SZBKE v Minister for Immigration

Case

[2005] FMCA 1032

25 August 2005


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBKE v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1032
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – claims rejected on credibility grounds – whether the RRT was obliged to notify the applicant of the adverse impact of information she had provided in support of her protection visa application considered – no reviewable error found – application dismissed.
Migration Act 1958 (Cth), ss.422B, 424A, 425
Commissioner of ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576
M55 v Minister for Immigration [2005] FCA 131
Minister for Immigration v NAMW [2004] FCAFC 264
Minister for Immigration v Rajalingam (1999) 93 FCR 220
Minister for Immigration v SGLB (2004) 204 ALR 12
NADH v Minister for Immigration (2004) 214 ALR 264
NADN v Minister for Immigration [2004] FCA 15
NAQF v Minister for Immigration (2003) 130 FCR 456
NAZY v Minister for Immigration [2005] FCA 744
Paul v Minister for Immigration (2001) 113 FCR 396
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SAAP v Minister for Immigration (2005) 215 ALR 162
SZBFD v Minister for Immigration  [2005] FMCA 139
SZBOO v Minister for Immigration [2005] FMCA 1010
SZEFW v Minister for Immigration [2005] FMCA 453
SZFKL v Minister for Immigration [2005] FCA 931
Tin v Minister for Immigration [2000] FCA 1109
V346/2000 v Minister for Immigration (2001) 111 FCR 536
VAAD v Minister for Immigration [2005] FCAFC 117
VAF v Minister for Immigration (2004) 206 ALR 471
WACO v Minister for Immigration [2003] FCAFC 171, (2003) 131 FCR 511
WAGJ v Minister for Immigration [2002] FCAFC 277
WAID v Minister for Immigration [2003] FCA 220
WAJR v Minister for Immigration (2004) 204 ALR 624
Applicant: SZBKE

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG1849 of 2003
Judgment of: Driver FM
Hearing date: 25 July 2005
Delivered at: Sydney
Delivered on: 25 August 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr G Kennett
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Refugee Review Tribunal is joined as the second respondent to the proceedings.

  2. The application is dismissed.

  3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the proceedings, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1849 of 2003

SZBKE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

  1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 8 July 2003 and handed down on 6 August 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  I adopt as background paragraphs 1-5 of written submissions prepared on behalf of the Minister by Mr Kennett as follows.

  2. The applicant is a national of India who arrived in Australia on 4 July 2001.  On 26 September 2001 she applied for a protection visa.  This application was rejected by a delegate of the Minister on 2 July 2002, and on 6 August 2002 the applicant applied for review of that decision by the RRT.[1]

    [1]     See court book, page 210.

  3. On 8 July 2003 the RRT handed down its decision, affirming the decision of the delegate.[2]

    [2]     court book, page 209.

  4. Briefly, the applicant claimed to fear harm at the hands of anti-Sikh police or Hindu organizations, because of her religion and her political opinion of support for Khalistan.  She claimed that her mother had been killed after she came to Australia, and she herself had been detained and abused in the past.  Her claims were detailed in written submissions as well as evidence to the RRT, and supported by several documents submitted to the RRT.[3]

    [3]     See the summary at court book, pages 213-222.

  5. The RRT did not regard the applicant as credible, for five reasons which it explained and expanded upon:[4]

    a)many of the key aspects of her claims were not plausible;

    b)there were material contradictions between the claims she advanced at different stages, and a number of recent inventions;

    c)some of her claims were vague and lacked detail;

    d)some key claims were at odds with independent evidence; and

    e)most of her supporting documents were not authentic.

    [4]     Summarised at court book, pages 234, 244.

  6. The RRT therefore did not regard her claims as credible, and could not accept that she had a well founded fear of persecution for any Convention reason.[5]

    [5]     court book, page 244.

The application

  1. This matter came before me for final hearing on 25 May 2005.  At that time the applicant persuaded me that she had not received the green book of relevant documents (which is quite voluminous) and she also asserted that she might be able to establish a case of bias if she was given an opportunity to produce evidence of what transpired at the RRT hearing.  With that in mind I adjourned the hearing until 25 July 2005 and gave the parties the opportunity to file further evidence and submissions. 

  2. The applicant filed an amended application on 11 July 2005.  No objection was taken to that amendment.  That application contains the following grounds and particulars:

    1.The Tribunal exceeded jurisdiction in making the decision to affirm the Respondent’s decision not to grant the Applicant the visa.

    Particulars

    The Tribunal discounted and refused to hear evidence by Ajit Singh because he had no personal knowledge of the claims and had never met the applicant’s family in India.

    The Tribunal rejected or discounted evidence supplied after the hearing for various reasons such as dealing with issues before the applicant’s claim arose, or in different areas or parts of India than where the applicant was, or items written by Sikhs supporting Khalistan.

    The Tribunal placed no weight on other evidence without allowing the applicant a chance to respond for various superficial reasons such as not being supplied previously, easy to obtain false documents in India, not typed, written in English not Punjabi, written in “poor” English, envelope not included with documents, a different address on the document than the applicant’s current address, item dealing with another applicant, did not mention document during RRT hearing or only a translation supplied and not the original document.

    The Tribunal did not make further enquiries in relation to the genuineness of documents supplied nor allow the applicant to respond to the rejection of documents other than relying on the fact that there is information that it is easy to obtain false documents from India with no evidence that these documents may be false.

    Tribunal accepted “independent evidence as opposed to evidence supply by or on behalf of the applicant without allowing the applicant a chance to comment.

    The Tribunal then used this independent information to discredit the applicant’s protection claims.

    The Tribunal made the decision without any verification whether the additional evidence had merits.

    The Tribunal considered that the Applicant received proper or any advice from a Migration Agent and that the Tribunal did not need to make additional enquiries.

    The Tribunal did not send any communication to the assumed Migration Agent.

    The Tribunal wrongly concluded that the applicant did not require or have the right to new information or even the fact that the Tribunal would not give proper consideration to the response regarding the issue of the applicant’s wife’s mother being confused with another person.

    2.The Tribunal erred in law in arriving at the decision to affirm the Respondent’s decision not to grant the Applicant the visa.

    Particulars

    The Tribunal erred when the Tribunal did not properly consider the evidence supplied by the applicant.

    The Tribunal erred when the Tribunal did not consider what evidence the witness was willing to supplied [sic] before deciding that the witness could not supply relevant evidence.

    The Tribunal erred when the Tribunal did not consider whether there would have been a different decision if the Tribunal did accept documents and evidence supplied by the applicant.

    The Tribunal erred when the Tribunal neglected to give a fair chance to the applicant’s witness to undertake meaningful response to the decision that he had no evidence that would be meaningful.

    The Tribunal erred when the Tribunal drew conclusions from the lack of a response to a question.

    The Tribunal erred when the Tribunal did not give the applicant a chance to respond to conclusions drawn after the applicant did respond to a question.

    The Tribunal erred when not giving the applicant a chance to respond to additional information which was relevant in making the decision to reject the applicant’s claims.

The evidence

  1. The amended application is supported by an affidavit of Ram Ravi Singh Khalsa made on 8 July 2005 and filed on the same day.  That affidavit annexes a transcript of the hearing conducted by the RRT on 22 May 2003.  The Minister does not dispute the accuracy of the transcript.

Submissions

  1. Both parties produced written submissions pursuant to the orders made by me on 25 May 2005.  However, the Minister’s submissions were served late upon the applicant and in view of the complexity of the issues arising, following the trial on 25 July 2005, I gave the applicant a further 14 days to produce any submissions in reply to the Minister’s submissions that she wished to rely upon.

  2. The applicant’s initial written submissions were filed on 13 July 2005.  I agree with Mr Kennett that that outline of submissions appears, in substance, to raise the following complaints:

    i)The RRT discounted the evidence of the witness Ajit Singh (paras 1(1), 2(2)-(3)).

    ii)The RRT failed to act according to “substantial justice” by discounting the evidence provided by the applicant (paras 1(2), 2(1)).

    iii)The RRT breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by not allowing the applicant to comment on the reasons why it rejected the documentary evidence (para.1(3)).

    iv)The RRT failed to make further inquiries about the genuineness of the documents (paras 1(4), (7)).

    v)The RRT gave more weight to general independent evidence than to the evidence provided by the applicant (paras 1(5)‑(6)).

    vi)The RRT required a higher standard of evidence and detail because the applicant was represented by a migration agent (para.1(8)), and considered that the applicant had received proper advice from a migration agent (para.1(9)).

    vii)The RRT breached s.424A by not providing the applicant with “new information” upon which it relied (paras 1(10), 2(6)).

    viii)The RRT breached s.424A by allowing the applicant only seven days to receive and comment on documents (para.1(11)).

    ix)The RRT erred by drawing conclusions from the applicant’s failure to respond to a question (para.2(4)).

    x)The RRT also erred by not giving the applicant a chance to respond to those conclusions (para.2(5)).

    xi)The RRT erred by failing to consider whether its decision would be different if it did accept the evidence proffered by the applicant (para.2(7)).

  3. Mr Kennett makes the following submissions on behalf of the Minister in his written submissions filed on 22 July 2005:

    Fact finding

    Contentions (i), (ii), (v) and (ix) merely complain about the RRT’s conclusions of fact and do not raise any ground upon which this Court could grant relief.  The weight to be given to the various items of evidence, and the inferences to be drawn from gaps or failures to comment, were matters for the RRT.  Its conclusions were reasonably open to it.

    Inquiries (contention (iv))

    The RRT had power under s.427 of the Migration Act to initiate inquiries but was not under any duty to exercise that power. A failure to make inquiries, or to consider whether to do so, is not in itself an error of law or an error going to jurisdiction.[6]

    [6]     WAGJ v Minister for Immigration [2002] FCAFC 277 at [24]-[25]; Minister for Immigration v SGLB (2004) 207 ALR 12, 21-22 [42]-[43] per Gummow and Hayne JJ (Gleeson CJ agreeing).

    Role of migration agent

    Contention (vi) is misconceived.  At several stages of its reasoning the RRT had to decide what inference it ought to draw from the omission of particular claims from, or the lack of detail in, the applicant’s earlier statements.[7]  The fact that the applicant had had a migration agent at earlier stages was obviously relevant to this issue: it was one of several factors which told against the suggestion that these omissions might have been due to a lack of resources or understanding.  Reference to this factor does not indicate that any particular standard of proof was being applied.

    [7]     court book, pages 236, 238, 241, 242.

    The reasoning referred to in the previous paragraph may properly be said to rest on an assumption that the migration agent in question was not wholly incompetent.  However, given the existence of a statutory licensing scheme for migration agents, it was open to the RRT to make that assumption in the absence of evidence to the contrary.

    Alternative outcomes (contention (xi))

    There is authority that, if the RRT is minded to make an adverse finding on an applicant’s claim but cannot do so with confidence, it must assess the applicant’s chances of persecution on the basis that the claim might possibly be true.[8]  In that event it would be necessary to analyse whether the circumstances claimed to exist gave rise to a fear of “persecution” (in the relevant sense) on one of the grounds referred to in the Convention.

    [8]     Minister for Immigration v Rajalingam (1999) 93 FCR 220.

    In the present case, however, the RRT did not express any doubt about its rejection of the applicant’s claims.  It concluded with confidence that she had not been persecuted in the past as she claimed.  It was not under any obligation to consider what the position might have been if its conclusion had been different.

    Procedural fairness and s.424A

    The remaining contentions ((iii), (vii), (viii) and (x)) raise issues concerning the extent of the RRT’s obligation to warn the applicant about material adverse to her case and conclusions which it was minded to draw.

    In dealing with these contentions it must be borne in mind that the application to the Tribunal was made after the commencement of s.422B of the Migration Act. The requirements of general law principles of procedural fairness were therefore displaced by the statutory obligation in s.424A, at least in relation to warning the applicant about information potentially adverse to her.

    RRT’s analysis of documents submitted by the applicant (contention (iii))

    As to the documents submitted at or before the RRT hearing (which related to the death of the applicant’s mother),[9] the RRT’s concerns about the authenticity of these documents were clearly canvassed at the hearing.[10]  To the extent that general law principles of procedural fairness applied, therefore, the RRT complied with those principles.

    [9]     See court book, pages 236-238.

    [10]    Annexure to the Affidavit of Ram Ravi Singh Kalsa, Q16-Q26, Q117.

    These documents themselves were “information” supplied by the applicant herself for the purpose of the review, and therefore within s.424A(3)(b). The RRT’s observations about the documents[11], and the rejection of the story they purported to corroborate,[12] were part of its thought processes and not “information” within the coverage of s.424A(1).[13] Section 424A therefore did not require these issues to be raised with the applicant in writing.

    [11]    I.e., reasons 2-4 given for rejecting the death certificate (court book, page 237) and reasons 1 and 3-6 given for rejecting the doctor’s letter (court book, pages 237-238).

    [12]    I.e., reason 5 given for rejecting the death certificate (court book, pages 237) and reason 7 given for rejecting the doctor’s letter (court book, pages 237-238).

    [13]    Tin v Minister for Immigration [2000] FCA 1109 at [51]-[54]; V346/2000 v Minister for Immigration (2001) 111 FCR 536, 538-539 [53][55]; Paul v Minister for Immigration (2001) 113 FCR 396, 428 [95]; NADH v Minister for Immigration (2004) 214 ALR 264, 286 [127]; NADN v Minister for Immigration [2004] FCA 15 at [50]-[51]; VAF v Minister for Immigration (2004) 206 ALR 471, 476-477 [24].

    Country information about the incidence of document fraud in India[14] came within s.424A(3)(a) and was therefore not required by s.424A to be disclosed in writing.[15]

    [14]    I.e., reason 1 given for rejecting the death certificate (court book, page 237) and reason 2 given for rejecting the doctor’s letter (court book, pages 237-238).

    [15]    Minister for Immigration v NAMW [2004] FCAFC 264; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; SZEFW v Minister for Immigration [2005] FMCA 453 at [18].

    As to the documents submitted after the hearing,[16] s.424A did not require the RRT’s concerns about these documents to be canvassed for the reasons outlined above.

    If general law principles of procedural fairness applied (despite s.422B)[17] to require the RRT to warn the applicant of the potential conclusion that these documents were not authentic, that warning was given.  The Tribunal made it clear to the Applicant at the hearing that it was sceptical about the authenticity of both the documents she had submitted and those she foreshadowed.[18]  The applicant and her adviser were thus on notice that any additional documents she submitted would not necessarily be accepted as genuine.  This distinguishes the present case from WACO v Minister for Immigration.[19]

    Alternatively, the Minister would formally submit that WAJR v Minister for Immigration[20] was wrongly decided, and the aspect of the principles of procedural fairness that was applied in WACO has been excluded by s.422B.

    Response to country information (contention (vii))

    For reasons outlined above, the RRT was not obliged by s.424A to provide the applicant with particulars of general country information upon which it proposed to rely. Where it did so,[21] it did more than was required.

    General law obligations of procedural fairness were relevantly excluded by s.422B. That section provides that the provisions of Division 4 (which includes s.424A) are an exhaustive statement of the “natural justice hearing rule” in relation to “the matters it deals with”. While this latter phrase may give rise to some difficulty, it is clear at least that s.422B “deals with the provision to the applicant of information, known to the RRT, which would be adverse to the applicant’s application”.[22]  It is therefore to be regarded as exhaustive in relation to that subject matter.

    If s.424A or the general law did require an invitation to comment on country information, it was sufficient for the substance of the information to be communicated.  The RRT was not required to provide the applicant with copies of the documents it considered relevant.

    Time to respond to documents (contention (viii))

    This complaint appears to relate to the letter under which the RRT sent to the applicant copies of some documents upon which her comments were sought.[23]  The letter was dated 15 May 2003 and said that the applicant would be given an opportunity to comment on the documents at the hearing (scheduled for 22 May 2003).

    For reasons outlined above, this was an invitation which the RRT was not required to extend to the applicant.  If the period allowed did not comply with the regime for invitations under s.424A, it would not follow that any error going to jurisdiction had occurred.

    [16]    Rejected by the RRT at court book, pages 239-241.

    [17]    Cf. WAJR v Minister for Immigration (2004) 204 ALR 624, 637-638 [57]-[59].

    [18]    Transcript Q16-Q26, Q62-Q65, Q115-Q117.

    [19] (2003) 131 FCR 511. See VAAD v Minister for Immigration [2005] FCAFC 117 at [64]-[65].

    [20] (2004) 204 ALR 624, 637-638 [57]-[59].

    [21]    court book, page 119.

    [22]    WAID v Minister for Immigration [2003] FCA 220 at [57] (cited with approval in NAQF v Minister for Immigration (2003) 130 FCR 456, 467 [54]).

    [23]    court book, page 119.

    Inference from failure to comment (contention (x))

    As noted above, s.424A did not require the RRT to keep the applicant informed of its opinions about the quality of her evidence and the inferences likely to be drawn from it.  Nor did s.425: it requires an applicant to be given a proper opportunity to present evidence and argument, but does not require the RRT to point out what it sees as the gaps or weaknesses in the applicant’s case.

    The same is true of the ordinary principles of procedural fairness, to the extent that they applied.  Those principles would have required that the applicant’s mind be directed to the critical issues in the review, if they were not obvious.  Having raised an issue with the applicant by way of a question, procedural fairness did not require the RRT to tell the applicant that her response was considered inadequate and invite her to improve on it.[24]

    [24]    See e.g. Commissioner of ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576, 591.

  1. At the hearing of this matter on 25 July 2005 I ordered that the applicant file and serve any submissions in reply by 8 August 2005.  She has not taken up that opportunity.

Reasoning

  1. I agree with and adopt Mr Kennett’s submissions concerning the applicant’s contentions (i), (ii), (v) and (ix) concerning the RRT’s findings of fact.  I also agree with, and adopt for the purposes of this judgment, Mr Kennett’s submissions concerning the lack of any duty upon the RRT to make further enquiries in the circumstances of this matter (applicant’s contention (iv)) and the role of the migration agent (applicant’s contention (vi)).

  2. There is no substance to the applicant’s contention (xi).  The presiding member was firm in dismissing the applicant’s claims on the basis of adverse credibility findings.  There was no doubt in those findings and, in those circumstances, there was no obligation upon the RRT to consider the applicant’s claims as if they were true. 

Procedural fairness and s.424A

  1. I reject Mr Kennett’s submission that the fair hearing rule under the general law is displaced by s.422B of the Migration Act. I regard this Court as bound by the decision of the Federal Court on appeal from this Court in WAJR v Minister for Immigration (2004) 204 ALR 624, in particular at 637-638. That decision establishes (in the absence of any High Court or binding Federal Court authority to the contrary) that s.422B does not exclude the operation of the general law fair hearing rule to the extent that s.425 has no application to the issues raised in the case. Further, where s.425 does bear upon the issues arising in the case, I have previously held that s.425 imports the substance of the general law fair hearing rule: SZBFD v Minister for Immigration [2005] FMCA 139 at [7]-[9]. In that case, at [11] I found no essential difference between the common law fair hearing rule and the obligations arising by implication from s.425.

  2. In my view, the RRT met its procedural fairness obligations in respect of the fair hearing rule, whether that arises from the general law or from s.425. First, by letter dated 15 May 2003[25], the RRT put the applicant on notice about country information that was likely to be significant to the outcome of her case.  Secondly, the decision and reasons of the RRT strongly indicates, and the transcript of the hearing clearly confirms, that the presiding member left the applicant in no doubt whatsoever at the hearing about the critical issues on which her application would depend.  They were all issues of credibility.  The applicant was put on notice not only about the presiding member’s concerns regarding the credibility of her protection visa claims but also the presiding member’s concerns about the credibility of documents produced prior to the RRT hearing in support of those claims[26]. 

    [25] court book, page 119

    [26] see in particular questions 16-26 in the transcript.  See also question 117

  3. It is true that the decision of the RRT rested in part upon the credibility concern held by the presiding member about a document submitted by the applicant after the hearing.  Two things may be said about this.  First, the opportunity given to the applicant to make further submissions and submit further documents after the hearing was itself an incident of compliance by the RRT with its procedural fairness obligations.  Secondly, questions 62-65 in the transcript establish to my satisfaction that the applicant was put on notice at the hearing that further documents were unlikely to assist her given the grave credibility concerns held by the presiding member about her protection visa claims and the documents already submitted in support of them.  This case can therefore be distinguished from WACO v Minister for Immigration [2003] FCAFC 171. This case is in that regard similar to VAAD v Minister for Immigration [2005] FCAFC 177, in particular at [61]-[64].

  4. I find that there was no breach of s.425 or the fair hearing rule under the general law.

  5. As to s.424A, I agree with Mr Kennett that the country information relied upon by the RRT fell within the exception in s.424A(3)(a) and, accordingly, there was no obligation upon the RRT to give notice to the applicant of that country information. I also agree with Mr Kennett that there was no obligation upon the RRT to give notice to the applicant of information submitted by the applicant herself to the RRT for the purposes of her review application: see s.424A(3)(b). Neither was there any obligation upon the RRT to disclose to the applicant its thinking processes which is not “information” for the purposes of s.424A(1).

  6. The remaining question is whether the RRT breached s.424A by not disclosing to the applicant information relied on by the RRT which was provided by the applicant to the Minister’s Department for the purposes of her original protection visa application. That information comprises the protection visa application itself and material provided later in support of it. It is obvious from the RRT reasons that the applicant failed because the presiding member made adverse credibility findings in relation to the applicant’s protection visa claims in her original protection visa application. While those claims were discussed with the applicant at length at the hearing (and hence there was no procedural unfairness) s.424A imposes upon the RRT an obligation to provide written notification to the applicant of information provided by an applicant himself or herself that preceded the review application, if it has a significant adverse bearing on the outcome of the review application[27].  In M55 v Minister for Immigration [2005] FCA 131 at [25] Gray J held that protection visa information changed its status so as to fall within the s.424A(3)(b) exception if the applicant adopted that information in writing for the purposes of the review application. In SZFKL v Minister for Immigration [2005] FCA 931 at [7][28] Madgwick J found that the adoption of the earlier information could be made orally at a hearing.  However, in NAZY v Minister for Immigration [2005] FCA 744[29] Jacobson J at [39] stated, in effect, that such an adoption of earlier information could not be said to flow from a general discussion of issues at a hearing, particularly in the absence of transcript[30]. His Honour considered that in order for the exception in s.424A(3)(b) to apply, the circumstances of the re-presentation of the protection visa information must be such as to support an assumption that the applicant was aware of the significance of the information[31].

    [27] see generally the discussion on this issue by Raphael FM in SZBOO v Minister for Immigration [2005] FMCA 1010 at [20]

    [28] A decision binding upon this Court

    [29] A decision also binding upon this Court

    [30] see paragraph 38

    [31] see paragraph 37

  7. This case falls between M55 and NAZY and is on all fours with SZFKL.  Unlike Jacobson J, I have the benefit of transcript.  The very first question put to the applicant by the presiding member concerned the information contained in the protection visa application.  The presiding member asked:

    First of all, do you agree that all the documents, and the information that you supplied to the immigration department, as part of your protection visa application, is now to be considered by this Tribunal as part of its review process?

  8. The applicant replied “yes”. I take this to be a clear and unequivocal adoption of that information for the purposes of the review application before the RRT. It can safely be assumed that the applicant understood the significance of the question, and her answer. It follows that s.424A(3)(b) applied and there was no obligation upon the RRT to give notice of that information to the applicant pursuant to s.424A.

  9. The applicant has failed to establish jurisdictional error in the decision of the RRT.  Therefore, the decision is a privative clause decision and the application must be dismissed.

  10. As to costs, this was a relatively complex case and the hearing has run over two days.  Substantial written material has been produced.  This calls for a costs order of not less than $5,000.  I will so order.

  11. In accordance with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, at the outset of the trial I ordered that the RRT be joined as the second respondent.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  25 August 2005


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