Applicant S80 of 2002 v Refugee Review Tribunal
[2003] FCA 1441
•27 OCTOBER 2003
FEDERAL COURT OF AUSTRALIA
Applicant S80 of 2002 v Refugee Review Tribunal [2003] FCA 1441
APPLICANT S80 OF 2002 v REFUGEE REVIEW TRIBUNAL & ANOR
N226 OF 2003
EMMETT J
27 OCTOBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N226 OF 2003
BETWEEN:
APPLICANT S80 OF 2002
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
27 OCTOBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the application be dismissed;
2. the applicant pay the second respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N226 OF 2003
BETWEEN:
APPLICANT S80 OF 2002
APPLICANTAND:
REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT
JUDGE:
EMMETT J
DATE:
27 OCTOBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of Korea. He first arrived in Australia on 25 February 1993. He departed Australia on 8 April 1993 and returned to Korea, arriving for the second time in Australia on 30 April 1993 and departing on 19 January 1994, again returning to Korea. The applicant arrived for the third time in Australia on 21 February 1994 and departed Australia on 19 May 1994 for Japan. He arrived for a fourth time in Australia on 1 June 1994.
On 2 June 1995, he lodged an application under the Migration Act 1958 (Cth) (‘the Act’) for a protection visa. On 18 April 1997, a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 28 April 1997, the applicant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 10 August 1998, the Tribunal affirmed the decision not to grant a protection visa.
On 11 March 2002, the applicant commenced a proceeding in the High Court of Australia seeking prerogative writ relief in respect of the Tribunal’s decision. A draft order nisi was filed at that time. On 6 February 2003, Gaudron J ordered that the proceeding be remitted to this Court for hearing.
On 14 March 2003, I made orders standing the matter over for further directions on 2 May 2003. On 24 April 2003, Adrian Joel & Co, the solicitors who had commenced the proceeding in the High Court, filed a notice of withdrawal of solicitor. On 2 May 2003, I made orders standing the matter over for further directions on 6 June 2003. On that day, I ordered the applicant to file and serve a statement of claim and any affidavits on which he wished to rely on or before 18 August 2003.
On 4 August 2003, the applicant filed an affidavit to which there was annexed a document entitled ‘Statement of Claim’. The statement of claim sets out the basis on which the applicant claimed a protection visa. It did not specify any grounds upon which there could be judicial review of the Tribunal’s decision. The affidavit to which it was annexed did not make any attempt to establish facts that would support the grounds of review set out in the draft order nisi filed in the High Court.
The grounds specified in the order nisi are as follows:
‘1. On 18 April 1997, an officer of the Department … made a decision refusing to grant the [applicant] a protection visa …. The [applicant] applied to the [Tribunal] for review of the Department’s decision. Section 418(3) of the [Act] provided at all relevant times that if an application for review is made to the [Tribunal] the Secretary of the Department must give to the Registrar of the [Tribunal] 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 those 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 [Act].
2.By letter the [Tribunal] invited the [applicant] to come to a hearing before the [Tribunal]. The [Tribunal] stated in the letter that it “has looked at all the material relating to your application”. In fact, the [Tribunal] had not looked at all the material relating to the [applicant’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 [Act].’
When the matter came before me on 19 September 2003, I gave leave to the Minister to file a notice of motion seeking summary dismissal of the application on the ground that no cause of action was disclosed. That notice of motion is fixed for hearing today. Order 51A r 5(1)(a) of the Federal Court Rules provides that, unless the Court or a judge otherwise orders, the procedure to be adopted by the Court, at a hearing of an application for an order nisi for a constitutional writ, remitted by the High Court, is to hear the parties at the same time on the application for an order nisi and on the question whether, if the order nisi were made, it should be made absolute.
In effect, the Minister seeks summary dismissal on the basis that no order nisi would be ordered on the hearing of an application for an order nisi. The Minister also contends that, because the applicant requires an enlargement of time within which to commence the proceeding, the order nisi should be refused.
In order to consider the question of an extension of time, the merits of the application are relevant. The first ground is, in my opinion, misconceived and, in any event, is unsupported by any evidence. Section 418(3) of the Act provides that the Secretary must, as soon as practicable, after being notified of an application for review, give to the Registrar of the Tribunal each 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.
Even if there had been a failure to comply with s 418(3), it does not follow that an applicant is entitled to relief of the nature sought. The extreme technicality of non-compliance with s 418(3) would hardly provide a basis for relief in such circumstances as apply in this case. There is no evidence before the Court to establish that there has, in fact, been a breach of s 418(3). Simply because some documents referred to by the delegate were not cited by the Tribunal does not mean that the Secretary was in breach of the obligation imposed by s 418(3), or even that the documents were not conveyed to the Tribunal. There is no basis for drawing such an inference and I would not draw such an inference. There is no evidence before the Court that the Secretary considered that the documents referred to in the delegate’s decision were relevant to the review of the decision.
The second ground is based on principles stated by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. That case was decided by the High Court on the basis of a statement of agreed facts. There is no agreement by the Minister in this case as to the facts or circumstances that may be relevant to the decision that must be made. The onus is on an applicant to make out each of the elements of denial of procedural fairness on the basis that was considered in Muin. The affidavit by the applicant goes no way towards establishing the matters that were conceded by the Minister in Muin.
The assumed facts in Muin were:
(a)the Tribunal had indicated to the plaintiff that it had asked the Minister’s Department to send to it a copy of its documents about the plaintiff’s case and that, when they were received, it would look at them along with other evidence on the Tribunal file to determine whether it could make a favourable decision;
(b)the Tribunal subsequently indicated it had looked at the material relating to the plaintiff’s application but was not prepared to make a favourable decision solely upon it;
(c)the plaintiff believed that the Tribunal had received the documents referred to as ‘the Part B documents’;
(d)some of the Part B documents were favourable to the plaintiff;
(e)the Part B documents had not been considered by the Tribunal;
(f)the plaintiff had been misled into believing that it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the Tribunal;
(g)if he had not been misled and had known that the Part B documents had not been received, the plaintiff would have taken certain steps to correct the situation and he would have tendered additional evidence in support of his position, including decisions favourable to applicants in analogous situations.
There is not a skerrick of evidence in relation to those matters in the material that has been filed on behalf of the applicant in this case. If the matter were fixed for hearing, it could not possibly succeed. There is no suggestion that the applicant requires an opportunity to supplement his evidence with further material. In the circumstances, it appears to me that, if the traditional process for prerogative writs were to be adopted here, an order nisi would not be granted and any enlargement of time would not be allowed. It follows, in my opinion, that the application should be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 9 December 2003
Counsel for the Applicant: The applicant appeared in person with the assistance of a friend Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 October 2003 Date of Judgment: 27 October 2003
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