FEDERAL COURT OF AUSTRALIA Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674 MIGRATION – judicial review of Refugee Review Tribunal decision – whether it is appropriate for the Court to make an order, by consent, remitting a matter to the Tribunal without stating reasons W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387 followed Yulanti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 applied Kovalev v Minister for Immigration and Multicultural Affairs [2001] FCR 323 applied MUHAMMAD KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S 144 OF 2001 O'LOUGHLIN J 30 NOVEMBER 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 144 OF 2001 BETWEEN: MUHAMMAD KHAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 30 NOVEMBER 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The Refugee Review Tribunal decision No 1/39659 dated 30 August 2001 be set aside. 2. The matter be remitted to the Refugee Review Tribunal differently constituted for reconsideration. 3. The respondent pay the applicant's costs to be taxed or agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 144 OF 2001 BETWEEN: MUHAMMAD KHAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 30 NOVEMBER 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant claims to be a Shia Muslim, an ethnic Pashtun and a citizen of Afghanistan. He arrived illegally in Australia and his subsequent application for a protection visa was rejected, first by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") and then by the Refugee Review Tribunal ("the Tribunal"). When the applicant sought review of the Tribunal's decision, the respondent Minister initially filed written submissions, opposing the application and supporting the decision of the Tribunal. However, shortly before the hearing date a document entitled "Consent Order" was filed in Court. It read: "The Court orders that: 1. The Refugee Review Tribunal decision No 1/39659 dated 30 August 2001 be set aside. 2. The matter be remitted to the Refugee Review Tribunal differently constituted for reconsideration. 3. The Respondent pay the applicant's costs to be taxed or agreed." 2 The document was signed by the solicitor for the respondent and by the applicant. 3 The document entitled "Consent Order" was forwarded to the Court by the solicitor for the Minister under cover of a letter to my Associated dated 8 November 2001. That letter, so far as it is relevant for present purposes, reads as follows: "The reasons for the Minister agreeing to remit [the] matter to the RRT for reconsideration arises from the findings of the RRT at page 25 of the RRT decision in relation to the issue of failed asylum seekers returning to Afghanistan from a foreign western country. The findings made by the RRT may be an error of law in that it may be an incorrect application of the law to the facts pursuant to section 476(1)(e) of the Migration Act 1958 – See W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387." 4 In my opinion the course that has been adopted by the Minister and his advisers is inappropriate. If the Court were to endorse its approval to the terms of the "Consent Order", neither the member of the Tribunal who would hear the matter anew nor the member whose decision was set-aside would be informed of the Court's reasons. The terms of the consent order do not disclose any reasons and the letter from the Minister's solicitor was addressed to my associate – not to the Tribunal. When I drew these matters to the attention of counsel, I was informed that on the fresh hearing before the Tribunal, the Minister's advocate would inform the Tribunal of the error in the first Tribunal's reasons. That is not a sufficient, nor, indeed an appropriate answer. It is not sufficient because any statement that may be made by the Minister's advocate could only be persuasive at the best – it could not be authoritative. The identification of an error in the reasons of the Tribunal can only come, authoritatively, from a decision of this Court. Furthermore, counsel's answer was not appropriate because it overlooks the fact that it is the Court – as distinct from the parties – which must be satisfied that there has been a reviewable error in the reasons of the Tribunal. This issue was addressed earlier this year in some detail by Stone J in Yulanti v Minister for Immigration and Multicultural Affairs [2001] FCA 142. It was also discussed by French J in Kovalev v Minister for Immigration and Multicultural Affairs [2000] FCR 323 where his Honour said that he would not accept a "Consent Order" unless the error of law was specified in the proposed order. Nothing that his Honour said should be taken as meaning that his proposition was the only available course of action. Another proposition would have the Minister prepare a memorandum in which the error was identified. If the Court was satisfied that the memorandum accurately reflected the position, it could be attached to and form part of the order of the Court. 5 Another proposition is for the Court to receive the benefit of submissions from the parties and, if so convinced, present its reasons for setting aside the decision of the Tribunal. That is the course that I have adopted in this particular case. 6 In seeking the protection of the Convention, the applicant argued that he, having left Afghanistan illegally, and having sought asylum in a western country, faced a real chance of being persecuted for his imputed political opinions if he were returned to Afghanistan. As to this the Tribunal said at p 25 of its reasons: "In the statement accompanying his original application, the Applicant said that if he were forced to return to Afghanistan the Taliban would kill him because he was a Shia Muslim and he had escaped from them and had sought asylum in a foreign western country. In their submissions dated 10 August 2001 and 27 August 2001 the Applicant's representatives argued that, if the Applicant were to be returned to Afghanistan, his action in seeking asylum in a western country would be construed as being adverse to the Taliban and he would therefore have a well-founded fear of being persecuted by reason of his imputed political opinion. At the hearing before me the Applicant asserted that the leader of the Taliban, Mullah Omar, had ordered that those who had left Afghanistan for the West would be killed if they returned to Afghanistan. However, as I put to the Applicant in the course of the hearing before me, UNHCR is repatriating failed asylum-seekers to Afghanistan from Iran (DFAT Country Information Reports Nos. 516/00, dated 6 October 2000, CS45308, and 17/01, dated 21 December 2000, 49915) and it is well-established that Iran is a Shia Muslim country and that the Iranian Government and the Taliban are opposed to each other (see, for example, Anthony Davis, 'Fateful victory', Asiaweek, 28 August 1998, 32613). As I put to the Applicant, if UNHCR believes it to be safe to return failed asylum-seekers from Iran to Afghanistan, then I consider that it would be safe for the Applicant, as a failed asylum-seeker, to return to Afghanistan from Australia. In their submission dated 27 August 2001 the Applicant's representatives questioned whether Afghan refugees were voluntarily repatriating to Afghanistan. However the evidence to which they referred relates to the forcible deportation of many Afghans from Iran rather than the programme of voluntary repatriation being conducted under the auspices of UNHCR." 7 In W124 v Minister for Immigration and Multicultural Affairs [2001] FCA 1387 French J came to the conclusion that the Tribunal did not give appropriate consideration to the question whether there was a chance that, by reason of being a failed asylum seeker in Australia, the applicant would face persecution upon his return to Afghanistan. His Honour was of the view that this risk had not been given any realistic consideration. His Honour said at par [40]: "Had it been given any real consideration it would have been apparent to the Tribunal that there was no rational ground for excluding it. In this case the failure of rationality in the Tribunal's reasons does not provide a ground for review. But it does evidence an underlying failure on the part of the Tribunal to pose for itself the critically important question that it should have asked. Its failure to pose the question constitutes a failure to apply the criteria under the Refugee convention …" In that case, as in this case, the Tribunal was influenced by the fact that the UNHCR was involved in the repatriation to Afghanistan of failed asylum seekers from Iran. I respectfully adopt the view of French J. I am satisfied that there is a reviewable error in the reasoning process of the Tribunal. There will be orders in terms of the "Consent Orders" that were prepared by the Minister's solicitors. Postscript: I orally announced my reasons in this matter when it was called on for hearing on 12 November. I have not, in preparing these written reasons, had regard to the events that have occurred in Afghanistan – and in particular the setbacks that the Taliban have suffered – since that date. Those events may, or may not, be matters that are to be considered by the Tribunal when it reconsiders this application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 30 November 2001 The Applicant appeared in person: Counsel for the Respondent: Ms Trudi Case Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 November 2001 Date of Judgment: 30 November 2001