NACZ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This matter has followed a somewhat unusual course. The case, as I indicated at the earlier oral hearing, now I regret to say some months ago, caused me considerable concern, but I was not able, in the course of debate with counsel for the Minister, to crystallise my concerns in what seem to me to be legally acceptable terms. By the time I had done that Plaintiff S157/2002 v Commonwealth of Australia (2003) 193 ALR 24had been decided in the High Court and the test for judicial intervention with the decisions of the Refugee Review Tribunal ("the Tribunal") had altered somewhat. 2 Unusually, in consideration of the matter, I found it necessary and proper to look to some readily available sources, other than those created by the Australian Government, to remind myself of what had been very well recorded events in the applicant's country of origin over the last fifteen or twenty years. In the circumstances, I took the unusual course of causing to be sent to the parties a draft of my judgment with a view to ensuring that, whatever other errors it might contain, there could be no inadvertent failure to accord procedural fairness to both parties.

3 In the course of the draft judgment I propounded a view that the Tribunal had, in the circumstances, not really afforded the applicant "the process of a review", in the sense of a real review which, as it tentatively seemed to me, must be the meaning to be ascribed to that term as used by parliament in its statutory context. 4 I also indicated that, whereas such analysis was my preferred way of viewing the matter, as is commonly the position in administrative law, the case might be differently analysed to like effect. In particular, I suggested that it was necessary, in considering whether there was a real substantial basis for what in this case was accepted as the applicant's real fear of persecution, to consider the matter some "reasonable time into the future", as distinct from what I characterised as a "month-to-month" approach taken by the Tribunal Member. 5 The respondent Minister vigorously contests my tentative analysis as to the supposed failure by the Tribunal to accord a real review to the applicant, but accepts the substance of the alternative view that I briefly mentioned as to the timeframe for considering persecution. The parties have, accordingly, presented me with intended consent orders which ask that the court proceed as follows: "The court declares that: (1) The decision of the Refugee Review Tribunal dated 17 October 2001 is invalid because the Refugee Review Tribunal failed to ask itself the correct question when considering persecution. The court orders by consent that: (2) The matter be remitted to the Refugee Review Tribunal to be determined in accordance with law before a differently constituted Tribunal. (3) The respondent pay the applicant's costs of the proceedings as agreed or taxed." 6 It is fair to say that, in the light of further written submissions received from the respondent, I would need to revise, substantially, the draft which I circulated in order to overcome those of the respondent's criticisms which appear to me to have some validity. It is also the case that the respondent has, in the circumstances, not had the opportunity fully, orally, to debate the draft before me, and it is fair to say that I believe I would have profited, if only as to refinement of my views, from such an exchange. 7 Counsel for the respondent has indicated that it is the intention of the respondent, unless I do not wish it, to append a copy of the draft judgment to the copy of this considered judgment which will be sent to the Tribunal. Provided that the draft is understood as being no more than an incomplete attempt at a legal analysis, it is thought that to do so may have some salutary value, even as a warning for the Tribunal. I have no objection to that course. Indeed, the draft judgment must be regarded as in the category of an exchange in transcript. It is not restricted to the parties. Such would be contrary to the principles of open justice. The important thing is that I have not taken a final decision to proceed in accordance with it. 8 In the circumstances, I consider that the consent orders are proper and I make them. 9 I may also add that a minor factor that impels me simply to accept the consent orders on the evident basis upon which the respondent would wish, and to cease further consideration of my draft, is that the applicant is probably doing better as to costs under the consent orders than I would otherwise have decided. I would not wish to disadvantage her if the Minister considers, as he evidently does, that the consent orders are appropriate. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.