FEDERAL COURT OF AUSTRALIA

Applicant S159 of 2002 v Refugee Review Tribunal [2003] FCA 963

APPLICANT S159 OF 2002 v REFUGEE REVIEW TRIBUNAL & ANOR

N52 OF 2003

EMMETT J

6 AUGUST 2003

SYDNEY

THE COURT ORDERS THAT:

1.         the application be dismissed;

2.         the applicant pay the second respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Bangladesh who arrived in Australia on 21 November 1998.  On 30 December 1998, he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).  On 26 March 1999, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa.  On 23 April 1999, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. 

2                     After a hearing before the Tribunal on 9 August 2000 the Tribunal decided, on 17 August 2000, to affirm the decision of the delegate.  The reasons for that decision were published on 6 September 2000 and, on 22 September 2000, the applicant applied to the Federal Court for review of the Tribunal’s decision pursuant to s 476 of the Act.  On 4 May 2001, a judge of the Court made orders setting aside the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law: see Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 525.  The Minister appealed from that decision and, on 20 December 2001, a Full Court of the Court allowed the appeal, set aside the orders made by the trial judge and ordered that the application for review be dismissed: see Minister for Immigration & Multicultural Affairs v Islam [2001[ FCA 1681.

3                     On 24 April 2002, the applicant lodged an application to the High Court for orders nisi seeking writs of mandamus and certiorari.  At the time the proceeding in the High Court was commenced, a draft order nisi was filed, together with an affidavit of the applicant’s then solicitor annexing copies of the original decision of the Minister’s delegate and the reasons of the Tribunal.  On 25 November 2002, Gaudron J made orders remitting that proceeding to the Federal Court.  That is the proceeding presently before me. 

4                     On 14 February 2003, I directed the applicant to file and serve points of claim and any affidavits on which he intended to rely by 24 April 2003.  The matter was stood over for directions on 23 May 2003.  On that day, I fixed the proceedings for hearing today.  Pursuant to the direction that I gave on 14 February 2003, the applicant filed a document called ‘Points of Claim’ and an affidavit sworn by the applicant on an unspecified date.  The points of claim do not assist very much in stating the basis of the applicant’s claim for relief.  The document simply says that the ‘grounds, relief, reasons and arguments are very similar with a recent High Court Judgments (sic) – see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30’.  Reference is also made to the decision of the High Court in Plaintiff S157/ 2002 v Commonwealth of Australia [2003] HCA 1, reported as (2003) 195 ALR 24.  The affidavit filed in support did not refer to the substance of the case but to the applicant’s difficulties in obtaining legal representation.  The affidavit makes no assertions concerning the matters that were intended to constitute the substance of the claim for relief. 

5                     The only statement of the basis upon which relief is claimed are the grounds set out in the draft order nisi.  No formal hearing of the application for an order nisi has yet taken place and there has been no formal application for relief filed in this Court.  However, I am prepared to embark on the hearing today on the basis that the draft order nisi is treated as an application for final relief in the terms set out. 

6                     When the matter was called on for hearing, the applicant sought a further adjournment.  The adjournment was opposed by the Minister.  The basis upon which an adjournment was sought was that the applicant wished to obtain legal assistance.  He said from the bar table that he had endeavoured prior to today to obtain legal advice but was unable to do so.  He said that he had an appointment with a barrister, but was unable to keep it.  In the circumstances, I do not consider that any sound basis for an adjournment had been made out and, accordingly, I refused the application.

7                     As appears from the points of claim, the applicant’s case appears to be based on arguments advanced in proceedings in the High Court, the decision of which is reported as Muin v Refugee Review Tribunal (2002) 190 ALR 601.  The grounds for relief as set out in the draft order nisi are as follows: 

‘1.        On 26 March 1999 an officer of the Department of Immigration and Multicultural Affairs (“the Department”) made a decision refusing to grant the prosecutor a protection visa (“the Department’s decision”).  In November 1999 the prosecutor applied to the first respondent for review of the Department’s decision.  Section 418(3) of the Migration Act 1958 (Cth) provided at all relevant times that if an application for review is made to the first respondent the Secretary of the Department must give to the Registrar of the first respondent various documents that are in the Secretary’s possession or control and are considered by the Secretary to be relevant to the review of the decision.  The documents referred to in Part B of the Department’s decision were in the possession or control of the Secretary.  It appears that the Secretary did not give a number of these documents to the Registrar, giving rise to a contravention of s 418(3).  The contravention of s 418(3) gives rise to jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No. 1) 2001.

2.         In a letter the first respondent invited the prosecutor to come to a hearing before the first respondent on 9 October 2000.  The first respondent stated in the letter that it “has looked at all the material relating to your application”.  In fact, the first respondent had not looked at all the material relating to the prosecutor’s application, giving rise to a denial of natural justice.  Denial of natural justice is jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001.’

I shall deal with each of those grounds separately. 

8                     In essence,  Ground One is that the Secretary of the Minister’s department failed to give to the Registrar of the Tribunal certain of the documents referred to in Part B of the protection visa decision record.  Part B of the protection visa decision record of the Minister’s delegate is headed ‘Evidence Before Me’ and says as follows:

‘Evidence used in making my decision is found in the following documents:

1.         Departmental file N98/6043 relating to the applicant consisting of all folios. 

2.                  Other sources quoted below’.

It is alleged that such a failure by the Secretary gives rise to a contravention of s 418(3) of the Act.  Section 418(3) provides as follows:

‘The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document or part of a document that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.’ (Emphasis added).

9                     There is no evidence before me that could support a finding that the Secretary failed to give to the Registrar any document considered by the Secretary to be relevant to review of the delegate’s decision.  There is simply no factual basis, therefore, upon which this ground could be established.  In any event, even if there were a failure to comply with s 418(3) it does not follow that the applicant would be entitled to the relief claimed:  see Muin (at 609 [21], 616 [56]-[57], 641 [173]-[179] and 659 [251]).  The first ground is not made out.

10                  In essence, the applicant asserts that the Tribunal did not look at all of the material relating to his application notwithstanding that it told the applicant that it had done so.  The applicant alleges that such a misrepresentation gave rise to a denial of procedural fairness.  It seems to be implicit in the ground that, if the applicant had been told that the Tribunal had not considered all of the material, he would have taken steps to ensure that the Tribunal had regard to that material.

11                  There is no evidence before me as to what material was considered by the Tribunal.  Thus there is nothing before me upon which I could base a conclusion that the Tribunal had not in fact looked at all of the material relating to the applicant’s application.  Nor is there any evidence as to what the applicant could or would have done, assuming that there was material relating to his application that had not been considered by the Tribunal.  There is simply no evidentiary basis to support a finding of a denial of procedural fairness along the lines alleged.  It follows that Ground Two has not been established. 

12                  In those circumstances this application should be dismissed.  The Minister asks for an order for the costs of the proceeding.  Nothing has been advanced to indicate that the usual practice should be departed from.  Accordingly, it is appropriate that the Minister have his costs. 

Associate:

Dated:              16 September 2003