SZBFD v Minister for Immigration

[2005] FMCA 139

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFD v MINISTER FOR IMMIGRATION [2005] FMCA 139

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in Bangladesh – whether the RRT hearing was fair considered – whether the RRT breached s.425 of the Migration Act 1958 (Cth) considered – application of s.422B of the Migration Act considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.51A, 422B, 424A, 425, 474

Annetts v McCann (1990) 170 CLR 596
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Hussein v Minister for Immigration [1999] FCA 288
Kioa v West (1985) 159 CLR 550
Meadows v Minister for Immigration (!998) 90 FCR 370
Moradian v Minister for Immigration [2004] FCA 1590
NAOA v Minister for Immigration [2004] FCAFC 241
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437
WACO v Minister for Immigration [2003] FCAFC 171
WAEJ v Minister for Immigration [2003] FCAFC 188
WAGU v Minister for Immigration [2003] FCA 912
WAJR v Minister for Immigration [2004] FCA 106, (2004) 204 ALR 624

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Applicant: SZBFD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1617 of 2003

Delivered on: 17 February 2005

Delivered at: Sydney

Hearing date: 17 February 2005

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr K Ginges

Counsel for the Respondent: Ms V Hartstein

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $ 4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1617 of 2003

SZBFD

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 June 2003 and handed down on 17 July 2003.  The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political and religious persecution.  The general background facts and circumstances are adequately set out in written submissions prepared on behalf of the respondent by Ms Hartstein.  I adopt as background paragraphs 1[1]-3 of those written submissions for the purposes of this judgment:

   [1] second occurring

   The applicant arrived in Australia on 7 June 2002 travelling on a Bangladeshi passport.  On 5 July 2003 he applied for a protection visa.[2]

   [2] court Book (“CB”) 1-25

   In his application and the declaration which accompanied it[3] the applicant claimed:

   a)that he was a victim of serious political & religious harassment in his country due to his active membership of the Bangladesh Awami League;

   b)that since the election on 1 October 2001 he had been harassed by members of the government party, the BNP, as well as their coalition partners Jamat E Islami;

   c)since 1993 when he became a student in the Sylhet Government Degree College he got involved in politics and joined the Bangladesh Chatra League, the student “front” of the Bangladesh Awami League;

   d)from early 1993 he was involved very actively in strikes and confrontations against the BNP until 1996;

   e)from November 2001 he was unemployed and in hiding to avert political harassment and harm;

   f)he had heard that there are two cases lodged against him by his opponents but he didn’t know any detail about them and was trying to get copies.

   On 13 July 2002[4]  the delegate refused to grant the applicant a protection visa and the applicant applied to the RRT.[5]

   [3] CB 52

   [4] CB 60-65

   [5] CB 66ff The applicant indicated in this application that he would file a submission but did not do so.

2. The application before the Court was filed on 15 August 2003. That application sets out six grounds but only ground five is pressed in these proceedings. That is an allegation of breach of the rules of natural justice, in particular the fair hearing rule. In the course of argument it was made clear by Mr Ginges, for the applicant, that in the alternative the applicant asserted that there was breach of s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The Minister had filed a notice of objection to competency of the application on 22 October 2003. Given that this is a final hearing of the judicial review application I do not think that anything turns on that objection to competency. If the decision of the RRT is free from jurisdictional error, s.474 of the Migration Act applies and the Court obviously would not deal further with the decision of the RRT.

3. Both parties have prepared written submissions in relation to the application.  Mr Ginges submits that there has been a breach of the fair hearing rule under the general law in that the RRT failed to put to the applicant doubts about the credibility of his claims.  The particulars are set out in Mr Ginges' written submissions, in particular at paragraphs 22-25.  I incorporate those paragraphs in this judgment:

   In this applicant’s case, the RRT made a number of findings in respect of the applicant’s involvement in a political organization, namely the Awami League, the applicant’s claim that he had false charges registered against him, the applicant’s claims of threats of violence and the basis of his fear of persecution. The applicant gave oral evidence over a period of 2 days.

   It was an important issue in the applicant’s case that he claimed to have had 2 false charges laid against him. The RRT made a finding that there were no false charges registered against the applicant but failed to inform the applicant that it did not accept his claim (that is, it acted without notice that the issue was the subject of dispute). The basis of the RRT’s finding in relation to the false charges seems to be that the applicant could not identify the charges as being “warrants of arrest, charge sheets, summonses etc.” This is despite the applicant stating that those charges identified a warrant issued against him. It was not open to the RRT to make that finding without first putting the applicant on notice of its contention. (court book, pages 93-94, 101-102)

   The RRT asked the applicant a number of questions about his various political activities and about the Awami League. The RRT also asked the applicant in detail about his own movements between Dhaka other places, allegations of abuse and persecution. Whilst the RRT put a number matters to the applicant, usually information sourced from country information, it failed to put to him that it did not believe that was the victim of persecution or threatened violence and in so doing failed to put the applicant on notice of the importance of those matters before proceeding to a finding which adversely affected the applicant.

   In light of the above matters:

   g)The RRT failed afford the applicant procedural fairness or natural justice, and accordingly fell into jurisdictional error.

   h)The applicant is not barred by section 422B of the Act in claiming that the RRT failed to afford him natural justice or procedural fairness.

4. The first obstacle the applicant must overcome is s.422B of the Migration Act which provides that Division four of part six of the Migration Act[6] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Further, s.422B(2) provides that ss.416, 437 and 438 and Division 7A, insofar as they relate to Division four, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   [6] Inexplicably called a “subdivision”

5. Mr Ginges submits that I should follow the decision of Gray J in Moradian v Minister for Immigration [2004] FCA 1590. That was a decision in relation to s.51A of the Migration Act rather than s.422B. The decision is one of a single judge of the Federal Court not on appeal from this Court and I do not consider that I am bound by it. However, I do consider myself bound by the decision of French J in WAJR v Minister for Immigration [2004] FCA 106. That was a decision on appeal from this Court. His Honour provided, what is for the moment in this Court, an authoritative interpretation of s.422B at paragraphs 50 to 59. I incorporate those paragraphs of that judgment in this judgment:

   50 If it be correct that s 424A does not cover this case there are two issues to be considered. The first is whether the failure to invite comment on the Tribunal’s conclusions in respect of the letters would amount to a failure of procedural fairness absent s 422B. The second is whether s 422B so confines the application of procedural fairness that it is not available to support the complaint made by this appellant.

   51 As to the first question, there have been two recent decisions of the Full Court of the Federal Court in which issues of procedural fairness involving Tribunal findings about tendered documents arose. They are, WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188.

   52 In WACO an Iranian national claimed to have a well-founded fear of persecution if returned to Iran because of his involvement with a reformist cleric, Shirazi. After the hearing before the Tribunal the applicant’s advisers had provided translated copies of two letters which, if genuine, corroborated the claim of involvement with Shirazi. One purported to be a letter from Shirazi himself to the applicant’s father thanking him for raising a son who sacrificed himself to preserve the true meaning of the Koran. The other was from a third party testifying to his relationship with Shirazi. The Tribunal found the applicant not to be a credible witness. It was not prepared to accept either of the letters tendered to it as genuine. It found that they had been prepared in order to bolster the applicant’s claims. At no time had the Tribunal given any indication to the applicant that it doubted their genuineness, nor did it invite him to comment on that issue.

   53 The Full Court held that the letters were ‘central to the [applicant’s] claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi’ – at [39]. Their Honours held that the question whether the letters were genuine did not directly depend upon the evidence of the applicant. A finding that they were forgeries could turn upon the applicant’s credit in so far as it was a finding that the letters had been concocted to advance the applicant’s case. If this were so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it. Their Honours said:

   ‘A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations.’

   Where the finding of fact did not turn upon the credibility of the applicant and there was nothing on the face of the documents themselves to alert the decision-maker that they were forgeries, it was likewise inherently unfair that the decision-maker conclude that they were not genuine without affording the person affected by that conclusion the opportunity of dealing with it. Their Honours said at [55]:

   ‘Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the [applicant] to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.’

   Their Honours held that the applicant had succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error in that it had not afforded natural justice to the applicant by failing to give him the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine.

   54 WAEJ also concerned an Iranian national. He claimed to have been a member of a branch of the Marz-e-Porgohar, also known as the Movement for Freedom, and that the group had been involved in student demonstrations in July 1999. His job in the group had been to distribute literature. He claimed to have been arrested and detained for interrogation by plain clothes officers of the security organisation, Ettela ‘at. Although subsequently released on bail on reporting conditions he was to be summoned to appear in court. He fled Iran allegedly to avoid that event.

   55 One of the matters complained of in the Full Court was that there had been a breach of the rules of natural justice in the failure of the Refugee Review Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of a document submitted by the appellant to the Tribunal in support of his application. This document was an email purportedly from a Mr Farahanipour as Executive Director of Marz-e-Porgohar, forwarded at the request of parties assisting the appellant. The email stated that following the student uprising of 1999 many political activists such as the appellant and the author of the email were imprisoned and even after being released had been under constant surveillance and threat of government agents. The Tribunal made the comment that after having regard to the unsatisfactory nature of the appellant’s evidence and the ‘timing of the document’ it was not satisfied as to its genuineness. The Full Court said (at [52]):

   ‘On its face the foregoing was a statement by the RRT the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.’

   Their Honours went on to say that if in truth the RRT did not believe that the document was authentic it should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the Tribunal or to satisfy the Tribunal in respect of the document.

   56 It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912.

   57 The question that follows is whether s 422B precludes the application of procedural fairness in this context. Section 422B provides that Division 4 of Part 7 is ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. The ‘natural justice hearing rule’ is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to the matters it deals with’. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, ie the conduct of reviews by the Tribunal. Section 424A, the closest relevant provision, which relates to the opportunity to comment on adverse information, does not deal with the matter raised in this case. Nor does any other provision with the possible exception of s 425.

   58 Section 425 requires the Tribunal to invite an applicant to give evidence and to present arguments relating to the issues arising in relation to the decision under review. On one view, the genuineness of the appellant’s documentary evidence was an issue raised by the Tribunal itself and of which the appellant was given no prior notice nor an opportunity to comment before the Tribunal made its decision. If that characterisation be correct, then the Tribunal’s failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425. A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the Tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the Tribunal process that it necessarily conditions the power to make an adverse decision on review. A failure to comply with s 425 will therefore amount to jurisdictional error and be amenable to the issue of constitutional or prerogative writs on the principles set out in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

   59 If it be the case that s 425 has no application to the issue raised in this appeal – that is the question whether the Tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then s 425 does not deal with that matter and the requirements of procedural fairness are not excluded in respect of it by s 422B. This may appear to apply a narrow construction to s 422B. However that construction takes as its point of departure the ordinary meaning of the words used in the section and their evident purpose. That purpose is that, so far as Division 4 deals with matters of procedural fairness relating to the conduct of an application for review, its prescriptions are to be treated as exhaustive in relation to those matters. In so construing s 422B, I have also borne in mind the principle that:

   ‘...when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.’
   Annetts v McCann (1990) 170 CLR 596 at 598

   Section 422B contains words of limitation which indicate that it is not intended to confine the requirements of procedural fairness in respect of Tribunal hearings by limiting their application to the matters dealt with in the provisions of Division 4 in the way that they are dealt with there. It follows that if s 425 does not apply in this case, there was a breach of procedural fairness on the part of the Tribunal which amounts to jurisdictional error.

1. At paragraph 59, in particular, His Honour found that s.422B would not exclude the operation of the fair hearing rule of procedural fairness under the general law to the extent that s.425 had no application to the issue raised in that case. In my view, the position in this case is precisely the same. The only provision of the Migration Act referred to in s.422B which might apply is s.425. If s.425 applies then s.422B operates in order to exclude the general law fair hearing rule. If s.425 has no application in the present case then the general law fair hearing rule is available to the applicant.

2. Fortuitously, guidance in relation to both the application of s.425 and the general law fair hearing rule is provided in the decision of the Full Federal Court in WACO v Minister for Immigration [2003] FCAFC 171. In relation to s.425, paragraph 33 of that judgment their Honours said:

   The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29]-[30] per O'Connor, Tamberlin and Mansfield JJ.

3. In its terms, s.425 simply requires an applicant to be invited to a hearing in certain circumstances. However, it is obvious from the existing authorities that the hearing invitation must be more than an empty gesture. The standard procedure followed by the RRT is to invite an applicant to a hearing where the RRT is unable to make a favourable decision on the material submitted by the applicant alone. That is the procedure that was followed by the RRT in this case[7]. 

   [7] court book, page 73

4. However, the RRT would not comply with its obligation under s.425 if it simply invited the applicant to a hearing and gave him an opportunitiy to speak. The hearing invitation carries with it an obligation on the RRT to explain clearly and unambiguously the critical issues that led the RRT to the view that it was unable to make a decision in favour of the applicant on the information he had provided. That obligation may be met either before the hearing to which an applicant is invited, or at it. It may be met orally or in writing. But it must be met if the RRT is to comply with s.425 and avoid invalidating its decision.

5. In relation to the general law fair hearing rule, the broad statement of principle is clearly put by the Federal Court in paragraph 43 of WACO:

   In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582. As Mason J pointed out in that case at 583, `natural justice and fairness are to be equated'. Whether procedural fairness must be afforded and the content of it will, where the decision made arises in a statutory framework depend upon the legislation pursuant to which the decision is to be made and all the circumstances of the case.

6. At that level of generality, I see no real difference in principle between the general statement of the fair hearing rule and the general obligation on the RRT arising from s.425. I infer from that that the broad principles inherent in the fair hearing rule have been incorporated implicitly in the statutory obligation on the RRT derived from s.425. Of course, what must be done in a particular case in order to meet the requirements of procedural fairness will vary infinitely from one case to another. In circumstances where the obligations cannot be said to be incorporated in those deriving from s.425, then on the authority of French J in WAJR, the rules of procedural fairness relating to a fair hearing under the general law would be available to an applicant notwithstanding s.422B.

7. A cautionary note should be made here. While there is an obligation on the RRT to explain to an applicant what it is that prevents the RRT from making a favourable decision, the presiding member is pursuing an inquisitorial process. The presiding member is not obliged to put an applicant on notice of every detail of his or her claims that the presiding member is minded to reject. I agree with and adopt for the purposes of this judgment, paragraph 12 of the decision of Federal Magistrate Raphael in SZATB v Minister for Immigration [2004] FMCA 512 insofar as it deals with the disclosure of fine details, and matters which are obviously in dispute:

   The applicant notes that his case is subject to s.422B of the Migration Act 1958 (Cth) (the “Act”) and the limitations on the natural justice hearing rule contained therein but suggests that this section be read narrowly as suggested by French J sitting as a Full Court in WAJR v Minister for Immigration (2004) 204 ALR 624 at [57-59]. I am afraid that I cannot accept this submission. The finding which the Tribunal made here is not so much a finding on an issue (such as the genuineness of a document) which would lead to a decision but the very decision itself. The Tribunal is charged with determining whether or not it reaches a state of satisfaction as to a claim that an applicant has a well founded fear of persecution for a Convention reason. In determining that actions which might have given him that fear were not motivated by Convention reasons the Tribunal is providing an explanation for why it does not reach the state of satisfaction. The Tribunal is not obliged to expose his or her reasoning process or subjective determinations for comment to the person affected Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437 at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576 at [591]. Neither is the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there is a full warning of all possible reasons for failure Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [31]. The issue which the Tribunal determined was quite clearly a matter in dispute because it was the essence of what the Tribunal had to decide. The Tribunal had already indicated in its pre-hearing letter that it was not satisfied that the applicant was a person to whom the Convention applied.

8. In this case, the applicant must satisfy me on the available evidence that there was a failure to put to him the matters asserted by him as not having been raised.  The only evidence before me is the court book.  A directions hearing was conducted in this matter on 29 October 2003 before Registrar Tesoriero.  The applicant attended in person with the assistance of a Bengali interpreter.  He consented to orders for the further conduct of these proceedings.  Order 2 required the applicant to file and serve any amended application and any evidence upon which he proposed to rely on or before 10 December 2003.  That was over 14 months ago.  The applicant has not filed any evidence in support of his application.  In particular, he has not filed a transcript of the hearing before the RRT.  In my view, in the absence of a transcript, it is simply not open to me to find that the matters asserted by the applicant were not raised with the applicant during the course of the hearing. 

9. The Full Federal Court in NAOA v Minister for Immigration [2004] FCAFC 241 at paragraph 21 made clear the dangers of attempting to draw inferences from the reasons for decision of the RRT in such circumstances. The circumstances in that case were similar to those in this case. The Full Federal Court held in that case that it was not open to me to make a positive finding that the matters relevant to the decision were not raised with the applicant in the absence of a hearing transcript. The position is the same in this case. Not only is it not open to me to draw an inference favourable to the applicant, the available evidence in the form of the reasons for decision of the RRT, to the extent that it shows anything, shows that the issues of concern to the presiding member were discussed with the applicant. This is apparent from pages 93 and 94 of the court book. In that regard I agree with and adopt paragraphs 7-9 of Ms Hartstein's written submissions for the purposes of this judgment:

   As to the applicant’s claims concerning two false charges, it is clear that the RRT asked the applicant many questions about those two cases[8], including why there had been no attempt to arrest him between April and June 2002,[9]  how his friend had been able to obtain the documents, and the nature of the documents he had viewed.[10]

   As to the applicant’s claims that he was the victim of persecution and violence, the RRT asked the applicant many questions on this issue.[11] It was put to the applicant that Dhaka was relatively safe,[12] and he was asked why nothing had happened to him if he was the victim of extortion demands and had not paid.[13] He was pressed on this issue when he gave a vague reply.[14]  The RRT put to him the contradictions in his evidence concerning whether he was in hiding or on the street.[15]

   Clearly the applicant is on notice that an issue is in dispute or that the Tribunal is not satisfied about an issue when it asks the applicant questions about that issue and, particularly, when it asks questions which themselves show that it has doubts about what it has been told. The Tribunal is not obliged to put to the applicant “I put to you that you are not telling the truth” or similar words.

   [8] CB 93.8-94.4 and 101.10-102.5

   [9] CB 94.2

   [10] CB 94.4

   [11] CB 91.4, 93.2-93.9, 101.2-101.7

   [12] CB 93.8

   [13] CB 93.4

   [14] CB 93.4

   [15] CB 93.6-7

10. The applicant has failed to satisfy me that there is any jurisdictional error in the decision of the RRT.  It follows that the RRT decision is a privative clause decision.  The application must be dismissed. 

11. On the question of costs both parties agreed that costs should follow the event and that a reasonable assessment of costs on a party-party basis would be to fix costs in the sum of $4,000.  I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  23 February 2005