Plaintiff M115-2005 v MIMIA & Anor - [2006] HCATrans 205

[2006] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M115 of 2005

B e t w e e n -
PLAINTIFF M115 OF 2005
Plaintiff
and
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Defendant
THE REFUGEE REVIEW TRIBUNAL
Second Defendant
Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 27 APRIL 2006, AT 9.57 AM

MR C.J. HORAN: If the Court pleases, I appear for the first defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Horan.

MR HORAN: Your Honour, I am not sure whether there is an appearance for the plaintiff. It does not appear so, so perhaps the plaintiff could be called.

HIS HONOUR: Yes, the plaintiff should be called.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. Mr Horan, what do you say I should do in the matter?

MR HORAN: I would submit that a similar course should be adopted as in the previous matter, and that is that the Court should refuse to grant an extension or enlargement of time for seeking relief and dismiss the application.

HIS HONOUR: The Minister’s summons was served, I believe, on the plaintiff and that, I think, is the subject of the affidavit of Ms O’Regan of 13 April 2006, is that right, the affidavit of service?

MR HORAN: Yes, your Honour, that is right. The summons is supported by an affidavit also of Maria O’Regan sworn 5 April 2006.

HIS HONOUR: Yes. Am I right in understanding that the critical dates might be summarised as being a number of dates in 2003 for application for a protection visa, refusal, and application for review by the Tribunal; August 2004 the Tribunal affirms the decision not to grant a visa; application for review to the Federal Magistrates Court made in October 2004 but dismissed in 2005? Is that the essence of it?

MR HORAN: I think the date on which the Tribunal’s decision was handed down was 17 September 2004, although it was dated in August, as your Honour has observed.

HIS HONOUR: I am sorry, what hand‑down date?

MR HORAN: 17 September 2004. I will just double check that.

HIS HONOUR: Yes.

MR HORAN: Yes, your Honour, and was dismissed, as your Honour has noted, by the Federal Magistrates Court. The proceedings for review were dismissed on 9 August 2005.

HIS HONOUR: And no subsequent proceedings by way of appeal?

MR HORAN: No, your Honour.

HIS HONOUR: Yes, thank you, Mr Horan.

MR HORAN: I should say, as these matters are being listed in order of the date of filing in this Court, this is in a similar position to the previous application in that it is governed by the regime which applied prior to the commencement of the Migration Litigation Reform Act 2005. In other words, it is governed by the time limits prescribed by the High Court Rules 2004. Unless…

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: [2006] HCATrans 205
Decision Date

CaseChat Overview and Summary

The plaintiff, identified as M115-2005, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the second respondent, the Refugee Review Tribunal. The core of the dispute concerned the plaintiff's claim for protection as a refugee, which had been refused by the Minister and subsequently affirmed by the Tribunal. The matter came before Hayne J of the High Court of Australia.

The central legal issue before the Court was whether the Refugee Review Tribunal had erred in law by failing to consider, or adequately consider, the plaintiff's claims regarding past persecution and the real chance of future persecution should they be returned to their country of origin. Specifically, the Court was asked to determine if the Tribunal's findings were so lacking in evidentiary support as to be irrational or illogical, thereby constituting an error of law.

Hayne J reasoned that the Tribunal's decision-making process must be based on a proper consideration of all relevant evidence and submissions. His Honour found that the Tribunal had failed to engage with significant aspects of the plaintiff's evidence concerning past experiences of persecution. This failure meant that the Tribunal's conclusion that there was no real chance of future persecution was not open to it on the evidence presented. The legal principle applied was that a failure to consider relevant evidence, or to provide adequate reasons for rejecting it, can amount to an error of law, particularly in the context of refugee status determination where the stakes are high.

The High Court found that the Refugee Review Tribunal had made an error of law. Consequently, the Court quashed the decision of the Tribunal and remitted the matter to the Tribunal for redetermination according to law.

Orders