Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: referred to
The application was remitted to this Court pursuant to orders made by Gaudron J, as varied by McHugh J, following the delivery of judgment in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 (" Muin" ). 4 By letter dated 12 November 2004, the District Registrar of this Court notified the applicant that the Court proposed to consider whether there was an arguable case on the basis of the written material that the applicant had given to the Court and without any oral hearing. The applicant was invited to file written submissions on the question of whether the Court should make an order nisi and, on 8 December 2004, he did so. 5 I propose to deal with this application on the papers. 9 In the draft order nisi filed in the High Court, the applicant claims that the Tribunal failed to afford the applicant natural justice because he had not been given an opportunity (or an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material. The applicant relies on the High Court's decision in Muin . The High Court in Muin held that the plaintiff was denied procedural fairness in circumstances where the plaintiff relied on a misrepresentation that the Tribunal would have regard to the delegate's Part B documents before making its decision (see Gaudron J at [63]; Gummow J at [171]; Kirby J at [201]; Hayne J at [257] and Callinan J at [309]). 10 In his written submissions, the applicant asserts that he was denied natural justice in the processing of his review application by the Tribunal. The applicant claims that the Tribunal did not have before it, and therefore did not consider, country information referred to in Part B of the Ministerial delegate's decision. The applicant says that he was misled by three letters sent to him by the Tribunal into believing that the Tribunal had been forwarded, and had considered, all the papers relevant to his application. The applicant first refers to a letter from the Tribunal dated 30 May 1997, which states that the Tribunal has requested that the Department forward to it a copy of any documents held by the Department that are relevant to the applicant's case. The applicant then refers to a letter from the Tribunal dated 14 April 1998, which states that the Tribunal has looked at all the material relating to the application. The applicant finally refers to a letter from the Tribunal dated 30 May 1997, which states that the applicant should not send any documents or written arguments to the Tribunal that have already been given to the Tribunal or the Department. 11 The applicant claims that had he not been misled by the Tribunal, he would have taken steps to draw to the Tribunal's attention the Part B documentation that was favourable to his case. In particular, he would have sought advice about how to get copies of the documents from the Department, drafted his written submissions differently, provided further written submissions and included additional documents in the material provided to the Tribunal. In an affidavit sworn on 8 December 2004, the applicant says that he would have also conducted searches on the internet for additional information that supported his case, attempted to find supporting material from other sources and mediums and contacted his family in India to ask them for letters of support or statutory declarations explaining the situation in India and his situation in particular.