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[2004] FCAFC 99
Federal Court of Australia (Full Court)
2004-05-07
Crennan JJ
Original judgment source is linked above.
THe applicant's affidavit in support of her application for leave to appeal 14 By her affidavit sworn 25 February 2004, the applicant says: '4. … His Honour was well aware that I had no legal representation and just the help of family and friends. His Honour in his decision states that I filed "contentions of law but did not file any affidavit material illustrating how it would have made a difference to her case before the Refugee Tribunal if she had been appraised of adverse country information before it decided her application for a protection visa." 5. In my application and contentions of law I did state in making its decision, the Tribunal failed to observe or breached procedural fairness, in that it has relied upon particular DFAT cables and Country information. Subsequently, the Tribunal has relied upon this information without giving … me the opportunity to respond to that material. I was not aware this had also to be put in an affidavit. In the interests of justice, His Honour could have given me some time to put this information in an affidavit and it would have been the same information as contained in my application and contentions of law. 6. The Tribunal says it put to me independent country information contained in DFAT Cable CL 38234, 15 December 1995, DFAT Cable CL 650 15 May 1997 & advice CX32168 of 14 October 1998. In fairness to the Tribunal I cannot remember these pieces of information being put to me and the response I gave. However, given my age and state of mind, this information should have been put in writing and given to me so that I could properly read it, digest the information and then make a proper response. A response in the context of a tribunal hearing, being under pressure & being nervous was not the best environment. 7. The Tribunal also put information in CX 40992 of 6 April 2000 & a Cable of 19 December 1995 (CX12970). All these pieces of country information were adverse to my case and if the Tribunal was serious in giving me a fair opportunity to respond to these Cables, at the conclusion of the hearing they would have sent to me or my migration agent these pieces of country information and asked me to make written comments on how it affected my case. The Tribunal chose not to follow this procedure.' 15 (The applicant also filed an outline of submissions on 26 February 2004 to similar effect.)
Conclusions on the applicationS for leave to appeal and for an extension of time 16 For the reasons given in the respondent's written outline of submissions dated 5 May 2004 at [17] - [19], it appears that the applicant now seeks to rely (only) upon the second aspect of the Muin decision, that is, an alleged denial of an opportunity to respond to adverse country information. However, in our opinion, for the reasons given in the respondent's outline at [20] to [31], this is a case where, in the absence of any further evidence from the applicant, the Court could not find that there had been any denial of natural justice or 'practical unfairness'.
17 Accordingly, the applications must be refused, with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Weinberg & Crennan.
Associate: Dated: 7 May 2004 Solicitor for the Applicant: No appearance
Applicant M145/2003
Minister for Immigration & Multicultural & Indigenous Affairs
Proceedings in the HIgh Court 7 In circumstances similar to those in Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 98 (hereafter 'M115'), a draft order nisi was filed in the High Court on 21 May 2003. On 23 May 2003, the matter was remitted to this Court.