M144 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from what has been held to be an interlocutory order of the Federal Magistrates Court constituted by Mr McInnis, FM. On 18 March 2004 the learned Magistrate ordered that; '(1) The application for order nisi is refused; (2) The applicant shall pay the respondent's costs fixed in the sum of $2000.' 2 The principles to be applied in deciding whether to grant leave to appeal from an interlocutory order are now well-established. They are that leave should be granted if, first, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court and secondly, a substantial injustice would result if leave were refused supposing the decision to have been wrong; see eg Décor Corporation Pty Ltd v Dart (1991) 33 FCR 397. 3 I have carefully reviewed the reasons for decision of the learned Federal Magistrate, and the reasons for decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The learned Magistrate noted that the applicant had been a party to the representative proceedings in the High Court under the name Muin v Refugee Review Tribunal ("Muin") in which the judgment of the High Court is reported at(2002) 190 ALR 601. In that case, the Minister's delegate had relied on some 31 items of evidence which became known as the Part B documents. After the applicant applied to the Tribunal for review of the delegate's refusal to grant him a protection visa, he was advised by the Tribunal that it had asked the Department to send to the Tribunal a copy of "its documents about your case" and that, when it had received them, the Tribunal would "look at them along with any other evidence on the Tribunal file." In fact, the file dispatched to the Tribunal did not include copies of the Part B documents. In his application to the High Court, Mr Muin stated that, had he been aware of the fact that the Department might not have physically transferred all of the Part B documents to the Tribunal, he would have made submissions to the Tribunal going to the content of the Part B documents, and would have sought to adduce evidence in addition to that which he did send to the Tribunal. It was held by majority of the High Court that there had been a failure to accord procedural fairness to Mr Muin in relation to the Part B documents and because of an omission to acquaint him with a written submission from the Department directed to whether the Indonesian authorities were willing and able to provide protection to citizens of ethnic Chinese background. Some of that information was adverse to Mr Muin. 4 In the present case, the learned Magistrate based his refusal to grant an order nisi on essentially two grounds. The first was that a writ of prohibition could not go to the Tribunal because, once it had published its decision, there was nothing left to prohibit; see Re Batuwantudawa (2003) FCA 684 at [14]. The second ground on which the learned Magistrate based his decision was that the applicant had failed to adduce evidence of what he would have done had he known that certain country information was not before the Tribunal, or that certain other country information (not specified) was to be relied on by the Tribunal. In this respect the learned Magistrate relied on the following observations of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte 'A' (2001) 185 ALR 489, at 501; 'Thirdly the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the Tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the Tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.' 5 The learned Magistrate expressly declined to base his refusal of an order nisi on considerations applicable by analogy to a respondent's application for summary dismissal. 6 He then examined the history of the consideration of the applicant's case by the delegate, and, later on review, by the Tribunal. The applicant, through Counsel assigned under the scheme for pro bono assistance, had filed an affidavit sworn 27 January 2004 exhibiting the transcript of his hearing before the Tribunal. He also referred in that and an earlier affidavit sworn 15 December 2002 to a disconformity between documents apparently containing country information which had been referred to by the delegate of the Minister in refusing the application for a protection visa, and documents of the same character which had been relied on by the Tribunal in its reasons for decision. 7 However, no attempt has ever been made by the applicant to demonstrate that documents containing information favourable to him, which were before the delegate, were not available to the Tribunal. That failure to establish the first premise of the proposition indicated by the majority of the High Court in Muin as founding an attack on a decision by the Tribunal in cases like the present meant that the applicant had no ground on which to erect a claim as to what evidence he would have adduced had he known that the Tribunal did not have available to it the material presumptively favourable to the applicant. 8 Accordingly, the learned Federal Magistrate was led to conclude at [23] and [25] of his reasons; '[23] It was submitted by the respondent that in this case the application should be dismissed on the basis of a failure by the applicant to discharge the necessary evidentiary burden, or alternatively failure to comply with the orders of Marshall J referred to earlier in the judgment. Specifically, it was submitted that any complaints about the unavailability of documents for the RRT had not been supported by evidence and there was no evidence to conclude that material before the delegate would not have been at least available to the RRT. Hence, any suggestion by the applicant of an inability to address the RRT on the favourable aspects of documents referred to in an earlier affidavit of the applicant was not particularised. In the absence of particulars it was submitted that it was difficult therefore to identify from the delegate's decision how any information quoted was favourable to the applicant particularly in circumstances where the material appears on the whole to have been largely adverse to the applicant. … … … [25] In my view the submissions of the respondent are clearly correct. It is not sufficient in providing evidence in a case of this kind having regard to the authorities to which I've referred, for an applicant to simply assert that there were favourable parts of documents before the delegate which were either not forwarded to the RRT or if forwarded, not relied upon particularly in circumstances where the applicant had an opportunity before the RRT to put submissions before that Tribunal and highlight any favourable material.' 9 Accordingly, the learned Magistrate concluded that the affidavit material relied on in support of the application was insufficient to provide an arguable basis for the ground which the applicant had sought to advance. The learned Magistrate then went on to indicate that an extension of time within which to apply for any of the constitutional writs directed to the Tribunal, should be refused on the ground, as I understand it, that for reasons which had earlier been given, the applicant had no arguable prospect of success. 10 I have been unable to discern any error in the approach taken by the learned Federal Magistrate to the questions which he had to resolve. It follows that the applicant has not satisfied the first condition for a grant of leave to appeal from an interlocutory order identified in Décor Corporation Pty Ltd v Dart, namely that the decision below be attended with sufficient doubt to warrant reconsideration. Leave to appeal must therefore be refused with costs. That will be the order of the Court. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.