SZBKB v Minister for Immigration
[2005] FMCA 719
•26 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBKB v MINISTER FOR IMMIGRATION | [2005] FMCA 719 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – no reviewable error found – observations on the possible need to consider non-refoulement obligations under the Convention when an applicant is denied a protection visa in uncertain circumstances. |
| Migration Act 1958 (Cth), ss.36(2), 65, 91R, 422B, 424A, 430, 474 Migration Regulations |
| Minister for Immigration v Eshutu (1999) 197 CLR 611 Minister for Immigration v NAMW [2004] FCAFC 264 Minister for Immigration v VSAF [2005] FCAFC 73 Minister for Immigration v Yusuf (2001) 206 CLR 323 NAFT v Minister for Immigration [2003] FCAFC 254 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SCAA v Minister for Immigration [2002] FCA 668 |
| Applicant: | SZBKB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1840 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 26 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
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 |
SYG 1840 of 2003
| SZBKB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 17 July 2003 and handed down on 13 August 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of political persecution. I adopt by way of background for the purposes of this judgment paragraphs 1-21 of written submissions prepared by Mr Potts on behalf of the respondent Minister:
The applicant seeks review of a decision of the RRT made on 17 July 2003, and handed down on 13 August 2003,[1] affirming a decision of a delegate of the Minister made on 13 August 2002 refusing an application for a protection visa.[2]
[1] Court Book (“CB”) at 81-88
[2] CB at 57-64.
The applicant is a 43 year old Indian.[3] He most recently arrived in Australia on 11 May 2002, travelling on a visitor’s visa.[4] On 3 June 2002 he lodged an application for a Protection (Class XA) Visa.[5] He claimed to fear persecution because of his political opinion.[6]
[3] CB at 11-12.
[4] CB at 13 and 41-42.
[5] CB at 1-50.
[6] CB at 24-26.
Specifically, the applicant claimed that he was from New Dehli where he had run his family business, either making or selling (it is not clear which) ready made garments. He claimed to have been appointed president of the local market in Pahar Gunj in New Dehli by the Congress Party, due to his popularity amongst the businessmen. He claimed to have joined the Congress Party in 1985.
The applicant claimed that a local leader of the Bharatiya Janata Party (“BJP”) who had differences with the Congress Party had managed to get the applicant arrested by fabricating false cases, in order to get hold of the presidency of the local market. He claimed to have been arrested in August 1999, without a warrant, for the illegal sale of whisky from his garment shop. He claimed to have been jailed, presented in court, where he claimed to have been tortured for two days, and asked questions about his family’s business and political dealings as he was a Sikh by religion. The applicant claimed he was released after two days when his father paid an advocate to get him released on bail.
After his release, the applicant found that the local BJP leader was occupying his shop. He approached the police station, but was knocked down, beaten and imprisoned under instructions from the local BJP leader. He claimed that no-one was willing to give evidence that the shop was his, due to their fear of the local BJP leader. During his detention the applicant claimed to have been tortured in various ways. On his release he said he was on the verge of death and was hospitalised.
In August 1999 the applicant claimed that his father asked him to leave India, and he travelled to England on 22 September 1999, where he stayed until 11 March 2000, when he returned to India “hoping that the problems were solved out [sic] and can lead a better life”. The applicant said that on his return the police again arrested him for interrogation about the illegal sale of whisky and dealings with black marketeers. He then travelled to Australia and stayed from 10 to 19 March 2001, but had to return to India as his whole family had been arrested to ensure his return. On his return he was arrested for interrogation, and his family was released. He was released when his father paid a bribe.
The applicant said that he had been advised that Hong Kong was a good place for his security, and he had a good friend who sponsored him, and he left for Hong Kong by bribing officials at the Consulate, and was there from 9 to 16 June 2001. He was told by a solicitor in Hong Kong that he would not get refugee status in Hong Kong and he returned to India. He was arrested by police at the airport on his return.
It seems the applicant then went to Bangkok, but being unable to get a job, returned to India on 26 October 2001.
He claimed that the Government officials and an FIA officer never stopped their political revenge and he was subject to constant harassment, such as break-ins at his home, and being detained and questioned at odd hours.
He claimed that he had depleted his savings through his travels and had to sell his ancestral property to survive. The police came to know he was “bringing the money from outside” and picked him up again for interrogation. He secured his release with a bribe. He claimed to have been watched and followed in India and had to secretly and slowly arrange for a way to get out of India. He did not explain how he had come to Australia.
The applicant claimed:
“I was compelled to do all this to get out my home country for being harassed and persecuted by the police under the instructions of Bharatiya Janata Party.”
After the Minister’s delegate refused the applicant’s application for a protection visa on 13 August 2002, he applied to the RRT to review that decision on 6 September 2002.[7] In his application he reiterated his earlier claims, adding nothing new.[8] He also provided a home address in Merrylands, and stated that his mailing address was the same.[9] He nominated an authorised recipient.[10]
[7] CB at 66-69.
[8] CB at 68.
[9] CB at 66.7-66.10.
[10] CB at 67.6-67.10.
On 9 September 2002 the RRT wrote to the applicant’s authorised recipient, copied to the applicant, detailing the procedure that the Tribunal would follow in dealing with the applicant’s application for review.[11]
[11] CB at 70-71.
On 28 May 2003 the RRT sent a letter to the applicant’s authorised recipient, copied to the applicant, stating:[12]
[12] CB at 72-73.
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
The letter invited the applicant to a hearing on 15 July 2003.
The copy of the letter sent to the applicant’s residential address was returned unclaimed on 8 July 2003.[13]
The RRT made its decision on 17 July 2003. On 12 August 2003 an “[a]dviser’s colleague” called the RRT to ask whether hearing invitation letters had been sent, and was told that they had been sent on 28 May to the applicant and the adviser, and no response had been received to either letter. The colleague was told that the RRT had therefore made a decision. The colleague said he would check back with the Post Office and was given the registered post numbers for the letters.[14] The decision was handed down on 13 August 2003.[15]
It affirmed the decision to refuse to grant the visa.The RRT’s decision
The RRT recited at length the applicant’s claims.[16] It observed that it had written on 28 May 2003 to advise that a favourable decision was not possible on the information provided, and to invite the applicant to a hearing. It noted that the letter sent to the applicant’s home address was returned unclaimed. It noted that the applicant did not respond to the hearing invitation or attend the RRT on the day of the hearing.[17]
The RRT noted that the applicant claimed that he had faced numerous problems in India because of his involvement with the Congress Party, but said that at least some of his evidence suggested that his alleged problems were caused by someone whose main interest was taking over his business and his role as President of the local market. If this were so, and even if his claims were accepted at face value, the RRT said that it appeared that his case did not come within the scope of the Convention.[18]
Without the opportunity to investigate his claims more fully, the RRT was not prepared to accept his case at face value. The RRT found it difficult to believe that the applicant would have returned to India after travelling abroad a number of times after his problems began if he were at risk of serious harm. Furthermore, his claims regarding the problems he faced did not sit well with other evidence before the RRT. The Congress Party was a large political party which continued to have considerable influence in India. The sources the RRT consulted did not suggest that members of the party were generally at risk of serious harm for the peaceful expression of their views or involvement in legitimate political activities. In those circumstances, the RRT had considerable difficulty accepting that he was targeted in the manner he claimed because of his political views or activities.[19]
Furthermore, even if he did face the problems mentioned in his application for a protection visa for political reasons in his local area, it appeared that he could avoid further harm by relocating to another part of India.[20]
The RRT said that even if [the applicant] had attended the hearing it would have been possible to discuss and investigate his claims more fully, however, he failed to attend and on the evidence before the RRT it was not satisfied that the applicant had a well-founded fear of persecution in India for reasons of political opinion or for any other reason in the Convention.[21]
[13] CB at 74.
[14] CB at 90.4.
[15] CB at 81.
[16] CB at 84.6-86.8.
[17] CB at 86.9-87.1.
[18] CB at 87.4.
[19] CB at 87.5-87.7.
[20] CB at 87.8.
[21] CB at 87.9-87.10.
The hearing proceeded today on the basis of an amended application, a facsimile copy of which was filed on 20 May 2005. Somewhat curiously, on the same day, the registry had refused to accept for filing the original of that document. In order to remove any doubt, I granted leave for the filing of the amended application. There was no objection on behalf of the Minister and indeed, Mr Potts had prepared his written submissions on the basis that the application had been amended as proposed. Mr Jayawardena prepared written submissions in support of the amended application which were filed on 20 May 2005 and also took the opportunity to present oral submissions.
There are five grounds relied upon by the applicant in the amended application. The first ground is an asserted jurisdictional error on the basis that the RRT made a conclusion contrary to facts and all the information constructively available on the file available to it. There is a reference to bias. The particulars identify paragraph 2 of page 87 of the court book where the presiding member said the following:
The mere fact that an applicant claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. The applicant must satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her, nor to accept uncritically any assertions he or she makes. The relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish their veracity and significance.
The applicant takes issue with the sentence: “the applicant must satisfy the RRT that all of the statutory elements are made out”. Mr Jayawardena submits that that sentence discloses at least error, if not bias, in imposing upon the applicant a greater burden than is required by the Refugees Convention itself. I agree that the primary criterion for the grant of a protection visa is that Australia owes protection obligations to the applicant under the Refugees Convention. That much is clear from s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”). However, as Mr Potts points out in his submissions, that is not the only criterion relevant to a decision. Additional criteria are identified on page 82 of the court book by reference to the Migration Regulations. I raised with Mr Jayawardena whether an additional objection might be taken to the sentence in issue in that it might be argued that the RRT placed upon the applicant an onus of proof which the applicant did not bear. Mr Jayawardena adopted that suggestion. However, on analysis, it would be incorrect and unfair to take the sentence out of context and to find a jurisdictional error based upon it.
The assertion is that the presiding member misunderstood the task that she had to perform by imposing upon the applicant an adversarial onus in proceedings that were required to be conducted in an inquisitorial manner. The two sentences immediately following the sentence in issue on page 87 of the court book make tolerably clear, in my view, that the presiding member did not misunderstand the task that she had to perform and did understand that it was for the RRT to satisfy itself that the relevant criteria had been met. I so find. It follows that I reject the first ground of review.
The second ground is one of Wednesbury unreasonableness. The particulars draw attention to the following statement by the presiding member on page 87 of the court book:
If [the] applicant had attended the hearing it would have been possible to discuss investigate [sic] his claims more fully. However, he failed to attend and on the evidence currently before me I am not satisfied that he has a well-founded fear of persecution in India for reasons of political opinion or for any other reason in the Convention.
This statement is a reference to the fact that the applicant had been invited to attend a hearing before the RRT by letter directed to both him and to his authorised representative. That letter, which appears on pages 72 and 73 of the court book, made clear that the RRT, having considered the material submitted by or on behalf of the applicant, was unable to make a favourable decision on the basis of that information alone. The presiding member was doing no more than note that that position remained unchanged at the time of the RRT decision.
There is in my view nothing unreasonable in that conclusion. The reasoning is explained by the presiding member in the preceding paragraph on page 87 and the observation that the presiding member was not satisfied on the basis of the available material that the applicant had a well founded fear of persecution in India for reasons of his political opinion was open to her on the material before her.
In discussion with Mr Jayawardena during argument I queried whether this ground might be better put as an assertion that the RRT constructively failed to consider the applicant's claims of persecution. Mr Jayawardena adopted that proposition. It is therefore necessary that I consider it. The findings and reasons of the RRT in this case are nothing if not brief. The reasons may be found in the single main paragraph on page 87 of the court book. However, they should not be read in isolation. The reasons need to be read in the context of the quite lengthy recitation of the applicant's claims on pages 84 to 87 of the court book. While the reasoning is brief to the point of being cryptic it is readily understandable.
The reasons of the RRT are sufficient to satisfy me that there was in a legal sense real and genuine consideration of the applicant's claims and not mere lip service. I therefore reject the second ground of review whether it is expressed as an assertion of unreasonableness or an assertion of a constructive failure to consider the applicant's claims.
The third ground in the amended application is an assertion of procedural unfairness. In particular, the applicant asserts a failure to comply with s.424A of the Migration Act. The particulars refer to the following statement by the presiding member in the third paragraph of her decision on page 87 of the court book:
The sources which I have consulted do not suggest that members of the party are generally at risk of serious harm for the peaceful expression of their views or involvement in legitimate political activities. In these circumstances, I have considerable difficulty that he was targeted in the manner claimed because of his political views or activities.
Mr Jayawardena submits that s.424A obliged the RRT to give notice to the applicant of those sources relied upon by the presiding member.
It would have been helpful if at that point in her reasons the presiding member had identified what sources she was referring to. However, on a fair reading of the decision and reasons as a whole those sources could only be the sources referred to on pages 84 and 85 of the court book. They are a US State Department Human Rights Report on India and a United Kingdom Home Office Country Information Report on India.Again it is in my view tolerably clear that that information was country information that was not required to be disclosed to the applicant by reason of s.424A(3)(a) of the Migration Act. It follows that I also reject this ground of review.
The fourth ground is an asserted breach of s.430(1)(c) and 430(1)(d) of the Migration Act. The particulars refer to page 87 of the court book and the following statement of the presiding member in paragraph 3:
I find it difficult to believe that he would have returned to India after travelling abroad a number of times after his problems began if he was at risk of serious harm. Furthermore, his claims regarding the problems he faced do not sit well with the other evidence before me.
The applicant asserts that this finding is not based on any material questions of fact or any other material on which the findings of fact are based. I reject that contention. In my view the finding is a simple credibility finding based upon a disbelief of the applicant's own assertion of the problems he said he faced, having regard to the rather frequent travel he undertook to and from India. It follows and I find that the RRT has sufficiently explained its reasons at this point to comply with its obligation under s.430 of the Migration Act. Even if that were not so I am bound by the decision of the Full Federal Court in NAFT v Minister for Immigration [2003] FCAFC 254 at paragraph 7.
The final ground of review is a further allegation of unreasonableness with reference to the following statement by the presiding member in the third paragraph on page 87 of the court book:
… [E]ven if his claims are accepted at face value his case does not appear to come within the scope of the Convention.
Mr Jayawardena contends that this statement is manifestly unreasonable because the RRT contradicts its own position that even if the claims are acceptable they do not come within the UN convention. Mr Jayawardena is I think referring to the latter part of the paragraph in which the presiding member deals with issues of credibility. The presiding member's reasoning would have been more clear if she had dealt with the issue of credibility first and had then dealt with any issues of doubt remaining in her mind. She has instead dismissed the claim, if it were true, and then gone on to dismiss the claim on the basis of a lack of credibility.
The finding by the presiding member is very cryptic but it is understandable. What the presiding member is saying, in effect, is that in her view even if the applicant's claims were true the essential and significant reason for the harm inflicted upon the applicant was not political persecution but simply greed. This is by necessary implication a reference to s.91R of the Migration Act. If follows that I also reject the fifth ground of review.
The five grounds are dealt with comprehensively in Mr Potts' written submissions from paragraph 25 through to 47 and also including paragraph 49. While Mr Potts refers to six grounds, there are I think, only five. For the record I agree with and adopt Mr Potts' written submissions in answer to the grounds advanced in the amended application:
First Ground – concluding contrary to facts/bias
This ground is a complaint about the following passage in the RRT’s decision:
“The mere fact that an applicant claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. The applicant must satisfy the Tribunal that all of the statutory elements are made out.”[22]
[22] CB at 87.2.
In the respondent’s submission there was nothing improper or erroneous about this statement.
The applicant first asserts that the RRT made a grave error and misconception about the reasons adduced by the applicant in his original statement. It is far from clear how the RRT either erred or misconceived the reasons that the applicant advanced as to why he was a refugee. The RRT clearly understood his claim to fear persecution for a political reason. It was not satisfied on the evidence before it that this was the case.
The applicant then asserts that that the words “the applicant must satisfy the Tribunal that all of the statutory elements are made out” were a “strange yardstick”. With respect, there was nothing strange about this statement. It was a trite observation about the correct construction of the Migration Act. To be entitled to a protection visa, the applicant had to demonstrate that he met all of the criteria for that visa, see: s.65(1). The applicant further asserts that this “strange yardstick” somehow meant the RRT used criteria outside the normal criteria set out in Article 1(A)(2) of the Convention. This allegation is without foundation.
The preceding assertions are said by the applicant to demonstrate procedural unfairness and bias.
There was no procedural unfairness.
There is no foundation for the serious allegation of bias. As von Doussa J said in SCAA v Minister for Immigration [2002] FCA 668:
“In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”
This is not such a case.
This ground or review should be rejected.
Second Ground – Wendesbury unreasonableness
This ground is founded on the following statement by the RRT:
“If [the applicant] had attended the hearing it would have been possible to discuss investigate [sic] his claims more fully. However, he failed to attend and on the evidence currently before me I am not satisfied that he has a well-founded fear of persecution in India for reasons of political opinion or for any other reason in the Convention.”[23]
[23] CB at 87.9-87.10.
The applicant asserts that the RRT failed to evaluate properly what he had said in his detailed statement. That is simply incorrect. It is plain from the RRT’s reasons that it carefully considered all of the applicant’s claims. It was not satisfied that they were true, or that if true, they would in any event have shown persecution for a Convention reason. These were findings of fact open to the RRT on the evidence before it. There was nothing unreasonable about these findings.
This ground of review should be rejected.
Third Ground – procedural unfairness and breach of s.424A
Section 422B applied in this case. The obligation to provide adverse information to the applicant for comment was therefore, in the respondent’s submission, dealt with solely by s.424A. In this regard, s.424A covered the field.
The applicant complains about the following passage from the RRT’s reasons:
“The sources which I have consulted do not suggest that members of the party are generally at risk of serious harm for the peaceful expression of their views or involvement in legitimate political activities. In these circumstances, I have considerable difficulty that he was targeted in the manner claimed because of his political views or activities.”[24]
[24] CB at 87.7.
The applicant complains that there is no indication whatsoever that the RRT notified the applicant of the source of this information by way of letter, or other notification, during the hearing or afterwards, to enable the applicant to comment. It is said that this involved a breach of s.424A(2).
The information referred to by the RRT was plainly general country information. It was information caught by the exception in s.424A(3)(a). Therefore, s.424A(1) did not apply to it, and there was no breach of s.424A: Minister for Immigration v NAMW [2004] FCAFC 264.
As has been noted, s.422B applied in this case. Even on a narrow view of that section, s.424A covered the field in relation to the obligation of the RRT to disclose information to an applicant. There was therefore no common law obligation of procedural fairness that obliged the Tribunal to disclose this information to the applicant for comment.
This ground of review should be rejected.
Fourth Ground – breach of s.430(1)(c) and 430(1)(d)
It has been held that a failure to comply with s.430 is not capable of amounting to a jurisdictional error: NAFT v Minister for Immigration [2003] FCAFC 254 at [7]; Minister for Immigration v Yusuf (2001) 206 CLR 323; and Minister for Immigration v Eshutu (1999) 197 CLR 611. Not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of s.474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether, in the light of s.474's restrictions on judicial review, the non-observance of those limitations or requirements results in jurisdictional error.16 This is a matter of statutory construction and involves an attempt to reconcile s.474's restrictions on judicial review with the particular restriction, limitation or requirement.17
16 Plaintiff S157/2002 v Commonwealth of Australia13 (2003) 211 CLR 476 (“S157") at [77] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; S134 at [72] per Gaudron and Kirby JJ.
17 S157 at [60], [77] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Even if the applicant were correct in his submission that there has been a breach of s.430 (and it is submitted that he is not), that would not be a jurisdictional error and would not entitle him to the relief he seeks.
In any event, the RRT’s findings were unobjectionable and involved no breach of s 430.
This ground of review should be rejected.
Fifth Ground – manifest unreasonableness
The applicant complains about the RRT’s comment that:
“Even if his claims are accepted at face value, his case does not appear to come within the scope of the Convention.”[25]
It is far from clear why this was manifestly unreasonable. Indeed, it was a view the RRT was entitled to take on the evidence. But in any event, the basis on which the application was rejected was that the RRT was not prepared to accept the claims at face value.
Sixth Ground – failure to address convention nexus
This ground is difficult to understand, particularly in light of the fifth ground of review. The RRT plainly turned its mind to the issue of Convention nexus. Its view was that there was no Convention nexus between the conduct complained of and the reasons it was inflicted. Despite, this the RRT was able to dispose of the application on other grounds. It did not err in the way that it did so.
[25] CB at 87.3.
It follows that no jurisdictional error has been established and the application for judicial review must be dismissed.
I will nevertheless add some comments on the consequence of the RRT’s decision for the purposes of dealing with Australia's protection obligations to the applicant, if there are any, under the Convention and Protocol. While it is beyond the scope of these proceedings, it should in my view not be ignored that the issue before the RRT was whether the applicant should be granted a protection visa. The Migration Act was changed in the 1990s to remove the need for a dual consideration of refugee status and a separate consideration of the grant of an entry permit.
The Migration Act established a single process of the consideration of an application for a protection visa upon the primary ground of the existence, or non-existence, of protection obligations under the Convention. While the satisfaction, or lack of satisfaction, of a decision-maker, for the purposes of s.65 of the Migration Act, will effectively deal with the question of whether an applicant should be granted a protection visa[26], in my view it may not always effectively deal with the question of whether Australia owes protection obligations to a particular applicant under the Convention.
[26] see Minister for Immigration v VSAF [2005] FCAFC 73 at [17]
This is potentially important when considering an issue of removal from Australia because if an applicant is a refugee Australia owes a non-refoulement obligation to that applicant. Provided that a decision maker is able to say with clarity that Australia owes no protection obligations to an applicant no issue will arise. However, an issue may well arise where a decision maker is simply unable to be satisfied that protection obligations are owed. This arguably leaves open the question of whether in fact and law an applicant is a refugee for the purposes of the Convention. Australia’s international obligations to thoroughly investigate refugee claims, and not to refoule refugees, are not necessarily satisfied by the refusal of a protection visa under domestic law.
The applicant failed in this case because the written material he submitted was inadequate to satisfy the RRT and the RRT was unable to explore the issues further because of his non-attendance at a hearing. This leaves an area of doubt concerning the question of whether Australia does owe a non‑refoulement obligation to him. In my view, before this applicant could be removed from Australia, someone would have to answer that question with clarity. It may be that the relevant decision makers in the Minister's department could rely upon the unequivocal decision of the Minister's delegate made on 13 August 2002 (see court book, page 64). That is a matter which the Minister's Department may wish to consider in the future.
In another case the Minister's Department may not have the benefit of any clear decision whether Australia owes protection obligations to an individual. This could be particularly important where the nationality of an applicant is in issue and has not been fully explored, as recent cases given wide publicity in the media have demonstrated.
I will dismiss the application.
On the question of costs, the application having been dismissed Mr Potts seeks an order for costs fixed in the sum of $4,000. Mr Jayawardena did not wish to be heard on costs. I have no difficulty in accepting that $4,000 has been reasonably and properly incurred on behalf of the Minister in this matter when considered on a party and party basis. I will order 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 twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 June 2005
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