Minister for Immigration and Multicultural Affairs v Yusuf

[2001] HCA 30
(2001) 62 ALD 225
(2001) 75 ALJR 1105
(2001) 180 ALR 1
(2001) 206 CLR 323

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(Decision by: McHugh J, Gummow J, Hayne J)

Minister for Immigration and Multicultural Affairs
vYusuf

Court:

Judges: Gleeson CJ
Gaudron J

McHugh J
Gummow JKirby J

Hayne JCallinan J

Legislative References:
-

Case References:
-

Hearing date:
Judgment date: 31 May 2001

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Decision by:
McHugh J
Gummow J
Hayne J

[59] The facts and circumstances which give rise to the present proceedings, and the relevant statutory provisions, are set out in the reasons for judgment of Callinan J. We do not repeat them except to the extent that is necessary to explain the reasons for the conclusions we have reached.

[60] The central questions in the proceedings were said to be whether the Refugee Review Tribunal was obliged to make findings on material questions of fact and, if the Tribunal was obliged to do so, whether failure to make such findings was a ground for review by the Federal Court of Australia under s476 of the Migration Act 1958 (Cth) ("the Act") or was a ground upon which this Court might grant relief under s75(v) of the Constitution.

[61] The formulation of the first of these questions, and its references to "obligation" and to "material" questions of fact, stemmed from a series of decisions of the Federal Court about the operation of s430 and s476(1)(a) of the Act ^[19] which culminated in the decision of the Full Court of the Federal Court (constituted as a bench of five members of the Court) in Minister for Immigration and Multicultural Affairs v Singh ^[20] . Although Singh was decided after the Full Court made the decisions under appeal in the present matters ^[21] , it is convenient to use the decision in Singh to identify why this first question was formulated as it was.

A "duty" to make findings

[62] In Singh, four members of the Full Court (Black CJ, Sundberg, Katz and Hely JJ) concluded ^[22] that s430 of the Act "calls for a recording of matters that are essentially matters of fact, namely the decision to which the [Tribunal] came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based". To this general proposition, however, their Honours added a qualification ^[23] : that "[i]f the [Tribunal] fails to make a finding on a fact which is in truth ... a material fact, then s430(1)(c) will not have been complied with, even though the [Tribunal] has recorded its findings in relation to the facts before it that it regarded as material." This, so their Honours concluded ^[24] , is because "the [Tribunal] is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make".

[63] It is appropriate for a court to speak of a decision-maker being "obliged", or having a "duty", to make findings of fact only if that obligation or duty can be enforced in the courts. It is necessary, therefore, to examine the content of the asserted duty and to consider whether established processes of judicial review of administrative action provide a remedy to persons affected by a decision if there has not been a finding on a material matter of fact. That examination must begin from the premise that "[t]o expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government." ^[25]

[64] Two features of the asserted duty to make findings may be noticed. First, the duty is said to relate to the decision which the Tribunal is required to make rather than to the decision the Tribunal actually made. It is, therefore, a duty whose content is to be measured against what the decision-maker was statutorily obliged to do in the particular case. The inquiry focuses upon what should have been done, not on what was done. The findings to which attention is directed are those that ought to have been made. That might be thought to go so far as allowing or requiring inquiry about not only the process of proper decision-making, but also the correctness of what was decided.

[65] Secondly, the facts about which findings must be made are said to be those which, on later judicial inquiry, are found to be objectively material, not those which the Tribunal considered to be material. It follows that inquiring whether the duty has been performed would require examination of the whole of the Tribunal's fact-finding process. The function of fact-finding would no longer be left to the Tribunal. Moreover, as the course of decisions in the Federal Court shows, the reference to "objectively material" facts is not without difficulties. Does it, as the Full Court of the Federal Court held in Xu v Minister for Immigration and Multicultural Affairs ^[26] , require the making of findings on ultimate facts rather than primary facts? Is materiality to be determined by reference to the facts on which the Act expressly or impliedly requires the decision-maker to make findings? Or is it, as the Full Court held in Singh ^[27] , to be determined by reference to the way in which the Tribunal in fact approached the case? The wider the definition of "material", the wider the inquiry that must be made into the Tribunal's fact-finding.

[66] It is necessary to begin consideration of whether there is a duty of the kind suggested by examining s430. Only that section deals expressly with findings of fact by the Tribunal. Further, in the various decisions we have mentioned, the Federal Court identified only this section as the source of the duty. Counsel for Mr Israelian relied upon the reasoning adopted in those decisions.

[67] S430(1) of the Act obliged the Tribunal to prepare a written statement that does four things:

"(a)

sets out the decision of the Tribunal on the review; and

(b)

sets out the reasons for the decision; and

(c)

sets out the findings on any material questions of fact; and

(d)

refers to the evidence or any other material on which the findings of fact were based."

As was rightly observed in the joint judgment in Singh ^[28] , this section calls for a recording of matters that are matters of fact. In particular, s430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

[68] S430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make , and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s430(1)(c). It was said ^[29] that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

[69] It is not necessary to read s430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s430 statement was not considered by the Tribunal to be material ^[30] . This may reveal some basis for judicial review by the Federal Court under Pt8 of the Act, or by this Court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error ^[31] . The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration ^[32] .

The "duty" to make findings and traditional grounds of review

[70] Counsel for Ms Yusuf submitted that the Tribunal's duty to make findings of fact arose not just from s430, but from a consideration of the structure of the Act taken as a whole, including the role of the Tribunal and the task it performs in reviewing decisions by the Minister. S47 requires the Minister (whose powers may be delegated by writing under s496) to consider a valid application for a visa, including a protection visa, a class of visa established by s36. S54 obliges the Minister to have regard to all the information in the application. After considering the application, the Minister is required by s65 to grant or refuse the visa.

[71] The task of the Tribunal is to review the decisions of the Minister, or a delegate of the Minister, to refuse to grant a protection visa under s36 of the Act ^[33] . In carrying out that task, the Tribunal may exercise all the powers and discretions that are conferred by the Act on the person who made the decision ^[34] . It may affirm the decision or set it aside and substitute a new decision ^[35] and, if it takes the latter course, the decision is taken to be a decision of the Minister ^[36] . As the Act stood at the relevant time, the Tribunal was obliged to conduct its review in accordance with Div 4 of Pt7 of the Act and unless it was prepared to make the decision on the review that was most favourable to the applicant ^[37] it was obliged to give the applicant an opportunity to appear before it to give evidence ^[38] and to give the applicant notice that he or she could ask the Tribunal to obtain oral evidence from others ^[39] .

[72] In interpreting these provisions collectively as imposing an obligation on the Tribunal to make findings, counsel for Ms Yusuf relied upon Minister for Immigration and Ethnic Affairs v Guo ^[40] and what was said about the significance that consideration of past events may have for determining whether future persecution is likely. In particular, he referred to the statement in the joint judgment that "[i]n the course of determining whether there was a real chance of persecution ... the Tribunal made findings about past events ... as it was entitled and, indeed, bound to do" ^[41] . This, so it was submitted, was consistent only with the Tribunal having a duty of the kind alleged.

[73] It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider ^[42] . In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin ^[43] :

"The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison ^[44] : 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

[74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

[75] As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution. In Minister for Immigration and Ethnic Affairs v Guo ^[45] , six members of the Court said:

"In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."

If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past) ^[46] . It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.

Judicial review under Pt8 of the Act

[76] Framing the inquiry in these terms presents some further questions about the operation of those provisions of the Act that deal with review of decisions of the Tribunal by the Federal Court. The various provisions of s476 enumerate the grounds on which judicial review of Tribunal decisions may be sought. The section does so in a way that, at least at first sight, allows more limited grounds than the grounds on which judicial review may ordinarily be sought.

[77] The Federal Court granted review in these cases on the basis that, by reason of the Tribunal's failure to make findings, the Tribunal had failed to comply with "procedures that were required by this Act or the regulations to be observed in connection with the making of the decision" ^[47] . It is implicit in what has already been said about s430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground. An alleged failure to make a finding of fact on a material question is not a failure to observe a "procedure ... required" by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s430. Accordingly, s476(1)(a) is inapplicable.

[78] That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact. For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations. It is necessary, therefore, to consider some further aspects of s476, especially s476(1)(b), s476(1)(c) and s476(1)(e) and s476(3)(d) and s476(1)(e). Counsel for Ms Yusuf, in the alternative to para(a) upon which the Full Court had based its decision, relied upon one or more of para(b), para(c) and para(e) of s476(1).

[79] Para(b), para(c) and para(e) of s476(1) give as grounds for review by the Federal Court of a decision of the Tribunal:

"(b)

that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)

that the decision was not authorised by this Act or the regulations;

...

(e)

that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision".

Before considering these grounds, it is necessary to notice the other provisions in s476, especially subs(2), subs(3) and subs(4). S476(2) excludes grounds of breach of natural justice and unreasonable exercise of power from the grounds for review available in the Federal Court. That sub-section is cast in general terms and is, therefore, to be read as qualifying the whole of s476(1).

[80] By contrast, the limitations set out in s476(3) and s476(4) have more limited operation. S476(3) limits the construction of the reference in s476(1)(d) to improper exercise of power by excluding questions of relevant and irrelevant considerations from the ambit of that ground. That qualification does not apply, however, to the other paragraphs of s476(1) and it casts no light on how those paragraphs should be understood. Similarly, s476(4) has no relationship with s476(1)(b), s476(1)(c) and s476(1)(e). Subs(4) qualifies the "no evidence" ground of review in s476(1)(g) by limiting its operation to cases in which the decision-maker was required by law to reach a decision only if a particular matter was established, and there was no evidence or other material from which the person could reasonably be satisfied that the matter was established ^[48] or if the decision-maker based the decision on the existence of a fact which did not exist ^[49] . Again, this casts no light on how para(b), para(c) and para(e) of s476(1) should be understood.

[81] The Minister submitted that the use of overarching concepts, such as "jurisdictional error", is inconsistent with a statutory scheme which enumerates both specific grounds of review that are available in the Federal Court, and others that are not. It was therefore submitted, for example, that para(b) of s476(1), which speaks of "the person" who purported to make the decision not having "jurisdiction" to make the decision, extended only to matters in which the Tribunal, or the person who constituted the Tribunal, was not properly authorised to make the decision (because, for example, the Tribunal was not constituted in a proper way).

[82] It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia ^[50] , if an administrative tribunal (like the Tribunal)

"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive ^[51] . Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law ^[52] .

[83] No doubt full weight must be given to s476(3) and the limitations which it prescribes in the construction of improper exercise of power in para(d) of s476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s476(2), are limitations on only one of the grounds specified in s476(1). All this being so, there is no reason to give either para(b) or para(c) of s476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

[84] Moreover, in such a case, the decision may well, within the meaning of para(e) of s476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s476(1)(d), read in light of s476(3)) is not to the point. No doubt it must be recognised that the ground stated in para(e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para(e) deals. That having been said, the addition of the qualification to para(e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s476(1)(e) is made out.

[85] Para(b), para(c) and para(e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s75(v).

[86] We turn then to consider the particular complaints made in the present matters.

Yusuf

[87] The essence of Ms Yusuf's complaint was that the Tribunal made no finding about whether one of the three principal incidents upon which she relied as revealing past acts of persecution was capable of giving rise to a well-founded fear of persecution. She had said that there was an invasion of her house by members of the Hawiye clan during which her husband (and perhaps, she) had been attacked and her husband had been obliged to flee. The Tribunal mentioned an attack on Ms Yusuf's husband in its s430 statement but did not, in terms, describe a house invasion.

[88] The house invasion was said by Ms Yusuf to be an important incident demonstrating that she had a well-founded fear of persecution for a Convention reason - membership of the particular race or social group constituted by her Abaskul clan. In her evidence to the Tribunal Ms Yusuf also spoke of two other incidents. In this Court it was submitted that the Tribunal had dealt with those two other incidents but that it had not dealt with the house invasion.

[89] For the reasons given earlier, even if it were said that whether this invasion occurred in the manner, and with the consequences, described by Ms Yusuf was a material question of fact, a failure to make a finding about it would not amount to a breach of s430, for the house invasion was not material to the decision the Tribunal actually made. Nor, in the particular circumstances of this case, does any failure by the Tribunal to make a finding about this matter in its s430 statement reveal any error of law by the Tribunal or any failure to take account of a relevant consideration.

[90] In its "Discussion of Evidence and Findings" the Tribunal began by saying:

"The Tribunal accepts that the applicant has twice been attacked since the outbreak in 1991 of the civil war in Somalia and that she identified her attackers as being of the Hawiye clan. It notes that the two attacks occurred some time ago and that on each occasion she was assisted by other members of the Hawiye clan."

On its face this amounts to a finding that the Tribunal was persuaded that there had only been two attacks and was not persuaded that there had been more. That view is reinforced by the Tribunal's later reference to "the two isolated occasions the applicant encountered problems" and its reference to her having "twice [come] under attack".

[91] Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well-founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan. This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion. That being so, it is not demonstrated that the Tribunal made some error of law. It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.

[92] The highest point Ms Yusuf's contention reaches, if it is accepted that there were three attacks, is that the Tribunal made an error of fact in concluding, as it did, that there were only two. That does not establish any of the grounds in s476 or any other ground for judicial review. It follows that the Minister's appeal should be allowed, the orders of the Full Court of the Federal Court save as to costs be set aside, the appeal to that Court allowed and in lieu the application for review dismissed. Ms Yusuf's application for order nisi should be dismissed. Consistent with the terms on which special leave was granted, the Minister should pay the respondent's costs of the appeal and the orders as to costs made in the courts below should not be disturbed. There should be no order as to the costs of the application for order nisi.

Israelian

[93] Mr Israelian contended that the Tribunal failed to make a finding about one of the two bases upon which he claimed to have a well-founded fear of persecution. He claimed that he was a refugee both because of his political opinions (being his conscientious objection to military service in connection with a particular territorial dispute between Armenia and Azerbaijan) and because of his membership of a particular social group (being deserters or draft evaders).

[94] The Tribunal found that if, on his return to Armenia, Mr Israelian was punished for not meeting his obligation to give military service it would be "the application of a law of common application, imposed by the authorities regardless of ... any political opinion". This, in the opinion of the Tribunal, did not constitute persecution ^[53] . The Tribunal framed its discussion of the issues in its s430 statement in terms of Mr Israelian's claim to be a "conscientious objector" and concluded that his expressed views "do not disclose genuine convictions based on ethical, moral or political grounds". It did not, in its reasons, refer expressly to his alleged membership of a social group (being that of deserters or draft evaders) although it expressed its conclusion about unwanted consequences that might happen to him on his return as punishment which "would not be motivated by Convention reasons".

[95] The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s476(1)(b), s476(1)(c) and s476(1)(e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.

[96] This was said to be such a case. It was submitted on behalf of the Minister that the finding that Mr Israelian was not a conscientious objector inevitably denied both the holding of a relevant political opinion and the membership of a relevant social group. We do not accept that this is such a case. The social group identified by Mr Israelian was defined by reference to the fact of avoidance of military service, not the reasons for that avoidance. It follows that the finding of fact that was made by the Tribunal did not conclude the issues raised by Mr Israelian's alternative claim.

[97] Nevertheless, it must be recalled that the Tribunal did not base its conclusion affirming the decision to refuse Mr Israelian a protection visa only on its finding about conscientious objection. It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect. Moreover, the evidence to which counsel for Mr Israelian pointed as suggesting that the sanctions imposed on Mr Israelian would go beyond the application of the general law related to deserters, not draft evaders. It was not demonstrated that those groups formed part of a single "social group" within the meaning of the Convention definition. That being so, no relief under Pt8 of the Act or under s75(v) should go. Special leave having been granted on the same terms as were imposed in the matter concerning Ms Yusuf, there should be orders allowing the Minister's appeal, setting aside the orders of the Full Court of the Federal Court save as to costs and in lieu ordering that the appeal to that Court be allowed, the orders of the trial judge save as to costs set aside and in lieu ordering that the application for review be dismissed. The application for order nisi should be dismissed with no order as to costs.