“Muin” Instruction Sheet

Introduction

On 8 August 2002 the High Court handed down its decision inMuin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. The case concerned two asylum seekers from Indonesia. Both had been unsuccessful at the Refugee Review Tribunal (“the Tribunal”). Both have now had their applications remitted to the Tribunal for rehearing and determination.

In each case the High Court found that the Tribunal had failed to afford the applicant’s natural justice because they had not been given an opportunity (or at least an adequate opportunity) to prepare and present favorable material at hearing or an adequate opportunity to respond to unfavorable material.

The question turned on representations made to the applicant by the Tribunal. In these two cases, although the form varied, the Tribunal wrote to the applicants and stated something similar to extract below:

“The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims."

The applicants successfully claimed that because of that representation they:

• Made no further submissions
• Did not arrange for representation at the hearing
• Did not seek to adduce further evidence
• Did not undertake research they may have produced favorable material

The Court found this to be sufficient grounds for restarting the process.

Online Resources

We have prepared two documents that you may find useful. The first is a Federal Court application couched in the same terms as the orders granted in Muin. The second is a pro forma affidavit. Once you have ‘filled-in-the-gaps’ it will seek to show a court that the applicant has experienced the same injustice at the Tribunal. If the court accepts this, the orders sought seek to remit the applicant’s case to the RRT for rehearing and determination.

This document will assist you to make use of the pro forma affidavit.

Preparation

Before starting you will need to gather all the applicant’s available documentation and familiarize yourself with their case.

It may be useful to compile a brief chronology of events outlining:

• Their date and method of arrival in Australian territory;
• Their original (and current) immigration status;
• The date and nature of any written correspondence received in relation to their claim; (obviously, this is very important)
• Whether in fact the applicant relied on representations in the correspondence
• The date and nature of any departmental decisions;

You will need to pay particular attention to any supporting documentation that may have been submitted with the application for review. Further, you will need to read the Tribunal member’s ‘reasons for decision’ and compare them to the applicant’s submission. If the applicant had a Migration Agent’s assistance, they may be able to assist you in these matters.

Filling in the form

Once you have completed the above, filling in the form should be quite simple. There are however a few sections that need careful attention.

Paragraph 7 and 9 relate to the written representations made by the Tribunal to the applicant. You will need to transcribe the precise wording from the individual’s records in order to show the court the nature of the representations made in the applicant’s case.

Paragraph 12 deals with the applicant’s actions or omission before the hearing date. It is important to clearly understand what steps were taken and why. Equally, you should determine what possible steps were not taken and why those steps were not taken.

If you click here you find a simple questionnaire to help you with the information-gathering task.