[Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Court of Australia

You are here: AustLII >> Databases >> Federal Court of Australia >> 2003 >> [2003] FCA 689

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Applicant A23/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 689 (8 July 2003)

Last Updated: 21 July 2003

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] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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

ADELAIDEGENERAL 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

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (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] HCA 30; (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] HCA 6; (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

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2003/689.html