M55 v Minister for Immigration - [2003] FMCA 491

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M55 v MINISTER FOR IMMIGRATION

[2003] FMCA 491

MIGRATION – Application for review of Refugee Review Tribunal decision – procedural fairness – alleged breach of section 424A of the Migration Act 1958 (Cth) – adequate opportunity to respond – no jurisdictional error.

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

NAAV v MIMIA (2002) FCAFC 228
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 498
Craig v the State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
Abebe v the Commonwealth (1999) 197 CLR 510
SBBS v MIMIA (2002) FCAFC 361
Al Shamry v MIMA (2001) FCA 919
VAAN v Minister for Immigration (2002) FCAFC 120
VDAU v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 365
Lamb v Minister (2001) FCA 1866
Applicant NAHV of 2002 v The Minister (2003) FCAFC 102
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 577 at (46)

Applicant:

M55/2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ1222 of 2002

Delivered on:

7 November 2003

Delivered at:

Melbourne

Hearing date:

21 October 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Kissane

Solicitors for the Applicant:

K P Aravindan

Counsel for the Respondent:

Mr Gray

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The Court orders that:

The application is dismissed.
The applicant pay the respondent's costs as agreed or in default of agreement, as taxed pursuant to the Federal Court Rules.

It is certified that:

Pursuant to r 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ1222 of 2002

M55/2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This is an application under s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (the RRT) made on 14 March 2002. That decision affirmed the decision of a delegate of the respondent to refuse to grant a protection visa to the applicant. The applicant commenced proceedings in the High Court on 3 May 2002 with an order being made by Hayne J on 30 July 2002 remitting further proceedings in the application for an order nisi for writs of prohibition, declaration, certiorari, mandamus and injunctions to the Federal Court of Australia, Victoria District Registry. Goldberg J on 29 November 2002 transferred the proceedings to this Court. On 2 April 2003 the applicant filed an amended application pursuant to s.39B of the Judiciary Act 1903 (Cth).
The applicant is a citizen of Sri Lanka. He was born on 16 April 1973 and is now aged 30 years. His brother and mother reside in Sri Lanka. He is of Tamil ethnicity and Hindu religion and can speak, read and write both English and Tamil and is able to speak Sinhala.
The applicant arrived in Australia on 9 July 1997 on a student visa. He was desirous of completing a diploma of information technology which commenced on 14 July 1997 and concluded on 25 June 1999. He in fact obtained a student visa issued on 3 July 1997 to undertake the studies proposed by him and such visa was valid until the 26th of July 1999.
The applicant lodged an application for a protection visa (subclass 866) on 1 May 1998. On 31 December 1998 a delegate of the Minister refused to grant a protection visa and on 15 January 1999 the applicant sought review of that decision. On 14 March 2002 the RRT affirmed the decision. Notification of that decision was under cover of a letter dated 5 April 2002.

The RRT hearing

The applicant's eligibility for the grant of a protection visa turned on the Minister's satisfaction (s.65 of the Migration Act 1958 (Cth) (the Act) as to whether the applicant met the criteria described in s.36(2) of the Act and in clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth), namely, whether the Minister was satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and the Protocol to it.
The RRT decision and reasons for decision were prepared pursuant to s.430(1) of the Act.
On 9 January 2002 the RRT wrote to the applicant advising him that it was unable to make a favourable decision on the papers alone and offering him the opportunity to give oral evidence before it. That hearing was held on 12 March 2002. The applicant was assisted by an interpreter in the Tamil language and was represented by counsel.
Before the Tribunal, the applicant claimed a fear of persecution for reasons of his Tamil ethnicity and political opinion which had been and/or could be imputed to him.
In summary the applicant claimed a fear of persecution at the hands of the LTTE, the security forces and an anti-LTTE group, the EPDP, due to his family's connections with the LTTE. He stated that as a young male Tamil he was at risk of persecution by the Sri Lankan authorities and that the authorities were unable to protect citizens from the LTTE.
The applicant claimed that his family had strong connections to Jaffna and thus would often visit Jaffna until the mid-1980s. He stated that his father's brothers were strong supporters of the LTTE and had contacts who were LTTE members and fundraisers. He claimed that following his father's death in October 1992 he and his mother ran the family business which she closed in 1993 and that in the period shortly prior thereto they could not contribute to LTTE fundraising. However, the LTTE forced him to give them names of other businessmen in the district of Negombo who would raise money for the Tamil cause. He was reluctant to do this but he was forced by the LTTE to take them to these businessmen.
The applicant claimed that in 1996 the EPDP, an anti-LTTE militant group, became aware of his association with the LTTE. EPDP members came to his home and threatened him. He denied any association with the LTTE and they warned him that when they came again they wanted the names and addresses of the LTTE boys with whom he had regularly and previously associated. He claimed that a couple of weeks later Tamils claiming to be EPDP members forcibly picked him up after his day's work and took him to Ratmalana, two miles from Colombo. He claimed that there were Sri Lankan Army people there and he was interrogated by members of the security forces. He denied any dealings with the LTTE but claimed they beat him and forced him to confess of his association. He claims he gave them some information telling them he was not sure of the boys real names but that two of them were nicknamed Kanthan and Muthu.
The applicant claimed that in early February 1997 the same EPDP members came to his office and that he gave them the names of two LTTE men who were staying in Negombo. Later he found out that they were arrested and taken to a prison.
The applicant claimed his mother was aware of what was happening and warned him that if the LTTE came to know what he had done he would face death at its hands.
The applicant claimed that at the end of February 1997 he was confronted by CID officers who raided their home late at night and carried out a search. Although they found nothing they arrested him and took him to a police station where they beat him severely and kept him in a cell with other prisoners who were there for criminal reasons. He claimed to be threatened at gunpoint next morning by a senior police officer and that he was subsequently released on condition that in the future he would assist the police in identifying LTTE operatives. He claimed to remain fearful of persecution by both the police and the LTTE.
He claimed that his mother was worried about the situation and thought it best for him to escape to another country. He was accordingly sent to Batticoloa to stay with a Muslim businessman friend and remained effectively in hiding whilst the family made arrangements. It was at this time that his mother informed him that his application for a student visa had been approved and that he needed to have a medical examination for which he returned to Colombo.
The applicant claimed that he had been in great distress at the time of completion of his application form for a student visa and that in fact the application had been completed by his brother and the applicant himself had simply signed it. He claimed his mother or brother must have put the date on his application form. He further claimed that when the Australian High Commission called to verify his employment with his employer that he could not have been working at the time for the employer as he was actually in hiding in Batticoloa. However, he claimed that as he was on leave at that time there was nothing inconsistent with his employer stating that he was an employee at the time. He claimed that all his travel arrangements, including obtaining his passport, were handled by his agent.
On 8 March 2002 the Tribunal received a submission from the barrister acting on behalf of the applicant wherein the applicant's account of his troubles are summarised and arguments put on the question of substantial change in the situation in Sri Lanka, on persecution of returned failed asylum seekers and conditions for Tamils in the country and in Colombo in particular. News reports and reports from non-government sources were submitted. Various other documents were incorporate by reference, a matter to which I shall return.
As to his family, the applicant claimed that both his parents were Ceylon Tamils and that his late father had been born in Jaffna and his mother in Negombo. His father's occupation as stated on his birth certificate was that of merchant. He claimed that his mother and brother remained in Sri Lanka. He provided a copy of his passport which indicated that it had been issued in Colombo on 3 July 1997 and was valid to 3 July 2002.
The applicant had stated in his application that he had been educated from 1984 to 1992 mostly at the Royal College in Colombo. From 1993 to 1995 he studied systems design analysis and from 1995 to 1996 clipper programming. He was employed from 1995 to 1996 as a trainee programmer with NSA, Noyel De Silva Associates, and from 1996 until he left Sri Lanka to come to Australia, with the E.D.F. development company. The applicant stated in his application form annexure that his father and two uncles had lived in Jaffna and his mother had studied at a teacher's training college there. The business which his father had run was a textile business and it employed two staff.
At the Tribunal hearing, the applicant told the Tribunal that he had very little contact with his brother as the latter had left the family home when the applicant was a child. Despite not seeing his brother for some years, the applicant told the Tribunal that he escaped to Batticoloa whilst his mother and brother arranged for him to leave Sri Lanka. The Tribunal member expressed surprised that the brother who had been missing for some years would now reappear. The applicant responded that he and his mother were desperate and so they naturally turned to his brother, who agreed to help. The applicant claims he himself played no active part in getting his passport renewed. Rather, his agent organised everything and his brother did all the work necessary to obtain his student visa.
The applicant’s first passport was issued in 1992. He had used it to have a holiday in India in 1993 and in Bangkok in 1994. He had no trouble in getting the passport, nor in exiting and re-entering Sri Lanka on those occasions.
The Tribunal went through with the applicant each document which had been presented in order for him to be granted his student visa. The applicant claimed that some were genuine and some were not. He claimed that the bank statements presented by his brother purporting to show that he had sufficient resources to support his brother's studies in Australia were false. He also claimed that the deed of transfer of land which had been used was fraudulent, as was the letter from his mother about her ownership of a house and investments. He claimed the certificates and transcript of his educational results were genuine, as were the letters concerning his employment.
The applicant stated that he was supported financially in Australia by a friend of his brother's. He was not a relative and he thought that his brother was probably reimbursing his friend for his expenses. It was put to the applicant that again this sat ill with his earlier evidence that he had little or no communication with his brother and knew very little about him. He replied that he had very little contact with his brother since coming to Australia. He communicated with him through his mother.
The RRT discussed with the applicant recent developments including a ceasefire and negotiations between the government and the LTTE.

RRT determination

The RRT rejected all the applicant's core claims on credibility grounds rejecting his claims to be a person wanted by the security forces, the EPDP and/or the LTTE. The RRT found that the applicant's fear of persecution on the basis of his ethnicity and his imputed political opinion was not well founded. The RRT was satisfied that the applicant applied to enter Australia as a student in the usual fashion and that his application for a protection visa to enable him to remain arose from a preference to remain in Australia and not from a need to do so for his own safety.
The RRT looked to the applicant's particular situation as a well-educated, employed professional from a business family who had holidayed and studied overseas, who had family in Colombo and who had been permitted to leave Sri Lanka on three occasions and return on two without hindrance, as not being the sort of person who faced a real chance of persecution for reasons of his Tamil ethnicity. The RRT found that although some of the applicant's claims were not implausible, it was not prepared to accept that the applicant's own situation was as he had described it to be. The RRT described the applicant's evidence in respect of the claims not accepted by it variously as, "implausible", "unconvincing" and having the appearance of being "made up on the spot".
The RRT found that given the applicant was from a country which had experienced serious political, economic and social problems with serious military conflict, that the applicant had a subjective fear of returning to such a country, albeit it considered the fact that he did not apply for a protection visa for some ten months after arriving in Australia.
The RRT found nothing implausible in the applicant having two uncles in Jaffna who were supportive of the LTTE cause. The RRT found it plausible that the applicant's family would be targeted for the reason that they ran a business. It was in the details the applicant gave of his own situation that the Tribunal found reasons to reject his evidence as not being truthful. The RRT found there to be no evidence of any break or interruption to the education and employment of the applicant. As to the applicant's brother, who was the manager of a business called Multigroup of Companies, the Tribunal rejected the applicant's claim that his brother's financial information contained in his student visa file concerning his brother's financial status was false. The Tribunal said:
The bank statement, detailed and covering a period of months, and the deed of transfer relating to properties his brother stated that he owned appear to be genuine. The transfer documents relate to property bought in 1987. It contains all the details one would expect in such a document. There is no convincing reason why it and the other relevant documents would not be genuine. The applicant's father was a businessman; his brother is also. The applicant "thought" his brother was still supporting him in Australia, some five years after he arrived here. These factors point to the brother being in a relatively secure financial position.
Similarly, the Tribunal accepts the letter and document relating to the applicant's mother's house and funds as genuine. Although the shop business failed after the death of the applicant's father, this does not necessarily mean that the applicant and his mother were left destitute. The relevant Australian authorities accepted the documents as genuine and, on that information, gave the applicant a visa to study here. The Tribunal is unable to accept the applicant's claim that his family was not in a financial position that it claimed in support of his student visa application. The Tribunal then is satisfied that the applicant's background is that of at least a moderately well-to-do family and that he himself has forward looking prospects. There is no evidence from the documents before the Tribunal or from the applicant himself that the family had any serious problems with the authorities prior to events he claimed occurred from 1993 to 1997. Nor is there convincing evidence advanced that the brother has been a person targeted by the LTTE, the EPDP or the security forces.
The RRT found the applicant to give inconsistent evidence as to the level of contact which he maintained with his brother. The RRT did not accept that for four years the applicant was a key conduit of information to the LTTE about which businesses should be targeted at a time when the applicant himself was a young man just finishing school. It did not accept that the applicant was in a position to supply information that the LTTE could not readily access for themselves. The Tribunal also did not accept the evidence provided by the applicant in his description of the activities of the LTTE in the area of Negombo. The Tribunal found it implausible that the same group of LTTE collectors would come to the area over a five year period of time before they were caught. The Tribunal found the applicant's inability to provide details of the LTTE boys as undermining his claim for such a long period of contact. The RRT did not accept the applicant's account of having been taken and tortured of the EPDP, nor that the applicant was responsible for informing on two LTTE boys because of pressure put on him by the EPDP and the security authorities. It did not accept his account of having been detained by CID officers in a manner he described nor his claim of having been forced to identify a particular young Tamil as a militant. The Tribunal overall was unable to accept the applicant's account of events in his life between 1992 and 1997.
The RRT looked to the applicant's claim in relation to his exit from Sri Lanka. The RRT noted that the applicant had held a passport since 1992 which he had used in 1993 and 1994. This passport had been renewed in July 1997 at a time when the applicant claimed that he was in hiding. At that time, his original passport still had some months before its expiry date in November 1997. The Tribunal noted that this gave the authorities two opportunities to cancel or confiscate his passport should they have been interested in preventing him from travelling. The Tribunal did not accept the argument that the authorities were simply inefficient and that one hand would not know what the other was doing. It was noted that the Sri Lankan authorities had been on alert for many years and that 1997 was a year of terrorist attacks in the heart of Colombo.
The Tribunal did not accept that the applicant's brother filled in all his forms, took them to the Australia Education Centre whilst an agent did the rest of the work in getting his passport, air tickets and the like. The Tribunal noted that at the very least the applicant had had time to take a medical examination in Colombo before he was able to leave Sri Lanka which he did on 14 June 1997. If he was of interest to the authorities, they had opportunity at this time to apprehend him. Furthermore, he had to take the road to the airport, a road which was checkpointed and proceed into the airport where there was a level of security on check-in and board his aircraft, which he did, using documents in his own name. The Tribunal did not accept that the alleged bribing by his agent of an airport official would cover all these points of checking.

The applicable law

Pursuant to s.483A of the Act this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Under s.475A and 476(1), whilst the Court has no jurisdiction in relation to primary decisions made under the Act, it has jurisdiction in relation to a "privative clause decision" made on a review by a Tribunal "Privative clause decision” is defined in subsections 474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Despite the formulation of s.474, review may nevertheless take place. In NAAV v MIMIA (2002) FCAFC 228 the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision of R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 498. In that decision there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These were:
a)that the decision was a bona fide attempt by the decision maker to exercise its power; and
b)that the decision related to the subject matter of the legislation; and
c)that the decision was reasonably capable of reference to the power conferred on the decision maker.
There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, the High Court held that as a matter of construction the expression "decision(s)" made under the Act in subsection 474(2):
… must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor any excess of the jurisdiction conferred by the Act. [at 76]
(Also see [19] per Gleeson CJ and [162] per Callinan J).
If there has been jurisdictional error of law the decision cannot properly be described as a decision made under the Act and is thus not a privative clause decision as defined in subsection 474(2) and (3) of the Act. Further, a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within s.474(2). If there is no jurisdictional error affecting the Tribunal's decision then the decision will be a privative clause decision and protected by s.474(1) unless it is shown that one of the “Hickman provisos” have not been met.
In determining whether there has been jurisdictional error the decisions of Craig v the State of South Australia (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 and Abebe v the Commonwealth (1999) 197 CLR 510, also require consideration. The identification of a wrong issue; the asking of a wrong question; ignoring of relevant material; or relying on irrelevant material in a way that affects the exercise of power are all provided as examples of jurisdictional error.
Section 424A of the Act is in the following form:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies - by one of the methods specified in section 441A;or
(b)if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such person.
(3)This section does not apply to information;
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
The "method specified in section 441A" includes giving information by hand.
Section 424A has been considered by Merkel J in Al Shamry v MIMA (2001) FCA 919 wherein he stated as follows:
Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reasons for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus, section 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Minister for Immigration & Multicultural & Indigenous Affairs, Re: ex parte Miah (2001) 179 ALR 238 and 269 per McHugh J.
The essence of the applicant's claim in these proceedings is that there has been a breach of s.424A in that the Tribunal relied on the material contained in the applicant's application for a student visa and on the applicant's passport and its issue date as part of the reasons for affirming the delegate's decision. It is contended by the applicant that he should have been given an opportunity under s.424A of the Act to comment on the information as contained in the student visa application and the import of it. Further, the Tribunal should have allowed the applicant an opportunity to comment on its use of the passport as evidence that the applicant was not of interest to the authorities at the relevant time. It is contended by the applicant that the Tribunal was also under an obligation to ensure that the applicant understood the relevance of the passport and student visa application documents and in failing to draw the attention of the applicant to the significance of this material, it breached the rules of natural justice.
Dealing firstly with the passport issue, s.424A does not apply because this document was provided by the applicant himself for the purposes of his protection visa application and therefore consequently must be taken to have been given also for the purposes of his RRT review application. The applicant was able to obtain a renewal of his passport at a time when he claimed to be wanted by the authorities, with his correct personal particulars being provided and a departure through Colombo Airport without incident occurring. These factual matters were known by the applicant to be material issues at all times during the processing of his protection visa application and the review application and hearing. The Tribunal's reasoning processes or potential factual conclusions including an obligation to inform the applicant that aspects of his claim may not be believed, are not obligations placed upon the Tribunal (see Abebe v Commonwealth (1991) 197 CLR 510). "Information" does not include the Tribunal's reasoning processes or potential factual conclusions; VAAN v Minister for Immigration (2002) FCAFC 120 at 13..
The RRT records in its reasons that the applicant requested the Department provide him with a copy of his application for a student visa and that this was made available to him.
On 8 March 2002 the Tribunal received the submission (see paragraph 17 hereof) from counsel acting on behalf of the applicant at the Tribunal hearing. That submission was placed before the Tribunal by the applicant himself. Incorporated by the applicant in material which he placed before the Tribunal by virtue of that submission is the applicant's statement to the Department and interview with the delegate. Details of his parents' background together with his own schooling and the operation of his father's business before his post graduate studies and employment are provided. His letter of 22 December 1998 is likewise incorporated by reference. In this manner, together with the other matters put by the applicant to the Tribunal and his own oral testimony at the Tribunal, the applicant put before the Tribunal himself many matters to which the Tribunal referred arising out of his student visa application. However, the documents pertaining to the financial circumstances of his mother and brother did derive from his student visa application solely.
The RRT statement of reasons records that at the hearing the RRT:
… went through each document which had been presented in order for the applicant to be granted his student visa. He stated that some were genuine and some were not.
The reasons record the documents which the applicant claimed to be false and which the applicant claimed to be genuine. It is quite clear that the applicant, who was represented by counsel, had an opportunity to comment and did on the documents he had submitted in support of his student visa application. The RRT ultimately concluded that it did not accept the applicant's evidence that certain documents pertaining to the assets held by his mother and brother were not authentic.
The applicant's family background, his education and that of his mother and the employment of his father and himself was information provided by the applicant himself in his protection applications, submissions and oral testimony given by him. The applicant also provided oral testimony as to his being supported financially in Australia by a friend of his brother's and his expectation that his brother was probably reimbursing his friend for his expenses.
The process undertaken by the RRT in eliciting testimony from the applicant about each of the documents which he had submitted in support of the student visa application makes it quite clear that the applicant was given an opportunity to comment on those documents. Indeed, the RRT accepted some of the applicant's testimony as to the documents and rejected other parts of this evidence. Some of that documentary evidence together with the application, oral testimony and submissions made by the applicant, led the RRT to conclude that the applicant came from a moderately well-to-do Colombo family. The RRT was under no obligation to explain further the relevance of the documents, submissions and testimony that went to these matters.
The applicant has not established that the papers in support of the student visa application were not "handed" to he or his counsel at the hearing in accordance with s.441A(2). It is open to an applicant for judicial review to obtain and rely upon the transcript of proceedings before the Tribunal if it is relevant to an issue raised. The applicant did not make reference to the transcript in the present case and the Minister is under no obligation to provide the Court with the transcript of the evidence before the Tribunal. (See Lamb v MIMIA (2001) FCA 1866.)
Although there has been no application by the Tribunal for the applicant to comment upon the student visa application documents in writing, that failure is at best a technical non-consequential failure to comply with section 424A and does not result in the RRT committing jurisdictional error. (See VDAU v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 365 at 50, Weinberg J and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 577 at (46) per Mansfield J).
In practical terms, the applicant has had the opportunity which s.424A is intended to provide. The applicant learnt of material adverse to his claim and was asked to comment on each and every document. Both notice and opportunity were given to the applicant.
I am satisfied that the RRT afforded fairness to the applicant in the way in which it dealt with all of the issues before it. If the strictures of subsection 424A(2) were not complied with, this procedural omission is not fatal and does not found a ground for review in this instance. The Tribunal undertook its task of review and did so fairly. The failure to convey the relevant information by the correct method or vehicle cannot be seen as jurisdictional. (See Applicant NAHV of 2002 v MIMIA (2003) FCAFC 102).
This decision is a privative clause decision. It has not been established or indeed asserted that the decision maker did not make a bona fide attempt to exercise power. Such an allegation is a serious matter involving personal fault on the part of the decision maker (see SBBS v MIMIA (2002) FCAFC 361). I am satisfied that the decision maker made an honest and genuine attempt to undertake the task before her. There is nothing to suggest that the other “Hickman provisos” are not met. Accordingly, the application must be dismissed and it is appropriate that the applicant meet the respondent's costs.

I Tracey Jones certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 7 November 2003