FEDERAL COURT OF AUSTRALIA Applicant A134/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 717 APPLICANT A134/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MARGRET HOLMES, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S115 of 2003 FINN J 9 JULY 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S115 OF 2003 BETWEEN: APPLICANT A134/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MARGRET HOLMES, 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 dismissed. 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. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S115 OF 2003 BETWEEN: APPLICANT A134/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MARGRET HOLMES, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE: 9 JULY 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is the second of a trilogy of cases before me that raise an identical issue. The others are Applicant A74/2002 and Applicant A56/2002. 2 An amended application in this matter, which has been remitted from the High Court, seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision not to grant the applicant a protection visa. That application purports to found itself on the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. It was not supported by an affidavit notwithstanding the requirements of the Federal Court Rules, O 4 r 6. However, written submissions did accompany it. They 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 twin Muin grounds, if I can so describe them were (to abbreviate) that the applicant was denied procedural fairness in that (i) the applicant was misled into believing that documents before the Minister's delegate who made the RRT reviewable decision (ie the "Part B" documents) were sent to and were considered by the Tribunal so affecting the applicants' conduct in relation to the Tribunal; and (ii) the Tribunal took account of material adverse to his claims which was not before the delegate and of which they were given neither notice nor an opportunity to respond. 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] that: "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 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 On 3 June 2003 the respondent Minister moved to have the amended application struck out under O 20 r 2(1)(a) of the Federal Court Rules on the ground that it disclosed no reasonable cause of action. The burden of the motion was that the applicant had not provided any factual substratum for the Muin challenges. 7 On 6 June 2003 a judge of this Court gave the applicant leave to file affidavit material to lay the factual foundation for the allegations made in the amended application by 25 June 2003. 8 On 3 July an affidavit was filed by the applicant's migration agent. Though the affidavit is, in my view, quite unhelpful for reasons I will give later, the course I intend to take in light of its filing is to deal with the substantive application made by the applicant rather than deal with the matter under O 20 r 2. The parties, I should add, were forewarned that the substantive application would be dealt with if the motion was unsuccessful and came prepared accordingly. 9 The affidavit has been sworn by the migration agent who acted as the applicant's agent before the Tribunal. Objection was taken to my reception of it on the grounds of relevance in that (a) it assumed the critical facts necessary to lay the foundations for a Muin claim and (b) it dealt only with how the agent would, in consequence, have advised the applicant to act – and how he would have acted – in light of those facts. 10 In relation to the Part B documents the agent deposed: "2. Had myself and/or the Applicant been aware of the fact that the Department of Immigration did not ever physically transfer to or send to the Tribunal all the Part B Documents and that the Tribunal had not looked at all the Part B Documents at any time prior to the making of the Tribunal's Decision then I would have advised the Applicant and received instructions from the Applicant to take the following steps. …" The suggested steps were then set out. 11 In relation to the "adverse information" Muin ground the agent stated: "3. Had myself and/or the Applicant been aware of the fact that adverse materials would be taken into account by the Tribunal prior to the making of the Tribunal's Decision then I would have advised the Applicant and received instructions from the Applicant to take the following steps." Again the suggested steps were outlined. 12 Counsel for the applicants now concedes that the "evidence" so given in relation to the Part B documents is incapable of supporting a Muin claim. In consequence reliance upon it has been abandoned. It was untenable in the circumstances. 13 However, the applicant still insists on the "adverse information" challenge notwithstanding that I have no evidence as to what that information is; no evidence as to what was put to him or his agent at the hearing particularly concerning the substance of country information; and no evidence from him as to how he would have acted if the situation was as the migration agent baldly asserts. 14 I am asked to infer that there was such "adverse evidence" essentially, from the fact that the Tribunal for totally proper reasons took account of, and relied upon, country information which post-dated the date of the delegate's decision, which information counsel for the applicant asserts from the Bar Table contains "adverse information". The delegate's decision was delivered on 5 February 2001; the Tribunal's on 24 June 2002. 15 In Applicant A74/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 696 a like argument was advanced on a like affidavit in like circumstances. Counsel in this matter conceded that the case was weaker than that in Applicant A74 which I have already dismissed. I entirely agree. 16 I am not prepared to infer in light of the migration agent's affidavit and the fact that the Tribunal referred to sources that post-dated the delegate's decision that there has been a denial of procedural fairness. No evidence has been given (other than from the Bar Table) as to what, if any, of the country information was relied upon as being adverse and why this was so. No evidence was given of the matters raised by the Tribunal at the hearing or of the submissions made, notwithstanding that evidence of this was readily available. Unlike in Muin there are no agreed facts. I am merely being asked to infer that adverse information (whatever sins that description might cover) was used by the Tribunal though the substance of it was not put to the applicant. That inference is not the most probable deduction which may reasonably be drawn from the known facts: cf Holloway v McFeeters (1956) 94 CLR 470 at 477. I will not draw it. The applicant had the means available to him to provide evidence on the matter. But he left it as a subject of speculation. 17 Distinctly, but more importantly in this matter than in Applicant A74, the only possible vice that can properly be said to infect the country information (in this instance relating to the circumstances of Sikhs in the Punjab in India) which postdated the delegate's decision and which was relied upon, was that it updated but was of the same general character as that relied upon by the delegate. It can hardly be said to be adverse information: cf Re Minister for Immigration and Multicultural Affairs; Ex part Miah (2001) 179 ALR 238 at 269-270. 18 I will make no order on the Notice of Motion but I will order that the application be dismissed. 19 As the respondent Minister has sought a personal costs order against the applicant's counsel (similar orders have been sought against him in some number of other cases before me), I will reserve consideration of costs to a date to be fixed. I certify that the preceding nineteen (19) 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 July 2003 Date of Judgment: 9 July 2003