Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: cited
On 28 December 2007, the appellant filed a notice of appeal before this Court in which the appellant relies upon ten grounds of appeal. Leaving aside para 1 of the notice of appeal which recites that the appeal is from the whole of the judgment of Federal Magistrate Nicholls, the grounds are these: 1. The Federal Magistrates Court "failed to find error of law, jurisdictional error, or [a denial of] procedural fairness and [a right to] relief under s 39B of the Judiciary Act 1903 ". 2. Federal Magistrate Nicholls "dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal]". 3. Federal Magistrate Nicholls made "a legal, factual and jurisdictional error in not applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437". 4. Federal Magistrate Nicholls failed to "take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim". 5. The Tribunal emphasised "some irrelevant question at the oral evidence [the hearing] and ignored my political background that put my life in risk. In doing so the Tribunal may be said to have ignored relevant material, relied upon irrelevant material and/or made findings which were erroneous or mistaken". 6. The appellant was denied "procedural fairness" in the same way that procedural fairness was denied in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. 7. Federal Magistrate Nicholls did not consider the appellant's amended application for relief. 8. The Tribunal, in reaching its decision, did not take into account "certain relevant considerations or 'integers' central to the applicant's claim" and thus failed to carry out its statutory review function. The matters the Tribunal did not consider were the "immense and intimidating pressure from family members because of [the appellant's] homosexuality" and the appellant's claim that "his family members [would] kill him if he returns to Bangladesh". 9. The Tribunal applied the wrong test by "requiring independent evidence of the fact [asserted by the appellant]" before the Tribunal would accept the claim made by the appellant and thus placed "[a] high onus of proof on the applicant and [failed] to give the applicant the benefit of the doubt"; and the Tribunal applied the wrong test by failing to "look at the claim as a whole to determine whether the claim so considered [amounted] to persecution". 17 In Muin v Refugee Review Tribunal , the High Court (Gleeson CJ, Gaudron, McHugh and Kirby JJ; Hayne J dissenting) concluded that the appellant, an Indonesian national of Chinese ethnicity had been denied procedural fairness in relation to a submission sent by the Secretary of the Department of Immigration and Multicultural Affairs to the Tribunal. The appellant applicant for a protection visa ought to have been provided with an opportunity by the Tribunal to deal with and respond to matters contained in the submission. In this case, there is no reference by the appellant to any document or other material relied upon by the Tribunal which was not brought to the appellant's attention. Accordingly, the reference to Muin in ground 6 and the contention that by reference to the principles in Muin the appellant "strongly believe(s) that there is a lack of procedural fairness in my case", seems entirely misplaced. 18 By ground 7, the appellant contends that Federal Magistrate Nicholls did not consider the appellant's amended application. It is plain from the reading of the reasons published by Federal Magistrate Nicholls that each element of the appellant's amended application before the Federal Magistrates Court Australia was fully taken into account. 19 By ground 8, the appellant contends that the Tribunal did not consider the "integers" central to the appellant's claim thus failing to discharge the review function. The two essential integers identified are the "intimidating pressure" from the appellant's family members due to the appellant's homosexuality and the contention that the appellant's family members would kill him if he returned to Bangladesh. It is clear from the reasons of the Tribunal that the contention of pressure brought to bear by family members and the notion that family members might harm the appellant by reason of the appellant's sexual orientation were expressly addressed. There is little point in quoting the specific paragraphs of the Tribunal's reasons as to these matters. However, the question of the hostility of the appellant's family, the contention that they had lodged false cases against him and that family members had encouraged the appellant's friends in Singapore to "beat him up" is expressly dealt with at AB529 and AB530 beginning with the reciting of aspects of these claims at the second paragraph under the heading Threats of harm (being the fourth paragraph on AB529).