FEDERAL COURT OF AUSTRALIA

Applicant A55/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 824

APPLICANT A55/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S53 of 2003

FINN J

21 JULY 2003

ADELAIDE

            NO CATCHWORDS

THE COURT ORDERS THAT:

1.                  The application be struck out.

2.                  The consideration of costs be adjourned to a date to be fixed. 

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

FEDERAL COURT OF AUSTRALIA

Applicant A141/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 825

APPLICANT A141/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MARGARET O’BRIEN, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S122 of 2003

FINN J

21 JULY 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be struck out.

2.                  The consideration of costs be adjourned to a date to be fixed. 

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

FEDERAL COURT OF AUSTRALIA

Applicant A161/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 826

APPLICANT A161/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, WENDY BARRON, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S140 OF 2003

FINN J

21 JULY 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be struck out.

2.                  The consideration of costs be adjourned to a date to be fixed. 

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

FEDERAL COURT OF AUSTRALIA

Applicant A226/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 827

APPLICANT A226/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JACK HOYSTED, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S195 of 2003

FINN J

21 JULY 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be struck out.

2.                  The consideration of costs be adjourned to a date to be fixed. 

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

REASONS FOR JUDGMENT

1                     The parties in all of these matters through their counsel have accepted my proposal that there be composite reasons for judgment for them all.

2                     An amended application in each of the matters sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision not to grant the respective applicant a protection visa.  Each of the applications, which were in identical terms for all present purposes, founded themselves on the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  No amended application was supported by an affidavit notwithstanding the requirements of O 4 r 6 of the Federal Court Rules.  There were, however, identical accompanying written submissions which did no more than restate in slightly expanded form the boilerplate terms of the amended application which were themselves a truncated version of the grounds in Muin.

3                     The Muin grounds, if I can so describe them, alleged that the respective applicant was denied procedural fairness (hence there was a jurisdictional error) in that, to abbreviate (i) the applicant was misled into believing that certain documents that were before the Minister’s delegate (ie “the Part B documents”) were also before the Tribunal, so affecting the applicant’s conduct in relation to the Tribunal;  and (ii) account was taken of material adverse to the claim made without giving notice of it or opportunity to respond to it.

4                     It is well accepted, as Gleeson CJ commented in Re Minister for Immigration and Multicultural Affairs;  Ex parte Lam (2003) 195 ALR 502 at [37]:

“Fairness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

5                     As has been made plain in a sequence of decisions of the Full Court of this Court, the precondition for making out a Muin challenge is the establishment of the factual substratum necessary to enliven it in the individual case in question:  see eg NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293;  VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350;  SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351.  So, for example, as Hill J observed in NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 at [16] in relation to a Muin Part B documents allegation:

“What is important and it appears in the judgments in Muin itself is that in that case there was a factual sub-stratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and, secondly, that the applicant had relied upon an assurance by the Tribunal that it had read the documents and, accordingly, had not put further material before the Tribunal.”

6                     In each of these matters, subsequent to the filing of a Notice of Motion by the respondent Minister to have the proceeding struck out as disclosing no reasonable cause of action, a judge of this Court gave the respective applicants liberty to file affidavit material to lay a factual foundation for the allegations made in their amended applications.  That liberty was not availed of.  Rather, purported Notices of Discontinuance were filed in all four matters on 10 July 2003.

7                     The basis of the Minister’s motions, which are now before the court in each of these matters, is the lack of evidence supporting the respective applications.  There is a complete absence of such evidence.  Each motion must be allowed for this reason and the amended applications struck out.

8                     An application having been made by the respondent Minister for a costs order against each applicant’s legal adviser (the same person in all cases), I adjourn the consideration of costs to a date to be fixed.

Additional Comments

1.         Applicant A55/2002

9                     I would only note that, to the extent that this application relied upon account being taken of material adverse country information, the Tribunal appears to have used virtually the same country information as was used by the Minister’s delegate.  The only significant difference was that the Tribunal had regard to the 2000 as opposed to the 1999 US State Department report.

2.         Applicant A141/2002

10                  The applicant in this matter was simply disbelieved.  The application was doomed irrespective of any alleged procedural fairness.  The making of the claim relating to the Tribunal’s purported use of adverse country information (the second Muin ground) is disturbing.  As the reasons of the Tribunal made plain, it did put country information to the applicant at the hearing.

3.         Applicant A161/2002

11                  This application failed because the applicant was comprehensively disbelieved.  Any alleged lack of procedural fairness in relation to country information could not alter the inevitable fate of this application.  One questions why it was made.

4.         Applicant A226/2000

12                  No additional comment.

Associate:

Dated:              7 August 2003