Aaw16 v Minister for Immigration
[2016] FCCA 1643
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAW16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1643 |
| Catchwords: MIGRATION – Protection visa – fear of harm if returned to Egypt because known there as a homosexual – finality of litigation – applicant’s intention to run a different factual case before Tribunal – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48B, 477 |
| Cases cited: AMA15 v MIBP [2015] FCA 1424 Caboolture Park Shopping Centre (in liq) Pty Ltd v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 SZGIZ v MIAC (2013) 212 FCR 235 SZJBD v Minister for Immigration (2008) 102 ALD 622 |
| Applicant: | AAW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 9 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 23 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams. |
| Counsel for the Respondents: | Ms R Francois. |
| Solicitors for the Respondents: | DLA Piper. |
ORDERS OF THE COURT
Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to make his Application to this Court be extended up to and including 5 January 2016.
Order that the Further Amended Application filed in Court dated 23 June 2016 and the Application filed 5 January 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 9 of 2016
| AAW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Egypt, aged 35 years, having been born on 19 April 1981.
He filed in this Court on 5 January 2016 an application seeking orders to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 7 July 2015 affirming a decision of a Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 17 June 2014 refusing to grant him a Protection (Class XA) visa.
At the hearing in this Court on 23 June 2016 I granted leave to the Applicant to file in Court a Further Amended Application.
Mr Jay Williams of Counsel appeared on behalf of the Applicant and Ms Rachel Francois of Counsel appeared on behalf of the Minister.
Ms Francois did not oppose leave being granted to file in Court the Further Amended Application but did oppose leave being granted to rely on Ground 3 thereof. At this point I record, as further explained below, that in the result I refused leave to the Applicant to rely on Ground 3.
General Background
The Applicant first arrived in Australia on 19 May 2006 on a TU-572 Vocational Education and Training Sector visa which was valid until 12 October 2008. On 14 September 2006 he lodged a Protection visa application (First Protection Visa application). This First Protection Visa application was made by the Applicant on the basis that his sexual orientation was as a homosexual and he feared harm on this ground if he returned to Egypt. However, a Delegate, in a decision dated 9 November 2006 refusing the First Protection Visa application, did not accept that the Applicant was a homosexual, but rather that he had attempted to fabricate a set of claims for the sole purpose of engaging Australia’s protection obligations and that his claims had no basis in fact.
On 8 August 2007 the Federal Magistrates Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (RRT) of 28 February 2007 which had affirmed the decision of 9 November 2006 of the Delegate refusing his First Protection Visa application. The RRT had also not accepted the Applicant’s claims to be a homosexual.
He then lodged a Student (TU-572) visa application onshore, which again was ultimately refused. He then lodged a Partner (UK-820/BS-801) visa application, which also was refused on 22 June 2012.
The Applicant married Ms Shahenda Hemeda on 9 October 2012.
On 5 November 2012 the Applicant made a further application for a Protection (Class XA) visa (Second Protection Visa application) which was lodged in light of the introduction of the complementary protection criteria introduced by s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) and the Full Court of the Federal Court decision in SZGIZ v MIAC (2013) 212 FCR 235.
Decision of Delegate on Second Protection Visa Application
The Applicant’s case in support of his Second Protection Visa application before the Delegate was to the effect that:
a)He had arrived in Australia on 19 May 2006 having fled Egypt as an identified homosexual desperate to escape the danger of continuing persecution from his family and acquaintances;
b)He had become “normal” in 2008;
c)He had found after having received sympathetic advice from an Imam that he was really bisexual and began a friendship with a young woman of Egyptian background whom he had eventually married, namely Ms Hemeda;
d)Ms Hemeda had forgiven the Applicant his homosexual background;
e)He was “now in a straight relationship”, with Ms Hemeda, but feared if he had to return to Egypt he would still be at risk of significant harm from its conservative Islamic society, his family and the authorities, if people found out about his previous homosexual activity;
f)He also feared harm in Egypt due to his Western outlook;
g)If his wife had to return to Egypt with him she would also be targeted because of the Applicant’s past homosexual activity.
However, unfortunately for the Applicant the Delegate in her decision of 17 June 2014 did not believe most of his claims. The Delegate did accept that the Applicant had entered into a heterosexual sexual relationship with Ms Hemeda who was an Australian citizen but did not accept that he was an identified homosexual prior to departing Egypt or known as such to people in Egypt or indeed that the Applicant had engaged in homosexual activity at all in the past. In these circumstances the Delegate was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36 of the Act and refused to grant him a Protection (Class XA) visa.
I note at this point that the Delegate considered the Applicant’s application for a Protection (Class XA) visa under both the Refugee Convention criterion under s.36(2)(a) of the Act and the complementary protection criterion under s.36(2)(aa). On the basis of the decision of Markovic J in AMA15 v MIBP [2015] FCA 1424, consideration of s.36(2)(a) had no part to play in the Delegate’s decision and she should have evaluated the Second Protection Visa application only on the basis of s.36(2)(aa).
Decision of Tribunal on Second Protection Visa Application
On 16 July 2014 the Applicant applied to the Tribunal for a review of the Delegate’s decision. In a written submission to the Tribunal dated 8 June 2015 the Applicant said that he accepted that he probably fitted the label “bisexual” as it is commonly used in Australia but was “now comfortable in a heterosexual relationship”.
On 11 June 2015 the Applicant attended a hearing before the Tribunal with a friend, Dr Graeme Swincer from the Blue Mountains Refugee Support Group, and an interpreter. His principal claim to the Tribunal was that he feared harm in Egypt by reason of his former homosexuality.
The Tribunal correctly considered the Second Protection Visa application only under the complementary protection criterion under s.36(2)(aa) of the Act. It stated the issue in the case for review to be principally that the Applicant feared harm in Egypt by reason of his former homosexuality.
The Tribunal, in its Decision Record of 7 July 2015 set out details of the Applicant’s factual claims. It recorded that it was told by the Applicant that his homosexual activities had ceased several years before and that his wife had “forgiven him” his prior homosexuality and that he had realised he was bisexual when he had met his now wife. He said that he had no longer been engaged in any homosexual or bisexual activities for some years and was now only engaged in heterosexual activities.
In the result, the Tribunal in its Decision Record:
a)accepted that the Applicant had previously engaged in homosexual activities in Egypt and Australia;
b)found that his community in Egypt did not actually know of the Applicant’s homosexuality either before or after he departed Egypt;
c)found that the Egyptian authorities would not have known about the Applicant’s prior homosexual activities in either Egypt or Australia;
d)accepted that homosexual men could be persecuted in Egypt or mistreated but was not satisfied that anyone in Egypt believed the Applicant to be a homosexual, or that he faced a real risk of suffering any significant harm in Egypt by reason of his prior homosexuality;
e)was not satisfied that the Egyptian authorities (or his family and community) knew about his prior homosexual activities or anything else which might cause him to be arrested at the airport if he returned to Egypt;
f)was satisfied that the Applicant now only engaged in heterosexual activity;
g)was satisfied that he had voluntarily decided not to engage in further homosexuality in Australia and if he returned to Egypt there was not a real risk that he would re-engage in such activity;
h)was satisfied that the Applicant did not face a real risk of significant harm in Egypt for any reason.
In the result, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act and it affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Extension of Time
On 5 January 2016, over 4 months outside the 35 day time limit, the Applicant filed his application for review in this Court. Accordingly, the Applicant needs to obtain the leave of the Court under s.477(2) of the Act to extend the 35 day period by 148 days.
He has complied with s.477(2) of the Act in that an application for an extension order has been made in writing to this Court by both his original application filed on 5 January 2016 and by paragraphs 7 to 11 of his affidavit affirmed 14 June 2016.
Those paragraphs in his affidavit were, in my view, scanty in the extreme in putting forward any plausible or compelling explanation for the grant of an extension of time, having regard in particular to the Applicant’s extensive experience in making applications to the Minister, the RRT, the Migration Review Tribunal and the Federal Magistrates Court and the availability to him of advice from his friend Dr Swincer, who attended the Tribunal hearing with him, and other lawyers known to him.
The relevant paragraphs of his affidavit invited cross-examination by Ms Francois. I find him to have been an unconvincing witness. His version of events changed in cross-examination and on a number of occasions he exhibited resentment at being cross-examined by Ms Francois at all. I accept Ms Francois’ submission that I would not accept the Applicant’s evidence in relation to his explanation for the delay unless it was independently corroborated by another source. However, I will not say anything further about issues of credit because, albeit with considerable reluctance, I have come to the view that it is in the interests of the administration of justice to grant an order for extension of the required period for the following reasons:
a)In the nature of cases of this type the extension is not for a very long period.
b)The Minister did not suggest prejudice.
c)I considered that overall the Applicant should have an opportunity to argue his application for judicial review and that his application warranted scrutiny by this Court; and
d)The fact that if leave was not granted the Applicant had no right of appeal to the Federal Court.
Accordingly, I propose to order that pursuant to s.477(2) of the Act the Court is satisfied that it is necessary in the interests of the administration of justice to extend the time for the filing of the application made by the Applicant to this Court up to and including 5 January 2016.
Whether the Applicant Should be Granted Leave to Argue For and Rely on Ground 3 of the Further Amended Application
Mr Williams for the Applicant sought to argue for and rely upon proposed Ground 3 of the Further Amended Application and to read in support of Ground 3 paragraphs 2 to 6 of the Applicant’s affidavit affirmed 14 June 2016.
Ground 3 was as follows:
Ground 3: Relevant Considerations
The second respondent did not have the benefit of relevant and fresh evidence before the Tribunal when affirming the decision by the delegate to the Minister to refuse the applicant a protection visa.
Particulars
a) The applicant has separated from wife;
b) The applicant has resumed his homosexuality;
c) The former wife has threatened to inform their families of his homosexuality.
Paragraphs 2 to 6 of the Applicant’s affidavit of 14 June 2016 were as follows:
2.I ask the Court to give me permission to introduce new evidence regarding my protection claims.
3.Towards the end of April 2016, I separated from my wife. I am no longer living with her and my former wife is seeking a divorce.
4.The reason why my relationship with my wife failed is because I have resumed homosexual relations with men.
5.My former wife has threatened to tell our families.
6.I am scared that I will be killed or harmed if I am returned to Egypt.
At the hearing, after argument, I refused to allow the Applicant to rely on Ground 3 and I rejected paragraphs 2 to 6 of his affidavit and I refused the Applicant’s application to tender and adduce in support of Ground 3 a Grindr page, which I was told was a homosexual website where people go to meet and where photographs of the Applicant with his now alleged homosexual partner out sight-seeing and holding hands in company could be viewed. I said that I would give more expansive reasons in my judgment for these rulings and I now do so.
The enquiry which I am engaged upon in this Court is whether or not the decision of the Tribunal was affected by error in the nature of jurisdictional error. The nature of the proceeding is in the nature of judicial review and certainly not a merits appeal on the facts.
It is not open for an applicant in such a proceeding to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Fresh evidence cannot be admitted in this Court in order to establish that an opposite result would have been reached if the new evidence had been made available to the Tribunal: Ozberk v Minister for Immigration (1998) 79 FCR 249 per Marshall J.
In this Court the function of judicial review is to ascertain whether there is any legal error which vitiates the decision of the Tribunal. The Tribunal as the primary decision maker has the responsibility for determining the questions of fact or the merits of the application for review being considered by it on the materials which it has before it: see MZXHY v Minister for Immigration [2007] FCA 622 at ([8]) per Nicholson J; SZNOE v Minister for Immigration [2012] FCA 96 at ([56]-[57]); SZJBD v Minister for Immigration (2008) 102 ALD 622 at 626 ([24]) per Siopis J; MZXLD v Minister for Immigration [2007] FCA 1912 at ([10]-[11]) per Gordon J and Minister for Immigration v Singh [2016] FCA 575 at ([51]) and ([58]).
Of course, post-Tribunal evidence in relation to alleged bias or procedural unfairness may be an exception to this rule and may be admitted, depending upon the particular circumstances, as the above authorities indicate.
However, the proposed Ground 3 and the paragraphs of the affidavit sought to be read in support of that Ground constitute far more than a mere attempt to rely on fresh evidence which was not before the Tribunal. This is because Ground 3 and the evidence in support, if admitted, would have constituted a classic case of a party having elected to fight on one basis before the Tribunal, relevantly here that the Applicant was no longer homosexual and in a “normal” relationship with his wife, and having lost that case, seeking a new hearing before the Tribunal to be able to fight it on another and different basis: see Priestley JA in Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631 at 646.
In my view, to have allowed Ground 3 would have been in breach of the general principle of the law as to the finality of litigation. A first hearing before a primary Judge is not a preliminary or introductory hearing or skirmish. A party, generally speaking, is expected to make up his, her or its own mind as to how their case is to be presented and the issues they wish to raise and a party is not entitled to have “a second bite” or “mend his or her hand” or “have a second go”. Save for limited rights on appeal, a party is not entitled to agitate afresh either the facts or the law.
This policy of the law was expressed by the High Court in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 in the following terms:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
That passage has been cited with approval on many occasions since and applied both as to factual matters and legal arguments. It is entirely consistent with the earlier statement of Isaacs J in Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24:
But it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopt at the trial.
In Caboolture Park Shopping Centre (in liq) Pty Ltd v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 265 the Full Court of the Federal Court said:
The principle behind denying the right of a court to vary or alter a judgment regularly given and entered is the need for finality of litigation. The court has adjudicated upon the facts of the claim brought by a plaintiff against a defendant, found for one side and entered the relevant judgment. Neither the facts nor the law are to be agitated again, save on an appeal.
The rule as to finality of litigation has a public interest aspect and as the Full Court of the Federal Court said in SZTES v Minister for Immigration [2015] FCAFC 158 at ([86]):
[86] Even in refugee cases, there is a public interest in the finality of litigation: Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7.
Also in the area of migration law, Callinan J in Plaintiffs157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 538 ([176]) said:
[176] Finality of litigation is in all circumstances desirable. The Commonwealth has just as much interest in knowing that rights and remedies against it may no longer be pursued as do other litigants. As I earlier observed, the Commonwealth and its Executive have many departments to administer and many priorities to assess and allocations to make. These need to be able to be done upon a reasonably settled basis of the numbers involved and other demands upon the treasury of the nation.
In Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 ([15]) McHugh J said:
Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
Again, save as to permissible appeals, controversies once quelled may not be reopened. The rationale for the importance the law places upon the finality of litigation was stated by Lord Wilberforce in The Ampthill Peerage [1977] AC 547. Gleeson CJ and Hayne J referred to the speech of Lord Wilberforce in that case with evident approval in R v Carroll (2002) 213 CLR 635 at page 643 ([22]) saying:
[22]Many aspects of the rules which are lumped together under the title “double jeopardy” find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts. Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression. Further, finality is an important aspect of any system of justice. As the New Zealand Law Commission said in a recent report dealing with the possibility of statutory relaxation of the rule against double jeopardy in the case of acquittals procured by perjury or perversion of the course of justice][(37)] , the need to secure a conclusion of disputes concerning status is widely recognised, and the status conferred by acquittal is important. The Commission quoted what was said by Lord Wilberforce in The Ampthill Peerage (1977) AC 547 at 569:
“Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth … and these are cases where the law insists on finality.”
To similar effect Lord Bingham of Cornhill said in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31:
The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.
Lord Bingham in the same case at (supra) page 27 quoted with approval an earlier Court of Appeal judgment in which it was said as follows:
The rule in Henderson v Henderson . . . requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
Recently, Nettle J in Crown Melbourne Limited v Cosmopolitan Hotel (Vic)Pty Ltd [2016] HCA 26 said at ([227]):
[227] There should be an end to litigation [269]. Having successfully resisted the tenants' claim in the way in which it was put, Crown should not now be vexed with what, in effect, would be a second proceeding. That would be wrong in principle [270] and it would be unfair. (see further footnotes 269 and 270)
The principle of finality of litigation applies not only to courts of law, but in my view also extends to decisions of the Tribunal. The Applicant presented a case to the Tribunal which dealt with that case and on judicial review in this Court he is bound by the conduct of his case in the Tribunal.
An amendment which is futile because it is obviously bad in law or must fail will not be allowed: see Dawson J in Commonwealth v Verwayen (1990) 170 CLR 394 at 456 and Jordan CJ in Horton v Jones (No. 2) (1939) 39 S.R.(NSW) 305 at 309-310.
Accordingly, in my view the Applicant was not entitled to rely on proposed Ground 3 or the evidence which he sought to lead in support of that Ground and I rejected it for the reasons given above.
In this context I note that the Applicant is not without potential rights. It is open to him, if he wishes to rely on subsequent post-Tribunal developments in his life and circumstances and fresh evidence different from that given before the Tribunal, to request the Minister to exercise his personal discretion under s.48B of the Act to allow him to make a further application for a protection visa. Alternatively, he could request the Minister to exercise his personal discretion to substitute for the present decision of the Tribunal another decision being more favourable to him, on the basis of the alleged subsequent developments in his life and circumstances. Ms Francois referred me to the decision of the Full Court of the Federal Court in M38/2002 v Minister for Immigration (2003) 131 FCR 146 at 169 ([80]) where the Full Court said as follows:
[80] The Act accommodates the possibility that there may have been some relevant change in the circumstances of the detainee vis à vis his country of origin in the time elapsing between the refusal of a visa, including a protection visa, and the time for his removal, by the provisions in ss 48B and 417 of the Act. In permitting the Minister to substitute a decision more favourable to a refugee claimant than the decision of the Tribunal, s 417 also allows the Minister to grant a visa upon humanitarian grounds, or to cure error on the Tribunal’s part. The Act entrusts the discretionary powers referred to in ss 48B and 417 to the Minister personally…
The Other Two Grounds of Review
I now turn to consider Grounds 1 and 2.
Ground 1, omitting particulars, was as follows:
The second respondent erred by either, misinterpreting, or misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.
The substance of this Ground was said to be that the Tribunal failed to consider the Applicant’s fear of persecution in relation to the particular social group of being a bisexual or homosexual man in Egypt and also wrongly found that he could live discreetly in Egypt to avoid persecutory harm, and thereby fell into jurisdictional error.
Ground 2, omitting particulars, was as follows:
There was an insufficient logical or evidentiary basis for the Tribunal to find the applicant could ‘safely’ and ‘reasonably’ relocate within Egypt.
The first thing to be said about these Grounds is that they must be viewed and considered in light of the fact that the Tribunal was only considering the Delegate’s decision on the basis of the complementary protection criteria afforded by s.36(2)(aa) of the Act and not under the Refugees Convention criteria.
Having said that, in my opinion, neither of Grounds 1 and 2 are made out and must fail. The simple fact of the matter is that the Applicant never claimed before the Tribunal that he was an active practising homosexual or bisexual, which latter term I take as referring to someone practising sex with both men and women. Rather, the Applicant claimed before the Tribunal that his homosexuality was in the past and he was in a “normal” and “straight” heterosexual relationship with his wife.
The Tribunal accepted these claims and based on this acceptance and its findings, which I have summarised in paragraph 18 above, there was no need for the Applicant to be “discreet” if he returned to Egypt and the Tribunal did not require him to be discreet if he so returned. Rather, to the contrary, the Tribunal was of the view that if the Applicant and his wife returned to Egypt they would do so as man and wife in a heterosexual relationship which would be entirely acceptable to the citizens of Egypt.
In my view, in light of the findings of the Tribunal it cannot be said that it was illogical or unreasonable of the Tribunal to find that it was not satisfied that there was a real risk that the Applicant would suffer significant harm of the type required by s.36(2A) of the Act if he returned to Egypt or that there was no evidentiary basis for the findings which supported this conclusion. There does not appear to me to be anything unreasonable about the Tribunal’s conclusion in the sense of lacking an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Nevertheless, the Tribunal, although noting it was probably redundant to do so, considered whether the Applicant could safely and reasonably relocate within an area of Egypt. In my view, consideration of the issue of relocation was unnecessary and redundant but in the result, as I read the Tribunal’s reasons, it found consistently with its earlier findings that the Applicant would not suffer a real risk of significant harm should he relocate within any part of Egypt, including within Cairo or Alexandria. That finding was in my view reasonably open to the Tribunal.
Accordingly, in my view, the reasons of the Tribunal disclose no jurisdictional error and the application ought to be dismissed with costs and the further amended application ought to be dismissed with costs upon which I will hear submissions.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 23 August 2016
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