Perchine and Anor, Ex Parte - Re MIMA and Ors S228/2001

This matter came before the High Court of Australia concerning an application for writs of certiorari, mandamus, prohibition, and an injunction. The applicants, Andrei and Ekaterina Perchine, sought these remedies against the Minister for Immigration and Multicultural Affairs, Giles Short (sitting as the Refugee Review Tribunal), and John Godfrey (acting Principal Member of the Refugee Review Tribunal). The applicants were represented by Mr. C.D. Jackson, while the first respondent was represented by Mr. M.A. Wigney. The second and third respondents indicated they would not be represented and would submit to the Court's order, save as to costs.

The central legal issues before the Court revolved around allegations of a denial of natural justice and apprehended bias on the part of the Refugee Review Tribunal. Specifically, the applicants contended that the Tribunal made findings of fact during the investigatory stage, evidenced by sarcastic remarks such as "And then again maybe your story isn’t true," which created a reasonable apprehension of bias during the decision-making stage. The Court also considered whether the Tribunal's making of four specific, adverse findings of fact, including that the applicant had fabricated his account and made claims in a deliberate attempt to fall within the definition of a refugee, without prior notice to the applicant, constituted a breach of the second limb of natural justice as established in *Mahon v Air New Zealand*. Further questions arose regarding whether the Tribunal acted without or in excess of its jurisdiction by making findings that no reasonable tribunal should have made, such as rejecting evidence about a policeman's advice due to Finland being a signatory to the Refugees Convention.

The Court, acknowledging the disturbing nature of some aspects of the case and the potential for a breach of natural justice, indicated that the applicants' case would likely stand or fall on the distinction between the investigatory and decision-making stages and the resulting apprehension of bias. His Honour noted that the order nisi lacked particulars and would require amendment. The Court also raised concerns about the appropriateness of the relief sought, particularly the writs of prohibition and injunction against the Minister and the Principal Member respectively. Given the complexity and the disturbing elements identified, and with the consent of the respondents, the Court adjourned the application to allow the applicants to amend their order nisi and file further affidavits, with specific time limits set for these filings.