SZCDH v Minister for Immigration
[2006] FMCA 78
•1 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCDH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 78 |
| MIGRATION – Review of decision of RRT – Where the applicant claims to be a member of a particular social group – where the Tribunal did not accept documents given it by the applicant to be authentic – where the Tribunal did not accept certain claims made by the applicant – whether the Tribunal made an error of a jurisdictional fact – whether the Tribunal failed to consider a claim put forward by the applicant – where the Tribunal failed to comply with subsection 425A(3) and Regulation 4.35D of the Migration Regulations – whether that regulation is a mandatory requirement. |
| Migration Act 1958 (Cth), s.425 Migration Regulations 1994 (Cth), Regulation 4.35D |
| Htun v Minister for Immigration (2001) 194 ALR 244 SAAP v Minister for Immigration (2005) 215 ALR 162 |
| Applicant: | SZCDH |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2713 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 January 2006 |
| Date of Last Submission: | 23 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THE COURT DECLARES:
That the decision of the Refugee Review Tribunal made on 20 October 2003 and handed down on 12 November 2003 is void and of no effect.
THE COURT ORDERS:
The application to the Tribunal for review of the decision of the delegate made on 2 June 2003 be referred back to the Tribunal differently constituted to be heard and determined according to law.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2713 of 2003
| SZCDH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on 21 April 2003. On 30 May 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 2 June 2003 a delegate of the Minister refused to grant a protection visa and on 27 June 2003 the applicant applied for review of that decision. On 4 July 2003 the Tribunal wrote to the applicant inviting him to attend a hearing of the Tribunal on 2 October 2003. The applicant accepted that invitation. On 25 September 2003 the Tribunal wrote to the applicant advising him that “due to circumstances beyond our control we will not be able to have a hearing on that date. We regret any inconvenience caused”. The new hearing was set for Wednesday 8 October 2003. A copy of the letter was sent to the applicant and to his immigration advisor. It is not disputed that the notice provided to the applicant of the new hearing date was less than the 14 days required by Regulation 4.35D(b) Migration Regulations 1994. There is found at [CB 215] an internal memorandum printed on 13 November 2003. The memorandum contains, inter alia, the following entries:
“24/09/03 Rang the adviser to inform the new and left message. TTissabalan.
Hearing rescheduled on 25/09/2003 by PRTTSC
24/9/03 Returned adviser’s call and requested him to lodge official translations of all documents lodged with the Department in Nepali no later 48 hours before the new hearing date. The adviser said that applicant wants to find out whether it is possible to postpone the hearing by another week. I asked him what was the reason. The adviser said he didn’t know. I asked the adviser to put in the request with reason. The adviser said he will talk to the applicant again and if the applicant gives him reason he will send a fax or otherwise applicant will attend the hearing. TTissabalan.”
The Tribunal conducted a hearing on 8 October 2003 which was attended by the applicant and his adviser. On 20 October 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 12 November 2003.
The applicant claimed to be a Christian and a beef eater. The killing of cows is prohibited in Nepal which is a predominately Hindu country. Notwithstanding this the applicant was a member of a small group who would from time to time kill a young calf for the purposes of butchering it and distributing its meat. On 26 March 2003 the applicant was issued with a visitor’s visa for Australia by the Australian High Commission in New Delhi. He was due to accompany his mother in-law to Australia for medical treatment. He told the Tribunal that on or about Thursday 17 April he secretly killed a calf with the help of a friend and distributed its meat among other members of his community to celebrate the opportunity of visiting Australia:
“After his departure from Nepal the police received information about their act and started to search for them. They harassed the applicant’s wife and left a stern message for him to present himself at the police as soon as possible. The incident was published in the local newspaper. The issue became complicated and socially sensitive in the Hindu dominated society. The applicant claims it his wife is facing heavy criticism from various elements in society and is embarrassed. He claims he will be arrested on a charge of illegally a calf and jailed. The applicant claims that the Hindu society will mistreat him because of his involvement in killing a cow which they worship as a god. [CB 194].”
The Tribunal noted that on 2 October 2003 it received a lengthy submission from the applicant’s adviser which included a 16 page written argument that set forth a number of new claims which are detailed at [CB 195-196]. The Tribunal was also provided with a copy and translation of an article from 21 April 2003 issue of the Pur Wan Chal Daily stating that the applicant was involved in slaughtering a calf along with a local resident on 17 April that the police were searching intensively for him and that cow killing carries a penalty of imprisonment of up to 12 years.
The Tribunal debated a number of matters with the applicant concerning his claims, his religious views and his involvement in cow slaughter. It pointed out to the applicant that it doubted whether the newspaper article was an authentic document because independent evidence indicated that it was easy to obtain false documents in Nepal. The original of the paper had not been lodged and although the article was dated 21 April 2003 no translation was produced until shortly before the hearing even though the Tribunal had written to the applicant on 30 June requesting that documents be immediately lodged and that documents not in English be accompanied by a translation. The applicant claimed in the hearing that he was a member of a social group of people who treated the cow as an animal rather than a god. The Tribunal indicated to the applicant that it had no evidence of reports of Christians being harmed in Nepal for killing cows and it had obtained evidence that beef was available in Kathmandu. The applicant was warned that the Tribunal took the view that the matters referred to in the 2 October 2003 submission were recent inventions as they had not been raised before even though the applicant had had plenty of time to do so. After the hearing the applicant’s adviser submitted a further detailed document clarifying some of the matters raised at the hearing. For example, it was suggested that at the hearing membership of the social group of persons who treat cows as animals rather than a god was only four or five. The adviser explained that this was the number within the applicant’s own small community not the number of persons in the whole of Nepal who took this view.
The Tribunal cited in its grounds and reasons certain independent evidence concerning the right to a fair trial in Nepal, the penalty for cow killing and the independence of the judiciary. The Tribunal accepted that the applicant was needed to escort his mother for medical treatment in Australia, that he had been a Christian and attending a Presbyterian Church in Nepal since January 2001 and since arriving in Australia had attended a local Presbyterian Church as well as a number of matters relating to his age and education. But at [CB 207] the Tribunal indicated that it did not accept any of the other claims presented by the applicant. At [CB 207] the “reasons” for not accepting any of the other claims commenced with the following paragraph:
“The Tribunal finds that the applicant’s claims are vague, general and not sufficiently-detailed to be believable. It also does not accept that they would contain so few details, such as dates and particulars of incidents, especially since the applicant is well-educated, he reads English, and he was apparently assisted by a migration agent in the preparation of the application. Therefore, the Tribunal does not accept the claims contained in the application.”
Because the Tribunal then goes on to deal with individual claims it is not entirely clear whether the above paragraph is meant to be determinative of all of his claims or whether it is merely a general introduction. It is not entirely clear whether the claims that the Tribunal is referring to are the claims made in the adviser’s letter of 2 October 2002 or the claims made in the original application. The claim made in the original application can be found best at [CB 19-20]. That application does clearly set out the date upon which the applicant killed the calf and what he did and why that action causes him to fear that he will be persecuted. It is difficult to agree with the Tribunal’s assessment of that application as set out above. The Tribunal goes on to say:
“The Tribunal does not accept as plausible that if the applicant had a fear of persecution in Nepal, if the police used to take him in, as he claimed during the hearing and if he had committed a serious criminal offence and he was aware that he could be jailed for up to twelve years, he would wait for almost one month before leaving Nepal. That he waited so long before leaving Nepal is consistent with the view that at the time of his departure he did not have a subjective fear of persecution and the Tribunal finds.”
The applicant argues in his submissions that this was a wrong finding. The applicant states that he had no subjective fear of persecution when he left Nepal because it was not until after he arrived in Australia that he learned the police were looking for him. This is a mistake of fact by the Tribunal. But it is a mistake of a jurisdictional fact. The existence or otherwise of a subjective fear is a jurisdictional fact. At [CB 86] in the applicant’s statement written by his migration agent it says:
“After my client’s departure from Nepal, Nepal police was informed about their act & started to search for them, himself and his friend Nagendra…
My client’s wife informed my client over the phone that Police & army are searching her residence regularly…”
I have found no evidence to contradict what the applicant said there through his agent and the applicant confirms that that was his story at all times in his written submission. If this was the only reason why the Tribunal came to its conclusion that the applicant was not entitled to the protection of Australia then I would be bound to find that a jurisdictional error had been made by the Tribunal in relation to its decision. The Tribunal continues at [CB 207]:
“In the protection visa application the applicant said that he left Nepal to escort his mother in law for medical treatment in Australia, and as stated above the Tribunal accepts this claim. During the hearing he reiterated this claim. But the applicant did not claim in his protection visa application that he left Nepal for this reason as well as to avoid persecution for a Convention reason. Therefore, the Tribunal finds that the real and only reason the applicant left Nepal was to escort his mother in law for medical treatment in Australia, and not because of fear of persecution for a Convention reason.”
It seems to me that this paragraph suffers from the same problem as the previous paragraph. Firstly it is not necessary under the Convention for a person to leave his or her country because of a Convention related fear of persecution. The Convention is there to protect persons, who have a well-founded fear of persecution for one of the Convention reasons and is outside their country of nationality, from being refouled to that country if they are “unable or, owing to such fear, unwilling to avail themselves of the protection of that country”. The finding that the Tribunal actually made in this case was an irrelevant finding, but it was a finding that appears to misunderstand the terms of the Refugee Convention and the Migration Act 1958 (Cth) and to that extent constitutes a jurisdictional error.
The Tribunal in its findings and reasons goes on at [CB 208] to deal with the newspaper article. The Tribunal provides reasons for not accepting the authenticity of the article. The applicant complains about these reasons but essentially he is debating matters of fact with the Tribunal and I am satisfied that the Tribunal was entitled to come to the view which it did about the article on the basis of the evidence that was before it.
At [CB 209] the Tribunal deals with a number of other claims made by the applicant which it dismisses. The applicant disputes the grounds and reasons for the dismissal of these matters as well. The first claim relates to harassment that the applicant’s wife is said to be experiencing. The Tribunal suggests that if it were true the wife would go into hiding with her three children. Because she did not the Tribunal does not accept the claim. This may seem to some to be a rather unbending attitude to take but I cannot see that it constitutes a jurisdictional error. The Tribunal does not accept that Hindu society in general would mistreat the applicant because he was involved in a cow killing. It confirms there were a handful of criminal prosecutions for this offence but because there was no evidence that Hindu society in general mistreats those who kill calves or cows it does accept this claim as plausible. The applicant disagrees with what the Tribunal has to say on the facts of this matter but the conclusion arrived at by the Tribunal seems to me to be capable of being arrived at on the basis of the evidence before it. I take the same view about the other matters referred to at [CB 209] relating to the consultation with the lawyer and the corroboration of the claim that the police were looking for the applicant aggressively.
At [CB 210] the Tribunal states:
“In the review application of 27 June 2003 the applicant claimed that he was from a social and religious group of people in Nepal who treat the cow as an animal rather than a god. During the hearing, when asked how many people were in this group, the applicant stated that there were four or five in his group. In the adviser’s 13 October 2003 submission he claimed that the applicant “did not get an opportunity to understand the question” (Tribunal folio 158). The Tribunal does not accept this as a plausible explanation. The Tribunal was assisted by a professional interpreter, and at no time during the hearing did the applicant state that he did not understand this question, although he had the opportunity to do so. Moreover, the claim that he belonged to any kind of social or religious group was never raised prior to the review application of 27 June 2003, despite the fact that he had ample opportunity to do so, since he was apparently assisted by a migration agent in the preparation of his protection visa application and he arrived in Australia on
21 April 2003. And therefore, the Tribunal find that this is a recent invention fabricated by the applicant in order to create a refugee profile, and does not accept it. In the adviser’s 13 October 2003 submission the adviser claimed that the applicant was meant to say that there are thousands of people who eat and love beef in Nepal (Tribunal folio 158). The Tribunal finds that this claim is vague, general, and not sufficiently-detailed to be believable. Therefore, the Tribunal does not accept these claims.”
The applicant’s application for a protection visa appears to be dated on 30 May 2003. The application for review was dated 26 June 2003. The decision of the delegate was dated 2 June 2003. The claim of membership of the social group is an articulation of the applicant’s attitude towards eating beef. It does not involve any new facts. It is just a different way of putting his claim for asylum. The Tribunal is under a duty to consider all the possible ways in which an applicant makes his claim. For the Tribunal to reject a different articulation or classification of what is essentially the same factual matrix is a misunderstanding of it’s function and will result in a failure of the Tribunal to exercise its jurisdiction. In Htun v Minister for Immigration (2001) 194 ALR 244 Allsop J discussed the purpose of the review function of the Tribunal and considered the requirement of dealing with a claim as distinct from the mere rejection of a fact. His Honour said at [259]:
"The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act... make it clear that the tribunal´s statutorily required task is to examine and deal with the claims for asylum made by the applicant."
This approach was also emphasised clearly by the Full Court in NABE v Minister for Immigration (No 2) [2004] FCAFC 263:
“It is plain enough, in the light of [Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389], that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected" – [Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] (at 641 [47]).’”
This dicta has been applied by subsequent Full Courts in WAKK v Minister for Immigration [2005] FCAFC 225 at [60-61] and NAVK v Minister for Immigration & Anor [2005] FCAFC 124 at [29-31].
In regard to the final remark made by the Tribunal it does raise some concerns. The applicant may well have been given an opportunity to clarify questions that he did not properly understand but it may not have been clear to him that he did not properly understand the question and therefore properly respond until after the hearing. This seems to be the case with the answer relating to the number of people in the social group. I find the applicant’s response entirely plausible. The applicant’s adviser wrote to the Tribunal immediately after the hearing to clarify the situation. The Tribunal appears to be conflating the response with the major question as to the existence of this social group. But the Tribunal itself provided the applicant with evidence that beef is readily available in Kathmandu and criticises that applicant for not taking advantage of this fact. Surely that indicates that there are more than four or five people in Nepal who take the view that the cow is an animal to be eaten and not to be worshiped as a god. At [CB 212] the Tribunal comes to this conclusion:
“Taken as a whole, in light of the implausibility of some of the key aspect of the applicant’s claims, since many of his claims were recent inventions and some of his claims were vague, general or not sufficiently-detailed to be believable, since there was a material contradiction which was not explained to the Tribunal’s satisfaction, some of his claims were at odds with the independent evidence and one of his key documents is not an authentic newspaper article, the Tribunal can only come to the conclusion that key aspects of the applicant’s testimony are not credible and therefore finds that he is not a credible witness. Accordingly, since the Tribunal finds that most of the applicant’s claims are not credible, the Tribunal is not satisfied that he has a well-founded fear of persecution due to political opinion, membership of a particular social group, religion or for any other Convention reason.”
This is a finding on credibility which a court would be hard put to disturb in the absence of significant jurisdictional error in the manner in which it was reached: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423; NAOL v Minister for Immigration [2003] FCAFC 243; WAJS v Minister for Immigration [2004] FCAFC 139. But it seems to me that the Tribunal did make mistakes as to jurisdictional facts and has fallen into jurisdictional error in such a way that its conclusions on credibility must be impugned.
However, even if I am wrong in the conclusions reached above I think that I am obliged to refer the matter back to the Tribunal because of the failure of the Tribunal to comply with subsection 425A(3) and Regulation 4.35D of the Migration Act and Regulations. These matters have been considered by this court and by the Federal Court on appeal from this court in SZBNS v Minister for Immigration [2005] FMCA 158; SZDQO v Minister for Immigration (2005) 144 FCR 251; SZFKF v Minister for Immigration [2005] FMCA 1152. It was first thought that where a notice of an adjourned hearing did not comply with the requirements of the regulation and the proponent of the adjournment was the Tribunal, but where the substantive obligations under s.425 Migration Act 1958 (Cth) were fulfilled and no lack of procedural fairness had been established the breach did not give rise to jurisdictional error: SZBNS v Minister for Immigration [2005] FMCA 158; SZAPF v Minister for Immigration [2004] FMCA 684. But these cases were decided before the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162. For the reasons explained by Barnes FM in SZFKF (supra) at [38-57] the failure to comply with the mandatory requirements of s.425A(3) involved a jurisdictional error that renders the Tribunal’s decision invalid. That this is the case appeared to be accepted by Conti J in SZDQO (supra) at [27-29]. In that case his Honour distinguished between a postponement of the hearing bought about at the request of an applicant with the postponement of the hearing bought about at the request of the Tribunal. He found there was no jurisdictional error where the date offered by the Tribunal to an applicant at his request did not comply with the Regulation.
Mr Smith in the present case sought to argue from the attendance note of which I gave details at [1] of these reasons that this was a case similar to SZDQO but I do not think so. I think that the attendance note and the letter to the applicant shows clearly that the decision to adjourn the hearing was the Tribunal’s and not the applicant’s. True it is that the applicant’s adviser then sought to take advantage of the adjournment by requesting a further week. But he did not get his further week and the matter was adjourned solely for the convenience of the Tribunal. This puts the case clearly within the facts considered by Barnes FM in SZFKF and that is a decision with which I not only agree but with which I would be restrained from disagreeing unless I could say that it was clearly wrong. I do not believe it is. It seems to me that the only possible argument that the Minister could raise on behalf of the Tribunal was that there only needs to be one initial compliance with the regulation and that thereafter all that has to be done is to ensure that the invitation allows for a meaningful hearing. But FM Barnes deals with this argument at [48] of the decision:
“There is nothing in the language of s.425A or elsewhere in the Division or Act to require the general words of s.425A(3) to be read down or given anything other than their ordinary meaning consistent with the purpose and language of the Act. Section 425A is expressed in terms which would apply to any invitation to appear given by the Tribunal. It is in mandatory terms and is not qualified. (See SAAP AT [71] and [165] and cf ss.423, 424 and 426A). Where the Tribunal postpones a hearing the initial invitation does not remain open. To meet its s.425 obligations the Tribunal must issue a fresh invitation if the hearing is rescheduled at the behest of the Tribunal. In such a case s.425A will apply to the fresh invitation extended to the applicant. As McHugh, Kirby and Hayne JJ pointed out in SAAP in relation to s.424A, s.425A falls within Division 4 of Part 7 of the Act and is part of the statutory regime of procedural fairness (McHugh J at [77], Kirby J at [161] and Hayne J at [197]) and as Kirby J observed in SAAP at [162], the provisions of Division 4 of Part 7 are "unusually detailed, specific and particular" and while some may see them as "inflexible" they are dealing with "unusually important decisions". His Honour stated at [162]:
A measure of inflexibility is the will of the Parliament so as to protect the rights to due process of those affected.”
In all the circumstances I believe that the Tribunal has fallen into jurisdictional error in failing to comply with a mandatory provision of the Act. I must therefore find that the decision of the Tribunal made on 20 October 2003 and handed down on 12 November 2003 was void and of no effect. I would order that the application be referred back to the Tribunal differently constituted to be heard and determined according to law. The applicant was not represented and there will therefore be no order for costs.
Since preparing these reasons my attention has been drawn to a decision of FM Smith in SZFIH v Minister for Immigration [2005] FMCA 1847 and also his decision in SZFJO v Minister for Immigration [2005] FMCA 1964 which followed SZFIH. Smith FM came to the view that a rearranged hearing made at the instigation of the Tribunal and acquiesced in by the applicant does not require strict adherence to the regulation and that failure to so adhere does not constitute a jurisdictional error of the type identified in SAAP. At [55] Smith FM said:
“However, I accept that at [48] of her reasons in SZFKF Barnes FM expresses the propositions that “the Tribunal must issue a fresh invitation if the hearing is rescheduled at the behest of the Tribunal” and must comply with s.425 in terms which would not appear to allow for any exception, in particular for consensual or acquiesced departures from the giving of the prescribed period of notice. For the reasons which I have indicated above, I consider that such an absolute construction is unnecessary, highly inconvenient, and inconsistent with the objectives with the relevant provisions in Division 4. I therefore would respectfully decline to apply her Honour’s propositions to the present case without further qualification.”
FM Smith acknowledged his obligation to follow FM Barnes if the case was clearly on point and unless he thought it to be clearly wrong. He does not appear to have thought that it was clearly wrong because he attempts to distinguish the case on the grounds that in SZFKF there is no evidence of a consensual postponement. I think that his Honour is here making a very fine point. To my mind the obligation contained in the Regulation is an obligation of procedural fairness. It is intended to give an applicant enough time to make appropriate arrangements to attend the hearing with such witnesses and such assistance as he can muster. That is why the Regulation is more than just a procedural matter and that is why I believe that the failure to comply with it would constitute a jurisdictional error of the type identified in SAAP. The danger with making an exception for so called “consensual” arrangements is that there must be some doubt that such arrangements are truly consensual. Firstly, how many applicants can be said to be aware of the provisions of the Regulation? Probably very few. Unless it is explained to them that the Tribunal could be required to give a full fourteen days notice then are they really making an uninformed decision when they agree to the revised date. Secondly, the relative positions of the Tribunal and an applicant are very different. Most applicants will consider an officer of the Tribunal to be a person in authority. Most applicants would consider that their case would not benefit from upsetting that authority. Most applicants would be anxious to appease the authority by agreeing to the authority’s suggestion. And it is not simply a matter of just a few days difference. If an applicant has arranged for an adviser to appear on day one it is not necessarily convenient for that adviser to appear on day three. If an applicant has arranged for an important witness to appear on day one it may well be inconvenient for that witness to appear on day three. These difficulties could lead to the applicant not being able to present his best case and therefore in some way to be denied procedural fairness. I would respectfully disagree with Federal Magistrate Smith. If there was to be an exception for “consensual” arrangements then they would have to be arrangements made on the basis of full information being provided to the applicant and him being given an opportunity to find out whether or not it would be convenient for him to attend on the new date. The evidence from other cases in which these matters have been raised would tend to suggest a variety of ways of communicating with the applicants about the postponements; sometimes only by letter, sometimes by phone and letter, sometimes by communication to their agents, sometimes not. If there is to be an exception to the rule then it should be by way of change to the Regulation so that all applicants and all Tribunals are treated equally.
For these reasons I would maintain the view that I have already expressed that the decision of Federal Magistrate Barnes, which has the support of his Honour Conti J on appeal (as recognised by FM Smith in SZFIH at [50]), should be followed. Thus there will be no change to the orders I proposed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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