FEDERAL COURT OF AUSTRALIA Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557 ADMINISTRATIVE LAW – judicial review – consent orders – setting aside administrative decisions and remitting for reconsideration according to law – need for orders to specify error of law – need for court to be satisfied of grounds for and appropriateness of order. PRACTICE AND PROCEDURE – consent orders – public nature of functions – need for court to specify content in such orders – orders to be within power and appropriate. Migration Act 1958 (Cth) Native Title Act 1993 (Cth) National Bank of Australasia Ltd v Solar (1976) 28 FLR 372 discussed Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 applied Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 cited Broers v Foster (1981) 36 ALR 605 cited Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 cited Sloane v Minister for Immigration Local Government and Ethnic Affairs (1992) 37 FCR 429 cited ALEXANDRE ALEXANDROVIC KOVALEV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 49 of 1999 FRENCH J 6 MAY 1999 (Publication of Reasons) SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 49 OF 1999 BETWEEN: ALEXANDRE ALEXANDROVIC KOVALEV Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FRENCH J DATE OF ORDER: 14 April 1999 WHERE MADE: SYDNEY THE COURT ORDERS BY CONSENT THAT: 1. The decision of the Refugee Review Tribunal be set aside. 2. The matter be remitted to a differently constituted Tribunal with a direction that that Tribunal comply with the procedures in section 430 of the Migration Act 1958 in that it make and state all such findings of fact as are necessary on the material before it including, but not restricted to, a finding as to whether the Applicant was detained and sexually assaulted by the police in Latvia prior to his departure. 3. The Respondent pay the Applicant's costs as agreed or taxed. 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 49 OF 1999 BETWEEN: ALEXANDRE ALEXANDROVIC KOVALEV Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FRENCH J DATE: 14 APRIL 1999 (Date of Order) 6 MAY 1999 (Publication of Reasons) PLACE: SYDNEY REASONS FOR JUDGMENT 1 This application for review of a decision of the Refugee Review Tribunal was filed on 23 December 1998. The applicant, Alexandre Alexandrovic Kovalev is a Latvian national who arrived in this country on 1 May 1997. He lodged an application for a Protection Visa with the Department of Immigration and Multicultural Affairs on 8 July 1997. That application was refused on 29 January 1998 by a delegate of the Minister for Immigration and Multicultural Affairs. On 25 February 1998 Mr Kovalev sought review of that decision by the Refugee Review Tribunal. On 23 December 1998 the Tribunal affirmed the decision not to grant a Protection Visa. 2 Mr Kovalev then sought review of the Tribunal's decision by way of application filed in this Court on 25 January 1999. The grounds of his application were as follows: "1. Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to produce a written statement of its decision and reasons in accordance with s.430 of the Act [s 476(1)(a)]. Particulars The Tribunal failed to set out its findings on – (a) whether the assaults and robberies the Applicant suffered in Latvia constituted persecution for a Convention reason; (b) whether the Applicant had sought but been unable to obtain assistance from the police; (c) whether the applicant had been sexually assaulted by police; and (d) whether the Applicant's fear that he would be subject to such assaults in the future was well-founded. 2. The Decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both [s 476(1)(e)]. Particulars (1) The Tribunal found that the Applicant had been assaulted and robbed and that there is discrimination and occasional violence directed at ethnic Russians in Latvia. It then held that the fundamental issue was whether it can be said that if the applicant returns to Latvia that he will have no reasonable expectations that national protection will be forthcoming. The Tribunal erred in treating this question as a separate and independent test and in failing to determine whether the Applicant had a well-founded fear or persecution for a Convention reason. (sic) (2) In finding that effective protection was available to the Applicant the Tribunal confined itself to "independent evidence" and failed to have regard to the Applicant's evidence or its findings about what had happened to the Applicant." 3 The matter came on for hearing before this Court in Sydney on 13 April 1999. Shortly prior to the hearing the parties had submitted a minute of proposed consent order that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for determination according to law. The minute did not specify the basis upon which the matter was to be remitted. Indeed it appeared from comments made by counsel that the respondent's advisers had not discussed with the applicant's advisers the basis for the concession which underpinned the proposed consent order. 4 I indicated that I was not prepared to make an order in the terms sought unless and until the following conditions were met: 1. The error of law grounding the decision to set aside the Refugee Review Tribunal's decision and which it was required to address by order of the Court was specified in the proposed order. 2. The Court was satisfied that there was a proper basis for setting aside the decision and remitting the matter to the Refugee Review Tribunal. 5 Counsel for the respondent explained the substance of the concession to the Court and the parties were then given the opportunity to formulate a further minute which would identify the basis upon which it was proposed that the matter be remitted to the Tribunal. 6 A consent order was provided on 14 April 1999 in the following terms: "1. The decision of the Refugee Review Tribunal be set aside. 2. The matter be remitted to a differently constituted Tribunal with a direction that that Tribunal comply with the procedures in section 430 of the Migration Act 1958 in that it make and state all such findings of fact as are necessary on the material before it including, but not restricted to, a finding as to whether the Applicant was detained and sexually assaulted by the police in Latvia prior to his departure. 3. The Respondent pay the Applicant's costs as agreed or taxed." Based on the explanation made at the time of the hearing and the terms of the proposed consent order, judgment was given accordingly. As there is said to be some difference in the approach taken by the Judges of this Court to the making of consent orders of this kind, I think it appropriate to set out my reasons for adopting the course taken in this and similar cases. 7 In making a consent order the Court exercises judicial power. This is a power conferred upon it by the Parliament under Chapter 3 of the Constitution. Its exercise is a public function and operates to bind the parties. Its public character applies to agreed orders disposing of private litigation between citizens or corporations and proceedings brought by or against governments and their agencies or public authorities. 8 An order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record. 9 There is a fundamental difficulty where a court makes an order remitting a matter to a decision-maker or tribunal to be decided "according to law" and the court itself is not informed of the nature of the error conceded. The court is then making an order without being apprised of its basis and proposed operation. To do so in my opinion is a purported, but not an actual exercise of judicial power. Moreover, in a practical sense the decision-maker or tribunal lacks the benefit of any binding direction from the court as to precisely what it is that the decision-maker or tribunal is required to do. In the present case the precise concession which led to the proposed consent order had not been communicated by the respondent to the applicant. The possibility arose that the matter could have been remitted to the Tribunal with the parties themselves not being ad idem as to the error of law which had led to the decision being set aside and which the Tribunal was required to rectify. And even if there had been such an agreement the terms of the order proposed would not have disclosed to the public what the parties had agreed should be its content. In the particular case where a tribunal decision is set aside, the tribunal itself is not usually a party and has played no role in the negotiation of the agreement that it erred in law. A fortiori in that case the order must be clear and complete and the Court must be satisfied that it is appropriate. 10 The importance of public disclosure of the full terms of the Court's orders even when based upon compromise between the parties, was emphasised by Blackburn J in National Bank of Australasia Ltd v Solar (1976) 28 FLR 372. There the parties applied to the Court for an order in terms of a compromise they had reached, including a provision that the terms of the compromise not be disclosed. Blackburn J declined to make the order requested. He said at 373: "The principle that everything done in court is seen and heard by anyone who is present, and thus capable of being reported elsewhere, is one which is far too valuable to be abandoned in particular instances at the wish of the parties. It is a poor kind of open court in which the details of the court's order are known only to persons who happened to be sitting in the public gallery at the time the order was pronounced (as would have happened here if I had made the order requested). It is an even poorer kind of open court in which the public are allowed to hear all the proceedings except the final order." His Honour drew a distinction with the case in which the parties agree between themselves to compromise their differences without a court order. As he observed: "In such a case, the proceedings can be discontinued and there is no publication of the terms of the compromise. This is no contravention of the principle of open courts; it simply means that as the parties have ceased to resort to the court for the resolution of their differences, the terms of the compromise are enforceable only as a contract, and not by way of the court's process." 11 The Federal Court Rules make provision for consent orders in O 35 r 10 but require the matter to be brought before a Judge by the Registrar unless in respect of an order which the Registrar has power to make. Order 35 r 10(3) provides: "The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Judge." It is well established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make – Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163. The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so – see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 at 86 and the authorities referred to there. It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal. 12 In the Native Title Act 1993 (Cth) specific provision exists for the Court to make orders consistent with the terms of agreements reached between the parties. But the Court must be satisfied that such an order "would be within the power of the Court" and it must appear to the Court to be "appropriate" to make the order (s 87(1)). The Native Title Act in that respect imposes no novel regime for these are matters of which the Court must be satisfied in any order which it is to make whether by consent or otherwise. It is important to stress, as I observed in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (supra) that it is not the function of the court to impede settlement between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court's jurisdiction and are otherwise unobjectionable. In relation to proposed consent orders and undertakings the Court will not simply substitute its own view of the orders it would have made if those proffered fall within the range of an appropriate disposition of the case. That does not exempt the Court making such an order from ensuring it is within power and that it is appropriate to make the order. In the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred. 13 It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal. If such a determination is to be set aside on the basis that it has failed to apply or has misapplied the law whether substantive or procedural, there may potentially be some precedential impact in other like cases. To permit the principle underlying the order to be formulated only by the parties in their submissions to the decision-maker or the tribunal leaves the content of that principle in the hands of the parties. 14 This approach to the making of consent orders does not require exacting inquiry into the basis for every such order that is sought. There are many consent orders both of an interlocutory and a final nature which are perfectly regular and within power on their face and which reflect a considered resolution by parties of legal capacity to make the agreements reflected by those orders. One example of a "routine order" of this kind is a consent order dismissing an application. There are other orders which have particular public interest elements and require closer examination before the Court accedes to them. 15 It is a minimum requirement in every case that the order should be expressed in clear and intelligible terms. The fact that an order is made by consent does not warrant a less stringent standard for the precision of its expression – Broers v Foster (1981) 36 ALR 605 at 614 and 621. But as already pointed out there is more involved in this case than mere lack of precision. In the ordinary course after a contested hearing on a judicial review application such an order may be made and its content derived from the reasons for judgment that accompany it where an error or errors in law are identified. Absent such reasons, and without further explanation in the order itself, the decision-maker would lack any binding direction from the Court as to precisely what it was that the decision-maker was required to do. 16 In my opinion the making of orders in this form albeit by consent on a purported exercise of judicial power may fall short of the exercise of that power. 17 There appears to be little reported authority on this issue generally in the context of judicial review although I note that Sackville J considered the point in a recent decision. In Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 his Honour adjourned a hearing where consent orders were proposed. After asking the Minister's representative on what basis the intervention of the Court was justified her response was that the Tribunal's "serious error of fact" made it appropriate that the matter be remitted for further consideration. However his Honour took the view that since the Migration Act 1958 (Cth) does not provide a ground of review for errors of fact, the Minister should consider whether there was an error of law or other ground of review that could justify the orders that were to be made by consent. Upon the resumption of the proceeding before his Honour the relevant ground of review was identified as failure to comply with a requirement of s 360 of the Migration Act requiring the Tribunal to give an applicant the opportunity to appear before it, to give evidence and to present arguments relating to issues arising in connection with the decision under review. In that case having regard to the concessions made by counsel for the Minister his Honour was prepared to accept that a ground of review had been made out under s 476(1)(a) of the Migration Act and that accordingly he had power to set aside the decision of the Tribunal and to make the other orders that had been put forward by consent. His Honour also made some observations about the decision of the Tribunal which was under review. 18 In conclusion it may be appropriate in cases where the relevant statute permits, that the decision-maker simply revisit the decision under review without specific direction from the Court. In the case of an official delegate or minister who is the respondent to review proceedings there may be agreement between applicant and respondent to that effect. In the case of a tribunal this might be upon the address of both parties. Whether such a facility is available will depend upon the particular statutory framework in which the decision under review has been made – Sloane v Minister for Immigration Local Government and Ethnic Affairs (1992) 37 FCR 429 at 442-444. It may be possible to devise some internal provision of the statutes governing review of administrative decisions to enable such convenient steps to be taken where review proceedings have been commenced without exposing the decision to recommit or not recommit the matter for reconsideration itself to judicial review. 19 I do not think it necessary that a Judge in making consent orders of this kind should ordinarily elaborate reasons for being satisfied that they are within power and appropriate. I do not propose to do so in this case. I think it sufficient that the Judge be satisfied of the matters which I have referred to earlier and that the terms of the consent order themselves reflect the basis upon which the matter is being remitted to the Tribunal. It may be that parties submitting a consent order in such cases as well as formulating it with the requisite specificity could submit a brief joint memorandum identifying from the record those parts of the decision-maker's decision or process which disclose the conceded error. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 6 May 1999 Counsel for the Applicant: Ms Martin Solicitor for the Applicant: T.A. Murphy, Legal Aid Commission of NSW Counsel for the Respondent: Mr Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 April 1999 Date of Order: 14 April 1999 Publication of Reasons: 6 May 1999