Muin v Refugee Review Tribunal

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow J,Kirby J,Hayne J,Callinan J
• Judgment Date: 08 August 2002
• Neutral Citation: 2002-0808 HCA D,[2002] HCA 30
• Court: High Court
• Docket Number: S36/1999
• Date: 08 August 2002

[2002] HCA 30

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S36/1999

S89/1999

Muin

Plaintiff

and

Refugee Review Tribunal & Ors

Defendants

Nancy Lie

Plaintiff

and

Refugee Review Tribunal & Ors

Defendants

Representation:

M A Robinson with R Nair for the plaintiff (instructed by Adrian Joel & Co)

No appearance for the first defendant

J Basten QC with R T Beech-Jones for the second and third defendants (instructed by Australian Government Solicitor)

Constitution, s 75(v).

Migration Act 1958 (Cth), ss 418(3), 424(1).

Muin v Refugee Review TribunalLie v Refugee Review Tribunal

Administrative law — Constitutional writs — Procedural fairness — Alleged failure to have regard to relevant documents — Alleged failure to provide reasonable opportunity to respond to adverse material — Jurisdictional error for denial of procedural fairness and natural justice.

Immigration — Refugee — Protection visa — Decision by Minister to refuse application for visa — Review of decision by Refugee Review Tribunal — Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review — Nature and extent of obligation — Migration Act 1958 (Cth), ss 418(3), 424(1).

Constitutional law (Cth) — High Court — Federal Court — Review of administrative decision by officers of the Commonwealth — Migration — Refusal to grant protection visa to claimant for refugee status — Requirement of procedural fairness — Alleged failure to have regard to relevant documents — Alleged failure to provide reasonable opportunity to respond to adverse materials — Jurisdictional error — Availability of constitutional relief under s 75(v) and other relief for denial of procedural fairness and natural justice.

ORDER

The questions reserved for consideration by the Full Court are answered as follows:

Question 1

Was there a failure to accord the Plaintiff procedural fairness?

Answer

Yes.

Question 2

Was there a failure to comply with s 418(3) of the Migration Act 1958 (Cth)?

Answer

Inappropriate to answer.

Question 3

Was there a failure to comply with s 424(1) of the Migration Act 1958 (Cth)?

Answer

Inappropriate to answer.

Question 4

If the answer to any of questions (1) to (3) is yes, (a) Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid? (b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

Answer (a) Yes. (b) Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision; and mandamus should issue to the first defendant directing it to hear and determine the plaintiff's review application in accordance with law.

Question 5

By whom should the costs of the proceedings be borne?

Answer

The second and third defendants.

1 Gleeson CJ. In both of these proceedings, the plaintiffs sue in a representative capacity, complaining of the procedures adopted by the first defendant, the Refugee Review Tribunal (‘the Tribunal’), in reviewing adverse decisions of delegates of the Minister for Immigration and Multicultural Affairs relating to claims for protection visas. In both cases, the second and third defendants are the Commonwealth and the Secretary of the Department of Immigration and Multicultural Affairs. The Tribunal has filed a submitting appearance. It is the second and third defendants who have the carriage of the defence. Each proceeding was commenced in the Court's original jurisdiction. In each case, Gaudron J has referred questions to a Full Court. The specific questions will appear at the conclusion of these reasons. In brief, they ask 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 s 418(3) and/or s 424(1) of the Migration Act 1958 (Cth) (‘the Act’). They also ask, in the event of an affirmative answer, what relief should be given.

2 The facts stated in the two proceedings are similar, but, as will appear, there is one significant difference. A common element concerns the way in which certain documents, described as ‘Part B documents’, referred to in the delegates' reasons for decision, were dealt with.

3 For the purposes of the referred questions, nothing turns upon the representative nature of the proceedings. Argument has been confined to the cases of Mr Muin and Ms Lie. They are both persons of Indonesian nationality and Chinese ethnicity. The essence of their claim that they were owed protection obligations as refugees 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. The expression ‘adverse material’ has been used to describe ‘relevant and significant material which is or may be adverse to [the plaintiff's] case’. Similarly, ‘favourable material’ is material that was or may have been favourable to the plaintiff's case. The material with which we are presently concerned was not material personal to either plaintiff, or information about some particular circumstance relevant to either plaintiff as an individual. It consisted largely of ‘country background’ material, being information concerning political and social circumstances in Indonesia.

4 The Tribunal's decision in the case of Mr Muin was made on 25 November 1998. The Tribunal's decision in the case of Ms Lie was made on 6 January 1998.

The case of Mr Muin

5 It is convenient to begin with the alleged failure to comply with ss 418(3) and 424(1) of the Act in the form it took in November 1998, because the plaintiff's argument directs attention to the statutory context in which all the issues in the proceedings arise. I will refer only to the provisions of direct relevance.

6 Section 418 required that, when an applicant sought review by the Tribunal of a delegate's decision, the Registrar of the Tribunal was to notify the Secretary of the Department of Immigration and Multicultural Affairs (‘the Department’) of the making of the application. The delegate whose decision was the subject of the application was an officer of the Department. The section provides:

‘418 (2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

• (a) sets out the findings of fact made by the person who made the decision; and

• (b) refers to the evidence on which those findings were based; and

• (c) gives the reasons for the decision.

(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.’

7 A review of such a decision is not an adversarial proceeding. There is no contradictor. No issue is joined. The applicant seeks to persuade the Tribunal that the unfavourable decision under review should be set aside. Typically, the primary decision will have taken into account country background information. Both the delegate, and the Tribunal member to whom the application for review is assigned, will be likely to have considered many cases involving conditions in, say, Indonesia, and will have access to official and other sources of information bearing upon political and social circumstances in an applicant's country of origin. As is often the case with administrative decision-makers, they are likely to accumulate knowledge from the repetitive nature of the matters with which they deal. They have available to them what is, in effect, a library of reference material to which they may resort for the purpose of making decisions. The Act (s 420) requires the Tribunal to do substantial justice, deciding each case on its merits and avoiding technicalities.

8 An applicant is entitled to provide information to the Tribunal in the form of a statutory declaration, and to provide the Registrar with written argument in relation to the decision under review (s 423).

9 The Act then provides for two possible stages. Section 424 provides:

‘424 (1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.’

10 Section 425 provides that where s 424 does not apply, the Tribunal must give the applicant an opportunity to appear before it to give evidence and may obtain such other evidence as it considers necessary.

11 In the case of Mr Muin, the delegate's decision was made on 9 March 1998. She sent a written record of her decision to Mr Muin in a form that anticipated the requirements of s 418 if there was to be an application for review. In that record, she identified the ‘evidence’ she used in making her decision. In Part B of her statement of reasons she referred to 31 ‘documents’. The first was the Department's file concerning the plaintiff. It is relevant to note the nature of the remaining Part B documents. Item 2 was a reported decision of this Court, stated in the facts to have been available in the Tribunal library. Items 3 and 4 were a textbook on refugee law, and a UNHCR handbook on refugee law, both available in the Tribunal library. Items 5 and 6 were international reports of country...