NAGC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The first applicant ("NAGC") is the husband of the second applicant ("NACD") and the father of the third applicant ("NAGE") and the fourth applicant ("NAGF"). They all claim to be citizens of Bangladesh. NAGC, NAGD and NAGE arrived in Australia on 24 September 1999. On 5 November 1999 they lodged an application, with the Department of Immigration and Multicultural Affairs, for a protection class XA visa under the Migration Act 1958 (Cth) ("the Act") for each of them. 2 On 1 December 1999 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant protection visas. On 21 December 1999, NAGC, NAGD and NAGE applied to the Refugee Review Tribunal ("the Tribunal"), for review of that decision. 3 On 7 June 2000, NAGF was born to NAGC and NAGD. On 25 August 2000 an application was lodged on behalf of the new born child for a protection class XA visa. On 26 April 2001 a delegate of the Minister refused to grant a protection visa and on 15 May 2001 an application for review of that decision was lodged with the Tribunal on behalf of NAGF. 4 On 5 March 2002 the Tribunal affirmed both decisions not to grant protection visas. On 22 April 2002 an application was lodged with the Court seeking, amongst other things, an order redirecting the claims to the Tribunal for further consideration and a direction to the Tribunal to make a further consideration of the matter. On 21 June 2002, Allsop J ordered that the matter be transferred to the Federal Magistrates Court. 5 On 7 August 2002, Driver FM ("the Magistrate"), having ordered that NAGC be appointed litigation guardian in respect of the two infant applicants, ordered that the application be dismissed and that the applicants pay the Minister's costs and disbursements of the application fixed at $4000. On 26 August 2002 the applicants lodged a notice of appeal to this Court seeking orders that the appeal be allowed and that the orders of the Magistrate be set aside. 6 When the matter was called on for hearing today, NAGC sought leave to adduce further evidence under O 52 r 36 of the Federal Court Rules, an application for leave to request the Court to receive further evidence may be made by motion on the hearing of the appeal without filing or serving notice of the motion. However, under O 52 r 36(6) an applicant must file any affidavit not less than twenty-one days before the hearing of the appeal, setting out the evidence necessary to establish the grounds of the application and the evidence that NAGC wants the Court to receive. 7 No such affidavit has been filed and the Minister objects to the Court receiving the additional material. I shall deal with this application in dealing with the substance of the appeal. In the course of argument, NAGC sought leave to amend the original application to the Court to raise what are said to be legal errors on the part of the Tribunal that were not the subject of the original application. I should also deal with that matter in dealing with the substance of the appeal. 8 Before the Tribunal, the applicants relied on written submissions that asserted that the Tribunal had predetermined the outcome before the hearing before it and went through the hearing simply as a matter of form. The Magistrate treated that assertion as an allegation of a lack of good faith on the part of the Tribunal on the basis of actual bias. 9 In his written submissions to the Magistrate, NAGC asserted that a number of errors had been made which were summarised by the Magistrate as follows: