SZVXC v Minister for Immigration and Border Protection (No 2)
[2015] FCA 1458
•23 November 2015
FEDERAL COURT OF AUSTRALIA
SZVXC v Minister for Immigration and Border Protection (No 2)
[2015] FCA 1458
Citation: SZVXC v Minister for Immigration and Border Protection (No 2) [2015] FCA 1458 Appeal from: SZVXC v Minister for Immigration [2015] FCCA 2544 Parties: SZVXC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1110 of 2015 Judge: RARES J Date of judgment: 23 November 2015 Legislation: Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)Cases cited: Dietrich v The Queen (1992) 177 CLR 292
Fox v Percy (2003) 214 CLR 118
Jackamarra v Krakouer (1998) 195 CLR 516
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZVXC v Minister for Immigration [2015] FCCA 2544
Taylor v Taylor (1979) 143 CLR 1
Woods v Sheriff of Queensland (1895) 6 QLJ 163Date of hearing: 23 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 55 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1110 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZVXC
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
23 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1110 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZVXC
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
23 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE JUDGMENT)
This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s application to reinstate his case that had been dismissed by an order of the registrar made at the first return date on 19 March 2015, because the appellant had not appeared at the Federal Circuit Court on that occasion: SZVXC v Minister for Immigration [2015] FCCA 2544.
Background
The circumstances in which the proceedings came before his Honour on 16 September 2015 were as follows. After the dismissal of the appellant’s proceedings, his bridging visa was cancelled and in late May 2015, he was taken into immigration detention. The bridging visa had effect while the appellant proceeded with his challenge to the decision of the Refugee Review Tribunal of 26 November 2014 to affirm the Minister’s delegate’s decision to refuse to grant him a protection visa.
On 10 September 2015, the appellant was informed in writing that the Minister proposed to have him removed from Australia to Bangladesh, his country of origin, on 18 September 2015. As a result, the appellant applied, in an application in a case, for his proceedings to be reinstated in the Federal Circuit Court and supported that application by his affidavit made on 15 September 2015. One order sought in the application in a case was an injunction restraining the Minister from removing the appellant from Australia.
In his affidavit of that day he authorised his friend, SZSSJ, to act as his McKenzie friend in his case and at every hearing. The appellant also wrote a letter to the registrar on 15 September 2015 saying that he was unrepresented, barely literate, had limited court experience and wished to have SZSSJ represent him as his McKenzie friend. I should observe that SZSSJ has considerable litigation experience in this and other courts and is fluent in English.
The appellant made a one page written submission of eight paragraphs that was before his Honour at the hearing that was conducted late in the afternoon of 16 September 2015. The submission noted that the Minister had not arranged for SZSSJ to attend the hearing at court with the appellant on that occasion and that this had denied him “mental and legal support today”. The written submission went on to assert that the appellant would be severely prejudiced if the Court decided against him while denying him natural justice. It asserted that he had barely any documents in his possession that were crucial to his case, and that his friend was going to help him retrieve those documents from different sources “which we suppose might take two to three months”. The submission asked, in paragraph 7, under the heading “Orders Sought”, for the Court to adjourn the case “and allow me enough time to obtain documents and legal assistance”.
At the hearing before his Honour, the appellant gave evidence and was cross-examined. The Minister accepted that the appellant’s written submissions seeking an adjournment had been handed to his Honour, but nowhere in the transcript of the hearing did it appear that the request for an adjournment had been raised by any of the participants at the hearing and his Honour did not expressly deal with that request in his judgment.
The trial judge’s decision
His Honour did not accept the appellant’s affidavit evidence that he was “unaware that my previous lawyers did not attend the Court hearing(s) and that resulted the dismissal” [sic]. His Honour found, based on the appellant’s evidence in cross-examination, that he had not retained lawyers and that his friends had assisted him or prepared for him the application that he filed on 23 December 2014.
The trial judge found that the appellant’s failure to appear on 19 March 2015 could not be attributed to lawyers and that the appellant’s friends probably would have both assisted him to file the application and informed him of the matter being returnable before the Federal Circuit Court at 2 pm on 19 March 2015.
His Honour found the appellant had not provided an adequate explanation for not appearing before the Court on 19 March 2015, but he said, that this consideration would not ordinarily be of great assistance if the application, were it to be reinstated, would have reasonable prospects of success. His Honour then considered that question.
The decision of the Tribunal, which the appellant had challenged in his application in the Federal Circuit Court, had rejected the appellant’s claim for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth). The circumstances in which the appellant sought complementary protection in that application were elicited in his cross-examination before his Honour, and were these.
The appellant arrived in Australia in July 1999 and sought a protection visa in August 1999. The Minister’s delegate refused that application in October 1999 and the Tribunal affirmed that refusal on 25 May 2000. From that time, the appellant remained in Australia unlawfully, as he has admitted again today, for the next 13 years.
In 2013, after the complementary protection ground was introduced into s 36(2) of the Act, the appellant applied for a visa on that ground. The appellant claimed in his 2013 application for a protection visa that he was as a supporter of the Bangladesh Nationalist Party or BNP. He claimed that because he had been in Australia for more than a decade and due to the criminal elements within the Awami League, he would be perceived as wealthy and would be abducted and be the subject of extortion were he to return to Bangladesh.
The delegate refused that application in June 2014.
The 2014 Tribunal decision
The appellant had been represented in relation to the review by his registered migration agent who attended the hearing, as the Tribunal noted in its reasons. The Tribunal concluded that the appellant was not a credible witness and did not accept his claims to complementary protection.
The Tribunal also noted that the appellant had submitted, through his representative, an argument that the Tribunal was obliged to consider again his claims for protection as a refugee under s 36(2)(a). It rejected that submission, noting that, in any event, it “has found that the applicant is not a credible witness and does not accept any of his claims are truthful” and, accordingly, refused the application on both bases.
The Tribunal gave comprehensive reasons as to why it found that the appellant was not a credible witness and had not made truthful claims in his then current application. It had found that in 1999 the appellant had applied for a protection visa on grounds that were inconsistent, in a radical way, I may add, with the claims he made in July 2013 for a protection visa. One example was that the appellant had previously claimed fear of persecution because he was a member not of the BNP, but of the Jatio Party. The Tribunal also found that the appellant’s evidence as to his membership of, and activities with, the BNP was so inconsistent and unpersuasive that it could not accept that he was ever a member of that party.
The Tribunal found that the appellant had given inconsistent and confused evidence about why he had left Bangladesh in 1999, and that his evidence as to whether he had been harmed in his country of origin was also inconsistent. It found that, in his current claim for a protection visa, the appellant had asserted that criminal elements might perceive him to be a person of wealth, although in his evidence before the Tribunal he stated he just feared harm from the Awami League. It also found that the appellant’s claimed involvement in Australian politics to be vague and inconsistent. Last, the Tribunal was not satisfied that the appellant had been truthful in relation to his background in Bangladesh.
The Tribunal affirmed the delegate’s decision on 26 November 2014.
The proceedings in the Court below
That led the appellant to file his application for review of the Tribunal’s decision in the Federal Circuit Court on 23 December 2014 when it was allocated, as was recorded on its face, the return date of Thursday, 19 March 2015 at 2 pm. The appellant’s application sought constitutional writ relief. In his affidavit filed in support of the application, he asserted that the Tribunal had failed to consider his claims to protection under the Refugees Convention in accordance with s 36(2)(a) and to complementary protection under s 36(2)(aa).
Early in the hearing before the trial judge the following discussion occurred:
HIS HONOUR: Are you ready to go into the witness box now?
THE INTERPRETER: But they haven’t given me a lawyer. That’s what I have written there in number 3” (being a reference to par 3 in his written submission in which he alleged that “I have been denied mental and legal support today”).
HIS HONOUR: Yes. You can make those submissions in a moment” …
The appellant then gave evidence. Later in the hearing, his Honour explained to the appellant the considerations that his Honour needed to address in order to reinstate his proceedings and the following discussion then occurred:
THE INTERPRETER: Today I don’t want to say anything. Today I don’t feel like saying anything, no.
HIS HONOUR: You don’t want to say why you think the Refugee Review Tribunal was wrong in affirming the delegate’s decision; is that right?
THE INTERPRETER: No, I don’t want to say anything today.
HIS HONOUR: All right. You are also seeking an order that the Government not require you to leave the country on 18 September.
THE INTERPRETER: Yes.
HIS HONOUR: Now, in addition to what you have put in writing, is there anything else you wish to say to me about why ---
THE INTERPRETER: That’s what I’ve already told you when return there that I’ve got problems all over my body. Problems.
HIS HONOUR: Yes but you are before the court now and I just wanted to make sure that you do not wish – I want to make sure whether you wish to say anything more than what you have put in this document about why the Government should not require you to leave the country on the 18 September.THE INTERPRETER: Because it’s very problems for me if I – I will either die or they will kill me if I have to return to my country. I can’t go.
HIS HONOUR: All right. Now, before Mr Marcus addresses the court, is there anything else you wish to say?
THE INTERPRETER: No, no. Nothing.
His Honour asked if the appellant had any submissions in reply after the solicitor for the Minister had made his submissions and the appellant asserted:
Just to say that I’m not well at all. I cannot travel and if I go back I will have a lot of problems. I can’t. (emphasis added)
The trial judge’s decision
The trial judge found that there was no reasonably arguable prospect of success in the application for constitutional writ relief. He identified the appellant’s current protection visa application as being based on his claim to fear harm, as a supporter of the BNP.
The only two grounds on which the appellant claimed constitutional writ relief in his application in the Court below were “law error” and “over looked real claim”. His Honour found, in reserved reasons delivered on 17 September 2015, that, by themselves, those grounds did not disclose any arguable ground of jurisdictional error first, because no legal error was alleged and, secondly, because the Tribunal had considered both s 36(2)(a) and (aa) in respect of the appellant’s claims to complementary protection and also to refugee status.
His Honour noted that the appellant, who was unrepresented before him, had made no submissions in relation to those grounds. Rather, the appellant had argued that he would have a lot of problems if he returned to Bangladesh, including a number of health problems. As his Honour observed, those matters did not disclose any arguable grounds of jurisdictional error. He found there was nothing in the Tribunal’s decision that could reasonably suggest that it had made any jurisdictional error.
The trial judge concluded that the appellant had not provided a reasonable explanation for not attending on the first court date on 19 March 2015 and that he did not have any reasonable prospects of successfully prosecuting the application were it to be reinstated. Accordingly, his Honour ordered that the application for reinstatement be dismissed and declined to grant an injunction.
This appeal
A judge of the Court on 18 September 2015 granted the appellant leave to appeal and granted an injunction restraining the Minister from removing the appellant until the appeal were heard and determined, or until further order.
The notice of appeal filed pursuant to the grant of leave to appeal contained four grounds. It asserted that, first, the appellant had been denied procedural fairness, secondly, the trial judge had not taken into “consideration many relevant consideration and laws”, thirdly, his Honour had erred in “failing to find many facts in the totality of the case” and, fourthly, his Honour had not taken into consideration the public interest.
Initially, the parties filed a draft consent order seeking that the appeal be allowed and the matter be remitted to the Federal Circuit Court to be reheard on the basis that his Honour had not expressly or otherwise dealt with the request for the adjournment and that, in those circumstances, the appellant had been denied procedural fairness. I refused to make that order on the ground that, as I had understood from the papers, the appellant had wanted an adjournment because he was not able to be assisted at the hearing before his Honour by his McKenzie friend, SZSSJ. My associate sent an email to the parties on 30 October 2015 setting out that understanding and asking whether there was any reason why, if I provisionally allowed SZSSJ to act as the appellant’s McKenzie friend on the appeal, he could not fully present his argument (as he would have wished, had an adjourned hearing been granted) on the appeal that the Federal Circuit Court erred in failing to grant his claims for constitutional writ relief. The parties agreed that they could proceed on that basis. The Minister made arrangements, without any obligation to do so, for SZSSJ to be present today to assist the appellant with the aid also of an interpreter, and he has sought to do so.
The appellant made an affidavit on 17 November 2015 that stated “I have been seeking legal assistance”, and that he had made applications on 17 November 2015 for freedom of information requests to the Department of Immigration and Border Protection and to the Administrative Appeals Tribunal for all his papers in connection with his proceedings, including audio, video and digital files.
The appellant’s submissions
The appellant filed written submissions in support of the appeal on 20 November 2015 and the Minister filed his submissions on the same day.
In the appellant’s written submissions he noted, although there is no evidence of this, that SZSSJ had asked someone over the phone to arrange a lawyer or barrister to provide him with legal assistance as soon as he received the notice of intention of remove him, but, because nothing had been heard in response, he asserted that he then lodged his application in a case that came before his Honour. He said that everyone whom he had approached for legal assistance had asked him for documents and that he “barely [had] any”. He argued that he had been denied procedural fairness by his Honour because he did not have the legal assistance of a lawyer and that he did not have all the documents to assist him.
The appellant’s written submissions referred to what Mason J said in Kioa v West (1985) 159 CLR 550 at 585 about the need for the rules of procedural fairness to be appropriate and adapted to the circumstances of a particular case, and to take into account, in light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, that the statute seeks to advance, protect or permit to be taken into account as the legitimate considerations. He argued that it would not be possible to know if a different outcome might have occurred had the trial judge granted or considered his request for an adjournment.
Today, the appellant and SZSSJ both made submissions in support of the appeal. They asserted that they were not aware that the purpose of today’s hearing was to consider, among other things, what orders his Honour should have made, had he granted the adjournment and SZSSJ later been able to appear and make, or assist the appellant in making, arguments in support of his case that the proceedings be reinstated. They argued that the appellant should be granted an adjournment of the hearing today so that he could seek legal assistance and obtain the materials the subject of the freedom of information requests made on 17 November 2015. They put this despite having the appeal book that contained the decision of the Tribunal, the transcript of the hearing before his Honour and his Honour’s reasons, together with the documents that the appellant had filed in the proceedings before his Honour seeking constitutional writ relief.
They also argued that the appellant should be allowed an adjournment today so that he could get a lawyer or so that he could prepare the case properly for hearing today. They argued that the appellant needed legal assistance to be able to identify jurisdictional error and that he was not obliged to show any likely outcome of the proceedings below. They contended, rather, that he had been denied an opportunity to present his case properly and was entitled to have the matter sent back to the Federal Circuit Court to be heard afresh. They argued that the appellant had health problems and, when he needed treatment for his kidney condition, he was not able to think straight, and that if he had more time he would get a lawyer. They argued that they were not able to address the Tribunal’s reasoning, that there were inconsistencies between his 1999 application for a protection visa and the one he made in 2013 without the documents, including those from the 1999 application.
Consideration
It must have been obvious to the appellant that, at some point during the hearing before his Honour, the adjournment application was not being considered or granted. That is because the hearing proceeded. He was asked to give, and gave evidence. The hearing then continued with submissions on the substance of his application for his proceeding to be reinstated, so that the validity of the Tribunal’s decision could be challenged. What occurred was understandable, given the urgency of the matter being heard at 4.15 pm on 16 September 2015, in circumstances where the appellant was due to be removed from Australia two days later unless the Court granted the appellant injunctive or other relief.
The appellant did not remind his Honour at any point about his application for an adjournment.
I accept the Minister’s submission that the Minister had no obligation to arrange for SZSSJ, who was then and is now in immigration detention, to attend at the Court with the appellant. However, as I observed in the course of argument, arrangements could have been made for SZSSJ to appear by telephone from the place of his detention on 16 September 2015.
The critical question is whether his Honour’s failure expressly to deal with the written application for an adjournment, first, was a denial of procedural fairness and, secondly, if so, ought be remedied by setting aside his Honour’s decision to refuse the application to reinstate the proceedings.
As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
The issue on the application before his Honour was whether the principle of natural justice, that a party is entitled to be present to have the case he she brings or has made against him or her determined in his or her presence, necessarily entitles a person who has had an order made ex parte against him or her to a review of that order and, if necessary, for its discharge. The High Court considered the applicable principle in Taylor v Taylor (1979) 143 CLR 1; see too Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164 per Griffith CJ. Mason J said (143 CLR at 16) that:
A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party [Craig v. Kanssen [1943] KB 256, at 262-263] but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. (emphasis added)
The trial judge took a view of the requirements more favourable to the appellant, and granted him a full hearing of his application to reinstate his proceedings, despite his failure to show that there was no fault on his part for his non-appearance on 19 March 2015. However, in doing so, his Honour appeared not to address the application for an adjournment.
Critically, the appellant made his application for an adjournment to his Honour to enable him subsequently to explore grounds for challenging the Tribunal’s decision, and not to give any better explanation of his failure to attend on the first court date.
The appellant gave evidence as to why he had not appeared, which the trial judge did not accept. His Honour found that the appellant had not provided a reasonable explanation for not attending on that occasion. Having reviewed the transcript, his Honour had ample reason for coming to that conclusion and I agree with it. The appellant and SZSSJ said nothing today about any prejudice or anything else that could have affected that finding.
Moreover, the appellant had been in immigration detention since late May 2015 and was fully cognisant, by then, that his bridging visa had been cancelled. Yet he has made no attempt between going into immigration detention and the present time, to obtain any documents he asserted that he might need for his case until making the freedom of information requests on 17 November 2015.
He asserted that these delays were due to his medical condition. But he gave no evidence as to how he had been impeded at all and, most particularly, in the period between learning of the intention of the Minister to remove him to Bangladesh on 10 September 2015 and the present time. Nor did he explain why he had done nothing whatever until 17 November 2015 to seek the documents that he asserted were so necessary to his pursuit of constitutional writ relief.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, Mason, Wilson, Brennan, Deane and Dawson JJ said that:
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ) in Jones v. National Coal Board [[1957] 2 QB 55 at 67], in these terms:
“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. (emphasis added)
An appeal to this Court under s 27 of the Federal Court of Australia Act 1976 (Cth) is a rehearing on the material before the trial judge: cf Fox v Percy (2003) 214 CLR 118. Moreover, this Court has all of the powers that the trial judge had to determine the case where all that is involved is a question of law. An appellate court is in as good a position as a lower court to deal with a submission of law that the trial judge may have overlooked or was not able to deal with on the materials before him or her.
In my opinion, none of the arguments of a miscarriage of the proceedings below put forward by or on behalf of the appellant has had the effect of denying the appellant the opportunity today to advance whatever case he wished to make to reinstate the proceedings in the Court below. Having considered all of the material before his Honour and all that has been said by the appellant and SZSSJ, including his fresh evidence that he wishes to seek legal representation and the very recent freedom of information requests, I am satisfied that the appellant lost no opportunity to advance his case and that no practical injustice has be shown: Stead 161 CLR at 145; Ex parte Lam 214 CLR at 13-14 [37]-[38].
In my opinion, the application for reinstatement before the primary judge was entirely without merit in that no arguable case for jurisdictional error was advanced to his Honour or has yet been identified by the appellant or SZSSJ before me: cf Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540 [66(4)] per Kirby J. Having had more than two months since his Honour’s decision, the appellant has not taken steps, with any industry, to identify what arguments he could put to have the Tribunal’s decision set aside. His attempt to seek documents by freedom of information requests last week was not a sufficient or reasonably diligent attempt to look after his own interests.
No doubt proceedings seeking review of decisions of the Tribunal are daunting and complex for persons without legal training, let alone in a language that is not their first language. The difficulties of the appellant in acting for himself, even with the assistance of SZSSJ, are obvious. However, the Court cannot require that lawyers always represent parties and cannot impose upon the public purse some obligation to fund legal assistance for persons in cases of this kind: cf Dietrich v The Queen (1992) 177 CLR 292 at 310-311 per Mason CJ and McHugh J, at 323-325 per Brennan J, at 330-331 per Deane J, at 349-350 per Dawson J, at 356-357 per Toohey J.
The Tribunal’s reasons demonstrated that it had considered and rejected the appellant’s claims to protection, at a factual level. It explained its disbelief of those claims in a way that, having reviewed its reasons carefully myself, I am unable to perceive affords any arguable basis upon which it could be contended that those reasons were affected by a jurisdictional error. The appellant must have been aware, at all times, of the basis upon which he first sought protection. He has not asserted at any point in these proceedings or in the proceedings before his Honour, that the Tribunal, for example, mischaracterised his 1999 claim for protection as being fundamentally inconsistent with that which he made in 2013.
In all the circumstances, I am of opinion that his Honour was entitled to proceed as he did with an urgent hearing and that, had the appellant wished to press his argument for an adjournment, he had every opportunity to put that argument to his Honour at the time. I appreciate the difficulty of appearing for oneself, as he was doing, and that, no doubt, he was nervous and uncomfortable in representing himself.
In my opinion, there is nothing in the material before me that suggests that any practical difference would occur if the matter were to be sent back to his Honour to be heard again. The substantive case for reinstatement could not go beyond the appellant’s evidence that his Honour rejected as to why he had not turned up on the hearing date of 19 March 2015 and the challenge to the Tribunal’s decision, in my opinion, has no prospect of success: Jackamarra 195 CLR at 510-520 [3]-[4], 540 [66(4)]; Stead 161 CLR at 145; Ex parte Lam 214 CLR at 13-14 [37]-[38]; Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ.
Conclusion
For these reasons, I am of opinion that the appeal must be dismissed with costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 18 December 2015
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