M1014 of 2003 v Minister for Immigration
[2005] FMCA 1652
•16 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M1014 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1652 |
| MIGRATION – Refugee Review Tribunal – protection visa – Order Nisi – High Court proceedings remitted to Federal Magistrates Court – whether final order should be made – application dismissed rather than order nisi refused. |
| Migration Act 1958, ss.417, 418(3), 424(1) |
| Muin v RRT; Lie v RRT (2002) 190 ALR 601 M211/2003 v RRT [2004] FCAFC 293 Applicant NAAF v MIMIA (2004) 211 ALR 660 Stead v SGIC (1986) 161 CLR 141 |
| Applicant: | M1014 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1474 of 2003 |
| Judgment of: | McInnis FM |
| Hearing date: | 24 February 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2005 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr P.G. Willis |
| Counsel for the Respondents: | Mr C.G. Fairfield |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondents’ costs fixed in the sum of $8,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1474 of 2003
| M1014 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application it is appropriate to amend the parties by inserting "Refugee Review Tribunal" in lieu of the individual named in the application.
The applicant is a male citizen of Sri Lanka and is a Tamil-speaking Muslim. He arrived in Australia on 4 December 1995 as the holder of a passport and student visa issued to his brother. The applicant lodged an application for protection visa on 30 June 1997. That application was refused on 12 September 1997 and an application for review was made to the Refugee Review Tribunal (the Tribunal) on 23 September 1997. A Tribunal hearing was convened on 31 October 2000. In its decision dated 2 November 2000 the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
On 20 December 2000 the applicant made an application to the first respondent pursuant to s.417 of the Migration Act 1958 (Commonwealth) ("the Act"). On 14 March 2001 the first respondent decided not to consider the exercise of the powers under that section.
In an affidavit in support of the application the applicant states that in 2001 he was joined to the "Muin/Lie class action" in the High Court of Australia. Apparently, according to the first respondent's records, the applicant joined that litigation on 13 July 2001. On 29 May 2003 the applicant filed an application for an order nisi in the High Court.
On or about 23 September 2003 the application was remitted to the Federal Court and directions were made by that court on 21 November 2003. Following the applicant's solicitors filing of a notice of ceasing to act, further directions were made and a new timetable fixed in the Federal Court. On 17 December 2003 the application was transferred to the Federal Magistrates Court.
The draft order nisi which accompanied the applicant's application seeks to argue that the decision of the Tribunal was made without jurisdiction or is affected by error of jurisdiction. In this instance the decision of the Tribunal is not a privative clause decision. The applicant appears to rely in contentions and in the affidavit affirmed on 22 February 2005 that there was a failure of the secretary of the first respondent's department to give to the Tribunal documents claimed to be in part B of the delegate's decision, and it is argued that in this case the circumstances are analogous with the application considered by the High Court in Muin v RRT; Lie v RRT (2002) 190 ALR 601 ("Muin").
Before considering the further details relied upon by the applicant, it is appropriate to set out briefly the background to the claim. Essentially the applicant claims to be a refugee with a well-founded fear of persecution for reasons of imputed political opinion. The basis of the claim is that the applicant had been arrested and harassed on suspicion of being a supporter of the Liberation Tigers of Tamil Elam ("LTTE").
The applicant supported his claim before the tribunal in an application form, a statutory declaration dated 30 June 1997, a written "further submission" and annexed materials received on 9 January 1998, a written submission received under cover of a letter dated 30 October 2000 and in sworn oral submissions given to the Tribunal on the hearing date referred to earlier in this judgment.
The applicant claims that the persecution against him began in April or May 1995 when he was arrested by police at his older brother's house in a government-controlled Tamil area. Over a period of a year a Hindu Tamil friend of the applicant had stored boxes at the house which, it transpired, contained weapons for the LTTE. Police recovered some of the boxes of weapons when they arrested the applicant.
It was claimed the applicant was held for a month in a prison camp and tortured until his younger brother organised his rescue with the participation of a bribed army officer in or about May 1995. The applicant claims that he then hid in Colombo, living under his brother's name, and in December 1995 travelled to Australia on his younger brother's passport and visa.
The Draft Order Nisi
I accept for present purposes that prohibition is not a remedy which can be pursued in an application of this kind (see M211/2003 v RRT [2004] FCAFC 293). Effectively, the claim by the applicant is for a writ of certiorari to quash the decision of the Tribunal. It is noted that no application is sought for a writ of mandamus, though for present purposes it is sufficient for the court to consider whether indeed there has been a denial of procedural fairness.
Likewise it seems appropriate that the court should proceed to consider the matter as a final decision given the manner in which the applicant and the respondent presented submissions. It seems appropriate in my view to consider the substantive application and to then consider issues concerning delay and possible extension of time.
As indicated earlier, the primary contention in this application is that the applicant was denied procedural fairness on the basis that the evidence in this case is analogous to the High Court decision in Muin. It is argued that the Tribunal decision did not refer to any part B documents, though there is a reference to the delegate's extracts from certain of the documents. Accordingly, as argued, this court should conclude the Tribunal did not have the part B documents and particularly did not have the documents which contained material favourable to the applicant's case.
In support of the submissions reference was made to correspondence from the Tribunal to the applicant which, it is claimed, is similar to the text of correspondence before the court in the Muin case. Essentially, the correspondence reveals the Tribunal would look at documents requested from the secretary of the department together with other evidence to determine whether it could make a decision in the applicant's favour. This correspondence, it is claimed, gave practical effect to ss.418(3) and 424(1) of the Act as they then appeared.
Likewise, correspondence dated 19 September 2000 from the Tribunal to the applicant was claimed to be in similar forms to the correspondence forwarded to Muin whereby the Tribunal, after indicating it had looked at all the material relating to the application, advised that it was not prepared to make a favourable decision on that information alone and invited the applicant to attend the hearing. Likewise, confirmation was provided following the hearing on 31 October by reasons dated 2 November 2000 that the Tribunal had “considered all of the material relating to your case and has made its decision”.
It was argued that a person in the position of the applicant could assume from the correspondence that the Tribunal would take into account part B documents. In affidavit material the applicant claims that he believed the Tribunal would obtain all the relevant documents and that if he knew it had not looked at favourable evidence which would have helped his case, he would have tried to make sure the Tribunal was aware of that material.
The Tribunal Decision
After accurately reciting the basis of the claim the Tribunal, under the heading, "Discussion and Findings", accepts the applicant is a national of Sri Lanka who is outside his country of nationality and accepts that he is a Tamil-speaking Muslim. It notes the applicant's claim to protection “centre on his inadvertent involvement with the LTTE.”
It found specifically, however, that those claims “have been contrived by the applicant”.
It then goes on to state the following:
“… This matter involves an assessment of the Applicant's credibility. In making that assessment, the Tribunal recognises that, unless there are good reasons to the contrary, it is appropriate to give the applicant the benefit of the doubt where he has been generally credible but there are some statements that are not susceptible of proof (see UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para 197). It recognises that if he is not credible in one aspect of his claims it does not mean other aspects of those claims are not credible, nor does it mean he cannot come within the definition of refugee. Indeed, it is aware that an applicant might completely invent a history of personal claims but still come within the Convention, for instance, as a member of a group that is persecuted. It is also aware of the difficulties faced by applicants from different cultures and that mistakes may occur when communicating through interpreters. ...” (p.8)
The Tribunal then proceeded to make a crucial finding whereby it accepted that the applicant attended a predominantly Tamil school and that he became friends with a Hindu Tamil. It then made the following significant finding:
“… It is implausible, however, that the Applicant and his brother would allow R and others to leave two or more boxes at their house on several occasions without becoming suspicious. The Applicant said he trusted R because he was a school friend. Despite that trust, he claimed he then became suspicious. However, it is also implausible that when they did become suspicious, R and R would disclose the contents and the connection with the LTTE rather than obscure their activities or simply remove the cartons so as to allay the suspicions. Their disclosure of the contents appears contrary to the clandestine methods and networks of the LTTE and a serious breach of LTTE secrecy that not only endangered the LTTE strategies but would pose a significant threat to the lives of R and R for breaching their commitment to the LTTE. In that regard, the Tribunal gives some weight to the information alluded to by the delegate about the radical political divide between Tamil‑speaking Muslims and the LTTE ... and does not accept that LTTE operatives such as R and R would entrust a Tamil‑speaking Muslim with information about weapons, even if the latter was a school friend. Further, it does believe R would leave the evidence, in the form of weapons, with the Applicant and his brother over a period of weeks with the constant potential of being caught, even if he had made a death threat. Such a threat is likely to have the effect of severing the trust the Applicant claimed existed between them. Nor does the Tribunal accept that, having learned that the twenty boxes left at the house contained guns for the LTTE, the Applicant did not press R to remove the guns or report it to the security forces, notwithstanding he said he was threatened.
The Tribunal not only found the account of the weapon-smuggling to be implausible, it also found the account of the aftermath to be far-fetched.
...
Similarly, the Tribunal has difficulty believing the Applicant, having been arrested for participating in terrorist activities and making his escape as he alleged, would then remain in Colombo for several months while, according to his evidence, security officials conducted a search for him. …” (pp.8-9)
Other significant adverse credibility findings were made by the Tribunal during the course of its reasoning. Significantly, it made a finding which I would regard as independent of any country information in the following passage:
“In regard to delaying his protection visa application, the Applicant has said that he thought things would get better, that he thought he could convert a temporary visa into a permanent visa and that he knew nothing of migration law. According to his account, one brother was seriously harassed and the other was 'disappeared' yet neither of those circumstances propelled him to make an application. The Tribunal does not accept the explanation that his protection application was delayed because he thought things might improve. While he might not be aware of the intricacies of migration law, the Applicant had numerous dealings with DIMA in regard to his student visa, its cancellation and his intentions to obtain a class 435 visa. In those circumstances, the Tribunal does not accept ignorance of the law as an adequate explanation for failing to make a refugee application or at least inquiring about permanent residence, as he claimed he had intended to do when he arrived in Australia. The Applicant's delay in making a protection visa application is consonant with a finding that he has fabricated his version of events in Sri Lanka and an indicator that his fears are neither as genuine or as profound as he would have the decision-makers believe.” (pp.10-11)
The Tribunal otherwise made adverse findings concerning the disappearance of the applicant's brother and concluded it was unrelated to the applicant's activities and further rejected the argument that the applicant's use of his brother's passport was indicative of a fear of persecution for the reasons given by the application. Significantly, it then reached the following conclusion:
“Apart from providing a version of events which the Tribunal does not accept, the Applicant has not otherwise given evidence that he has been harassed in Sri Lanka for any Convention reason. While he speaks Tamil, the evidence cited by the delegate leads to the conclusion that language is the only common cultural activity shared between Muslims and other Tamil-speaking groups (see paras 3.2-3.3 of delegate's decision). There is no evidence to suggest that the Applicant faces persecution because he speaks Tamil or because of his religion. On the other hand, the available information indicates that the Tamil-speaking Muslim population is aligned with government forces and policies and the Applicant has not provided any acceptable evidence on which to base a conclusion he might be perceived to be dissident, either as a supporter of the LTTE or for any other reason.” (p.12)
The Applicant's Submissions
As indicated earlier in this judgment, the applicant claimed that a failure of the secretary of the first respondent's department to give the Tribunal documents referred to in part B of the delegate's decision was analogous to the circumstances in the Muin case. The failure to refer to the part B documents specifically constituted a breach and it is not sufficient that there are cross-references to the delegate's extracts from certain of the documents.
It was argued the tribunal has not therefore considered the information for itself or considered other parts of the material. The court was invited to conclude that the Tribunal did not have the part B documents and specifically did not have documents which contained material favourable to the applicant's case.
It was argued that the adverse findings in relation to credibility were interwoven with an influence by certain country information recited by the delegate and selected from part B documents and that those credibility findings do not answer the applicant's case for relief in the present application. It was argued that finding of credibility can only be made after a consideration of all the evidence.
In the present case it was argued the Tribunal could not have had a complete appreciation of all the relevant facts or the applicant's case as it did not have the part B documents or the applicant's submissions on them. Further, it was argued, an appeal to the merits does not cure jurisdiction error where factual matters are in contention and the opportunity to make submission on them is denied (see Applicant NAAF v MIMIA (2004) 211 ALR 660 and Stead v SGIC (1986) 161 CLR 141).
The Respondents’ Submissions
The respondent submitted that the present case can be distinguished from the Muin case. In the present case, unlike Muin there is no consent that the part B documents from the department were not received by the Tribunal. It was noted that in Muin it was agreed that the plaintiff had been misled into believe that the part B documents had been sent to the Tribunal and considered by it. Further, it was agreed in Muin that it the plaintiff (in that case Ms Lie) had known that the RRT had not received the part B documents then she would have highlighted passages in the documents which assisted the case concerning the then bad situation of ethnic Chinese people in Indonesia.
It was further argued by the respondent that unlike Muin, in the present case there is no evidence to establish that the Tribunal had not received all of the documents referred by the delegate in his decision under the heading "Part B". At best the affidavit material of the applicant provides a belief by the applicant that the tribunal did not in fact get the papers or look at them. Otherwise no evidence has been provided to establish the basis of that belief.
The respondent otherwise referred to the decision of the Tribunal, part of which is set out earlier in this judgment, to indicate that the court should be satisfied that the Tribunal did have in its possession all of the part B documents. Reference specifically was made to the reference by the Tribunal of source material from which it identified the applicant's claim that material included not only the application form and statutory declaration but also extracts from the delegate's decision.
It is reasonable according to the respondent's submissions to infer that the material could only have been known to the Tribunal if it had been provided with the applicant's departmental file and had read it, noting that the departmental file is the first of the part B documents. It was further argued that the Tribunal referred to "the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status". That is clearly a reference to a paragraph in the second of the part B documents, and accordingly it is reasonable for the court to infer that that document was in the possession of the Tribunal.
Reference to the delegate's decision set out in the passage recited earlier in this judgment concerning information “alluded to by the delegate about the radical political divide between Tamil-speaking Muslims and the LTTE” provides a further basis upon which it could be argued that those extracts were taken from three of the part B documents. Other documents were referred to by the delegate. It was argued that the failure of the Tribunal to specifically refer to part B documents should not lead to a conclusion that it did not possess that material or had not given it proper consideration. Certain documents were clearly not relevant to its process of reasoning, and this may in part explain the lack of reference to the documents.
It was further argued by the respondent that in any event there is inadequate evidence from the applicant identifying how he was misled if at all, and further the applicant had failed to establish that there were favourable references within the part B documents which he may have drawn to the Tribunal's attention.
The significant credibility findings by the Tribunal were supported by sound reasons according to the respondent's submissions and the findings were based upon implausibility's and inconsistencies in the applicant's own evidence. They were not based to any extent upon consideration of country information. The reasons in any event disclose that there was no disagreement between the applicant, who had legal representation at the Tribunal hearing, as to the political divide between Tamil-speaking Muslims and the LTTE. Indeed it was recorded in the Tribunal that:
“The applicant agrees that Muslims are not genuinely suspected of assisting the LTTE, but in this case he has a long-term friendship with R and assisted him to store and distribute weapons, and that was the basis for the suspicions of the authorities that he is a LTTE supporter.”
As indicated earlier in this judgment, the Tribunal clearly rejected the applicant's claims and account in relation to the weapon-smuggling as being implausible. The respondent referred to the other adverse conclusions set out earlier in this judgment. In the Tribunal's reasons the respondent noted that in relation to country information, which would appear to come from part B documents, the Tribunal stated “the only common cultural activity shared between Muslims and other Tamil-speaking groups” is the Tamil language. It further noted that “available information indicates that the Tamil-speaking Muslim population is aligned with government forces and policies”.
In any event, the respondent notes, the tribunal found that:
“From providing a version of events which the Tribunal does not accept the applicant has not given evidence that he was harassed in Sri Lanka for any convention reason and that he had not provided any acceptable evidence on which to base a conclusion he might be perceived to be dissident either as a supporter of the LTTE or for any other reason.”
The respondent argued this was the applicant's own evidence, or indeed absence of evidence, which was determinative of the application. On any view, the respondent submitted, any denial of the applicant of an opportunity to address any favourable information contained in part B documents - assuming favourable information existed - could not have affected the tribunal decision, and hence there was no denial of procedural fairness.
Reasoning
In my view this is not a case similar to the Muin decision in the High Court. Having considered carefully the material relied upon by the Tribunal and the reference to its significant and extensive adverse findings set out earlier in this judgment, it is my concluded view that the credibility findings against the applicant clearly stand alone in relation to this application. They are not dependent upon whether or not the Tribunal did or did not have in its possession the part B documents.
In any event I am satisfied and accept the submission made for and on behalf of the respondent that the references made to the Tribunal decision on the balance of probabilities indicate that in fact the Tribunal did have before it the part B documents. I am satisfied that those documents came into the possession of the Tribunal by reason of its reference to the delegate's decision who clearly did have the part B documents at the time of that decision.
I further find that the applicant has failed to identify with sufficient clarity favourable material within the part B documents which he may have drawn to the Tribunal attention and/or in any event has not identified with any degree of certainty the manner in which he has been misled into believing that the Tribunal had received and considered all of the part B documents.
Whilst it might be difficult for an applicant to adduce evidence in relation to those matters, I am satisfied that the failure to adduce satisfactory evidence concerning those issues, combined with my finding that in any event, on the balance of probabilities, the Tribunal did have in its possession the part B documents recited by the delegate, it is sufficient to conclude that the application should fail.
In the circumstances I am satisfied that the substantive application should fail, albeit that the court is dealing with an order nisi to review. The court is able to make that decision rather than to simply deal, as an interlocutory matter, with the order nisi application.
The preferred approach for matters remitted from the High Court is not necessarily to proceed to determine whether the order nisi is allowed or refused but rather, where the Court is minded to refuse the application to make a final order dismissing the application for writs of certiorari and mandamus on the merits.
I apply the decision of Branson J with whom Moore J and Emmett J agreed (See Branson J in Applicants S61/2002 v RRT (2004) FCAFC 150 where the Court states as follows:-
“36 The application that his Honour intended to dismiss,
I conclude, was an application for writs of certiorari and mandamus. That is, his Honour dismissed the application for writs of certiorari and mandamus that the appellants had commenced in the High Court, pursuant to O55 r 1(1) of the High Court Rules, by applying in the first instance, as O 55 r 1(2) requires, for an order calling on the proposed respondent to show cause why the writs should not be issued.
37 In NAHQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 297 (‘NAHQ’) Whitlam and Keifel JJ considered a purported appeal against a judgment relevantly identical to the judgment the subject of this appeal. Their Honours at [2] noted that the primary judge did not advert to O 51A r 5 and concluded that ‘it may be accepted that he heard the application as if it were an application for final relief’. However, at [3] their Honour’s said:
‘Nonetheless, no order nisi was made and the only application formally before Wilcox J remained one for such an order. An order refusing an application for an order nisi is an interlocutory order: Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 180. The order pronounced by Wilcox J can only be regarded as such an order. The High Court has again recently emphasized that an order’s legal effect determines whether it is interlocutory: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70. The appeal is thus incompetent.’
The third member of the Full Court in NAHQ, Moore J at [6] said:
‘I entertain some doubts whether the judgment to which this appeal relates, was interlocutory. Existing authorities concern procedures which do not correspond with O 51A r 5 of the Federal Court Rules. That rule results in the determination of a claim for constitutional writs even though it is in the procedural context of an application for an order nisi. However, as Whitlam and Kiefel JJ have concluded it was an interlocutory judgment, it is probably sufficient for me to say that if leave was necessary, I would refuse leave for the reasons given by their Honours. If it was not necessary, I would dismiss the appeal for the same reasons.’
38 In Applicant S422 of 2002 v MIMIA [2004] FCAFC 89 (‘Applicant S422’) Dowsett and Lander JJ with North J preferring not to express a view on the issue at [35]-[36] said:
‘One further matter requires comment. Counsel for the Minister submitted that if the appellant did not require an extension of time in which to appeal, the order under appeal should be treated as an order refusing an application for an order nisi. Such orders have traditionally been considered to be interlocutory, therefore necessitating leave to appeal. See Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 67 ALJR 389 at 390. It occurred to us in the course of argument that the terms of O 51A r 5 of the Federal Court Rules may have changed the nature of an application for an order nisi remitted to this Court by the High Court. That order provides:
"(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge:
(a)will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and
(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.
(2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply."
We were referred to the Full Court decision in NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297. The majority (Whitlam and Kiefel JJ) concluded that notwithstanding the provisions of O 51A r 5, a decision refusing an order nisi in a remitted matter was an interlocutory judgment and therefore not subject to appeal as of right. In the absence of any submissions to the contrary, we should follow that decision. Nonetheless we see some substance in the doubts expressed by Moore J in his reasons for judgment in NAHQ.’
39 In view of the different views given expression in NAHQ and Applicant S422, this Full Court is not, as it seems to me, restrained by the usual rule of deference from giving effect to its own view as to whether the judgment sought to be appealed from in this case is an interlocutory judgment or a final judgment.
40 As indicated above, I do not doubt that his Honour intended by his order to dismiss on the merits the appellants’ application for writs of certiorari and mandamus. In my view, no question arises as to the power of his Honour to make an order with the effect intended by his Honour. It does not matter, as it seems to me, whether his Honour is to be understood as having proceeded under an authority implicit in O 51A r 5, or under O 19 r 1 having impliedly waived the requirement for the filing of a notice of motion. However, for the reasons given above, I am satisfied that O 51A r 5 gave his Honour adequate authority to proceed as he did.”
The principles of Branson J were applied by Ryan J in M153 of 2003 v MIMIA (2005) FCA 251 who stated the following:
“5 However, in Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150, a Full Court of this Court made it clear that whether a single Judge or Magistrate has made an interlocutory order refusing to grant an order nisi for the issue of a prerogative writ, or has made a final order disposing of the whole "matter" in the sense of the justifiable controversy remitted by the High Court, is a question to be resolved by construing the order of the Judge or Magistrate with recourse, in the event of ambiguity, to surrounding circumstances including the published reasons for the order in question. I have read the careful reasons of Branson J (with whom Moore and Emmett JJ agreed) in S61 of 2002 and agree with her Honour that O 51A r 5 of the Rules of this Court gives a Judge, and, on remitter, a Magistrate, authority to make a final order dismissing on the merits an applicant’s application for writs of certiorari and mandamus where no order nisi has been granted.
In this matter for the reasons given it is my intention to make a final order dismissing, on the merits, the application.
In this case I am further satisfied that independent of any reference to part B documents, the Tribunal made findings reasonably open to it concerning the applicant's credit and independent of any issue concerning part B documents have made a significant finding rejecting the applicant's account of the weapon-smuggling as being implausible. That finding together with other adverse findings I accept were based upon the applicant's own evidence.
In the circumstances, even if the applicant had been denied an opportunity to address any favourable information in the part B documents, assuming such information existed, then I accept the submission on behalf of the respondent that this would not have affected the Tribunal's decision and that there was no denial of procedural fairness.
It follows that the application should be dismissed with costs.
To the extent that I am required to do so, given the lack of merit in the application I accept, as submitted by the respondent, that it would be necessary for the applicant to seek an enlargement of time given that this application was commenced more than two and a half years after the date of the handing down of the Tribunal decision. Although the applicant joined the Muin/Lie litigation on 13 July 2001, there is no explanation for the further delay in excess of seven months between the handing down of the Tribunal decision and indeed the applicant joining the Muin/Lie litigation.
The application under s.417 of the Act may provide some material upon which the delay is explained, though an application of that kind of itself may also lead to a conclusion or inference that the applicant has accepted the validity of the Tribunal decision.
In any event, for the reasons given the substantive application should be dismissed, and to the extent that it may be necessary, having regard to that finding I would not be prepared to enlarge time.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 November 2005
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