AB v Minister for Immigration and Citizenship

THE LEGISLATION 14 Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test. The character test is defined in s 501(6), it provides that a person does not pass the character test, inter alia, if the person is not of good character having regard to the person's past and present general conduct. Section 499 of the Act empowers the Minister to give written directions to decision-makers about how they are to exercise discretionary powers under the Act. Decision-makers are bound to comply with such directions. The Minister him or herself is not so bound when exercising powers personally: see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 544 [57]. Decisions made by a delegate of the Minister under s 501(1) are reviewable by the Administrative Appeals Tribunal; decisions made personally by the Minister are not: see s 500(1).

THE TREATIES 15 Article 4 of the CAT provides that: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." 16 Article 6 of the ICCPR provides that: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrately deprived of his life." 17 Article 7 of the ICCPR provides that: "No one shall be subjected to torture or cruel, inhuman or degrading punishment."

THE APPLICANT'S CASE 18 The applicant accepts that none of the relevant treaty obligations has been incorporated in Australian domestic law. There is, therefore, no statutory obligation on the Minister or other decision-makers under the Act to give effect to those obligations when making decisions under the Act. The applicant, however, argues that, because the Minister determined that she "would follow Direction No 21" and that she would take into account, as a relevant consideration, the question of whether the applicant could be returned to the Lebanon consistently with Australia's treaty obligations, she was obliged to have regard to the CAT and ICCPR, properly construed, when exercising the discretion conferred on her by s 501(1) of the Act. The applicant contends that the Minister made two errors in dealing with the treaties. They were that: · She applied the "necessary and foreseeable" test when deciding whether a "real risk" of harm would confront the applicant in Lebanon. In doing so it is said that she erred because the test "is a separate element of the assessment of the non refoulment obligation under the ICCPR going to the nexus between the removal and the risk, as opposed to the determination of the presence of a real risk of death or mistreatment." · She failed to give discrete consideration to the test posed by the CAT. 19 The applicant further contended that he had been denied procedural fairness in that: · Procedural fairness required that he be provided with a copy of the reassessment and given the opportunity to comment on it. He was not given a copy of the document. · He had a legitimate expectation that the Minister would apply the constructions of the ICCPR and the CAT as they were explained in the initial assessment or that, if some other construction was to be applied, he would have had the opportunity of being heard in support of an argument that this should not occur. · The failure to provide him with a copy of the reassessment and to afford him an opportunity to be heard on its contents caused practical injustice because, had the reassessment been exposed, his advisers would have been able to make submissions as to the proper constructions which the Minister should apply.

RELEVANT CONSIDERATIONS 20 The applicant acknowledges that the Minister would have been free to make her decision, under s 501(1) of the Act, without reference to the ICCPR, the CAT or any other international treaty which had not been incorporated in Australian domestic law. It is, however, contended that, once the Minister determined that she would take Australia's obligations under the ICCPR and the CAT into account, she was obliged to ascertain and apply the relevant treaty obligations according to their terms. If, in making her decision, the Minister misconstrued a treaty obligation and this had a material bearing on her decision, she could be said to have failed to have regard to a relevant consideration (the obligation correctly construed) or had regard to an irrelevant consideration (the misunderstood obligation). 21 As counsel for the applicant readily conceded this aspect of his case confronted some significant difficulties. The first is that his argument assumes that a decision-maker can be bound to have regard to a consideration which he or she would otherwise be free to ignore if he or she chooses to take the particular consideration into account. The argument is made all the more difficult where the decision-maker is a Minister and the relevant statutory discretion is conferred in the widest possible terms. The difficulty is compounded when the relevant consideration is identified as a treaty obligation, correctly construed. 22 The discretionary power, conferred on the Minister by s 501(1) of the Act, is unfetteredin its terms. As Heydon and Crennan JJ (with whom Gleeson CJ agreed) said, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370 at 401 [128], speaking of the similarly wide discretion conferred on the Minister by s 501(2): "Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context in the Act. As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community." The protection and expectations of the Australian community are not, however, binding considerations when the Minister him or herself makes a decision under s 501. The same must be true of international treaty obligations. As McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at 33 [101]; " …In the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error." 23 While such considerations could be elevated to the status of mandatory considerations by statute or by direction given under statutory power, this has not occurred in the present case. The Minister is under no such obligation to so treat them. The question then arises as to whether that position can be altered simply because the Minister chooses to take into account treaty obligations when making a decision under the Act. 24 The applicant seeks an affirmative answer to this question relying on the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. A delegate of the Minister had determined that the respondent should be deported because he had committed various criminal offences in Australia. He appealed to the Administrative Appeals Tribunal. In affirming the delegate's decision the Tribunal made two brief references to a ministerial policy statement relating to criminal deportation. French and Drummond JJ held (at 211) that the ministerial policy statements "were relevant factors which the Tribunal was bound to consider although not bound to apply so as to prejudice its independent assessment of the merits of the case." Their Honours found that the Tribunal had failed to have regard to certain central elements in the policy in coming to its decision. They said (at 208) that: "On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis the disposing of the case in hand, but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of a policy may reduce to misconstruction of the statute or misunderstanding of its purpose." 25 This passage cannot be understood as supporting an unqualified proposition that an error in construing and applying a policy or an unincorporated treaty, which the decision-maker is not bound to apply, will amount to jurisdictional error. This will only be so if the misconstruction is "serious" such that "what is applied is not the policy but something else …". Moreover their Honours' reasoning assumes that the Tribunal was bound to give consideration to the ministerial policy. Whether or not that be right in respect to a ministerial policy, it is now clear that this is not the case where unincorporated international treaty obligations are concerned. This was accepted by French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875. His Honour said (at [59]) that: "There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration "in all cases concerning children". However the existence of that obligation of international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions. … Such considerations do not thereby become mandatory. In the joint judgment in re Minister for Immigration and Multicultural Affairs; ex parte Lam …McHugh and Gummow JJ referred to the "… established doctrine" that obligations under international treaties "… are not mandatory relevant considerations attracting judicial review for jurisdictional error." The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law … But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision makers." 26 His Honour expressly rejected a contention that the Full Court decision in Gray compelled a different conclusion. His Honour said (at [62], [63], [66]) that: "[62] Although the Minister, like the AAT in Gray's case, is not bound to apply the Ministerial direction this does not preclude him or her from adopting a ministerial policy to be applied in such cases providing he does not fetter his discretion in so doing. The adoption of a policy guideline would be entirely consistent with the impited legislative intent that the Minister's powers not be exercised capriciously or arbitrarily, albeit the policy might be changed from time to time. In this case the Issues Paper told the Minister no more than that it was open to him to be guided by the factors set out in the Direction. It did not suggest that he apply the policy. The facts provided to the Minister for consideration reflected those identified in the Direction. But although it may be inferred that the Minister decided to adopt that general approach, it does not mean that he was bound to treat the interest of Mr Le's children as a primary consideration or that he in fact did so. [63] The best interests of the children of the visa holder affected by a decision taken by the Minister under s 501 cannot be regarded as a mandatory relevant factor in the exercise of the Minister's discretion by reason of the terms of the statute, international law or the Minister's own policy directions … [66] Absent a requirement, conditioning the exercise of the cancellation power, that the Minister have regard to the best interests of the visa holder's children, the complaint of a constructive failure to consider their interests, even if made out, would not expose a jurisdictional error…" 27 Australia's unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error. 28 For these reasons I do not consider that the Minister made any jurisdictional error, even if she erred in construing and applying the ICCPR or the CAT. 29 Although it is strictly unnecessary to do so, I should add that I do not accept the applicant's contention that the Minister necessarily erred in her construction and application of the treaty obligations to which she had regard. In Kindler v Canada (Communication Number 470/1991) the United Nations Human Rights Committee said that the relevant question under Article 6 of the ICCPR was whether Canada had exposed "a person within its jurisdiction to the real risk (that is to say, a necessary and foreseeable consequence) of losing his life" contrary to the ICCPR. The Minister approached the matter in this way when she accepted the departmental assessment "that country information did not support the view that torture or death would be a "necessary and foreseeable consequence" of the [applicant's] removal from Australia which is the test for risk set by the United Nations Human Rights Commission." The applicant's allegation of error is founded on a more recent formulation of the test by the Human Rights Committee which, it is contended, rephrases the relevant question such that the "necessary and foreseeable consequence" test should not be read as qualifying the test of "real risk". The two tests are set to be cumulative. Reliance was placed on two of the Committee's decisions in 2006 which related to Canada. The Committee's decisions included statements that: "States parties are under an obligation not to expose individuals to a real risk of being killed or subjected to torture or cruel, inhuman or degrading treatment or punishment" and that "The committee must therefore decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant's removal] there is a real risk that the [applicant] would be subjected to treatment prohibited by articles 6 and 7 [of the ICCPR]." Attention was directed to one of the Committee's decisions in 2004 involving Denmark. There it held that the relevant question was whether expulsion would "expose [the applicant] to a real and foreseeable risk of being subjected to treatment contrary to article 7 [of the ICCPR]". Reliance was also placed on a comparison of the draft and final versions of the Committee's General Comment 31. In none of these instances was the Kindler formulation criticised or rejected. Nor do the formulations which are relied on lend clear support to the applicant's contentions that there are two tests to be applied cumulatively. In any event, even if the more recent expressions of the Committee's understanding of the relevant obligations are to be understood as reflecting a differing view from that previously expressed, it does not follow that the Minster has erred by preferring the opinion expressed in cases such as Kindler. 30 The applicant's second complaint relating to the Minister's treatment of Australia's treaty obligations was that she failed to deal with the test posed by the CAT at all. I am by no means persuaded that this complaint has merit. The Minister's reasons do not refer expressly to either the ICCPR or the CAT. They do, however, refer to "Australia's international obligations." Moreover, she referred to the department's assessment in which both the ICCPR and the CAT obligations are dealt with. Even if the Minister had failed to give separate or any consideration to the obligations imposed by the CAT, this would not have constituted a jurisdictional error. This is so for at least two reasons. The first is that, if she did not do so, she did not err because she was not bound to have regard to the CAT obligations. The second is that, in any event, the applicant, in written submissions to the Minister, did not seek to suggest that there was anything other than a "real risk" test to be applied in determining whether either or both of the ICCPR and the CAT were engaged. One example was the submission that: "The situation in Lebanon is far from stable and the Department cannot reach a determinative conclusion of whether there is a "real risk" that [the applicant] will face violation of his ICCPR , or CAT, rights upon any return to Lebanon." It is, therefore, hardly surprising that the Minister did not, in terms, deal separately with the CAT obligations once she had explained her reasons for concluding that Australia's international obligations were not engaged.

PROCEDURAL FAIRNESS 31 It is common ground that the applicant was not provided with a copy of the reassessment or the issues paper referred to above at [10]. The Minister's reasons do not refer expressly to either document. The applicant argues, nonetheless, that the Minister must have had regard to the reassessment and relied on it because she refers in her reasons to an International Treaties Obligation Assessment "which states that while there was a remote possibility of the risk of torture and/or death if the applicant was to be returned, there was no real risk given the changes in Lebanon since … July 2005." No such phrasing appears in the initial assessment which was provided to the applicant. It is said that the tests which were to be applied by the Minister in determining whether Australia had non-refoulment obligations to the applicant under the two treaties were formulated differently in the initial assessment, to which the applicant had access, and the reassessment. The comparison is drawn between the questions which are set out above at [8] and what is said in the passages from the reassessment which are extracted in the issues paper: see above at [10]. In particular it is suggested that the formulation of the test in para [118] of the issues paper is confusing and ignores the test posed by the CAT. Complaint is also made that the clarification contained in para [117] in which the department expresses the opinion that the applicant would confront only a "remote possibility" of torture or death if returned to the Lebanon, differs from the initial assessment. In addition, the applicant's solicitor gave evidence that, had she been provided with a copy of the reassessment, she would have made submissions, such as those made in argument in this proceeding, as to the proper construction of the ICCPR and the CAT. However, in cross examination, she conceded that these arguments had not occurred to her at the time that the submissions would have been made in response to the assessment. They occurred to her after the Minister's decision had been made and after counsel had been briefed for the trial. 32 Procedural fairness required that the applicant should be advised of any "critical point on which the decision would turn": see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43]. He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 600 [32], a Full Court of this Court said (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." 33 When the department issued the notice of intention to consider the refusal of his visa application the applicant was advised that one of the issues to be considered by the Minister was whether Australia would breach its international treaty obligations should it return him to the Lebanon. Given the importance of this matter he was advised to "specify in detail any reason why you believe that Australia would be breaching its international obligations by returning [you] to the Lebanon": see above at [5]. The applicant's solicitor responded to this invitation by making submissions supporting the proposition that the treaty obligations would be breached because there was the "strong possibility" that he "may well face persecution and/or torture if he is forced to return to Lebanon …". Shortly afterwards the applicant's solicitors were provided with the department's initial assessment relating to Australia's international treaty obligations in so far as they had application to the applicant. Again the solicitors for the applicant were invited to respond on his behalf and did so. The submissions dealt with the construction and application of the ICCPR and the CAT, arguing that the level of risk of harm which would be faced by the applicant in the Lebanon was such as to satisfy tests which would attract the operation of the two treaties. The applicant's solicitor acknowledged, in evidence, that she had not expected to be afforded any further opportunity to comment on the departmental material prior to the Minister making a decision. Accordingly she had made a comprehensive submission on behalf of the applicant saying all that it was desired to advance on his behalf including contentions relating to the construction and application of the ICCPR and the CAT. 34 In my opinion, the procedures adopted by the department satisfied the requirements of procedural fairness in the present case. The invitation identified with clarity one of the crucial or relevant points on which the Minister's decision might turn. The applicant was afforded the opportunity, on two occasions, to make detailed submissions on the construction and application of the two treaties. Conflicting assessments by the departmental officer and the applicant's solicitor as to the proper characterisation of the level of risk to be confronted, should the applicant return to the Lebanon, were placed before the Minister. So too were submissions relating to the correct formulation of the relevant treaty obligations. They were incorporated in the issues paper. There was no requirement that the department's issues paper should be provided to the applicant before it was considered by the Minister: see M238 of 2002 v Ruddock [2003] FCAFC 260 at [54]. Furthermore, there was no requirement that the Minister's views on these matters, after she had considered the submissions and the issues paper, should be exposed to the applicant for further comment prior to a decision being made: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 603 [48]. 35 The applicant submits that he "had a legitimate expectation that the tests for the application of the ICCPR and the CAT would be as couched in the Assessment (or that if some deviation was proposed, he would have the opportunity of being heard as to why that would be incorrect)". 36 This submission must be rejected. The decision was to be made by the Minister personally. The applicant was specifically advised to make full submissions about the treaty obligations Australia may owe to him. No restrictions were placed on this invitation. The submissions were made and included submissions as to the construction and application of the ICCPR and the CAT. The applicant may well have had a proper basis for alleging jurisdictional error had it been said or implied that the Minister would accept and act on the departmental officer's views. Such an assertion would have rendered the invitation to the applicant to make detailed submissions on the issues raised in the department's documents a hollow and meaningless gesture. No expectation of the kind identified by the applicant could justifiably be regarded as "legitimate". The critical point is that the applicant was afforded the opportunity to tell the Minister affirmatively what he contended were Australia's treaty obligations and how they applied to him. He did so. 37 In Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, the applicant claimed to have been denied procedural fairness by the Minister when he made a decision to cancel his visa under s 501(2) of the Act. The applicant had been given a notice by the Department advising him that the Minister was proposing to consider cancellation of his visa. Various relevant matters were identified, including the best interests of any children with whom the applicant had an involvement. The applicant made detailed submissions including claims relating to the effect of his deportation on his Australian born children. It was apparent from those submissions that the children were being cared for by a particular person. After the submissions had been received an officer of the department sought information from the applicant such as the name, address and telephone number of the children's carers. It was said that the department wished to contact the carers in order to assess some of the applicant's claims. Although the applicant provided the requested particulars no contact was made with the person who was caring for the children. The Minister cancelled the visa. The applicant claimed to have been denied procedural fairness because he had a legitimate expectation that the carer would be contacted and her views taken into account and that expectation was not fulfilled. The High Court dismissed the application. Gleeson CJ said (at 13-14): "[36] The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment. [37] A common form of detriment suffered where a decision maker has failed to take a procedural step is loss of an opportunity to make representations. … A particular example of such detriment is a case where the statement of intention has been relied upon and, acting in the faith of it, a person has refrained from putting material before a decision maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essential practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. [38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children." McHugh and Gummow JJ came to a similar conclusion. Their Honours said (at 34-35) that: "[105] But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision making process not the decision … [106] The applicant by the statement in the letter to him of 7 November 2000 did not acquire any vested right to oblige the Department to act as it indicated, at peril of the ultimate decision by the Minister exceeding his jurisdiction under the Act. It was not suggested that in reliance upon that letter the applicant had failed to put to the Department any material he otherwise would have urged upon it. Nor was it suggested that, if contacted, the carers would have supplemented to any significant degree what had been put already in the letter of 17 October 2000. The submission that the applicant, before the making by the Minister of his decision, should have been told that the carers were not to be contacted, thus lacks any probative force for a conclusion that the procedures so miscarried as to occasion a denial of natural justice. Hayne J concluded (at 38-39) that: "[122] …it is enough to say that even if the Department's letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the appellant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in anyway from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children. …" 38 The applicant's case, insofar as it is founded on claims that he had a legitimate expectation which was not fulfilled and which occasioned practical unfairness relies on the passages just quoted from the judgment of Gleeson CJ in Lam. 39 The applicant contends that he had a legitimate expectation that the Minister would apply the tests identified in the initial submission "and that he would be heard in the event that it be proposed that relevant contents of the Assessment were amended or abandoned to his detriment." It is said that the practical unfairness arose because, when an allegedly different test was propounded in the reassessment and was referred to in the issues paper given to the Minister he was unaware of the change. He claims, that had he known of the change, "he could have made submissions urging against their adoption, and those might have found favour." 40 For reasons already given I do not consider that it is possible to discern, in the department's initial assessment and the reassessment, materially different formulations of the tests to be applied in determining Australia's obligation to him under the ICCPR and the CAT. Even if some significant differences did exist it does not follow that any practical unfairness was occasioned by the procedures which were adopted. It is to be noted that, in both assessments, the conclusion was reached that non-refoulment obligations did not arise. It is also to be noted that there is no evidence of any subjective expectation, harboured by the applicant (or his solicitor) at relevant times of the kind now alleged much less any evidence of reliance on it. As the applicant's solicitor frankly acknowledged, in her evidence, comprehensive submissions were made on the critically relevant issues. Nothing was omitted as a result of any expectation engendered by the Department or the Minister. The process adopted gave rise to no practical unfairness. 41 The application should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Solicitor for the Applicant: Clothier Anderson & Associates

Solicitor for the Respondent: Australian Government Solicitor