Ly v Minister for Immigration

[2007] FMCA 1633

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1633

MIGRATION – Evidence – whether affidavits can be admitted which set out material not before the Tribunal when it made its decision – evidence would be unfairly prejudicial and could cause confusion and an undue waste of time.

Evidence Act 1995 (Cth), s.135

R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330
Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1

First Applicant: HAING IENG LY

Second Applicant: ENG CHHAY LY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 3371 of 2006

Judgment of: Turner FM

Hearing date: 27 June 2007

Date of last submission: 27 June 2007

Delivered at: Sydney

Delivered on: 15 October 2007

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Solicitors for the Applicant: Mr S. Ek of Ek Lawyers

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms B. Griffin of Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3371 of 2006

HAING IENG LY

First Applicant

ENG CHHAY LY

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The question for the Court in these judicial review proceedings is whether the Migration Review Tribunal (“the Tribunal”) on the information before it, made a jurisdictional error in reaching its decision signed on 10 October 2006. It is necessary for the Court to rule on the admissibility into evidence of :

   (a)The affidavit (and annexed material) of Sokun Sok sworn on 31 May 2007, and

   (b)The affidavit of Sawathey Ek (and annexed material) sworn on 8 June 2007.

2. It is argued for the applicant that the facts before the Tribunal were not accurate and it thereby made a mistake of fact on a critical matter which amounts to a jurisdictional error. An authority has been referred to in support of the contention “that what happened in these proceedings [before the Tribunal] was a breach of the rules of natural justice and constituted unfairness”: R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 at 345.

3. In Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1 at [42], the High Court observed that the English case (of R v Criminal Injuries Compensation Board) “may perhaps best be characterised as one where, in the terms of par (b) of s.5(1), ‘procedures that were required by the law to be observed in connection with the making of the decision were not observed’”. There is no suggestion in the present case that procedures that were required by the law to be observed by the Tribunal in connection with the making of the decision were not observed. The Court therefore finds R v Criminal Injuries Compensation Board; Ex parte A is distinguishable and of no assistance.

4. In cannot be said that the applicant in the present case was denied procedural fairness by the Tribunal, or anyone else, because a procedure that was required by law to be followed was not followed, or because it decided the case without reference to material that was not before it. To accept the new evidence would take the Court outside its statutory jurisdiction to conduct a judicial review and into the realm of conducting an appeal and admitting new material: the Court is not empowered to do that.

5. The Court finds that the affidavits and material sought to be tendered are not relevant to the question of whether the Tribunal made a jurisdictional error on the material before it, insofar as they relate to material that was not before the Tribunal at the time it made its decision. The question of whether a mistake of fact can amount to a jurisdictional error therefore does not arise for determination.

6. Insofar as the affidavit of Sokun Sok sworn on 31 May 2007 contains documents that were not before the Tribunal, they are not relevant to the question of whether the Tribunal made a jurisdictional error on the material before it, and are therefore not admissible.

7. To admit the evidence would be unfairly prejudicial to the first respondent, and could cause confusion and result in an undue waste of time. Pursuant to s.135 of the Evidence Act 1995 (Cth), the Court refuses to admit those documents that were not before the Tribunal.

8. As to the affidavit of Sawathey Ek sworn on 8 June 2007, paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 contain information that was not, and refer to documents that were not, before the Tribunal when it made its decision. The Court refuses to admit those paragraphs and the documents to which they refer into evidence for the same reasons expressed in relation to the affidavit of Sokun Sok sworn on 31 May 2007.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  Mary Giang

Date:  15 October 2007