VOAV v Minister for Immigration - [2004] FMCA 24

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VOAV v MINISTER FOR IMMIGRATION

[2004] FMCA 24

MIGRATION – Review of a decision of the Refugee Review Tribunal – applicant contended that the Tribunal failed to identify an essential element associated with his case – whether the Tribunal failed to understand and identify that the murder for which he alleged he was facing persecution was criminal behaviour as opposed to any persecution for any Convention reason – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2002) HCA 1
Kamal v MIMA (2002) FCA 818
Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 487
WAGU v MIMA (2003) FCA 912
Devries v Australian National Railways Commission (1993) 177 CLR 472

Applicant:

VOAV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ577 of 2003

Delivered on:

6 February 2004

Delivered at:

Melbourne

Hearing date:

27 January 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Mano Associates

Counsel for the Respondent:

Mr Livermore

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

THAT the Application be dismissed.
THAT the Applicant pay the Respondent's costs fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ577 of 2003

VOAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant relies upon an amended application filed 12 August 2003 in the Federal Magistrates Court seeking to set aside a decision of the Refugee Review Tribunal ("the Tribunal") made on 5 March 2003 confirming the decision of the respondent's delegate not to grant a protection visa. The original application was filed in the Federal Court and transferred by order of Heerey J, to the Federal Magistrates Court on 26 May 2003.

Background

The applicant who claims to be a citizen of India, arrived in Australia on 8 December 2000. On 8 January 2001 he lodged an application for a protection visa with the Department of Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 22 March 2001 a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant a protection visa and subsequently the applicant applied for review of that decision. On 5 March 2003 the Tribunal handed down its decision affirming the decision of the Minister's delegate not to grant a protection visa.

The applicant's claims

The applicant is a national of India and is a Muslim from Tamil Nadu. He is aged 34 years and married. He undertook a secondary school education in India and worked there as a taxi driver. He arrived in Australia in May 2000 on a visitor visa. The applicant completed a written application for a protection visa on 7 January 2001. Under the heading "Why did you leave that country?" the applicant wrote:
I was persecuted due to my involvement with All India Jihad Committee. Also due to my close connection with Abdul Cader.

I have enclosed details.
Under the heading "What do you fear may happen to you if you go back to that country?" the applicant responded:
I will be arrested and possibly subject to torture. Details attached.
Under the heading "Who do you think may harm/mistreat you if you go back?" the applicant wrote:
The local police at the behest of the government. Also by thugs and members of the RSS. Hindu. Militant organisation. A Front to the ruling BJP Party and its allies.
In response to a question "Why do you think they will harm/mistreat you if you go back?" the applicant responded:
Due to my political belief and my involvement with All India Jihad Committee.
In response to the question "Do you think the authorities of that country can and will protect you if you go back? If not, why not?" the applicant wrote:
The authorities are the tools of the government. They will not protect a Muslim who has a significant profile with the All India Jihad Committee (a proscribed organisation).
The applicant claimed to have finished his education in 1989 and assisted his father in farming. During this time he was instrumental in establishing a youth society in his village and was engaged in social activities towards the underprivileged and minority communities.
He asserted that in 1998 a Hindu society, a front of the extremist RSS (a Hindu militant organisation) had a meeting in the village and the district leader of that organisation made a provocative speech mainly targeting the Muslim community. The applicant together with other members of the society confronted them which resulted in a race riot in the village in which he was injured. He was arrested at the behest of the local rulers but was subsequently released without filing charges. This incident he asserts prompted him to join the All India Jihad Committee and he joined the organisation in 1989 and became the village leader of this committee in 1990.
In 1990 the national committee arranged a meeting at Kootha Nalloor 30 kilometres from his village and he led a group of local members to attend the meeting. At the last moment the local police refused to grant permission for the meeting and on their return he and his fellow participants were set upon by thugs and assaulted and humiliated. The applicant asserts that the following day he lodged a complaint to the police but that only aggravated the situation and a racial riot erupted in the village in which several Muslim establishments and houses were looted and many Muslims were assaulted. He asserts that their houses were looted and set on fire.
On 6 December 1992 the Hindu extremists demolished the Baber Mosque in North India. There was a widespread riot against Muslims in the Nagoor District following the demolition of the Baber Mosque. The applicant engaged himself on behalf of the committee in collecting funds from the affluent Muslims to help those affected. Whilst he was doing this he was beaten by a group of local Hindu extremists and was robbed of all the money collected and the police failed to make any attempt to bring the culprits to justice. In 1993 there was a strike and protest march organised by the Nagoor District fisherman against the killing of their fisherman by the Sri Lankan Navy. His brother who kept his shop open in defiance of the strike was assaulted by a group of angry protesters and had his shop looted and set on fire.
In 1995 an unknown assassin killed the wife of the leader of the Nagoor District Hindu Society by sending a parcel bomb.
Immediately after this incident a Hindu group as a repercussion killed several Muslims. A mob came to the applicant's home but he managed to escape through the rear entrance. The police took him into custody and attempted to implicate him with this crime and he was harassed and threatened by the local police. He fled to Madras and then went to Singapore where he stayed for a while.
Later he changed his mind and returned to India and was married in India on 12 May 1996. He lived in his wife's village until December 1996.
In December 1996 the All India Jihad Committee organised a black day in commemoration of the demolition of the Baber Mosque and the police started arresting members of the society. In order to avoid arrest the applicant left for Malaysia on 6 December 1996. He entered Singapore illegally and stayed there until November 1997 when he was caught and deported to India.
His wife gave birth to a son on 13 March 1997, he went to Bangalor in India and lived there for the next two years. He was afraid to be with his wife and son fearing apprehension by the police. The All India Jihad Committee was proscribed and the police hunted the leaders.
In December 1999 he asserts the police caught Mr Abdul Cader one of the leaders of the committee and his capture was widely publicised in the media. The applicant asserts that he was frightened because Mr Cader knew of his whereabouts and left for Madras and stayed there at various addresses. He managed to obtain a visa to Australia through a travel agent and came to Australia on 8 December 2000 on a visitor's visa.
He asserted that he would not be able to live in India due to his involvement with Abdul Cader and his membership with the All India Jihad Committee, a proscribed organisation. The decision of the minister's delegate indicates that the applicant had changed his name from his birth name by deed poll in 1995 in order to avoid detection.
In his application to the Tribunal dated 24 April 2001 the applicant stated:
I'm still a member of the All India Jihad Committee which I believe is a proscribed organisation .. the national leader of the committee has been killed and a local leader Mr Abdul Cader was arrested. I fled in fear of persecution. Later I had changed my name in order to avoid detection. I was taken by the police in the past. None of the above factors were taken into consideration.
Prior to the hearing before the Tribunal the applicant's solicitor wrote to the Tribunal advising that he had recently learned from his wife in India that he was falsely implicated and charged over the murder of the Hindu leader's wife by a parcel bomb in 1995. A letter from his solicitors dated 14 January 2003 (Court book page 67) said inter alia:
He denies any involvement and asserts this was a trumped up charge by the authorities due to his previous involvement with All India Jihad Committee.
The letter attached a copy of his marriage certificate, a copy of his electoral card and a copy of the purported charge sheet, summons and final report of the murder case of Mrs Thangan Muthukrishnan.
The applicant gave evidence at the hearing before the Tribunal.

A transcript of the proceedings before the Tribunal was available. He told the Tribunal that after the bombing incident there were a lot of arrests and he was caught up in those arrests along with his friend. Although he was released there was daily harassment and he was constantly worried and decided he should go to Malaysia.
He told the Tribunal that the problems he had in India were that there was a lot of unrest and racial tension after the bomb blast and in 1999 he was staying with Abdhul Cader who was caught by the police towards the end of 1999. He said:
He was obviously beaten and tortured until he mentioned my name.
He then told the Tribunal in response to a question, "What do you mean mentioned your name?":
Because I was part of the Jihad group and also the RSS is a big very militant group and the wife of the leader, the wife of the leader was murdered and they say I was implicated in that.
He was asked by the Tribunal if an incident occurred in July 1995 how it was that he had three times left India and voluntarily returned and that he was wanted for a crime as serious as murder it seemed inconceivable that he would have left the country, returned and had lived in Nagoor and possibly in Bangalor as well and not been arrested.
The respondent replied:
All during that period, till the end of '99, they had suspects - like they were suspecting a lot of people and I was one of those many people suspected of many things, but it's the only the end of '99 when this man was captured and he mentioned my name they had a little bit more concrete evidence.
The Tribunal questioned the applicant's difficulty about the murder charge (Transcript at page 14):
You were in and out of the country a few times and all the indications are that you are not wanted by the authorities now in relation to any events around the time of '95, eight years ago now, but you say you are now sought in relation to a murder charge in which you have been implicated. That is a criminal matter that would not bring you within the ambit of a refugee.
The applicant responded:
This matter became quite well known, the knowledge, and of course this has always been in conflict between the Hindu and Muslim extremists and okay during that period after (indistinct) inquiry, taken away for questioning and so on, but with this '99 end of '99 there seemed to be some concrete information about me that I might have been implicated in that murder.
The Tribunal then went on to say to the applicant:
Well India has a properly functioning police force and judiciary. If you were in the event charged with murder and were to face trial that would be a criminal matter.
The applicant responded:
Okay but the thing is I have been implicated quite falsely and the reason is because I belong to this Islamic group movement.
The applicant submitted a document which he asserted was dated March 2001 but had only just been submitted, headed “Murder case of Mrs Thangan Muthukrishan”. The Tribunal pointed out to the applicant that he document was dated 3 July 1995, that it was stamped March 2001.
The applicant explained that the date of 3 July 1995 was the date of the murder and this certainly appears to be consistent with the material contained in the document itself. The Tribunal then referred the applicant to a copy of a document which purported to be a summons to him to appear dated 2 April 2001. The applicant in response to the Tribunal's question as to why his name only came up wait 16 months later that they did not know where he was and were looking for him during this time he having left the country at the end of 1999.
The applicant also presented a marriage certificate about which the Tribunal was concerned by the words "To whomsoever it may concern" and an election commission of India identity card. The names on the card and the marriage certificate had the applicant's name after having changed his name by deed poll as he asserted but with different spellings. The applicant responded to questions by the Tribunal that he was married in a religious ceremony and that he had obtained a copy of the marriage certificate in 1999 when it was sought.
The applicant also produced a document which is dated 15 March 2001 and purported to be from the office of the public prosecutor setting out the charge against the applicant for murder. At page 17 of the Transcript the Tribunal asked the applicant:
As I said before if that is the case that would be a criminal matter. Again I have some doubts about these documents.

I wonder why, for example, honourable be abbreviated in the heading of the document. Just let me finish and you can comment. Why again, in the heading of the document the magistrate would be misspelt and why it would be issued in March 2001 but then only submitted by you a day or two ago.
The applicant responded by saying that he had asked for these documents from the father of the boy who was arrested and he had only recently received them. It was also put to him that, (page 17 line 32):
Your name, on your evidence, came up in relation to a murder charge at the end of 1999. You left the country a year later and then after that and some 15 months after you say your name was first raised in regard to this matter, this document was issued.
The applicant responded that he was in hiding after he knew he might be implicated. The Tribunal also questioned him about why the marriage certificate and the electoral commission card that he had submitted had his name yet his passport retained his original name. He was asked if he had changed his name by deed poll how could it be that the other authorities knew of that but his passport which is arguably the most significant document still has a different name. He explained that although he changed his name in October 1995 that was done for the notary to safeguard himself when he changed his name but the marriage certificate was different because he was known by the original name in his home town. When asked about the official documents such as the election commission identity card and why he would go on using his old name if he had changed it he said that he went to the notary republic because he could not leave the country with his original name and he didn't know whether he had changed it for all purposes.
The Tribunal put to him:
The way the law is now that any interest in an applicant by State authorities needs to be for the essential and significant reason, convention ground, in order to bring him within the Refugees Convention. Even if I were to accept that the applicant is involved in some committee known as the All India Jihad Committee and that he has been implicated in a murder and that the murder occurred in the context of political or race or religious tensions, it would seem to me that if someone is charged with murder in the circumstances outlined that the essential and significant reason is a criminal matter.
The applicant responded that he was implicated in a murder with which he had no connection whatsoever and only implicated because of his involvement with the Jihad. At page 21 the Tribunal again put to him:
As I say, the issue is not whether there is any political or racial or religious motivation on the part of the applicant, the issue is whether, if he is sought by the authorities it is because of his politics or religion or because he is accused of a serious criminal act.

The Tribunal's decision

The Tribunal noted that the applicant's evidence was that the All India Jihad Committee (AIJC) was a legal entity until 1997. The Tribunal noted that there was no independent evidence concerning the existence of such a group during that period. The Tribunal concluded that if it existed at all during that period it was apparent that it was a minor group and of little general interest. However the Tribunal found that the only reference to the group was it had emerged a short while before 2001 and that the AIJC and others was implicated in a series of bomb blasts around that time. The Tribunal concluded that despite claiming that he was the head of a large branch for several years the applicant's evidence about the structure of AIJC was vague and unsatisfactory. So too was his evidence concerning his role with the party. The Tribunal concluded that in weighing all the evidence before it, the Tribunal was not satisfied the applicant had any active association with the AIJC. Whilst accepting that riots were incited in the applicant's village in the late 1980s by the RSS and even accepting it to be the case that their house was burned down in communal rioting, in view of the passage of time since those communal riots the Tribunal found that did not indicate a real chance of persecution of the applicant now for any convention reasons.
Similarly while accepting the applicant was assaulted by thieves in 1990 and 1993 the Tribunal did not accept that he was targeted for any convention reasons in those incidents nor that the police failed to protect the victims of crime regardless of race or political persuasion.
While accepting the applicant's brother was assaulted in 1993 and his shop burned the Tribunal concluded there was no basis to conclude that those events indicated a real chance of persecution of the applicant himself for any convention reason as the event occurred a decade ago and the target of the crowd's ire was the applicant's brother who was targeted not for a convention reason but rather because he did not close his shop in support of an industrial protest.
The Tribunal noted the applicant travelled abroad on three occasions between 1996 and 1997 and that he passed all security checks in doing so. It did not accept his purpose was to raise funds for the AIJC and said that:
It is not credible that if the applicant was sought by the authorities in relation to a criminal matter such as a bombing incident he would be able to depart and re-enter India on three occasions without detection.
The Tribunal further noted that he applicant's explanation that he was able to do so because he had changed his name by deed poll lacked credibility. He was not apprehended at the time he changed his name legally and the authorities were well aware that he had changed his name and if there was any official interest in him the Tribunal found that he was easily traceable through official records.

The Tribunal concluded that the marriage certificate and identity card were not genuine. The reason the Tribunal came to this conclusion was that the photocopy of the marriage certificate was headed "To whomsoever it may concern", the applicant's name had a different spelling from that used during the course of his application for a protection visa and it was dated three and a half years after the actual date of his marriage.
Furthermore the photocopy of the document purporting to be his identity card issued by "the election commissioner of India" contained yet another spelling of the name the applicant claimed to have acquired. His passport contained his birth name and no indication of any change of name as would be expected following any official approved change. In weighing all the available information the Tribunal concluded the marriage certificate and identity cards were not genuine and the applicant had as indicated by the name on his genuine passport always retained his birth name. The Tribunal concluded that the applicant's capacity to depart India by legal means on three occasions underscored the conclusion that he was not wanted by the authorities or that now and in the foreseeable future he placed a real chance of persecution by reason of any convention ground. The Tribunal noted that whilst accepting he might have been detained for questioning after the assassination of a Hindu leader's wife in 1995, the Tribunal noted that he was released without charge on each occasion and said:
The investigation was in relation to a series criminal matter and, if the applicant was thought to have been involved in the murder, it would have faced criminal prosecution as distinct from persecution for any convention reason. (Court book page 89.)
Further at Court book page 89 the Tribunal found:
In line with the finding that the applicant was not involved with the AIJC the Tribunal rejects his claim that his name would have been given to the authorities after the arrest of the leader of the group in late 1999. It notes material cited above that the AIJC is regarded as terrorist group. Even if the applicant were to have been implicated in the murder allegedly committed by AIJC members it would not bring him within the ambit of the convention. Additionally, his capacity to depart India subsequently indicates he was not wanted by the authorities and the Tribunal so finds.
The Tribunal considered the documentation submitted by him including the final report of the murder case involving the wife of a prominent Hindu. The Tribunal noted that the document was dated March 2001 and was issued six years after the murder and some two years after the time when he claimed his friend was arrested for that crime. The Tribunal pointed out that the document actually indicated the applicant's friend was arrested in 1995. It observed that the accused person implicated another person of the name the applicant claimed to have acquired. The Tribunal also rejected the claim that the applicant had changed his name and even if he had done so it was apparent that the authorities had ample opportunity to apprehend him. The Tribunal noted that in relation to the document purporting to emanate from the magistrate it was dated six years after the applicant was said to have been implicated in the crime of the murder and well after he left and re-entered India on three occasions.
In relation to the summons "to an accused person" the Tribunal noted it referred to a case in 2001 and required the attendance at Court of the accused person on 5 April 2001. Where there was provision for a seal none appeared. The Tribunal noted that it was not submitted in relation to his application for a protection visa until two years later and that the applicant was vague about the actual charge. The Tribunal concluded in light of the fact that such a suspicious timing of lodgment of the documentation, anomalies in their dates, the existence of basic spelling errors on some documents and the absence of a seal where such is provided for, the documents had been contrived and in order to bolster false claims to asylum.
The Tribunal then said: (at Court book page 90)
As well, the Tribunal finds that even if the application were wanted in relation to a murder he would be sought for prosecution of a criminal matter. Notwithstanding the existence of a possible political motivation the reason for arresting the culprit(s) is in accordance with criminal law. If the applicant was sought in relation to a murder, even one motivated by political reasons, the essential and significant reason for any action him does not arise from a convention ground but to punish him for a serious crime that attracts a heavy penalty in accordance with criminal law.
For these reasons the Tribunal found that he applicant did not have a well founded fear of persecution for any convention reason.

These proceedings

Notwithstanding a number of grounds raised in the application the applicant essentially relied upon one ground and that is that the Tribunal failed to identify an essential element of the applicant's claim and misunderstood the claim as advanced and thus committed jurisdictional error entitling the applicant to have the decision set aside S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 195 ALR 24 and reference to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2002) HCA 1.
The applicant contended that the applicant had developed his case before the Tribunal as one in which there was certain persecution due to belonging to an Islamic group and that the persecution with which he was faced was being falsely implicated in the murder of the prominent Hindu's wife.
The applicant contended that the Tribunal misunderstood or failed to identify that element of his claim in consistently pointing out and then finding that the murder to which he alleged he was facing prosecution was criminal behaviour as distinct from any persecution of any convention reason.
The applicant contended that the Tribunal had not considered the point raised by the applicant which was not that the murder was for political reasons but rather that the implication of the applicant was for political reasons and thus fell within the refugee's convention. In doing so the applicant contended the Tribunal had simply never addressed the correct issue, never identified it nor considered it.
However, leaving aside for the moment the question of whether the Tribunal did understand the essential element of the applicant's case, the Tribunal was not satisfied that the applicant had any active association with the AIJC thus the Tribunal rejected the first part of the applicant's contention namely that he belonged to a proscribed Islamic group (and for that reason was falsely implicated in the murder) when this was pointed out the applicant then contended that it was not his political beliefs for which he was persecuted but rather for religious or race purposes (or it was put, perhaps a combination of both namely that he was a Muslim and had been falsely implicated).
This it was contended was apparent from the fact he described himself as a Muslim and a member of the Jihad and that the two were inextricably linked and formed the central aspect of his claim. The ultimate contention of the applicant then was that the Tribunal had a duty to consider whether as a Muslim in an area of Muslim Hindu conflict the applicant was part of a particular social group and should have considered the applicant's contention that as part of that social group he was persecuted by being falsely accused of the murder.
On both counts it was contended the Tribunal failed to consider the actual element of the claims.
The fact that it was his race rather than political persuasion which was being relied upon was a contention which was only made after the Court had drawn to the attention of the applicant's counsel that the Tribunal had rejected his political associations. All of the evidence relied upon by the applicant and to which I was referred during the applicant's case was to the effect that it was for political reasons, that and in particular his membership of the Jihad group that the applicant was facing persecution. All of the written material to which I have already referred makes this clear. Two passages in the transcript make it even more clear. (page 7 line 16):
Because I was part of a Jihad group and also the RSS is a big very militant group and the wife was a leader the wife of the leader was murdered and they said I was implicated in that.
At page 14, line 39:
Okay, but the thing is I had been implicated quite falsely and the reason is because I belonged to this Islamic group movement.
On page 21:
I'm only implicated because of the involvement with the Jihad thing.
At no stage did the applicant complain that he was facing persecution by reason only of his race and his case was clearly not predicated on that basis. Having rejected his assertions that he had an active association with the Jihad it was consistent that the Tribunal should find that the murder investigation was of a criminal matter and not a political one.
It is without argument that findings of credibility are a matter for the Tribunal and not for the Court.
It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claim should not have been made. though the value of due processes are for the Tribunal (see Kamal v MIMA (2002) FCA 818).
.. a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. (Re MIMA; Ex parte Durairajasingham (2000)168 ALR 487).
In WAGU v MIMA (2003) FCA 912 French J said:
[34] It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for objecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach was to perhaps complain about want of logic or inferior modes of reason rather than to identify jurisdictional error.
The cases cited by the applicant in support of this point are not to the point. They are all cases regarding the failure of the Tribunal to identify particular social groups. In this case it was never put to the Tribunal that they should form the view that the persecution alleged by the applicant occurred because he was Muslim.
Furthermore the respondent contends and I agree, that on a fair reading of the Tribunal's decision it could not be said that they did not understand the case being put. At page 90 the Tribunal said:
As well, the Tribunal finds that even if the applicant were wanted in relation to a murder he will be sought for prosecution of a criminal matter. Notwithstanding the existence of a possible political motivation the reason for arresting the (culprit) is in accordance with criminal law. It is the applicant was sought in relation to a murder, even when motivated by political reasons, that the essential and significant reasons for any action against him does not arise from a convention ground, but to punish him for a serious crime that attracts a heavy penalty in accordance with criminal law.
I am satisfied from a fair reading of the entirety of that paragraph that the Tribunal was aware that it was the applicant's assertion that it was the political motivation for arresting him upon which he relied.
I have considered independently whether there was any failure of logic on the part of the Tribunal in coming to the conclusions it did as to the applicant's claims. Upon consideration of the decision I am satisfied that the reasoning process and supporting evidence which forms the basis upon which the Tribunal rejected the credibility of the applicant was disclosed sufficiently. Nor could I find that the Tribunal had acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable Devries vAustralian National Railways Commission (1993) 177 CLR 472 at 479. For those reasons I am not satisfied that any jurisdictional error has been established and the application must be dismissed.

I certify that the preceding sixty - seven (67) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 6 February 2004