S440 of 2002 v Refugee Review Tribunal [2004] FCA 696

S440 of 2002 v Refugee Review Tribunal [2004] FCA 696

The applicants did not establish any denial of procedural fairness, irrelevant consideration, actual bias or apprehended bias. The undisclosed DFAT materials concerned the general safety of failed asylum seekers and the applicants identified no useful submission they could have made; the hearing exchanges sufficiently exposed the issue. The applicant husband did not prove that the Tribunal correspondence induced the alleged belief that all Part B documents were before and considered by the Tribunal, and the applicants did not prove the Tribunal failed to consider the relevant information. The challenged matters concerning the wife’s sister and the prior Tribunal reasons were capable of...

Jurisdiction
Australia
Judgment Date
31 May 2004
Procedural Posture
Migration Judicial Review Seeking Constitutional Writ Relief Concerning Refusal of Protection Visas / On Remittal From the High Court of Australia; Hearing on Whether Order Nisi Should Be Made And, If Made, Whether It Should Be Made Absolute
Outcome
Order absolute refused; orders nisi discharged; application otherwise dismissed with costs against the adult applicants in favour of the second respondent.
Legal Topics
['procedural Fairness' 'adverse Material' 'misleading Tribunal Correspondence' 'irrelevant Considerations' 'actual Bias and Apprehended Bias' 'privative Clause Decision' 'protection Visas']
['migration Law' 'administrative Law' 'refugee Law'] ['procedural Fairness' 'adverse Material' 'misleading Tribunal Correspondence' 'irrelevant Considerations' 'actual Bias and Apprehended Bias' 'privative Clause Decision' 'protection Visas']

Case Brief

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Procedural Posture

Migration Judicial Review Seeking Constitutional Writ Relief Concerning Refusal of Protection Visas / On Remittal From the High Court of Australia; Hearing on Whether Order Nisi Should Be Made And, If Made, Whether It Should Be Made Absolute

Legal Issues

  1. 1 ["Whether the Tribunal denied procedural fairness by failing to bring adverse Department of Foreign Affairs country information to the applicants' attention." 'Whether Tribunal correspondence misled the applicants into believing that favourable documents before the delegate had been given to and considered by the Tribunal.' "Whether the Tribunal took irrelevant considerations into account in assessing the significance of the applicant wife's sister's alleged LTTE involvement and the earlier Tribunal decision." 'Whether remarks made by the Tribunal during the hearing established actual bias or apprehended bias.' "Whether the Tribunal's decision was a privative clause decision under s 474(2) of the Migration Act 1958 (Cth) so that constitutional writ relief was unavailable."]

Ratio Decidendi

The applicants did not establish any denial of procedural fairness, irrelevant consideration, actual bias or apprehended bias. The undisclosed DFAT materials concerned the general safety of failed asylum seekers and the applicants identified no useful submission they could have made; the hearing exchanges sufficiently exposed the issue. The applicant husband did not prove that the Tribunal correspondence induced the alleged belief that all Part B documents were before and considered by the Tribunal, and the applicants did not prove the Tribunal failed to consider the relevant information. The challenged matters concerning the wife’s sister and the prior Tribunal reasons were capable of...

Court Disposition

Order absolute refused; orders nisi discharged; application otherwise dismissed with costs against the adult applicants in favour of the second respondent.

Orders

  • ['Orders nisi in the nature of certiorari and mandamus be made in relation to the decision of the first respondent of 26 February 2001 in matters N00/35145 and N00/35148.' 'The orders nisi be discharged.' "The adult applicants pay the second respondent's costs of the proceeding." 'The application be otherwise...