FEDERAL COURT OF AUSTRALIA Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 MIGRATION – review of decision of Refugee Review Tribunal ("Tribunal") – consent orders – jurisdiction to remit the matter to the Tribunal under s 481(1)(b) of the Migration Act 1958 (Cth) (the "Act")– whether there was a reviewable error under s 476(1)(g) of the Act Migration Act 1958 (Cth) s 476(1)(g), s 476(4)(b), s 481(1)(b) Federal Court Rules O 35 r 10 Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 applied Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 followed Kovalev v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 323 considered Kapagama v Minister for Immigration & Multicultural Affairs [1999] FCA 1881 not followed Fleet v District Court of NSW [1999] NSWCA 363 at [59] referred to Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 referred to Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119 at [33] followed Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221 followed Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 referred to YULIANTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1136 of 2000 STONE J 26 FEBRUARY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1136 OF 2001 BETWEEN: YULIANTI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE OF ORDER: 26 FEBRUARY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the decision of the Refugee Review Tribunal dated 20 September 2000 be set aside; 2. the matter be remitted to the Refugee Review Tribunal differently constituted for further consideration; 3. the Respondent pay the reasonable costs of the Applicant. 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 1136 OF 2001 BETWEEN: YULIANTI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE: 26 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 3 June 1998, the applicant, Ms Yulianti, applied to the respondent ("Minister") for a protection visa to remain in Australia. The Minister's delegate refused her application on 28 August 1998. The Refugee Review Tribunal ("Tribunal") upheld this refusal on 20 September 2000 in a decision handed down on 6 October 2000. On 25 October 2000, Ms Yulianti applied under the Migration Act 1958 (Cth) ("the Act") for review of the Tribunal's decision. 2 On 9 February 2001, the parties submitted the following consent orders for my approval: 1. the matter be remitted to the Tribunal differently constituted for reconsideration according to law; and 2. the respondent pay the applicant's costs in the sum of $526.00. 3 On 12 February 2001, my associate wrote to the solicitors for the respondent, informing them that, despite both parties having consented, I did not believe that I had jurisdiction to make the proposed orders without a ground of review under s 476 of the Act being made out. The respondent has made written submissions to the contrary and also proposed that, if I was not prepared to make the orders consented to, I should make the following orders: 1. the decision of the RRT dated 20 September 2000 be set aside; 2. the matter be remitted to the RRT differently constituted for further consideration; 3. the Respondent pay the reasonable costs of the Applicant. 4 Unfortunately, the revised orders do not address my concerns. The problem is not with the form of the orders but with the Court's lack of jurisdiction to make them. Consent orders 5 The Court's power to order that a matter be remitted to the Tribunal arises under s 481(1)(b) of the Act, which provides that on a application for review of a judicially reviewable decision the Court may refer the relevant matter to the person who made the decision for further consideration subject to "such directions as the Court thinks fit". 6 Section 481(1) was considered by the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 ("Thiyagarajah"). The case was an appeal from the full Federal Court which, despite finding that there was no reviewable error in the Tribunal's decision, had ordered that the matter be remitted to the Tribunal to allow the Tribunal to take account of developments since its decision. The High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held that the full Court was in error. Their Honours said at [33]-[36], that s 481 of the Act must be read with the limitation which s 476 imposes upon the grounds of review. 7 In her submissions, Ms Abadee, counsel for the respondent, attempted to distinguish Thiyagarajah on the basis that in this case the Minister has conceded that the Tribunal had made a reviewable error. The argument relied on the distinction between the provisions empowering the Federal Court to remit matters to the tribunal or decision maker below under the Act and under the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). In Thiyagarajah the High Court commented, at [34], that the terms of s 481 of the Act are wider than s 44 of the AAT Act. The former provides that the Federal Court may remit the matter for further consideration "subject to such directions as the Court thinks fit" whereas s 44(5) provides that the case may be remitted to be heard and decided again "in accordance with the directions of the Court". In the context of the Minister's concession as to reviewable error, the respondent argued that, "it is open to the Court to make orders remitting the matter to the [Tribunal] without identifying a particular ground of review". According to the respondent "there is nothing in Thiyagarajah which would prevent the Court from taking that course". 8 With respect, this submission confuses two quite different issues, namely whether the Court is entitled to make the orders without itself being satisfied of the existence and nature of the error and whether the grounds of review must be specified in the order. In relation to the first issue, the submission cannot succeed because it is the Court, rather than the parties, which must be satisfied that it has jurisdiction prior to making any order. This is not a forum for mediation where the Court derives its jurisdiction from the consent of the parties. The jurisdiction of this Court to review decisions of the Tribunal derives from the Act and the parties cannot by their consent confer jurisdiction which the Court otherwise does not have. In my opinion, Thiyagarajah cannot be distinguished in the manner suggested and, irrespective of the view of the parties, the Court only has power to make an order under s 481(1)(b) where a ground of review in s 476 has been established. 9 I am fortified in this conclusion by the decisions of Sackville J in Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 and French J in Kovalev v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 323 ("Kovalev"). In Kovalev, French J stated at h [11] that: "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 the 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." 10 Notwithstanding the provisions of Order 35 rule 10 of the Federal Court Rules on which the respondent relied, I agree with the views expressed by French J. To the extent that the decision of Whitlam J in Kapagama v Minister for Immigration & Multicultural Affairs [1999] FCA 1881 is inconsistent with those views, I respectfully decline to follow it. 11 In Kovalev, French J also stated that he was not prepared to make the orders sought unless the error of law grounding the decision to set aside the Tribunal's decision and which it was required to address was specified in the proposed order. This comment is relevant to the second of the two issues referred to in par [8] above. In Fleet v District Court of NSW [1999] NSWCA 363 at [59] the New South Wales Court of Appeal (Mason P, Priestley and Handley JJA) stated in relation to proposed consent orders that: "The judicial officers in the courts below are entitled to know why their orders are set aside and this cannot be inferred from the form of the orders proposed by the opponents." 12 I agree that it is necessary that the Tribunal be made aware of the basis on which its decision is set aside. This requirement may be met by specifying in the order the basis on which it is made. However, in my opinion, the grounds may equally well be set out in the Court's reasons for judgment as was done in Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 and Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 by Sackville J and Katz J respectively. In those cases their Honours made orders remitting the matter to the decision-maker under s 481(1)(b) without stating in those orders the nature of the reviewable error. I agree that such orders are within the Court's power under s 481(1)(b); cf Kovalev. However, both Sackville and Katz JJ were satisfied, for the reasons set out in their judgments, that there was a reviewable error. Reviewable error 13 At the hearing Ms Abadee did not wish to expand on her written submissions. Instead, she submitted that if I were not disposed to accept the submissions made on the above point, the Minister would seek to have the matter remitted to the Tribunal on the basis of a reviewable error under s 476(1)(g). This section provides that an application may be made for review by the Federal Court of a judicially-reviewable decision on the ground "that there was no evidence or other material to justify the making of the decision". The section is amplified by s 476(4)(b) which provides that the ground specified in paragraph (1)(g) is not to be taken to have been made out unless (relevantly): "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 14 Ms Abadee identified the fact that did not exist as the finding by the Tribunal that the applicant was not a national of Indonesia. In making this finding the Tribunal referred to the fact that the applicant did not speak Indonesian and had a poor knowledge of Indonesian geography and landmarks. It also relied on the fact that she was unaware of the acronym for the Indonesian national identity card or what that acronym stood for, despite independent evidence that the national identity card was an important aspect of everyday life in Indonesia. 15 It would seem, however, that there is significant evidence to contradict this finding of the Tribunal. In her application for a protection visa, the applicant stated that she was an Indonesian citizen and gave details of her Indonesian passport and attached a certified copy of this passport. The hearing before the Tribunal was held on 1 September 2000 and the Tribunal's decision, dated 20 September 2000, was handed down on 6 October 2000. By letter dated 29 September 2000 and received by the Tribunal on 5 October 2000, the applicant forwarded to the Tribunal a certified copy of her Indonesian identity card. Ms Abadee stated that the Minister accepted that in the light of this evidence the finding that the applicant is not a citizen of Indonesia cannot stand and that therefore the Tribunal had based its finding on a fact that did not exist. Although the applicant's letter of 29 September was received after the date of the Tribunal's decision (but before the decision was handed down) I am satisfied that it is appropriate for me to take account of this additional evidence; see Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119 at [33]. In light of the evidence before the Tribunal and the cultural background of the applicant, the evidence referred to by the Tribunal is insufficient to justify its finding that the applicant was not a national of Indonesia. 16 Ms Abadee quite properly drew my attention to the statement of the Tribunal that even if it had found that the applicant was an Indonesian national it did not accept that she had a well founded fear of persecution. It is not necessary here to expand on the reasons given for this view. Although the Tribunal purported to give an alternative reason for its decision, having reviewed the whole of the Tribunal's reasons for decision I am satisfied that the finding that the applicant was not an Indonesian national was critical to the making of the decision as that concept was explained by Black CJ in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220-221. In this regard, see also the discussion of the full Federal Court in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at [19] et seq. 17 For the reasons set out above and in view of the concessions made by the Minister, I accept that a ground of review under s 476(1)(g) has been made out. I propose to make orders that the decision of the Tribunal made on 20 September 2000 be set aside. The matter is remitted to a differently constituted Tribunal to be determined according to law. As the respondent has conceded, in these circumstances it is appropriate that the Minister pay the applicant's reasonable costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 26 February 2001 Counsel for the Applicant: The applicant appeared in person, assisted by an interpreter Counsel for the Respondent: Ms N Abadee Solicitor for the Respondent: Clayton Utz Date of Hearing: 23 February 2001 Date of Judgment: 26 February 2001