Fed: High Court finds asylum seekers denied procedural fairness

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Fed: High Court finds asylum seekers denied procedural fairness

By Max Blenkin

CANBERRA, Aug 8 AAP - The High Court today ruled the Refugee Review Tribunal lackedprocedural fairness in its dealings with a pair of Indonesian asylum seekers.

In their decision, the judges found an asylum seeker referred to only as Mr Muin andanother named Nancy Lie, both ethnic Chinese Indonesians, had been denied procedural fairnessin the way the tribunal dealt their with cases.

The decision appears to create a new obligation on the Refugee Review Tribunal withpotentially serious implications for many cases already considered.

Ms Lie came to Australia in January, 1997, and Mr Muin in June, 1996.

Both applied for asylum, arguing they would face persecution because of their raceif returned to Indonesia.

They appealed to the Refugee Review Tribunal for review after their applications were rejected.

Before the High Court, both argued that they had been denied procedural fairness inthe way the tribunal dealt with documents used by the minister's delegate in making theinitial negative decision.

Those documents specifically related to the overall situation in Indonesia and includednewspaper articles, Department of Foreign Affairs cables and country profiles.

Both argued there had been a failure to comply with the Migration Act, which stipulatesthat the Immigration Department secretary must "give" to the tribunal registrar each documentconsidered relevant to the review of the decision.

But most of those documents - 31 in Mr Muin's case - existed only on separate electronicdatabases, not in hard copy form, and were never given to the tribunal.

Both Mr Muin and Ms Lie argued they had been misled and disadvantaged.

A majority of the High Court agreed, finding they had been denied procedural fairnessand their cases should be reconsidered.

Justice Michael Kirby said electronic documents could be "given" by separate identificationand annexure to an electronic decision - but not even that was done in this case.

"Merely making such documents or some of them `available' in a mass of undifferentiatedmaterial in a database of constantly changing content does not comply with the languageand particular design of the act," he said.

AAP mb/kjp/las/sb

KEYWORD: MUIN