FEDERAL COURT OF AUSTRALIA

Kodagodage v Minister for Immigration & Multicultural Affairs [2001] FCA 1275

MIGRATION – refugees – protection visas - appeal against decision of primary judge dismissing application for review of decision of Refugee Review Tribunal – where initial application for protection visa did not comply with statutory requirements – where delegate made decision on an incomplete application – whether application must be perfectly complete when delegate’s decision made – whether deficiencies in application can be cured during merits review by Refugee Review Tribunal.

PRACTICE AND PROCEDURE – principles governing a Full Court declining to reconsider an earlier Full Court decision and following that decision.

Migration Act 1958 (Cth) ss 29, 36, 40, 45, 46, 47, 48A, 48B, 55, 65, 69, 411

Migration Regulations 1994 (Cth) Regs 2.03, 2.07, 886.21

Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 followed

Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 referred to

Wimalaratne v Minister for Immigration & Multicultural Affairs  [2000] FCA 964 referred to

KODAGODAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V290 OF 2001

BLACK CJ, BEAUMONT AND HELY JJ

30 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a judgment of Marshall J by which his Honour summarily dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming an earlier decision of the delegate of the respondent to refuse the appellant a protection visa.  His Honour’s decision is reported:  Kodagodage v Minister for Immigration & Multicultural Affairs [2001] FCA 502. 

2                     It is common ground, and it is clear, that the facts in this case are relevantly indistinguishable from the facts that were considered by a Full Court of this Court in Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495 (“Yilmaz”).  It was frankly acknowledged both before the learned primary judge and also before this Court by Mr Lucas, who assisted the Court as amicus curiae, that the outcome of this appeal ultimately turned upon whether the Court considered that this was a case in which it should reconsider the decision of the Full Court in Yilmaz.

3                     The principles enunciated by the Full Court majority in Yilmaz were applied by a differently constituted Full Court in Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 and, at least in part, were accepted and applied by another Full Court in Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456.  Yilmaz has also been followed at first instance on several occasions: Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 964; Gamage v Minister for Immigration & Multicultural Affairs [2000] FCA 995; Ullah v Minister for Immigration & Multicultural Affairs [2000] FCA 1321.

4                     Having considered the helpful submissions of Mr Lucas and Ms Kennedy, Counsel for the Minister, we are not persuaded that this is a case in which the decision of the majority of the Full Court in Yilmaz (followed as it has been in the later cases mentioned above) should be disturbed.  The authority of a previous appellate court should be followed unless it is “clearly or plainly wrong”:  Transurban City Link Ltd v Allan (1999) 95 FCR 533 at 560; Minister for Immigration & Multicultural Affairs v Singh & Ors (2000) 98 FCR 469 at 475; Telstra Corporation v Treloar (2000) 102 FCR 595 at 601 – 603; and see Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 at [31]; Repatriation Commission v Gorton [2001] FCA 1194 at [25] – [28]. The principles adopted in Yilmaz necessarily govern the outcome of this case.  It cannot be concluded that the decision of the majority in Yilmaz was clearly or plainly wrong and, accordingly, the appeal must be dismissed.

5                     In any event, the particular history of this matter provides a powerful reason to refuse relief on discretionary grounds.  In mid-2000, the Tribunal set aside the delegate’s decision refusing to grant the appellant a protection visa and substituted a decision that the appellant’s protection visa application was not valid and could not be considered.  That result is essentially what the appellant seeks to achieve in the present proceedings.  Shortly after the Tribunal’s decision, the Full Court delivered judgment in Yilmaz.  In reliance on that decision, the appellant applied to this Court for judicial review of the Tribunal’s decision and in September 2000 the Court ordered by consent that the matter be remitted to the Tribunal, differently constituted, to be decided according to law.  In December 2000, the matter having been remitted to the Tribunal, it decided to affirm the Minister’s decision not to grant a protection visa.  The appellant now makes a second application for judicial review to this Court, in which he urges the Court to depart from the decision of the Full Court in Yilmaz, a decision upon which he had previously relied.  In these circumstances, even if the matters were not conluded by Yilmaz, relief should be refused for discretionary reasons: see Yilmaz at [95]; Wimalaratne at [22]; see also Permanent Trustee Co. of N.S.W. Ltd v Campbelltown Corporation (1960) 105 CLR 401 at 409-410 per Kitto J. 

6                     The appeal should be dismissed with costs.

Associate:

Dated:              12 September 2001