NOTE: Judgments [2003] FCA 689 - 695 combined in this document FEDERAL COURT OF AUSTRALIA Applicant A23/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 689 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A23/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, BRENDAN KISSANE, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S45 of 2003 FINN J 8 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S45 OF 2003 BETWEEN: APPLICANT A23/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT BRENDAN KISSANE, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 8 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA Applicant A35/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 690 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A35/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JOHN LYNCH, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S50 of 2003 FINN J 8 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S50 OF 2003 BETWEEN: APPLICANT A35/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JOHN LYNCH, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 8 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA Applicant A73/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 691 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A73/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, RODNEY INDER, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S65 OF 2003 FINN J 8 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S65 OF 2003 BETWEEN: APPLICANT A73/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT RODNEY INDER, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 8 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA Applicant A78/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 692 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A78/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, BRENDAN KISSANE, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S69 of 2003 FINN J 8 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S69 OF 2003 BETWEEN: APPLICANT A78/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT BRENDAN KISSANE, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 8 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA Applicant A80/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 693 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A80/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S71 of 2003 FINN J 9 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S71 OF 2003 BETWEEN: APPLICANT A80/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 9 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA Applicant A99/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 694 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A99/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S87 of 2003 FINN J 9 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S87 OF 2003 BETWEEN: APPLICANT A99/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 9 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. FEDERAL COURT OF AUSTRALIA Applicant A110/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 695 MIGRATION – unsuccessful refugee applications – seven applications for judicial review in identical standard form – Muin challenges – no supporting affidavit filed with application – no evidence put on – motion to strike out – no factual substratum for claims. Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 applied VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 applied SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 applied NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 applied APPLICANT A110/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S96 of 2003 FINN J 9 JULY 2003 ADELAIDE GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S96 OF 2003 BETWEEN: APPLICANT A110/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 9 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be struck out. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. EX TEMPORE REASONS FOR JUDGMENT 1 The parties in all of these matters through their counsel have accepted my proposal that there be composite reasons for judgment for them all. 2 An amended application in each of the matters sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision not to grant the respective applicant a protection visa. Each of the applications, which were in identical terms for all present purposes, founded themselves on the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. No amended application was supported by an affidavit notwithstanding the requirements of O 4 r 6 of the Federal Court Rules. There were, however, identical accompanying written submissions which did no more than restate in slightly expanded form the boilerplate terms of the amended application which were themselves a truncated version of the grounds in Muin. 3 The Muin grounds, if I can so describe them, alleged that the respective applicant was denied procedural fairness (hence there was a jurisdictional error) in that, to abbreviate (i) the applicant was misled into believing that certain documents that were before the Minister's delegate (ie "the Part B documents") were also before the Tribunal, so affecting the applicant's conduct in relation to the Tribunal; and (ii) account was taken of material adverse to the claim made without giving notice of it or opportunity to respond to it. 4 It is well accepted, as Gleeson CJ commented in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at [37]: "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 5 As has been made plain in a sequence of decisions of the Full Court of this Court, the precondition for making out a Muin challenge is the establishment of the factual substratum necessary to enliven it in the individual case in question: see eg NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293; VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350; SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351. So, for example, as Hill J observed in NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 at [16] in relation to a Muin Part B documents allegation: "What is important and it appears in the judgments in Muin itself is that in that case there was a factual sub-stratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and, secondly, that the applicant had relied upon an assurance by the Tribunal that it had read the documents and, accordingly, had not put further material before the Tribunal." 6 In each of these matters, subsequent to the filing of a Notice of Motion by the respondent Minister to have the proceeding struck out as disclosing no reasonable cause of action, a judge of this Court gave the respective applicants liberty to file affidavit material to lay a factual foundation for the allegations made in their amended applications. That liberty was not availed of. 7 The basis of the Minister's motions, which are now before the court in each of these matters, is the lack of evidence supporting the respective applications. There is a complete absence of such evidence. Each motion must be allowed for this reason and the amended applications struck out. 8 An application having been made by the respondent Minister for a costs order against each applicant's legal adviser (the same person in all cases), I adjourn the consideration of costs to a date to be fixed. Additional Comments 1. Applicant A23/2002 9 None. 2. Applicant A35/2002 10 Irrespective of the Muin challenges this application was doomed to failure. The applicant was comprehensively disbelieved. As the Tribunal stated, the applicant was "thoroughly unconvincing in virtually every aspect of his evidence". 3. Applicant A73/2002 11 This application is to say the least extraordinary. It makes the standard Muin Part B documents allegation. The delegate's decision contained no list of documents either under the heading "Part B" or otherwise. The application is quite unrelated in this respect to the delegate's decision, and unacceptably so. This simply highlights what is objectionable in the documentation in all of the matters considered in these reasons. 4. Applicant A78/2002 12 This is another instance of an application doomed to failure in any event. The applicant's evidence was in large measure rejected, the "Tribunal [being] confident that the Applicant is not a reliable witness in the present matter". 5. Applicant A80/2002 13 Not only was the applicant disbelieved in this matter, the Tribunal indicated in its reasons that it put directly to the applicant the country information on which it relied. The latter, to say the least, stands oddly with the second of the Muin challenges made. 6. Applicant A99/2002 14 As in the matter immediately above, the Tribunal indicated in its reasons that it put directly to the applicant the relevant country information on which it relied. 7. Applicant A110/2002 15 None. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 11 July 2003 Counsel for the Applicant: Mr M Clisby Solicitor for the Applicant: M W Clisby Counsel for the Respondent: Mr J Harris QC, Mr L Leerdam Solicitor for the Respondent: Sparke Helmore Date of Hearing: 8/9 July 2003 Date of Judgment: 8/9 July 2003