NABC v Minister for Immigration & Multicultural Affairs [2003] FCA 38 (3 February 2003)

Last Updated: 26 February 2003

FEDERAL COURT OF AUSTRALIA

NABC v Minister for Immigration & Multicultural Affairs [2003] FCA 38

MIGRATION - documents provided by applicants to respondent not sent by respondent to Refugee Review Tribunal - whether Refugee Review Tribunal had access to documents - whether facts distinguishable from Muin v Refugee Review Tribunal - documents available on Internet - privative clause decision

Migration Act 1958 (Cth) s 474

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied

Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 distinguished

Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 distinguished

Lie v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966

NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 referred to

VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 252 referred to

NADD of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275 cited

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 cited

NABC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1494 of 2001

BRANSON J

3 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1494 of 2001

BETWEEN:	NABC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	3 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1494 of 2001

BETWEEN:	NABC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	3 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The applicants, who are father and son, seek judicial review of a decision of the Refugee Review Tribunal (`the Tribunal') made on 21 September 2001 whereby the Tribunal affirmed a decision of a delegate of the respondent not to grant them protection visas.

2 A Further Amended Application filed on 19 November 2002 identified three grounds upon which the application to this Court is made. The first two grounds were only formally relied upon as they are drawn on the assumption that NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (`NAAV v MIMIA') is wrongly decided. The applicants, by their counsel, recognised that the Court is bound to dismiss the application to the extent that it is supported by these grounds. The applicants formally submitted that NAAV v MIMIA is wrongly decided, including on constitutional grounds. However, they recognise that sitting as a single judge, I am bound by the construction of s 474 of the Migration Act 1958 (Cth) (`the Act') adopted by the majority of the Full Court in NAAV v MIMA.

3 The third ground of the application is as follows:

`3. The Tribunal's decision is void, and respondent is estopped from contending otherwise, by reason of the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 and facts that in this case:

(A) The Minister's delegate did not send to the Tribunal the documents numbers 1-17 at RD 121 ("the Part B documents").

(B) The applicants believed that the Tribunal had before it the Part B documents when it was conducting its review.

(C) Had the applicants known that the Tribunal did not have the Part B documents, they would have taken steps to bring the parts of those documents which favoured their case to the attention of the Tribunal.'

FACTUAL FINDINGS

4 I accept the evidence of the younger of the applicants that, as between him and his father, he was primarily responsible for the handling of their application for protection visas. I further accept his evidence that he received and read letters from the Tribunal dated 28 April 2000 and 3 January 2001. The letter dated 28 April 2000 invited the applicants to send to the Tribunal `new documents or written evidence' but advised that they should not send any documents or written arguments already given to the Tribunal or the Department. The letter of 3 January 2001 advised the applicants that the Tribunal `has looked at all the material relating to your application but is not prepared to make a favourable decision on this information alone'. Having regard to this letter the applicant believed that there had been sent to the Tribunal all of the material upon which the delegate had relied.

5 The respondent admits that certain documents (`the documents') referred to on page 2 of the decision record of the delegate of the respondent (`the delegate') were not sent by the delegate to the Tribunal. However, the respondent does not admit that the Tribunal did not have access to those documents or that the documents were not considered by the Tribunal.

6 The respondent, by his counsel, challenged the evidence of the younger of the applicants that, had he known that the Tribunal had not been sent copies of the documents:

(a) he would have drafted the written submissions which he provided to the Tribunal differently; and

(b) he would have included additional documents in the material that he provided to the Tribunal including an Amnesty International Report `Sri Lanka: Wavering commitment to human rights' and drawn attention to statements concerned the mistreatment of detainees.

7 However, I am satisfied, on the balance of probabilities, of the truthfulness of the evidence of the younger of the applicants in the above regards. I accept that, had he known that the Tribunal had not been sent copies of the documents, he would have drafted his submissions differently and would have sent a copy of the document `Sri Lanka: Wavering commitment to human rights' to the Tribunal.

8 I do not, however, draw the conclusion that the Tribunal did not consider the contents of the documents that were before the delegate. I see no reason to disbelieve the statement contained in the Tribunal's letter of 3 January 2001 that it had looked at `all of the material' relating to the applicants' application. I note that the document `Sri Lanka: Wavering commitment to human rights' is listed, along with other documents, under the heading `Part B Evidence Before Me' in the decision record of the delegate. The assertion of the Tribunal that it had looked at `all the material' relating to the applicants' application is to be understood, in my view, to include the material so listed. The facts agreed in Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 (`Muin's case') led the majority of the High Court to a different factual conclusion in that case. There are no comparable facts agreed in this case. In this case I consider it appropriate to take into account the ready accessibility of documents such as `Sri Lanka: Wavering commitment to human rights' on the internet.

SUBMISSIONS OF THE APPLICANTS

9 The submissions of the applicants were summarised in the applicants' outline of their written submissions in the following way:

`8. But for the fact that the Tribunal, which having taken 17 months to determine the review, and despite having "made" its decision on 21 September 2001, delayed handing down its decision under 16 October 2001, this application would be on all fours with Muin.

9. Pursuant to Muin and MIMA v Bhardwaj [2002] HCA 11; (2002) 76 ALJR 598, the decision would have been void.

10. Moreover, by reason of his being bound by those decisions, the Minister would have been estopped and it would have been an abuse of process for the Minister to content that this decision was other than void: cf Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198.

11. The central question then is in what manner if at all has the enactment of the amendments accompanying the insertion of s474 into the Act changed the position that would formerly have applied?

12. The repeal of former s476(2) precluding review by reason of a breach of natural justice confirms that the defect identified in Muin is one from which the Federal Court is not precluded.

13. Does s474 itself make any difference to this result? There is a short reason why it does not.

14. Section 474 is directed to the status of decisions, not to the conduct of parties to litigation. There is nothing in s474 to cure conduct by the Minister in defending litigation that would otherwise be an abuse of process or subject to an estoppel.

15. It may be suggested that this conclusion is inconsistent with several Full Court decisions namely VAAR of 2002 v MIMIA [2002] FCAFC 252, NADD of 2001 v MIMIA [2002] FCAFC 275 and NADR v MIMA [2002] FCAFC 293, to which the answer is:

(a) first, none of those decisions are decisions where the applicant adduced evidence bringing him or her within what was held by Muin;

(b) secondly, in none of those decisions does it appear that the foregoing argument was put.'

CONSIDERATION

10 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198, upon which the applicants place reliance, concerned a proceeding instituted in the District Court of New South Wales with respect to a transaction that had been the subject of an earlier proceeding in the Supreme Court of New South Wales. Handley JA, with whom Mason P and Heydon JA agreed, at 203-205 observed:

`The present proceedings are an attempt to litigate or re-litigate issues which were either decided in or are barred by the earlier proceedings. In substance ... the purchasers are attempting to re-litigate the issue of reliance on the 1991 figures which they lost.

...

The substance of the matter therefore is clear. The purchasers, disappointed with their bargain, sued their vendor in contract and in misrepresentation. They lost their case in misrepresentation and were disappointed with their modest recovery in contract. A few weeks before the expiration of the limitation period they sued the accountants for what is in substance the same misrepresentations. In the first proceedings they had to prove that they relied upon those misrepresentations. This turned on the evidence of Mr Hoefl, the contemporary documents, and the surrounding circumstances. The purchasers lost that issue and seek to re-litigate it against the accountants on substantially the same evidence in the hope that this time Mr Hoefl will be believed.

...

There is no question here of oppression and unfairness because the accountants were not parties to the earlier action, but these proceedings do threaten the integrity of the administration of justice and raise the prospect of conflicting judgments.

In my opinion therefore these proceedings are an abuse of process ... .'

11 The present case is a very different one from that considered by the Court of Appeal in Rippon v Chilcotin Pty Ltd. The present case does not arise out of the same factual circumstances as gave rise to earlier litigation. The present applicants assert no relationship to the applicants in Muin's case (including the applicant in Lie v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 which was heard together with Muin's case) and their circumstances are not asserted to be the circumstances of the applicants in Muin's case. The applicants merely assert that there is no factual distinction of legal significance between their circumstances and the circumstances of the applicants in Muin's case.

12 In view of my findings of fact set out above, the facts of this case and Muin's case are relevantly distinguishable. However, more importantly, the Act has relevantly been amended so that the law upon which the decision of the High Court in Muin's case is based is not the law applicable in this case. Section 474 of the Act, which had no application in Muin's case, has an operation in this case.

13 The proper construction of s 474 of the Act was considered by a five member Full Court in NAAV v MIMIA. In a subsequent decision of a Full Court (Sackville, Hely and Stone JJ) in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [24] the correct approach to s 474 following NAAV v MIMIA was summarised in the following way:

`...the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision

* be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker;

* relate to the subject matter of the Migration Act;

* be reasonably capable of reference to the power.

In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition, "jurisdictional factor" or "structural elements" found in the legislation...'

14 Although it is rightly contended on behalf of the applicants that s 474 is concerned with the status of decisions, not the conduct of parties to litigation, the appropriateness or otherwise of the conduct of a party to a proceeding concerning a judicial decision is to be assessed in the light of the status of the decision the subject of that proceeding. The approach for which the applicants contend would limit the impact of s 474 of the Act in a way plainly inconsistent with the intention of the legislature as revealed by the terms of the section and the other provisions of Part 8 of the Act as it is now in force. In truth, as it seems to me, the applicants submit that it is an abuse of process for the respondent to rely on the change in the law effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) in any case in which the relevant facts are legally indistinguishable from those in Muin's case. The submission so understood is, in my view, unsupported by either authority or principle. I reject it.

15 The decision of the Tribunal in this matter was handed down on 16 October 2001. That is, it was handed down after the commencement on 2 October 2001 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) but before the commencement on 4 July 2002 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). In VAAR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 252 the Full Court (Marshall, North and Finkelstein JJ) concluded at [19] that:

`... The majority of the Full Court [in NAAV v MIMIA] held that a denial of procedural fairness is not subject to challenge by way of judicial review to this Court in respect of decisions made after the enactment of the 2001 Act, but prior to the enactment of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) ....'

Their Honours held that the claim of the appellant in that case that he had been denied procedural fairness was not a ground upon which the Tribunal's decisions could be set aside. See also NADD of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275 at [29] and NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 per Kiefel J, with whom Spender and Moore JJ agreed, at [29]. Thus, even if I were satisfied that the applicants had been denied procedural fairness by the Tribunal, the decision of the Tribunal with respect to the applicants could not be set aside.

16 The application will be dismissed. I will hear counsel on the appropriate order, if any, as to costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 3 February 2003

Counsel for the Applicants:	Mr M Leeming
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	20 May 2002 and 25 November 2002
Date of Judgment:	3 February 2003