FEDERAL COURT OF AUSTRALIA H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 APPEAL – GENERAL PRINCIPLES – nature of appeal from a judge of the Court to the Full Court – appeal power for correction of errors – issue not argued at first instance – whether expedient in the interests of justice that issue be argued on appeal MIGRATION – Migration Act 1958 (Cth) s 476 – actual bias Migration Act 1958 (Cth) Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122, cited White v Minister for Immigration & Multicultural Affairs [2000] FCA 232, cited Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47, cited Coulton v Holcombe (1986) 162 CLR 1, followed O'Brien v Komesaroff (1982) 150 CLR 310, cited Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, cited Jones v Minister for Immigration & Ethnic Affairs (FC) (1995) 63 FCR 32, cited Warren v Coombes (1979) 142 CLR 531, cited Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91, cited Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, followed Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, cited Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228, cited Antonio v Minister for Immigration & Multicultural Affairs [1999] FCA 1210, cited Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556, cited Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, cited H v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 231 of 2000 BRANSON, MARSHALL & KATZ JJ SYDNEY 22 SEPTEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 231 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: H APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON, MARSHALL & KATZ JJ DATE OF ORDER: 22 SEPTEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 231 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: H APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON, MARSHALL & KATZ JJ DATE: 22 SEPTEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT BRANSON & KATZ JJ: 1 We have had the advantage of reading the draft reasons for judgment of Marshall J in this matter. We gratefully adopt his Honour's summary of the background to the appeal including the findings of the Refugee Review Tribunal ("the Tribunal") and the decision of the learned primary judge (Hely J). 2 Before Hely J, the appellant, who was legally represented, contended that the decision of the Tribunal should be set aside on the following grounds – (a) that the Tribunal had underestimated the degree of persecution which the appellant and his wife fear and rejected many of their claims without obtaining or having material which contradicted them; (b) that the Tribunal was actually biased against the appellant; and (c) that there was no evidence or other material to justify the making of the Tribunal's decision. (This contention may also have involved a submission that the Tribunal wrongly dismissed a letter as a fabrication and failed properly to apply the "real chance" test). 3 His Honour rejected each of the grounds of review relied upon before him. 4 The notice of appeal to this Court contains the following grounds of appeal: "1. His Honour erred in finding that the decision was not affected by actual bias. 2. His Honour should have found that the Tribunal had failed to give reasons for its findings on material questions of fact. Particulars His Honour should have found that the Tribunal should have referred to the evidence or other material on which its finding that the applicant's wife was not a convincing witness was based. 3. His Honour erred in finding that there had not been an error in the application of the relevant law to the facts found by the Tribunal. [P]articulars (a) The Tribunal's finding that there was no reason for anyone to impute a pro-LTTE political opinion to them was based upon an erroneous application of the applicable law relating to imputed political opinion. (b) The Tribunal's finding that the treatment of the applicant and his wife by his neighbours did not amount to persecution was based upon an erroneous application of the applicable law relating to what amounts to persecution." 5 Counsel for the appellant (who was not the counsel who appeared before Hely J) indicated that ground 2 of the notice of appeal was not pressed. He also conceded that the matters on which he wished to rely in support of ground 3 had not been raised before Hely J. 6 An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7-8). In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O'Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 (FC) particularly per RD Nicholson J at 47). 7 As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe at 7: "It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish." 8 In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration. 9 In this case, as both parties' submissions on ground 3 had been reduced to writing and required little oral elaboration, the Court indicated that it would rule on whether the appellant should be allowed to rely on ground 3 when it delivered judgment on the appeal. The adoption of this course has allowed consideration to be given to the merit of ground 3 as part of the assessment of whether it would be expedient in the interests of justice to allow the appellant to advance ground 3 as a basis upon which the appeal should be allowed. As Marshall J has identified, there is little merit in the issues sought to be raised by the appellant under ground 3. They are not issues of general importance to the proper administration of the Act but arise out of the particular circumstances of the appellant. No evidence explaining why they were not raised before the primary judge has been put before the Court. In the circumstances, notwithstanding the importance to the appellant of his claim to be entitled to a protection visa, we have concluded that it would not be expedient in the interests of justice to allow the appellant to rely on ground 3 of his notice of appeal. We would refuse him leave to do so. 10 The only ground of appeal requiring determination is thus ground 1 which asserts that the learned primary judge erred in finding that the decision was not affected by actual bias. No criticism is made by the appellant of the approach adopted by Hely J to the issue of whether the decision of the Tribunal was induced or affected by actual bias. His Honour rightly observed that "[a] finding of actual bias should not be made lightly" and that "[i]n order to establish actual bias it must be proven that the decision maker has in fact prejudged the case so as to be unable or unwilling to decide it impartially". 11 This Court is invited to reconsider the material said to show that the decision of the Tribunal was induced or affected by actual bias for the purpose of forming its own opinion on this question. That material is to be found in the transcript of the hearing before the Tribunal. This Court is in as good a position as the primary judge to decide on the proper inferences to be drawn from the transcript. However, in deciding what inferences are to be drawn, it is appropriate for us to give respect and weight to the decision of Hely J (Warren v Coombes (1979) 142 CLR 531; see also Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91 per Franki J, with whom in this regard Northrop and Fisher JJ agreed, at 97). As Beaumont and Lee JJ observed in Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369: "The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (supra) (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and it should be corrected." (citations omitted) 12 We are not satisfied that Hely J made any error in determining the inferences to be drawn from the transcript of the hearing before the Tribunal. Having read the transcript ourselves, we are in agreement with the judgment concerning it made by Hely J and with the inferences drawn from it by his Honour. His Honour said: "It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him. At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing, and that he believed that the applicant was lying. … It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion." 13 The appeal should be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson and Katz. Associate: Dated: 22 September 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 231 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: H APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGES: BRANSON, MARSHALL & KATZ JJ DATE: 22 SEPTEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT MARSHALL J: 14 This is an appeal from a judgment of a single Judge of the Court ("the primary Judge") given on 28 February 2000. The primary Judge ordered that the appellant's application for an order of review of a decision of the Refugee Review Tribunal ("RRT") be dismissed. Background 15 The appellant is a citizen of Sri Lanka. His application for a protection visa was made on his wife's behalf as well as on his own behalf. The appellant and his wife entered Australia on 8 October 1997. An application for a protection visa was lodged with the respondent on 29 October 1997. On 9 December 1997, a delegate of the respondent refused the application. Review of that decision was sought before the RRT. The RRT conducted hearings on 21 September and 19 October 1999. On 16 November 1999, the RRT decided to affirm the decision of the delegate. The findings of the RRT 16 The RRT made the following findings of fact: · The appellant is Singhalese. · The appellant's wife is part Singhalese and part Tamil. · The mother of the appellant's wife is Tamil. · The appellant and his wife may have suffered some harm because the appellant's wife is part-Tamil. · On two occasions in 1996, the appellant's house was stoned. · The harm suffered was not "such serious or significant harm as to amount to persecution". · The position of the appellant and his wife is not unusual. · Letters claimed to have been sent by the Liberation Tigers of Tamil Eelam ("the LTTE") to the appellant making arrangements for the accommodation of LTTE operatives at the appellant's abode were not genuine. · The appellant was not questioned by police about a terrorist attack on his employer, Air Lanka, or about the poisoning of Air Lanka's water supply. · There is no (valid) reason for anyone to impute a pro-LTTE political opinion to the appellant or his wife. Credibility assessments 17 The RRT did not find the appellant and his wife to be "convincing witnesses". It found the appellant's claims that he was suspected of poisoning the water supply of Air Lanka and stealing one of Air Lanka's computers to be incredible. That finding was due to the fact that Air Lanka subsequently gave the appellant an employment reference. The reasoning of the primary Judge 18 The major ground relied upon by the appellant before the primary Judge was his allegation that the RRT was affected by actual bias. The primary Judge reviewed the transcript of the hearing in the RRT and formed the view that the RRT was not affected by actual bias. At [17] of his reasons for judgment, the primary Judge said: "It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion. Rather, having heard the applicant, he indicated from time to time and in quite forceful, perhaps even rude, terms that having regard to the objective circumstances, he did not believe what he was being told." Actual bias – submissions on appeal 19 Counsel for the appellant, Mr D Godwin, submitted that the primary Judge erred by not finding that the RRT was affected by actual bias, although Mr Godwin accepted that the primary Judge had applied the correct test for the determination of actual bias. Mr Godwin referred to various passages in the transcript of the hearing before the RRT which revealed, in his submission, that the RRT member: · cross-examined the appellant with a view to extracting concessions from him; · raised, out of context, an allegation that an application for a protection visa was made after the appellant's application to migrate to Australia was refused; and · displayed hostility to the appellant and his wife. 20 Counsel acknowledged that some of the relevant transcript references had been set out by the primary Judge in his reasons for judgment. However, it was submitted that his Honour did not closely examine "the context (or lack of context)" in which the exchanges took place. 21 Mr Godwin highlighted the fact that, in the transcript, the RRT member suggested that the appellant received his reference from Air Lanka shortly after the theft of the computer. As counsel pointed out, the reference was received about one year later. But the RRT member acknowledged that the reference was dated September 1997 during the second hearing on 19 October 1999 (at t/s p 3). Further, as distinct from what was put "arguendo" by the RRT member, in the RRT's reasons for decision, no emphasis was put on precisely when the reference was received. The RRT said as follows: "I note that the Applicant husband claims that he was suspected of poisoning the Air Lanka water supply, and of stealing an Air Lanka computer. I note the reference he was given by Air Lanka. I find his claims incredible in the light of that reference." 22 It may be that in that passage cited immediately above, the RRT viewed the relevant suspicion as emanating from the employer and not the police. However, a desire to rely on such matters is, in effect, an invitation to the Court to engage in an impermissible merits review. Other criticisms of the RRT's reliance on the reference, in the context of the alleged computer theft, also fall into the category of an invitation to engage in merits review. 23 During the hearing on 21 September 1999, the RRT terminated the evidence of the appellant in order to take evidence from the appellant's wife. Before doing so, the RRT member said that he believed that the appellant was lying to him. It was contended that the conduct of the hearing in that manner was evidence of actual bias in the RRT in that the RRT member had closed his mind to anything the appellant wished to say. However, the RRT member further questioned the appellant at the conclusion of the evidence of the appellant's wife. If the RRT member's mind was closed, there would have been no need to question the appellant further. 24 Counsel also referred to the sarcastic nature of many of the RRT member's questions to the appellant. But the use of sarcasm is not enough to show actual bias. See Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 per Wilcox J. 25 Mr Godwin contended that the RRT prematurely concluded that the appellant was untruthful. It was also put that the evidence of the appellant and his wife was not grossly exaggerated. Reliance was placed, in this context, on the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Asif [2000] FCA 228. In Asif, it was observed (at [32]) that the relevant decision maker had refused to: "… evaluate the probative force of any of the evidence from sources other than the respondent (visa applicant) himself … ." In the instant case, at the time that the RRT expressed severe misgivings about the appellant's evidence, the RRT member had not begun to question the appellant's wife. There was no "steadfast refusal to evaluate the probative force of any of the evidence from (other) sources". Conclusion on actual bias 26 As Burchett J said in Sun (at 127) a finding of actual bias is: "… a grave matter, different in kind from a finding of mere error, or even wrong - headedness, whether in law, logic, or approach." In Antonio v Minister for Immigration & Multicultural Affairs [1999] FCA 1210, sitting as a member of a Full Court, French J said (at [2]) that: "To establish actual bias requires demonstration of a dysfunctional decision-making process, so that by reason of preconceived views or attitudes, the decision - maker is precluded from properly addressing the issues which are before him or her." 27 At [31] in Antonio, Tamberlin J (with whom French and Sackville JJ agreed) said that for an allegation of actual bias to be made out: "There must be shown to be an actual prejudgment, hostility, prejudice or predisposition to decide the question in a particular way. There are very few reported cases on actual bias. No doubt this is because of the inherent difficulty in proving an actually bias(ed) state of mind in the decision-maker at the relevant time." 28 Noting the difference between "actual bias" and a reasonable apprehension of bias by an impartial bystander, his Honour said (at [32]) that: "The expression "actual bias" is often used in contrast to an apprehended bias, where there may, in fact, be no bias but a reasonable perception or apprehension of bias. By reason of the restricted provisions in s 476 (of the Migration Act 1958 (Cth)), the court cannot have regard to apprehended bias in judicial review of a decision of the RRT." 29 In Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556, [1999] FCA 951 at [158], R D Nicholson J (sitting as a member of a Full Court) said, after referring to the judgments of the members of the Court in Sun, that: "It will be observed from this that for actual bias to be established there must be evidence of "a closed mind to the issues raised", "preliminary views incapable of alteration", prejudgment of the case at least in some respect, real although not necessarily intentional." 30 In Jia at [82], Cooper J said that: "The fact that a decision - maker has formed a conclusion about an issue involved in the inquiry does not constitute bias on the part of the decision - maker… It must be shown that the decision - maker is unwilling or unable to be persuaded out of any express or implied view before actual bias will be found. As a finding of actual bias requires a factual finding of a state of mind, it may be proved from the statements or conduct of the decision - maker or as a matter of inference from such statements or conduct. Such statements and conduct, however, must be viewed in the context of the decision - making process as a whole … ." 31 In the course of the hearing of the application of the appellant and the appellant's wife, the RRT member expressed some strong views in a forthright manner. He did so in the course of seeking assistance from the appellant and his wife about matters which caused the RRT member concern. The RRT member gave the appellant an opportunity to assuage his concerns. When asked by the appellant if he thought the appellant was lying (on 21 September 1999 at t/s p 36), the RRT member said: "Yes, that's precisely what I think at the moment, Mr H." (Emphasis supplied). The appellant then asked how he could make the RRT member believe him. The RRT member replied that: "I don't know yet. Perhaps I'll hear from your wife and we'll see how it looks to me then." 32 After questioning the appellant's wife, the RRT member said that he was "absolutely unconvinced at this stage" (emphasis supplied) about her claims (see t/s p 48 on 21 September 1999). 33 After a short adjournment, the RRT member put to the appellant and his wife the matters that concerned him about their claims. The RRT member then asked some further questions which did not elicit entirely responsive replies by the appellant. Near the end of the hearing on 21 September 1999, the appellant said to the RRT member (at t/s p 50-51), "(y)ou don't trust us". The RRT member replied that: "It's not a question of trust at all, Mr H, I've got to go away and consider all this and come to a conclusion." The appellant's final remark on that day was: "You don't think that we are saying true, you think we are – all these things lies?" The RRT member replied that: "At this stage, that's – that's exactly what I think but I'll go away and consider it all, Mr H, and listen to the tape again and we'll see what conclusion I come to." (Emphasis supplied). 34 A further hearing occurred on 19 October 1999. The RRT member effectively invited the appellant to make further submissions. The appellant alleged that the police suspected him of being involved with an LTTE member. The RRT member then said that he understood what the appellant had said but didn't find it "the least bit convincing" (at t/s p 4). 35 The RRT member's scepticism was not surprising given the following exchange (at t/s p 4) where he asked why the LTTE would "give you a letter telling you on what day two of their named comrades are going to be present at a certain location?". The appellant's reply was "I don't know actually". The RRT member responded "Are they idiots?". The appellant said "I'm not sure". 36 Unfortunately, the balance of the transcript of the 19 October 1999 hearing reveals a descent by the RRT member into an unsatisfactory debate with the appellant. It was unnecessary for the RRT member to attempt to cross-examine the appellant into conceding he had no case for a protection visa. It appears to me that that is what the RRT member attempted to achieve toward the end of the hearing. It is clear that he had heard enough by 21 September 1999 and only sat on 19 October 1999 at the appellant's request. It appears that the further hearing cemented the tentative views the RRT member had come to since the 21 September 1999 hearing. The appeal papers do not reveal what deliberations the RRT member engaged in with respect to the appellant's application between the two hearing dates or whether he listened to the tapes between the two days of hearing. 37 Although the manner of the conduct of the hearing was, regrettably, unnecessarily overbearing, I am not satisfied that the appellant has satisfied the high onus of proving that the RRT member's decision was affected by actual bias. 38 The material does not show that the RRT member embarked upon his task with preconceived views. The RRT member developed strong views on the basis of responses given to him by the appellant and his wife concerning relevant matters raised by him. Many of his views were expressed as being provisional and requiring further consideration. This was especially so on 21 September 1999. On 19 October 1999, at least in the early stages of that hearing, the RRT member was prepared to consider any further submissions. He did not find these submissions persuasive but the appellant knew that was the case. However, as Cooper J illustrated in Jia, it must be shown that the reviewing tribunal cannot or will not be persuaded from a view held by it. Until towards the end of the second day of hearing, such a state of mind cannot be attributed to the RRT member. Towards the end of the last day of hearing, it was clear that the RRT member disbelieved the appellant, having told him (at t/s p 9) that "all I believe from you is your name and address". 39 Whilst an overstatement, self-evidently inaccurate and a most unfortunate thing to say, that comment showed that the RRT member was definitely going to decide against the appellant. But it must be remembered that the comment came at the very end of the hearing after the appellant and his wife had been afforded a full opportunity to raise any issue they wished to in support of their claims. 40 I do not consider, when the transcript of the hearing is read as a whole, that the RRT member was actually biased against the claims of the appellant and the appellant's wife. I have no doubt that a reasonable apprehension of bias has been demonstrated. But that is not the relevant test for judicial review by this Court of a decision of the RRT. I see no reason to disturb the primary judgment on this ground. Additional Issues 41 Mr Godwin sought the leave of the Court to raise additional issues which were not raised before the primary Judge. Such leave should be refused on the basis that the additional submissions are unpersuasive ones. It is unnecessary to traverse the issue whether leave would have been given otherwise. 42 It was contended that the RRT erred in law by finding that, in respect of the appellant and his wife, "(t)here is no reason for anyone to impute a pro-LTTE opinion to them". Put properly and in context, the RRT member intended to say that there was insufficient reason or no valid reason for anyone to so impute. Such a statement is unexceptionable and supported by the evidence before the RRT member: cf. Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479, per Gummow J. 43 It was also submitted by Mr Godwin that the stoning of the appellant's house was persecution and the RRT member failed to properly consider that to be the case. In my view, the RRT member was entitled to form the view that the isolated acts of stones being thrown at the appellant's house a year before the claim for a protection visa did not support a claim of a well founded fear of persecution if the appellant and his wife were returned to Sri Lanka. This submission was also advanced in an alternative way in reliance on s 430 of the Migration Act 1958 (Cth). However, that alternative submission appeared to be a disguised attempt to engage in impermissible merits review. Order 44 I would order that the appeal be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 22 September 2000 Counsel for the Appellant: Mr D Godwin Counsel for the Respondent: Mr R Bromwich Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 August 2000 Date of Judgment: 22 September 2000