Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966
Outcome: referred to
In Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 (" Muin "), a delegate of the Minister for Immigration and Multicultural Affairs refused to grant applications by two applicants for protection visas. Both applicants sought review by the Refugee Review Tribunal. Of present relevance is one aspect of the case. The applicants were led to believe that the Tribunal had certain documents called Part B documents which had been before the delegate. That belief was in each case brought about by conduct by the Tribunal. 66 A majority of the Court found that in each case there had been a failure to accord procedural fairness in relation to the Part B documents. Gaudron J said that there was a breach of the rules of procedural fairness because a reasonable person in the applicant's position would have considered it unnecessary to direct the Tribunal's attention to material favouring them in the Part B documents by reason of the Tribunal's conduct, that they refrained from doing so and the Tribunal did not have regard to the documents (at 979-980, [62]-[68]). Hayne J, after noting that a number of what would have otherwise been difficult factual matters had been agreed between the parties, said (at 1009 [256]-[257]): "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. The agreed facts are silent about whether the tribunal was aware of the information and opinions contained in the Part B 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." 67 With respect to this last observation by Hayne J, I note that in this case I am not concerned with possible breaches of statutory provisions but, rather, only with the common law requirements. Gummow J (at 996 [171]) and Kirby J (at 999 [194]) agreed with Hayne J's reasoning on this point. 68 This case is similar to Aala and Muin in that an applicant would have conducted his case differently in the sense that he would have presented more information, which cannot be said to be irrelevant, but for the conduct of, or representation by, the decision-maker. Where it differs is at a factual level in that in this type of case it will often be difficult to prove as a matter of fact that the applicant would have conducted his case differently. However, I am satisfied of that fact in the particular circumstances of this case and therefore the applicant has established a breach of the rules of procedural fairness on this ground.