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SZNRH v Minister for Immigration & Anor [2009] FMCA 849 (4 November 2009)
Last Updated: 10 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZNRH v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of Refugee Review
Tribunal decision – refusal of a protection visa – applicant
claiming religious
persecution in China – applicant not believed in
relation to claims of serious past harm – no reviewable error found
– application dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
REPRESENTATION
The Applicant appeared in person
Counsel for the Respondents: |
Ms R Graycar
|
Solicitors for the Respondents: |
Clayton Utz
|
ORDERS
(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements
of and incidental to the application, fixed in the
sum of
$6,000.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA
ATSYDNEY
|
SYG 1422 of 2009
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
- This
is an application to review a decision of the Refugee Review Tribunal
(“the Tribunal”). The decision was made on
18 May 2009. The
Tribunal affirmed a decision of a delegate of the Minister not to grant the
applicant a protection visa. The applicant
is from China and had made claims of
religious persecution. Background facts relating to the applicant’s
protection visa claims
and the Tribunal decision on them are conveniently set
out in the Minister’s outline of submissions filed on 28 October 2009.
I
adopt as background for the purposes of this judgment, with minor amendments,
paragraphs 2 through to 12.6 of those written submissions:
- The applicant,
a citizen of China, arrived in Australia on 31 August 2005, travelling on a
student visa. On 15 October 2008, the
applicant applied for a protection
(Class XA) visa. This application was refused by a delegate of the Minister
(the delegate) on
13 January 2009.
- The applicant
applied to the Tribunal for review of the delegate’s decision on 23
January 2009. He attended a hearing at the
Tribunal on 31 March 2009, where he
was represented by Ms Taranto of the Refugee Advice and Casework Service (RACS).
He was assisted
by a Mandarin speaking interpreter. At the hearing, the
Tribunal also heard from the President of the Chinese Catholic Community
of
Western Sydney. On 18 May 2009, the Tribunal affirmed the delegate’s
decision to reject the applicant’s claim for
a protection visa. The
applicant applied for review of the Tribunal’s decision on 15 June 2009,
and on 17 August 2009, he
lodged an amended application, seeking an order that
the respondents show cause why a remedy should not be granted under s.476 of the
Migration Act 1958 (Cth) (“the Migration Act”). On 31 August
2009, I made that order and set the matter down for hearing on 4 November 2009.
- Factual
background and claims
- The
applicant’s claim is that he fears persecution in China because of his
religious beliefs and his association with his family
who are also closely
connected to his church, the underground Catholic Church. The applicant has
outlined and particularised his
claim in two statutory declarations, the first
of which (court book “CB” 28-39), dated 14 October 2008, accompanied
his
application for the protection visa, and the second of which (CB 133-140)
was provided with his application for review by the Tribunal
(dated 27 March
2009).
- In summary,
his claims as outlined in those two statutory declarations are:
- a) The
applicant was born and raised in a village close to Fuqing City, Fujian
province, China where he lived until he came to Australia
as a student on 31
August 2005, travelling on a Chinese passport and visa which he applied for and
obtained legally. He was 16 years
old when he arrived in Australia;
- b) the
applicant and his family have been active members of an underground Catholic
church. His grandmother and his mother were
particularly active members of the
church and church ceremonies/events were often held in the family home. This
included their house
being visited from time to time by priests or nuns who came
once or twice per year;
- c) in May
1998, two visiting priests were arrested and beaten. Bribes had to be paid to
secure their release. His mother was also
detained for approximately 40 hours
because the authorities said she was the leader of the Catholics in his village;
- d) in July
2000, there was a meeting in the applicant's church where a visiting nun was
teaching. The local police came and made
threats. His family were placed on a
police list of underground church members (the ‘blacklist’);
- e) in 2003, a
priest visited the applicant's church. The local police came and the applicant's
brother was arrested and tortured
as they mistook him for a priest (he was
wearing a white robe). He was released after paying a bribe;
- f) in 2004,
the applicant's parents suggested he come to Australia to study. He would also
be free to practise his religion in Australia.
He had no problem obtaining a
passport or visa legally. He arrived in Australia on 31 August 2005 on a
student visa. He joined a
Catholic church in Flemington soon after his arrival
and remains an active member of this church;
- g) the
applicant has twice returned to China: first in January 2006 because he was
homesick and again in January 2007 because his
grandmother was ill. On this
occasion, there was a special church event at the applicant's home. The police
came and the applicant
and other members of his family were forced to make
written statements, threatened and verbally abused. He was able to leave China
on 10 February 2007 as although he was detained, he was released without having
to pay a bribe and was not charged with a criminal
offence;
- h) the
applicant’s grandmother died on 10 March 2007. A priest was invited to say
mass on 13 March 2007. The police came and
the applicant's mother was arrested.
She was detained for more than two months and the family had to pay a bribe of
RMB20,000 to
secure her release. After her release she was required to report to
the police once a month but she has since gone to stay with a
nun in Fuqing
City. The applicant claims that it is from this time that the situation for the
applicant and his family has seriously
deteriorated;
- i) following
this event, the applicant stated that the police came to the family home and
demanded that he return to China to explain
his connection with the Catholic
church overseas. His sister told him not to return as it is too dangerous;
- j) after his
mother's release, his whole family fled from the local area. The applicant's
mother and sister (and his sister’s
baby) are living with a nun in Fuqing
city, while the rest of his family is in the Xi Chang province;
- k) on 25 June
2007, his mother was the subject of a summons by the Public Security Bureau
(PSB). However at this time, she was already
in hiding and the summons was given
to the applicant’s maternal grandmother who still lives in the village.
The applicant’s
mother did not respond to the summons;
- l) the
applicant states that he did not apply for a protection visa until 2008 because
he was initially told that such an application
involved a large sum of money. He
has since been able to receive free legal advice.
- The
delegate’s decision
- The delegate
rejected the applicant’s claim for a protection visa and the Applicant and
his legal adviser (RACS) were advised
of this in a letter dated 13 January 2009.
The delegate accepted that the applicant is a Christian, and that he has
practised his
Catholic faith in China and in Australia; and that the Convention
ground on which he relied was religion. The only real issue was
whether the
Applicant’s fear of Convention-based persecution (on the grounds of
religion) was well founded. The delegate found
that it was not well founded.
His reasons for so finding included:
- a) On his
review of the country information, he did not consider that it can be concluded
that Catholics in China are persecuted
per se (CB 100).
- b) The
delegate entertained doubts about the matters claimed by the applicant,
including in relation to his claim to have been placed
on a
‘blacklist’ since 2000.
- c) The
delegate considered that the applicant’s travel to Australia and his
willingness to return to China twice since his
arrival in Australia
‘suggest the applicant is not of interest to the Chinese authorities on
account of his own or his family’s
claimed religious activities’ (CB
101). In particular, the delegate relied on the ease with which he has
travelled to Australia
and back to China on two occasions, on a legally issued
passport, as indicating that he was not of interest or concern to the
authorities.
- The delegate
concluded that he was not satisfied that, ‘even if the applicant returned
to China and practised his Catholic
faith in an underground Catholic Church in
Fujian, ...the applicant has a well founded fear of religious persecution in
China for
this reason’ (CB 105).
- The Tribunal
decision
- The applicant
attended a hearing at the Tribunal on 31 March 2009 where he was assisted by his
legal representative from RACS, and
by a Mandarin speaking interpreter. He
brought a witness, the President of the Chinese Catholic Community of West
Sydney who attested
to the applicant’s membership of his church and to his
honesty. The Tribunal then questioned the applicant about his family
and their
whereabouts in China.
- During the
course of the hearing, the Tribunal member told the applicant what he understood
from the country information to be the
situation for Catholics in China
(including those associated with the underground church) and the applicant and
the member had an
exchange about the accuracy of that information (see
transcript of Tribunal hearing, annexure A to the affidavit of Jennifer Vu sworn
22 September 2009, at pp 5-8).
- The applicant
also raised the issue of the summons sent to his mother, which he brought to the
Tribunal, with a certified translation,
in his 2nd
statutory declaration prepared for the Tribunal hearing (he had not specifically
mentioned it in his first affidavit) (CB 138-142).
- Following the
hearing, the applicant’s representative provided the Tribunal with
additional written submissions (CB 154-160).
- By a decision
dated 18 May 2009, the Tribunal affirmed the decision not to grant the applicant
a Protection (Class XA) visa. The
member found, among other things:
- a) He was not
satisfied that there is a real chance that the applicant would be subject to
“systematic and discriminatory conduct”
occasioning “serious
harm” on the part of Chinese official or others (CB 175).
- b) The
applicant had twice returned to China and therefore at the time of those visits,
the Tribunal did not believe that he had
a reason to fear persecution because of
his religious faith or practice.
- c) The
Tribunal found that the applicant’s account of a more serious incident
after his return to Australia in February 2007
is ‘so inconsistent with
country information’ ... ‘that I do not accept that it
occurred’.
- d) The
Tribunal found unpersuasive the applicant’s evidence about being
threatened with being unable to obtain a university
education, giving as a
reason that ‘at least one of the underground Christian applicants from
Fujian referred to ... by his
representative is a university graduate’.
- e) The
Tribunal also rejected his claim that relocation was impossible, given that the
Applicant’s family has ‘relocated
and is at liberty’.
Critically, the Tribunal rejected his claim that a summons had been issued for
his mother (a copy of which,
with a certified translation, was provided to the
Tribunal), finding that ‘persons in China who are indeed sought by the
authorities
will be found. It follows that, 2 years having passed and his family
still being at liberty, they are not sought by the police. Accordingly,
I do not
accept that the summons was issued for his mother’ (paragraph 53, CB
175).
- f) The
Tribunal also found, with reference to s.91R(3), that the applicant’s
practice of his religion in Australia was genuine, ie, it was not for the
purpose of strengthening his
refugee claim, but the Tribunal did not accept that
that practice would cause him to suffer harm in China should the authorities
become aware of it (paragraphs 55-56, CB 176).
- These
proceedings began with a show cause application filed on 15 June 2009. The
applicant now relies upon an amended application
filed on 17 August 2009. The
grounds in that application are summarised in paragraph 13 of the
Minister’s outline of submissions:
- Failure to
consider country information independently and properly/bias
- Reasoning
reveals irrationality, illogicality and/or unreasonableness
- Incorrect
application of s.91R(3)
- Failure to
comply with obligations under s.424A
- Failure to
consider claims properly and fairly
- Reasonable
apprehension of bias
- I
conducted a show cause hearing in this matter on 31 August 2009. At that time I
ordered, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules
2001 (Cth) that the Minister show cause why relief should not be granted in
relation to the issue of whether the Tribunal erred in its
treatment of
corroborative evidence in paragraphs 52 and 53 of its reasons (CB 175). Under
the Court Rules this hearing was prima facie restricted to the issues
identified in the show cause order. Nevertheless, the Minister’s
submissions addressed all the grounds
of review advanced by the applicant and I
considered all of the issues at today’s hearing.
- I
received as evidence the court book filed on 14 July 2009 and the affidavit of
Jennifer Vu filed on 23 September 2009. Annexed
to that affidavit is a
transcript of the Tribunal hearing conducted on 31 March 2009.
- The
applicant took up the opportunity to make oral submissions at today’s
hearing. The applicant asserts, in effect, that there
was a constructive
failure on the part of the Tribunal to exercise its jurisdiction because the
Tribunal failed to engage in an active
intellectual process in dealing with his
claims and, rather, based its decision on country information or the claims of
others.
The applicant is upset that the Tribunal was not satisfied that he
faced a serious risk of harm in China as a practising Christian.
The applicant
is also concerned at the manner in which he was represented before the Tribunal
by his representative from RACS.
As to that last issue, there is no suggestion
that the applicant was not represented by Ms Taranto to the best of her ability.
Further,
there is nothing in the available material that could conceivably
support any allegation of fraud on the Tribunal. If the applicant
wishes to
pursue any problem he may have with the standard of his representation he is
free to take that up with RACS.
- Subject
to what follows in relation to the issues identified by me in the show cause
order, I am persuaded that the Minister’s
submissions deal adequately with
the grounds advanced by the applicant. I agree with and adopt for the purposes
of this judgment,
with amendments, paragraphs 15 through to 31 of those written
submissions:
- The
applicant’s claim is set out as follows: “The Tribunal failed to
consider country information independently, fairly
and properly; instead the
Tribunal selected country information according to its own tastes. So, the
Tribunal’s decision has
included apprehensive bias”.
- i. Use of
country information
- The
applicant’s particulars of this claim refer to his disagreement with the
country information relied upon by the Tribunal.
Specifically, he takes issue
with the information used by the Tribunal concerning the Catholic Church in
China, and in particular,
those parts of the Church that are connected to the
Vatican (referring to paragraphs [44] – [47] of the Tribunal’s
decision).
He also claims that there is no evidence that there is no
persecution.
- These claims
are in effect, disputes as to factual matters that are matters centrally within
the Tribunal’s jurisdiction.
As the Full Federal Court stated in
NAHI:
- There can
be no objection in principle to the Tribunal relying on ‘country
information’. The weight that it gives to
such information is a matter
for the Tribunal itself, as part of its fact-finding function. Such information
... can be used to
assess the credibility of a claim of a well-founded fear of
persecution. It is not, as the first appellant submitted, an error of
law, or a
jurisdictional error, for the Tribunal to base a decision on ‘country
information’ that is not true. The question
of the accuracy of the
‘country information’ is one for the Tribunal, not for the Court.
If the Court were to make its
own assessment of the truth of ‘country
information’, it would be engaging in merits review.
[1]
- The Federal
Court has frequently stated that the weight given to country information is a
matter within the jurisdiction of the Tribunal:
as Lander J pointed out in
VWFW, an appeal cannot succeed if ‘the appellant’s only
complaint was as to the weight which the Tribunal had given to the
various items
of country
information.’[2]
- On this basis,
the applicant’s claim about the use of country information cannot succeed.
- ii. The claim
of apprehended bias
- The applicant
has also claimed that the reliance by the Tribunal on country information with
which he takes issue was “according
to its own tastes” and therefore
gives rise to a claim of apprehended bias. At least in relation to curial
proceedings (which
differ from the Tribunal’s proceedings as the former
are held in public), ‘the test for apprehended bias ... is whether
a
fair-minded lay observer might reasonably apprehend that the judge might not
bring an impartial mind to the resolution of the question
to be
decided’.[3] The
Full Federal Court in NADH has articulated the test as ‘whether the
relevant circumstances are such that a fair-minded and informed person might
reasonably
apprehend that the decision-maker might not bring or have brought an
impartial mind to bear on the
decision.’[4]
- If in fact the
applicant’s claim is that the Tribunal’s decision is vitiated by
actual bias in the manner in which it
chose which country information to rely
on, the applicant has not met his onus of showing any such bias. As the High
Court has pointed
out, any claim of actual bias must be ‘distinctly made
and clearly
proved.’[5]
Neither in relation to a claim of actual bias nor a claim of apprehended bias
has the applicant provided sufficient particulars
to establish any such claim.
The applicant has failed to make out this ground and this claim should also be
dismissed.
- The
Tribunal’s decision was irrational, illogical and/or unreasonable
- The applicant
claims that the Tribunal’s decision was irrational, illogical and/or
unreasonable (drawing on the High Court’s
decision in Minister for
Immigration, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for
Immigration[6] where
McHugh and Gummow JJ held that a decision which, by the legislation turned upon
the formation of an opinion, would be affected
by jurisdictional error if it was
“irrational, illogical and not based upon findings or inferences of fact
supported by logical
grounds”).[7] As
French and Hill JJ pointed out in Minister for Immigration v W306/01A,
‘there is a substantial divide between irrationality or want of logic in
reasoning on the one hand and reviewable error on
the
other’.[8]
- The
particulars the applicant provides for this ground of review are:
- Even if
‘at least one of the underground Christian applicants from Fujian
referred’ to the Tribunal by my representative
is a university graduate,
we cannot say that I was not threatened with being unable to obtain a university
education (Paragraph [52]
of the Tribunal’s decision).
- Even if
nothing has happened to my family, we cannot say that a summons has not issued
to my mother in China.
In relation to the issue about whether the applicant was threatened with being
unable to obtain a university education, the applicant
appears to be attempting
to shift the onus to the Tribunal to disprove his claim. However,
“[t]he onus [is] on the applicant. A decision-maker does not
have to have rebutting evidence available before he or she can lawfully hold
that a
particular factual assertion by an applicant is not made
out.”[9] It
was open to the applicant, in his supplementary submissions, to elaborate on
this claim and he has not done so, other than to
raise a distinguishing
characteristic at the show cause hearing on 31 August where he pointed out that
the ‘other Fujian applicant was able to attend university because he
only became a Catholic after university’. It would be impermissibly
suggesting that it is the responsibility of the Tribunal to investigate such a
claim, as seems
to be suggested by the phrase in the particulars “[w]e
cannot say that I was not threatened with being unable to obtain a university
education”. As the Full Federal Court has pointed out, "... the
circumstances in which the Tribunal could be found to be under an obligation to
make a particular inquiry will ... be rare
..."[10]Further,
the applicant has not provided any factual basis which demonstrates that the
Tribunal's failure to inquire constituted a
failure to undertake the Tribunal's
statutory duty of review or that it was so unreasonable as to support a finding
that the Tribunal's
decision was infected by jurisdictional
error.[11]
As to the issue of the summons which the applicant produced to the Tribunal
(but not previously), the Tribunal made it clear that
in its view, the
acceptance of that document (the corroborating information) was a matter of
evidence and weight, and went to its
general findings about the credibility of
the applicant. The issue about the summons was discussed at considerable length
at the
Tribunal’s hearing, including the member raising concerns (see
transcript page 9) about the possibility of its being forged.
As the Tribunal
member said on that page: ‘With this sort of document, how much faith I
can have in this depends a little bit on my assessment of the other
evidence’. In other words, the Tribunal ultimately did not accept the
claim of the applicant on this issue, and in the absence of an error
that is
based on, for example, asking itself the wrong question, a finding of
credibility is quintessentially a matter within the
Tribunal’s
jurisdiction.
Further, I accept the respondent’s submission that this ground, by which
the applicant appears to be seeking a form of impermissible
merits review, has
also not been made out.
Incorrect application of s.91R(3)
This claim has no substance in light of the express finding in paragraph 55 of
the Tribunal’s reasons that the Tribunal was
satisfied that the
applicant’s practice of his religion in Australia was engaged in to
satisfy his spiritual needs and ‘not
for the purpose of strengthening his
refugee claim’.
The Tribunal failed to comply with its obligations under s.424A(1) of the
Act
The gist of this claim is that the Tribunal failed to make available to the
applicant ‘clear particulars of any information that the Tribunal
considers would be the reason, or a part of the reason, for affirming the
decision
that is under review’. However, in affirming the delegate's
decision, the Tribunal relied on:
- a) information
contained within the applicant's application for a protection visa and
application to the Tribunal. This information
fell within the exceptions
contained in ss.424A(3)(b)-(ba) of the Migration Act;
b) independent country information, which fell within the exception contained
in s.424A(3)(a) of the Migration
Act;[12]
c) inconsistencies in the applicant's evidence or evidence submitted on his
behalf. It is now well established that the "existence of doubts,
inconsistencies or the absence of evidence" does not fall within the meaning
of "information" for the purpose of section 424A(1) of the Migration
Act.[13]
For these reasons, the applicant’s claim under s.424A cannot succeed.
Failure to consider claims properly and fairly
This claim is not particularised. To the extent that the claim attempts to
draw on s.422B(3) of the Migration Act, that provision is merely facultative and
no duties additional to those imposed on the Tribunal by its code of procedure
arise[14].
- As
already noted the issue identified by me in making a show cause order concerned
the Tribunal’s reasons at paragraphs 52 and
53 (CB 175):
- There are
inconsistencies between the applicant’s claims and the evidence submitted
by him or on his behalf. One of the claims
made by the applicant is that he was
threatened with being unable to obtain a university education. Yet, at least
one of the underground
Christian applicants from Fujian referred to me by his
representative is a university graduate.
- One of the
other applicants in the decisions referred to me by the applicant’s
adviser claimed that relocation was impossible.
I do not accept that as a
matter of fact. The present applicant’s family has, according to his
evidence, relocated and is
at liberty. He claimed that a summons was issued for
his mother and that the police are looking for his family. I note that one
of
the findings in some of the decisions cited by the applicant’s adviser was
that relocation was impossible because a person
would be found anywhere in
China. I accept that persons in China who are indeed sought by the authorities
will be found. It follows
that, 2 years having past and his family still being
at liberty, they are not sought by the police. Accordingly, I do not accept
that a summons was issued for his mother.
- As
to the issue of the applicant’s university education, it was probably
unhelpful for the claims of others to be advanced in
order to support the claims
made by the applicant. For myself, I do not find the Tribunal’s
reasoning, at paragraph 52 (CB
175), helpful in dealing with the claims by the
applicant. However, having regard to the discussion at the Tribunal hearing, in
particular on page 12 of the transcript, the explanation for the
Tribunal’s reasoning becomes clearer. The applicant was asserting
that
there was a black list and that one of the consequences of the black list was
that he would be prevented from obtaining a university
education. The Tribunal
was not satisfied with that assertion in terms of the manner on which the claim
was advanced on behalf of
the applicant and the evidence given by the applicant
to the Tribunal at the hearing. It was an understandable approach by the
Tribunal
to discount the asserted threat of harm the applicant said he
faced.
- In
relation to the alleged summons issued to the applicant’s mother, the
transcript refers to a discussion about that issue
on page 9. This is not a
case in which the applicant’s credibility was so damaged that the Tribunal
could avoid dealing with
corroborative documentary evidence bearing on an issue
of credibility. The Tribunal’s reasons are briefly expressed, but when
read in context in the decision as a whole and in conjunction with the hearing
transcript, I surmise that the Tribunal reasoned that
the summons relied upon by
the applicant was not what it purported to be. In other words, the Tribunal,
although it did not expressly
make a finding, was unwilling to accept that the
summons was an authentic document. The Tribunal appears to have reasoned that
the
experience of the applicant’s family was inconsistent with their being
a summons issued to the applicant’s mother.
- I
conclude that jurisdictional error has not been established, either in terms of
the show cause order made by me or in terms of the
grounds advanced in the
amended application. The Tribunal decision is therefore a privative clause
decision and the application
must be dismissed. I so order.
- The
application, having been dismissed, costs should follow the event. The Minister
sought an order for costs fixed in the sum of
$7,000. The applicant submitted
that costs should be as little as possible. The Court scale following a final
hearing is $5,865.
I am persuaded that a sum somewhat in excess of the scale
amount ought to be awarded on a party and party basis, having regard to
the
additional work the Minister’s legal representatives were put to in
consequence of the show cause order. In particular,
I note that the Court was
assisted by the transcript annexed to the affidavit of Ms Vu. I will order that
the applicant is to pay
the first respondent’s costs and disbursements of
and incidental to the application, fixed in the sum of $6,000.
I
certify that the preceding eleven (11) paragraphs are a true copy of the reasons
for judgment of Driver FM
Associate:
Date: 9 November 2009
[1] NAHI v
Minister for Immigration [2004] FCAFC 10 at [11] Gray, Tamberlin and Lander
JJ.
[2] VWFW v
Minister for Immigration [2006] FCAFC 29 at [63] per Lander J, referring to
decisions in QAAT v Minister for Immigration [2005] FCA 968; NAHI v
Minister for Immigration [2004] FCAFC 10; VQAB v Minister for Immigration
[2004] FCAFC 104
[3] Re Refugee
Review Tribunal; Ex parte H [2001] HCA 28 at [27]- [28] (Gleeson CJ, Gaudron
and Gummow JJ) ; referring to a number of authorities including Ebner v
Official Trustee [2000] HCA 63; (2000) 75 ALJR 277 at 279 [6] per Gleeson CJ, McHugh,
Gummow and Hayne JJ
[4] NADH of 2001
v Minister for Immigration [2004] FCAFC 328 at [14] per Allsopp J.
[5] Minister for
Immigration v Jia [2001] HCA 17 at [69] Gleeson CJ, Gummow J and see also
Kirby J at [127].
[6] (2003) 198 ALR
59; [2003] HCA 30.
[7] [2003] HCA 30; (2003) 198 ALR
59 at [34]. In doing so they drew upon the reasoning of Gummow J in Minister
for Immigration v Eshetu (1999) 197 CLR 611 at 655-656. See also the
discussion in Aronson Dyer and Groves, Judicial Review of Administrative
Action, 4th edition, 2009, [4.410] – [4.435].
[8] Minister for
Immigration v W306/01A [2003] FCAFC 208 at [46]
[9] Selvadurai v
Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 [7] Heerey J.
[10] Minister
for Immigration v Singh (1997) 144 ALR 284 at 291 per Black CJ, Lee, von
Doussa, Sundberg and Mansfield JJ
[11]
Minister for Immigration v SZIAI [2009] HCA 39 at
[26]
[12]SZMCD v
Minister for Immigration [2009] FCAFC 46 at [82], [88]. See also Minister
for Immigration v NAMW [2004] FCAFC
264
[13] SZBYR v
Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 at [18] citing VAF v Minister
for Immigration [2004] FCAFC 123 at [24].
[14] Minister
for Immigration v SZMOK [2009] FCAFC 83
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