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[2005] FCA 1605
Federal Court of Australia
2005-11-09
Emmett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicants are citizens of the Republic of Korea ('South Korea'). In October 1994, the applicants applied for protection visas under the Migration Act 1958 (Cth) ('the Act'). On 17 February 1997, a delegate of the Minister for Immigration and Multicultural Affairs made a decision refusing that application. On 12 March 1997, the applicants lodged an application for review by the Tribunal of the delegate's decision. On 24 March 1998, the Tribunal affirmed the delegate's decision not to grant the applicants a protection visa.
2 On 19 June 2003, the applicants commenced a proceeding in the High Court of Australia by filing an affidavit, sworn on 17 June 2003. The words 'Application for writs of mandamus, prohibition and certiorari' appear on the affidavit. It can be assumed that the affidavit (or 'application') seeks an order by the High Court that would require the respondents to show cause why writs of prohibition, certiorari, mandamus or an injunction should not issue to them in respect of the Tribunal's decision of 24 March 1998.
3 In the affidavit, the applicant stated, relevantly, that:
'8. I assert that there are grounds for concluding that not all of the part B documents were sent by the said Department [the Department of Immigration and Multicultural Affairs] to the First Respondent for the purposes of deciding my application [for review of the delegate's decision].' 9. On 24 March 1998 the First Respondent declined my review application and affirmed the decision not to grant me a protection visa. Now produced and shown to me and marked "YJM-2" is a true copy of the First Respondent's said decision. I have found no reference in the said decision to the following part B documents:- Document Date Author Hierarchy of Human Rights obligations 1991 Hathaway Country report on HR practices 1995 US Dept of State South Korea in 1995 - CX17251 Jan 1996 CIS Unification Minister discusses separated families - CX10464 30.01.95 CIS DORS applications: Response from Australian Embassy in Seoul - CX10588 25.06.92 CIS Military Service: Fax no 3455 3.11.94 CIS National transformation a sight to behold 15.08.96 The Australian Bridging the divide - CX11637 14.09.95 Far Eastern Economic Review When the DMZ vanishes the spectre of sudden reunification looms - CX20487 20.09.96 Asiaweek 10. By virtue of the aforesaid matters I assert that the First Respondent failed to consider relevant materials which ought to have been available to it and that I was denied natural justice in the processing of my review application. 11. Subsequently by order of this Court I was joined as a member of the class of persons sought to be represented by the plaintiff in the matter of Lie v Refugee Review Tribunal and Others more particularly being proceedings S89 of 1999. … 13. On 25 November 2002 this Court granted leave to the group of persons named in the Schedule to the Statement of Claim in the matter of Lie v Refugee Review Tribunal and Others, of which I am one, to file an application in this Court seeking an Order Nisi in relation to the decision of the First Respondent concerning me. … 15. I seek the writs described in the draft order nisi now produced and shown to me and marked "YJM-3"' 4 The exhibit marked 'YJM-3' is titled 'Draft Order Nisi'. The ground upon which relief is claimed therein is as follows: 'the Tribunal failed to afford the Applicants/Prosecutors natural justice because the Applicants/Prosecutors had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material.' 5 No further particulars were provided. 6 In Muin v Refugee Review Tribunal [2002] HCA 30, ('Muin and Lie')Mr Muin contended that, by representing to him that the Tribunal would look at all the Department's 'documents about [his] case ... along with any other evidence on the Tribunal file' and that it had 'consider[ed] all the material relating to the application', the Tribunal had created a legitimate expectation in him to the effect that favourable documents had been considered by the Tribunal in the course of making its decision under the Act. Mr Muin argued that various 'Part B' documents had not been considered and that, by making a decision that was therefore inconsistent with that legitimate expectation and by not giving him notice that the Tribunal was following such a course of action, he was deprived of an adequate opportunity of presenting a case against the Tribunal's taking of such a course. 7 In Muin and Lie, Gaudron and Gummow JJ stated that: 'For Mr Muin to succeed in this argument, the Court must accept as a matter of fact that the Tribunal had not considered the Part B material. The onus is on the plaintiff to make out the contention that the Tribunal member did not ";have before her; consider; and/or have regard to (most of) the Part B documents".' 8 In that case, their honours were not prepared to make such a factual finding. Mr Muin had relied on various matters to support his submission. First, the fact that the decision expressly referred only to four of the Part B documents; second, the lack of reference to the Part B documents in the file notes and working papers of the Tribunal member; and third, the failure of the Tribunal member to give evidence in the Muin and Lie proceedings. 9 In the application presently before the Court, the only matter capable of supporting the submission that the Tribunal had not been provided and had not considered the list of documents referred to above is the decision record of the Tribunal which does not make express mention of those documents. The failure to make express mention of particular materials does not warrant a conclusion that those materials were not made available to the Tribunal, or that the Tribunal failed to consider that material. 10 The proceeding commenced in the High Court was remitted to the Federal Court of Australia by the High Court. For the reasons set out in Applicant S195 v Refugee Review Tribunal [2005] FCA 1571, it is appropriate for this matter to be dealt with on the papers. 11 Accordingly, on 12 November 2004, the New South Wales District Registrar wrote to the applicant at the address shown in the papers inviting the applicant to make such written submissions as he wished on the question of whether the Court should make an order nisi. The letter, relevantly, stated as follows: 'As a result of an order by the High Court, your application was transferred to the Federal Court of Australia. The Federal Court must consider whether there is an arguable case for the Court to make an Order nisi. If the Court decides that there is no arguable case, your application for an Order nisi will be refused.
The Court proposes to consider whether there is an arguable case on the basis of the written material that you have given to the Court and without any oral hearing. The lawyer for the Minister will not be giving any information to the Court. Before the Court makes a decision you may make such written submissions in the English language as you wish o the question of whether the Court should make an Order nisi. Any submissions must be lodged with the Registry of the Court no later than 10 December 2004.'
12 There has been no response to that letter. 13 The material before the Court discloses no arguable case for the grant of Constitutional writ relief in respect of the decision of the Tribunal. The material does not disclose an arguable case for the proposition that the Tribunal fell into jurisdictional error in making its decision. 14 Order 51A rule 5(1) of the Federal Court Rules provides that, where an application for an order nisi is remitted by the High Court to the Federal Court, the Court will, at the same time, hear the parties on whether, if the order nisi were made, it should be made absolute. However, under rule 5(2) the Court may, in a particular case, order that rule 5(1) does not apply. It is appropriate to make an order under rule 5(2) in this case. 15 Accordingly, the refusal of orders presently sought would not constitute a final determination of any question between the applicant and respondents named in the draft order nisi and thus would not give rise to any issue estoppel or res judicata as between the applicant and the respondents. The applicant may commence a fresh proceeding in the Federal Magistrates Court should the applicant wish to pursue any claim for relief in respect of the Tribunal's decision. 16 An order nisi should be refused. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
S330
Refugee Review Tribunal