Singh, Sohan v Minister for Immigration & Multicultural Affairs

[1997] FCA 440

CATCHWORDS

MIGRATION - whether, by virtue of s 420 of the Migration Act 1958, the Refugee Review Tribunal is required in certain circumstances to follow the procedure of investigating or causing investigations as to the validity of documents - whether failure to do so amounts to a failure to observe procedures pursuant to s 476(1)(a) of the Act - whether to give the applicant the benefit of any doubt is a procedural obligation under s 420 and failure to do so amounts to breach of s 476(1)(a) - if a procedural failure amounts to a failure to accord natural justice, whether it is open to judicial review.

Migration Act 1958 ss 420, 476(1)(a) and 476(2)(a)

The Law of Refugee Status, Hathaway, Butterworths Canada Ltd,
     1991
Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, Geneva, January 1992

Chan Yee Kin v Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Surjit Singh
     (Full Court, Federal Court of Australia, 7 May 1997,
     unreported)
Minister for Immigration and Ethnic Affairs v Jagjit Singh
     (Full Court, Federal Court of Australia, 7 May 1997,
     unreported)
Jaspal Singh Garcha v The Minister for Immigration and
     Multicultural Affairs (Mansfield J, 29 May 1997,
     unreported)
Prasad v Minister for Immigration and Ethnic Affairs (1985)
6 FCR 155
Luu v Renevier (1989) 91 ALR 39
Tickner v Bropho (1993) 40 FCR 183
Teoh v Minister for Immigration and Ethnic Affairs (1994)
49 FCR 409
Minister of State for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273
Thanh Phat Ma v Billings (1997) 142 ALR 158
Dai Xing Yao v Minister for Immigration and Ethnic Affairs
     (Sackville J, 17 April 1997, unreported)
Mohideen v Minister for Immigration and Multicultural Affairs
     (Olney J, 17 April 1997, unreported)

No SG 117 of 1995
SOHAN SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS

Mansfield J
Adelaide
29 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 117 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

SOHAN SINGH

Applicant

- and -

THE MINISTER FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS

Respondent

MINUTES OF ORDER

CORAM:    Mansfield J
PLACE:    Adelaide
DATE:     29 May 1997

THE COURT ORDERS THAT:

1. The application be dismissed.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 117 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

SOHAN SINGH

Applicant

- and -

THE MINISTER FOR
  IMMIGRATION AND
  MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

CORAM:    Mansfield J
PLACE:    Adelaide
DATE:     29 May 1997

This matter is another that raises the question as to whether, by reason of s420 of the Migration Act 1958 ("the Act"), either alone or in combination with other provisions of the Act, the Refugee Review Tribunal ("the Tribunal") is required in certain circumstances to follow the procedure of investigating, or causing investigations as to, the validity of documents presented to it by an applicant for review.

The question is expressed in that way by the applicant so as to invoke the ground of review under s476(1)(a) of the Act:

"...that procedures that were required by this Act ... to be observed in connection with the making of the decision were not observed;"

although the argument also seeks to invoke a failure to investigate such a document as giving rise to the 'error of law' ground of review under s476(1)(e) of the Act. Because s476(2)(a) of the Act expressly precludes as a ground of review of a decision of the Tribunal that a breach of the rules of natural justice occurred in connection with the making of the decision, the question raised also involves consideration of

(a)the extent to which the operation of s420, in so far as it does prescribe procedures to be observed in connection with the making of a decision, is reviewable under s476(1)(a) having regard to the restriction expressed in s476(2)(a) of the Act, and

(b)whether any procedural obligation to investigate imposed by s420 on the Tribunal (if not complied with), falls within the exclusion from reviewable grounds expressed by s476(2)(a) of the Act in any event.

Finally, and importantly, even if, as a matter of principle, such an obligation may arise, and an alleged failure to comply with it be reviewable under s476(1)(a) of the Act, it is necessary to identify, at least so far as relevant for the determination of this application, whether the approach of the
Tribunal amounted in fact to a failure to comply with that obligation so as to entitle the applicant to the relief claimed.

Background

The applicant arrived in Australia on 12 November 1991, and was granted a visitor entry permit. On 28 January 1992 he applied for recognition as a refugee. Upon the coming into effect of s39 of the Migration Reform Act 1992, that application was treated as an application for a protection visa. That application was refused on 30 June 1995.

On 25 July 1995 the applicant applied to the Tribunal for review of that decision.  On 24 November 1995 the Tribunal affirmed the decision of the primary decision maker, and determined that the applicant was not entitled to the grant of a protection visa because he is not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention").

On 28 December 1995 the applicant applied to the Court under Part 8 of the Act for review of that decision of the Tribunal. The available grounds of review are only those specified in s476 of the Act.

The relevant provision of the Convention which the applicant must satisfy is Article 1 A(2) which provides that a person is a refugee if that person:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;"

and so that person is then a person to whom Australia has protection obligations.

The applicant was born on 4 January 1940 in the Punjab, India.  He is a citizen of India, and is a Sikh.  He is married, with six children.  He came to Australia with his wife in 1991 to visit one of his daughters, but remained when his wife returned to India in January 1992.

The applicant's factual assertions in support of his claimed refugee status were altered, and significantly added to, at stages of the determination process.  Thus the Tribunal noted his version of relevant facts when his primary application was made, at interviews with officers of the Department of Social Security on 24 May 1994 and on 26 September 1994, and at the hearing on 20 October 1995.  The Tribunal was mindful of adopting too harsh a view of such inconsistencies and memory lapses, especially in such claims where the conduct complained of as constituting persecution might itself provide the explanation for such matters:  see Hathaway, The Law of Refugee Status (Butterworths Canada Ltd, 1991, at 85). 
Nevertheless, it concluded that the explanation lay in the fact that in this instance the applicant had fabricated evidence to create an adverse political profile.  Despite accepting that the applicant is illiterate, and considering also whether that or his lack of education might also affect his memory, the Tribunal found that:

"... the Applicant was an unreliable witness.  In large part I find that this is due to the fact that he concocted much of his evidence but it may also relate to a poor memory, his lack of education and his state of heath (sic)."

It was entitled to reach those conclusions, and there was ample material to justify the conclusion as to unreliability evidenced by the Tribunal's summary of the evolving and changing factual picture over time.  The Tribunal accordingly accepted only parts of the applicant's allegations, and rejected other parts of them.  Its findings were as follows.

In and from about 1988 the applicant assisted some Sikh militants by providing them with food and shelter.  He was accused by the police of having done that, and was subjected to two minor physical assaults as a result.  He was not arrested or detained for any period of time.  He was not otherwise seriously affected.  He was able to continue working his farm unhindered, and to earn a living.  He was able to travel freely between his village and Delhi on two occasions to arrange for his overseas travel, and to depart India without any difficulty.

Up to November 1991, the Punjab had for some years been in a state of civil war.  Since then, the situation in the Punjab has improved considerably, despite the assassination of Chief Minister Beant Singh in September 1995.  Thus, if the applicant were now to return to the Punjab, he would be returning to a region with less unrest and violence than before.

On those findings, the Tribunal concluded that both when he left India, and at the time of its determination, the applicant did not face a 'real chance' of persecution for a Convention reason should he return to India:  cf Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

On those findings above, the applicant through his counsel did not contend that the Tribunal's decision was based upon any reviewable error.  His complaint was as to the rejection by the Tribunal of a number of the claims made by him, and which if accepted might have led to a different resolution of his application.  One of those matters concerned the status of an arrest warrant against him which he produced to the Tribunal.

The Tribunal did not accept that the applicant assisted Sikh militants by hiding weapons for them, nor that he had to go into hiding to avoid the police, nor (despite certain oral and documentary corroborative material) that he is a member of the All-India Sikh Students Federation ("the AISSF").  The corroborative documentation was treated as fabricated because of its timing, its content, and the absence in his earlier claims of any matters relating to it.  Both the corroborative witnesses were found to be untruthful, because of their manner of presentation as witnesses and the nature and content of their evidence, as well as the absence in his earlier claims of any matters referring to the issues to which that evidence was directed.  The Tribunal also did not accept that the applicant's farm had been closed down by the authorities.

The main criticism of the Tribunal's decision related to an arrest warrant produced first in August 1994, and on its fact apparently prepared on 30 (sic) February 1992 ("the warrant").  The Tribunal did not accept that the warrant was authentic.  It observed:

"... the Applicant's explanation for its late presentation is not convincing.  Further, the alleged original of the copy, which was tendered at the hearing, does not appear to be identical to the copy.  For example, it has a seal on it which is different in style to the one on the copy and also has foreign language script around the seal which does not appear on the copy.  The seal on the copy has English script.  When the Applicant was asked how he obtained the original he stated that his wife obtained it and sent it to him.  He could not explain why she had been able to obtain a copy earlier and the original only recently.  His explanation that his wife obtained the original only after being harassed by the police is not convincing."

In reaching its conclusion, the Tribunal also considered whether the applicant might be exposed to a "real chance" of persecution by reason of his Sikh religion per se or having regard to his 'political status' in the light of his activities as found.  It noted the long period of instability and violence in the Punjab, especially in the mid-1980s, when there appear to have been many random and illegal arrests and serious mistreatment, especially in relation to those who were suspected of having assisted, or of having been sympathetic to, Sikh militants.  It referred to material, which it accepted, of a significant decline in that sort of activity except that the focus of such 'official' conduct is now specifically at those engaged in 'revolutionary' activities such as active membership of a secessionist group or active militants.  Its findings about the applicant excluded the applicant, as a possible target of such ongoing behaviour.

The grounds of review

The further amended application for an order for review contained a large number of grounds for review, many of which were not pressed at the hearing.

The major ground of review pursued was based upon the failure of the Tribunal to accept as authentic the warrant referred to above, and associated with that the failure of the Tribunal to cause investigations to be conducted into its authenticity or otherwise, at least by the Document Examination Unit of the Department of Social Security.

The transcript of the hearing before the Tribunal reveals that, at the hearing on 20 October 1995, when asked about the warrant dated 30 (sic) February 1992 first presented to the Department in August 1994, the applicant produced a document which he described as "the document the police had registered with the Courts" and which he had not got earlier because his wife had only got it out from the courts after the police had continually harassed her.  An examination of the document apparently produced in August 1994 and of that produced at the hearing, although both are photocopies only, confirms the Tribunal's observations that they are different documents, although both are dated 30 (sic) February 1992.  In the materials provided for the hearing there was, apparently through oversight, yet another document included also on the same form headed 'Warrant of Arrest' relating to the applicant and dated 15 June 1994 instead of the second and different photocopy of the warrant dated 30 (sic) February 1992.  That document was not apparently before the Tribunal, and I have not therefore had regard to it in reviewing the Tribunal's decision.

The failure in the circumstances to cause further investigations to be made as to the authenticity or otherwise of the warrant (or warrants), it was submitted, amounted to a failure to observe procedures required by the Act to be observed in relation to the making of the decision under s476(1)(a) of the Act. The source of the procedural obligation to do so was said to be s420 of the Act. In support of that contention, reference was made to the Handbook on Procedures and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees, Geneva, reedited January 1992) ("the Handbook").  The Handbook, under the heading 'Establishing the facts' provides what is really only a structure of common sense for any Tribunal which has in part an investigative function:

1. It is a general legal principle that the burden of proof lies on the person submitting a claim.  Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.  In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents.  Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof.  In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."

It is worthy of remark in that context, that in the present circumstances the applicant did not flee from persecution, and the Tribunal did form the view that in a number of material respects, including in respect of the events said by him to have constituted the conduct leading to the issue of the warrant of arrest, the applicant's account did not appear credible.  Furthermore, as the Tribunal noted, there were other reasons suggesting his version of those events, at least up to the time of his departure from India, was not correct.

The Full Court in Minister for Immigration and Ethnic Affairs v Surjit Singh and Minister for Immigration and Ethnic Affairs v Jagjit Singh (7 May 1997, both unreported) has commented upon similar matters raised in those two appeals.  In Surjit Singh (at 12-13) it said:

"Accepting for the purposes of argument that s420(2)(b) requires a procedure to be observed in connection with the making of a decision within s476(1)(a), the question is whether the obligation to act according to substantial justice requires the Tribunal to make an inquiry of the nature suggested here. The way in which the Tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the Tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s424 does not apply (ie where there is no review "on the papers"), the Tribunal must give an applicant an opportunity to appear before it to give evidence (s425(1)(a)), and "may obtain such other evidence as it considers necessary" (s425(1)(b)). An applicant may give the Tribunal written notice that he or she wants it to obtain oral evidence from a person or persons named in the notice (s426(2)). If the Tribunal is so notified, it must have regard to the applicant's wishes, but it is not required to obtain evidence from any such person (sub-s(3)). Section 427(1)(d) empowers the Tribunal to require the Secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.

In our view the respondent has fallen short of showing that the Tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice.  The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic.  Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question.

Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases.  In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect."

Consequently, the Full Court did not need to decide whether, in a case where the Tribunal's omission to make inquiries does constitute a failure to act according to substantial justice for the purposes of s420(2)(b) of the Act, this amounts to failing to observe procedures required by the Act to be observed for the purposes of s476(1)(a) of the Act. Nor did it need to decide whether, in that event, the provisions of s476(2)(a) or (b) would preclude review.

For the purposes of dealing with this application, I am prepared to assume that the applicant can overcome those obstacles.  I have discussed some matters relating to them in the matter of Jaspal Singh Garcha v The Minister for Immigration and Multicultural Affairs (29 May 1997, unreported) and I will not repeat that. On those assumptions, nothing was suggested in submissions that the Tribunal's obligations in relation to the circumstances of procuring evidence or causing inquiries to be carried out were more extensive than obtained when its decisions were reviewable under the Administrative Decisions (Judicial Review) Act 1977.

A convenient summary of those circumstances can be taken from the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 in the following terms:

"The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited.  It is no part of the duty of the decision-maker to make the applicant's case for him.  It is not enough that the court find that the sounder course would have been to make inquiries.  But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it."

Reference can also be made to Luu v Renevier (1989) 91 ALR 39 at 49; Tickner v Bropho (1993) 40 FCR 183 at 197-198; Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414, and on appeal (1995) 183 CLR 273 at 290 per Mason CJ and Deane J.

The Tribunal's reasons illustrate that it did consider the authenticity of the warrant.  There is no blanket rule that, where such a document is presented, the Tribunal must accept it as authentic or have its authenticity assessed by external resources:  Surjit Singh (above).  The Tribunal referred to the date of the warrant, the timing of its first reference and presentation when the applicant said he knew of its existence from 1992, its appearance including that two copies of the
warrant were different, its provenance and generally the general oral evidence of the applicant surrounding it. I think the Tribunal was entitled to consider those things. Moreover, in my view, in the light of those considerations, this was not one of those occasions when the Tribunal's decision to decline to accept the warrant as authentic demonstrates such unreasonableness on its part that no reasonable person could have reached that conclusion. Nor was it a failure to accord the applicant natural justice in depriving him of the opportunity to address the issue. Nor was it a failure to take into account a relevant consideration. Those manners of expression are, of course, derived from the provisions of s5 of the Administrative Decisions (Judicial Review) Act 1977 under which the earlier cases were decided; those grounds of review are no longer available: s476(2)(a) and (b) and s476(3)(e). However, if the obligation is, despite those provisions, clothed in the words of s420 and it is acknowledged that the combination of s420 and s476(1)(a) cannot provide a review on the merits, then in my view the same result is reached. The Tribunal considered the question, addressed the evidence relating to it, and made a decision not to accept the warrant as authentic. In my view, it did not in the circumstances thereby fail to provide a review which was 'just' or did not in the circumstances fail to act according to substantial justice. This is not one of those rare cases where a failure to investigate, or to procure certain evidence, amounts to a breach of a procedural obligation which I have assumed is imposed under s420 and which I have also assumed is reviewable under s476(1)(a).

The other ground of appeal pursued in oral submissions was that the Tribunal erred in a further procedural respect, to which s476(1)(a) can attach, namely by failing to give to the applicant the benefit of any doubt. Again, s420 is said to be the source of that procedural obligation. Reliance was placed on the concluding words of par196 in the Handbook, set out above. Such a failure, it was submitted, amounted to a failure to accord natural justice or procedural fairness, being the procedural obligation imposed by s420(1) of the Act.

There are a number of obstacles to that submission succeeding.  The first is that the Tribunal expressly recognised the possible difficulties confronting the applicant in giving a coherent and consistent presentation of the circumstances relevant to his claim, including his age, his lack of education, his state of health and possibly his experiences in India.  It nevertheless concluded that his version of events was, to a substantial degree, unreliable.  It had the benefit of seeing and hearing his evidence.  It also used objective facts to measure the possible reliability of his complaints.  It was entitled also to have regard to the changing version of events presented by him from time to time, as it did.  This is not, therefore, a case where the Tribunal had no material or no good reason to question the reliability of the applicant's evidence before it, or to form the view that the applicant's reliability was not in all respects acceptable.

The applicant, if he were to make out a case of a failure to accord him natural justice, would in any event be then confronted with s476(2)(a) of the Act, which precludes the Court from reviewing a decision on that ground. Where the procedural flaw complained of is, in truth, a failure to accord natural justice, then the complaint even if established is not susceptible of judicial review: Thanh Phat Ma v Billings (1997) 142 ALR 158, Dai Xing Yao v Minister for Immigration and Ethnic Affairs (Sackville J, 17 April 1997, unreported) and Mohideen v Minister for Immigration and Multicultural Affairs (Olney J, 17 April 1997, unreported).

Consequently, I do not think that that ground of attack can succeed.

Finally, there were a number of other matters expressed in the further amended application for an order of review, which were not the subject of submissions but were not otherwise expressly not pursued. It is necessary that I should deal briefly with them. They fall into two groups: complaints based upon s476(1)(g) of the Act, and complaints based upon s476(1)(e) of the Act.

There are thirty passages from the judgment for which, it is asserted in the amended application for review, there was no evidence to "justify" the making of the finding recorded in those passages, so as to lead to review under s476(1)(g) of the Act as elucidated by s476(4) of the Act. I have considered each of the twelve such matters which are still apparently being pressed. It is of course clear that it does not make out the ground of review that there was other evidence which might have led to a different conclusion; the ground of review does not provide a review on the merits either as to the finding of a particular fact or as to a conclusion based upon a series of findings of particular facts. It is sufficient to deal with those grounds to observe that there was evidence before the Tribunal upon which it could (and did) reach the particular factual findings; indeed in respect of each particular finding of fact the Tribunal has expressed its reasons for reaching that conclusion. In some cases those reasons refer to specific pieces of evidence, and in others to events or circumstances or impressions of witnesses from which the factual finding has been drawn by inference. In some cases the complaint relates to conclusions, based on findings of fact which are either not themselves challenged or are sustainable despite such challenge, and which are clearly capable of being drawn from such material. Accordingly, I do not find those grounds of complaint are made out.

There are also now eight outstanding findings of the Tribunal which, it is submitted, involve an error of law, being an error by an incorrect application of the law to the facts as found by the Tribunal contrary to s476(1)(e) of the Act. Again, none of those matters was addressed in submissions, and no particularity of the basis of the complaint is made out. It is necessary to deal with three of them separately.

It is said in three of those grounds that the Tribunal erred in law in finding that the questioning and mistreatment of the applicant on two occasions by the police in about 1988, did not amount to persecution for a Convention reason.  It is necessary for conduct to constitute persecution that it involve "some serious punishment or penalty or some significant detriment or disadvantage ...":  Chan (above, per Mason CJ at 388).  That necessarily involves questions of degree.  I am not persuaded that the Tribunal approached the matter incorrectly; it referred to the correct legal test, and generally the assessment of the facts to determine whether they fall within or outside that test will be for the Tribunal.  There are also more fundamental reasons why that complaint must fail.  The Tribunal found in any event that subsequent to those events and up to the time of his departure from India, the authorities had no interest in the applicant.  Circumstances in the Punjab since his arrival in Australia have changed even more, so that persons such as the applicant are not the target of ongoing attention.  As the critical time to assess whether there is a "real risk" of persecution should he return to India is at the date of the Tribunal's determination, in the light of its findings and conclusions as to the circumstances at that date, any error of the Tribunal of the nature asserted would not in any event vitiate its conclusion and lead to the setting aside of its decision.

The balance of those specified grounds in this grouping complain of the Tribunal's conclusions that there is no real chance of the applicant suffering persecution for a Convention reason should he now return to India, expressed in various ways but to the same point.  No express error of law is identified.  The Tribunal, in my view, has properly set out the relevant legal test in its reasons.  The real nature of those complaints is as to the Tribunal's findings of fact.  For reasons which I have given, I do not think that those complaints are made out.

Accordingly, in my judgment, this application should be dismissed.

I certify that this and the preceding       pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield.

Associate:

Dated:

Counsel for the Applicant        :    Mr M Clisby
Solicitors for the Applicant     :    Paul Kirk Roberts & Co

Counsel for the Respondent       :    Ms S Maharaj
Solicitors for the Respondent        :    Australian Government
  Solicitor

Hearing Date  :    14 April 1997