Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: cited
In any event there was no appeal against her Honour's decision by either of the applicants. However, both of them were joined as members of the representative group in the Muin and Lie litigation which led to favourable findings in respect of those two named applicants Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. That concerned the application of procedural fairness in the way the Tribunal had dealt with documents transmitted from the Department to the Tribunal and in particular the failure to notify applicants that certain documents believed to be considered by the Tribunal had not in fact been transmitted to the Tribunal. 19 No such determination was made in relation to these applicants who, pursuant to orders made in the representative proceedings by Gaudron J on 25 November 2002, were given liberty to file individual applications for orders nisi seeking prerogative relief in the High Court on the basis that upon such filing their applications would be remitted instanter to the Federal Court. 20 Applications for orders nisi were filed and remitted to the Federal Court and eventually on 20 February 2004 Emmett J, in judgments dealing with some hundreds of proceedings so remitted, dismissed the applications for relief. The applications for relief in each case asserted failure of procedural fairness without any particularisation. In dismissing those applications his Honour did indicate that the dismissal was without prejudice to the capacity of the applicants to bring fresh applications for orders nisi for prerogative relief properly supported by affidavit material and appropriately particularised grounds. 21 Assurances were given to Emmett J by the Minister's counsel that the delay which had ensued between the time when each of the applicants was joined as a representative party in the High Court to the time of refusal of an order nisi would not be advanced as a basis for refusing relief in any future application. However, any delay from the time of making the decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained as would any delay from the time of refusal of an order nisi until the commencement of any fresh proceeding. 22 Subsequently each of the applicants lodged an application under s 39B of the Judiciary Act 1903 (Cth) in the Federal Magistrates Court. Their applications were lodged on 17 January 2005. Each application asserted firstly that the applicant was not a vexatious litigant and there was no abuse of process and secondly, in the case of the husband, that the Tribunal had failed to accord procedural fairness because it did not give him an opportunity to comment on information which was significant to the decision to be made and was specifically about the applicant. Reference was made to contravention of s 424A(1) of the Act which, however, was not in force at the time that the Tribunal made its decision. A similar ground framed slightly differently was expressed in the wife's application. 26 The applicants had filed a written submission in the Federal Magistrates Court in response to the notice of motion. They were not then legally represented. They submitted that the current proceedings were not an abuse of process and argued first that even though their applications were dismissed by the Federal Court, the High Court found that the Tribunal had erred in law and had remitted their matter to the Federal Court. It is true, as the learned Federal Magistrate pointed out, that the applications for an order of review were dismissed by the Federal Court and that the High Court had in the Muin and Lie class action made a finding of error by the Tribunal but not in respect of the applicants' case. Each of the applicants was, as the learned Magistrate pointed out, given the right to file an application for an order nisi in the High Court which was remitted to the Federal Court but that application was subsequently dismissed for a procedural reason. 27 It was submitted to the Federal Magistrates Court that the Federal Court had not examined the Tribunal decision other than in relation to access to documents held by the Minister. As a statement about the decision made by Mathews J in 1999 that contention was, as the Federal Magistrates Court pointed out, incorrect. Her Honour examined the decisions of the Tribunal in detail and dismissed the application for review on its merits. It may be that there was some confusion, on the applicants' part, with the judgment of Emmett J in the later proceedings. 28 A third contention advanced before the Federal Magistrates Court was that after the High Court had remitted the applicants' cases to the Federal Court they had had no opportunity to present their arguments in relation to the Tribunal decision which, according to the High Court, was infected by a jurisdictional error. As the Federal Magistrates Court pointed out, that ground was misconceived. The High Court had not found the decisions relating to the two applicants to be infected by jurisdictional error. The applicants had already presented their arguments to the Federal Court in relation to the Tribunal decision, arguments which were considered and rejected. 29 The Federal Magistrates Court observed that the applicants had not appealed against the judgments of Mathews J in 1999 and expressed the opinion in passing that their joinder in the class action was in itself an abuse of process because their matters had already been decided. I interpolate that this was not necessarily so given the limitation on the grounds of judicial review before Mathews J to those set out in s 476 and, in particular, the exclusion of natural justice grounds which it was open to raise in the proceedings in the High Court. The learned Federal Magistrate then referred to a number of authorities cited by the applicants and concluded that (at [22]): '[I]t is clear that the applicants were seeking to re-litigate an application for judicial review of the decision of the Refugee Review Tribunal handed down on 8th July 1998.' 30 The learned Federal Magistrate held that the applicants had raised no new issue since the application for judicial review had been dealt with in 1999. No special circumstances were given as to why any new issue which could have been raised was not raised at the time of the original applications. They were represented by counsel at the time of the original applications.