MZWWN v Minister for Immigration - [2005] FMCA 1683

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWWN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1683

MIGRATION – Refugee Review Tribunal – review of decision to refuse protection visa – whether Tribunal failed to consider all claims before it – whether constructive failure to exercise jurisdiction.

Migration Act 1958

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicants:

MZWWN & MZWWN2

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG171 of 2005

Judgment of:

Riethmuller FM

Hearing date:

13 September 2005

Date of Last Submission:

13 September 2005

Delivered at:

Melbourne

Delivered on:

16 November 2005

REPRESENTATION

Counsel for the Applicants:

Mr Knowles

Solicitors for the Applicants:

Ravi James & Associates

Counsel for the Respondent:

Mr Gray

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG171 of 2005

MZWWN & MZWWN2

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants in this matter are mother and daughter. They are both Sri Lankan Tamils. They arrived in Australia on 1 September 2003. On 14 October 2003 the applicants lodged an application for a protection visa with the Department.
On 3 December 2003 a delegate of the Minister refused to grant protection visas. The applicants then applied for a review of that decision on 22 December 2003.
On 11 January 2005 the Refugee Review Tribunal (RRT) affirmed the decision of the Minister's delegate not to grant protection visas to the applicants.
The case before me was argued on the basis that the second applicant MZWWN2 had made a relevant claim for protection which had not been determined by the Tribunal. There was nothing put on the part of the first applicant as a basis upon which she could challenge the decision of the tribunal.
The ground of the application, as set out in the amended application filed by the applicants is as follows:
The Tribunal's decision is affected by jurisdictional error because the Tribunal failed to take into account a relevant consideration, in that it failed to address and deal with how a claim of the applicants was put.
a)PARTICULARS:
The Tribunal failed to make any finding in respect of the claim that, as a young Tamil from Northern Sri Lanka and displaced to Eastern Sri Lanka, the second applicant had a well-founded fear of persecution at the hands of militant Tamil groups other than the Liberation Tigers of Tamil Elam.
The proper approach to be adopted by the tribunal to a claim is set out by Merkel J in Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 where his Honour said:
[13] … unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant: see Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63, Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15], Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294, Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113 at [58]-[59].
The application of the principles was described by Allsop J, in the same case, as follows:
[42] … The "participation in the Karen community and the political groups" could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.
The Tribunal member set out the nature of the second applicant's claims as follows:
She says she left the country with her mother as she was concerned what would happen to her. As a young child she says she had experienced the difficulty of ethnic wars, and her brothers had difficult times and ran away from the country. She says she did not wish to be harmed by Tamil militant groups.
She says her mother had been given information that her father had been taken into custody by the LTTE, but the details were not known. The reason given was that he was questioned about visits to Colombo and his collaboration with other Tamil groups, and supporters of the Sri Lankan army.
She said they had been advised to stay away as it was thought she would be forced to join them as a condition for her father’s release, along with payment of money by her brothers who are overseas. She did not consider the authorities would be able to protect her against the LTTE.
The applicant in her written contentions of fact and law pointed to a number of matters to establish that her claim before the Tribunal related not only to the group known as the Tamil Tigers but other militant groups. She referred to:
a)In response to question 40 of part C of her protection visa application where she had to set out why she left the country the applicant stated:
I did not want to be harmed by the army or the Tamil militant groups.
b)In answer to question 41 of part C of her application form in setting out what she feared may occur if she went back to Sri Lanka she said:
I do not want to join LTTE or any group.
c)In response to question 42 of the application form when asked who she thought may harm or mistreat her the second applicant said:
The LTTE, Tamil militant groups and Sri Lankan army as they have done before.
d)In answer to question 43 concerning what would happen to her if she went back she said:
The LTTE and Tamil groups want young people to join them. They force or kidnap and give various excuses on political grounds and we are undermining them. They also require funds and when huge sums set by them cannot be paid, demand to work for them or the young ones to join them.
e)In answer to question 44 concerning protection from authorities she said:
The Sri Lankan army is powerless against Tamil militant groups.
f)In answer to question 41 concerning what she may fear would happen if she went back she said:
There is a ceasefire yet in the Tamil areas there is a power struggle between the various Tamil groups. The LTTE and army are again gearing for war. There is forcible recruitment of young ones.
The delegate, when considering the applicant's claims, summarised them as follows:
With the ceasefire in place there is a power struggle amongst various Tamil groups accompanied by forcible recruitment of young people into various factions. (see Court Book page 59)
On 16 August 2004, eight months after the application to the RRT, the applicant's legal representative lodged detailed written submissions with the Tribunal. These submissions run to almost nine pages and set out further details of the first applicant's claim.
The first part of these submission details issues relating to the first applicant's claim:
a)At paragraph 2 it refers to the military conflict in Sri Lanka between the Sri Lankan armed forces, Indian peace keeping forces and rival Tamil militant groups.
b)At paragraph 4 the applicant claims that her husband was known to have been involved in various businesses by the Sri Lankan armed forces, LTTE and other groups is set out.
c)At paragraph 5 the advisor sets out that the Sri Lankan armed forces had become involved in arming and promoting other Tamil groups that were rivals to the LTTE in an attempt to undermine the LTTE. It was submitted that the LTTE had used the ceasefire to consolidate itself by actively and forcibly conscripting young Tamils who were removed to areas under the control of the LTTE for training, which left the armed forces and other groups powerless to assist them.
d)At paragraph 6 the advisor sets out that the first applicant was very worried about developments in Sri Lanka and the continued active recruitment of young Tamils for "the cause", and that this potentially touched upon her daughter, the second applicant.
e)In paragraph 7 there is further reference to recruitment of young Tamils for "the cause".
f)Paragraph 8 and 9 of the submission detail the first applicant's claims that her husband was kidnapped by the LTTE.
g)
At paragraph 15 there is reference to the LTTE and its attacks on rival Tamil militant groups supportive of the armed forces.

This is expanded upon in paragraph 16 where there is discussion about Tamil militant groups engaged by the armed forces to carry out activities in opposition to the LTTE.
It is only paragraph 17 of that submission that specifically deals with the claims by the second applicant. It is in the following terms:
The applicant’s daughter Keeda was born in Jaffna. She has lived most of her life there until relocation to Tincomallee, which again is predominately in the Tamil region but a high profile conflict zone. She does not speak Sinhalese and only has limited English, a young girl and therefore is in a vulnerable situation from all sides. She or her mother has not lived in Colombo and do not have any dependable links to relocate to that part of the country to continue with their life.
The ceasefire appears to be faltering from all indications and in that situation it is expected that LTTE would mount substantial attacks in the Sinhala areas, particularly Colombo through the new cells it had established using the ceasefire period. That is bound to be retaliated by the Sri Lankan security forces either through preemptive raids of suspected Tamils. This is what the Sri Lankan forces have done previously through sweeping cordoned searches of young Tamils who may be prone to have been attracted by the ideology of the Tamils. Evidence of the anti LTTE focus of the security forces in Colombo over the last few years, and the extent to which those merely of Tamil ethnicity were caught up in it and often subsequently mistreated, often to the point of torture, come from both government and nongovernmental sources. All of them point out to the fact that the young daughter of the applicant is at serious risk of persecution if she is to relocate to Sri Lanka.
A further four page letter was provided by the applicant's advisor on

16 November 2004. It concludes by stating:
The principal applicant’s fear is largely out of her personal experiences and then from what has happened to her husband.

It is essentially the fear with which she lived and was unable to leave her daughter behind because of the fear of conscription from the LTTE.
That fear still continues because LTTE has not stopped conscription of youngsters. The return of her daughter to the Tamil area will continue to be a formidable dilemma to the principal applicant because of her age and background. In this context we enclose a copy of the special report number 30 by UTHR on development in the country, particularly in the Northern and Eastern Tamil area while the ceasefire and the peace process was in progress. Particular attention is drawn to sections under continuing pressure of the children and the dilemma faced by them from which the principal applicant’s daughter has luckily escaped and does not want to return to a similar situation in the continuing instability in Sri Lanka.
The focus on the LTTE appears to have become greater as the application proceeded. Indeed, even by the time of the written application to the Refugee Review Tribunal for review there is only the LTTE referred to by the applicants in section D of the form where the reasons for making the application are set out. In that part of the form the applicants said:
I and my family are not fully aware of the details on the custody of my husband by the LTTE, except being aware that the LTTE had animosity towards our family from the early days, which led to my sons and siblings fleeing the country out of fear. I am still in the process of ascertaining the situation. Up to date it has not been revealed as to the purpose of his custody and it is unreasonable for the delegate to state that our fear and concerns expressed over the incident was only speculative in the backdrop of the Sri Lankan situation, particularly the control LTTE has over the Tamil provinces, people residing and frequenting those areas.
It is argued by the respondent that the references to other Tamil groups, when one reads the various documents, are references to related Tamil groups aligned to the armed forces and not Tamil groups aligned to the LTTE. It is also clear that it is the conscription by the LTTE that appears to have been the basis of the claim advanced with respect to the second applicant.
By the time of the letter of 13 August (received 16 August 2004 by the Tribunal) the issues pursued with respect to the second applicant were twofold:
a)the risk of her being forcibly recruited by the LTTE; and
b)the general risk as a result of the mayhem that would ensue if the peace process in Sri Lanka fails.
To the extent that the issues concern fears that the peace process may break down they are effectively disposed of in the decision of the Tribunal at page 23 where the Tribunal member said:
In light of [previously referred to country] information, which pre-dates the April 2004 change in government, the Tribunal considers there have been substantial improvement in treatment of Tamils by authorities over recent years, as well as the development of a peace process designed to achieve some longer- term resolution to continue fighting. There is nothing in the country information to which the Tribunal has had regard to suggest a reversal in that improvement, or a change as a result of the 2004 elections. Whilst that peace process has had a variable history in terms of setbacks, it nevertheless continues to hold, and despite assertions in the submissions on behalf of the applicants that the ceasefire may not continue and that there may be a resurgence of ethnic violence there is no evidence to suggest this is the case.
The Tribunal member went on to conclude that there is no credible evidence to show that there is a real chance that there would be increased adverse attention to Tamil people by Singhalese authorities or Singhalese generally if the ceasefire collapses. The Tribunal said:
The Tribunal considers the prospect of the collapse of the peace process and associated ceasefire to be speculative only, given that it has held for some years.
Following on from this finding the Tribunal concluded:
In the light of this the Tribunal considers there to be less than a remote chance the applicants would face persecution from authorities or other ethnic groups in Sri Lanka because they are Tamil or for any other convention reason.
The applicant notes that this reference to ‘ethnic groups’ appears at the end of a paragraph which commences with the quote referring to the Singhalese authorities and Singhalese generally (set out above). It is argued that this means that the term ‘other ethnic groups’ should be read down to refer to Singhalese groups. However, in the previous paragraph the Tribunal member has used the term ‘ethnic’ to refer to ethnic violence, clearly in a more general sense.
I am mindful of the comments of the High Court in Wu's case:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
It appears to me that the Tribunal member has determined the question of whether or not the peace process is likely to fail or to lead to the risk of violence, and indeed considered the risk of ethnic violence generally, and decided that issue against the applicants on the facts.
The Tribunal did not accept that the first applicant's husband had been kidnapped or ransomed by the LTTE or other kidnappers. The Tribunal concluded that:
There is a less than remote chance [the second applicant's] father was detained and held by the LTTE to achieve [the second applicant's forced recruitment], or that she faces any real chance of forced recruitment to the LTTE if returned to Sri Lanka.
When hearing the matter there were a number of exchanges between the Tribunal member and the applicant via an interpreter.

These included:
MR MURPHY: Okay. When you say the movement, what do you mean?
THE INTERPRETER: LTTE.
…
MR MURPHY: Okay. And it seems to me where you described circumstances where your oldest son left the country because he was having difficulty with the LTTE?
THE INTERPRETER: Yes
MR MURPHY: Did he have any trouble with the LTTE when he came back in January 2003?
THE INTERPRETER: No, he didn’t encounter any problems then.
…
MR MURPHY: Tell me about your life before you moved to Trincomalee, did you have any difficulties in your family with either the government or with the LTTE?
THE INTERPRETER: Yes, lots and lots of difficulties we experienced.
MR MURPHY: Who did you have those troubles with or those difficulties?
THE INTERPRETER: The army as well as the movement, on both sides we had trouble.
…
MR MURPHY: Can I say to you Mrs Kandiah the material that I see here shows that back in the days that you are talking about in the ‘80s and early ‘90s there were clearly a lot of instances where young men were seized under circumstances such as you have described, so that would be consistent with what was happening in that part of your country. Apart from your son being taken on those occasions, are there any other instances where you and your daughter had problems either with the LTT or the army yourselves?
THE INTERPRETER: Yes, we’ve met with a lot of problems.
…
MR MURPHY: This is for the movement of the LTTE?
THE INTERPRETER: Yes, that’s right.
…
MR MURPHY: And so you moved in ’95, when did your son, Logathan, come to Australia?
THE INTERPRETER: In ’96. In front of our house there is this camp and then there was – he was – yes, there was fighting and two of the army personnel they died and he was taken away.

First my husband was taken away and then he was taken away and then the LTT and the army resumed fighting. In that melee he escaped, he managed to escape and we got hold of a friend, got him to Trincomalee and Colombo and got him out.
…
MR MURPHY: In the time since you were living in Trincomalee did your husband have any difficulties with the authorities or with the LTTE?
THE INTERPRETER: Yes, he did have. They ask him to pay tax. Once he gave them 20,000, another time was 50,000.
MR MURPHY: Sorry, when you say they who do you mean?
THE INTERPRETER: The movement, LTT.
…
THE INTERPRETER: Well, I can’t take her back to Trincomalee or my home town because I’m frightened of her being recruited, or looking after her. And of course I can’t go to Colombo I don’t speak Sinhalese or English, it is looking after her that fear would be there with me and because her dad’s not there either, I don’t know what’s happened. At least if he’s there – he’s released, there’s some hope. I have never been to Colombo before, this is the first time in order to come here.
…
MR MURPHY: There’s a lot of evidence about problems the Tamils have faced in Sri Lanka in the past, some of that evidence which I will talk to you about later would seem to suggest that things have improved a lot since the ‘80s and ‘90s. That evidence would also suggest that a lot of Tamils ---
THE INTERPRETER: That may be, but still the pressure to join the LTT movement is still there.
…
MR MURPHY: What do you think would happen to you if you went back now. I mean you talked about the troubles that you faced, who do you think might harm you?
THE INTERPRETER: My fear is by the LTTE who harm us.
…
MR MURPHY: You heard what your mum said, is there anything that you disagree with that she has told me?
THE INTERPRETER: No.
…
MR MURPHY: And that she took you with her because she didn’t want to leave you in Sri Lanka by yourself. Tell me about your situation in Sri Lanka, have you ever had difficulties in Sri Lanka prior to coming to Australia with either the LTTE or the authorities?
THE INTERPRETER: Yes, I had a lot of problems with the LTTE recruits called and always come and harass me to come and join them and they had meetings they want me to attend. And a lot of people have been forcefully – a lot of people I know have been forcefully taken away to work for them, normally to join them as members, but also to help them. A lot of times I would refuse, but at times I could not refuse to do what they pressured me to do.
MR MURPHY: What sort of things were they asking you to do?
THE INTERPRETER: Well, essentially it was always pressure to join the group, whatever involvement there was, the things that they had to do, we were to help with that or even to carry weapons if need be.
…
MR MURPHY: What sort of concerns do you have if you were to go back to Sri Lanka now?
THE INTERPRETER: The fear – the biggest fear for me is that they would forcibly recruit me, you know, they just may not take no for an answer.
MR MURPHY: They hadn’t – despite what you told me before about them putting pressure on you – they have never forced you to join before?
THE INTERPRETER: Well, it always starts off with you know suggestions and coercion and so on and it leads up to the state where you – where nothing you can do and they take people away.

At the end of the hearing the Tribunal member also had a discussion with the solicitor who was advising the applicants asking him:
Mr Ravandran is there anything else that you think is - rather than necessarily making your submissions at this stage, is there anything that you think I need to ask either of your clients?
In response Mr Ravandran referred to the LTTE both by name and as ‘the movement’ but to no other groups. Mr Ravandran went on to explain:
That is the perception of the mother that they are asking one of the members of the family to come directly along with them to negotiate. So the mother thinks it from the daughter's point of view that they want to recruit. So once she's inside, then of course as the daughter said their mother fears that she will have no control over the situation. That if the sons go she does not know what they will do and what they might let - - -.
Following on from this discussion the Tribunal member asked the applicants why they thought the LTTE would focus so much on their family rather than on other people who are already in the country.

The member then went on to advise the applicants that he was having some difficulty accepting that the LTTE would put so much effort into recruiting a person from their family.
At page 34 of the transcript Mr Murphy specifically asks

the solicitor for the applicants:
MR MURPHY: Okay, thank you. All right. I'm not sure that there is much more that I can think that I need to ask. Mr Ravandran anything?.
MR RAVANDRAN: No I think that covers it.
The transcript shows that the Tribunal member then goes on to discuss the country information in the context of the case, discussing the LTTE and the availability of official protection. At the end of the hearing the Tribunal member again offers the applicants an opportunity to say anything further about these matters, and they did not mention any other organisation that they rely upon as being the basis for their claim:
MR MURPHY: Thank you for that. What I’m going to do now is talk a little bit about some of that other information that I have about Sri Lanka. This is not about either of you personally, just about general reports on Sri Lanka that might help me make a decision on your case. Basically what it shows is I think pretty much what you have said that in the north of Sri Lanka for many years in the past there has been fairly large scale fighting between government and LTTE. And that information would suggest that the fighting and the risks were far greater and far more severe at the time that your sons left the country in the ‘80s and also into the ‘90s.
But in more recent times and certainly since February 2002 when the peace accord was signed that things have to some extent settled down in those areas. Not gone altogether, but certainly no longer as severe as they were in the past.
THE INTERPRETER: But now after we arrived here there has been bomb explosion right in Colombo.
MR MURPHY: And I’m aware of some of those instances.
THE INTERPRETER: And in particular there has been fighting as well.
MR MURPHY: The information, general information I have also recognises that the LTTE continue to commit human rights abuses and that they do things like detain people, extort money from them, harass and torture them. And that the LTTE continue to control large sections of the north and the east of Sri Lanka which are the areas that you have told me about. What the information does say, however, is that they are parts of Sri Lanka where people who might face harm from the LTTE can relocate and can live in peace or in relative peace. And some of the places that have been identified where people might be able to seek that sort of safety are Colombo and Puttalam.
THE INTERPRETER: But for me this is a problem because I do not speak English or Sinhalese and to have a girl with me. And a place like Colombo I have absolutely no idea how it functions.

It was the first time I was there recently, I was last there.
MR MURPHY: Some of the other information talk about people being able to obtain assistance from government or protection from government. Although I think that information recognises that there still can be risk for people, especially in those areas controlled by the LTTE. So I’m just wondering whether there was anything that either of you would say on any of those points that I have put?
THE INTERPRETER: No.
MR MURPHY: Nothing either of you want to say about that?
THE INTERPRETER: No, I don’t really understand all that sort of.
…
MR MURPHY: …What I’m going to do is now just ask you again if there is anything that either of you though about that you would like to tell me that you haven’t touched on?
THE INTERPRETER: No, everything has been covered.
When reviewing the evidence and material before the Tribunal member, including the way in which he conducted the hearing, it is clear that the Tribunal member provided the applicants with every opportunity to expand upon their case or provide further details.

The way in which the case unfolded appears to have been with a focus upon the LTTE. No other groups or organisations were mentioned either in the oral hearing, nor in the follow-up correspondence.
The Counsel for the respondent referred to this as the ‘winnowing’ of the claim as the hearing proceeded, by which I understood him to mean the focussing upon the issues of significance rather than the more general form that the claim might take initially. This is a common process that occurs in most well managed hearings.
I find that the Tribunal member has provided adequate opportunity for the parties to be heard. He has written his decision with a keen focus upon the matters that were specifically raised by the parties squarely addressing the issues focussed upon during the hearing. The tribunal also made more general findings (at page 22 to 23) to the effect that the second applicant does not face any real chance of forced recruitment to the LTTE and that there was no chance of a resurgence of ethnic violence nor any more than a remote chance that the applicants would face persecution from authorities or other ethnic groups in Sri Lanka because they are Tamil or for any other reason. Whilst these latter findings are general, they are sufficient to answer the very general matters raised at the outset of the application.
In the circumstances I am not satisfied that an integer of the applicant’s claim, or significant aspect of the applicants’ claim, has not been dealt with by the Tribunal. I therefore dismiss the application.
Counsel for the Minister also sought to oppose the application on an alternative basis namely that the material contained in the original application was not, at least within the meaning of s.424A, material placed before the Tribunal by the applicants and therefore should be dealt with by the Tribunal. Whilst this section applies where material is to be relied upon adversely to the applicant’s case it does not appear to me that s.424A was intended nor reasonably apt to cover the situation in the current proceedings. Section 424A is part of a division of the Act that deals with procedural fairness. It does not deal with issues relating to the failure by the Tribunal to determine a claim or a significant part of the claim put to it. If the matters raised in the original application were an integer of the claim that was not dealt with by the Tribunal I see protectionism of s.424A or the associated provisions to assist the Minister in opposing this application.
I therefore dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: 16 November 2005