FEDERAL COURT OF AUSTRALIA Jaramillo v Minister for Immigration & Multicultural Affairs [2000] FCA 1403 EDSON FELIPE PELAEZ JARAMILLO v MINISTER FOR IMMIGRATION AND MULTICULATURAL AFFAIRS NO DG 17 OF 1998 O'LOUGHLIN J 6 OCTOBER 2000 ADELAIDE (heard in Darwin) IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY DG 17 OF 1998 BETWEEN: EDSON FELIPE PELAEZ JARAMILLO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 6 OCTOBER 2000 WHERE MADE: ADELAIDE (heard in Darwin) THE COURT ORDERS THAT: 1 The application be dismissed. 2 The applicant pay the respondent's costs which costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY DG 17 OF 1998 BETWEEN: EDSON FELIPE PELAEZ JARAMILLO APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 6 OCTOBER 2000 PLACE: ADELAIDE (heard in Darwin) REASONS FOR JUDGMENT 1 The applicant, Edson Felipe Pelaez Jaramillo ("Mr Pelaez") came to Australia from his native Colombia on 28 January 1996 on a visitor visa. He applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act"), but not until eighteen months later on 7 August 1997. On 27 November 1997 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, ("the Minister") came to the conclusion that Mr Pelaez was not a refugee and was not entitled to the grant of a protection visa. 2 Mr Pelaez applied to the Refugee Review Tribunal ("the Tribunal") for a review of the delegate's decision. That application was unsuccessful; on 30 September 1998, the Tribunal published its decision and its reasons for affirming the earlier decision of the delegate. The applicant now asks this Court to review the decision of the Tribunal. 3 The prescribed criteria for the grant of a protection visa are set out in subs 36(2) of the Act and cl 866 of Sch 2 to the Migration Regulations: see subs 31(3) and Reg 2.03. Subsection 36(2) of the Act states that the criterion for the grant of a protection visa is that: "… the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5 of the Act as meaning "the convention relating to the status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967." 4 A refugee is defined by Art 1A(2) of the Convention as amended by the Protocol as a person who: "Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it." 5 The basis of the applicant's claim was a fear of persecution because of his membership of a particular social group; that group was, so it was claimed, those who were farm managers in the area of the farm that Mr Pelaez had managed in Colombia. 6 In determining whether one or more convention reasons applies to an applicant's circumstances, Black CJ (with whom French J agreed) said in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 at 420: "The convention definition does not extend to all persons who have a well-founded fear of being persecuted in their country of nationality; it requires that there be a fear of being persecuted for one of the specified reasons. Those reasons may of course overlap, but a recognition that this is so should not obscure the fact that a well-founded fear of persecution for a specified reason must be shown. Each element of the definition must be considered. … . It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason. The primary focus of this part of the definition is upon an aspect of what a person is – a member of a particular social group – rather than upon what a person has done or does." 7 Determining whether an applicant for a protection visa holds a well-founded fear of persecution is essentially a two stage process which requires a subjective and objective examination of the applicant's circumstances. Subjectively, the Tribunal, as the decision-maker, must determine whether the applicant is actually in fear of persecution, and objectively, the decision-maker must determine whether the applicant's fear is based in reality: Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 376. real chance 8 In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (see above), the High Court held that there must be a "real chance" of persecution if the person were to be returned to the country of his nationality. The Court observed that the "real chance" test discounts a "far-fetched possibility" (at 429 per McHugh J) and "what is remote or insubstantial" (at 407 per Toohey J). 9 At 389 Mason CJ observed that: "… the expression a "real chance" … clearly conveys the notion of substantial, as distinct from a remote chance, of persecution occurring … . If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring." The court stated that the term "well-founded fear of being persecuted" denotes that the applicant must have a subjective fear and that the fear must have a basis in reality. At 396 Dawson J stated that: "The phrase "well-founded fear of being persecuted" … contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear." 10 In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 the majority (Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ) said of the decision in Chan's case that it was: "…an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error." On the following page, the majority explained in further detail: "Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation." 11 In Periannan v Minister for Immigration and Ethnic Affairs (unreported: Federal Court, 28 July 1987) Wilcox J said of "persecution" that: "It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances." That passage was referred to with approval by Davies J in the Full Court in Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 at 405. In the following year, McHugh J wrote on the same subject in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 257-258: "The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution." Later at p 258 of his judgment, McHugh J added the further comment about the difficulties that may be confronted by citizens of a country that is suffering the horrors of civil war. He said: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution Yang v Carroll (1994) 852 F Supp 460 at 467. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race cf Korematsu v United States (1944) 323 US 214." 12 To establish whether the applicant, if he returns to Colombia, will face a real, as opposed to a fanciful, chance of persecution because of his social background, it is necessary to examine the whole of his circumstances as they presently exist. 13 This Court's power to review the Tribunal's decision is found in ss 475 and 476 of the Act. The first of those sections identifies decisions that are judicially reviewable and a decision of the Tribunal is one such decision. Section 476 provides that an application may be made for review of a Tribunal's decision by this Court on one or more of the grounds that are set out in subs (1) of that section. In his amended application for an order of review, the applicant relied upon the provisions of pars 476(1)(a) and (e). Those provisions are as follows: "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) – (d) … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) – (g) …" 14 The application to this Court, seeking an order of review was filed on 6 November 1998 but an amended application was filed on 31 December 1998. When the application was called on for hearing, Mr Dalrymple, counsel for the applicant, announced that several of the grounds of review were abandoned. I proposed therefore to refer only to those grounds that remained for consideration. It is my understanding that all remaining grounds centre upon the claim by Mr Pelaez that he has a well founded fear of being persecuted for reasons of his membership of a particular social group. It is however, necessary to refer to the question of political opinion only for the purpose of explaining why I understand it to be no longer an issue. 15 Subpar 5.b of the grounds for review read as follows: "5. That there was no evidence or other material to justify the making of the decision by the Tribunal: a. … b. That there was no evidence for the Tribunal to find that the applicant did not have a well-founded fear of persecution for a Convention reason because of the political activity of the applicant's family members or because of his membership of a social group." Although it was not specifically identified during the course of counsel's submissions, I take it that the reference to "political activity" was withdrawn at a stage when counsel for the Minister was addressing on another ground (which included a reference to "a political profile"; see subpar 2.d of the amended application). Counsel for the Minister interrupted his submissions to say: "Sorry, my friend tells me that he is not pursuing an argument that there is any failure on the part of the Tribunal in relation to its finding that he was not at risk by reason of political opinion." Mr Dalrymple was invited to respond; he is recorded as saying: "I've tried to focus my arguments today and perhaps I should have made it clearer. I'm not sure if political opinion arises in any of the grounds that we are still pursuing but I think I've focussed my attention in relation to a particular social group rather than political opinion." 16 It was then suggested that ground 2.d. should be amended by deleting the words "a political profile" and that was agreed. However, everyone overlooked the continued presence of the words "because of the political activity of the applicant's family members or" in ground 5.b. I have treated this as an oversight and I will consider this ground as limited to the issue of the applicant's alleged well-founded fear of persecution because of his membership of a particular social group. 17 Mr Pelaez, who is now thirty-six years of age, was born in Colombia in the town of Medellin in the province of Antioquia. He is not married; his parents are both alive and continue to live in Colombia. Mr Pelaez completed his secondary education and later gained a qualification in animal husbandry. He has worked in a variety of occupations, including sales and farm management. 18 His claim for refugee status is based upon his perception of what might happen to him in the internal conflict between the Colombian authorities and various armed guerilla groups. Prior to leaving Colombia he had worked as a farm manager and, in that capacity, he had been asked to give aid to roving revolutionary groups and threatened by the army and paramilitary groups with reprisals if he gave such aid. 19 In answer to the question: "Why did you leave [Colombia]?" appearing in his application for a Protection Visa, Mr Pelaez gave a lengthy answer about the "cross-fire" in which he had found himself. He wrote that on 25 November 1995, when driving from the farm to a nearby town, he was stopped by three men who were strangers to him. One of them accused him of having gone to the police; the stranger allegedly said that Mr Pelaez had to leave the country or he would be killed. Mr Pelaez said that he told his father what had happened and a family decision was made that he should leave the country. Mr Pelaez believes that the three strangers belonged to one of two revolutionary groups: either the "Fuerzas Armadas Revolucion – areas Colombianas" ("FARC") or the "Ejercito Liberacion Nacional" ("ELN"). 20 According to the information that he supplied in his application, Mr Pelaez first experienced contact with guerilla groups sometime after he took over the management of a farm in 1992. He described their periodic visits when they sought provisions or transport. He said that they also inquired about "the salaries and welfare that we gave to our employees". Mr Pelaez did not explain whether these inquiries were prompted as a result of concerns for the welfare of his employees or whether they were based on some idea of greed or confiscation. In any event, Mr Pelaez wrote in his application "I agreed positively to these favours, just for the risk of expose my life" (sic). 21 According to Mr Pelaez, the guerrillas' "requests" became more "compromising" in the second half of 1995. However, he then proceeded to give two instances when he refused the guerillas' demands. First, he refused a demand to drive four armed men to a nearby town and on the later occasion he refused to transport an injured man to hospital. He then wrote: "I think that if refused to their last petitions I became to be for them as an undesirable person." [sic] I take that to mean that Mr Pelaez's perception of his situation was his two refusals to help the guerillas had alienated them and that this alienation, in due course, lead to the death threat that he received. In addition to this information, the applicant also gave evidence before the Tribunal where he expanded on the detail that was contained in his application and added additional information about the pressure that was applied to him by the military and about stories of abduction and death of local people at the hands of the revolutionaries. 22 The Tribunal, in addressing the subject of the 1995 death threat, was critical of the applicant's evidence. The Tribunal pointed out that in his application, Mr Pelaez had said that the threat was made by persons in civilian dress and that they warned him not to seek assistance from the army or the police. That statement accords with the applicant's belief that was based on the consequences of his two refusals to give transport to the guerillas. However, at the hearing before the Tribunal, the applicant said that he believed that the threat probably came from a paramilitary group. The Tribunal made the following observation in its reasons: "The applicant's claim for asylum initially rested essentially on a fear of guerrillas. Since the rejection of that claim at the primary level, largely on the basis that he did not lack State protection if he feared harm from guerrillas, his story has altered such that he now attributes his threat to the State, or at least to a group operating in collaboration with the State. When the discrepancy in his evidence was pointed out to him by the Tribunal the applicant said that he was afraid to blame the military before getting legal advice." 23 The Tribunal was clearly unimpressed with the applicant, concluding that Mr Pelaez "has adjusted his story to implicate the authorities in order to enhance a prospect that he would be declared a refugee". 24 The applicant was particularly critical of this passage in the Tribunal's reasons, complaining that the transcript of proceedings in the Tribunal disclosed that the member stated that the applicant had not raised his fear of the military or the paramilitary until the time of the hearing. That was not correct for, as the applicant pointed out, he had made reference to that fear when he, jointly with another Colombian applicant, attended an interview on 1 August 1997 at the office of the Department of Immigration and Multicultural Affairs in Darwin. The interviewing officer's note read as follows: "The interviews proceeded without difficulty and both indicted that they wished to lodge applications for Protection Visas (Subclass 866). I did not dwell on their reasons for wishing to make said applications, however, inter alia, both advise that they lived in a "Red Area" (they explained this as being an area with significant rebel activity and feared for their personal safety by the rebels who demanded provisioning with food and supplies under threat of death. They went on to say that the police/military also threatened persons who assisted rebels with sanctions. In summary, a case of damned if you do, damned if you don't." 25 I do not attach any importance to this complaint as, despite what he might have said to the interviewing officer, Mr Pelaez made no claim against the authorities when the time came to complete his application. 26 The conclusion, that he had adjusted his story, was, in my opinion, one that was open to the Tribunal on the evidence and it would not be appropriate for this court to interfere with it. In addition, the Tribunal declined to accept that the death threat that Mr Pelaez received in 1995 came from guerrillas. It recounted the evidence of Mr Pelaez's good relationship with the guerrillas and their apparent acceptance of his refusals to offer them transport because, as he said, the risks were too great. The Tribunal concluded: "The Tribunal finds it implausible that guerrillas would threaten with death a person who had shown long-term support to them and had refused only to do something that they themselves had found too risky to undertake. Additionally, the Tribunal finds it implausible that guerrillas who apparently left the farm without so much as remonstrating with the applicant after he declined to transport them to town would some time later threaten him with death and demand he leave the country without even alluding to the reason for the threats or indicating their source." Once again, I find myself, persuaded by the reasoning of the Tribunal. 27 The Tribunal set out, in its reasons, a lengthy passage from the United States Department of State "Country Reports on Human Practices, 1997". It commented, correctly if I may say so, that it, along with other material that was submitted by the applicant indicated: "… widespread chaos and serious abuses of human rights by all sides, particularly in relation to the trade in drugs; massive internal displacement; and numerous incidents of random violence and of many innocent citizens being caught up in the various conflicts." 28 However, as the Tribunal pointed out its task was to determine whether the applicant was at risk of persecution for a Convention reason. In addressing that task, the Tribunal concluded that the applicant: · did not have a political profile; · did not have membership of a particular social group; and · could not be said to be at risk of persecution due to a convention ground. Those findings were all properly open to the Tribunal and there is no mandate for this Court interfering with these findings. grounds of appeal 29 The first ground of review can be disposed quickly. It was an allegation that: "That procedures required by the Migration Act (1958) or the Migration Regulations to be observed in the consideration of the application before the Tribunal were not observed." That ground had originally been particularised by asserting that translating facilities before the Tribunal were inadequate and that the applicant had been prevented from presenting the evidence of two witnesses. Both those allegations were withdrawn at the hearing but the primary allegation of a failure to observe procedures was not abandoned. Instead counsel for the applicant attempted to join it to another ground of review in which it was alleged that: "That there was no evidence upon which the Tribunal could conclude that the applicant had "adjusted his story to implicate the authorities"; The short answer is that this was an inference that was available to the Tribunal and nothing that has been advanced by the applicant points to it being susceptible to challenge. 30 The next ground for review was said to be that the decision of the Tribunal involved an error of law, being an error involving the incorrect application of the applicable law. Particulars were said to be: "2 c. That the Tribunal erred in law and incorrectly applied the test relating to the applicant's risk of persecution by considering that the correct test to be applied was that the applicant should be 'differentially' at risk of persecution for any Convention ground; 31 At page 19 of its reasons, the Tribunal said: "The task of the Tribunal, however, is to determine whether the applicant is differentially at risk of persecution for any Convention reason." 32 The applicant submitted that the Tribunal, by its use of the word "differentially" fell into error by adding, impermissably, an additional burden of proof onto the applicant. In other words, as I understand the argument, it was proposed that the Tribunal was of the opinion that not only must the applicant be a member of a social group, it must also be apparent that he has been treated or is likely to be treated differently to other members of the group. Such an argument, in my opinion overlooks the first hurdle that must be addressed: that is, whether the members of a particular social group are by virtue of their membership at risk of persecution. If a particular member of that group is at risk of persecution and other members of the same group are not at risk, there is a strong case for saying that the risk of persecution is not membership of the particular social group but some other cause. In my opinion, there was no substance in this complaint. The use of the word "differentially" was not necessary and may have caused some confusion. It did not, however, detract from the accuracy of the Tribunal's statement when it said that its task was to determine whether the applicant was at risk of persecution for any Convention reason. 33 The next ground that was advanced by the applicant in support of his application for an order of review was as follows" "2. That the decision of the Tribunal involved an error of law, being an error involving the incorrect application of the applicable law. Particulars d. that the Tribunal erred in law by concluding that the applicant did not have membership of a particular social group such that it could be said that he was at risk of persecution for any Convention ground." 34 Mr Grant, counsel for the Minister, submitted that there was no, or no sufficient, evidence before the Tribunal that would have allowed the Tribunal to make the necessary findings of fact. He claimed that it would have been necessary for the Tribunal to have had evidence from which it could have determined: · that farm managers were a discrete social group; · that farm managers were subject to persecution by reason of that membership; and · that the members of the farm management group suffered persecution that was somehow different to or distinct from that suffered by other people in the same area. 35 I agree that evidence of the first two of those three issues is necessary but I see no need for the third. If farm managers are a discrete social group and are persecuted because of their membership of that group it will be persecution for a Convention reason. It would not matter that other people in the same area were treated differently. 36 I do not consider that it is necessary for me to express a concluded view about the claimed existence of farm managers as a particular social group in Colombia in the 1990s. However, assuming (without deciding) that there was such a group and further assuming (again without deciding) that the applicant was a member of that group, the Tribunal has found that such "persecution" as the applicant may have suffered, or may have perceived that he might suffer, would not be because of his membership of a particular social group – it would be because of his personal and individual behaviour. Any persecutory treatment that may have been meted out to him would not necessarily have been inflicted on other farm managers unless of course, the persecutors (whomsoever they may be) perceived the other farm managers to be conducting, or threatening to conduct, themselves in the same manner as Mr Pelaez. In other words, even though it may be possible for farm managers to be classified as a group, the evidence did not point to that group, as a group, being the subject of persecutory treatment either from the guerrillas or the authorities. 37 I agree with Mr Grant's submission that there must be some enmity that is directed to a person because of his or her membership of the particular social group. In any event, it is not correct to assert that farm managers constitute a particular social group because they have a common fear of persecution: Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 at 242 ("Applicant A") per Dawson J where his Honour said of such a group that its members do not have "anything in common save fear of persecution". As Burchett J said in Ram v Minister for Immigration and Multicultural Affairs (1995) 57 FCR 565 at 568 there must be "a common thread" which links the expressions "persecuted" and "for reasons of", and "membership of a particular social group", namely: "… a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group." To adapt the language of Dawson J in Applicant A at 249 to the circumstances of this case, what Mr Pelaez had to demonstrate was that circumstances A, B & C, or any one of them, operated to unite him and others such that they were an identifiable social group "apart from the fact that they all faced persecution". There was no evidence that demonstrated a unification of persons as described by his Honour – and, of course, there was no evidence that they all faced persecution. The most telling comparison that destroys the applicant's case is the treatment that Stalin meted out to the Kulaks during the 1930s. There were regarded by the State as wealthy peasants who were opposed to collective farming. They were persecuted as a group without individual consideration. In the case of the farm managers to whom Mr Pelaez once belonged, they were not persecuted – either by the guerrillas or the authorities – because they were farm managers; if they were persecuted it was either because the individual had refused aid to his or her persecutor or had given aid to the persecutor's opponents. 38 The final ground that was advanced by the applicant in support of his application for an order of review was as follows: "That the decision of the Tribunal involved an error of law, being an error involving the incorrect application of the applicable law. Particulars: e. That the Tribunal erred in law by failing to recognise the distinction supplied to it in the evidence of the applicant between the operations of the various paramilitary groups, various guerrilla groups and the forces of the government, including the police and military units." 39 This ground, in my opinion, is not open to the applicant. A fair reading of the whole of the Tribunal's reasons shows that it addressed Mr Pelaez's relations with the guerrillas and his position vis a vis the authorities. I have already referred to the salient point in the Tribunal's reasons about his contact with the guerrillas. As to the authorities, the Tribunal said this: "Given that there was intense guerrilla activity in the area where he lived, and heavy surveillance by the authorities, it is to be expected that routine enquiries would be made of local citizens as to any knowledge they possessed that may be helpful in tracking down guerrillas. Although the applicant may have concealed some knowledge from the authorities the evidence indicates that he did not come under suspicion. The authorities had ample opportunity to take action against him if they were disposed to do so. The applicant was permitted to depart Colombia legally after the questioning of him. He made no application for asylum in the USA, thus indicating that he was not in fear for his well-being. He has given evidence that he did not anticipate problems upon his return to Colombia and, indeed, he did not encounter any problems at the hands of the authorities. His ability to depart legally for Australia in early 1996 further indicates that he remained outside the realm of interest of the authorities, and the Tribunal finds accordingly." 40 I have come to the conclusion that the applicant has failed to make out any of his grounds that would justify a review of the Tribunal's decision. The application must therefore be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: Counsel for the Applicant: Mr D Dalrymple Solicitor for the Applicant: Dalrymple & Associates Counsel for the Respondent: Mr M Grant Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 April 2000 Date of Judgment: 6 October 2000