SZFZN v Minister for Immigration

[2006] FMCA 1153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFZN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1153

MIGRATION – RRT decision – Indian fearing persecution as homosexual – consideration by Tribunal of incident while in college at New Delhi – misunderstanding of causal test when denying Convention nexus – conclusion not open on evidence accepted by Tribunal – finding of ability to relocate safely to major city – affected by previous error – delay in commencing proceeding – relief not refused.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R(1)(a), 417, 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicants M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 195
Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 95 FCR 517
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Okere v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 112
Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SZCME v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 932
SZDSJ v Minister for Immgration [2005] FMCA 160
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2
SZELA v Minister for Immigration & Anor [2005] FMCA 1068
SZHFW v Minister for Immigration & Multicultural Affairs [2006] FCA 480
SZHFW v Minister for Immigration [2006] FMCA 86

Applicant: SZFZN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG789 of 2005

Judgment of: Smith FM

Hearing date: 3 August 2006

Delivered at: Sydney

Delivered on: 31 August 2006

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience Immigration

Counsel for the First Respondent: Mr J A C Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 4 July 2002 in matter N01/37273.

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 1 February 2001. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG789 of 2005

SZFZN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 1 April 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 June 2002 and handed down on 4 July 2002.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

3. Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.

4. The applicant arrived in Australia in October 2000 on a visitor’s visa.  On 6 November 2000 he applied for a protection visa, assisted by a migration agent, Anil Agnihotri.  He indicated that he was a 23 year old student from India.  A statement attached to the application explained why he sought protection in Australia. 

5. The applicant claimed that he discovered homosexual inclinations with a school friend, when attending “Higher secondary class” in his village.  One day they were “caught by my friend’s mother”.  He said: 

   She got very angry and reported the matter to his father.  His father was furious about this and started shouting and when the neighbours gathered explained them that I was doing this bad thing and not only me but my father was also doing the same with his son. 

   People started beating my father and me and started destroying our house by hurling stones. 

   While this incident was taking place my friend’s father called the police and police in turn arrested my father and my self and we were put in jail. 

   After four days my uncle was able to bail us out.  After this incident my family was humiliated by the society and we were no longer able to move around freely. 

   In our country it is considered that homosexuality is a serious crime and if there is somebody who is found to be a homosexual will be treated inhumanly.  Not only the person but also the whole family he belongs to will be mistreated. 

   Even after this incident I was having an intimate relationship with my friend and I was sent to Delhi for further studies. 

   My friend also gained admission in the same school and we both were in the hostel and we were again able to behave freely as earlier. 

   Again we were caught by students and they made a big scene out of this and our families were informed about our behaviour. 

   When his father came to know about this he was again very angry and forced students to level false allegations against me stating that I was caught in the act of stealing students’ jewellery and police was also bribed in this regard and I was in deep trouble again. 

   I was tortured very bad when I was in police custody and his father bribed the police to make their mistreatment even more intensified. 

   I was lying unconscious when I was taken to hospital and I was hospitalised for 2 days. 

   After being bailed out I was expelled from school and every school refused to give me admission.  Then I went and met the chairman of the Gay community in India and reported the matter to Mr. A. 

   He made this a public issue and I was into deeper trouble. 

   Then I decided to quit schooling and to do a job.  Even that I was not allowed to do and I decided to leave the country. 

   I was able to obtain visa to come to Australia through a travel agent. 

6. No supporting evidence was provided to the Department nor on appeal to the Tribunal, where the applicant was again represented by the same agent.  However, the applicant attended a hearing, and, as will appear, was believed by the Tribunal. 

7. The applicant confirmed his visa statement, except that he said that his father had been arrested because he had come to his son’s defence and not on allegations of sexual impropriety.  He said that this incident in his village had occurred in 1995, and that he moved to New Delhi shortly afterwards.  He said in relation to 1996:  

   I asked whether he had any problems during that year.  He said his father was a farmer and his crops were burned by local people.  One of his sisters was harassed when she was enrolling for a course and had to leave her studies.  The family survived financially thanks to assistance from his mother’s brother. 

8. He then described the incident which occurred in New Delhi: 

   He said his problems in New Delhi occurred in March or April 1997 and he was expelled from the college there in December of that year.  He approached the gay rights activist Mr. A in February 1998.  During the period from February 1998 to October 2000, when he left India, he returned home and helped his father with his crops.  However the same people attacked and harassed him and interfered with the farming.  His friend’s father, who was district chairman said he wanted the applicant to leave.  His family started to have problems again. 

   … 

   I asked him about his expulsion from the college.  He said they told him it was because he was gay and also they knew he had a bad record in his home town.  They did not want bad publicity for the college.  He applied to one other college, [college] in the New Delhi suburb of [location] but was refused.  He does not know why.  Perhaps they knew about him. 

9. The applicant was questioned about his efforts to gain help from the gay rights activist, and to obtain employment.  The Tribunal also put to him material relevant to his ability to live in New Delhi if he returned to India:  

   I gave him the country reports from Reuters and DFAT cited below, which indicate that although anti‑gay discrimination still abounds in India, societal acceptance is growing and larger cities such as New Delhi and Mumbai have quite active gay and lesbian communities and homosexuality in these cities is generally tolerated. 

   He commented that it may be that people in larger cities are becoming more open about homosexuality, but in smaller centres people are still very critical.  Referring to his own experience, he said that in smaller cities if one partner’s family are wealthy, they can “buy” the police and pay lawyers to lie. 

   I asked whether he had considered relocation to New Delhi again or another large city.  He said he had tried in New Delhi but had not been able to study or find a job there.  Moreover, he did not want to be alone all his life, and also his two sisters had to get married.  

10. The Tribunal set out extracts from country information concerning homosexuality in India, but it is unnecessary for me to describe this. 

11. Under the heading “Findings and Reasons”, the Tribunal said that it accepted the applicant’s history of being “caught in flagrante” with his friend in his village, and that “his family suffered humiliation and his father’s crops were later burned by locals”.  It accepted that, when he returned to his village in 1996, “his friend’s father stirred up local animosity because he wanted the applicant to go away”.  It also accepted the applicant’s account of what happened in New Delhi.  It appears to have accepted, or assumed, that this revealed the applicant being publicly identified as a member of a “particular social group” of homosexuals within that term in the Convention definition.  However, it declined to find that the events in New Delhi revealed harms inflicted upon the applicant “for reasons of” that membership. 

12. Its reasoning to that conclusion was:  

    I accept that after he began at the college in New Delhi his friend enrolled in the same college and that they continued their liaison.  I accept that they were again caught in flagrante, and their families were informed.  I accept that the friend’s father caused him to be falsely accused of stealing, and that he was detained and beaten by police who had been bribed by the friend’s father to mistreat him.  I accept that he was hospitalised for two days then released on bail. 

    I note that no charges were laid against him on that or the previous occasion when he was detained. 

    I find that his treatment at the hands of the police, though reprehensible, does not amount to persecution for a Convention reason.  The applicant’s evidence indicates that he was detained not for being caught having sex with his friend, but because of false accusations of theft orchestrated by his friend’s father and that the police beating was also at the friend’s father’s behest.  I note that the applicant makes no reference to his friend suffering any harm at all.  Based on this, I find that the friend’s father was motivated by a desire for personal revenge against the applicant for potentially bringing disgrace on his son and therefore himself, and also a desire to ensure the applicant left his home town.  I find that the police, for their part, acted in response to bribery and hence their motivation was corruption.  These are not Convention‑related. 

13. Counsel for the applicant argued that this reasoning revealed jurisdictional error, being either a misconception by the Tribunal as to what it was required to address under the relevant causal test, or as to the claims made by the applicant as to the reason for the New Delhi events. 

14. He argued that a misconception of the law must be inferred from the Tribunal’s reasoning.  The Tribunal had accepted that the applicant’s mistreatment was the result of the false accusation of his friend’s father motivated by “revenge … for potentially bringing disgrace” on his son and himself, and “a desire to ensure the applicant left his home town”.  Counsel pointed out that it was plain, and the Tribunal appeared to accept, that the social disgrace felt by the friend’s father was the result of the public identification of the applicant as a homosexual person intimate with his son, i.e. as a member of a particular social group incurring the hostility of the local community.  Yet the Tribunal did not explain how it could ignore this obvious explanation for the “desire for personal revenge” of the friend’s father and for the consequential mistreatment of the applicant. 

15. Counsel for the applicant argued that the Tribunal must have overlooked or misunderstood that, on the proper understanding of the Convention definition, an underlying reason for an incident of persecution could provide the Convention characterisation of its “reason”.  The Tribunal must have thought that it was enough to characterise the immediate objective of the person who initiated the persecution, without taking into consideration the cause of his conduct. 

16. In support of this argument he cited authorities which have applied legal concepts of causation to the causal question raised by the Convention definition’s reference to “for reasons of”.  In particular, he cited Okere v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 112 at 117‑118, where Branson J said that the definition “invite[s] the identification of the true reason for the persecution which is feared” by the application of “common sense” according to the test discussed in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 (and c.f. Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 per Wilcox J at 39‑40). He also cited cases where the Tribunal erroneously excluded a Convention nexus by characterising an additional or accompanying motive for persecution as an exclusive, non‑Convention “reason”, without appreciating that a Convention reason may explain actions accompanied by mixed or personal motives, particularly in relation to persecution directed at members of “a particular social group” (c.f. Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 95 FCR 517 at 522, and Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at 315).

17. I accept these submissions.  The Tribunal’s reasoning exhibits a clear paradox between, on the one hand, appearing to accept that the friend’s father was impelled by his society’s hostility to homosexuality when procuring persecution of the applicant, and, on the other hand, finding that the father’s motivation was not “by reason of” the applicant’s “membership of a particular social group”.  The Tribunal provides no reasoning which addresses and explains how it could arrive at these paradoxical findings consistently with the test of causation required to be applied.  I consider that I should infer that it made a significant legal error in its understanding of that test. 

18. During counsel’s submissions, I raised whether the paradox could be explained by a different species of jurisdictional error: that of misunderstanding and failing to address the factual claim of the applicant that his friend’s father was motivated by his society’s hostility to homosexuals, on principles considered in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]‑[63]. I have also considered whether its error could be characterised as the drawing of a conclusion which was not legally open upon a proper understanding of the law when applied to the facts found by the Tribunal. However, on reflection, I prefer the analysis of the Tribunal’s error which was submitted by the applicant’s counsel, since I consider that it best explains the findings and language of the Tribunal.

19. Counsel for the Minister argued that it was open to the Tribunal to characterise the friend’s father’s motivation as not relevantly being the result of the applicant’s identification as a homosexual, because it was required to put aside subordinate or ancillary causes for the persecution, even if they were Convention reasons. He submitted that the Tribunal was required by s.91R(1)(a) to ignore all causes for the persecution other than the one cause which the Tribunal found to be “the essential and significant” reason. Applying this test, it was open to the Tribunal to characterise the friend’s father’s motivation as “personal revenge” for a non‑Convention reason.

20. Section 91R(1)(a) provides:

    SECT 91R     Persecution 

    (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:  

    (a)     that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and … 

21. I accept that the Tribunal was bound to apply this provision, and I will assume that it was aware of it, notwithstanding that it did not use the language of the provision in its reasoning.  However, the paradox which I have pointed to above still remains.  I do not consider that the words “essential and significant” allow a Tribunal to ignore the real or essential underlying Convention reason for a person’s conduct.  In my opinion, the provision should be applied upon an understanding of normal legal concepts of causation attaching to the phrase “by reason of”.  It provides a gloss requiring disregard of concurrent or contributory Convention causes of persecution if they can be characterised as inessential or insignificant. 

22. In the present case, however, nothing in the Tribunal’s reasons suggests that it characterised as inessential or insignificant the underlying anti‑homosexual element which, upon the evidence accepted by the Tribunal, appears to explain the friend’s father’s conduct. In my opinion, it would not have been open to it to do so. I therefore do not accept that the provisions of s.91R(1)(a) can save the present reasoning from significant legal error, amounting to a constructive failure to exercise jurisdiction according to law.

23. Counsel for the Minister also contended that, even if error capable of being jurisdictional occurred at this point in the Tribunal’s reasoning, its subsequent reasoning provided an entirely separate basis for its decision to affirm the delegate’s decision and that relief could be withheld for that reason (c.f. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2 at [233]).

1. In its further reasoning, the Tribunal arrived at a finding that the applicant could avoid persecution as a homosexual by relocating to “a major Indian city”.  The Tribunal said: 

   Based on the independent information cited above, I accept that societal anti‑homosexual discrimination exists in India, as it does to varying degrees, unfortunately, throughout the world.  I accept that homosexual acts are outlawed, although I note the independent evidence indicates that there have not been prosecutions for some years.  I accept that homosexuals can suffer harassment from police.  In this respect, however, I note that the applicant’s two confrontations with police occurred only after he was caught having sex with his friend and the police were summonsed; in one of these instances, moreover, he was detained not for committing a homosexual act but for alleged theft.  In neither case were charges laid against him. 

   I also note that the level of tolerance towards homosexuals is higher in certain large cities, particularly New Delhi, Mumbai and Calcutta and that there are active gay communities there.  I therefore find that the applicant could relocate to one of these cities.  I note from his comments at hearing that he chooses to be publicly discreet about his homosexuality.  I note that he did relocate to New Delhi to attend college.  Although after his expulsion he was not accepted at one other college, I consider that this does not necessarily mean he could not obtain entrance to other educational institutions there if he wanted to.  I consider that, although he did not get any of the three jobs for which he applied, this is not unusual anywhere today when young people are job‑hunting and certainly does not mean that in a major city he could not ultimately get work.  Although he stated at hearing that he did not want to live alone, I note that he has travelled to and wishes to settle in Australia, which is much further from his family than is any Indian city. 

   I note that as he was not charged by police on the two occasions when he was detained, he has no police record.  I also consider that the fact that the gay activist may have included two or three lines in one edition of his newspaper about the applicant’s experiences would have been unlikely to be widely noticed or to bring any publicity to bear on the applicant. 

   He expressed concern at hearing that if he returned he might cause damage to his sisters’ marriage prospects.  I accept that this may possibly be so, but only if he returns to his home town. 

   I therefore find that relocation to a major Indian city where there is an active gay community would be a reasonable option for the applicant and that if he continued to be publicly discreet about his homosexuality as he has so far been, (I note here that although he was twice caught in flagrante, he and his friend were having sex in private on both occasions) the chance of his suffering persecutory harm would be remote. 

2. However, I am not satisfied that these findings might not have been influenced by the Tribunal’s earlier finding that the incident of persecution which the applicant had encountered while living in New Delhi was not by reason of his being identified as homosexual.  A suggestion of this occurs in the first paragraph of the above extract, where the Tribunal appears to discount that incident because “he was detained not for committing a homosexual act but for alleged theft”.  I am not satisfied that the Tribunal did address the issue of relocation upon the alternative basis that the applicant had previously encountered Convention persecution by corrupt police officers in a major city in India instigated by a person hostile to his homosexuality (c.f. SZCME v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 932 at [18]).

3. I therefore do not accept that the Tribunal’s relocation findings can justify the Court refusing relief arising from the error shown in its earlier reasoning. 

4. This conclusion has the result that I do not need to address the submissions of counsel for the applicant which sought to identify a separate failure by the Tribunal to consider “the practical realities facing the [applicant]” if he was unable to live in India outside a major city (c.f. NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22], applying Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437).

5. Counsel for the Minister raised in his written submission filed shortly before the hearing, whether relief should be refused on the ground of the applicant’s delay in commencing the present application for judicial review.  This prompted belated affidavits from both parties, and a cross‑examination of the applicant. 

6. In summary, his evidence showed: 

   ·The applicant received a copy of the Tribunal’s decision and discussed it with his agent shortly after it was handed down on 4 July 2002. 

   ·The applicant followed the agent’s advice to authorise him to instruct a South Australian solicitor, Mark Clisby, to apply in the High Court for an order nisi for writs of mandamus, prohibition and certiorari.  The applicant himself never met, spoke to, nor received any correspondence from Mr Clisby. 

   ·An application was filed on 30 July 2002, with documents completely lacking in particulars of grounds of review.  It was remitted by Hayne J on 7 February 2003 to the Federal Court in South Australia.  In the Federal Court, Mansfield J ordered an amended application and submissions on 22 April 2003.  As with many other matters for which Mr Clisby was responsible, the application was then dismissed by Selway J on 13 June 2003 for non‑compliance with these directions. 

   ·The applicant was told by his agent that his case had been dismissed by the Court. He was not advised that other proceedings might be commenced, and understood from the agent that his only option left was to apply for Ministerial intervention under s.417 of the Migration Act.

   ·The agent submitted such an application by the applicant dated 23 July 2003, and by himself dated 6 August 2003.  These contained very cursory submissions, which did, however, maintain a refugee claim that the applicant “left India because of his fear of persecution by the Hindu oriented Indian Society where homosexuality is considered deplorable”. 

   ·By letter dated 28 May 2004, the applicant was informed that the Minister had decided not to exercise the public interest power.  

   ·The applicant then “went to the former offices of Mr Agnihotri and obtained the advice of a Mr Singh, who was carrying on business as a migration agent at Mr Agnihotri’s former address”.  Mr Singh told him: “You’ve already been to court and lost and you’ve already been to the Minister and lost.  There is nothing more I can do for you.  We don’t do that sort of case”. 

   ·The applicant accepted this opinion, but decided to remain in Australia illegally.  He was taken into immigration detention in March 2005, and was there referred to his current solicitors for advice.  They advised the present application, which was filed on 1 April 2005. 

7. Counsel for the Minister referred me to the principles relevant to deciding whether relief should be refused notwithstanding a finding of jurisdictional error.  He referred me to my own discussion of these in SZDSJ v Minister for Immgration [2005] FMCA 160 at [15]‑[18]. I also discussed and applied them in SZHFW v Minister for Immigration [2006] FMCA 86 in reasoning which was upheld by Madgwick J in SZHFW v Minister for Immigration & Multicultural Affairs [2006] FCA 480. It is unnecessary for me to repeat the citations set out in those judgments.

8. I have given careful consideration to a theme in those authorities emphasising the desirability of finality in relation to challenges to the legality of administrative decisions.  However, I have found a clear failure by the Tribunal to assess the applicant’s refugee claims according to law, and I consider that he is entitled to relief unless I can identify a significant period of unwarranted delay in seeking relief. 

9. Counsel for the Minister conceded, if the only period of unsatisfactorily explained delay facing the applicant was the 10 month period after learning of the failure of the s.417 application, then I should not refuse relief. In the circumstances shown in the evidence, I consider that this was a very reasonable concession.

10. Counsel contended, however, that I should not accept the making of the s.417 application as an “acceptable” explanation for not commencing fresh judicial review proceedings after the dismissal of the South Australian proceedings in June 2003 until 2005. He relied upon authorities in the Federal Court which suggested that this should be treated as an election to pursue a non‑court remedy, and as not justifying a delay in coming to Court.

11. However, as appears from the discussion of Finkelstein J in Applicants M160/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 195 at [7]‑[13], opinions on the significance of pursuing alternative administrative remedies are divided. In Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [107] Gaudron J characterised the Minister’s reliance upon such a two year delay as “wholly without merit” (see also McHugh J at [152] and Kirby J at [219]).  

12. In the present case, the applicant over many years showed clearly that he did not accept the Tribunal’s opinions on his refugee claims, and sought to challenge them in court proceedings by following the advice of his migration agent. He was poorly served by both that advisor and the solicitor who accepted instructions to represent him. I accept his evidence that he thought he had exhausted all court remedies before making his s.417 application, and that he then thought that no other remedy was available. Taking into account the applicant’s personal situation, and the general uncertainty and confusion surrounding judicial review remedies in relation to migration decisions over the relevant years (c.f. my discussion in SZELA v Minister for Immigration & Anor [2005] FMCA 1068 at [55]‑[65]), I consider that nothing in the applicant’s conduct over the period before commencing this proceeding should cause me to refuse to deny relief in this case.

13. For the above reasons, I shall order the issue of writs of certiorari and mandamus, and shall hear the parties further in relation to costs. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  31 August 2006