maker, it is still our view that she should have been accorded an oral hearing to clear up the matter to which we have referred. The mistranslation of a vital answer resulted in the procedure being unfair. Accordingly, Mr Li's appeal will be dismissed. In respect of Ms Liu's appeal there will be a declaration that at least two issues will need reconsideration in her case rather than the one upon which the primary Judge remitted her application for reconsideration. Her appeal will be otherwise dismissed. We now turn to the question of who is to reconsider Ms Liu's application. In her case, the review decision was set aside by the primary Judge on 19 August 1994. Counsel for Ms Liu submitted that her application for refugee status must now be assessed de novo by the respondent and should not be dealt with as a matter for review by the Refugee Review Tribunal (as the respondent contends). This was because, so it was said: · Ms Liu's application is now an application for a protection visa on which no prior decision has been made; · The primary decision has merged in the decision of the review delegate; and · The review delegate's decision has been set aside. Section 39 of the Migration Reform Act 1992, as amended by the Migration Legislation Amendment Act 1994 came into force on 1 September 1994 (by virtue of the provisions of s. 6 of the Migration Laws Amendment Act 1993) and reads: "Transitional-refugee Applications 39. If: (a) an application for: (i) a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; or (ii)... was made before that date; and (b) before that date, the application has not been finally determined (within the meaning of the Principal Act); then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date)." In our view, s. 39 requires that, if an application for determination of refugee status has not been finally determined by 1 September 1994 then, thereafter, it shall be dealt with under the provisions of the Migration Act as if it were an application for a protection visa. It is true that no decision has been made about whether Ms Liu should be granted a protection visa. However, in our opinion, the necessary intent of s. 39 is that the application is to be dealt with on the basis that it is an application for a protection visa which has reached the same stage as the application for determination of refugee status. For that proposition, we refer to the express reference, in parenthesis, to the provisions relating to review. Next there is the submission that the primary decision merged into the review delegate's decision and has no existence if the latter decision is set aside. We would reject that submission. When one turns to s. 118(5) of the Act, it can be seen that, where the review authority varies or sets aside the decision and substitutes a new decision, the decision as varied or substituted shall (except for the purposes of further review on appeal) be taken to be a decision of the Minister. There is no similar provision for the situation where (as in this matter) the review authority simply affirms the primary decision. In our view, this provides partial confirmation of what would be dictated by logic. If an administrative process of review has been held not to have achieved a valid result, a finding to that effect should not nullify the steps prior to the impugned review decision which activated the process of review. In the present matter the review process has been activated and the application of s. 39, in our opinion, requires that the steps which would otherwise apply to the disposal of a review of the decision in relation to a protection visa should also apply henceforth to this application. It is common ground that Ms Liu's application has not been finally determined (within the meaning of the Principal Act). In terms of ss. 411-413, and their identically worded predecessors, the primary decision in Ms Liu's case is now an "RRT reviewable decision", the initial review decision has been set aside by this Court and is to be referred for further consideration. Accordingly, s. 414 requires the Refugee Review Tribunal to review the decision. In summary, Mr Li's appeal must be dismissed with costs. In the case of Ms Liu, the orders made by the learned primary Judge will be varied so as to include a declaration that the Refugee Review Tribunal is required to take into account both the matter referred to in the reasons for judgment of the primary Judge in this matter and the further matter dealt with in the reasons of this Court published on 28 November 1994 and today. The appeal is otherwise dismissed. In the light of the appellant's partial success in the appeal, the respondent is to pay one-half of the appellant's costs of the appeal and of the notice of motion of 13 December 1994. I certify that this and the 9 preceding pages are a true copy of the reasons for judgment herein of the Court. Associate Dated: 13 April 1995 APPEARANCES Counsel for the Appellant: Dr J.L. Cameron Solicitors for the Appellant: Patrick J. Gethin Counsel for the Respondent: Mr Owen-Conway Mr S. Bhojani Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 5 April 1995 Place of Hearing: Sydney/Perth (By video link) Date of Judgment: 13 April 1995