S1775 of 2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT 1 By notice of motion filed on 10 May 2004, the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), applied for an order that the applicant's solicitors, Ward Maxwell & Co ('the Solicitors'), personally pay the Minister's costs of the proceeding, including the costs of the notice of motion. The ground on which the Minister seeks that order is that the proceeding was commenced and prosecuted without any proper consideration of its prospects of success. The Solicitors did not suggest that there was any doubt about the Court's power to make the order sought by the Minister. 2 The applicant in the proceeding is a citizen of India who arrived in Australia on 4 April 1997. On 3 July 1997, the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 21 July 1997 a delegate of the Minister made a decision to refuse to grant a protection visa and on 14 August 1997 the applicant applied to the first respondent, the Refugee Review Tribunal ('the Tribunal'), for review of the delegate's decision. On 13 April 1999, the Tribunal affirmed the decision not to grant a protection visa. 3 At some time thereafter the applicant was named as a represented party in one or other of two proceedings in the High Court being Muin v Refugee Review Tribunal, S36 of 1999 ('Muin') and Lie v Refugee Review Tribunal, S89 of 1999 ('Lie'). It is significant that it is not clear in which proceeding he was so named. 4 In each of Muin and Lie, the respective plaintiffs sued in a representative capacity complaining of the procedures adopted by the Tribunal in reviewing adverse decisions of delegates of the Minister relating to claims for protection visas. Each proceeding was commenced in the High Court's original jurisdiction and in each case Gaudron J referred questions to a Full Court. In essence, the questions asked whether, upon certain facts stated, and the inferences if any, to be drawn from those facts, there was a failure by the Tribunal to accord procedural fairness or a failure to comply with ss 418(3) or 424(1) of the Act. They also asked, in the event of an affirmative answer, what relief should be given. 5 The facts stated in the two proceedings were similar although there was at least one significant difference. For the purposes of the referred questions, nothing turned upon the representative nature of the proceeding. Argument was confined to the cases of the plaintiffs themselves, each of whom was of Indonesian nationality and Chinese ethnicity. The essence of their claims was that, if they returned to Indonesia, they would be persecuted on racial grounds. In each case the delegate was required to consider circumstances in Indonesia relating to the treatment of Chinese, including the willingness and ability of the Indonesian authorities to prevent ill treatment. In the present case, the applicant claimed to fear persecution if he returned to Punjab. 6 On 8 August 2002, the High Court made orders in both of the proceedings, answering certain of the questions favourably to the plaintiffs. Specifically, the High Court answered 'yes' in each case to the question 'Was there a failure to accord the plaintiff procedural fairness?'. The Court said that prohibition should issue to prevent the Minister from acting on the Tribunal's decisions, that certiorari should issue to quash the decisions and that mandamus should issue to the Tribunal directing it to hear and determine the plaintiffs' review applications in accordance with the law. 7 Following those orders, Gaudron J made further orders in each of the proceedings. The effect of those further orders was, for present purposes, as follows: