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Muin v Refugee Review Tribunal

Muin v Refugee Review Tribunal

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MUIN   PLAINTIFF
AND
REFUGEE REVIEW TRIBUNAL & ORS  DEFENDANTS
Muin v Refugee Review Tribunal
[2002] HCA 30
8 August 2002
S36/1999
ORDER
The questions reserved for consideration by the Full Court are answered as follows:
Question 1
Was there a failure to accord the Plaintiff procedural fairness?
Answer
Yes.
Question 2
Was there a failure to comply with s 418(3) of the Migration Act 1958 (Cth)?
Answer
Inappropriate to answer.
Question 3
Was there a failure to comply with s 424(1) of the Migration Act 1958 (Cth)?
Answer
Inappropriate to answer.
Question 4
If the answer to any of questions (1) to (3) is yes,
(a)   Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?
(b)   What declaratory, injunctive or prerogative writ relief, if any, should be ordered?
Answer
(a) Yes.
(b) Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision; and mandamus should issue to the first defendant directing it to hear and determine the plaintiff's review application in accordance with law.
Question 5
By whom should the costs of the proceedings be borne?
Answer
The second and third defendants.
Representation:
M A Robinson with R Nair for the plaintiff (instructed by Adrian Joel & Co)
No appearance for the first defendant
J Basten QC with R T Beech-Jones for the second and third defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
NANCY LIE   PLAINTIFF
AND
REFUGEE REVIEW TRIBUNAL & ORS  DEFENDANTS
Lie v Refugee Review Tribunal
8 August 2002
S89/1999
ORDER
The questions reserved for consideration by the Full Court are answered as follows:
Question 1
Was there a failure to accord the Plaintiff procedural fairness?
Answer
Yes.
Question 2
Was there a failure to comply with s 418(3) of the Migration Act 1958 (Cth)?
Answer
Inappropriate to answer.
Question 3
Was there a failure to comply with s 424(1) of the Migration Act 1958 (Cth)?
Answer
Inappropriate to answer.
Question 4
If the answer to any of questions (1) to (3) is yes,
(a)   Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?
(b)   What declaratory, injunctive or prerogative writ relief, if any, should be ordered?
Answer
(a) Not answered.
(b) Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision; and mandamus should issue to the first defendant directing it to hear and determine the plaintiff's review application in accordance with law.
Question 5
By whom should the costs of the proceedings be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] HCA 30
Decision Date: 8 August 2002

CaseChat Overview and Summary

In *Muin v Refugee Review Tribunal*, the applicant, Mr Muin, sought judicial review of the Refugee Review Tribunal's decision to affirm the refusal of his protection visa application. The dispute centred on whether the Tribunal had afforded Mr Muin procedural fairness, specifically by failing to have regard to relevant documents and by not providing him with a reasonable opportunity to respond to adverse material. The matter came before the Full Court of the Federal Court of Australia.

The primary legal issues before the Court were whether there had been a failure to accord Mr Muin procedural fairness, and whether this failure constituted jurisdictional error. Relatedly, the Court was asked to consider whether there had been a failure by the Secretary of the Department of Immigration and Multicultural Affairs to comply with specific provisions of the *Migration Act 1958* (Cth), namely sections 418(3) and 424(1), concerning the provision of relevant documents to the Tribunal. The Court was also required to determine the appropriate relief if such failures were found.

The Full Court found that Mr Muin had been denied procedural fairness. The Court reasoned that the Tribunal had failed to provide Mr Muin with a reasonable opportunity to respond to adverse material that it had considered. This failure was considered to be a denial of natural justice and amounted to jurisdictional error. Consequently, the Tribunal's decision was invalid. The Court answered the reserved questions by stating that there was a failure to accord procedural fairness, and that the Tribunal's decision affirming the refusal of the protection visa was invalid for that reason. The Court ordered that prohibition issue to prevent the defendants from acting on the Tribunal's decision, certiorari to quash that decision, and mandamus to direct the first defendant to hear and determine the plaintiff's review application in accordance with law. The costs of the proceedings were ordered to be borne by the second and third defendants.

Orders

Orders of the court

The questions reserved for consideration by the Full Court are answered as follows:

Question 1

Was there a failure to accord the Plaintiff procedural fairness?

Answer

Yes.

Question 2

Was there a failure to comply with s 418(3) of the Migration Act 1958 (Cth)?

Answer

Inappropriate to answer.

Question 3

Was there a failure to comply with s 424(1) of the Migration Act 1958 (Cth)?

Answer

Inappropriate to answer.

Question 4

If the answer to any of questions (1) to (3) is yes,

(a) Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

(b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

Answer

(a) Yes.

(b) Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision; and mandamus should issue to the first defendant directing it to hear and determine the plaintiff's review application in accordance with law.

Question 5

By whom should the costs of the proceedings be borne?

Answer

The second and third defendants.

Background

Background to the litigation

In my opinion, only Mr Muin has made out a claim for relief. Before considering the grounds of relief sought, it is useful to set out some background details about each of the plaintiffs and their claims.Mr Muin's case: BackgroundApplication for a protection visa Mr Muin applied for a protection visa in August 1996. In March 1998, a delegate of the Minister refused to grant him the visa[16].[16]Section 496 of the Act gives the Minister power to delegate his powers. Under s 65 the Minister has the power to refuse a visa. The prescribed criterion for a protection visa, under s 36, is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention. In refusing the application, the delegate relied on 31 items of evidence that were listed under the heading "Part B Evidence Before Me" in the delegate's reasons. They included the Departmental file relating to Mr Muin, a judgment of this Court, the UNHCR Handbook, reports from government bodies and non-governmental organisations and articles in the print media. The delegate found that Mr Muin feared that, if he was returned to Indonesia, he would be persecuted for reasons of race. He feared discrimination and racism and also extortion by corrupt government officials. The delegate found that such conduct could constitute persecution. But, after considering the Part B material, the delegate found that the fear was not "well-founded" because Mr Muin did not face a real chance of Convention based persecution on return to Indonesia.Application for review Late in March 1998, Mr Muin applied to the Tribunal to review the delegate's decision. When an applicant applies to the Tribunal, the Act requires the Tribunal to inform the Secretary of the Department of Immigration and Multicultural Affairs of the application. The Secretary is required to give to the Registrar of the Tribunal the statement of reasons for the delegate's decision. In addition, s 418(3) requires the Secretary as soon as is practicable, after being notified of the application, to give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered to be relevant to the review of the decision. A principal issue in these proceedings is whether the Secretary complied with this requirement. In the Agreed Facts, the parties have agreed that the items in the Part B material were in the "possession or control" of the Secretary at all material times and were "considered by the Secretary to be relevant to the review of the decision". But they dispute whether the Part B materials were documents and, if so, whether they were given to the Registrar. In April 1998, after being notified of the application, the Secretary dispatched the Department's file concerning Mr Muin to the Registrar of the Tribunal. According to the Agreed Facts, the file "did not include hard copies of any of the Part B documents or copies in electronic form". The Agreed Facts reveal that it was possible for the Secretary to have created hard copies of the Part B documents and for the Tribunal to have accessed the documents itself:"Each of the Part B documents was available to … the Tribunal from the dates, and from the source … to the extent that:(a) They could ... go to ... a computer ... [and] manually access the CISNET database, download the information to the ... screen, and then, view the relevant Part B documents on the computer screen [this was the case for items 5, 6, 8, 9, 11,12, 17, 18, 21, 22, 23, 24, 25 and 26 or use other computer software programs and databases for items 13, 14 and 27];(b) They could ... apply to the Department's CIS Library in Canberra for an inter-library loan or to be provided with a copy of the relevant Part B document [this was the case for items 3, 4, 7, 10, 15, 16, 20 and 30 all of which were also available from the Tribunal's own library];(c) They could ... physically attend the Tribunal library to view or copy the relevant Part B documents by way of a computer terminal, a computer, or in hard copy form and they could ... request the Tribunal library staff to obtain a copy for them [this was the case for items 2, 3, 4, 7, 10, 15, 16, 19, 20 and 30].(d) They could ... physically attend the New South Wales State library to view or copy the relevant Part B documents ... and they could ... request the Tribunal library staff to so obtain a copy for them [this was the case for items 28, 29 and 31 (newspaper articles from 1994 and 1995)]."

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ GAUDRON J HUGH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON J, HUGH J

The facts, the relevant legislative provisions and the questions reserved for the consideration of the Full Court are set out in other judgments. I shall repeat them only to the extent necessary to make clear the reasons for my answers to the reserved questions.Transmission of documents to the Refugee Review Tribunal and their consideration In each of these cases, the second question reserved for the consideration of the Full Court asks whether there was a failure to comply with s 418(3) of the Migration Act 1958 (Cth) ("the Act"). Section 418 sets out administrative procedures to be taken when an application is made for review of a decision by the Refugee Review Tribunal ("the Tribunal"). By sub-ss (2) and (3), the Secretary of the Department of Immigration and Multicultural Affairs ("the Secretary") is required to give to the Registrar of the Tribunal ("the Registrar") various documents including, by sub-s (3), "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". The decisions of the original decision-maker in each of the present cases referred to written materials which were not physically handed to the Registrar. Those materials have come to be known as "the Part B documents". Much of the material consisted of background reports and articles, including newspaper articles, with respect to the position in Indonesia of Indonesian nationals of Chinese background and the ability and willingness of Indonesian authorities to provide for their protection. At the time of the decisions by the Tribunal, some of the Part B documents were in electronic form on databases available both to the Department and to the Tribunal. However, the databases were changed from time to time with the consequence that a different or abridged version of some of the material was on the relevant database when, in each case, the Tribunal was conducting its review. Other material was in the Country Information Service Library of the Department of Immigration and Multicultural Affairs ("the Department") in Canberra or in the Tribunal's own library. In the case of Mr Muin, a few other documents were available only in the State Library of New South Wales. In each case it is agreed that the Part B documents were documents that were in the possession and control of the Secretary or his delegate and were considered by him to be relevant to the decision of the original decision-maker. There are difficulties with the parties' agreement to this effect. First, there is a question whether the materials in question are documents for the purposes of s 418(3) of the Act. It is not obvious that, given the context and purpose of s 418, the documents referred to in sub-s (3) extend beyond departmental documents which relate to the particular applicant seeking review. Certainly, it is not clear that the sub-section refers to background reports and articles concerned with the political or other situation in the applicant's country of origin. Moreover, it is difficult to see on what basis it could be said that the material that was available only in the State Library of New South Wales was in "the Secretary's possession or control".