Case: Muin v Refugee Review Tribunal [2002] HCA 30 , 76 ALJR 966
Outcome: cited
One Ground of Appeal asserts a failure to accord procedural fairness. Reliance is placed upon Muin v Refugee Review Tribunal [2002] HCA 30 , 76 ALJR 966 , a decision which the Appellant maintains is " identical " to his own. 21 The Notice of Appeal goes on to state: ... My case is identical to Muin contending a want of procedural fairness in two respects. Muin had been misled into believing that the Tribunal had read some information, which had been in part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them. It is the first of those contentions, which is relevant here. 22 In Muin the applicants had been led to believe that the Tribunal had certain documents -- called the Part B documents -- which had been before the delegate. Those documents were not before the Tribunal. A majority of the High Court concluded that there had been a denial of procedural fairness. Hayne J referred to an agreed statement of facts and concluded: [256] ... The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the Tribunal said, that it had material relevant to that plaintiff's claim which it did not. [257] The agreed facts are silent about whether the Tribunal was aware of the information and opinions contained in the PtB documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the Tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the Tribunal. Moreover, it also follows from the parties' agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the Tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs' cases. It did not give each plaintiff the opportunity to make the submissions or give the evidence which the plaintiff wished to make and give. For these reasons, Question 1 of the questions reserved should, in each case, be answered "yes". Gummow J (at [171]) and Kirby J (at [194]) agreed with Hayne J. Gaudron J also agreed that there had been a denial of procedural fairness. 23 One difficulty confronting the Appellant in the present proceedings is not the principle for which Muin is authority; the Appellant's difficulty is the application of Muin to the circumstances of the present appeal. 24 The material before the delegate is set forth in his decision dated 11 December 2006. The material that was before the Tribunal is also set forth in its reasons for decision. There was no identification by the Appellant of those documents which he contended should have been before the Tribunal but were not. Generalised assertions as to a denial of procedural fairness and a citation of the decision in Muin does nothing to assist this Court in the resolution of a challenge to a decision of the Tribunal: SZJMU v Minister for Immigration &amp; Citizenship [2007] FCA 1344 at [16] per Mansfield J. 25 A further difficulty confronting the Appellant in his reliance upon Muin is the fact that this ground was also not raised before the Federal Magistrate for resolution. Again, it is a ground apparently inserted consequent upon the meeting with the migration agent. Again, leave to raise this as a Ground of Appeal is refused. 36 An instance of such indiscriminate repetition of grounds advanced in other proceedings into the circumstances of the present appeal is, it is considered, exposed by the Appellant's reliance upon the decision in Muin. The documents which were not before the Tribunal in that case and which occasioned the denial of procedural fairness had been there identified as " the PtB documents ". But there were no comparable documents identified in the present appeal which were said to have been not before the Tribunal and thereby denying the now Appellant of procedural fairness.