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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution - whether the Tribunal failed to accord the applicant procedural fairness - whether applicant was misled by the letters sent by the Tribunal - whether there had been any error like the one described in Muin v Refugee Review Tribunal.

NAAY v Minister for Immigration [2003] FMCA 46 (6 March 2003)

NAAY v Minister for Immigration [2003] FMCA 46 (6 March 2003)
Last Updated: 14 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAY v MINISTER FOR IMMIGRATION
[2003] FMCA 46



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution - whether the Tribunal failed to accord the applicant procedural fairness - whether applicant was misled by the letters sent by the Tribunal - whether there had been any error like the one described in Muin v Refugee Review Tribunal.



Migration Act 1958 (Cth), ss.36, 424(1), 418(3)

Craig v South Australia (1995) 184 CLR 163

Re Minister for Immigration and Multicultural Affairs; Ex parte `A' (2001) 185 ALR 489

Kamal v Minister for Immigration [2002] FCA 818

Muin v Refugee Review Tribunal [2002] 190 ALR 601

NADR v Minister for Immigration [2002] FCAFC 293

NAOC v Minister for Immigration [2002] FCA 1424

SDAC v Minister for Immigration [2002] FCA 1428

NACM of 2002 v Minister for Immigration [2002] FCAFC 405

SDAN v Minister for Immigration [2002] FCAFC 351

NASF v Minister for Immigration [2002] FCA 123

Plaintiff S157 v Commonwealth of Australia (2003) HCA 3

NADZ v Minister for Immigration [2003] FCA 118

Re Minister for Immigration; Ex parte Lam (2003) HCA 6

Applicant:
NAAY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 977 of 2002



Delivered on:


6 March 2003



Delivered at:


Sydney



Hearing date:


14 February 2003



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicant:


Mr N Poynder



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 977 of 2002

NAAY


Applicant

And

MINISTER FOR IMMIGRATION




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China who arrived in Australia on the 2 February 2001. On 15 March 2001 she lodged an application for a protection (Class XA) visa which was considered by a delegate of the Minister on 26 June 2001. The delegate declined to grant protection to the applicant and the applicant referred the matter to the Refugee Review Tribunal. The Tribunal offered the applicant an opportunity to attend a hearing which took place on the

31 July 2002. The Tribunal made its decision to affirm that of the delegate on the same day and handed the decision down on the

26 August 2002

2. The applicant seeks review of the Tribunal's decision. She bases her claim upon an allegation of a failure of the Tribunal to accord her procedural fairness by misleading her into believing it had read and considered the Part B documents prior to making its decision. The applicant's Counsel argued that the application raised the same issues that were raised in the High Court decision of Muin v Refugee Review Tribunal [2002] 190 ALR 601. Unusually in this type of case the applicant was asked to give evidence, which she did based upon an affidavit dated 21 January 2003. The applicant was the subject of considerable cross-examination by Counsel for the respondent.

3. The applicant had been granted a five year multiple entry visa for Australia which expired in January 2002. She entered and departed Australia on several occasions between 1997 and 2001. She last arrived in Australia on the 2 February 2001. She is a businesswoman and a follower of the Falun Gong movement. She claimed that on the last occasion she returned to China (15 January 2001) she took back with her a considerable amount of propaganda material prepared and printed by Falun Gong members in Australia. She spread these among her followers and friends in China "in order to expose the truth of persecution in China and to wake up people to see through the true nature of the Chinese authorities who deprive people of religious freedom and violate human rights" [CB 62 #8].

4. The applicant claimed that on the 28 February 2001 she received a facsimile from her sister in China [CB 26-27] indicating that the neighbourhood committee PSB and local police station had sent people to look for her at their home. They were aware that she had brought back Falun Gong material and that one of her aunts had been taken away a few days ago because she had in her possession some Falun Gong book that the applicant had given her. The applicant claimed that this was evidence that if she returned to China she would be subject to legal proceedings and persecution. A further fax was received from the applicant's sister on 2 August 2001 advising her of the death of their mother and indicating that their mother had told her that the applicant should not to return to China because she would be persecuted.

5. The evidence given by the applicant to the Tribunal was that she had participated in Falun Gong exercises in parks in China before July 1999 when a ban on such activity was put in place. Thereafter she exercised in private homes. She advised that she had never been an organiser or leader, had never participated in any public protest in China or in Australia, had never been arrested, detained or charged in connection with her Falun Gong activities in China.

6. She debated with the Tribunal as to whether or not it was reasonable to accept that a Falun Gong practitioner who is an experienced business woman and who had lived in China would take the risk of bringing in Falun Gong material to China on two occasions and that this activity was at odds with her otherwise discreet and low key Falun Gong behaviour. The applicant indicated that she did not feel in any danger when she brought in the materials but things had changed since the suicide of Falun Gong members in Tiennanmen Square in 2001 and she would not now repeat that activity.

7. In its decision the Tribunal refers to certain country information which it used to balance against the evidence given by the applicant. These details are found at [CB 68-69]. In the Tribunal's very short findings and reasons it accepted that the applicant was a Falun Gong practitioner [CB 62 #36]. The Tribunal concluded on the basis of the country information which it had referred to that such a discreet and low key Falun Gong practitioner had no reason to expect any adverse attention from the Chinese authorities.

8. The Tribunal then went on to deal with the claims that the applicant took Falun Gong material to China and that those materials have led her to be a wanted person. The Tribunal indicates that these claims were not credible. Based upon the limited acceptance of the applicant's claims the Tribunal decided that she was not a person who would fear persecution as a result of her Falun Gong activities provided that she continued to carry them out in the discreet manner which she had indicated that she had previously adopted.

9. Against this background the applicant makes her application to this court. In her affidavit she refers to her interview with the departmental officer and the translation of his decision to her. At #5 of her affidavit she says:

"As I remember, Yun Bai translated the main idea of the decision to me. He roughly explained the structure of the decision, being Part A, Part B, Part C and Part D. I was aware that Part B was a list of documents, and I thought that there would be information there that both supported my case and did not support my case in those documents. But I was not aware of the contents of each individual document, as Yun Bai did not read each of the titles to me. The only part of the decision that he read to me in full were paragraphs i. to viii. in Part C and all of Part D."

The applicant was cross-examined about this paragraph in detail. Her answers were frequently non-responsive and she appeared to be determined to make the point that certain documents that had not been before the Tribunal she thought were going to be before the Tribunal and that if she had known that they had not she would have taken certain steps. She did agree with Counsel for the respondent that she made no effort to obtain any of those documents or to read them for herself. She said that this was because she didn't believe it was necessary as the RRT had them and would look at them. She also said that she did not have time to look at them because the translating was being done by a friend of hers who had other things to do.

10. The paragraph at #9 of her affidavit refers to the standard letter received by her on the 20 June 2002 from the RRT. The letter is produced at [CB 48] and it states:

" A member of the Tribunal has looked at all the information relating to your application but is unable to make a decision in your favour on this information alone."

The applicant stated at #10 that she understood from this letter that all of the documents that were before the case officer including those listed in Part Two had been read by the Tribunal member. At #13 she recalls statements by the Tribunal member confirming that he had read the immigration department's file and the RRT file.

At #15 of her affidavit the applicant stated:

"Had I known that known that there was information before the case officer relating to the mistreatment of Falun Gong practitioners in China that had not been provided to the Tribunal, I would have asked the Tribunal to obtain that information and read through it. I would also have provided further information to the Tribunal about the mistreatment of Falun Gong practitioners in China."

Under cross-examination the applicant agreed that the only additional evidence that she would have given to the Tribunal was the document which she actually gave to the Tribunal and which is found at [CB 44]. She had also said that she hadn't read any of the documents which would have made it difficult for her to have known what was in them other than what she might have summarised from the titles. In response to the question from counsel as to why she thought there was something favourable to her in the documents she responded with words to the following effect:

"Because when I got the decision it was not fair there must have been information that would have supported my case."

11. In order to decide whether the applicant's case is one which should be subject to judicial review it is necessary to carry out the following analysis.

(1) I must consider the elements of "Muin" error.

(2) I must consider whether any subsequent decisions explain or expand the Muin decision.

(3) I must consider whether the case before me fits within the current interpretation of Muin.

12. Plaintiff S157 v Commonwealth of Australia [2003] HCA 3 reinstated the requirement for procedural fairness as the basis for a valid decision upon which s.474 of the Migration Act would act. The decision in Muin was a decision upon procedural fairness. It follows that the applicant is entitled to argue before this court that she did not receive procedural fairness because the manner in which the Tribunal dealt with her case was similar to what occurred in Muin.

The facts in Muin

13. The High Court proceeded on the basis of a set of agreed facts. These are set out in detail in the judgment of McHugh. The plaintiff, an Indonesian national of Chinese ethnicity, arrived in Australia on the

8 June 1996 and applied for a protection visa on the 26 August 1996 under s.36 of the Migration Act 1958 (Cth) ("the Migration Act"). The delegate of the Minister refused to grant a visa to the plaintiff. On 26 March 1998, the plaintiff made an application for review of this decision to the Refugee Review Tribunal. Correspondence ensued between the RRT and the plaintiff.

14. The first letter from the RRT dated 30 March 1998 included the following statements:

"The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal.

When we receive the Department's documents the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as `review on the papers'."

The tribunal was then constituted and on 13 October 1998 a review of the papers was completed pursuant to s.424(1) of the Migration Act.

15. A second letter from the RRT dated 13 October 1998 was sent to the plaintiff stating that the Tribunal was unable to make a decision favourable to him on the review of the papers alone and invited him to attend an oral hearing to give further evidence as required by s.424(1) of the Migration Act. The plaintiff attended the hearing on 18 November 1998 but was not given an opportunity to respond to certain `adverse material'. On the 25 November 1998 the RRT affirmed the decision of the delegate not to grant the visa. As a result of this decision the applicant commenced High Court proceedings on 22 March 1999.

16. The plaintiff claimed that the decision of the Tribunal lacked procedural fairness for two main reasons. First, the `adverse material' that was taken into consideration was country information obtained from the Department of Foreign Affairs and Trade (DFAT). Due to a very recent change in government, the information obtained by the Tribunal was adverse to the plaintiff's claim that he could not gain protection from the Indonesian authorities. Although, the plaintiff had made written submissions and given material favourable to his case to the Tribunal on several occasions before the Tribunal gave its decision, this material was only evidence of the degree of protection afforded before the change in government. The plaintiff was given the opportunity to give oral evidence at the hearing after the key governmental changes in Indonesia had taken place, yet at no stage during the hearing was the plaintiff asked directly about the degree of government protection that was afforded to him or his family. The reliance on this adverse material was said to have deprived the plaintiff of the opportunity to make submissions and give evidence to counter this material.

17. Second, all of the documents referred to as the `Part B documents' considered by the delegate of the Minister were not `given' to the Registrar of the tribunal by the Secretary as required under s.418(3) of the Migration Act, and were therefore not considered by the Tribunal in its review of the papers. The parties agreed that some of these excluded documents were considered to be favourable to the position of Indonesian nationals with Chinese background seeking protection. Some of the Part B documents were in electronic form. Hence an issue arose as to whether the word `given' could be construed to mean because they were available on the computer databases or in the library which the Tribunal was said to have access, they had in fact been `given' to them.

18. At [192] Kirby J made a concise statement of the three main issues that the court had to consider:

"(1) Whether the plaintiffs, and each of them, were denied natural justice (procedural fairness) because they were misled by official communications into believing that the Part B documents that had been before the delegate would be given to the Tribunal whereas it is now shown that they were not so given. (The procedural fairness - misleading communication issue).

(2) Whether, in each case, the Secretary and the Tribunal have been shown to have failed to comply with ss.418(3) and 424(1) of the Migration Act.(The statutory procedures issue).

(3) Whether, in relying upon new materials adverse to the plaintiffs relating to the country situation in Indonesia, without first disclosing those materials for rebutting evidence and submission, the Tribunal was, in Mr Muin's case, in breach of the rules of natural justice (procedural fairness) on that ground. (The procedural fairness - adverse materials issue)."

The judgment in Muin

19. On the basis of the agreed facts, the majority as per Gaudron, Gummow, Kirby and Hayne JJ decided that as to the first issue, the RRT had misled the plaintiff by making certain statements about the receipt and consideration of the Part B documents. In regard to the second, most decided that it was not necessary to consider this question although both Kirby J and Callinan JJ said that if they did have to consider it they would have found for the plaintiff. Finally, on the third issue the majority, this time consisting of Gleeson CJ, Gaudron, McHugh and Kirby JJ, held that the plaintiff had been denied procedural fairness in relation to the adverse materials. The minority held that it did not constitute a failure to afford procedural fairness and Callinan J did not consider this issue specifically because he had already decided that there was a denial of procedural fairness in the first instance , namely, the misleading communications issue.

20. In short, this case emphasises the importance of procedural fairness and natural justice in two ways. First, it is authority that protects an applicant in circumstances where a decision-maker has misled him or her into believing that all the relevant material had been considered. As discussed by Hayne J at [250]:

"The parties have agreed that, in each of the present cases, the Secretary sent to the Registrar the departmental file relating to the plaintiff but did not send any of the Part B documents. Further, facts are agreed from which it would be open to infer, in each case, that, neither before the Tribunal conducted its review "on the papers", nor before it made its decision to affirm the decision refusing the grant of a protection visa, did it examine those Part B documents. In each case it is agreed that, if the plaintiff had known that the Tribunal had not considered all the Part B documents to which the delegate had referred, the plaintiff would have taken various steps to place the information in the Part B documents and submissions about its significance before the Tribunal."

Second, the case places a limit on the Tribunal taking into account adverse material without first putting it to the applicant in circumstances where the adverse information is a material fact in the decision (Re Minister for Immigration and Multicultural Affairs; Ex parte `A' (2001) 185 ALR 489 at [54]).

21. A further important outcome is that this case extended the notion of natural justice. Gaudron J refers to this at [64] as the plaintiff not being given "a reasonable opportunity to answer material in the possession of the Tribunal which suggested that he was not a refugee as defined in the Convention". Similarly, at [236] Kirby J states:

"What the law required in Mr Muin's case depended on the nature of the claims made by him and the information provided by the Secretary to the Registrar [128]. Mr Muin was not given the opportunity to put the case that he wished in relation to the change of government in Indonesia or to answer the case made against him by reference to materials presented about that change with the authority of the DFAT cable. This constitutes a breach of a "basic principle" of procedural fairness [129]. Further, the information "was decisive of the outcome of the application"[130]. Accordingly, the Tribunal ought to have informed Mr Muin of the new material. It should have offered him an opportunity to respond to it before acting on the material [131]. The Tribunal's procedure rendered it substantially unjust for it to proceed in the way that it did [132]. In Mr Muin's case, these conclusions provide an additional ground for finding jurisdictional error based on the breach of the rules of natural justice."

Subsequently, there is no longer a requirement that the information received by a decision-maker need to be personal to the applicant for the natural justice to be afforded. Now, it only needs to be credible, relevant and significant information that is adverse to the applicant's case or interests.

How have subsequent authorities interpreted this decision?

22. A number of cases have considered the decision in Muin in the light of their own particular facts. The following three cases are authority for the proposition that there must be a factual stratum that supports the submission that there has been a denial of procedural fairness - the factual stratum test.

23. In NADR v Minister for Immigration [2002] FCAFC 293 the appellant argued he had been denied procedural fairness because he was misled into believing that the Tribunal had been sent and had read the Part B documents, in particular six documents providing country information relating to Bangladesh. The usual letter was sent to the applicant in the following form:

"the Tribunal has looked at all of the material relating to your application but it is not prepared to make a favourable decision on this information alone".

And then a further letter was sent to the appellant where the Tribunal advised that it might have regard to:

"relevant newsworthy political incidents that have occurred recently, such as actions taken by and against Chatra Shibir; an example is attached."

The Tribunal also agreed to extend the time to allow the appellant to submit any further relevant material.

The Full Bench of the Federal Court concluded that, in these particular circumstances the letter had not in fact misled the appellant and it was not agreed that the documents had not been physically provided to the Tribunal. Further, the appellant had not been able to identify the particular information in the Part B documents which he believed the Tribunal had not taken into account and which he would have brought forward had he advised that it had not. As stated by Kiefel J at [26]:

"It cannot be inferred as a fact in every case involving a letter in these terms, that an applicant was affected in some way by it when they came to provide information to the Tribunal and participate in the hearing. Much of course will depend upon what information was contained in the Part B documents and the issues in the applicant's case. It could not be assumed that the appellant here would have taken any particular course had he known that the Tribunal had not been provided with the documents, or did not intend to refer to them. It was not explained to the Court how that might be concluded by reference to the contents of the Part B documents. It would also be necessary to consider whether the particular matters, upon which the appellant would rely were, in any event, amongst the material identified by the Tribunal. Those matters were not identified for the Court."

Kiefel J was not prepared to accept the fact that the Tribunal had not read the Part B documents just because not all of them were referred to.

24. In NAOC v Minister for Immigration [2002] FCA 1424 the appellant claimed that the letters had misled him and that independent information had been taken into consideration without the appellant being given the chance to respond. Although invited, the appellant did not attend the Tribunal hearing. In its decision the Tribunal referred to independent country information and to two or perhaps three of the Part B documents. The Tribunal also noted that there were discrepancies in some of the material supplied by the appellant prior to the date for hearing and that had the appellant come to the hearing he would have had the opportunity to give evidence on this. Hill J clearly outlines the factual sub-stratum point that can be gained from Muin and NADR at [16]:

"What is important and it appears in the judgments in Muin itself is that in that case there was a factual sub-stratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and, secondly, that the applicant had relied upon an assurance by the Tribunal that it had read the documents and, accordingly, had not put further material before the Tribunal."

25. In NADZ v Minister for Immigration [2003] FCA 118 there were no agreed facts and Hely J held that there was no evidence that the applicant was in any way misled by the communications from the Tribunal and dismissed the application. At [14] Hely J referred to the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) HCA 6 which confirmed "that an applicant must show how he relied to his disadvantage upon communications" from the Tribunal before a court can find that there was a denial of procedural fairness.

26. This next case sets out the materiality test. In SDAC v Minister for Immigration [2002] FCA 1428 the appellant argued that he had been denied procedural fairness as the Tribunal had relied on adverse material (country information) which it had received between the time of the delegate's decision and the Tribunal's decision. These documents were three cables from DFAT. This case turned on whether the adverse information that the Tribunal had relied on was material to its decision and whether if the appellant had been warned that this information was being relied on would he have adduced additional or different evidence, or made additional submissions to rebut it. O'Loughlin J quoted Kirby J from Re Minister for Immigration and Multicultural Affairs; Ex Parte `A' (2001) 185 ALR 489 at [54] where His Honour said:

"Thirdly, the applicant has not placed before this Court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the Country Information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material which constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the Country Information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case."

27. Further in all three cases - NACM of 2002 v Minister for Immigration [2002] FCAFC 405, SDAN v Minister for Immigration [2002] FCAFC 351 and NASF v Minister for Immigration [2002] FCA 123 - the court held that the applicant had not adduced evidence to show that the Part B documents were not sent to the Tribunal, or that they were not available to it through electronic databases or libraries.

Do the facts in the instant case fall within the ambit of Muin?

Materiality Test

28. The first point to be made about materiality is that the applicant has accepted that her alleged "well-founded fear of persecution for Convention reasons" only commenced after she had returned from Australia from her last visit to China in 2001. She also stated in her interview with the Tribunal (see Transcript A:050, A:065 and A:067) that she had no fear merely as an ordinary adherent to Falun Gong. In order to be material for this decision the documents must involve a continuing state of affairs and indicate the possibility of persecution, at the very least to people who have brought themselves to the attention of the authorities. The relevant documents would appear to be the following:

B7 - this relates to the arrest and detention of ordinary practitioners of Falun Gong in July 1999 who assembled to protest. The detention was only for a few days and does not indicate a future danger on its face.

B8 - this document also refers to 1999 protests. It indicated that a majority of practitioners would be forgiven if they promised not to get involved in future activities and suggested that only about 50 persons would be prosecuted. Again there is no suggestion of future harm.

B16 - this also refers to a large number of adherence being `picked up' and some 5000 being sent to re-education camps and 300 prosecuted but it also indicated that many devotees continued to practice without problems so long as they are discreet.

B17 - this document indicates that of the 10,000,000 people who have belonged to Falun Gong, 5000 have been sent to labour camps and 300 have been prosecuted.

B18 - this is similar to B17.

B22 - this indicates that Falun Gong activists continue to face detention and possibly prison. This article does distinguish between activists and practitioners. It does not indicate that discreet practitioners will be at risk.

29. It is difficult to see in these documents anything which would indicate that the applicant would face persecution as the discreet practitioner which the Tribunal found her to be. It is to be remembered that the Tribunal did not accept the applicant's evidence concerning the effect of her bringing material into China in 2001. These matters are for the Tribunal alone. As stated in Kamal v Minister for Immigration [2002] FCA 818 at [36]:

"It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."

The Factual Stratum Test

30. There are a number of issues. Firstly, the applicant claims that she had been misled because she believed the Tribunal had received all of the Part B documents from the letters that were sent to her by the Tribunal before the hearing. She states that she relied on that misrepresentation and refrained from taking steps to place further information and submissions before the Tribunal. I am not satisfied that this is the case. At the hearing, Mr Lloyd for the respondent, cross-examined the applicant on this point. Although, she reinforced the fact that she believed the Tribunal had `all the information it needed', that is, all the Part B documents, when asked whether she gave any other information to the Tribunal to support her case, she said that she had only given one document. She also said that she had other documents to support her case but they were all in Chinese and she did not have enough money to pay to have them translated. The applicant also stated that she believed that it was the Tribunal's responsibility to get all the necessary documents for her case because she believed it had better resources to do so.

31. Secondly, the applicant submits that the certain inferences can be made about the Part B documents namely, that the Tribunal only had `hard copies' of the Department file and the Tribunal's file but none of the Part B documents because the Tribunal made no direct reference to them being "before" the member either at the hearing or in its reasons. I am not satisfied on the evidence before me that the applicant has proven this point. There are no agreed facts that the Part B documents were not physically given to the Tribunal in this case as there were in Muin. Furthermore, the Tribunal made reference to four of the Part B documents - B4, B10, B15 and B23 in its decision and I am not satisfied that the applicant has been able to show that none of the other Part B documents were read or considered by the Tribunal. The applicant submits that the Tribunal was not given hard copies of the Part B documents and got these four documents plus the two others not considered by the delegate (UK Home Office China Country Assessment [CB69.4] and a document on exit procedures from the Canadian Immigration and Refugee Board [CB69.9]) from electronic databases. Of four of the justices that considered the point on whether the Part B documents in Muin had been `given' to the Tribunal, three (Gleeson CJ, Gaudron and McHugh JJ) concluded that s.418(3) of the Migration Act would be satisfied if the tribunal had access to electronic versions of the materials concerned. Therefore, I find it hard to infer that if the Tribunal did not physically receive the documents yet had to get them from the electronic database, it did not have regard to the other nineteen listed in the Minister's decision [CB 32-33]. I am not satisfied that the applicant has established, on the balance of probabilities that these documents did not come before and were not considered by the Tribunal.

32. In the circumstances I am unable to find that the applicant has succeeded in putting her case within the ambit of the decision of Muin. As there are no other grounds upon which she seeks review I must dismiss the application. I order that the applicant pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I find that the applicant has not passed any of the tests raised by Muin and subsequent judgments.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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