Ly v Minister for Immigration

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

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.
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.
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.
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.
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.
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.
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.
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

The Federal Magistrates Court of Australia was presented with a case concerning the admissibility of evidence in a judicial review of a decision made by the Migration Review Tribunal. The applicants, Haing Ieng Ly and Eng Chhay Ly, sought to challenge the Tribunal’s decision through the admission of affidavits and annexed material that had not been before the Tribunal when it made its original decision. The applicants argued that the Tribunal had made a jurisdictional error by not considering certain facts, and they cited authorities to support their claim of unfairness and procedural breach. The central legal issue was whether the Court should admit the new evidence, and if so, whether such admission would lead to a conclusion that the Tribunal had made a jurisdictional error.

Turner FM, the presiding judge, examined the applicability of the cited authorities and found that the situation did not align with the principles established in R v Criminal Injuries Compensation Board; Ex parte A, which had been referenced by the applicants. The judge held that the Tribunal had not breached any legal procedures required by law, and thus, the applicants had not been denied procedural fairness. The Court further clarified that admitting the new evidence would extend beyond its statutory jurisdiction to conduct a judicial review. The judge ruled that the affidavits and annexed material, which contained information not previously before the Tribunal, were irrelevant to the question of whether the Tribunal had made a jurisdictional error based on the existing material. The Court determined that admitting the new evidence would be unfairly prejudicial to the respondents and would potentially cause confusion and waste of time, thereby refusing to admit it pursuant to s.135 of the Evidence Act 1995 (Cth).

In conclusion, the Federal Magistrates Court dismissed the application to admit the new evidence, finding that it did not pertain to the jurisdictional error alleged by the applicants. The Court upheld the original decision of the Migration Review Tribunal, affirming that no jurisdictional error had occurred on the material before it. Turner FM's decision was grounded in the statutory limits of judicial review and the principles of fairness and procedural integrity, ensuring that the Court's role was not usurped by an appellate function.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established