SZAFJ v Minister for Immigration - [2003] FMCA 347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFJ v MINISTER FOR IMMIGRATION

[2003] FMCA 347

MIGRATION – Review of RRT decision – whether jurisdictional error can arise out of a failure to review evidence given at previous Tribunal hearing – whether other errors of failing to take into account certain evidence constitute jurisdictional error – whether a case of Wednesbury unreasonableness has been made out – whether a failure to advise applicant of conclusions reached by Tribunal constitutes a breach of s.424A of the Migration Act – where the applicant has received assistance that necessitates additional effort on the part of the Respondent and should be reflected in the costs order.

Migration Act 1958 (Cth), ss.422, 424A

Muralidharan v Minister for Immigration (1996) 62 FCR 402
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Yusuf (2001) 206 CLR 323
Steed v Minister for Immigration (1981) 37 ALR 620
Karras v Minister for Immigration (1998) 56 ALD 167 at 173
Dranichnikov v Minister for Immigration [2003] HCA 26
SCAL v Minister for Immigration [2003] FCA 548
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
SBBA v Minister for Immigration [2003] FCAFC 90
Minister for Immigration v Al-Shamry (2001) 110 FCR 27
Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321
Minister for Immigration v Rajamanikkam (2002) 190 ALR 402
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Prasad v Minister for Immigration (1985) 6 FCR 155
Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 195 ALR1
SBBS v Minister for Immigration (2002) 194 ALR 749
Lam v Minister for Immigration (2003) 195 ALR 502
VAAN v Minister for Immigration (2002) FCAFC 120
WAGP of 2002 v Minister for Immigration [2002] FCAFC 266
Abebe v The Commonwealth (1999) 197 CLR 510

Applicant:

SZAFJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 242 of 2003

Delivered on:

19 August 2003

Delivered at:

Sydney

Hearing date:

1 August 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Ms M Allars

Solicitors for the Applicant:

Gilbert & Tobin

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 242 of 2003

SZAFJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant, who is a national of Angola, arrived in Australia on or around 12 November 2001 utilising a French passport and another person’s identity. On 7 February 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 30 May 2002 a delegate of the Minister declined to grant him a protection visa and on 3 June 2002 he sought review of that decision by the Refugee Review Tribunal.
The applicant attended a hearing before the Tribunal on 8 August 2002. The hearing was aborted. It seems to be common ground that the main reason that this occurred was interpreter issues. The member who constituted the original Tribunal was unable to continue hearing the matter and:
“The applicant’s files were thus reconstituted to the present Tribunal, which heard the applicant’s oral evidence on 21 October 2002. The hearing was conducted with the assistance of an interpreter in the French English medium. The applicant is represented by an adviser who attended the hearing. The applicant brought forward no witnesses. To provide him and his adviser with an opportunity to address certain issues that arose during the hearing, the Tribunal allowed additional time after the hearing for the presentation of further submissions, which it has duly considered.” [CB 94]
It was argued by the applicant, and not resisted by the respondent, that the reconstitution of the Tribunal described above took place pursuant to s.422 of the Migration Act 1958 (Cth). That section is in the following form:
“422 (1) If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).”
I did query whether or not there should have been included within the Court Books a copy of the direction referred to in s.422(1) but as the failure to provide a copy of such direction did not form part of the applicant’s amended application and the issue was not pressed I proceeded to hear the matter upon the basis that a valid direction had been given.
The applicant’s claim to have a well founded fear of persecution for convention reasons is articulated best in the submission of his advisers found at [CB 62] and set out below:
“2.1 Persecution Claims
The applicant fears persecution by the Angolan Government on the basis of political opinion because of his imputed sympathy to UNITA.
This sympathy is attributed to him for cumulative reasons: his father’s position within UNITA, the time he was forced to spend with the UNITA army, his Bakongo ethnicity and accusations by former UNITA captives that he supported UNITA.
We submit that the applicant’s account of abduction, torture, sexual assault and threat to his life by UNITA is consistent with the human rights abuses in Angola documented by the US State Department, Human Rights Watch and Amnesty International. We further submit that the applicant’s account of his treatment at the hands of government forces once he was released from the UNITA army is also US State Department noted, that ‘those who escaped UNITA custody and were able to return to government held areas with government assistance reported that they were subjected to torture, beatings, and sexual abuse.
The applicant’s account of the murder of his sister on 31 October 1992 by government forces is also consistent with independent reports of the targeting of Bakongo civilians during the “Three Day War” in Luanda from 30 October – 1 November 1992. This was followed by the Bloody Friday massacre of Bakongos on 22 January 1993 in which thousands are alleged to have been killed.
We submit that on leaving Angola the applicant has a well founded fear of persecution on the basis of his imputed political opinion and ethnicity. We submit that the current ceasefire between UNITA and the Government from April 2002 does not alter the applicant’s subjective fear of persecution on return and given the volatile nature of the ceasefire his fear remains well founded.
It is our submission that in the context of a 27 civil war, previous failed peace agreements, slow demobilisation, millions of internally displaced people and impending famine, a 5 month cessation of hostilities is not enough to dispel the applicant’s fears which remain well founded.
The Tribunal considered these claims. It questioned the applicant upon them and came to findings in respect of them. The Tribunal accepted much of the applicant’s history. It accepted he was a UNITA sympathiser who was abducted and exploited by UNITA guerillas for several years after 1994, it accepted that his brother and sister were killed as claimed during the civil war and it accepted his description of his abandonment by the UNITA forces when they were surrounded by government troops. The Tribunal did not accept this occurred when the applicant said it did, namely in late 2001 because it came to the view that certain stamps in the applicant’s passport, which the applicant claimed were not genuine, were indeed genuine. These would put the lie to the dating made by the applicant.
The Tribunal accepted that the applicant would have been regarded with some distrust by soldiers of the government forces at the time of his surrender and would have been held by them. However, it noted that he was not held in a prison but in a hospital from which he managed to escape quite easily. The Tribunal noted that the applicant was not facing any charges or courts or any summary mistreatment. The Tribunal accepted that he was taken out by the government troops to help them search for an abandoned UNITA camp but when that proved unsuccessful he was returned to the hospital:
“From which, given his claimed condition, they ought not to have removed him so quickly in the first place.” [CB 104]
The Tribunal also accepted that the applicant wrote certain letters on behalf of the UNITA forces, by whom he was held, to UNITA contacts in Zaire asking for food. His actions were allegedly denounced to the government forces.
“The Tribunal’s difficulty is with the claims about the denunciation of the applicant by his fellow UNITA captive leading to persecution. The Tribunal does not accept, that informer’s accusations, if they were heard by the authorities, would have caused the latter significant concern, over and above having a handful of former UNITA stragglers surrendering to them in the course of the war, which is now ended. The Tribunal does not accept that informer’s accusations, if they were heard by the authorities, would have bothered them for very long, in any event, let alone now or in future, given what independent sources report of present post April 2002 circumstances.
Taking all the evidence together, the Tribunal has come to the conclusion that the applicant got on with his life in and around Angola several months before he actually left that country for France and Australia and that he fabricated the account of a late 2001 escape from UNITA and government custody because it would have been difficult for him to account for all those months of liberty.” [CB 104]
The Tribunal considered the applicant’s claim to fear persecution on the ground of his Bakongo ethnicity. It accepted that there were negative societal attitudes or assumptions about the Bakongo people in Angola but stated that it could find no evidence:
“Of Bakongo people, let alone in post war Angola, facing discrimination amounting to persecution. Going a long way to the contrary, the applicant’s own evidence indicates that members of the Bakongo are eligible to be employed by the Angolan Government. He was able to be educated in and out of Angola. He was issued with a passport. He used it over and over.” [CB 105]
Finally, the Tribunal noted that it had not overlooked the applicant’s claims about the major who killed his father and who threatened him with a similar fate. The Tribunal noted that UNITA did not kill the applicant but merely abandoned him. It noted that UNITA was now at peace with the government and that there were no evidence that the major’s enmity towards him, while it existed, was personal. The Tribunal noted there was no evidence that the major had not joined in the peace. The Tribunal took all these matters into account in coming to a conclusion that the applicant did not have a well founded fear of persecution for convention reasons and was therefore not a refugee.
The applicant, through his Counsel, kindly provided the court with some detailed written submissions which sought to establish the grounds for review found in the amended application dated 18 July 2003. The amended application itself is some nine pages in length and I do not believe there is any necessity to set it out in these reasons. Some of the grounds were abandoned in any event. The headings given by the applicant’s Counsel in her written submissions, to my mind, adequately describe the nature of the grounds for relief being sought. I will deal with each of these grounds in turn.

Ground 1(a): Jurisdictional error by reason of failure to take into account relevant considerations, namely evidence given at first hearing

The applicant complained that the Tribunal had not taken into account any evidence which he gave at the first hearing. He argued that this constituted a jurisdictional error because the Tribunal failed to take into account relevant considerations which it was bound to take into account. I cannot accept this argument for a number of reasons. The first reason is that the Tribunal is not bound to take into account or to hear the record of the first hearing. It may do so (s.422(2)) but it is not obliged to do so. The Tribunal’s discretion on this matter seems to me to be absolute so long as it is made in good faith. In this particular case a valid reason can be implied from the transcript annexed to the affidavit of Damien Charles Spruce filed on 18 July 2003 whereat on page 2 of the transcript of the second hearing the Tribunal says:
“Now I have read the claims in your file. Okay. I briefed myself as to your claims. I have researched the background to your claims through independent sources. Some questions formed in my mind. It became necessary to ask you these questions to seek clarification from you on a couple of things. Okay, now because of the nature of the last hearing and because of your view that there wasn’t a clean and clear line of communication I didn’t listen to the tapes of that hearing. Okay, so my mind is not polluted by any misunderstandings in that last hearing. Okay. But I will still need to ask you some questions today based on the issues that I’ve read about in your file. Okay.
Now I may put to you information from different sources. And some of that information might challenge some of your claims. Now if I put such positions to you it doesn’t mean that I am inclining to accept them or that I am inclining to make a decision against you. It’s true I have been unable to make a decision favourable to you up to this point but that doesn’t mean that I’m already deciding against you. Now, so your responses to the things that I put to you will be important.”
I infer from this quotation that the Tribunal considered it unsafe to utilise or listen to the first Tribunal tape or transcript because of the very interpretational difficulties that had led to the first hearing being abandoned.
The other reason why I believe there was no jurisdictional error in the Tribunal’s actions was that it is not the transcript of the proceedings that constitute the relevant information. It is the information given in those proceedings. If the applicant thought that the Tribunal had not had regard to a relevant matter which he had raised before the first Tribunal then he should either have raised it during the hearing or raised it when he was given a post hearing opportunity to provide further representations. Furthermore, the applicant should have identified the material before me. If I am not told what the material is how can I decide whether or not it is relevant? How can I possibly decide whether it is relevant in a Craig sense? I am of the view that this ground is misconceived.

Ground 1(b): Jurisdictional error by reason of failure to take into account a central claim of discrimination and persecution by reason of being a UNITA collaborator.

The gravamen of this submission was that in its description of the applicant’s claims the Tribunal made no reference to the separation of prisoners or to the use of the cage rather than a prison for some prisoners. [CB 97, 103]. The applicant argues that the Tribunal made no finding as to whether it had accepted or rejected the applicant’s claim relating to his separation and the use of the cage, but that this fact in issue was central to his claim that he was singled out for discriminatory treatment by reason of his acting as a UNITA collaborator. The applicant argues that this was a relevant consideration the Tribunal was bound to take into account.
The Tribunal is not obliged to specifically deal with every item of evidence in its reasons: Muralidharan v Minister for Immigration (1996) 62 FCR 402 at 414 per Sackville J; Minister for Immigration v Guo (1997) 191 CLR 559 at 593 per Kirby J; Minister for Immigration v Yusuf (2001) 206 CLR 323 at [67-68]. It does not follow that because the Tribunal has not mentioned the matter in its reasons it has failed to consider it: Steed v Minister for Immigration (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration (1998) 56 ALD 167 at 173.
Even if I was to accept that the Tribunal did not take this matter into account and that it indicated a more serious view of the applicant by the government forces than they would have applied to an ordinary UNITA camp follower, that would seem to be overcome by the finding of the Tribunal that because of the peace which now exists between UNITA and the government forces and the efforts at co-operation between them that are being made, the applicant has nothing to fear. The Tribunal does not qualify its views on this matter in any way that would affect the applicant. I do not think that this ground for review can succeed.

Ground 1(c) Jurisdictional error by reason of taking into account the irrelevant consideration of present government policy with regard to obtaining food for people in Angola.

The passage in the Tribunal’s reasons which is impugned by this ground is as follows:
“In any event, much that is central to the Applicant’s claims is now moot because, as independent reports show, events in Angola have rapidly and substantially moved on since he left that country, however much it may still be the scene of widespread hardship. Very significantly, the April 2002 peace accord has ended the enmity between UNITA and the government and led to much co-operation between them in cleaning up the damage of the war. What the Applicant claims he was accused of, i.e. writing letters in French, seeking food (not even arms) is now something that the government itself has embraced as a duty towards all those affected by the war, and notably including people who formerly worked and fought for UNITA or who lived under its control; also, like the Applicant, in his day, the Angolan government has called for international assistance as well.”
The applicant argues that the present policy of the Angolan government
with regard to the provision of food was not relevant to the question whether the government regarded the applicant as a person who had collaborated with UNITA during the war. The question for the Tribunal was whether the applicant would be persecuted for his collaboration, not whether the policies of UNITA and the present government coincided with regard to feeding people in Angola. I think there is much sense in this argument, but I do not consider the claim to which it related to be one of the integers of the decision. The Tribunal has come to the conclusion that UNITA sympathisers are no longer at risk of persecution if they returned to their homeland. All that a “correct” finding on this point would have done would have been to confirm the Tribunal in its view that the applicant was a UNITA sympathiser. The Tribunal has never suggested otherwise. The respondent has argued that the relevant section could be read as indicating that the view of the government upon the applicant’s return would be favourable to him because all he was doing for UNITA was what the government and UNITA were now doing for themselves.

I think this is certainly arguable. I cannot accept this ground as one which would justify review.

Ground 1(d): Jurisdictional error by reason of error of law in making finding as to political situation in Angola after ceasefire for which there was no evidence

The point the applicant makes here is that there is a splinter organisation of UNITA called “Renovada” which had refused to co-operate in reunification and remained outside the peace process. References to this ground are found at [CB 63, 80 (where there is reference to hostilities in Cabinda brought about by this group), 121, 126 (reference to Cabinda)]. It is mentioned by the Tribunal in its reasons for decision at [CB 103, 106]. The Tribunal dismissed any danger from this Renovada group. The applicant made the point that Renovada was currently UNITA and the Tribunal should have looked at the applicant’s fear of UNITA as being a fear of Renovada. He also argued that the applicant had given the Tribunal information which the Tribunal did not look at. In this regard reference is made to the submissions of the applicant’s advisers found at [CB 63 footnote 7].
I have problems with this submission. Firstly, it is the applicant’s duty to make his own case. The function of the Tribunal is to respond to the case that the applicant advances: Dranichnikov v Minister for Immigration [2003] HCA 26 at [78] and the Tribunal is not required to consider claims that have not been made: SCAL v Minister for Immigration [2003] FCA 548 at [16]. It is for the applicant to make out his own claim. Procedural fairness does not require the RRT to assist him to make his case: Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [265]-[266] per Hayne J; SBBA v Minister for Immigration [2003] FCAFC 90. This would include a case that the applicant had a fear of Renovada. If it was a serious matter which went to the very root of the applicant’s fear then one might have expected more than the limited references to it that were made.
Secondly, the applicant argues that there is no evidence upon which

the Tribunal came to its conclusion that the anti ceasefire faction Renovada is:
“Reportedly quite small, isolated and ineffective.”
The use of the word “reportedly” would seem to indicate that the Tribunal had utilised country information (possibly the very information which the applicant suggested he look at). It might be using information which has come to it in the past by virtue of its expertise in Angolan affairs. There is no obligation on the Tribunal to put every piece of country information to an applicant: Minister for Immigration v Al-Shamry (2001) 110 FCR 27. This is not a case whether the applicant was making a large submission about Renovada and his particular fear of them and how this would affect him personally. I am not satisfied that the applicant can make out a ‘no evidence’ submission which would fall within the dicta of the High Court in Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 or the Full Court in Minister for Immigration v Rajamanikkam (2002) 190 ALR 402. In any event the application of those principles to this type of case must be in doubt since Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 where at [57] Gleeson CJ said:
“The Minister's reliance upon what was said by Mason CJ in Australian Broadcasting Tribunal v Bond [27] was misplaced. Mason CJ there was construing those of the grounds of review of decisions, specified in s.5 of the ADJR Act, in particular that the decision "involved an error of law", which might embrace complaints as to fact finding. The Court was not considering notions of jurisdictional error elaborated in the decisions given under s.75(v) of the Constitution. Section 5 is constructed with a scope which spans more than jurisdictional error. Thus, for example, it is a ground under s.5(1) that "the decision involved an error of law" (par (f)), yet as Muin v Refugee Review Tribunal [28] illustrates, there may be errors of law within jurisdiction and so beyond the constitutional writs. In any event, as the judgments in Minister for Immigration and Multicultural Affairs v Rajamanikkam [29] illustrate, what was said in Bond respecting erroneous fact finding and review under s.5 of the ADJR Act may give rise to differences of opinion in this Court.”

Ground 1(e): Jurisdictional error by reason of Wednesbury unreasonable decision

In his submissions on this point Mr Reilly for the respondent says this:
“Ground 1(e) claims that the Tribunal’s decision was Wednesbury unreasonable in that it did not seek out information on Bakongos despite it being readily available as internet references in the submissions at RD 74-80. Even assuming that such a ground of review is available, it has been stressed that the circumstances giving rise to it will be rare: Foxtel Management Pty Ltd v ACCC (2000) 173 ALR 362 (FCA/Wilcox J) at [214]. The Tribunal states at RD 105.6 that it could find no evidence of Bakongos facing discrimination amounting to persecution in postwar Angola and the applicant’s own claims were to the contrary. The applicant has not identified any part of the submissions at RD 74-80 that is relevant to this issue, or attempted to show that any of the internet references there contained are relevant or even accessible. If there was a particularly relevant piece of information about Bakongos on the internet that the Applicant wished the Tribunal to consider it could have been provided in full, as the attachments at RD 81-82 were. The Tribunal is not obliged to consult every internet reference in general country provided by an applicant in these circumstances. Moreover there is again no support in the authorities that a failure to make in inquiries can be a jurisdictional error, and the fact that s 424(1) of the Act has been held to be a power rather than a duty (see para 7 above) suggests that there can be no such jurisdictional error in this statutory context. This ground is not made out.”
I respectfully adopt these submissions. The applicant relies heavily on the decision of Prasad v Minister for Immigration (1985) 6 FCR 155 but I am not satisfied that what is alleged here constitutes an obvious omission or obscurity which needs to be resolved before a decision is made, which is an essential requirement before relief of this type can be granted. In any event, the Tribunal did come to a finding about the applicant’s Bakongo ethnicity. It found that the applicant was, on his own evidence, able to persuade a Bakongo person working at the airport to facilitate his departure. This indicated that the Bakongo people were not discriminated against or persecuted in the way of employment. It found the applicant had himself lived some time in Angola without persecution on those grounds and had received a passport which he was allowed to utilise notwithstanding his ethnicity. These matters were sufficient for the Tribunal to come to the conclusion which it did concerning his fear of persecution by reason of ethnicity without it falling into jurisdictional error.

Ground 1(f): The tribunal’s constructive failure to exercise jurisdiction by reason of its failure to ask itself the question whether the applicant had a well founded fear of persecution by UNITA

This submission also relates to Renovada and Renovada being what is left of UNITA. I have previously indicated that I am not satisfied that the applicant made a specific allegation that he feared Renovada. He did make an allegation that he feared the major who had killed his father but that matter is dealt with by the Tribunal at [CB 106]. The Tribunal is not required to deal with a claim which is not made; Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 195 ALR 1.

Ground 2(b): Denial of procedural fairness by reason of failure to disclose country information taken into account adversely to the applicant

Insofar as this ground relates to UNITA other than Renovada I am satisfied that matters relating to that organisation were sufficiently discussed by the Tribunal with the applicant at T14-17. Insofar as it relates to the Renovada allegations I have already stated that there is no absolute duty on the Tribunal to put every single piece of country information to the applicant. Finally, even if the Tribunal did fall into error by not putting this information to the applicant the applicant has not provided the evidence required to indicate what he would have done if the Tribunal had disclosed the relevant country information: SBBS v Minister for Immigration (2002) 194 ALR 749; Lam v Minister for Immigration (2003) 195 ALR 502.

Ground 2(e), (f), (g): The Tribunal’s failure to comply with s.424A of the Act

Section 424A(1)(a) of the Act is in the following form:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
The matters which the applicant says are in breach of this sub-section are:
a)The Tribunal’s failure to put to the applicant that it disbelieved his evidence that the accusation made by the other prisoner would not constitute evidence in the hands of the Angolan Government which would be used to bring a prosecution against him for collaborating with UNITA;
b)The Tribunal failed to put to the applicant that the stamps and entry permits in his Angolan passport were genuine and therefore indicated he travelled in March and April 2001;
c)The Tribunal failed to put to the applicant that it found troubling that two pages were missing from his Angolan passport, which had contained his visa to Portugal but made a finding to that effect;
d)The Tribunal failed to put to the applicant that he did not apply for protection in Portugal or France or anywhere else in Europe because at that time protection outside Angola was not his priority but made a finding to that effect;
e)The Tribunal failed to put to the applicant that he appeared to have a range of personal abilities, qualities and resources, in particular the financial ability to travel from Angola to France but made a finding to that effect, implying that he was not in need of protection; unformed
f)The Tribunal failed to put to the applicant that he did not apply for protection in Portugal or France or anywhere else in Europe because at that time protection outside Angola was not his priority, but made a finding to that effect.
g)The Tribunal failed to put to the applicant that there was no country information showing that Bakongo or African people suffered discrimination in Portugal, but made a finding to that effect.
I believe these submissions misunderstand the meaning and purport of s.424A. That section requires the disclosure of information personal to the applicant that the Tribunal relies upon and was not provided by the applicant for the purposes of the review. “Information” does not include the Tribunal’s reasoning processes or potential factual conclusions: VAAN v Minister for Immigration (2002) FCAFC 120 at [13]; WAGP of 2002 v Minister for Immigration [2002] FCAFC 266. There is no obligation to inform an applicant that aspects of his claim may not be believed: Abebe v The Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. The Tribunal does not come to immediate conclusions. It sorts through the evidence before it and then makes appropriate findings. Some of those findings may crystallise at a hearing. Others may not crystallise for weeks thereafter. There cannot possibly be any requirement to put to an applicant unformed thoughts. The applicant argues that the Tribunal has a duty to inform the applicant of matters which are of concern to it. The matters about which the applicant complains here are not matters of concern but are purely findings. I cannot see that the Tribunal has fallen into error in the manner in which it dealt with them.
In all the circumstances I am unable to accept that this is a matter

in which review should be granted. I dismiss the application.

A considerable amount of work has gone into the preparation of the applicant’s case. I suspect he may have been in receipt of pro-bono assistance. If that is what occurred then the Court is grateful to those who have provided it. However, I can see that all this work would have necessitated additional efforts on the part of those acting for the respondent and my assessment of costs pursuant to the Federal Magistrates Court Rules Part 21 Rule 21.02(2)(a) in the sum of $5,250.00 reflects this.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: