Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs

[1998] FCA 1423

FEDERAL COURT OF AUSTRALIA

MIGRATION - review Refugee Review Tribunal - application for protection visa - whether well-founded fear - Sri Lankan Tamil - whether real chance of persecution - whether error in assessment of psychological evidence - post traumatic stress disorder - whether failure to act with substantial justice and merit - whether findings on credibility were rationally supported by probative evidence

Migration Act 1958 (Cth) ss 476(1)(e)

1951 Convention Relating to the Status of Refugees Article 1A(2)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Paramanathan v Minister for Immigration and Multicultural Affairs (unreported, Davies J, 15 May 1998) cited

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 followed

Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 cited

Selliah v Minister for Immigration and Multicultural Affairs, (unreported, Nicholson J, 24 April 1998) cited

Damir v Minister for Immigration and Multicultural Affairs (unreported, Ryan J, 19 October 1998) cited

Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court, Von Doussa, Moore & Sackville JJ, 7 November 1997) considered

Thanh Phat Ma v Billings & Anor (1996) 142 ALR 158 followed

Chamberlain v R (1983) 153 CLR 521 cited

Fuduche v Minister for Immigration (1993) 45 FCR 515 discussed

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 discussed

Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 considered

Kopalapillai v Minister for Immigration and Multicultural Affairs, (unreported, Full Court, O'Connor, Branson & Marshall JJ, 8 September 1998) considered

Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 1 August 1997) cited

Sivalingham v Minister for Immigration and Multicultural Affairs (unreported, Goldberg J, 5 March 1998) cited

UTHAYACHANDRA SELLAMUTHU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 677 of 1998

HELY J
SYDNEY
11 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 677 of 1998

BETWEEN:	UTHAYACHANDRA SELLAMUTHU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		HELY J
DATE OF ORDER:		11 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 677 of 1998

BETWEEN:	UTHAYACHANDRA SELLAMUTHU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	11 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:        The applicant is a citizen of Sri Lanka.  On 19 April 1998 he arrived in Australia, travelling without a passport and without a visa.  He was refused immigration clearance and detained at the Immigration Detention Centre ("IDC"), Villawood.

Arrangements were made to return the applicant to Sri Lanka, but on 21 April 1998 an injunction was granted restraining his deportation to Sri Lanka, upon the basis that an application for a protection visa would be made by the close of business on the following day.  The applicant was taken from the airport back to IDC Villawood.

On 22 April 1998 an application for a protection visa (866) was lodged.  The applicant gave as the main reason for his leaving Sri Lanka:

"After the Sri Lankan armed forces occupied Jaffna I was detained as a suspected member of the LTTE on two separate occasions.  I was interrogated and tortured, including being buried up to my neck for two days and left in the sun, and being assaulted until I passed out.  The periods of detention totalled more than a year."

On 29 April 1998 the application for a protection visa was refused.

On 30 April 1998 application for review was made to the Refugee Review Tribunal ("RRT").  The application was forwarded under cover of a letter of 30 April 1998 from McDonells, Solicitors which included the following statement by Mr Karp of that firm:

"I have now had two consultations with Mr Uthayachandra.  In my opinion he displays clear signs of having been severely traumatised.  Amongst other things he has poor attention span, has difficulty in focussing on questions and is in obvious distress in relating painful events.  He also advised me that he had difficulty sleeping and that the thought of his mother, whom he instructs me was raped by members of the Sri Lankan forces, reoccurs in his mind."

Mr Karp submitted that RRT should arrange for a psychological assessment to be carried out by a clinical psychologist or a psychiatrist experienced in torture and trauma cases.

On 28 May 1998 the applicant made a statutory declaration in which he gave an account of his life in Sri Lanka.  On 3 June 1998, his solicitors made a detailed submission to the RRT in support of his claim for refugee status.  Reduced to its essentials, the applicant's claim was that he is of Sri Lankan Tamil ethnicity.  For many years the government of Sri Lanka has fought the LTTE which seeks a separate state in the country's northern and southern provinces for the Tamil minority.  On 19 April 1996, he and his mother were arrested by the Sri Lankan Army.  They were both assaulted and tortured.  His mother was raped whilst in detention.  The applicant was held in detention until 3 April 1998, when a bribe was paid for his release.  The reason for his detention and torture was a suspected connection with LTTE.  The applicant said that his younger brother joined the LTTE in the early 1990's, and the applicant was kidnapped and made to work for the LTTE between May and October of 1995, after which he became separated from his LTTE unit during the evacuation of Jaffna.

On 6 June 1998, Ms Saryu Rao Vurigonda, a psychologist, provided a psychology report on the applicant at the request of the RRT.  The diagnosis was described as being "post traumatic stress disorder" (309.81 DSM IV) and the report recommended that the applicant should be given therapeutic intervention to help overcome his past traumatic experiences.

A hearing was held before the RRT on 10 June 1998.  The hearing commenced at 10.10 am and finished at 12.40 pm.  The applicant gave sworn evidence with the assistance of an interpreter.  The transcript of the hearing was not placed into evidence before me.

On 24 June 1998, the applicant's solicitors wrote to the RRT in relation to the psychologist's report.  It was the solicitors' contention that Ms Vurigonda's report was inadequate in a number of respects, one of which was that it said nothing of the effect of trauma upon memory.  The letter enclosed a report of 16 June 1998, obtained from another clinical psychologist, a Mr Kevin O'Sullivan, and made further submissions to the RRT in relation to the psychologist's report.  Mr O'Sullivan gave it as his opinion that the applicant's account of his symptoms was entirely genuine and without exaggeration or embellishment.  He recounted an assertion by the applicant that he found it difficult to concentrate and that he thought his memory was worse than before his torture.  Mr O'Sullivan said that impaired concentration and perceived memory loss were recognised sequelae of trauma, and he concluded that the applicant is a credible history giver.

On 26 June 1998, RRT affirmed the decision not to grant a protection visa.  RRT accepted:

-That the applicant is a national of Sri Lanka and that he is a Tamil.

-That the applicant is suffering from post traumatic stress disorder.

RRT did not find the applicant to be a credible witness.  The reasons it gave for coming to that conclusion were:

-At the hearing, the applicant gave the impression of sticking to a version of the facts which he had rehearsed, rather than responding to questions put to him.

-There were discrepancies in his account of his movements in the decade before he left Sri Lanka, and in the account of his alleged detention between that given in his original application, in the statutory declaration, and at the hearing, for which there was no, or no satisfactory explanation.

Having regard to the psychologists' reports noting the applicant's difficulties in concentrating and his perceived memory loss, RRT could understand an inability on the part of the applicant to give a detailed account of his past.  What it could not understand was how very detailed but inconsistent accounts of the applicant's history could be given, without there being any explanation for the discrepancies.  RRT concluded that the applicant's account of his past experiences given in his statutory declaration and at the hearing before RRT was a fabrication, and one which could not be believed.

Having regard to the findings made in relation to the credibility of the applicant's account RRT did not accept:

-That he was ever forced to work for the LTTE.

-That his younger brother joined the LTTE in 1992.

-That the applicant was ever detained and tortured by the Sri Lankan army.

It followed that RRT did not consider that there is a real chance that the applicant will be arrested, detained or tortured by the Sri Lankan authorities if he returns to Sri Lanka now or in the foreseeable future, because "the well-founded fear" which he claimed in that respect was based upon alleged past experiences which the Tribunal had rejected.

Review is sought of that decision on the following grounds:

1. RRT made an error of law in terms of s 476(1)(e) of the Act in that it failed properly to apply the "real chance" test by failing to engage in reasonable speculation based on the whole of the evidence before it as to whether the applicant had a "well-founded fear" of persecution within the meaning of the Refugee Convention.

1. That procedures that were required by the Act to be observed in connection with the making of the decision were not observed:

   (a)RRT failed properly to enquire into the applicant's case.  Having accepted that the applicant was suffering from post traumatic stress disorder, RRT had a duty to seek further psychological evidence as to whether the post traumatic stress disorder inhibited the applicant's ability to recall events.

   (b)RRT failed to act in accordance with substantial justice and merits of the case in that it rejected the opinion of two psychologists to the effect that the applicant had been tortured in favour of his lay opinion that the applicant had not been tortured.

   (c)the findings on the credibility of the applicant were not rationally supported by probative evidence and RRT failed to consider rationally the probative evidence that was before it.

Failure to apply the "real chance" test: Ground 1

The ultimate issue which RRT had to decide (Schedule 2: 866, 211) is whether it is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("Refugee Convention").  Generally speaking, Australia has protection obligations to persons who are within the definition of the term "refugee" for the purposes of the Refugee Convention.

The applicant sought to bring himself within that definition on the basis that, although a National of Sri Lanka, he was unwilling to return to Sri Lanka, owing to a well-founded fear of being persecuted for reasons of race (Tamil) or perceived political opinion (association with LTTE).  That "well-founded fear" was said to flow from the general "country information" supplied by the applicant's solicitor in his submission of 3 June 1998, as well as from the applicant's account of his treatment at the hands of the Sri Lankan security forces.

In its reasons for decision RRT recorded with apparent acceptance, the following statement in or derived from the US State Department "Country Reports on Human Rights Practices" for 1997:

·"The US State Department reported that the security forces continued to torture and mistreat detainees, and that most torture victims were Tamils suspected of being LTTE insurgents or collaborators.

·'Disappearances' or extrajudicial killings continued, especially in the north and the east, and most disappearances were associated with the arrest of suspected LTTE insurgents.

·Impunity remains a serious problem.  Since April 1995 at least 700 persons have been extrajudicially killed by the security forces or disappeared after being taken into security forces custody and are presumed dead.  As of years end (1997), no member of the security forces has been convicted for any of these crimes.  In the vast majority of cases where military personnel may have committed human rights violations, the Government has not identified those responsible and brought them to justice."

It was the applicant's contention that the RRT erred in law in that, to take and adapt the words of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 293:

"… by a process of factual findings on particular elements of the material which is provided, [it] foreclose[d] reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material …."

It was the applicant's contention that had RRT considered the whole of the evidence, including that part of the evidence that it accepted, it would be necessary, notwithstanding particular findings, for RRT to return to the question posed by Kirby J at p 293: "What if I am wrong" in rejecting the applicant's claims referred to above.

RRT did not accept that all Tamils in Sri Lanka have a well-founded fear of being persecuted merely by reason of their race.  RRT's conclusion in that regard accords with the conclusion reached by Davies J in Paramanathan v Minister for Immigration and Multicultural Affairs (unreported, 15 May 1998, NG 53 of 1998).  Accordingly something more than being of Tamil ethnicity in the circumstances presently existing in Sri Lanka is required in order to establish a well-founded fear of persecution on a convention ground.

That "something more" was sought to be supplied by the applicant's account of his treatment at the hands of the Sri Lankan security forces, and the probable reasons for that treatment.  But that account was not accepted by RRT.  There is no legal rule that in all cases the RRT must consider whether findings which it has made might be wrong.  To proceed as if there were such a rule would be inconsistent with what the High Court said in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 580. In Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635, 650 Merkel J said that the "what if I am wrong" approach to fact finding:

·"is relevant to facts found on the basis that they are 'slightly more probable than not';

·is neither rational nor necessary when the RRT has no real doubt that its findings are correct;

·has a varying applicability in cases lying between the two situations stipulated above."

See also Selliah v Minister for Immigration and Multicultural Affairs (Nicholson J, 24 April 1998 – unreported at p 28), Damir v Minister for Immigration and Multicultural Affairs (Ryan J, 19 October 1998 – unreported).

In Chand v Minister for Immigration and Ethnic Affairs (NG 257 of 1997 – 7 November 1997 – unreported) the Full Court said, at p 12 of the print J97/1198:

"If the RRT, in its evaluation of the evidence, finds that a fact alleged by a claimant in support of his or her case did not happen, that rejected allegation of fact can provide no substantial basis for speculating that a well founded fear exists."

The Full Court said that this statement requires qualification where, although RRT considers that a past fact asserted in support of the claim for refugee status probably did not happen, a finding to that effect cannot be made with the degree of confidence which justifies putting aside the allegation as being without substance.

For myself I think, with respect, that there is force in the observations of Drummond J in Thanh Phat Ma v Billings& Anor (1996) 142 ALR 158 where his Honour, after referring to Kirby J's exposition of the "What if I am wrong?" test in Wu, observed at p 160:

"I do not think that Kirby J, in the last part of the passage in his reasons in Wu which I have set out, suggests that the decision-maker must refrain from reaching conclusions on the factual issues before him, but must instead proceed immediately to speculation on whether, on the whole of the material before him which he has not attempted to assess for probative cogency, the particular applicant for refugee status has a well-founded fear of persecution.  If that were to be the way the decision-maker had to proceed, few would be denied refugee status: assume a person claims to be a refugee because he has expressed political opinions that have angered the authorities in his homeland and that, in consequence, he will suffer retribution if he returns.  He would inevitably succeed on such a claim to refugee status if the decision-maker had to refrain from evaluating the reliability of the claim and accept it uncritically and go on to speculate whether the unassessed claim was enough to show a real chance of persecution.  All I think Kirby J was concerned to explain was that, unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect."

That is consistent with the general approach to fact finding in the case of circumstantial evidence.  (See Chamberlain v R (1983) 153 CLR 521, 534-9.)

Here, RRT concluded that the applicant's account of his past experiences "is a fabrication and cannot be believed".  Having regard to the unequivocal nature of that finding, and the reasons for it, in my opinion there is simply no rational basis on which the applicant's account of his past experiences could have any continuing part to play in the RRT's assessment of whether the applicant has a well-founded fear of persecution for a Convention reason if he returns to Sri Lanka now or in the foreseeable future.

Accordingly in my opinion, the first ground on which an Order of Review is sought has not been made out.

Errors in relation to the psychological evidence
Grounds 2(a) and (b)

The psychologists' reports indicate that each psychologist was told by the applicant that he had been tortured, and each of them believed what he said in that regard.  Ms Vurigonda expressly gave a diagnosis of Post Traumatic Stress Disorder.  Mr Kevin O'Sullivan concluded that the applicant was a credible history giver, and that his account of his symptoms was genuine.  He said that impaired concentration and perceived memory loss were recognised by professionals as sequelae of trauma.

RRT appeared to accept (p 26) the opinion "of the two psychologists" that the applicant is suffering from post traumatic stress disorder, but in the light of its other findings, could not "shed any light on what particular traumatic experiences in his past may have caused this condition".  RRT did not accept that there was a "relevant causal nexus" between the applicant's past traumatic experiences, and persecution for the purposes of the Convention.

In Fuduche v Minister for Immigration (1993) 45 FCR 515, at 522 Burchett J said:

"Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision.  But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own …"

I do not think that it follows from this decision that RRT was obliged to accept the applicant as a truthful witness in terms of the evidence given to RRT, just because two psychologists believed his history, and at least one of them, and perhaps both of them, were of the opinion that he was suffering from post traumatic stress disorder.  RRT had to make up its own mind on this issue, taking into account all the material available to it, including the psychologists' reports.  That is what RRT did.  RRT accepted the diagnosis of post traumatic stress disorder, but was not prepared to accept the applicant's account as to how he came to be suffering from that condition.

In Wu page 272, the High Court emphasised that courts reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

In the light of that injunction, it seems to me that it was a matter for RRT to determine what weight should be given to the expressions of opinion by the psychologists as to the applicant's being a "credible history giver", and the RRT was entitled to take the course which it did.

Nor, in my opinion, was there any duty on RRT to obtain a further psychological assessment of the applicant before coming to a decision on the application.  As I understood the submission put it was to the effect that RRT should have obtained expert assistance from a psychologist as to whether the detailed but inconsistent accounts which the applicant gave of his history was explicable on the basis of post traumatic stress disorder.

"It is now established that a failure by a decision-maker to obtain important information, on a central issue for determination, that a decision-maker knows to be readily available may result in the decision being branded an exercise of power so unreasonable that no reasonable person could so exercise the power."

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 548.

However, RRT appears to have explicitly raised with the applicant at the hearing (at which his solicitor was present) its concern that the applicant was repeating more or less word for word what was in the statutory declaration, rather than responding to questions (p 11) and its concern as to the unexplained discrepancies in the detailed accounts of his history between those contained in the original application, and those later given.

Mr O'Sullivan saw the applicant after the hearing, and one of the purposes of his being consulted was to express an opinion as to the effects of trauma on memory.  All that Mr O'Sullivan said on that topic was that impaired concentration and perceived memory loss were well known sequelae of trauma.

At p 24 of its reasons RRT said:

"There is nothing in the psychologists' reports which would suggest that the fabrication of such a detailed history is a symptom of the psychological condition which they have diagnosed."

I think that is a fair comment.  And given the circumstances in which Mr O'Sullivan was asked to report, it seems to me to be an exaggeration of any duty on RRT to make its own enquiries to hold that it was the duty of RRT to obtain a further report on the basis that Mr O'Sullivan had not addressed the concerns which RRT had expressed at the hearing.

This is not a case in which there is some obscurity raised by the evidence which enlivens a duty on the part of RRT to make further enquiry.  Rather it is a case in which unsatisfactory aspects of the evidence were raised by RRT at the hearing, in relation to which the applicant failed to provide a satisfactory response.

Accordingly, in my opinion, grounds 2(a) and (b) are not made out.

Ground 2(c) – findings on credibility
It was submitted that RRT was not acting rationally or reasonably in rejecting the whole of the applicant's evidence on which his claim to refugee status depended, merely on the basis of unexplained discrepancies in the various accounts which he had given of his history.  It was also submitted that RRT was guilty of imposing double or impossible standards; inconsistencies between accounts were suggestive of untruthfulness, but consistent accounts are explicable on the basis of a well rehearsed lie.

One has to bear in mind that the task of finding the facts was that of the RRT, and even if it erred in the factual considerations that led it to reject particular evidence, that would not ordinarily result in the commission of an error of law reviewable in the Federal Court.  Chand v Minister for Immigration and Ethnic Affairs (Supra p 12).

I am conscious of the following observations made by Foster J in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194:

"I would also make the observation that even the most experienced decision-maker can encounter considerable difficulty in assessing the credibility of a witness, especially where that witness is disadvantaged by problems of language and lack of familiarity with the situation in which he or she is placed.  It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected.  Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony."

with which I respectfully agree.

I also take account of the decision of the Full Court of the Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs, O'Connor, Branson and Marshall JJ, (VG 747 of 1997), 8 September 1998 – unreported).  At p 10 of the print, the Court said:

"Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based upon the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act."

But RRT understood its task:

"The task of the Tribunal is to determine whether the applicant has a well-founded fear of persecution if he returns to Sri Lanka now or in the foreseeable future." (p 21).

The applicant's case was that RRT should be so satisfied, and an important, if not a critical factor in that regard was his claimed treatment at the hands of the armed forces, and the inferred reasons for that treatment.  RRT had to decide whether or not it was prepared to accept the applicant's claims in that regard.  The applicant's demeanour as a witness (p 22) as well as the discrepancies in the various versions which he had given of important events caused RRT to conclude that he was not a credible witness.

I do not think that RRT was guilty of applying double or impossible standards.  Rather it was concluding, as it was entitled to do, that the unsatisfactory features of the applicant's evidence were not overcome by pockets of consistency.

RRT is not bound to accept uncritically and at face value a version of events given by an applicant.  The credibility of an applicant is largely a matter of impression.  As Tamberlin J has observed, credibility factors are especially important in migration cases, where many of an applicant's assertions must be accepted at face value in the absence of evidence to the contrary.  Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified.  Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 1 August 1998) quoted by Goldberg J in Sivalingham v Minister for Immigration and Multicultural Affairs (unreported, 5 March 1998).

I was troubled, for a time, about a supposed inconsistency which RRT perceived in the applicant's account of when he was conscripted by the LTTE (p 23.2).  In his statutory declaration, the applicant said that this event occurred "one day in May 1995".  Apparently he told the RRT at the hearing that he moved to Mallakam in about April 1995 and that he had not been conscripted to work for the LTTE until some months after that, meaning that it would not have been in May 1995 (see p 10).

In my opinion, one could not rationally reject the applicant's claim to refugee status on the basis of a discrepancy such as this.  I was troubled as to whether the fact that RRT referred to this incident at all (p 23), and appeared to treat it as material, indicated that the RRT had lost sight of the ball, causing it to conclude that the applicant did not have a well-founded fear of persecution for a Convention reason simply because of "vagueness or inconsistencies in recounting peripheral details" or an inability to give a precisely accurate or consistent account of some past event.

On reflection, however, I have come to the conclusion that I would not be justified in setting aside the RRT's decision on this ground.

I do not think that the mere fact that RRT includes in a list of discrepancies one which strikes me as being obviously insignificant and immaterial is sufficient to give rise to a reviewable error.  On its own, it was not determinative of the Tribunal's finding as to credit and its inclusion in the matters to which RRT had regard is not sufficient to undermine its credit finding if the material otherwise available was capable of sustaining it.  In my view RRT was entitled on that material to come to the conclusion which it did.

Accordingly this ground fails.

The result is that the application for review should be dismissed.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:             11 November 1998

Counsel for the Applicant:	Mr N Poynder with Mr L Karp
Solicitor for the Applicant:	McDonells, Solicitors
Counsel for the Respondent:	Ms F Backman with Ms R Cheetham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 October 1998
Date of Judgment:	11 November 1998