FEDERAL COURT OF AUSTRALIA SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 MIGRATION – Refugee Review Tribunal – whether the applicant is a refugee – Albanian national – claim based on fear of revenge killing under blood feud – particular social group – whether the social group is the applicant's family or some wider group – whether applicant's fear to be disregarded under s 91S of the Migration Act 1958 (Cth) Migration Act 1958 (Cth) s 91S Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 cited SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 followed SAAS v Minister for Immigration & Multicultural Affairs [2002] FCA 726 cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002 (2003) 195 ALR 1cited Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 considered Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 considered Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 cited SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 cited SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 cited SCAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 60 of 2002 von DOUSSA J ADELAIDE 5 JUNE 2003 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 60 OF 2002 BETWEEN: SCAL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 5 JUNE 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Application dismissed. 2. Applicant to pay the respondent's costs of and incidental to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 60 OF 2002 BETWEEN: SCAL APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE: 5 JUNE 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 14 January 2002 and handed down on 1 February 2002 which affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background 2 The applicant is a citizen of Albania. He arrived in Australia on 20 September 1999. On 2 November 1999 he lodged an application for a protection visa. By operation of s 65(1) of the Migration Act 1958 (Cth) (the Act) the applicant is entitled to a protection visa if the Minister, or on review the Tribunal, is satisfied that the applicant meets the relevant criteria. One criterion is set out in s 36(2), namely that the Minister is satisfied that Australia has protection obligations under the 'Refugees Convention' as amended by the 'Refugees Protocol' (both expressions being defined in s 5(1) of the Act). Australia has protection obligations to a person who is a refugee. Article 1A(2) of the Refugees Convention defines a 'refugee' as a person who: '… owing to 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.' 3 Both in his application for the protection visa, and before the Tribunal, the applicant contended that he feared he would be killed as a result of a blood feud with another family in Albania. He sought to bring himself within the definition of 'refugee' by contending that he had a well-founded fear of being persecuted for reason of his membership of a particular social group, namely his family, the male members of which were the target of the blood feud. The applicant asserted that the blood feud arose under customary Albanian law known as the Kanun, otherwise known as the Code of Leke Dukagjini. With the collapse of the Communist regime in Albania and ensuing lawlessness, the Kanun law, which had been suppressed under the Communist regime, re-emerged and was followed in the northern parts of Albania from which the applicant came. The rules of a blood feud required a male member of one family to be killed as a matter of honour where a member of that family had been involved in the killing of a member of another family. 4 At the time of the hearing before the Tribunal, the applicant was aged 41 years. He claimed he was born in, and lived in, Skhoder. He said he had been self-employed in a family shop until December 1998. He said that on the night of 16 August 1998 his father was sleeping in the shop. It was a delicatessen selling smallgoods. He said that crime was rife in Albania. Three people came to the shop and were about to break in. As they tried to do so, the applicant's father called out. The intruders started shooting. His father also had a gun and shot back, injuring two and killing one of the intruders. The applicant claimed that after the shooting his father returned home, but was shortly afterwards arrested by the police and taken away. He said his father was sentenced to 13 years imprisonment following a trial at the courthouse in early 1999. 5 The applicant claimed that his family still owed blood to the deceased's family. The applicant's father would be in gaol for a long time. The applicant was the only person for them to kill, and under the rules of a blood feud it did not matter that he was not at the shop at the time of the killing. The applicant said that attempts within the village to effect a reconciliation with the deceased's family had failed. After living in hiding for a time, he fled from Albania, ultimately coming to Australia. Fundamental to his claim is his assertion that he has a well-founded fear of death for reason of his membership of his family group which, he contends, constitutes a fear of persecution within the meaning of the definition of 'refugee'. 6 It will be noted that the fear he alleges is not a fear from the action of a State agency, but from private individuals within the Albanian community. It is implicit in his claim that the threat of death which he fears is one against which the State offers no adequate protection, and further, that the State tolerates or condones honour killings carried out to settle a blood feud. Unless this assumption is made the threat of harm from private individuals settling a private dispute would not constitute persecution of the kind which can attract protection under the Refugees Convention: see Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 (Khawar) at [26] – [31] and [117] – [121]. This assumption was not the subject of express consideration by the Tribunal, nor by the applicant in submissions to this Court. Certain of the country information referred to by the Tribunal in the course of its reasons could provide a basis for such a finding, although the information is equivocal and could also support a finding that the inaction of the authorities in Albania to suppress blood feuds and provide adequate protection for those who might be threatened by them is the result of inadequate resources, and does not represent a form of selective or discriminatory enforcement of the criminal law such as to amount to persecution by the State authorities. However, in light of the conclusions which I have reached regarding this application, and as the applicant has not addressed argument on this point, it is unnecessary to pursue it further. The Claims and the Tribunal's Reasons 7 The Tribunal, in the section of its reasons headed 'Findings and Reasons', first considered the operation of s 91S of the Act. This provision was inserted into the Act by the Migration Legislation Amendment Act (No 6) 2001 (Cth) that came into force on 1 October 2001. The applicant had applied to the Tribunal for a review of the decision of the Minister's delegate prior to this date but s 91S applies to all cases finalised by the Tribunal after 1 October 2001: see s 7 of the amending Act. Section 91S provides: '91S Membership of a particular social group For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family: (a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and (b) disregard any fear of persecution, or any persecution, that: (i) the first person has ever experienced; or (ii) any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.' The Tribunal said: 'In this case the applicant's problems have developed because his father shot a potential burglar. It appears that the applicant's father was then sentenced to a term of imprisonment, which indicates that he may not be entirely innocent in the matter. As stated above if the applicant's father was sought for revenge by the family of the person who was killed then this would be because of his actions and not because he is a member of particular family. The Tribunal concludes in this case that the applicant's father is a target of the aggrieved family but that his fear or persecution does not relate to a Convention reason. The applicant's father's fear, the Tribunal finds does not arise because of the applicant's father's political opinion, race religion nationality or membership of a particular social group. In the applicant's case he is only sought because of the family connection. Section 91S instructs the Tribunal to disregard any fear that the applicant's father or any other family member has experienced where it is reasonable to conclude that the applicant's fear of persecution would not exist if it were assumed that the non-Convention related fear of persecution of the applicant's father did not exist. In this case the applicant's fear of persecution would not exist if his father's fear or persecution did not exist. In other words if the applicant's father had not shot someone, actions which were not Convention related, and did not fear revenge, a problem that again is not Convention related, the applicant would not have any fear of persecution or be at risk of persecution. As a consequence of applying section 91S the Tribunal finds that after disregarding the problems resulting from the actions of the applicant's father that the applicant does not face a real chance of persecution for a Convention reason.' 8 This conclusion, if correct, is fatal to the applicant's claim. The Tribunal has taken the applicant's claim at face value and held, as a matter of law, that the claim does not support a finding that the applicant will face a real chance of persecution for a Convention reason if he returns to his country of nationality. 9 However, the Tribunal then goes on in its 'Findings and Reasons' to express doubts about the veracity of certain aspects of the applicant's claims. The applicant had supported those claims with many documents ostensibly from village officials and from official Albanian records which, on their face, verify different aspects of the claims. The Tribunal, however, noted that a World Bank Report dated 1 July 1998 and a DFAT advice dated 15 January 1999 indicated that document falsification was rife in Albania. The documents presented by the applicant had been examined by the Document Examination Unit. The examination was inconclusive. The Tribunal therefore placed no weight on these documents. It said that it found the applicant's claim that he was at serious risk because of the blood feud he described to be implausible, and gave reasons. The Tribunal concluded by saying: 'Taking all of the above matters into account the Tribunal is not satisfied that the applicant is a victim of a blood feud, although it is possible that his father has killed someone and been sentenced to a term of imprisonment, as indicated by the document advising he has been sentenced to thirteen years. As a result of the matters above the Tribunal concludes that if the applicant returns to his home village there is no real chance he will face persecution on account of any blood feud or indeed for any Convention reason.' Constitutional Validity of s 91S 10 The delay in hearing the present application occurred as the applicant initially sought to challenge the Constitutional validity of s 91S, and notice was given to the Attorneys-General pursuant to s 78B of the Judiciary Act. No Attorney-General sought to intervene in the proceedings, and by the time the application came on for hearing the Constitutional validity of s 91S had been upheld by Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1102 (SDAR). His Honour had followed the decision of Mansfield J in SAAS v Minister for Immigration & Multicultural Affairs [2002] FCA 726 (SAAS) which concerned the Constitutional validity of s 91R. These decisions hold that both ss 91S and 91R are amply supported by the 'aliens' and 'immigration' powers under ss 51(xix) and 51(xxvii) respectively of the Constitution. 11 In the result, at the hearing of this application, the applicant accepted the Constitutional validity of s 91S. Grounds of Review 12 The matter was listed for hearing on 5 February 2003. Submissions were prepared on the applicant's behalf and filed on 4 February 2003, the same day the High Court of Australia delivered judgment in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. In light of that decision, the applicant included a final paragraph in his submissions which argued that the Tribunal identified a wrong issue or asked itself a wrong question, an error which comprised a jurisdictional error and thus was not protected by the privative clause. However, the main thrust of the submissions was that the Tribunal did not make a bona fide attempt to exercise its power to review the applicant's application for a visa. It was contended that the following matters indicated that the Tribunal did not approach the matter with an open mind and one which was open to persuasion: · the Tribunal took an extraordinary view that if the deceased's family wanted further revenge they would try to take it out on the applicant's father even though he was in gaol serving a long sentence; · the Tribunal misrepresented DFAT advice to the effect that it would be irregular, though not impossible, for the persecutors in a blood feud to target a son when the father was alive. This was said to be a misrepresentation because it failed to give weight to the fact that the father was in gaol; · the Tribunal 'appeared to go out of its way' to disregard documents on the basis of the country information about falsification of documents. It was contended that having regard to all the evidence in the case some weight should have been given to them; and · the Tribunal disregarded, without reasons, certain documents that were patently genuine and certain witness statements. It was also contended that the Tribunal had misconstrued s 91S and that the construction placed on that section in SDAR was wrong. 13 When the matter came on for oral argument, counsel for the applicant re-cast the case. Emphasis was no longer given to the allegation that the Tribunal did not make a bona fide attempt to exercise its power (although the argument was not abandoned). Rather, it was said that the matters which were alleged to indicate the want of a bona fide attempt to exercise power constituted error of a jurisdictional kind because the Tribunal either took into account irrelevant material, or failed to take into account relevant material. The contention that SDAR wrongly construed s 91S was maintained, but the principal thrust of the applicant's re-cast submissions was that the 'particular social group' to which the Tribunal should have had regard in its application of s 91S was not the applicant's family, but a much wider social group. Had the wider group been identified, the applicant contended that the operation of s 91S would not require the particular fear which he held as a member of that wider social group to be disregarded. 14 At the conclusion of the oral argument it was necessary to stand the matter over with leave to the applicant to commit in writing to the description of the 'particular social group' for which he contended, and to allow both the applicant and the respondent to file further submissions addressed to that topic. Consideration 15 I shall first consider the applicant's re-cast submissions on the topic of the particular social group. The applicant now contends that the social group to which he belongs is a group comprising 'citizens of Albania who are subject to the operation of the customary law Code of Leke Dukagjini ("the Kanun")'. 16 The first thing to be noted about the re-cast submission is that the claim now made was not made either in the visa application or before the Tribunal. Neither the delegate nor the Tribunal is obliged to consider claims that have not been made: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [31] – [32]. Even if the applicant can now make good his claim that he belonged to a particular social group other than the one put forward in support of his application, it is doubtful that this would constitute an error on the part of the Tribunal justifying intervention by this Court. 17 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Applicant A) establishes that a 'particular social group' is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. The size of the collection is immaterial, but the uniting characteristic or element cannot include a common fear of persecution: see 241 – 242 per Dawson J, 263 per McHugh J and 285 per Gummow J. See also Khawar at [33] – [34] per Gleeson CJ and [82] – [83] per McHugh and Gummow JJ. 18 However, whilst the particular social group may be defined in a way that includes numerous members, a law or practice which, although in a sense persecutory, applies to all members of society cannot create a particular social group consisting of all those who bring themselves within its terms. For example, in Applicant A Dawson J at 243 instanced a law which persecuted persons who committed contempt of Court or who broke traffic laws and observed that such a law would not be one that persecuted persons by reason of their membership of a particular social group. And Gummow J at 285 said: 'I would assume, for the purposes of the determination of this appeal, that the PRC has a "one child policy", infringement of which attracts, as a matter of governmental decision, the sanctions feared by the appellants. I assume therefore that there exists a policy which is being implemented in a fashion which engulfs a number of persons for whom the PRC is their country of nationality. On that footing, a disparate collection of parents, and those desiring to be parents, who do not accept and have difficulties in complying with a "one child policy" are at risk of the application of a general law of conduct required by the state and, on the assumptions I have made, brutally enforced. But they are not members of a particular social group with a fear of persecution by reason of membership thereof.' 19 In my opinion the broad definition now advanced by the applicant of the particular social group to which he belongs embraces everyone in the geographic areas of Albania where the customary law is being applied. The papers placed before the Tribunal by the applicant include pages from a text that is identified by its cover sheet as: 'Kanuni I Leke Dukagjinit The Code of Leke Dukagjini Albanian Text Collected and Arranged by Shtjefen Gjecov Translated, with an Introduction, by Leonard Fox Gjonlekaj Publishing Company New York' Those parts of the volume produced include the Foreword and pars 882 – 987 of the text. It is apparent from these sections of the document that the Code of Leke Dukagjini applies generally to regulate the affairs of the community, and is not confined to establishing the rules of a blood feud. The Foreword indicates that the author of the text, Shtjefen Gjecov, was a Franciscan priest of great intellectual gifts who codified the Kanun in a comprehensive and practical form for the use of scholars and other interested individuals. The work is said to present the fundamental customary law employed in the middle ages in almost all areas of Albanian settlement. As a law and mode of life, these principles are said to have been modified to correspond with the conditions of an autonomous region free of Turkish domination. The Kanun regulated such matters as the boundaries of land, the seasonal movement of stock and the uncompromising protection of a guest. The Kanun is to be treated, at least in the geographical areas from which the applicant comes, as a law or practice of general application. Whilst the whole community may be subject to it, it does not render the whole community a particular social group for the purpose of the definition of 'refugee'. To so construe the Refugees Convention would be to include everyone who for one reason or another had a well-founded fear of persecution, regardless of whether that fear had any relationship to the protective purposes of the Refugees Convention. If a shared fear of persecution were sufficient to constitute a particular social group, it would render pointless and unnecessary, the limitation of the definition of refugee to persons who fear persecution 'for reasons of race, religion, nationality … or political opinion'. I therefore reject the submission that the Tribunal erred in not identifying the relevant particular social group as 'citizens of Albania who are subject to the operation of the customary law Code of Leke Dukagjini ("the Kanun")'. 20 Another somewhat narrower definition of a particular social group to which the applicant belongs could be suggested that would not include everyone subject to the Kanun; for example, 'males in the general population who have become the target of a blood feud because some family member has killed a member of another family'. Under this definition certain families would be members of a particular social group. (Incidentally country information before the Tribunal suggested that in 1999 there were some 2,700 such feuds in progress in Albania). On this description of a particular social group the only characteristic or element which would unite the group would be a common fear of persecution, the fear arising from the blood feud. Such a description must therefore be rejected. 21 The only particular social group that can be sensibly defined so as to include a common characteristic or element that is not the fear of persecution is the particular family group, that is the group whose members become subject to the risk of revenge because one of their number killed a member of another family. It was this description of a particular social group which the applicant put forward in support of his visa application. In my opinion, it was, in the circumstances of this case, the proper description of the particular social group to which the applicant belonged. 22 The next question is whether the Tribunal erred in its conclusion that s 91S required that the fear of persecution which the applicant asserted by reason of membership of that particular social group, namely his family, was to be disregarded. 23 The applicant contended that s 91S was enacted in response to the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Sarrazola (1999) 166 ALR 641 (Sarrazola). In that case it was held that a relative of a person who had been killed for the non-payment of a debt, and against whom threats had been made if the debt was not paid, could be a member of a particular social group comprising members of the family of the deceased. It was contended that the facts of Sarrazola were entirely different to the present case where the fear of persecution arose from a customary law, and accordingly that s 91S should be construed in a way that did not disregard the applicant's fear of persecution. In my opinion the factual distinction between Sarrazola and the present case provides no justification for imposing upon the words of s 91S a limitation which is not apparent within the words themselves. The Explanatory Memorandum which accompanied the Bill included the following: 'The above provisions do not prevent a family, per se, being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring with [in] the scope of the Convention persecution motivated for non-Convention reasons.' In the present case, the applicant's claim seeks to achieve that end as the potential persecution is motivated by a non-Convention reason, namely the father's shooting of the deceased in the course of the deceased's attempt to break into the shop. 24 The applicant also argued that the fear of persecution referred to in par (b)(i) and (ii) of s 91S should not be disregarded as it is not reasonable in the circumstances of this case to conclude that the fear of persecution would not exist if it were assumed that the fear of persecution mentioned in par (a) had never existed. It was argued that whatever fear of persecution held by the father, the nature and extent of that fear is unknown, and it is not reasonable to conclude that the applicant's fear of persecution is dependent on that of his father because it is, in fact, dependent on the blood feud rules arising under the Kanun. In other words, whether or not the applicant's father has a fear of persecution as a result of his killing of the deceased, it is reasonable to conclude that the applicant would have a fear of persecution by reason of the operations of the blood law alone. That argument is in substance the same argument which was considered by Merkel J in SDAR. There it was argued that the fear of persecution of the applicant's cousin, who had killed a member of the other family, was the only fear of persecution that should be disregarded. The applicant contended that his fear of persecution was not based upon or derived from the fear of persecution of the cousin, and accordingly was not to be disregarded. That argument was rejected. Merkel J said at [24]: 'It is my view that, properly construed, the fear of persecution and persecution referred to in s 91S is a fear and persecution for the reason that the person is a member of the particular family, another member of which fears persecution or has been or may be targeted for persecution for a non-convention reason. As a consequence of that non-convention fear or persecution, the fear or persecution of other family members by reason of their family membership is to be disregarded. Thus, where a family member's fear of persecution has arisen because another family member's criminal debts have not been paid, or because a blood feud has arisen from or been associated with the unlawful act of another family member, that fear of persecution and persecution is to be disregarded.' I respectfully agree with the conclusion of Merkel J, and with his reasons. Moreover, I consider I am bound to follow his Honour's decision unless I am satisfied that it is clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. I am not persuaded by the applicant's argument that there is any reason to doubt that Merkel J's decision is correct. 25 It follows that I do not consider there is any error in the reasoning or conclusion of the Tribunal as to the application of s 91S to the claims advanced by the applicant. In my opinion, the applicant's claims taken at face value and at the highest cannot, in light of the provisions of s 91S, give rise to a well-founded fear of persecution so as to bring him within the definition of 'refugee'. 26 For that reason, I think this is one of those rare cases where, even if one of the other grounds of review were made out, it would not be an appropriate exercise of the Court's discretion to set aside the decision of the Tribunal. 27 I turn briefly to the other grounds of review which have been argued. In my opinion there is no substance in the contention that the Tribunal did not make a bona fide attempt to exercise its power. There is no information from any independent source suggestive of bias or lack of good faith on the part of the Tribunal. The applicant's argument rests on a reading of the Tribunal's decision, and on the fact that the Tribunal's conclusions were adverse to him. There is nothing about those reasons to suggest that the decision is contrived or colourable in some way, or that personal fault should be attributed to the decision-maker: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [42] – [48], Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [7] – [11], and SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397. 28 The criticisms which the appellant makes about the Tribunal's conclusion that his claim to be at serious risk because of a blood feud was implausible, are in substance a complaint about the merits. I am not persuaded that the Tribunal overlooked documents or witness statements. One of the statements said to be overlooked is specifically referred to in the Tribunal's reasons. It cannot be said it was overlooked. The other statement was one made by the village dignitary. The Tribunal's reasons refer specifically to a certificate provided by that dignitary (which is separate from his statement) and I am not persuaded that in its general description of the information before it, the Tribunal's failure specifically to mention the statement in addition to the certificate is an indication that the statement was overlooked. I do not think that the Tribunal's statement that it considered 'all the material provided including the documents' should be treated as other than accurate. The other criticisms made are in substance criticisms about the weight or lack thereof which the Tribunal attributed to pieces of evidence in the course of its fact finding process. I am not persuaded that the Tribunal's weighting of pieces of evidence was inappropriate in the circumstances, but even if it were, an error of that kind is not reviewable. I am not persuaded that the Tribunal took into account irrelevant matters, or left out of account relevant matters. 29 For these reasons I consider that the application should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate: Dated: 5 June 2003 Counsel for the Applicant: Mr A C Collett Solicitor for the Applicant: McDonald Steed Lawyers Counsel for the Respondent: Ms S J Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 February 2003 Date of Judgment: 5 June 2003