NAMG v Minister For
[2005] FMCA 393
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMG & ORS v MINISTER FOR IMMIGRATION (No.3) | [2005] FMCA 393 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicants claiming political persecution in Peru – whether the RRT proceeding was fair considered – whether the RRT considered the totality of the applicants’ claims – whether the RRT erred by failing to give the first applicant the opportunity to comment on credibility concerns over a letter from the first applicant’s mother – whether the RRT erred by taking country information into account that was not notified to the applicant. |
| Migration Act 1958 (Cth), s.422B |
| AAGO of 2002 v Minister for Immigration [2002] FCAFC 437 Abebe v Commonwealth (1999) 197 CLR 510 Applicant A169 of 2003v Minister for Immigration [2005] FCAFC 8 Applicant S v Minister for Immigration [2004] HCA 25; (2004) 206 ALR 242 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bruce v Cole (1998) 45 NSWLR 163 Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 Dranichnikov v Minister for Immigration [2003] HCA 26 Htun v Minister for Immigration (2001) 194 ALR 244 Kioa v West (1985) 159 CLR 550 Ling v Minister for Immigration [2004] FCA 1069 Minister for Immigration v Huynh [2004] FCAFC 256 Minister for Immigration v NAMW [2004] FCAFC 264 Minister for Immigration v Pochi [1979] 44 FLR 41 Minister for Immigration v SCAR (2003) 198 ALR 293 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v Teoh (1995) 183 CLR 273 Minister for Immigration v Yusuf (2001) 206 CLR 323 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 NABE v Minister for Immigration (No 2) [2004] FCAFC 263 NACB v Minister for Immigration [2003] FCAFC 235 NAHV of 2002 v Minister for Immigration (2003) 129 FCR 214 NAMG & Ors v Minister for Immigration (No 2) [2004] FMCA 181 NAOA v Minister for Immigration [2004] FCAFC 241 NBBZ v Minister for Immigration [2004] FCAFC 312 Paul v Minister for Immigration (2001) 113 FCR 396 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Prasad v Minister for Immigration (1985) 6 FCR 155 Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corp Pty Ltd (1994) 119 ALR 206 Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165; (2003) 198 ALR 58 Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 501 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Re Ruddock and Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437 SAAP v Minister for Immigration [2005] HCA 24 SZAIM v Minister for Immigration [2004] FMCA 267 VAF v Minister for Immigration [2004] FCAFC 123 VUAX v Minister for Immigration [2004] FCAFC 158 VWST v Minister for Immigration [2004] FCAFC 286 WAGO v Minister for Immigration [2002] FCAFC 437 |
| First Applicant: Second Applicant: Third Applicant: | NAMG NAMH NAMI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1199 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 31 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The first and second applicants shall pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1199 of 2003
| NAMG, NAMH, NAMI |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 July 2002 and handed down on 13 August 2002. The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to the three applicants in the present proceedings. They are a husband and wife and their eldest child. The youngest child was the subject of earlier proceedings[1].
[1] NAMG & Ors v Minister for Immigration(No 2) [2004] FMCA 181
I dismissed the application by the first three applicants in those earlier proceedings. However, that decision was made in the absence of the applicants who did not appear on the day of the hearing of their application. After hearing Mr Turner, for the applicants, on 25 October 2004 I vacated the dismissal and costs orders made against the applicants in those earlier proceedings and, amongst other things, listed the matter for further hearing on 31 March 2005.
Relevant background facts and circumstances are set out in paragraph 3 of my earlier judgment, which I incorporate for the purposes of this judgment:
…
The first applicant is a citizen of Peru, the second applicant is the first applicant’s de facto husband, and the third applicant is the son of the first and second applicants. The second and third applicants are citizens of the United States of America. [The fourth applicant, added later, is also the child of the first and second applicants]. As the first applicant was the only person to put a substantive claim for refugee status, she will be referred to … as the applicant.
On 28 September 2000, the applicants arrived in Australia. On 8 November 2000 they applied for protection (class XA) visas. The basis for the applications was a claim for refugee status by the applicant based upon political opinion or imputed political opinion arising from her exposure of corruption in Peru.
On 19 January 2001, a delegate of the respondent refused the grant of the protection visas. On 23 January 2001 the RRT affirmed the delegate’s decision, after having given the applicant an opportunity to comment on adverse country information, which she took advantage of (court book, pages 205-213, 214‑241). The RRT accepted the applicant’s claims as to what she said she had done and as to what had happened to her (court book, pages 264.7-265.3), but did not accept that this gave rise to a well-founded fear of persecution. In particular, the RRT:
(a)accepted the applicant’s account of her personal and business background;
(b)accepted that through her business dealing [she] became aware of, and to an extent involved in, corrupt and illegal financial conduct that had been orchestrated by or on behalf of a senior military person (a General Cano) and other government officials;
(c)accepted that she had money extorted from her and was mistreated when she raised this with General Cano;
(d)accepted that she had threatened to take action against General Cano for sexual harassment;
(e)accepted that when she raised the topic of corruption with another general, who was also a government Minister; this was denied and she was told to stop;
(f)noted that the applicant claimed that soon afterwards she began to encounter problems and that if she returned to Peru she will be at risk of serious harm from reprisals, especially if she exposes their corruption and cooperates with the new government in Peru;
(g)accepted that during 1999, money due to the applicant was retained and that she suffered hardship as a result (court book, page 267.1);
(h)accepted that she threatened to expose General Cano and his supporters with the intention of forcing them to pay her and subsequently became aware of being followed and had her car stolen by armed men (court book, page 267.2), but later in the decision noted that the response by police indicated they took her situation seriously and investigated the incident although those responsible were not found (court book, page 268.9);
(i)accepted that the applicant had received threatening telephone calls after her car was stolen (court book, page 267.4);
(j)noted that no further incidents occurred and despite this adverse interest in her on the part of General Cano and his supporters [the applicant] was not confronted personally again or harmed in any way (court book, page 267.5);
(k)accepted that the applicant was greatly concerned by the threats and other conduct to which she was subjected (court book, page 267.6);
(l)did not accept that these persons would do her more serious harm if she returned to Peru – if that had been intended it is likely it would have happened when General Cano had both a clear opportunity and was in a position of power (court book, page 367.7);
(m)noted that even if this assessment was wrong, [the RRT] was satisfied that the authorities would be able and willing to offer adequate protection against any serious harm from General Cano or his supporters, given the major changes in Peru since late 2000 (court book, page 267.8), later finding the chances of General Cano harming her to be remote given his loss of power and position (court book, page 269.2);
(n)described the independent information as suggesting a level of optimism about the political direction in Peru since the inauguration of President Toledo in July 2001, with many steps taken towards reinstating full democracy and putting an end to institutionalised corruption (court book, page 2665.5);
(o)accepted that it will take time to root out institutionalised corruption from the prior Fujimoro regime, but that significant steps had been taken in that direction (court book, page 266.5);
(p)described the evidence as indicating that the government intends to do all it can to put an end to corruption in the military, police and institutions of government (court book, page 266.8);
(q)concluded that if the present government were keen to obtain the applicant’s testimony it would be in a position to offer her witness protection (court book, page 268.4), accepting as genuine an invitation to give written testimony of her allegation (court book, page 267.6);
(r)found that any investigation of her financial affairs would not be due to a Convention reason, but rather due to the legitimate application of the general criminal or other law and not due to serious discrimination or persecution (court book, page 270.5); noted that the applicant did not have actual fears about the police or present government, but rather about their capacity to protect her (court book, page 270.7).
The application before the Court has been amended several times. The final iteration of the application is that filed in court on 31 March 2005. That application asserts that the applicants were denied procedural fairness on the basis of particulars contained in written submissions prepared on behalf of the applicants by Mr Turner. Those particulars are as follows:
10. The RRT failed to provide the applicants with a fair hearing by
a)failing to consider the totality of the claims put by the first applicant
· The first applicant claimed that she feared harm from "the military and its officials" (court book, page 41) and "(General) Cano and his supporters" (court book, page 256). See also transcript (T) 23, 25;
· The RRT only effectively considered the harm that she would suffer at the hands of General Cano.
11.The failure of the RRT to consider a clearly articulated matter before it constitutes a failure to accord natural justice Dranichnikov v Minister for Immigration [2003] HCA 26 (8 May 2003) at paras 23-24; NABE v Minister for Immigration (No. 2) [2004] FCAFC 263 (16 September 2004).
12.The RRT failed to inform the applicants of the totality of the documents before the RRT, which were adverse to her, and which were relied upon by the RRT.
The RRT referred to the following documents without giving the applicants notice that it would do so or the opportunity to comment upon the material:
(a)Peru Country Report on Human Rights (court book, page 262);
(b) BBC News Reports 4 and 5 June 2001;
(c)Compass Direct News Summaries 15 June 2001 (court book, page 263);
(d) Reuters Business Briefing (court book, page 263)
13.The failure of the RRT to give the applicants an opportunity to consider and comment upon this material constituted a denial of procedural fairness/natural justice: Kioa v West (1985) 159 CLR 550; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, paras 123 and 227.
14.Further, the RRT advised the first applicant of "...independent information that might, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa." (court book, pages 205, 259), provided copies of that material and sought the first applicant's comments in respect thereof.
This notice raised in the applicants a legitimate expectation that this would be the totality of such evidence held by the RRT.
15.The first applicant attempted to meet this adverse material (court book, pages 214–240)
16.The RRT then based its decision on different "Independent Evidence" (court book, pages 262–264), notice of which it failed to give to the applicant.
17.This conduct constitutes a further denial of procedural fairness/natural justice which may be a jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
18.The RRT discussed the letter from the applicant's mother as "They are in the end untested assertions, and the copy of the typed extract of the threatening letter is not original evidence and would not be difficult to create." (court book, page 269).
The RRT gave the first applicant no notice of these concerns or any opportunity to comment or to call evidence from her mother.
Further, the RRT did not make any enquiries or investigate the authenticity of the material: see Applicant S v Minister for Immigration [2004] HCA 25 (27 May 2004) para 76:
If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed......Indeed, Arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter.
19.The RRT failed to base its findings upon inferences of fact supported by logical material or was mere speculation:
a)That the authorities in Peru would be willing and able to offer protection to someone in the applicant’s position;
b)That General Cano had been detained;
c)That the government would protect her if she gave evidence against General Cano;
d)"If Cano intended to do serious harm to the applicant because of what she knew about him I find it more likely that he would have acted on that intention when he had an opportunity over many months and when he was in a position of significant power."
e)"I find it most unlikely that those who would harm her would continue to act in this manner.": Minister for Immigration v Pochi [1979] 44 FLR 41 at [67].
The second ground in the amended application is that the RRT failed to take account of relevant considerations and material. Once again, the particulars are drawn from Mr Turner’s written submissions as follows:
20.The RRT failed to consider whether General Cano's intentions to harm the first applicant would have changed after his arrest.
Further, the RRT failed to consider properly whether the state would provide protection to people who gave evidence in civil or criminal proceedings. The only evidence which was before the RRT related to protection given to witnesses who appeared before the Truth and Justice Commission which dealt only with human rights abuses.
The RRT also failed to consider the change in the first applicant's circumstances after the release of General Cano.
21.A failure such as this constitutes a failure to take account of relevant considerations and is a jurisdictional error: see WAGO v Minister for Immigration [2002] FCAFC 437 (20 December 2002) at para 54 referring to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82:
"...his Honour's comments are equally pertinent to an un-authorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority or jurisdiction under the Act."
The evidence
I have before me the book of relevant documents (the court book) filed on 16 May 2003. I also have before me a verified transcript of proceedings conducted by the RRT on 15 August 2001: exhibit A1.
Submissions
I have already referred to the relevant portions of Mr Turner’s written submissions. In oral argument Mr Turner submitted as follows:
·The relevant protection visa claims were made by the first applicant (the applicant mother). The other applicants have no independent claims. The first applicant fears persecution on two bases, the first being a fear of retribution by General Cano or his associates on the basis of damaging information known to the first applicant. A secondary fear held by the first applicant is a fear of prosecution by reason of having been involved in certain corrupt practices in Peru under the Fujimori regime. The applicants take no issue with the RRT’s treatment of the secondary aspect of the applicant’s claims. Their concern was with the manner in which the RRT dealt with the primary fear. The applicants claims are relevantly set out on page 41 of the court book at about point 8 and are also referred to in the transcript at page 23 at about line 33;
·The RRT misunderstood some of the facts. The RRT proceeded on the assumption that General Cano was “arrested” whereas he was merely “detained”. This misunderstanding caused the RRT to proceed from a false factual foundation;
·There was no evidence before the RRT that General Cano was still in custody at the time of the RRT hearing;
·The false assumption upon which the RRT proceeded constituted a failure to take account of a relevant consideration and/or a constructive failure to exercise jurisdiction: AAGO of 2002 v Minister for Immigration [2002] FCAFC 437 at [54];
·The application for review was made to the RRT before the commencement of s.422B of the Migration Act 1958 (Cth) (“the Migration Act”) and accordingly the RRT was subject to general law obligations of procedural fairness;
·The presiding member, on page 262 of the court book, identifies country material she referred to in the course of reaching a decision;
·The RRT had, prior to the hearing, advised the applicants of certain country information that would be taken into account[2];
[2] court book, page 205
·The material taken into account by the RRT and referred to at pages 262-264 of the court book was additional to that notified to the applicants and was adverse. The RRT failed to disclose that material;
·The significance of that material was that it related to human rights practices in Peru and in particular the establishment and work of the Truth and Reconciliation Commission[3];
·There was some discussion about country information at the hearing[4];
·The letter sent by the RRT to the first applicant on 5 June 2002 gave rise to a legitimate expectation that the RRT would not take into account any other country information adverse to her interests without an opportunity to comment upon it;
·The applicants lost a real opportunity to comment upon the information relating to the Truth and Reconciliation Commission, because they would have been able to point out that the Commission was directing its attention to human rights abuses, whereas General Cano had been involved in corruption;
·The RRT also failed to raise with the applicants its credibility concern about a letter written by the first applicant’s mother which is referred to by the presiding member on page 269 of the court book at about point 8;
·The letter appears in Spanish on page 145 of the court book with an English translation on page 146. The threat referred to in the letter is reproduced in Spanish on page 147 of the court book and in English on page 148;
·The presiding member’s decision that the mother of the first applicant’s letter contained “untested assertions” amounted to a conclusion that the letter had been concocted;
·The failure by the RRT to give the applicants the opportunity to comment on its credibility concerns constitutes a breach of procedural fairness: SZAIM v Minister for Immigration [2004] FMCA 267 at [18];
·If successful, the applicant should receive a costs award fixed in the sum of $5,500.
[3] see in particular court book, page 278
[4] transcript, page 3, line 42 and page 32, line 20
Mr Johnson prepared written submissions prior to seeing the amended application in its final form but with the benefit of Mr Turner’s written submissions. In his written submissions Mr Johnson relevantly submits as follows:
Paragraphs 10 -11 of the applicant’s submissions
6.The RRT is alleged to have failed to consider a claim by the applicant that she feared harm from the military and its officials. The applicant argues that the RRT only considered her fear of General Cano. The applicant refers to a transcript in relation to this claim. However, the respondent notes that no transcript has been filed and served[5]. This is not made out on a fair overall reading of the RRT’s reasons.
[5] The verified transcript was filed at the trial on 31 March 2005.
7.To establish that the “claim” was made, the applicant refers to court book, page 41, which, strictly, is mere evidence, not needing to be specifically dealt with, rather than a separate “claim” needing to be dealt with to avoid jurisdictional error. In any event, it was dealt with.
8.The course of the RRT’s reasoning was as follows:
a)At court book, page 253.8, the RRT records a claim by the applicant that, following the collapse of the Fujimori Government and the arrest of Montesinos (with whom Cano had been very close[6]), she was in even greater fear, as the highest ranking officials are protected by Montesinos and the military officials are intent on silencing their enemies. The RRT also there records that she said that she will be a political target for these military officials who are the real leaders of Peru. Then, at court book, page 256.3, in the course of summarising the applicant’s evidence at the hearing, the RRT noted that the applicant confirmed that she does not actually fear the police or the present government, but rather Cano and his supporters who are still powerful and influential;
[6] court book, page 252.8. At court book, page 260.2, the RRT recorded that there was material confirming that General Cano was Chief of the Southeast Regional Army Command (or the Third Regional Command) and a close associate of Montesinos. The RRT then later refers to Cano having since been prosecuted under the new government. See also court book, pages 264-265 as to the RRT’s acceptance of the association of General Cano with the prior government, and of the applicant being warned by another General who was a Minister in that government to stop her complaints against General Cano.
b)The RRT then found at court book, page 266.8 that the present government intended to do all that it could to put an end to corruption within the military, the police and the institutions of government;
c)At court book, page 266.9, the RRT found the applicant’s fear of being harmed in the future by General Cano, or those acting on his behalf, is closely connected with past events;
d)It was in that context that the RRT proceeded to consider the merits of the applicant’s claims, particularly with respect to “Cano and his supporters”[7]. It found that the thrust of the applicant’s evidence was that Cano remains a powerful person and that police or other authorities will simply not be able to protect her despite recent changes in Peru[8], but the RRT was satisfied that adequate state protection would be available to the applicant in the event that Cano or his supporters attempted to cause her serious harm[9] and the RRT accepted independent evidence, put to the applicant for comment after the hearing, to the effect that Cano is no longer in a powerful position in Peru[10];
[7] E.g. at court book, pages 267, 269
[8] court book, page 269.1
[9] court book, page 269.2
[10] Having been arrested and detained on corruption charges – court book, page 269.25.
e)The RRT thus found that the likelihood of Cano seriously harming the applicant was remote[11];
[11] court book, page 269.3
f)The RRT then found that the applicant’s own evidence indicated that any harm that she feared from the present government would be as a result of financial or tax penalties connected with the nature of arrangements within her business and would not represent persecution for a Convention reason (court book, page 270.4);
g)The RRT repeated its satisfaction that the police or legal structures would be able to offer the applicant adequate protection from any reprisals she might confront and then emphasised that, later in the hearing, the applicant confirmed that she did not actually fear the police or the present government but only that they would not protect her against General Cano and his powerful connections[12].
[12] court book, page 270.8, referring back to its summary of the applicant’s evidence at court book, page 256.
9.In short, the “claim” at court book, page 41, upon which this particular of ground 1 fastens, was adequately dealt with by the RRT. On the RRT’s findings the applicant had nothing to fear from the military and its officials, beyond any threat from General Cano and his supporters, who the RRT did not accept to still pose a real risk of harm to the applicant and with respect to whom the RRT found that adequate protection would, in any event, be available.
Paragraphs 12-16 of the applicant’s submissions
10.This is said to be that the RRT failed to inform the applicant of the “totality of the documents adverse to be relied upon by the Tribunal”. Four items of country information are particularised at paragraph 12 on page 3 of the applicant's submissions. Such material would be in the nature of general country information not required to be put by section 424A, particularly as interpreted by Minister for Immigration v NAMW [2004] FCAFC 264 per Beaumont J at [70]-[71] and per Merkel and Hely J at [138].
11.With respect to the allegation of breach of natural justice, it is first to be noted that there is no evidence that the RRT did not put to the applicant the substance of any adverse consideration[13]. In the absence of such evidence, the applicant’s argument cannot arise[14].
[13] The transcript is of course evidence of what occurred at the hearing.
[14] NAOA v Minister for Immigration [2004] FCAFC 241 per Beaumont, Merkel and Hely JJ at [21].
12.There is no authority for the proposition that natural justice would require revelation of the text of the material, as opposed to the substance of any adverse matter that did not obviously arise.
13.Note also in this respect that the letter which went to the applicant dated 5 June 2002 drew the applicant’s attention to some specific matters arising from country information, including the proposition that the present government would be able and willing to afford adequate protection from General Cano and his associates. That letter also referred to the establishment of a truth and reconciliation commission.
14.The country information particularized by the applicant is the same information as is referred to by the RRT at court book, pages 262-264 and does not relevantly go beyond the proposition that the present government had been undertaking investigations into corruption during the Fujimori period and was seeking to tackle the problem of corruption, its steps including the creation of a permanent Truth Commission. The relevance of this was no more than that adequate protection could be expected from the current authorities even if, as the RRT did not accept, Cano or his supporters still posed a threat to the applicant[15]. That was obviously an issue to be dealt with, given the nature of the claim and the statutory criteria of which the RRT had to be satisfied.
[15] court book, pages 268.2-267.9
15.Even if a breach of the rules of natural justice was made out (as is not conceded), the applicants could not succeed unless each alternative limb of the RRT’s reasoning (the absence of any real chance of harm from General Cano upon return to Peru and the availability, in any event, of effective protection from Peru) was defeated.
16.The applicant’s submissions allege a “legitimate expectation”, alleged to have arisen from the letter referred to at paragraph 14 of the applicant’s submissions (court book, pages 205-206), that no other country information would be relied on or referred to by the RRT. The letter did not say that. The language quoted in paragraph 14 of the applicant’s submissions uses the language “reason, or part of the reason, for deciding…” [familiar from section 424A(1)]. That description will only be fulfilled if the material is “an integral part” of the RRT’s reasons. It will not be met by something which is “relatively minor and unimportant in the scheme of things” See VUAX v Minister for Immigration [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [54]; VAF v Minister for Immigration [2004] FCAFC 123 per Finn and Stone JJ at [29]-[33] and, more particularly, at [41]; Ling v Minister for Immigration [2004] FCA 1069 at [29]-[31] and [41] per Branson J). They do not mean that no other material can be referred to or relied upon.
17.In any event, even if (as is not conceded) there was a legitimate expectation that was breached, it is not shown that any “practical injustice” resulted. That being so, there was no breach of the rules of natural justice: Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 501 (e.g. at [37])[16]. Alternatively, no practical injustice having been shown, relief should be denied on discretionary grounds[17].
[16] A similar approach has been adopted in relation to section 424A: NAHV of 2002 v Minister for Immigration (2003) 129 FCR 214 per Carr, Kiefel and Allsop JJ at [27]; NBBZ v Minister for Immigration [2004] FCAFC 312 per Branson, Nicholson and North JJ at [38].
[17] See, for example, VUAX v Minister for Immigration [2004] FCAFC 158 at [57] per Kiefel, Weinberg and Stone JJ
Paragraph 18 of the applicant’s submissions
18.The applicant’s claim that the RRT dismissed a letter from the applicant’s mother, without giving the applicant notice of its concerns, or an opportunity to comment on them, or an opportunity to call evidence from the mother, or without making enquiries of the substance of the claims made by the mother.
19.The RRT deals with this letter[18] at court book, pages 269.8-270.2. The RRT noted that whereas the applicant claimed at the hearing that her mother still receives threatening phone calls, the said letter refers not to telephone calls but to threatening letters and actions. The RRT accepted the letter from the mother to be “genuine”[19], but had “doubts about the substance of her claims”. It was in that context that the RRT found that those were “in the end untested assertions” and that “the typed extract of the threatening letter is not original evidence and would not be difficult to create”. The RRT proceeded to further find that, as the applicant had been out of Peru for 2 years, it was most unlikely that those from whom she feared harm would continue to act in this way. The RRT also found that the mother’s letter indicated that she had made reports to the police, who the RRT found (in view of the country information and the applicant’s own evidence about her stolen car) would take reasonable and appropriate action[20]. These findings were open to the RRT (and the applicants do not contend otherwise).
[18] A copy of which is at court book, pages 146-148.
[19] court book, page 269.9
[20] court book, pages 269.9-270.1
20.It is not proved that the RRT did not put these concerns to the applicant, but they were obvious matters that arose out of the material which was put forward by the applicant herself.
21.The applicant’s argument accordingly cannot be reconciled with the role of the RRT, as explained in Re Ruddock and Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [48], [54] and [57]-[58], Gleeson CJ agreeing at [1], referring to the principles in Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 592 and Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] (amongst other authority). The lack of any obligation, by reason of the rules of natural justice or otherwise, to inform the appellant of its “preliminary or evaluation conclusions about the material before it” was also acknowledged in NAOA v Minister for Immigration [2004] FCAFC 241 at [27], referring also to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 555-557.) The RRT was simply not obliged to put its concerns to the applicant in the way that the applicant now argues. It was for the applicant to advance whatever evidence or argument she wished to advance and for the RRT to decide whether it was satisfied by what she put forward.
22.Also included within the same paragraph is an allegation that the RRT was bound to make enquiries about the mother’s evidence. It is not conceded that there is any jurisdictional error in a failure to make enquiry. Even under the prior legislative scheme, there was no obligation upon the RRT to make enquiries except in some circumstances where it was obvious that material was readily available which was centrally relevant to the decision[21]. It is not established that there is anything meeting those criteria in the present case. Again, the role of the RRT as explained in S154 needs to be borne in mind.
[21] e.g. Prasad v Minister for Immigration (1985) 6 FCR 155 at 170
23.Also, in Minister for Immigration v SCAR (2003) 198 ALR 293 at 299, Gray, Cooper and Selway JJ accepted that an obligation to afford natural justice does not ordinarily imply a duty to make enquiries[22], citing Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd (1994) 119 ALR 206 at [213]-[214].
[22] absent statutory requirement
24.This case does not fall within any of the three categories[23] isolated by McHugh J in Minister for Immigration v Teoh (1995) 183 CLR 273 at 321 as sometimes giving rise to a duty to inquire under the grounds of review that then existed. Even if that were not so, however, jurisdictional error is a narrower concept than error of law and it is difficult to see how a failure to enquire could establish jurisdictional error in any circumstance where the Court would not otherwise conclude that there had been a breach of the rules of natural justice, or a failure to address the applicable criteria. Minister for Immigration v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [42]-[43] (Gleeson CJ agreeing at [1]) indicates that the Act does not impose any duty to enquire even if (as did not occur here) an applicant asks that a particular witness be contacted).
[23] Those were where 1) a specific matter was raised by an applicant or was within the knowledge of the decision-maker and it could not be properly considered without further enquiry, 2) the information before the decision-maker was not up to date, or 3) the absence of information before the decision-maker resulted from the respondent’s officers misleading the applicant. What McHugh J said in this respect was also referred to by a Full Court in Minister for Immigration v Huynh [2004] FCAFC 256 at [61].
25.The applicant’s submissions refer to Applicant S v Minister for Immigration (2004) 206 ALR 242 at [76] per McHugh J, but the passage quoted does not support the applicant’s argument[24]. It is simply not shown that the RRT in this matter failed to consider some issue that it was legally required to consider. The criteria for the grant of a protection visa were addressed and the RRT was not satisfied that they were met. The applicant only attacks the RRT’s fact-finding and it is not enough, in order to show jurisdictional error, simply to show that other questions might have been asked or other views might have been taken.
[24] That paragraph of McHugh J’s judgment points to a course that the RRT might have taken in considering the issue (that it was required to consider) of whether there was a `particular social group’ in Afghanistan comprised of `able bodied young men’. That (unlike what is alleged in the present case) was a compulsory question or integer for the RRT to consider.
26.The unlikelihood of a decision of a tribunal being able to be set aside upon the basis of jurisdictional error where the substance of the complaint is merely that the RRT did not enquire (or enquire further) as to the existence or otherwise of a fact that is not a jurisdictional fact is also supported by acknowledging that even a clearly wrong finding of fact will generally not amount to jurisdictional error unless the fact is a jurisdictional fact. See NABE v Minister for Immigration (No. 2) [2004] FCAFC 263 per Black CJ, French and Selway JJ at [53]-[54]. Errors within jurisdiction may occur without vitiating the RRT’s decision making.
27.A further and independent answer to the argument is that the RRT found that even if the applicant did face continuing threat from those who had previously threatened her, or their associates, effective protection would be available within Peru[25]. Absent any jurisdictional error in the making of that effective protection finding, any breach of the rules of natural justice in connection with what was put forward by the applicant’s mother could not have affected the result and would not sound in relief.
[25] court book, pages 267.9, 268.6-268.9, 269.2, 269.5, 269.9-270.1, 270.8
Paragraph 19 of the applicant’s submissions
28.The applicant then alleges that the RRT failed to base its decision on inferences of fact supported by logical material or was mere speculation. The applicant specifies a number of particular findings which are set out on page 4 of the submissions. The first two findings are that the authorities in Peru would be willing and able to offer protection to someone in the applicant’s position and that General Cano had been detained. The RRT’s findings upon these subjects were open to it based upon the country information to which it referred in its above-mentioned letter to the applicant at court book, pages 205-206 and in its reasons at court book, pages 260-264. The remaining findings complained about as being “based upon speculation only” were that the government would protect the applicant if she gave evidence against General Cano, that, if Cano intended to do serious harm to the applicant because of what she knew about him, it is more likely that he would have acted on that intention when he had a clear opportunity over many months and when he was in a position of significant power, and that it is “most unlikely that those who had wished to harm her would continue to act in this manner”. Again these findings were open based upon the independent evidence and/or the limitations of the evidence put forward by the applicant herself.
29.In any event, a lack of probative evidence would not of itself suffice to establish jurisdictional error. In Applicant A169 of 2003 v Minister for Immigration [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ, a Full Court rejected an argument that S20/2002 authorised a conclusion that jurisdictional error would occur if there was demonstrated “the absence of evidence or the insufficiency of evidence to support the decision”, finding the proposition to be supported by only one of the judgments in S20/2002. Their Honours proceeded to explain that a Wednesbury unreasonableness argument may establish jurisdictional error if it can be inferred “from the nature of the decision that the administrative decision-maker applied the wrong legal test in making the decision or was not, in reality, satisfied in respect of the correct legal test in making the decision: see e.g. Applicant S20/2002 per Gleeson CJ at [9], and per McHugh and Gummow JJ at [35]-[36]”. Their Honours there continued to explain: “Indeed, it is plainly established by the High Court that there is no jurisdictional error simply in making a wrong finding of fact: see e.g. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. See also Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 187”.
30.Reference has already been made to NABE v Minister for Immigration (No 2) [2004] FCAFC 263, where Black CJ, French and Selway JJ, at [53], affirmed that “mere factual error by the RRT will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the decision.”. Their Honours, in the same paragraph, proceeded to explain that jurisdictional error may be identified if the RRT makes an error of the kind discussed in Minister for Immigration v Yusuf (2001) 206 CLR 323, for example, by asking the wrong question (i.e. not applying the correct criteria), but concluded that “[a]n error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact”. The jurisdictional fact is of course the RRT’s satisfaction that the criteria are fulfilled and not some particular finding of fact along the way.
31.Minister for Immigration v SGLB (2004) 207 ALR 12 at [38]-[39] per Gummow and Hayne JJ (Gleeson CJ agreeing at [1]) also seems to indicate that the no evidence ground is limited to jurisdictional facts.
32.Further, VWST v Minister for Immigration [2004] FCAFC 286 at [16]-[19] applying and following NACB v Minister for Immigration [2003] FCAFC 235 [24]-[30][26], holds that, as the authorities stand[27], illogicality will not suffice to show jurisdictional error.
[26] Special leave was refused by the High Court in NACB on 14 September 2004. In VWST at [17], the Full Court, although expressly not drawing “too much” from the refusal of special leave in NACB, noted that the special leave question in NACB was “whether judicial review of an administrative decision is available where the requisite satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.
[27] including S20/2002 v Minister for Immigration (2003) 198 ALR 58
33.Even if (as is not so) some jurisdictional error was shown in that part of the RRT’s reasons that bore upon the existence or otherwise of a continuing threat to the applicant from those whom she feared, it is not conceded that such error could have affected the decision of the RRT, given its alternative basis (effective protection) mentioned above. Similarly if (as is not so) there was jurisdictional error shown in the RRT’s findings to the effect that adequate protection would be available in Peru, it is not conceded that the error could have affected the RRT’s decision given that the RRT plainly did not accept that the applicant was at continuing risk in any event from Cano and his associates.
Paragraphs 20-21 of the applicant’s submissions
34.Neither matter particularized was something that the RRT was legally required to consider. A compulsorily relevant integer in this context is a criterion required by the law to be considered – not some piece of evidence or mere possible line of factual inquiry.
35.There are also further answers to these complaints as set out below.
The first matter so put
36.The applicant alleges that the RRT failed to consider whether General Cano’s intentions to harm the applicant would have changed after his arrest.
37.At court book, page 267.8, the RRT found that, if Cano intended to do serious harm to the applicant because of what she knew about him, it is more likely that he would have acted on that intention when he had a clear opportunity over many months and when he was in a position of significant power. In other words, he (or his supporters) did not have the intention that the applicant suggested, or the opportunity had been lost.
38.Also, the RRT went on, at court book, page 267.9, to ask what if it was wrong in that respect and it concluded that the authorities in Peru would be able to offer adequate protection to the applicant against any serious harm that Cano or his supporters might do to her.
The second matter so put
39.The applicant’s next contention is that there was no evidence as to the level of protection given to witnesses in civil or criminal trials, as opposed to people appearing in cases of human rights abuse before the Truth and Justice Commission.
40.The applicant’s own mother, in a letter that the applicant put forward, provided evidence that if the applicant were to give testimony against General Cano, it was open to her to seek a personal guarantee from the Lima Prefecture Office (court book, pages 141; 267-268).
41.As well as such material, the inference that protection would be available to corruption witnesses was also available from the independent evidence and from the Tribunal’s findings that “the government intends to do all it can to put an end to corruption within the military, the police and the institutions of government” (RD266.8) and that there had been significant political and institutional shifts in Peru since late 2000, involving changes at many levels (RD267.8-268.4, referring back to RD260-261).
42.Further, even if there was a factual error by the RRT, or a finding made without evidence, neither of which is conceded, it was not jurisdictional error. It was, at most, an error within jurisdiction.
43.The third particular in paragraph 20 stated by the applicant, again is answered by the RRT’s findings to the effect that General Cano had lost interest in harming the applicant or effective protection would be available in any event.
44.With respect, the cases cited take the applicants nowhere, they are not authority upon which these particulars could succeed.
Disposal
45. The application should be dismissed, with costs.
In oral argument, Mr Johnson made the following additional submissions:
·The RRT hearing was conducted on 15 August 2001 and the decision was made approximately 11 months later, on 24 July 2002;
·The letter from the first applicant’s mother was received after the hearing. It could not therefore have been a subject for discussion at the hearing;
·The RRT wrote to the first applicant on 5 June 2002 (after the hearing)[28], giving notice of additional information obtained by the RRT since the hearing and giving the applicants the opportunity to comment. This included information about the Truth and Reconciliation Commission. The point of interest to the RRT relating to the Truth and Reconciliation Commission was the witness protection programme associated with it;
[28] court book, page 205
·In that letter the RRT clearly raised the issue of the detention of General Cano and gave the applicants the opportunity to raise any issue of relevance in response, which would have included any assertion that General Cano was no longer in detention. The applicants did not take up that opportunity;
·The circumstances of General Cano were also discussed with the applicant at the hearing[29];
[29] transcript, pages 16-19
·The presiding member also raised with the first applicant the issue of the availability of effective protection in Peru[30];
[30] transcript, pages 23-25
·At the hearing the presiding member flagged the issue of whether the first applicant was at any continuing risk of harm[31];
[31] transcript, page 25
·The presiding member gave the first applicant the opportunity to comment on what her continuing fear was[32];
[32] transcript, pages 31-32
·The presiding member undertook to give the first applicant the opportunity to comment on any further material obtained by the RRT after the hearing which was material to the outcome and adverse to the applicant’s claims[33];
·This promise was met by the letter written by the RRT on 5 June 2002;
·The undertaking did not extend to information received by the first applicant herself;
·The RRT accepted the first applicant’s mother’s letter as genuine but did not believe the assertions in it. There was no obligation on the RRT to give a further opportunity to comment upon that state of disbelief;
·At the hearing, the presiding member raised with the applicant the question of the extent of harm to which the first applicant was subject, noting that it did not extend beyond mere threats[34];
·At the conclusion of the hearing, the presiding member gave the first applicant a general invitation to make further comments[35];
·The claim of a failure to take into account relevant considerations confuses claims and items of evidence: Htun v Minister for Immigration (2001) 194 ALR 244 at [42] per Allsop J with whom the rest of the Court agreed;
·To similar effect is the decision of the Federal Court in Paul v Minister for Immigration (2001) 113 FCR 396 at [78]-[79] per Allsop J;
·The claim made by the first applicant at page 41 of the court book was considered and dealt with by the RRT. The presiding member concluded that General Cano was no longer interested in harming the first applicant and that, even if he was still interested in harming the first applicant, effective protection was available in Peru. Both of those conclusions were open to the presiding member on the material before her;
·Should the Minister be successful she should receive a costs order fixed in the sum of $6,500.
[33] transcript, page 32
[34] transcript, pages 35-38
[35] transcript, page 41 at line 38
Reasoning
This is an unusual and difficult case. The first applicant made credible claims of a fear of harm at the hands of a well known and senior military figure in Peru who is now accused of corruption during the time of the Fujimori government in Peru. The RRT accepted that the applicant’s fear was genuine and that the circumstances she recounted were credible. However, the presiding member did not find that the first applicant’s fear was well founded.
The Minister has previously conceded that a separate decision made by a delegate in relation to the youngest child of the first and second applicants was vitiated by jurisdictional error. I returned that decision to the Minister for redetermination according to law. That child was born in Australia and has known no other country. The three applicants the subject of the present proceedings have been here since 2000. The second applicant is a citizen of the United States and the third applicant also apparently enjoys US citizenship. A previous attempt by the first applicant to gain entry to the United States with the second applicant and their children was not successful because, at the time, the first and second applicants were not legally married. It may be that in the future the applicants might be successful in gaining permanent residency in the United States. Until that occurs, and, indeed, whether or not it occurs, this case raises humanitarian issues that, in my view, merit consideration by the Minister. That is beyond the scope of these proceedings but nevertheless is worthy of mention. Having mentioned the humanitarian issues, I will turn to the legal issues requiring determination.
The procedural fairness claim
There are three elements to this claim. The first is that the RRT failed to consider the totality of the claims put by the first applicant. As I pointed out to Mr Turner in argument, this appeared to be a claim that the RRT failed to take into account a relevant consideration, and, indeed, that claim is also made. I accept, however, that a failure to consider a clearly articulated matter before the RRT may also constitute a failure to accord natural justice: Dranichnikov v Minister for Immigration [2003] HCA 26 at [23]-[24]. Mr Turner’s written submissions postulate that the RRT failed to consider the first applicant’s claim that she feared harm from “the military and its officials including General Cano and his supporters”. He submits that the RRT only effectively considered the harm that the first applicant would suffer at the hands of General Cano. I reject that contention. The first applicant’s primary claim was that she feared harm at the hands of General Cano and his supporters. I accept that the record of the RRT’s consideration of that claim on pages 253-266 of the court book shows that the claim was adequately considered. The applicant’s secondary claim was that she feared harm at the hands of the present government of Peru but the applicants expressly eschew any challenge to the RRT’s finding that the applicant did not have any Convention related fear of harm at the hands of the present government.
In oral argument Mr Turner presented a different proposition. This was that the RRT dealt with the first applicant’s primary claim on a false factual foundation, namely that General Cano had been “arrested” when he had only been “detained”. The RRT wrote to the first applicant after the hearing, on 5 June 2002[36] inviting the first applicant to comment on information received by the RRT that General Cano had been arrested on corruption charges. The letter contained the statement:
The Tribunal has been unable to find any reports that indicate General Cano has been released from detention.
[36] court book, page 205
If the first applicant had information that General Cano had not been arrested but merely detained and, if she had information that General Cano had been released from detention, this was the opportunity to give that information to the RRT. The first applicant did not take that opportunity and no evidence has been presented to me that General Cano has in fact been released from detention. The issue had also been raised with the first applicant at the hearing[37]. I see no unfairness in the procedure followed by the RRT. On the contrary, the RRT appears to have gone out of its way to ensure that the first applicant had the opportunity to comment on the information proposed to be relied upon by the RRT. Further, it is far from clear that there was any factual misunderstanding by the presiding member. Even if there had been, I am not satisfied that such a factual misunderstanding would constitute a jurisdictional error.
[37] transcript, page 16, line 42
The second element of the procedural fairness claim is an asserted failure to give the first applicant the opportunity to comment upon country information that was adverse to the first applicant’s claims and which was in whole or part determinative of the outcome of those claims. I accept from pages 262–264 of the court book that the presiding member took into account country information additional to that notified to the first applicant by the letter dated 5 June 2002[38].
Mr Turner submits that the significance of the additional material was that it referred to the Truth and Reconciliation Commission and the first applicant missed the opportunity to point out to the RRT that the Commission was dealing with human rights issues whereas General Cano had been involved in corruption. However, the letter dated 5 June 2002 did refer to the Truth and Reconciliation Commission.
It is clear from that letter that what the RRT considered was significant about that Commission was its witness protection programme. The RRT put the proposition to the first applicant that there was no evidence before the RRT that the present government of Peru, which is attempting democratic and political change on many levels, would not ensure the same protection to people who gave evidence as part of corruption investigations. I am satisfied from this that the RRT understood that General Cano was under investigation in relation to corruption rather than human rights violations and that the work of the Truth and Reconciliation Commission was not directly relevant. In any event, the first applicant was given the opportunity to respond to the proposition put to her. There was no procedural unfairness. I note further that the issue of effective State protection was raised with the applicant at the hearing[39].
[38] court book, page 205
[39] transcript, page 23 at line 33 through to page 25
In this regard, I have taken into account the High Court decision in SAAP v Minister for Immigration [2005] HCA 24. The RRT anticipated that decision, very prudently assuming that s.424A applied after a hearing, as well as before one. The letter dated 5 June 2002 met the requirements of s.424A in respect of the information disclosed. In the light of the High Court’s decision, if there had been an obligation under s.424A(1) of the Migration Act to disclose the country information relied on by the RRT relating to effective State protection in Peru that was not disclosed in the letter, the disclosure that occurred at the hearing would not have been sufficient to meet that statutory obligation. However, in my view, that information fell within the purview of s.424A(3)(a) of the Migration Act, and hence s.424A(1) did not apply. The disclosure that occurred at the hearing was adequate to meet the procedural fairness obligation of disclosure that arose under the general law. I agree with paragraphs 10, 12, 13, 14 and 16 of Mr Johnson’s written submissions.
The third element of the procedural fairness claim is the proposition that the manner in which the RRT dealt with the letter from the first applicant’s mother was unfair. Mr Turner submits that the RRT erred in failing to put its credibility concern about that letter to the applicant. The English translation of the letter appears on page 146 of the court book. The letter refers to threats made against the first applicant and includes an example, a translation of which appears on page 148 of the court book. The presiding member drew the following conclusion about this letter:
At hearing the applicant claimed that her mother still receives threatening telephone calls. In her letter the applicant’s mother referred not to telephone calls but to threatening letters and action, and provided a copy of an extract of one of those letters… While I accept that the letter from her mother is genuine, I have doubts about the substance of her claims. They are in the end untested assertions, and the copy of the typed extract of the threatening letter is not original evidence and would not be difficult to create. The applicant has been out of Peru for two years, and I find it most unlikely that those who would harm her would continue to act in this manner. In addition the mother’s letter indicates that she has reported these matters to the police and in view of the country information before me, as well as the applicant’s own evidence about her stolen car, I find the police will take reasonable and appropriate action. I do not accept on the evidence before me that any problems experienced by the applicant’s mother in relation to her pension, or any of her brother’s problems, have arisen because of the applicant’s circumstances.
Mr Turner sought to draw support from the decision of Raphael FM in SZAIM v Minister for Immigration [2004] FMCA 467, which itself relied upon well known Federal Court authority concerning the procedural fairness obligations of decision makers in relation to findings of document fraud.
The first point to note is that the first applicant’s mother’s letter was received after the hearing conducted by the RRT, and in probable response to an invitation from the presiding member to submit further information. Secondly, the RRT made no finding of fabrication of the letter; indeed the presiding member accepted that the letter was genuine. She was, however, not minded to give credence to the written threat referred to in it. In these circumstances, there was no procedural fairness obligation on the RRT to invite a debate from the first applicant about the presiding member’s assessment of the value of the first applicant’s additional evidence.
I accept Mr Johnson’s written submission that the RRT was under no duty to make further inquiries about the applicant’s mother’s letter, for the reasons he offers.
Failure to take account of relevant considerations
In his written submissions, Mr Turner postulates that the RRT failed to consider whether General Cano’s intentions to harm the first applicant would have changed after his arrest. Further, he submits that the RRT failed to properly consider whether the Peruvian State would provide protection to people who gave evidence in civil or criminal proceedings. I reject both contentions. The presiding member gave detailed and careful consideration to the first applicant’s claims.
On the material available to the RRT it was open to the presiding member to conclude that if General Cano had wanted to harm the first applicant he would have done so while she was still in Peru and while General Cano exercised significant power. It was reasonable for the RRT to conclude that the ability of General Cano to exact retribution was reduced by the investigation against him. The submission that General Cano may have a stronger intention to harm the first applicant because he is under investigation is no more than a contest over the merits of the RRT decision.
Likewise, the conclusion by the presiding member that effective State protection was available in Peru was open to her on the material before her. The presiding member did not fail to consider any element or integer of the first applicant’s claims. In substance, Mr Turner complains about a failure on the part of the presiding member to weigh up alternative propositions that might be drawn from the available evidence. This is a far cry from a failure to consider a part of a claim. There is a significant difference between the obligation on the RRT to consider the totality of a claim and the manner in which the RRT deals with items of evidence in relation to a claim: Htun v Minister for Immigration (2001) 194 ALR 244 at [42] per Allsop J. I accept Mr Johnson’s written submissions in this regard.
I find that there is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and that the application must be dismissed.
As to costs, I accept Mr Johnson’s submission that the Minister should receive a costs order in the sum of $6,500. There have been numerous hearings in this matter and the first applicant’s legal arguments have changed significantly over time. Substantial preparation has been required on behalf of the Minister which necessitates a costs order higher than would ordinarily be the case.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 May 2005
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