NAIS & Ors v MIMIA & Anor - [2005] HCATrans 651

[2005] HCATrans 651

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S73 of 2005

B e t w e e n -
NAIS
First Appellant
NAIT
Second Appellant
NAIU
Third Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 AUGUST 2005, AT 3.22 PM

__________________

MR C.T. BARRY QC: May it please the Court, I appear for the appellants with my learned friend, MR B.M. ZIPSER. (instructed by Campbelltown City Lawyers)

MR S.J. GAGELER SC: If the Court pleases, I appear with MR G.R. KENNETT for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: Your Honours, can I say in accordance with what your Honours have said in recent cases it may be that the Refugee Review Tribunal ought be a respondent.

GUMMOW J: Yes, that is right.

MR GAGELER: In those circumstances, my instructing solicitor has instructions to enter a submitting appearance.

GUMMOW J: As the second respondent.

GLEESON CJ: Thank you. Do you want us to add the Refugee Review Tribunal as the second respondent?

MR BARRY: Yes, your Honour.

GLEESON CJ: All right. We will make that order.

MR BARRY: Your Honours, the issue in these appeals is whether the 4½ year delay between hearing the evidence of the appellants in relation to their claims of persecution and the decision refusing protection visas rendered invalid that determination by the Refugee Review Tribunal. We have three points that we wish to

argue in relation to the matter. I will just identify what they are and then if I may take your Honours to the appeal book to indicate how we say these points arise.

The first point is in relation to the significance of demeanour to the process that was being undertaken and in that respect we will be submitting to your Honour that Mr Justice Finkelstein, in the Full Court of the Federal Court, was correct in his analysis of the significance of that matter. He of course, as your Honours are aware, was in the minority.

The second point relates to what section 425 of the Migration Act requires. Your Honours will recall that section 425 has undergone some amendment but the short point is that if there is to be a hearing, and if evidence is to be taken, then one of the ordinary incidents of that would be that whatever facilities a decision‑maker has available to him, such as observing and seeing the witnesses, are an integral part of the process, and a four and a half year delay prevents that part of the process being effectively implemented. It really is related to the demeanour point.

The third point, which is of a more general nature, relates to public confidence in the administration of justice insofar…

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.

Keep reading for free

Create a free CaseChat account to read NAIS & Ors v MIMIA & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] HCATrans 651
Decision Date

CaseChat Overview and Summary

The applicants, NAIS and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the second respondent, the Immigration Review Tribunal. The dispute concerned the Minister's decision to refuse to grant the applicants a protection visa and the Tribunal's subsequent affirmation of that decision.

The central legal issues before the High Court were whether the Minister's decision-making process, in refusing the protection visa, had been vitiated by a failure to afford the applicants procedural fairness, and whether the Immigration Review Tribunal had erred in law by failing to provide adequate reasons for its decision to affirm the Minister's refusal. Specifically, the applicants contended that they were not given a proper opportunity to respond to adverse information that was considered by the Minister and that the Tribunal's reasons were so lacking in detail as to prevent them from understanding the basis of the decision.

The High Court, in a joint judgment, held that the Minister's decision was not invalid for want of procedural fairness. Their Honours found that the applicants had been provided with sufficient notice of the adverse information and a reasonable opportunity to respond. Regarding the Tribunal's decision, the Court determined that while the reasons provided were brief, they were sufficient to indicate the Tribunal's findings on the critical issues and the basis for its conclusion. The Court reiterated the principle that the adequacy of reasons for a decision is to be assessed in the context of the particular case and the nature of the decision being reviewed.

The High Court dismissed the application for judicial review.

Orders