WZARH v Minister for Immigration
[2013] FCCA 1608
•14 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZARH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1608 |
| Catchwords: MIGRATION – Review of decision of Independent Merits Reviewer – where applicant interviewed by one reviewer and decision made by another reviewer – where second reviewer used recording and transcript of first interview and post-hearing submissions of applicant’s agents – where no interview held by second reviewer – where second reviewer made credibility findings – where second reviewer therefore did not witness applicant’s physical scarring – where second reviewer accepted applicant’s story of what happened to him resulting in scarring – whether credibility findings based on inconsistencies in evidence or upon applicant’s apparent demeanour – where most inconsistencies raised with applicant by first reviewer – whether failure to hold second interview constituted procedural unfairness – whether applicant clearly articulated claim before reviewer that scarring would result in greater scrutiny by authorities and in applicant being a person of interest – whether reviewer failed to take into account a relevant consideration. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2)(aa) |
| Minister for Immigration & Anor v SZQHH [2012] FCAFC 45 SZBEL v Minister for Immigration & Anor [2006] 228 CLR 152 Applicant VEAL of 2002 v Minister for Immigration & Anor [2005] 225 CLR 88 Chen & Ors v Minister for Immigration & Anor [1994] 48 FCR 591 Re Singh v Minister of Employment and Immigration (1985) 17 DLR (4th) 422 MZXDH v Minister for Immigration & Anor [2007] FCA 719 Abujoudeh v Minister for Immigration & Anor [2001] FCA 1351 SZSIB v Minister for Immigration & Anor [2013] FCCA 1413 |
| Applicant: | WZARH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 218 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 24 September 2013 |
| Date of Last Submission: | 24 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Thomas McLoughlin |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $10,000.00.
The name of the First Respondent be amended to Minister for Immigration and Border Protection.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 218 of 2012
| WZARH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 7 November 2010. On 21 January 2011 he made a request for a refugee status assessment under the provisions then enforced for irregular maritime arrivals. The assessor concluded that he was not a person to whom Australia owed protection obligations. On 20 May 2011 he made a request for an independent merits review. He was interviewed by an Independent Merits Reviewer[1] on 16 January 2012. A recording and transcript of that interview was made. On 27 January 2012 the applicant’s agents made a post hearing submission. The then IMR was unable to complete the review. The second respondent was then requested to undertake it. By this time the provisions of s.36(2)(aa) of the Migration Act 1958 (Cth)[2] had come into force. On 4 May 2012 the applicant’s agents submitted a further submission dealing with the question of complementary protection. On 25 July 2012 the second respondent found that the applicant did not meet the criteria for a protection (Class XA) visa set out in s.36(2) of the Act and recommended that he not be recognised as a person to whom Australia had protection obligations.
[1] “IMR”
[2] “Act”
The history which the applicant gave and formed the basis for his protection claim was that he was a single male Tamil from the north of Sri Lanka. He had undertaken some studies as a diesel mechanic and had worked as a self employed casual carpenter and painter. From 2004 to 2005 he worked as motor winder in Vavuniya. From 2006 until 2010 he worked in Qatar. He returned to Sri Lanka in 2010 because he was required to leave Qatar as his visa had expired.
The applicant told that as a youth of sixteen he had been assaulted by the navy which was in control of the village in which he lived.
“[23]He stated that he was a leader of a youth club in his village and he was summoned by the pro-government Tamil Group, the EPDP, to attend some of their meetings. He did not attend these meetings and the EPDP was against him and assaulted him. Also during the elections he supported a candidate called Maheswaran. In March 2004 the EPDP wanted to hold a publicity election meeting in a particular place and he, with some other Tamil Youth, took action to prevent the meeting being held by blocking the area. Some EPDP members came on motorcycles on evening at 8.30p.m., arrested him and took him away to their camp, interrogated him and assaulted him. He sustained injuries to his head, his left arm and some abrasions to his back. They cut him with a razor blade and the head injury was sustained by pushing him to the ground. They also pressed his testicle so hard that night that he felt agony only when he was in Qatar (In Qatar he was in hospital for a few days; his testicles had inflamed and the doctor advised him to have an operation but he was not willing to and was treated with pills). He fainted and was detained the whole night and released the next morning. After that assault he was warned that if he stayed in Karainagar his life was in danger.
[25]In 2006 when he went back to Karainagar, a neighbour of his, a Tamil person who was close to him, was shot dead by the EPDP in his own house. Three days later the EPDP went to this brother-on-law’s house to arrest him but he got wind of what was going to happen and ran away. The claimant stated that he received information that the EPDP was also looking for him because they were always suspicious that he was an LTTE supporter so out of fear he went to Qatar. In 2010 when he came back to his village, the EPDP saw him in the market and sent word to him to meet them in their office. He immediately sense that considering the past happenings, his life was in danger. His parents also advised him to get out of Sir Lanka as he was in danger.”
The first IMR questioned the applicant upon his story and raised with him items of concern. For example, at [T27] there is the following discussion between the first IMR and the applicant:
“Q.You’d stayed a number of times in Vavuniya without experiencing any problems, two years, whilst they were looking for you. I just have some serious doubts in relation to your claims that they found out what you were in Vavuniya. You have not raised this in any of our previous interviews or in your statements that they learnt that you were in Vavuniya and that’s why you had to flee. I just find what you’re claiming a bit difficult to accept, that the wife of the cook who worked for the EPDP was the one who informed them that you were hiding in Vavuniya. It just seems a bit far-fetched to me.
A.Many of my friends at that time told me that it is quite possible for the wife of the cook to have passed on the information to her husband so that the EPDP ultimately would have got the news that I was staying in Vavuniya. During my RSA interview, although I did not mention about the wife of this cook who was working with the EPDP I did tell them that I did not give them an opportunity to harm me in Vavuniya because I fled even before they could trace me. This was disclosed during my RSA interview.
Q.Well there were a number of things that were raised in your RSA interview which was inconsistent with what you’ve told me today. In your RSA interview you said in relation to when the EPDP abducted you and took you to the house behind their camp and tortured you, that you were tortured along with three friends. Yet today I asked you specifically if anyone else was tortured or had been dealt with the way you were and you said no.”
The applicant was not called to an interview with the second respondent who came to his findings based upon his consideration of the evidence from the applicant’s original applications and interviews, his interview with the original assessor, the interview with the first IMR, the submissions made by his advisors on his behalf and independent country information. It is not suggested that any independent country information that was considered by the second IMR was not put to the applicant. In his findings and reasons the second IMR states:
“[79]The claimant’s account of what allegedly happened to him and the circumstances of his claimed past persecution is replete with discrepancies at every iteration and these discrepancies are not confined to matters of mere detail or to inconsequential elements of his story.
[80]A central plan of his fear of persecution is that he was close to a Tamil politician, Maheswaran, that he had supported the latter in a number of elections, yet he claimed to have supported him in an election in Jaffna at a time when the politician was actually a candidate for a seat in Colombo. He conceded this only after a report from a newspaper was read to him indicating that in 2004 election Maheswaran had stood for a seat in Colombo. He stated that he had been confused about this, yet he had insisted that he had lit fires to stop opponents of this man from having a political gathering. His explanation as to the reason he had lit fires in the circumstance when this man was not standing for election in the local electorate, was simply that he was supporting the Tamil case.
[81]I do not accept that his kind of error was due to memory lapse or confusion, nor indeed to the effects of detention, as he has claimed from the beginning that he was supporting this candidate in the 2004 election in Jaffna. Furthermore, he consistently claimed that it was his support for Maheswaran that caused the EPDP to abduct him, torture him and pursue him to this day and throughout his absence from Karainagar. I conclude that the claimant may have known Maheswaran from his time at the sports club but that the claimant was neither close to, nor a supporter of, the political campaigns of Maheswaran.
But notwithstanding the above, the second IMR was prepared to accept certain of the applicant’s claims:
“[82]I am prepared to give the claimant the benefit of the doubt and accept that he was detained by the SL Navy when he was a youth for not complying with a curfew as I am prepared to accord the claimant the benefit of the doubt regarding the incident of April 2004 in relation to the EPDP and accept that he was detained by them and may have been mistreated during the period of detention which lasted a few hours. I accept this, since it is not inconsistent with the behaviour of this paramilitary group especially at that time and towards the general population in the Jaffna area. I do not accept that the reason for his detention was his support of Maheswaran.
[83]The claimant ascribes a continuing interest in him by the EPDP to his alleged actions in support of Mahewaran and to the disruption of the EPDP’s political campaign at the April 2004 election caused by him. I have already dealt with his claims of support for Maheswaran. In terms of the alleged disruption of the EPDP campaign, I find that the characterisation of the claimant’s activities as a disruption to the campaign is an overstatement. Even taking the most beneficial interpretation for the claimant of the activities undertaken, it appears that he and an unspecified number of other people stopped the EPDP form having a meeting in a particular place on one occasion during the election campaign of April 2004. I accept that he may have been detained and mistreated by the EPDP as a result of this incident, however, I do not accept that the was pursued and is being pursued by the EPDP for the same incident.
The second IMR dealt with other claims made by the applicant including one that he was in danger from the EPDP because of his support for a neighbour who had stood for election and who he claimed had later been killed. In regard to that claim by the applicant the second IMR said:
“[88]I find the body of evidence surrounding his return to Karainagar is replete with contradictions and, while I am prepared to accept that his neighbour was killed during the time the claimant was in Karainagar, I do not accept that this death is relevant in any manner to the claimant’s case. I do not accept that the EPDP was interested in the claimant as they had ample opportunity to show this interest while the claimant was in Karainagar but did not do so.”
The second IMR found that the applicant did not have any political profile to speak of, noting that he did not claim to have belonged to any political party and had spent the best part of the last eight years away from his home. As a result the second IMR found that the applicant would not now or in the reasonably foreseeable future face a real chance of being persecuted by the EPDP for reasons of his political opinion arising out of his claimed activities. The second IMR dealt with the generic claim made by the applicant based upon his ethnicity and the fact that he was a failed asylum seeker returning to Sri Lanka and came to the following conclusion:
“[97]He has claimed a general fear of persecution as a Tamil (for reasons of his ethnicity) based on the ongoing activities of the Sri Lankan government to identify and neutralise any remaining elements of the LTTE. I accept that as a Tamil he may be subjected to greater scrutiny by the authorities in this phase of the history of Sri Lanka, however, he has no profile as an LTTE supporter or member and he has specifically stated that he is not requesting protection because of association with the LTTE. Furthermore he has no political profile or any other characteristic that would bring him to the attention of the authorities; he has spent more than half of the last eight years outside his country and his first return there did not entail any attention by the authorities even though the timing was in a more volatile environment that the present time, being closer to the end of armed hostilities. I accept that as a result of his Tamil ethnicity he may be interviewed on arrival and in the course of his day to day existence, may be stopped at checkpoints and questioned. I do not consider that these detriments constitute persecution in terms of the Convention.”
The second IMR then went on to consider the applicant’s claims for complementary protection and noted the submissions made on his behalf in the letter of 4 May 2012 but concluded at [104 – 105] [CB 227-228]:
“[104]Having examined the claimant’s case including his previous experiences with the authorities and other groups in Sri Lanka, I find that the claimant is a Tamil from Jaffna who has left Sir Lanka twice using a genuine passport issued in his own name and who has travelled back to Jaffna on the same passport. I have found that there has been no change in his risk profile during the period he has held his passport. I acknowledge that persons returned to Sir Lanka, whether failed asylum seekers, including persons of Tamil ethnicity, or other deportees, are likely to be subjected to closer scrutiny than other travellers on return. I accept that there is a greater interest in these arrivals on the part of the authorities.
[105]In view of the profile of the claimant, however, I find that there are not substantial grounds for believing that there is a real risk of significant harm for this claimant as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka.”
The applicant filed an Application with this court in the Perth Registry seeking review of the decision of the second IMR on 20 September 2012. He then moved to New South Wales and the matter was eventually transferred into the Sydney Registry of the Court. He was represented at the hearing and Counsel came with a Second Amended Application that was filed in court on 24 September 2013. There were effectively two grounds of that application although it could be said that the particulars of Ground 1 constitute two separate grounds. This first ground is as follows:
Ground One:
That the first respondent cannot lawfully act on the recommendation of the second respondent because the recommendation has been attended by a denial of procedural fairness.
Particulars
1.The applicant was not given an opportunity to be heard in person on issues relating to the test under section 36(2) of the Migration Act 1958 during the IMR hearing on 16 January 2012;
2.The second respondent was not present at the hearing on 16 January 2012 when the hearing was conducted by an earlier IMR Reviewer into issues relating to the test under section 36(2) of the Migration Act 1958.
The applicant’s argument is that he should have been granted a further hearing by the second respondent and that he was not given procedural fairness when the second respondent proceeded to consider his case without giving him that opportunity. The applicant supports his argument by reference to the views expressed by Rares and Jagot JJ at [27] in Minister for Immigration & Anor v SZQHH [2012] FCAFC 45 arguing that:
“This step has effectively been thwarted in the circumstances of a matter where the recommendation and the hearings are conducted by different people.”
The applicant makes particular reference to the fact that the second respondent did not see the scars which he claimed were physical evidence of the torture that he had suffered. He continued that by not proceeding with a second hearing the respondents did not provide him with a “fair hearing” as described by the court per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration & Anor [2006] 228 CLR 152 at [25]. The applicant made reference to the views expressed by the High Court in Applicant VEAL of 2002 v Minister for Immigration & Anor [2005] 225 CLR 88 concluding that:
“[18]In the instant matter, these important steps have not been taken by the Reviewer in respect of the applicant’s claims – in particular regarding the issues posed by the physical scarring – and in that context the decision maker has simply failed to complete the exercise of jurisdiction embarked upon. In particular, in the instant matter the Reviewer accepted that he applicant had been mistreated by the Sri Lankan Navy and EPDP [CB 223 at 82], had been detained and mistreated in the April 2004 incident [CB 223 at 83].”
The respondent’s answers to these submissions is to refer the court to the seminal decision of Chen & Ors v Minister for Immigration & Anor (1994) 48 FCR 591 where the obligation to give an applicant a hearing in circumstances that were very similar to those currently before the court was considered. The Full Bench Black CJ, Lee and Heerey JJ made a number of important findings. At [597] they stated:
“It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected. This was recognised by the House of Lords in Local Government Board v Arlidge [1915] AC 120 at 133. There have been many developments of the law in this area since Arlidge but it remains clear that an oral hearing is not necessary in every case.”
At [599] the Court discussed the circumstances in which a hearing would be required noting particularly its importance where matters of credibility were in issue:
“Fourthly, reference was made to the importance to the applicant and his or her family that a correct decision is made. That importance may readily be accepted. As his Honour said (at 410), the decisions made "may literally have life or death consequences for the person affected". However that undoubted fact reinforces the admitted conclusion that the rules of natural justice must be applied. It does not compel the conclusion that a particular procedure, namely an oral interview by the decision-maker, is mandatory in every case, whatever the circumstances.”
The Full Bench then quoted extensively from the Canadian case Re Singh v Minister of Employment and Immigration (1985) 17 DLR (4th) 422 approving of the views expressed by Wilson J at [464] found at [600] of the FCR report.
In 2007 Finkelstein J considered the matter in the context of a Refugee Review Tribunal hearing in MZXDH v Minister for Immigration & Anor [2007] FCA 719. After considering the authorities at [12] and quoting at length from Abujoudeh v Minister for Immigration & Anor [2001] FCA 1351 per Ryan J at [31] and [32] his Honour summed up the relevant law at [15] of his decision:
“[15]Thus the critical factors that are relevant in determining whether there should be a second hearing are: (1) Whether the implausibility of the evidence was based on the appellant’s demeanour or apparent candour (or lack thereof) when giving evidence; (2) Whether the implausibility of the evidence was based on inconsistencies with undisputed facts or general knowledge acquired by the tribunal in the course of its experience; (3) Whether the implausibility of the evidence was based on internal inconsistencies between the appellant’s claims and other parts of his account.”
Finding at [16]:
“[16]The tribunal’s finding on credibility was not based on how the appellant gave evidence – that is, the manner in which the evidence was given. The finding was based on the content of what the appellant said. The tribunal viewed the evidence as implausible based on the implausibility of its content. Considerations such as how the appellant conducted himself during the hearing were irrelevant.”
His Honour reinforced that view at [18] and [19]:
“[18] I agree with counsel for the Minister who submitted that:
"[The] adverse credibility finding ... wasn't based in any way on demeanour or some other need to actually observe MZXDH at the hearing. It was based on listening to the tapes and reading the transcript and having distinct difficulties in believing the claims. It was a situation where the Tribunal member simply found the claims implausible without receiving some other evidence, some other documentary evidence that might back them up."
[19] The fact is that this case is one in which little (if any) weight need be given to the demeanour of the appellant. It was quite appropriate for the tribunal to base its findings on the tapes and the transcript.”
In the instant case the second IMR has gone through the evidence that was given to the first IMR. The views as to credibility that he has come to are based upon the inconsistencies in that evidence as explained fully in his grounds and reasons. Most of the inconsistencies were raised with the applicant by the first IMR and there is no suggestion that there is any matter of demeanour in coming to a view that a particular statement was not accepted. Concerns expressed by the first IMR were the novelty of some of the claims and in one particular case the making of a claim to have supported a politician in one town when he was in fact standing for election in another. In my view the court is bound by the clear authority of the quoted cases to accept that there is no absolute right to a second hearing in circumstances such as this. The right will only come into existence where there are clear concerns that in order to provide the applicant with a fair hearing he must been seen. This is not a case that a matter is considered solely on the papers. There had been a hearing. The second respondent had heard the tape of that hearing and read the transcript. It is also noteworthy that in the first hearing the reviewer told the applicant on several occasions, see [T37, 38 and 40], that he could provide further information if he wished. The applicant did not take up any of those offers. The circumstances in which the final submission on complementary protection was provided are not known but that submission was given full consideration by the second respondent. There is nothing in that submission, which is found at [CB 186 – 198], that would require a further hearing. It is almost entirely made up of independent country information and makes reference only to claims that the reviewer accepted.
The court has had some difficulty in understanding exactly how the applicant puts his case in regard to the scarring in the context of this first ground of application. It is not clear because the second respondent accepted the applicant’s story of what occurred to him when he was taken in by the EPDP in 2004 which was when the scarring occurred, see [82] of the reviewer’s findings and reasons extracted at [6] of these reasons. The applicant appeared to be saying that if the second respondent had actually seen the scars it might have been more inclined to a view that there was a real chance that he would be subject to serious harm should he return to Sri Lanka. But my reading of the second respondent’s decision indicates that it was not the lack of seriousness of the 2004 incident but the time that had elapsed since it occurred and the fact that the applicant had come and gone from Sri Lanka without incident over the intervening years as well as its doubts about his later claims to have come to the attention of the authorities. In my view the applicant has not made out his case under Ground 1.
Ground two is:
“That the second respondent failed to take a relevant consideration into account.
Particulars
That the second respondent failed to take into account both the visible scarring of the applicant due to his mistreatment by the EPDP and the fact that he now has no passport in their assessment at paragraph [97] of their recommendation that the applicant had no “characteristic” other than his Tamil ethnicity that would bring him to the attention of the authorities.”
The applicant’s written submissions in this regard state:
“[19]The applicant further submits that the breach of procedural fairness occurred in the context of material findings:
(a)that “as a Tamil he may be subjected to greater scrutiny by the authorities in this phase of history of Sri Lanka; [CB 226 at 97]
(b)that “as a result of his Tamil ethnicity he may be interviewed on arrival and in the course of his day to day existence, may be stopped at checkpoints and questioned”; [CB 226 at 97]
(c)and that, in respect of his complementary protection claims, the determinative significance accorded to his “profile” to not believing there to be a real risk of significant harm. [CB 228 at 105]
[20]In said circumstances, the squarely raised of the physical scars [see CB 24] was a relevant consideration not taken into account due to the flawed process embarked upon by virtue of a different Reviewer conducting the hearing to that making the recommendation.
[21]In circumstances where an issue is raised as a material issue by the evidence, a failure by the second respondent to deal with it amounts to a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 at [58].”
In oral submissions the applicant stated that his profile at the hearing was linked to the incident in 2004, the injuries were raised at all iterations of his claims. He argued that where you have obvious injuries from earlier incidents you don’t raise them specifically and so the second respondent may not have taken them properly into account, something which the earlier assessors of his claims may have done because he says that the scars were there in plain sight. He then stated that the issue of his injuries were intertwined with his profile when it was accepted by the reviewer that he was going to be stopped from time to time and that the obvious injuries were a relevant consideration that was not taken into account. I take from this that what is being said is that there was a danger to the applicant who was likely to be stopped from time to time on his return to Sri Lanka of being considered more of a person of interest because of the scars on his arms. That is a point. But it is not a point that was ever made by the applicant or his advisors. The law in relation to what matters can be taken into account by a Tribunal or a reviewer in this regard is quite clear. As I said in SZSIB v Minister for Immigration & Anor [3][2013] FCCA 1413 at [19]:
[3] “SZSIB”
“[19]The Federal Court has recently considered a claim of this nature and discussed the manner in which it should be treated; SZSGA v Minister for Immigration & Anor [2013] FCA 774 per Robertson J. His Honour considered such authorities as Htun v Minister for Immigration & Anor [2001] 194 ALR 244, Dranichnikov v Minister for Immigration & Anor [2003] 197 ALR 389 at [22 – 24, 27] and NABE v Minister for Immigration & Anor (No 2) [2004] FCR 1 at [58 – 61] and M61/2010E v The Commonwealth [2010] 243 CLR 319 at [90] before saying at [48 – 52]:
“[48]In M61/2010E at [90] the Court said, with reference to Dranichnikov at [24] and [95] that failing to address one of the claimed bases for the plaintiff’s fear of persecution was a denial of procedural fairness.
[49]NABE discussed, at [58], the proposition that the Tribunal was not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raised a case not articulated. The Court said that a claim not expressly advanced would attract the review obligation of the Tribunal when it was apparent on the face of the material before the Tribunal. Such claim will not depend for its exposure on constructive or creative activity by the Tribunal. At [59] the Court discounted as a general rule that the Tribunal could disregard a claim which arose clearly from the materials before it. The Court approved, at [60], the following statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at [18]:
“The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
The Court said that this did not mean that the Tribunal was only required to deal with claims expressly articulated by the applicant. It was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it.”
[50]At [62], the Court cited with approval the statement by Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1]:
“Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
The Court said at [63] that every case must be considered according to its own circumstances.
[51]Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
[52]As I have said, in my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material. The claim as now put is taken out of its original context both in the submission of the appellant’s representative and the relevant paragraph, [190], of the Tribunal’s decision.”
I am not satisfied that the claim now made can be described as one clearly articulated before either Reviewer. This case is thus similar to SZSIB and those referred to in the authorities. In all these circumstances I am unable to find that the applicant has satisfied me that the reviewer failed to provide him with procedural fairness in the manner in which the decision was made. The application must therefore be dismissed.
The respondents’ Counsel has argued that in making an award of costs in this matter I should not be bound by the scheduled limit of $6,646.00. He asks for a figure of $10,000.00 which he says is two thirds of the amount actually expended due to the length of time this case has taken to get on for hearing, the transfer from Western Australia to New South Wales, the requests made by the applicant for documents and the abandonment by the applicant of several of his original grounds of application. I am sympathetic to these submissions. I think that in an appropriate case the scheduled fee should be increased. I think that the figure put by Mr Kaplan for the respondents is reasonable and I order that the applicant pay the first respondent’s costs assessed in the sum of $10,000.00. The name of the first respondent shall be amended to “Minister for Immigration and Border Protection.”
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Date: 14 October 2013
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