What Materials Are Necessary In Order To Assess Whether There Are Prospects Of Success For Judicial Review?

TABLE OF CONTENTS

Introduction

If judicial review is sought of a decision of the Migration Review Tribunal or the Refugee Review Tribunal the full record of material before the Tribunal needs to be assembled. Ordinarily this would include the decision, the written material before the tribunal and a transcript of the oral hearing. In fact, always arrange for a transcript of the oral hearing, sometimes members say legal valuable things at the hearing which do make it into the written reasons for decision.  Sometimes it is necessary to listen to the oral recording and ensure that the audio recording of the hearing is available to the court, because the tone of the discussion between the member and the applicant and/or witnesses may indicate a lack of being open to persuasion. It may be obvious that a member is inappropriately aggressive to an applicant or a witness from the sound recording which may not be obvious on transcript. An applicant or witness may be cut off mid stream which may not be obvious from the transcript. (See VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102, where Kenny J held that the decision of the Tribunal was vitiated by apprehended bias on the part of the Tribunal member. Her Honour had in evidence and listened to the audio recording of the hearing and was a decisive factor in the reasons for decision).

So often the writer receives just the decision and is asked to give an assessment of prospects of success based on reading the decision. Sometimes this is possible but without the benefit of having the full record available important issues may be missed.

Secondly the writer needs an assessment of why the applicant and the representative believe that the decision was wrong.  This can be a common sense assessment.  Often common sense assessments can be a useful guide as to what went wrong.

As a practice point, lways obtain a copy of the audio recording of the tribunal and always have a transcript done, supply the person doing the transcript with a copy of the decision and the names of the persons whose voices will appear on the recording. When the transcript comes back check the accuracy of those names. At time the transcript will show inaudible, someone should check those inaudible parts to see of some sense cannot be made of the sounds (preferably someone who was at the hearing).  Also often the transcript will be in quite a raw format so again, someone who was at the hearing ought to go through it to make sure that the voices are accurately described and that the right words are attributed to the correct person. Often relatives can sound the same.  A transcript can be very valuable because at times a Member makes significant errors in the conduct of the hearing or sometimes the member will mislead the applicant at the hearing or the Member will reveal a misunderstanding of the law or the issues or the facts.

A complete record of what happened has to be compiled otherwise an important point may be missed.