SZODR v Minister for Immigration and Citizenship
[2010] FCA 1362
•8 December 2010
FEDERAL COURT OF AUSTRALIA
SZODR v Minister for Immigration and Citizenship [2010] FCA 1362
Citation: SZODR v Minister for Immigration and Citizenship
[2010] FCA 1362Appeal from: SZODR v Minister for Immigration & Anor
[2010] FMCA 402Parties: SZODR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 973 of 2010 Judge: JESSUP J Date of judgment: 8 December 2010 Catchwords: ADMINISTRATIVE LAW – Judicial Review – Whether the Federal Magistrate erred in upholding decision of the Refugee Review Tribunal – Whether Refugee Review Tribunal failed to consider medical evidence when assessing appellant’s credibility
PRACTICE AND PROCEDURE – Late filing of Notice of Contention by first respondent – Whether discretion should be exercised to allow extension of time to file notice
PRACTICE AND PROCEDURE – Application to amend Notice of Appeal – Whether amendment should be allowed in the circumstances
Legislation: Migration Act 1958 (Cth) ss 424A, 424AA, 430
Federal Court Rules O 52 r 22Cases cited: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51
Peko-Wallsend Ltd (1986) 162 CLR 24
Warren v Combes (1979) 142 CLR 531Date of hearing: 5 November 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: Mr J Smith Solicitor for the Appellant: Courtyard Legal, The Salvation Army Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent The Second
Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 973 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZODR
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
8 DECEMBER 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 973 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZODR
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE:
8 DECEMBER 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 15 July 2010, wherein the appellant’s application for judicial review, under s 476 of the Migration Act 1958 (Cth), with respect to a decision of the Refugee Review Tribunal made on 7 January 2010 was dismissed. In that decision, the Tribunal affirmed an earlier decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant the appellant a Protection (Class XA) Visa pursuant to the Migration Act. Although expressed in different ways, the burden of the appellant’s case both before the Federal Magistrate and on appeal was that, when it questioned the appellant at oral hearings, the Tribunal had not given attention to the psychological infirmity to which she was then subject.
The appellant is a Pakistani who arrived in Australia regularly on 25 February 2009. She subsequently sought the issue to her of a Protection (Class XA) Visa, upon the ground that she was outside the country of her nationality owing to a well‑founded fear of being persecuted by reason of her Christian religion, and was unable or, owing to that fear, unwilling to avail herself of the protection of that country. Broadly stated, the appellant’s case before the Tribunal was that she practised as a midwife in Pakistan (which the Tribunal accepted), in which context she was subjected to threats, assaults and intimidations of various kinds by Muslim extremists upon the supposed, but mistaken, ground that she was engaged in a project of attempting to convert to Christianity the Muslim women whose babies she delivered (which the Tribunal did not accept). The Tribunal disbelieved much of the evidence given before it by the appellant, both in her Visa application and at the oral hearings (of which there were two). Having critically considered the appellant’s evidence in detail, the Tribunal expressed its general conclusions as follows:
Overall, the Tribunal does not accept that the applicant is in fear of persecution should she return to Pakistan. The Tribunal is not satisfied that she was targeted by ‘Muslim fanatics and street loafers’ because of her Christian religion or that she was accused of teaching Christianity and converting Muslims. The Tribunal does not accept that the applicant was assaulted in August 2008 or that she was abducted, assaulted and detained in December 2008. The Tribunal does not accept that the scar on the applicant’s right arm was obtained for the reason she claimed. The Tribunal does not accept that members of the Taliban were looking for the applicant before she departed Pakistan and after she arrived in Australia. The Tribunal has considered the country information provided by the applicant and accepts that some Christians have been the victims of abduction and serious harm in Pakistan. However, given the Tribunal’s findings relating to the applicant’s credibility in relation to her material claims, the Tribunal is not satisfied that the applicant was targeted as claimed. There is no credible evidence upon which the Tribunal could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if she returns to Pakistan and the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm as a Christian woman practising midwifery in Pakistan.
Before the Federal Magistrates Court, the appellant first alleged that the Tribunal had failed to comply with s 425 of the Migration Act, but she abandoned that point on the present appeal, and I shall say nothing further about it. The appellant’s second ground below was expressed as follows:
The Tribunal failed to complete the exercise of its jurisdiction as it failed to adequately consider or take into account the contents of the report of My Trinh Ha dated 10 June 2009, when assessing the applicant’s evidence before it.
Ms Ha was a psychologist, and her report was written on the letterhead of the “NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors”. It was addressed to the Red Cross in Sydney and, it seems, was immediately sent to the Minister’s Department. In the present appeal, it was common ground that the report was forthwith placed upon the appellant’s departmental file, which was before the Tribunal when it reached its decision on the appellant’s application for review. However, in its reasons of 7 January 2010, the Tribunal made no reference to this report.
Omitting formal parts, Ms Ha’s report was as follows:
Thank you for your referral of [the appellant]. I conducted an assessment on 10/06/2009. [The appellant] reports and displays a range of symptoms associated with anxiety. These symptoms include: excessive worries and fears regarding her future and the safety and well being of her family. She reports that she has poor and disturbed sleep (interrupted by nightmares about her past) and an increased level of intrusive thoughts which impacts her ability to concentrate and focus. [The appellant] also indicates that she is also highly fatigued and has a range of somatic symptoms including headaches.
As a consequence of this symptomatic presentation, [the appellant] is currently not capable of undertaking paid employment. She is therefore in need of whatever financial assistance can be provided to her. Should you require further details please do not hesitate to contact me.
Before the Federal Magistrate, the appellant’s case was that her psychological infirmity as referred to in this report ought to have been a fundamental consideration in the Tribunal’s assessment of her credibility, that the Tribunal had taken no account of that consideration, and that the Tribunal had, therefore, erred in point of jurisdiction.
The Federal Magistrate agreed that the Tribunal ought to have given attention to Ms Ha’s report. His Honour said (at [57]):
The report told the Tribunal two things. The first was that as at the date of the report (10 June 2009) the applicant was not capable of undertaking paid employment because of an anxiety condition. Secondly, the applicant suffered disturbed sleep, with nightmares about her past, and an increased level of intrusive thoughts which impacted her ability to concentrate and focus. I would have thought it uncontentious that a medical report indicating that an applicant suffers from a psychological disability sufficiently serious to prevent them working and which adversely impacts on the applicant’s ability to concentrate and focus was a relevant matter for the Tribunal to take into account in considering the credibility of the applicant’s evidence. The issue was not whether the report corroborated the applicant’s claims (it was far too general for that and was not linked to a discussion of the applicant’s history) but, rather, the issue was whether the applicant’s condition might be an explanation for inconsistent, vague or unconvincing evidence or an inability to recall factual matters of detail. That was why it bore on an assessment of the applicant’s credibility.
However, his Honour was not satisfied, as a matter of fact, that the Tribunal had failed to take Ms Ha’s report into account. In the result, his Honour did not uphold what was then the appellant’s second ground of jurisdictional challenge to the Tribunal’s decision, and dismissed her application for review.
In her appeal to this court, the appellant submitted that the Federal Magistrate had been in error not to have found, as a fact, that the Tribunal failed to take Ms Ha’s report into account. That is the first issue with which I am presently concerned. The Minister resisted that ground, but he also submitted that the Federal Magistrate was in error to have opined that it would have been a jurisdictional deficiency for the Tribunal not to have taken Ms Ha’s report into account. No notice of this contention was filed within the time limited by O 52 r 22(3)(a) of the Federal Court Rules, but, on the hearing of the appeal, the Minister sought an extension of time. Additionally, the appellant seeks to raise a new ground of appeal, not referred to in her Notice of Appeal. She seeks to argue that the Tribunal’s reference to something in her visa application activated s 424A of the Migration Act, and that the Tribunal complied with neither that section nor with s 424AA in relevant respects. I shall return to the appellant’s application to amend in due course.
Turning to the basis upon which the Federal Magistrate did decide the case adversely to the appellant, as I have observed above, his Honour was not satisfied that the Tribunal had failed to take Ms Ha’s report into account. Nothing was said about it in the Tribunal’s decision, but a brief comment by the Member just before she adjourned the first hearing (at about 1:30 pm on 28 August 2009) was considered by the Federal Magistrate to have some bearing on the subject. The following exchanges occurred:
THE TRIBUNAL: Yes. Okay. I’m going to leave it there for today, and I’m going to bring you in on another day to continue, okay? So my case officers will let you know when I would like you to next come in, okay? All right? Then we’ll continue with the rest of your claims on the next occasion. Okay? Is that all right? Yeah.
THE APPELLANT: (NO AUDIBLE REPLY)
THE TRIBUNAL: Yeah, because you get very upset and you probably get tired.
THE APPELLANT: I’m not tired but I’m just very upset.
THE TRIBUNAL: Yes, so it’s probably best to carry on another day. Okay? We’re going to resume this hearing on another day ….His Honour took the view that the Member’s comment may well have bespoken an awareness of Ms Ha’s report. He said (at [59]):
In the circumstances, it is odd that the Tribunal would say nothing about the applicant’s condition in its reasons. It may have been that the presiding member considered that the applicant’s condition was sufficiently accommodated by the adjournment of the first hearing and that nothing further needed to be said or done to deal with the report of My Trinh Ha. I infer from the Tribunal’s silence about the medical report that that was the case.
Later, his Honour said that, although the Tribunal had made no reference to Ms Ha’s report in its reasons for decision –
I am unable to infer from that silence that the Tribunal failed to take the STARTTS assessment into account. The Tribunal was aware from the two hearings that the applicant at times became distressed and the transcript reference referred to above at [45], while tenuous, may be a link to a consideration of the STARTTS report. The presiding member presumably concluded, as I have, that the applicant was fit to give evidence and that the hearing process was not disabled by the applicant’s condition.
His Honour concluded (at [67]):
It is, in my view, unfortunate that the Tribunal made no reference to the STARTTS report in its reasons and it would have been far better if the Tribunal had made some reference to it. However, I am unable to conclude, on the state of the evidence, that the report was overlooked in considering the applicant’s credibility and, on that basis, I find that the second ground has not been established.
Counsel for the appellant argued that the inference that the Tribunal adjourned at 1:30 pm because the Member was aware of, and took account of, Ms Ha’s report was not one which should have been drawn in the circumstances, and could be revisited on appeal: see Warren v Combes (1979) 142 CLR 531, 551. Counsel pointed to documents on the file from which other inferences should be drawn, namely, that the Tribunal had engaged the interpreter, and had made administrative arrangements for its hearing generally, which were consistent with an intention that it would adjourn at about 1:30 pm in any event. One of the factors upon which counsel relied was that the hearing had commenced at 11:20 am, from which it was said to be unlikely that the Tribunal would not always have intended to adjourn when it did.
Counsel relied particularly upon what was said by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51. There too the question arose whether the Tribunal had “had regard” to an item of evidence which was available to it, but which was not mentioned in its reasons for decision. His Honour said (147 FCR at 92-93 [212]):
There was no independent requirement on the delegate so to check. Nevertheless, given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to “have regard” to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58], a “decision-maker may be aware of information without paying any attention to it or giving it any consideration”. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in “an active intellectual process” in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
In NAJT, the court was concerned with the question whether the Tribunal had failed to have regard to some information to which it was under “a statutory obligation” to consider. His Honour described this obligation as “an inviolable duty” (at [213]). The Tribunal was also, and remains, under a duty to set out its findings on material questions of fact, and to provide the reasons for its decision: Migration Act s 430. If there is some circumstance or information as to which the Tribunal neither makes findings of fact nor includes a reference in its reasons for decision, it will not normally be difficult to infer that it did not pay regard thereto. In other words, prima facie at least, the Tribunal’s findings and reasons should be taken at face value.
The position is different, however, where the information presumptively available to the Tribunal was not something to which it was obliged to have regard, in the sense of otherwise being incompetent to make a valid determination (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39), but was information to which it might – perhaps even ought, in a general sense – have regard for the adjectival purpose of assessing credibility. It may be accepted that, in a case such as the present where the Tribunal disbelieves much of the evidence given by an applicant, s 430(1)(b) imposes a duty on the Tribunal to set out the reasons for that disbelief. In the present case, it is not suggested that the Tribunal did not do so, and, as I read its reasons, it did comply with this provision in relevant respects. If there is other information available to the Tribunal which might arguably throw a more benign light on what might otherwise be regarded as wilful untruthfulness on the part of an applicant, but if the Tribunal itself does not so view the matter, the Tribunal would not, in my view, be under a legal obligation to refer to it, either under s 430 or otherwise. The relevance of this in the present case is that the absence of any reference to Ms Ha’s report in the Tribunal’s written reasons is no basis for an inference that the Tribunal failed to have regard to it. If such an inference fairly arose aliter, the absence of any such reference might properly be regarded as consistent with it but, as I understand the position, that is not the present case.
The nature of the material in Ms Ha’s report bears upon the inference that may be drawn from the absence of any reference to it in the Tribunal’s reasons in another respect also. Had the report contained matter that the Tribunal was bound to take into account in the Peko-Wallsend sense – ie matter the consideration of which was an essential condition to the valid exercise of the statutory power to decide – it would not have been sufficient for the Tribunal to have looked at it and decided that it did not bear upon the subject at hand. Ex hypothesi, it would have done so, in the circumstances posited. However, Ms Ha’s report was not of that character. Arguably, it had the potential to bear upon the assessment of the appellant’s credibility by the Tribunal, but it was open, in my view, for the Tribunal to have noted that material and formed the view that it bore little relationship to issues of credibility; or that the concerns expressed by Ms Ha might be accommodated in a pragmatic but unstated way. These possibilities make it the harder for the appellant to sustain the factual proposition, on the probabilities, that the Tribunal completely overlooked, or ignored, the report.
In its reasons for decision given on 7 January 2010, the Tribunal noted that it “[had] before it the Department’s file” relating to the appellant. It was not submitted that I should be so cynical as to read this literally, as not conveying the notion that the Tribunal had read the material on the file. However, counsel for the appellant said that this omnibus statement was, in the circumstances, insufficient recognition of the relevance of Ms Ha’s report to the important question of the assessment of the appellant’s credibility. The Federal Magistrate did not, however, base his inference that the Tribunal had had regard to the report solely upon this observation. Neither would I. The observation indicates, however, that the Tribunal was aware of the report. That circumstance, taken together with the other matters to which the Federal Magistrate referred, provides a reasonable basis for the inference which his Honour drew. More importantly, it was not for the Minister to establish that the Tribunal did have regard to Ms Ha’s report. It was an element of the appellant’s factual case before the Federal Magistrate that the Tribunal had paid no regard to that report. It was the appellant who carried the onus of persuading his Honour that an inference to that effect should be drawn. His Honour was not prepared to take that step.
The inferential case advanced on behalf of the appellant derives no support from the nature of the material alleged to have been overlooked by the Tribunal. The contents of Ms Ha’s report are such as would make it not at all surprising that the Tribunal might have noted them but regarded them as having little bearing on matters of credibility, if that is what in fact occurred. The report was addressed to the Red Cross, not to the Tribunal or to the Minister. It was not relied on by the appellant (she was, it seems, unaware of its existence). Its predominant concern was with the appellant’s need for financial assistance because of her inability to undertake paid employment. In terms, it was not concerned with the ability of the appellant to give a truthful account of her experiences in Pakistan. I consider that the Tribunal’s silence on the subject of Ms Ha’s report is no less consistent with the inference that it read the report but regarded it as of little or no assistance in its fact‑finding exercise than with the inference that it overlooked the report or treated it as irrelevant.
Although the Federal Magistrate said (in the passage I have set out at para 5 above) that the “issue” was whether the applicant’s condition might provide an explanation for what his Honour described as “inconsistent, vague or unconvincing evidence”, counsel for the appellant accepted that this was not a description applied to the appellant’s evidence by the Tribunal itself. For my own part, I do not read the Tribunal’s conclusions on the matter of credibility as having been either wholly or substantially based upon inconsistencies, vagueness or frailty of recollection in point of detail. Indeed, the impression which one gets from the Tribunal’s recitation of the appellant’s evidence – both in her visa application and on the two occasions upon which she appeared before the Tribunal – is one of internal consistency and considerable command of detail. For reasons which it gave, however, the Tribunal took the view that the appellant’s story was untruthful in major respects.
Returning to the appellant’s criticism of the use made by the Federal Magistrate of the Tribunal’s decision to adjourn for the day at 1:30 pm on 28 August 2009, I do not read his Honour as implying that the appellant’s condition was the only reason why the Tribunal adopted that course. His Honour said only that it may well have been that that condition “was sufficiently accommodated” by the adjournment. In other words, it was fairly within the bounds of reasonable inference that the Tribunal Member’s appreciation of some infirmity on the part of the appellant lay behind the brief observation which she made at the close, and that the arrival of the time to adjourn made it unnecessary either to say anything further on the subject or to take any other step to place the appellant more at her ease. This was by no means a strikingly decisive factor against the inference for which the appellant contended – indeed, his Honour considered that it provided only a “tenuous … link” to a consideration of Ms Ha’s report. However, at the end of the day, it was the appellant’s case that the report had not been considered, a proposition for which the evidence before his Honour provided little positive support.
For the reasons set out above, I would dismiss the appellant’s appeal in its current formulation. I would take that course without consideration of the legal issues sought to be raised by the Minister in his late Notice of Contention. I do not propose to give the Minister an extension of time to file his notice. I am influenced by the fact that the Minister’s notification, both to the court and to the appellant, of his intention to make the foreshadowed contention was not just slightly out of time, but came very late in the piece. The points sought to be raised by the Minister involve complex questions of administrative law, and, so far as I can see, notice was provided to the appellant’s advisers only in the last day or two before the hearing of the appeal. To the knowledge of the Minister, the appellant was represented by pro bono counsel, and I consider it would be placing an unreasonable burden upon him, and therefore upon the appellant herself, to expect a substantial response to the Minister’s contention within the time that was available.
The remaining matter which I must consider is the appellant’s application to raise a new ground of appeal, being a new point of jurisdictional objection to the decision of the Tribunal which was not raised before the Federal Magistrate.
Towards the end of the second hearing conducted by the Tribunal, on 19 November 2009, the Member pointed out to the appellant that, in her visa application, she had made no reference to the fact that she was a nurse, or a midwife. Indeed, she had stated that she was a “housewife”. The Member referred to s 424AA of the Migration Act, and told the appellant that, if the Tribunal had any concerns about the information provided in her visa application, “I have to discuss it with you because the differences in the information may lead me to conclude that you are not telling the truth about your application”. The appellant’s response was that she was “a nurse and midwife”. She referred to her training in a civil hospital in Sukkur. The Member said: “But you haven’t provided any documentation about that”. The appellant’s response was that she had lost all her paperwork in floods in 2000. The Member then said:
But you can easily get documentation from your country about your nursing experience. Because supposing you stayed in this country and wanted to do nursing again, you’d have to provide the Australian authorities with some documents about your nursing, wouldn’t you? You would have to do that. You would have to prove that you were a nurse.
There followed some discussion between the Member and the appellant as to whether the latter might forward the relevant documents to the Tribunal, and how long it would take. The appellant asked whether, if she obtained the documents, she might forward them to the Tribunal. The Member said that the appellant could forward anything she liked, but that it was not being requested, adding: “I’m just telling you what my concerns are about your application, because I may accept that you are a midwife but not accept your story about the Taliban”.
The appellant’s new point was this. The exchange referred to above showed that the Tribunal considered that the absence of any reference to nursing or midwifery in the appellant’s visa application would, because of its capacity to reflect on the appellant’s credibility, be part of the reason for affirming the decision of the delegate. That circumstance brought s 424A of the Migration Act into play. The information in question was not given to the appellant in writing, so subs (2) of that section was not complied with. Neither, in the submission of the appellant, was s 424AA, which provides:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Although the submission made on behalf of the appellant that subpara (i) of para (b) of this section was not complied with was a very faint one (and, in my view, one that lacked substance in the circumstances), it was said with more conviction that the Tribunal did not, at least in terms, invite the appellant to comment on or to respond to the information, or advise the appellant that she may seek additional time to comment or to respond, contrary to subparas (ii) and (iii).
It was accepted by counsel for the appellant that his client had been sufficiently alerted to the significance of the fact that her visa application made no reference to nursing or midwifery, and that she did provide further information within a time frame that was satisfactory to the Tribunal. It was also accepted that, in the result, the “information” referred to was no part of the Tribunal’s reason for affirming the decision of the delegate. However, it was said that a breach of s 424A was jurisdictional and, once having occurred, could not be affected either by the intrinsic fairness of the process followed by the Tribunal or by the irrelevance of the information in question to the overall result.
There are, in my view, three reasons why the appellant’s application to amend should be refused. The first is that no explanation was advanced – nor, so far as I can see, was available – as to why the point was not taken before the Federal Magistrate. The appellant was then legally represented, and the transcript of the relevant hearing in the Tribunal was before his Honour. What the appellant now seeks to do is to run a point which could easily have been run below, but was not.
The second is that it is by no means clear that the Tribunal did fail to comply with s 424AA in the circumstances obtaining. Much would depend on the degree of formalism with which the Tribunal is to be regarded as required to follow the steps laid out in the section. In point of substance as distinct from form, the Tribunal did convey to the appellant that there was an opportunity, should she wish to avail herself of it, to present further material with a view to allaying the Tribunal’s concerns about her credibility. To the extent that the ventilation of the point in the present appeal would require attention to be given to the proper construction of s 424AA, I consider that the point, and all the associated issues, were inadequately developed by counsel for the appellant to permit the court to arrive at an entirely satisfactory conclusion, one way or the other.
The third is that, on the facts of the present case, the point is, at the general level, conspicuously unmeritorious. On no view was the appellant denied a fair and just consideration of her claims by the process adopted by the Tribunal: indeed, that process seems to have been calculated to achieve the very kind of substantial, as distinct from formal, outcome as is the concern of s 424AA. Put another way, if, as I propose, the appellant should not now be permitted to amend, I am confident that, whatever the merits of her point as a matter of law, she will not have been denied justice.
For the above reasons, I refuse the application to amend. For that and the other reasons set out earlier, the appeal must be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 8 December 2010
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