B41 of 2003 v MIMIA

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FEDERAL COURT OF AUSTRALIA

B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30

MIGRATION – where application for protection visa – where did not attend Tribunal hearing – where draft order nisi – where review of proceedings in Refugee Review Tribunal – whether denial of procedural fairness – whether not given opportunity to be heard – whether had notice of hearing – whether Tribunal relied upon additional material that the prosecutor was not able to comment upon – whether well-founded fear of persecution – whether material not before the Tribunal – whether had notice of case to be met – whether error of law – whether immigration adviser’s negligence or incompetence constitutes a ground of review.

Migration Act 1958 (Cth) ss 424A, 424A(1), 424A(3)
Migration Legislation Amendment Act (No 1) 1998 (Cth)

Queensland Criminal Code, s 668E

Muin v Refugee Review Tribunal (2002) 76 ALJR 966 considered
Lie v Refugee Review Tribunal (2002) 76 ALJR 966 considered
R v Home Secretary; Ex parte Al-Mehdawi [1990] 1 AC 876 considered
SBA Foods Pty Ltd v Victorian WorkCover Authority & Anor [2001] VSC 276 cited
Stefanovski v County Court of Victoria & Anor [2000] VSC 417 cited
Hot Holdings Pty Ltd v Creasy & Ors (2002) 210 CLR 438 considered
Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 considered
Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 considered
Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 followed
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 distinguished
Craig v The State of South Australia (1995) 184 CLR 163 considered
R v Home Secretary, Ex parte Sivakumaran [1988] AC 958 cited

IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS, PROHIBITION AND CERTIORARI AGAINST REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; EX PARTE B41 OF 2003

Q 144 OF 2003

DOWSETT J
2 FEBRUARY 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 144 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS, PROHIBITION AND CERTIORARI

AGAINST:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

EX PARTE:

B41 OF 2003
PROSECUTORS

JUDGE:

DOWSETT J

DATE OF ORDER:

2 FEBRUARY 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 144 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER OF AN APPLICATION FOR A WRIT OF MANDAMUS, PROHIBITION AND CERTIORARI

AGAINST:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

EX PARTE:

B41…

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Details
Case
[2004] FCA 30
Decision Date

CaseChat Overview and Summary

This case involves a challenge to the decision of the Refugee Review Tribunal (RRT) by a Fijian citizen, the prosecutor, who applied for a protection visa under the Migration Act 1958 (Cth). The prosecutor's application was initially refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and subsequently affirmed by the RRT. The prosecutor sought to challenge both the delegate's and the RRT's decisions, but the court focused on the RRT's decision as the primary subject of the challenge. The prosecutor argued that the RRT's decision was invalid due to procedural unfairness, including the absence of an opportunity to be heard and reliance on materials not disclosed to him, such as news articles and reports. Additionally, the prosecutor contended that relevant materials from the delegate's decision were not considered by the RRT. The court considered whether the RRT's reliance on undisclosed materials and the absence of the prosecutor during the hearing constituted a breach of procedural fairness.

The court found that the prosecutor's claims of procedural unfairness were not substantiated. The prosecutor did not demonstrate that the RRT had acted negligently or incompetently, nor did the court find any support for the assertion that the RRT relied on a generalized interpretation of the situation in Fiji. The court also rejected the argument that it had jurisdiction to intervene due to the alleged negligence or incompetence of the prosecutor's immigration adviser, noting that no such jurisdiction was conferred upon the court. The court concluded that the RRT's decision was valid, and the application was dismissed.

The court ordered that the application be dismissed, with further submissions to be heard regarding the costs associated with the proceedings.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The course of correspondence between the prosecutor and the Tribunal is of some importance in this case. In his application to the Tribunal, the prosecutor gave his address as 81 Brentford Road, Richlands. He had given the same address in his original application for a protection visa. There is no suggestion that the prosecutor ever notified the Tribunal of any other address. He had the assistance of an immigration adviser in connection with his application to the Tribunal. Her address was also supplied in his application. It appears from the affidavit of Mark Justin Steele (filed on 12 December 2003) that on 18 November 1999 the Tribunal wrote to the prosecutor at the Richlands address, advising him that his application for review was under consideration. A copy of the letter was sent to the immigration adviser. The letter was relevantly as follows:‘We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department’s documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments. Some hearings are conducted by video or telephone conference.If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process. You should quote the file number shown at the top of this letter when sending any documents to the Tribunal. Any documents that are not in English are to be translated into English by an accredited translator.’ Later in the letter, the prosecutor’s attention was drawn to the importance of his advising any change in telephone number, home address or address for service. The prosecutor has sworn that he had not seen this letter until his solicitor showed him a copy on 16 December 2003. Notwithstanding such averment, counsel for the prosecutor, in oral submissions, argued that the prosecutor was led by this letter to believe that all documentation which had been before the delegate would be before the Tribunal (TS 12 l 7 - TS 13 l 4). Unfortunately, I did not notice this inconsistency during the hearing and so did not draw it to counsel’s attention. Nonetheless, it is clear that the evidence does not support the submission. On 10 December 1999 the Tribunal again wrote to the prosecutor at the Richlands address as follows:‘The Tribunal has looked at all the material relating to your application but it is not prepared to make a favorable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.’

Decision

Reasons for decision

DOWSETT J
The prosecutors are Fijian citizens of Indian extraction. They married in Fiji on 4 December 1989 and arrived in Australia on 1 August 1999. On 15 September 1999 they applied for protection visas pursuant to the Migration Act 1958 (Cth) (the “Act”). On 21 October 1999 a delegate of the second respondent (the “Minister”) refused their application. On 25 February 2000, the first respondent (the “Tribunal”) affirmed that decision, noting that only the male prosecutor had sought to establish refugee status. It seems that the female prosecutor was content to rely upon his claim. The prosecutors subsequently sought writs of mandamus, certiorari and prohibition in the High Court. That application has been remitted to this Court. Again, only the male prosecutor has actively challenged the Tribunal’s decision. I shall hereafter refer to him as the “prosecutor”. The Tribunal has indicated that it will abide the order of the Court, save as to costs. DECISION UNDER CHALLENGE The orders sought in the draft order nisi suggest that the prosecutor challenges only the validity of the Tribunal’s decision. However, in his statement of contentions, he also purports to challenge the delegate’s decision. I am presently seized only of the proceedings remitted from the High Court in which the draft order nisi defines the relief sought. In any event, in the prosecutor’s subsequent written submissions, he attacks only the Tribunal’s decision. I therefore proceed upon the basis that only that decision is subject to challenge.GROUNDS The prosecutor’s grounds as set out in the draft order nisi are:‘The (Tribunal) heard the matter in the absence of the prosecutors, and there were certain materials referred to in the Decision that were not delivered to nor explained to the Prosecutors prior to the Decision being made. These materials were:(a)an Article in Reuter News Service, 18 May 1999, Fiji (referred to on page 6 of the (Tribunal’s) Decision and Reasons for Decision; and(b) “rights-Fiji, New Gov’t needs to heal racial wounds” by Kalina Seneviratne Inter Press service 27 May 1999 (cisnet CX35692), referred to on page 7 of the (Tribunal’s) Decision and Reasons for the Decision).’ Two possible complaints of denial of procedural fairness emerge, namely that the Tribunal:®did not give the prosecutor an opportunity to be heard; and ®relied upon material of which the prosecutor was unaware and upon which he had no opportunity to comment.These two criticisms overlap to some extent. In argument the prosecutor also complained that relevant material which was before the Minister’s delegate was not made available to the Tribunal. This material is described as:‘(i) DIMA file CLF1999/14835;(ii) UNHCR Handbook on Procedures & Criteria for Determining Refugee Status, Geneva, 1992;(iii) US Reports, Fiji, 1999.’ The gravamen of this complaint appears to be that the prosecutor would have, himself, put such material before the Tribunal had he known that it would not otherwise have been considered.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Finally, it is asserted that the Tribunal acted pursuant to a policy in that it ‘… wrongly relied upon a generalized interpretation of the current situation in Fiji and of the activities, past and future, of Fijian groups in Fiji and the ability of Fijian authorities to protect the (prosecutor) ... .’ Nothing in the Tribunal’s reasons or in the material offers support for this criticism.NEGLIGENCE OR INCOMPETENCE OF THE IMMIGRATION ADVISER As I have observed, the prosecutor relies, in support of his arguments concerning procedural fairness, upon his assertion of incompetence or negligence on the part of his immigration adviser. I have dealt with that matter. He also submits that the Court has jurisdiction to intervene to protect the prosecutor from the consequences of such incompetence or negligence. It is said that such power is analogous to that exercised by a court of criminal appeal when it intervenes to set aside a verdict where the accused person’s legal representative at the trial was incompetent or negligent. My understanding is that such intervention is, at least usually, pursuant to an express conferment of jurisdiction to intervene where there has been a miscarriage of justice. See, for example, Queensland Criminal Code, s 668E. For present purposes, no such jurisdiction is conferred upon this Court. In any event, as I have previously indicated, I am of the view that neither negligence nor incompetence has been demonstrated. ORDERS The application must be dismissed. I will hear submissions as to costs.