SZAKP v Minister for Immigration
[2004] FMCA 192
•30 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKP & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 192 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious persecution in Bangladesh – whether the RRT was biased and acted in bad faith – whether the RRT hearing was fair – whether the RRT overlooked a relevant consideration – whether the second applicant made persecution claims of her own which were overlooked by the RRT. |
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 422B, 424, 427, 428, 430
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration v Yusuf (2001) 206 CLR 323
NABC v Minister for Immigration [2003] FCAFC 317
NACC v Minister for Immigration [2002] FCA 333
Paul v Minister for Immigration (2001) 113 FCR 396
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Steed v Minister for Immigration (1981) 37 ALR 620
WAHK v Minister for Immigration [2004] FCAFC 12
| First Applicant: Second Applicant: | SZAKP SZAKQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ642 of 2003 |
| Delivered on: | 30 June 2004 |
| Delivered at: | Sydney |
| Hearing date: Date last submissions received: | 25 March 2004 27 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Applicant SZAKQ is appointed as litigation guardian of SZAKR and SZAKS pursuant to Division 11.2 of the Federal Magistrates Court Rules 2001 (Cth).
Applicant SZAKQ is relieved of the obligation to file an affidavit of consent or to serve written notice of her appointment on the respondent.
The application is dismissed.
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ642 of 2003
| SZAKP, SZAKQ, SZAKR, SZAKS |
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 12 March 2003 and handed down on 3 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are four applicants, a husband, his wife and their two children. With her consent, I appointed the second applicant (the applicant wife, SZAKQ) the litigation guardian of the two child applicants.
The relevant background facts and circumstances are set out in written submissions prepared on behalf of the Minister by Mr Kennett and filed on 23 March 2004. I adopt paragraphs 1 through to 9 of those written submissions for the purposes of this judgment:
The applicants are citizens of Bangladesh who arrived in Australia on 5 January 2000. On 25 January 2000 they applied for protection visas and this application was rejected by a delegate of the Minister on 8 February 2000. On 29 February 2000 they applied for review of that decision by the RRT (court book, page 203).
On 3 April 2003 the RRT handed down its decision affirming the decision of the delegate (court book, page 202).
The applicants are a married couple and their children. Only the husband (SZAKP) made his own claim to be a refugee, although there were arguments before the RRT that his wife had suffered discrimination in her employment.[1]
SZAKP advanced claims in two areas.[2] The RRT accepted that some of his and his wife’s evidence was true, but concluded that some aspects of his account were significantly exaggerated and embellished (court book, page 224).
First, he said that he was a Christian and had been active in an organisation known as HBCOP, promoting the rights of religious minorities. The RRT accepted that the applicants were Christians and that SZAKP had been attacked during the [first] Gulf War, but concluded that Christians were able to practise their religion without restriction and were not denied State protection against such attacks (court book, page 225). As to his involvement in HBCOP, the RRT accepted that he had been a member but considered that he had exaggerated his level of involvement (court book, page 225-226). Even if he had been more involved than was suggested by evidence obtained from a leader of the organisation, the independent evidence did not suggest that involvement in such groups led to a well founded fear of persecution.
Secondly, SZAKP claimed that his nephew had married a Muslim woman and as a result SZAKP experienced problems including legal proceedings and physical assaults. The RRT accepted that the marriage had occurred and that there had been legal proceedings, in which SZAKP attended court (court book, pages 226-227). However, his claims of being a target for attacks were not supported by other evidence and the RRT found them implausible in several respects (court book, pages 227-229). The RRT did not accept the claim that his sister’s house had been attacked but thought that, if it had, this was essentially because of SZAKP’s involvement in the affairs of his nephew and his nephew’s wife rather than because of his religion or because he was perceived as having converted his nephew’s wife to Christianity (court book, pages 228-229).
Finally, the RRT accepted SZAKP’s claim that he had been attacked on a bus. However, he was not the only person on the bus who was threatened, and the RRT concluded that this was a random criminal attack rather than something connected with his religion.
Overall, the RRT was not satisfied that SZAKP had been attacked because of his religion or because he was perceived as having converted his nephew’s wife to Christianity (court book, page 229). It thought that the chance of him being attacked on return to Bangladesh was remote, and that the applicants would be able to practise their religion freely there (court book, page 230). It also concluded, based on the timing of the family’s departure from Bangladesh, that he did not have a subjective fear of persecution there (court book, pages 229-230).
Accordingly the RRT was not satisfied that SZAKP was a person to whom Australia had protection obligations under the Refugees Convention (court book, page 230).
[1] The RRT dealt with these at court book, pages 224-225, 226.
[2] The RRT identified three headings at court book, page 224, but dealt with the second and third together at court book, pages 226-229.
The applicants rely upon an amended application filed on 30 September 2003. The manner of expression of the grounds in it suggests that they might have obtained those grounds from someone else. In part, those grounds contest the merits of the RRT decision. As I explained to the first and second applicants, it is not the function of the Court to review the merits.
The amended application is supported by written submissions filed by the applicants on 22 March 2004. I also received oral submissions from the second applicant, who speaks English quite well. The first and second applicants were assisted by an interpreter, but the second applicant elected to speak in English on behalf of both of them with only occasional assistance from the interpreter.
Reading the amended application and written submissions beneficially, and taking into account the second applicant’s oral submissions, I accept that the applicants reasonably raise the following issues:
a)whether the presiding member of the RRT was biased and acted otherwise than in good faith;
b)whether the RRT failed to take into account a relevant consideration;
c)whether the RRT proceeding was fair; and
d)whether the RRT erred in misunderstanding the applicant’s claims and the applicable law.
Reasoning
I accept and adopt Mr Kennett’s written submissions concerning the claim of actual bias and lack of bona fides set out in paragraph 11 of his written submissions:
The claims of actual bias and lack of bona fides are advanced in the applicants’ written submissions (paragraphs 23, 24). First, it is suggested that the RRT believed in a “fallacy” that people who enter Australia legally cannot have a valid claim of genuine fear of persecution (paragraph 23). The RRT’s reasons do not suggest any such belief. The RRT did treat the fact that the applicants had waited for six weeks after obtaining visas for Australia before leaving Bangladesh as indicative of an absence of urgency (and hence a lack of fear of persecution) (court book, pages 229-230). But that reasoning did not have anything to do with whether the applicants had entered Australia legally, and did not reflect any predetermined view of their case.
The second applicant gave me to understand that if I listened to part of the last of six tapes of the two hearings before the RRT that were conducted I would be concerned about part of the questioning process engaged in by the presiding member. I declined to listen to the tapes, but gave the applicant the opportunity to submit a transcript to the respondent by 27 April 2004, to be verified by the Minister’s Department, of what the applicants say is the relevant part. I ordered that the verified transcript was to be filed by both parties, together with submissions, by 28 May 2004. Submissions have been filed as well as a transcript of part of the hearing tapes, verified by an interpreter but not the respondent. In his further written submissions filed on 27 May 2004 Mr Kennett does not contest the accuracy of the partial transcript filed on 27 April 2004.
The first applicant, in his further written submissions, asserts that bad faith is evident in “every line of the transcript of the tapes”. I see no such thing. I agree with and adopt paragraphs 5 to 7 of Mr Kennett’s further written submissions on this point:
The transcripts provide no support for an allegation of bias (actual or apprehended) or bad faith on the part of the RRT. The transcripts merely show the presiding member asking the applicants questions about their claims and (properly) putting to them concerns about the credibility of those claims.
The applicants’ further submissions attempt to infer bad faith from conclusions of the RRT which (they contend) misunderstood the evidence or were factually wrong. A mere error(of fact or of law) is not a sufficient basis for a conclusion of bad faith or actual bias. The material does not begin to demonstrate that the presiding member was not making a bona fide attempt to decide the matter on its merits and according to law.
The applicants then seem to convert their claim of bad faith into an argument that the RRT should have raised with them its proposed conclusion in relation to a particular incident. This claim is outside the scope of anything alleged hitherto, and of the leave granted by the Court. In any event, it cannot succeed. Whether the harm suffered by the applicants in the past was attributable to a Convention reason was an issue that obviously needed to be considered, in the light of the criterion which the RRT was required to apply. The RRT was not obliged to remind them of that issue and invite their further attention to it.
The procedural fairness issue was not pursued in the applicants’ initial written submissions, but the second applicant made oral submissions about it. She asserts that the RRT had available to it information favourable to the applicants’ case which the RRT did not give the applicants the opportunity to comment on. I find that there was no breach of procedural fairness in relation to such information. I asked the second applicant if there was any material adverse to the applicants’ claims which they were not given the opportunity to comment on. The second applicant referred to the approach made by the RRT to Professor Manik Gomez by telephone on 6 September 2002 (court book, pages 213-214). However, it is clear that that information was put to the principal applicant (court book, page 216).
I find that the applicants have failed to establish any procedural unfairness in the RRT proceedings.
The applicants assert that the RRT failed to take into account relevant material but the applicants’ initial written and oral submissions do not establish that. It appears to me from the record of the RRT proceedings that all of the claims made by the principal applicant were taken into account by the RRT. In her oral submissions, the second applicant expressed concern that a supportive e-mail dated 1 September 2002 from Mr Timothy A Faircross, Chairman, Christian Businessmens Committee, Bangladesh (court book, pages 149-150). The e-mail was clearly before the RRT and was referred to by the presiding member on pages 208 and 214 of the court book. While other supportive correspondence was referred to by the presiding member in the latter part of her reasons, disclosing her reasoning process, there is no reference to the Faircross e-mail after the heading, “Findings and Reasons”. It does not follow, however, that the e-mail was not taken into account: Steed v Minister for Immigration (1981) 37 ALR 620 at 621 per Fox J. The presiding member may have considered that the statements made in the e-mail did not have a sufficiently strong bearing on the outcome of the applications to merit specific consideration. There is no obligation on the RRT to specifically consider each and every item of evidence having some bearing on an element or integer on the applicants’ claims. The obligation is to consider all elements or integers of those claims: Paul v Minister for Immigration (2001) 113 FCR 396 at [78]-[79].
I invited further submissions from the parties and any relevant transcript of the hearing on this point. The first applicant submits that there is “not a shred of evidence” that the RRT took the Faircross e-mail into account. He asserts that the RRT deliberately tried to hide the e-mail. I reject that submission. I agree with, and adopt paragraphs 8 to 10 of Mr Kennet’s further written submissions:
The Faircross e-mail (court book, page 149) is not discussed in the transcripts. However, that does not establish any relevant error by the RRT.
i)As noted above, the transcripts are not complete. A partial transcript of the hearings would not be proper basis for concluding that the Faircross e-mail was not discussed during the hearings. It is for the applicants to establish the error they assert.
ii)Even if the e-mail was not discussed at the hearing, it does not follow that it was not considered by the RRT.
Looking more broadly at the evidence before the Court, the proper inference is that the RRT read and considered the Faircross e-mail. The e-mail was sent by Mr Faircross to a member of the RRT’s staff in response to a request for information, and passed on to the presiding member as part of a response to his “research request” (court book, pages 143-144). The RRT summarised the contents of the e-mail in its reasons (court book, page 214). The proper inference is that the presiding member (who presumably wrote those reasons) read the e-mail and considered it.
i)Since the e-mail was broadly supportive of the applicants’ claims, it would not be surprising if the presiding member had not seen a need to raise its contents with the applicants during the hearing.
ii)An absence of specific reference to the e-mail in the section of the RRT’s reasons headed “Findings and reasons” does not indicate a failure to consider the e-mail. The RRT is not obliged to give a line by line refutation of evidence it does not accept. In any event, the Faircross e-mail may well have been a part of the “evidence before me”, referred to by the RRT, which “does not support the applicant’s assertion that he was perceived as playing any part in encouraging his nephew’s wife’s marriage or religious conversion”.[3]
Even if the RRT had overlooked this item of evidence, it would not follow that it had fallen into jurisdictional error. An omission of that kind would not amount to failing to take into account a relevant consideration.[4] Nor would it entail an absence of probative material sufficient to raise an issue as to whether the RRT had addressed the matters it was required to address.[5]
[3] Court book, page 227 (emphasis added). Cf. The terms of the e-mail at court book, page 149 and the summary of it at court book, page 214
[4] Minister for Immigration v Yusuf (2001) 206 CLR 323, 348 [74] per McHugh, Gummow and Hayne JJ
[5] Cf. Re Minister for Immigraiton; ex parte Applicant S20/2002 (2003) 198 ALR 59, 67 [36] per McHugh and Gummow JJ
The fourth issue of substance arising from this application was whether the RRT erred in its consideration of the claims made in relation to the second applicant (the applicant wife). All relevant claims were made by the applicant husband (the first applicant) and the other applicants only joined in his application as members of his family (court book, pages 3-37). However, in paragraphs 26 and 27 of the first applicant’s statement, he made claims relating to harm alleged to have been suffered by his wife which stood alone. I note that the RRT conducted two hearings on 27 August 2002 and 5 February 2003. Only the applicant husband gave evidence at the first hearing, but both the applicant husband and the applicant wife gave evidence at the second hearing (court book, page 205). On page 224 and 225 of the court book the presiding member states:
In his statement the applicant husband also claimed that his wife had had problems in her employment because of her Christianity and her sex. The applicant wife did not make any claims of her own to refugee status and did not fill in Form C of the protection visa application form. However, for the sake of completeness I will deal with the claims made relating to the applicant wife.
The presiding member considers those claims on page 226 of the court book:
The applicant also claims that his wife had problems in her employment in Bangladesh. I accept that the applicant’s wife had problems with her supervisors at World Vision and that she left that job because of her problems. I accept also that the applicant’s supervisor at her UN job thought that women should stay home and not be in the workforce. However, the applicant wife indicated that she had worked for the UN for some seven years prior to leaving Bangladesh for Australia. She took leave from this position to travel to Australia. The applicant wife was clearly able to obtain and maintain employment in Bangladesh notwithstanding her gender, her religion and he supervisor’s view on women in the workforce. The evidence before me does not suggest that the applicant wife was seriously mistreated in the workforce or otherwise seriously mistreated because of her gender, her religion or any other Convention reason.
The presiding member then went through the remaining claims made on behalf of the applicant husband and concluded that he did not have a well-founded fear of persecution. She said (court book, page 230):
The other applicants have not made any specific claims to refugee status beyond those articulated in the applicant husband’s statement. I have made findings in relation to these claims above. I am not satisfied that any of the claims made by the applicant husband either on his own behalf or on behalf of his wife and children give rise to a well-founded fear of persecution for a Convention reason.
The presiding member went on:
Having considered the evidence as a whole, I am not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The first named applicant therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
No specific Convention claims were made by or on behalf of the applicant wife and children beyond those set out in the applicant husband’s statement, and there is no basis on which I can be satisfied that they are refugees. The fate of their application therefore depends on the outcome of the first named applicant’s application. As I have found that the first named applicant does not satisfy the criteria for a protection visa, it follows that the applicant wife and children cannot be granted a protection visa.
I invited further submissions from the parties on the question of whether the RRT erred in these findings. I also invited the second applicant to identify and provide written transcript of any part of the RRT hearing which she thought had a bearing on this question. The transcript extracts provided by the applicants do not assist. There is nothing in them to indicate that SZAKQ was making a refugee claim in her own right. The first applicant now asserts that not only did the RRT err in failing to treat his wife’s claims as independent, but also that it should have considered the claims of his son separately, and that the treatment of both claims was procedurally unfair. I reject those submissions. I agree with and adopt paragraphs 12 to 15 of Mr Kennett’s written submissions:
Applicant SZAKQ did not apply for a visa on the footing that she was a “refugee” within the meaning of the Refugees Convention or articulate any claim to that effect. Nor (so far as the material shows) was a claim in those terms advanced on her behalf. The RRT was not obliged “to reach a state of satisfaction (or otherwise) respecting criteria which the [applicant] did not advance”.[6]
The RRT noted that position (court book, pages 224-225) but, nevertheless, gave some attention to the adverse treatment which (it was claimed) Applicant SZAKQ had experienced. It accepted that she had had difficulties but did not regard her as having been “seriously mistreated” for any Convention reason (court book, page 226). If (contrary to the previous paragraph) this was an issue the RRT was obliged to deal with, its consideration of the issue was unexceptionable. NABC v Minister for Immigration [2003] FCAFC 317 cited by the applicants, does not contain any suggestion to the contrary.[7]
The RRT also noted a claim advanced by applicant SZAKP that his son (applicant SZAKR) had been bullied at school because of his religion (court book, page 226). Again, no application was made by or on behalf of applicant SZAKR on the basis that he was a “refugee” in his own right. However, the RRT dealt with the claim that SZAKR had been harmed because of his religion and concluded that he did not face “serious mistreatment” for a Convention reason in Bangladesh.
The applicants’ attempt to convert this compliant into an issue of procedural fairness cannot succeed.
i)Whether or not applicants SZAKQ and SZAKR claimed to be refugees in their own right could not possibly be part of the reason for affirming the delegate’s decision that applicant SZAKP was not a refugee.
ii)To the extent that the actual experiences of SZAKQ and SZAKR were relevant to SZAKP’s claims (which is not obvious), those matters were dealt with by the RRT. In this regard the RRT was assessing the material which the applicants had put forward and was not obliged to discuss its thought processes with them.[8]
[6] Re Minister for Immigration; ex parte Applicants S134/2002 (2003) 211 CLR 441, 457 [32]
[7] The grounds of review in that case relating to whether particular harm amounted to persecution were not considered: see [17]-[18], [103]
[8] See eg Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591
Notwithstanding that no leave was granted to do so, the first applicant now seeks to raise other matters in his further written submissions. He asserts that there were interpretation problems at the hearing and that the decision of the RRT is inconsistent with other decisions and further asserts general “errors of law”. Mr Kennett deals with those matters in paragraphs 16 to 21 of his further written submissions. I agree with and adopt those paragraphs for the purposes of this judgment:
Interpreting during the hearing
The applicants have not hitherto alleged that any jurisdictional error arose from practical difficulties or inadequacies in interpreting during the RRT hearing. They should not be allowed to do so at this late stage. The issue was not among those upon which the Court gave leave for further submissions to be made, and the respondent has not had a proper opportunity to lead evidence in response to the allegations of poor interpreting.
In any event, even if the evidence of Mr Faisal is accepted, the errors pointed to were relatively minor. They have not been shown to have deprived the applicants of a proper opportunity to give their evidence, or contributed materially to adverse conclusions against the applicants.[9] (If the Court were inclined to accept that errors in interpretation had affected the decision in one of these ways, further argument would be necessary).
[9] see the cases referred to in Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]
Other decisions of the RRT
As was pointed out in the Minister’s earlier written submissions, (para 18) each case that comes before the RRT must be decided on the material before the RRT in that case. The outcome of each case depends on whether the RRT, as constituted in that case, reaches the required state of satisfaction. Decisions in other cases are in no sense binding.
Section 427(2) of the Migration Act has no bearing on this issue. That provision applies where there are two or more reviewable decisions in relation to the same non-citizen – not where two or more reviews in relation to different applicants concern prima facie similar factual situations.
“More errors of law”
These matters are also beyond the scope of anything alleged by the applicants in their application or primary submissions, and beyond the scope of the leave granted for further submissions. They should not be entertained
In any event these matters are without substance.
(1)The RRT considered whether applicant SZAKP faced a real chance of persecution in Bangladesh on account of his religion. It did not distinguish between harm inflicted by governmental agencies and others. Its decision was entirely consistent with WAHK v Minister for Immigration [2004] FCAFC 12, cited by the applicants.
(2)For reasons outlined above, the issue whether any harm suffered by the son amounted to persecution did not arise. If it did arise, no error is apparent in the way the RRT dealt with it.
(3)The finding that the incident of December 1999 was a “random criminal act” was a conclusion of fact which the RRT was entitled to reach. That conclusion was inconsistent with the incident constituting harm suffered by SZAKP as a result of his religion. As noted above, NABC has no bearing on this issue.
(4)The fourth matter raised under this heading relates only to the merits of the decision.
Any other issues remaining in the amended application and submissions by the applicants are adequately dealt with at paragraphs 13 to 18 of Mr Kennett’s initial written submissions. I adopt those paragraphs for the purposes of this judgment:
… several further arguments are advanced, as follows:
(a)the RRT failed to comply with s.430 of the Migration Act 1958 (Cth) (“the Migration Act”); (paragraphs 18-19, 32)
(b)the RRT did not consider a submission from the applicants’ adviser, and thereby failed to comply with ss. 422B and 424;(paragraph 20)
(c)the RRT did not undertake sufficient research into religious persecution in Bangladesh and thereby failed to comply with s.424; (paragraph 21)
(d)submissions are made about the nature of a “particular social group” in the Refugees Convention, but without identifying any error by the RRT (paragraph 27) (in any event the applicants’ claims were squarely based on religion and did not raise any issue as to membership of a “particular social group”);
(e)a “failure to make findings as to credible material … necessarily disabled the RRT from applying the ‘real chance’ test in accordance with law to the facts”;(paragraph 28)
(f)the RRT breached s.428(2); (paragraph 31)
(g)various other attacks on the merits of the decision. (paragraphs 21, 29, 30)
The RRT clearly complied with s.430(1) of the Migration Act. Where it rejected aspects of SZAKP’s account, it explained that rejection by reference to contradictory material and aspects of the account which it found implausible. Section 430 did not require it to give a detailed refutation of the evidence which it chose not to accept.[10] In any event, failure to give reasons for a decision that has been made, in the form required by s.430, is neither a failure to observe a “procedure” in connection with the making of the decision[11] nor an error leading to the invalidity of the decision.[12]
There was no breach of s.422B or s.424. The former provision serves only to limit the RRT’s obligations of procedural fairness. The latter (together with s.427(1)(d)) confers a power on the RRT to obtain information of its own motion. Thus, s.424(1) is not the source of the RRT’s obligation to consider material put before it by an applicant or his or her adviser. In any event, there was no breach of that obligation. The fact that the RRT does not refer to particular material does not mean that the material was not considered.
Nor does s.424(1) give rise to an obligation on the RRT to exercise its information-gathering power, or to exercise it in a particular way.[13]
The RRT did not “fail to make findings” in any sense that was relevant to the validity of its decision. It carefully examined each element of SZAKP’s claims and noted those which it accepted and those which it did not. It reached two conclusions based on that analysis: first, that SZAKP did not have a subjective fear of persecution in Bangladesh (which was itself sufficient to dispose of his claim); and secondly, that the chances of him being attacked by reason of his religion were remote.
The complaint referring to s.428(2) appears to be that the RRT did not have regard to its own decisions in cases similar to that of SZAKP.[14] First, s.428(2) does not have any bearing on that issue. It is part of the provisions conferring power on the RRT to authorise a person to take evidence on its behalf. Secondly, each case which comes before the RRT depends on its own facts and on the RRT (as constituted in that case) reaching the appropriate degree of satisfaction. The RRT’s decisions are in no sense binding upon it.
[10] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, 422-423 [64]-[65].
[11] See Minister for v Yusuf (2001) 206 CLR 323, 349 [77] per McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing at 329 [1]).
[12] Durairajasingham 168 ALR at 423-424 [68]-[70].
[13] See e.g. NACC v Minister for Immigration [2002] FCA 333.
[14] Applicants’ written submissions para.31.
On 4 June 2004 the applicants filed a further amended application in the court registry. The applicants had no leave to further amend their application and had not sought such leave. The hearing on 25 March 2004 had been conducted on the basis of the earlier amended application filed on 30 September 2003. The applicants were given by leave a limited opportunity to file additional material directed to the three issues referred to earlier in these reasons and took that opportunity. I decided not to have regard to the further amended application on the basis that to do so would be unfairly prejudicial to the respondent. My associate so advised the parties in writing on 16 June 2004.
There is no jurisdictional error in the decision of the RRT. The decision is privative clause decision. Accordingly, the application must be dismissed.
I will award costs to the Minister, fixed in the sum of $7,000. Substantial preparation has been required of the Minister to deal with the many issues raised by the applicants, both before and after the hearing on 25 March 2004. This was not a routine or simple matter and a higher than average costs order is properly called for.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 30 June 2004
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