Ozmanian v Minister for Immigration & Multicultural Affairs [1997] 256 FCA

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - determination of refugee status - acknowledged error of law by Tribunal - failure to consider whether the applicant had become a refugee sur place - whether the Court should substitute its decision for that of the Tribunal - whether declaratory relief available - determination of refugee status dependent on unresolved factual matters - principles applicable.

ADMINISTRATIVE LAW - judicial review - consent by Minister to order to remit the matter to the Tribunal for determination according to law - whether the Court should decide whether the Tribunal gave proper, genuine and realistic consideration to the applicant's claims where the decision would not effect the order to be made.

Administrative Appeals (Judicial Review) Act 1977 (Cth), s.16(1)(d).

Migration Act 1958 (Cth), s.417.

Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151.

Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1.

Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225.

Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528.

Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322.

Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103.

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100.

Sordini v Wilcox (1983) 70 FLR 326.

OZMANIAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 249 OF 1996

Sackville J

Sydney (Heard in Melbourne)

17 April, 1997

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIAN DISTRICT REGISTRY ) No. VG 249 of 1996

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THIS COURT

BETWEEN:

TOZN OZMANIAN Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent

MR M GERKENS (Sitting as a member of the Commonwealth Refugee Review Tribunal) Second Respondent

CORAM: SACKVILLE J.

PLACE: SYDNEY (HEARD IN MELBOURNE)

DATE: 17 APRIL, 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.     The applicant be granted leave to amend the application in accordance with the motion filed on 5 March 1997.

2.     The decisions of the Minister's delegate of 10 September 1993 and of the RRT of 8 July 1994, that the applicant is not a refugee, be set aside.

3.     The application to the RRT in respect of refugee status, filed by the applicant on 1 October 1993 (including the applicant's claim that he is a refugee sur place), be remitted to the RRT, differently constituted, for determination according to law.

4.     The application otherwise be dismissed.

5.     The Minister pay the applicant's costs of these proceedings up to and including 18 February 1997 and that the applicant pay the Minister's costs of these proceedings after that date (in each case, including reserved costs, if any).

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

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIAN DISTRICT REGISTRY ) No. VG 249 of 1996

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THIS COURT

BETWEEN:

TOZN OZMANIAN Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent

MR M GERKENS (Sitting as a member of the Commonwealth Refugee Review Tribunal) Second Respondent

CORAM: SACKVILLE J.

PLACE: SYDNEY (HEARD IN MELBOURNE)

DATE: 17 APRIL, 1997

REASONS FOR JUDGMENT

This case has a somewhat curious history. It is necessary to trace some of this history in order to understand the narrow issues at stake in the present proceedings.

The Background

The applicant was born in Armenia and lived there until 1993. He is of Kurdish origin and is well known in the Kurdish community of Armenia as a journalist and author. He arrived in Australia in June 1993 and on 29 June 1993 applied for refugee status. He claimed, among other things, that "ethnic cleansing" of Kurds had taken place in Armenia and that he feared that he and his family would be shot if they returned. In particular, the applicant claimed that, as a well- known Kurdish intellectual, he was especially at risk of being killed.

In August 1993, the applicant was interviewed by the Minister's delegate in the Determination of Refugee Status branch ("DORS") of the Department. The delegate requested the Australian embassy in Moscow to make inquiries about the plight of Kurds in Armenia. An officer from the embassy visited Armenia in August 1993 and reported in a cable that the inquiries did not reveal discrimination against or mistreatment of minorities, including Kurds. On 10 September 1993, the delegate determined that the applicant was not a refugee and was therefore not entitled to a Domestic Protection (Temporary) Entry Permit.

On 1 October 1993, the applicant applied to the Refugee Review Tribunal ("RRT") for the decision of the delegate to be reviewed. On 8 July 1994, the RRT affirmed the decision of the primary decision- maker. The RRT found that the applicant's account of violations of human rights in Armenia was inconsistent with reports from authoritative sources, including the Australian embassy delegation which had visited Armenia. The RRT stated its conclusion as follows:

"Whilst I acknowledge the potential for any minority group to experience a degree of discrimination, I do not accept the applicant's claims of persecution; either by the Armenian authorities or by nationalist groups within Armenia.

I find that there is not a real chance that the applicant would be persecuted on Convention grounds were he to return to Armenia at this time or within the reasonably foreseeable future."

On 4 August 1994, the applicant instituted proceedings seeking judicial review of both the RRT's decision and the delegate's decision. Because the proceedings were instituted before 1 September 1994, they are unaffected by the Migration Reform Act 1992 (Cth), which came into force on that date. By his application, which was subsequently amended, the applicant sought, inter alia, a declaration that each of the decisions was void and an order requiring the RRT to reconsider its decision according to law. Among the grounds relied on was the alleged failure of the RRT to take relevant considerations into account, including the applicant's claim that the inquiries made by the embassy delegation in Armenia had disclosed his identity and increased the likelihood that he would suffer persecution.

It has taken over two and a half years for the proceedings seeking judicial review of the RRT's decision to reach a hearing. The delay is accounted for by the decision of the applicant to pursue another course in the meantime, in order to obtain a visa to allow him to remain in Australia. On 4 October 1994, the applicant requested the Minister to grant him a protection visa under what is now s.417 of the Migration Act 1958 (Cth) (the "Migration Act"). That section confers on the Minister power to grant a protection visa to a person who is present in Australia and who has been determined by the RRT not to be a refugee, if the Minister considers it in the public interest to do so. The applicant's request was rejected. He was advised by a letter dated 29 November 1994, from a Ministerial adviser, that the Minister was under no obligation to consider every request received and that a decision had been made not to refer the applicant's case to the Minister for the latter's personal consideration.

The applicant did not at that stage attempt to reactivate the judicial review proceedings that had been commenced in August 1994. Rather, he filed a fresh application in the Court on 13 April 1995, challenging the refusal to grant his request to be issued a protection visa under s.417 of the Migration Act 1977 . He sought relief primarily under s.16 of the Administrative Decisions (Judicial Review) Act (Cth) (the "ADJR Act") and s.39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act 1958 "). The Minister resisted the claim for relief in these proceedings (to which I refer as the "second proceedings") on the ground, inter alia, that the Migration Act, as amended by the 1992 Act, denied the Court the power to grant the relief sought by the applicant.

The second proceedings were decided by Merkel J on 13 May 1996: Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103. His Honour held that the 1992 amendments precluded the applicant from obtaining relief in respect of any decision made under s.417 of the Migration Act. However, his Honour also held that the applicant was entitled to a declaration that a breach of the rules of natural justice had occurred in connection with the conduct engaged in for the purpose of the making of a decision under s.417.

In his judgment, Merkel J referred to the application for refugee status determined by the RRT and said this (at 107-108):

"At the outset of the hearing the applicant, through his interpreter, complained that his identity had been improperly revealed by the inquiries made by embassy officers in Armenia. He said that those enquiries had led local people in Armenia, who had been involved in them, to conclude that they related to the applicant. That, in turn, was said by him to have led to further threats, including death threats, being made in relation to him and his family.

The RRT, constituted by Mr M Gerkens, explained that the tribunal had had no involvement whatsoever in causing the enquiries to be made and proceeded with the hearing.

The embassy cable was shown to the applicant to enable him to respond to the conflict between the information contained in it and his version of events.

When asked at the conclusion of the hearing if he had anything further to add the applicant returned to his complaint about the ramifications, to him, of the embassy visit to Yerevan and, through his interpreter, said:

'if prior to the visit of representative of Australian embassy it was just a fear he would be killed if he returns. Now, it is a certainty.'

The impression I received from reading the transcript of the hearing was that the RRT did not regard the complaints made in relation to the embassy visit as having any bearing upon the issues which it had to decide. Rather, it saw the complaints as relating to the failure to protect the applicant's identity from disclosure to overseas authorities. That was a failure which the RRT indicated it had not caused, and for which it was not responsible.

My impression was confirmed by the RRT's decision which was handed down on 8 July 1994. The decision made no reference whatsoever to the issues and fears raised by the applicant in relation to and resulting from, the embassy visit to his home town, Yerevan."

His Honour did not consider further the decision of the RRT, since the application for judicial review of that decision was not before him. Indeed, Merkel J's judgment does not contain any reference to the pending application to review the RRT's decision. I was told from the bar table that Merkel J had been informed that the application was pending, but that the parties had indicated to his Honour that they nevertheless wished to have the second proceedings determined. Merkel J in his judgment referred to the matter as a "test case" (at 105).

The Minister appealed to the Full Court from the orders made by Merkel J. On 21 November 1996, the Full Court allowed the appeal, and set aside the declaratory order made by Merkel J: Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322. I was a member of the Full Court which determined the appeal. In my judgment, with which Jenkinson and Kiefel JJ agreed, I made no reference to the pending application for judicial review of the RRT decision. This was because the Court was not informed that any such application was pending. My account of the facts, which in this respect was largely drawn from Merkel J's judgment, contained this passage (at 328):

"On 5 August 1993, Mr Ozmanian was interviewed by the minister's delegate. Following this interview, the delegate sought information from the Australian Embassy in Moscow concerning the plight of Kurds in Armenia. A reply was received on 18 August 1993, recording the results of a visit by Embassy personnel to Armenia. The cable suggested that Kurds were not maltreated or discriminated against in Armenia."

(I should note that the parties to the present proceedings indicated that they had no objection to my deciding the matter, notwithstanding my involvement in the proceedings determined by the Full Court.)

An application for special leave to appeal to the High Court from the decision of the Full Court was refused on 14 February 1997.

The Minister's Concession

I was informed that as early as 11 November 1996 - before the Full Court handed down its decision, and, of course, before the High Court determined the special leave application - the Minister's solicitors advised the applicant's solicitors that the Minister was prepared to agree to an order setting aside the decision of the RRT and remitting the matter to the RRT for determination according to law. The Minister also agreed to pay the applicant's costs of the application. The Minister's offer was subsequently confirmed in writing, although apparently not until 18 February 1997.

Mr Tracey QC, who appeared on behalf of the Minister, stated that the Minister accepted that the RRT had erred by failing to consider whether the applicant had become a refugee sur place. In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 (FCA/FC), Gummow J cited with approval (at 117) the following passage from the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1979) which explains the concept of a refugee sur place:

"94. The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee 'sur place'.

95. A person becomes a refugee 'sur place' due to circumstances arising in his country of origin during his absence. Diplomats and other officials serving abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their residence abroad and have been recognised as refugees.

96. A person may become a refugee 'sur place' as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities."

Mr Tracey acknowledged, on the Minister's behalf, that the applicant had claimed before the RRT that his identity had been improperly revealed through the inquiries made by Australian embassy officers in Armenia, and that the improper disclosure had led to death threats. The Minister conceded that, in these circumstances, the RRT should have determined whether the applicant had become a refugee sur place. Mr Tracey said that the Minister had been influenced to make this concession by the comments made by Merkel J about the course of events before the RRT.

The offer made by the Minister did not satisfy the applicant. By a notice of motion filed on 5 March 1997, the applicant sought leave to further amend the amended application, by substituting the following claims for relief:

"(a) A declaration that each of the decisions was unlawful, void and of no effect.

(b) An order restraining the firstnamed Respondent by himself, his servants or agents from taking any steps to deport the Applicant and/or his wife and daughter from Australia, pending the hearing and final determination of this matter or further order.

(c) An order that each of the decisions be set aside.

(d) A declaration that the Applicant is a person to whom Australia has protection obligations under the Convention Relating to Refugee Status and is entitled to a Protection Visa under the Migration Act.

(e) Alternatively to paragraphs (c) and (d), an order requiring either or both of the respondents to reconsider the said decisions according to law.

(f) Costs.

(g) Such further order or orders that this Honourable Court may consider appropriate."

Paragraphs (a), (b), (e) and (f), in substance, reproduce claims for relief previously made in the amended application. Curiously, the amended application does not expressly seek an order that the decision be set aside (paragraph (c) of the motion), although such relief was perhaps implicit in the claim for an order requiring either or both the respondents to reconsider their decisions according to law. The declaratory relief sought in paragraph (d) of the motion had not been sought in the amended application.

Mr Tracey stated that the Minister did not oppose orders:

setting aside the determination of the RRT and the primary decision-maker;

requiring the RRT to reconsider the decision according to law; and

requiring the Minister to pay the applicant's costs up to and including 18 February 1997.

The Minister was also prepared to give an undertaking that the applicant would not be deported pending the hearing and determination of any reconsideration of the case by the RRT. Furthermore, although the proposed amendments do not include a claim for an order that the reconsideration of the case should be undertaken by a differently constituted RRT, the Minister accepted that such an order was appropriate.

The Applicant's Submissions

Mr Hanks, who appeared on behalf of the applicant, in substance made two submissions.

First, even though the Minister had conceded that the RRT's decision should be set aside, nonetheless I should consider and rule upon the applicant's contention that the RRT had failed to give proper or genuine consideration to his claim that he had a well-founded fear of persecution on Convention grounds.

Secondly, I should make a declaration, pursuant to s.16(1)(d) of the ADJR Act that the applicant is a person to whom Australia has protection obligations under the Convention and who is entitled to a protection visa under the Migration Act.

The Claim for Declaratory Relief

It is convenient to deal first with the applicant's claim for declaratory relief.

Mr Hanks contended that the evidence before the RRT on the applicant's claim to have become a refugee sur place was all one way. The applicant had specifically stated in his application to the RRT, dated 29 September 1993, that he strongly objected to the Australian embassy making open inquiries about him in Armenia, which, he claimed, exposed members of his family to persecution. The applicant also gave evidence to the RRT that, as a consequence of the embassy's inquiries, the fact that he had applied for refugee status had become known in Armenia. Threats had been made against his brother, who had been forced to leave the country. The applicant stated that now it was "a certainty" that he would be killed if he returned to Armenia. The material before the RRT included a letter from the applicant's brother, dated 11 September 1993, stating that armed men had come to his (the brother's) house. According to the letter, those men had called the applicant a traitor and threatened to kill him. Furthermore, as Merkel J noted (at 124) the cable from Australia requesting the Australian embassy to undertake inquiries was made in terms that could have led local authorities to have identified the applicant.

Mr Hanks identified s.16(1)(d) of the ADJR Act as the source of power to grant declaratory relief. Section 16(1)(d) provides as follows:

"(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

...

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."

The applicant relied on Sordini v Wilcox (1983) 70 FLR 326 (FCA/FC). In that case, Blackburn and Woodward JJ held that s.16(1)(d) of the ADJR Act permits the Court, in an appropriate case, to substitute its own determination for that of a body whose discretionary judgment has miscarried because it has applied the wrong test, or has failed to give any weight to important facts: see at 331- 332, per Blackburn J; at 343-344, per Woodward J.

In Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 (FCA/FC), Sheppard J (with whom Beaumont and Burchett JJ agreed) accepted (at 536) that s.16(1)(d) of the ADJR Act "plainly confers power upon the court, in an appropriate case, to order a decision-maker...to decide a matter in a particular way". However, his Honour qualified this proposition (at 341) as follows:

"If the decision-maker, although his discretion has miscarried, is left with a residual discretion under the statute to decide the ultimate question favourably or unfavourably to the successful applicant, the order which the court makes should, notwithstanding the width of s.16 of the Act, usually, if not invariably, be one which remits the matter for further consideration according to law. Where, as here, what has transpired has amounted to a constructive failure to deal with the real application which has been made, it will sometimes be appropriate, (for example, in cases of substantial urgency from the point of view of the aggrieved party) to require the decision-maker to make a decision forthwith or within a limited time."

While rejecting the view that the power conferred by s.16(1)(d) should be exercised only where the decision-maker has acted unreasonably in the Wednesbury sense, Sheppard J said (at 537- 538) that the power is more likely to be exercised where it is shown that the decision complained of involves an error of law and is based upon uncontested facts.

In Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 (FCA/FC), it was held that the Minister's delegate had denied procedural fairness to an applicant for refugee status. The question was then whether the matter should be remitted to the Minister or whether the Court should determine the question itself. Carr J, with whom Sheppard and Gummow JJ agreed, rejected the submission that the Court should determine the question (at 240):

"In these matters, the ultimate question is not so much the exercise of a residual discretion but a finding whether the status of a refugee exists. That depends on the resolution of as yet unresolved factual matters. Those matters bear upon the question whether the applicants' (admitted) subjective fear of persecution is objectively well-founded. In turn, the determination of that question will involve questions of credibility on such issues as the degree to which the applicants were involved in political activity which would give rise to a real chance of persecution if returned to China. For the court to take on the role of deciding these issues as part of judicial review of administrative action would, in my opinion, be to usurp the function of the decision-maker."

In the present case, the RRT erred, as the Minister concedes, by failing to consider whether the applicant satisfied the definition of a refugee sur place. There was material before the RRT which might have supported a finding that, by reason of the inquiries undertaken by the Australian embassy officials in Armenia, the applicant had a well-founded fear of persecution if he were to return to Armenia. The RRT simply did not appreciate that consideration should be given to this claim, which was made, albeit not explicitly, by the applicant in his application to the RRT and repeated at the hearing.

It is fair to say that the factual material relied on by Mr Hanks, on its face, strongly supports the applicant's claim. But the RRT has as yet made no finding in favour of the applicant. On the contrary, the RRT rejected the applicant's claims that Kurds in Armenia had been the subject of persecution and that he and his family had received threats to their lives. Nor do I think it accurate to say, as Mr Hanks did, that all the material before the RRT pointed the one way on the refugee sur place issue. The RRT had material before it suggesting that Kurds in Armenia were not subjected to persecution. While the applicant and his brother claimed that the effect of the embassy inquiries in Armenia was to expose the applicant to the near certainty of death, it is still necessary for the credibility of those claims to be assessed. In doing so, the RRT, as the fact-finding body, will need to give such weight as it considers appropriate to the information concerning the position of the Kurdish minority in Armenia. It is true that the cables from the embassy pre- dated the alleged threats of persecution consequential upon the embassy's inquiries. Nonetheless, the information contained in the cable and the other reports cited by the RRT are likely to be relevant to the assessment of the applicant's case.

I am not, of course, suggesting that the information referred to by the RRT is sufficient to justify rejection of the applicant's claim to be a refugee sur place. The point is that the RRT is the body charged with the function of assessing the facts underlying a claim to refugee status and it should assess the applicant's claim.

Even if it were true that the only material before the RRT supported the applicant's claim, that would not necessarily mean that there were no unresolved factual issues or that a declaration should be made under s.16(1)(d) of the ADJR Act in favour of the applicant. The failure of the RRT to appreciate that the applicant's claim gave rise to the question of whether he was a refugee sur place meant that it did not explore matters relevant to that claim. In particular, it did not question the applicant, whose account of circumstances in Armenia was apparently not accepted as reliable, as to the likely effect of the inquiries made by the embassy officials. Nor did the RRT request or instigate further inquiries in Armenia on the specific matters raised by the applicant. As Merkel J observed, the RRT treated the complaints made by the applicant in relation to the embassy visit as simply having no bearing on the issues it had to decide. It therefore did not address the factual issues requiring resolution. In these circumstances, it would not be appropriate to proceed on the basis that the only material relevant to the factual issues to be determined by the RRT is that relied on by the applicant in support of his claim to be a refugee sur place.

Mr Hanks referred to Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 (FCA/FC). In that case, an application for special leave to the High Court was granted and the appeal has been heard, although not yet decided. It is enough to say that the circumstances in the present case are different from those found to have existed in Guo v Minister. In that case, Einfeld J expressed the view (at 186) that there were no unresolved factual issues in relation to the appellant's claim to refugee status. Foster J appeared to consider (at 203) that the RRT had already made findings that the appellant had been the subject of persecution for political opinion. In the present case factual issues remain to be resolved in relation to the applicant's claim to refugee status.

In my view, the Court should not decide for itself whether the applicant qualifies as a refugee sur place. That issue should be decided by the differently constituted RRT, to which the matter will be remitted.

Genuine Consideration of the Applicant's Claim

Mr Hanks submitted that I should determine whether the RRT had erred, by failing to give proper, genuine and realistic consideration to the applicant's claim to be a refugee, as defined in the Convention: Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (FCA/Sheppard J). Mr Hanks conceded, as I understood him that, even if I decided this issue favourably to the applicant, it could not lead to orders more advantageous to the applicant than those which the Minister was prepared to accept. The value of the determination to the applicant was said to be that he would have the benefit of an order specifically setting aside the RRT's decision and explaining the respects in which the RRT erred. This would provide guidance to the RRT in making its determination.

It was common ground between the parties that, if the matter were remitted to the RRT, differently constituted, that body would be required to give independent and fresh consideration to all of the issues presented by the applicant's claim. It would not be open to the RRT simply to adopt the findings of the RRT whose decision is to be set aside. Indeed, it would not be open to the RRT to place any reliance on the findings previously made by the RRT, including findings as to the applicant's credit. The matter must be considered afresh, on the basis of the material presented to the RRT. That material, of course, may or may not be the same as was before the RRT when it made the determination of 8 July 1994.

In these circumstances, I think it would neither be desirable nor helpful to undertake the task of deciding whether or not the RRT gave proper, genuine and realistic consideration to the applicant's case. It would not change the orders to be made in these proceedings; nor would it alter the function to be performed by the RRT. A conclusion that the RRT had failed to give the applicant's claim proper, genuine and serious consideration would not necessarily provide any guidance to the RRT in performing its function, particularly bearing in mind that it may have different material to consider and, depending on its consideration of the refugee sur place question, may not even need to decide whether the applicant is entitled to refugee status on other grounds. To adopt the course suggested by the applicant would provide encouragement for those with the determination and resources to continue litigation beyond the point at which it serves a useful purpose.

Costs

It follows from what I have said that the orders that I propose to make are, in substance, those to which the Minister was prepared to consent as early as December 1996. Mr Tracey accepted that the Minister should pay the applicant's costs up to and including 18 February 1997, the date the Minister's representatives notified the applicant's solicitors in writing that the Minister would agree to orders setting aside the RRT's determination and remitting the matter for further consideration according to law. He submitted that the applicant should pay the Minister's costs of the proceedings after that date. Since the applicant has not succeeded in obtaining orders more favourable to him than those offered on 18 February 1997, I think it appropriate to take the course proposed by Mr Tracey.

Orders

The orders I propose to make are as follows:

1.     Grant leave to the applicant to amend the application in accordance with the motion filed on 5 March 1997.

2.     Order that the decisions of the Minister's delegate of 10 September 1993 and of the RRT of 8 July 1994, that the applicant is not a refugee, be set aside.

3.     Order that the application in respect of refugee status, filed by the applicant on 1 October 1993 (including the applicant's claim that he is a refugee sur place), be remitted to the RRT, differently constituted, for determination according to law.

4.     Order that the application otherwise be dismissed.

5.     Order the Minister to pay the applicant's costs of these proceedings up to and including 18 February 1997 and that the applicant pay the Minister's costs of these proceedings after that date.

I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 17 April, 1997

Heard: 4 April, 1997

Place: Sydney (Heard in Melbourne)

Decision: 17 April, 1997

Appearances: Mr P. Hanks, instructed by Erskine Rodan Associates, appeared for the applicant.

Mr R. Tracey QC, instructed by the Australian Government Solicitor, appeared for the respondents.