FEDERAL COURT OF AUSTRALIA

WAKM v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 730 

WAKM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W167 of 2003

CARR J

6 APRIL 2004

PERTH

BY CONSENT, and on the basis that Ground 3 of the Further Amended Application, filed on 15 March 2004, has been made out,

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 12 June 2003 to affirm the decision not to grant the applicant a protection visa be set aside.

2.         The applicant’s application dated 29 November 2000 for review of the decision of a delegate of the Minister to refuse the applicant a protection visa be remitted to a differently constituted Refugee Review Tribunal for reconsideration in accordance with the law.

3.         The respondent pay the applicant’s reasonable costs to be agreed and, if not agreed, to be taxed.

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

REASONS FOR JUDGMENT

1                     This application was set down nearly three months ago for hearing today.  On 31 March 2004 the solicitors for the applicant wrote to the Court advising that the respondent had agreed that the application should be allowed, that the parties were in the course of agreeing the terms of a minute of consent order and requesting that today’s hearing date be vacated “… on the basis that the matter has settled.” 

2                     However, the parties have been unable to agree upon the terms of a consent order.  They are in agreement that the decision of the Refugee Review Tribunal affirming the decision of the respondent’s delegate not to grant the applicant a protection visa be set aside, that the application for review of the delegate’s decision be remitted to a differently-constituted Tribunal for reconsideration in accordance with the law and that the respondent should pay the applicant’s reasonable costs to be agreed and, if not agreed, to be taxed. 

3                     The applicant proposes that there be added to the first of the orders, after the words “be set aside” the following four paragraphs:

‘(a)      on the basis that the Tribunal failed to give effect to a Ministerial Direction No. 15 of 1999, pursuant to s.499(2) of the Migration Act, 1958 (Cwth), which required that weight be given to leading decisions by fellow tribunal members and that there be consistency across different review applications in seeking to ensure there are not different outcomes where applicants have similar circumstances; 

(b)       the Tribunal erred in failing to take account of RRT Reference VO2/13794 being a decision of Janet Wood dated the 25^th October 2002, who found that chiefly because of a close friendship, over a protracted period between the Applicant and a high profile dissident Aung Aung in Australia, the Applicant faced a real chance of persecution for convention reasons;

(c)        that the Applicant here claimed he was at risk by reason of a close association between himself and the dissident Aung Aung;

(d)       that the Tribunal ought to have considered, and given the Applicant an opportunity, to comment upon the nature of the friendship between himself and Aung Aung and in failing to do so, committed jurisdictional error.’

4                     When the matter came on for hearing this morning, Mr J D Allanson, counsel for the respondent, informed me that the respondent consented to the orders proposed on the basis that ground 3 of the further amended application had been made out.  Ground 3, in summary, asserts error of law and jurisdictional error on the Tribunal’s part in that portion of its reasons where it dealt with how the applicant would behave if he were returned to Burma.  In summary, the Tribunal expressed its satisfaction that given the nature of the Burmese regime and the applicant’s understanding of that regime before he came to Australia, he would in fact “… act reasonably to modify his conduct in Burma so as to avoid the risk of persecution.” 

5                     The preponderance of the authorities show that in matters such as this the Court should satisfy itself that the consent orders proposed are within power and appropriate.  In this matter that includes making an assessment that jurisdictional error has occurred and, in my view, sufficiently identifying the jurisdictional error: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674.  In Khan at [4], O’Loughlin J observed, in my respectful view correctly, that it was not essential that the error of law be specified in the proposed order.  It might be sufficient for the Minister to prepare a memorandum in which the error was identified and if the Court were satisfied that the memorandum accurately reflected the position, it could be attached to and form part of the order of the Court.  In my view, a further alternative might be, if the memorandum properly described the jurisdictional or other error of law, to cause it to be forwarded to the Tribunal by the Registrar of this Court. 

6                     In this matter I am satisfied that ground 3 of the further amended application has been made out.  In my view, the Tribunal’s reasons show that it fell into error of the type identified by the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71. 

7                     Mr R E Lindsay, counsel for the applicant, sought to persuade me that I should also make reference in the consent orders to the errors advanced by the applicant and described in the four paragraphs which the applicant proposed be added to the first of the orders to be made.  He said that this would be of considerable assistance to the applicant when he next appeared before the Tribunal.  I do not doubt that that would be so. 

8                     However, as I pointed out to Mr Lindsay, in the absence of the respondent’s consent to that course I could not adopt it without hearing full argument from both sides and conducting what would amount to almost a full trial of the matter.  In those circumstances, if the applicant were unsuccessful in relation to his other grounds, he might well be exposed to the risks of a costs order. 

9                     I indicated that, in my view, it would be appropriate in the course of giving short reasons for resolving the matter, for me to make it quite clear that the fact that I did not include the four additional paragraphs, should not be taken as indicating a view that they were without merit. 

10                  In the end, after taking instructions, Mr Lindsay conceded that the applicant would be content for the matter to be dealt with on that basis. 

11                  Accordingly, I confirm that although the consent orders will be made on the basis that ground 3 of the further amended application has been made out, as the respondent conceded, my refusal to deal with the other grounds of the application should not be taken as any indication whatsoever about the merits or otherwise of those grounds. 

12                  It is not uncommon for a court, having found one ground for allowing an application, to decline to consider other grounds in matters such as this. 

13                  Accordingly, in due course I will publish these reasons in an edited form so that they may be read with the consent orders.  The Tribunal will thus understand the basis upon which its decision was set aside.

Associate:

Dated:              8 June 2004