Commissioner of Police, NSW Police v Zraika

[2005] NSWADTAP 1

Appeal Panel - Internal

CITATION:	Commissioner of Police, NSW Police v Zraika [2005] NSWADTAP 1
PARTIES:	APPELLANT Commissioner of Police, NSW Police RESPONDENT Malek Zraika
FILE NUMBER:	049017
HEARING DATES:	12/08/2004
SUBMISSIONS CLOSED:	08/12/2004
DATE OF DECISION:	01/10/2005
DECISION UNDER APPEAL:	Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67
BEFORE:	Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS:	no evidence - statutory interpretation - weight of evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031078
DATE OF DECISION UNDER APPEAL:	04/07/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Evidence Act 1995
CASES CITED:	X v Commonwealth (1999) 200 CLR 177, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587; David Jones (Australia) Pty Limited v P & Anor (NSW Supreme Court, unreported, 29 August 1997); Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8
REPRESENTATION:	APPELLANT K Nomchong, barrister RESPONDENT D Hillard, solicitor
ORDERS:	1. The Tribunal’s decision is affirmed; 2. The appeal is dismissed; 3. If Mr Zraika wishes to make an application for costs, he should file and serve such an application together with any evidence or submissions in support within 28 days of the date of this decision; 4. If such an application is made, the Commissioner should file and serve any evidence and submissions in reply within a further 28 days; 5. The application for costs will then be set down for a hearing on a date to be fixed.

REASONS FOR DECISION

Introduction

1 The Commissioner of Police rejected Mr Zraika’s application to join the New South Wales Police because he did not meet the required standards for vision. Although Mr Zraika has normal vision in his right eye and in both eyes when tested together, he has a condition known as amblyopia in his left eye, which means that he can only count fingers held up in front of that eye. His judgement of distances, particularly shorter than arm’s length, is said to be affected by the poor vision in his left eye. There is no way of correcting his vision with glasses, contact lenses or surgery. The Commissioner said that because Mr Zraika did not meet the visual acuity standards set down by NSW Police, he could not safely perform the “inherent requirements” of an operational police officer.

2 Mr Zraika complained that the Commissioner’s refusal to offer him employment amounted to disability discrimination under the Anti-Discrimination Act 1977 (the Act). The Commissioner agreed that he had breached s 49D(1)(b) of the Act by deciding not to offer Mr Zraika employment. But the Commissioner relied on the defence in s 49D(4) which allows an employer to refuse to offer a person employment if the person would be “unable to carry out the inherent requirements of the particular employment” because of his or her disability or would, in order to carry out those requirements, require services or facilities the provision of which would impose an unjustifiable hardship on the Commissioner.

Tribunal’s decision

3 The Tribunal found in favour of Mr Zraika. Its decision was in two parts. Firstly it concluded at [56] that it was “not possible to consider the substance of the s 49D(4) defence because the Commissioner had not met its threshold obligation of proving that he had appropriately identified the inherent requirements of the position of an operational police officer at the time Mr Zraika’s application was rejected.” However, the Tribunal went on to say that in case it was wrong in its conclusion it would go on to consider the substance of the defence. The Tribunal was not satisfied that the Commissioner had made out the defence. That conclusion was based on three failures by the Commissioner:

- The Commissioner did not take into account Mr Zraika’s individual circumstances, namely his past training, qualifications and experience and all other relevant factors that it is reasonable to take into account, prior to deciding that he could not carry out the inherent requirements of the position.

- The Commissioner did not establish that the use of the Snellen visual acuity test was an accurate measure of the degree of risk that Mr Zraika may pose to himself and others if he became a police officer.

- The Commissioner did not established that even if Mr Zraika could not carry out the inherent requirements of the position, the provision of any services or facilities that would enable him to do so would cause the Commissioner unjustifiable hardship.

4 As the Tribunal was not satisfied that the Commissioner was entitled to rely on the defence, or that if he was that had made out the defence, the Tribunal made several orders including an order that the Commissioner pay Mr Zraika $10,000 in damages and that he determine Mr Zraika’s application without reference to the existing standard for visual acuity. The Commissioner of Police has appealed to the Appeal Panel against that decision. He has a right to appeal on a question of law, but needs to obtain the Tribunal’s leave before appealing on the merits of the decision. ( Administrative Decisions Tribunal Act 1998, s 113.)

Inherent requirements defence

5 The critical provision in this case is s 49D(4) which provides a defence to an employer who has refused to offer employment to a person with a disability.

Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

6 The Tribunal correctly pointed out that for the Commissioner to make out the defence, Mr Zraika must not only have been unable to carry out the inherent requirements of the position without assistance, but the provision of any services or facilities that would have enabled him to carry out those requirements must have imposed an unjustifiable hardship on the Commissioner. ( X v Commonwealth (1999) 200 CLR 177 at 208 per Gummow and Hayne JJ.) Under s 109 of the Anti-Discrimination Act 1977, the Commissioner has the onus of proving the defence.

Issues

7 Several grounds of appeal were not made out and we deal with them briefly at the end of these reasons. Having rejected several grounds of appeal, the remaining issues are as follows:

a) In the first part of its decision, did the Tribunal misapprehend the inherent requirements defence by concluding that the Commissioner could not rely on that defence unless he had compiled a statement or list of the inherent requirements of the position at the time he rejected Mr Zraika’s application? (See [38], [39], [40], [50] & [54] of the Tribunal’s decision.)

b) In the first part of its decision, did the Tribunal place insufficient weight on, or take insufficient notice of, the evidence of Assistant Commissioner Waites? (See [52] and [53] of the Tribunal’s decision.)

c) If the Tribunal did make an error of law in relation to either of these matters, would or might have the decision been different if the error had not been made?

d) In the second part of its decision, which dealt with the substance of the defence, did the Tribunal make any error of law in its reasons for not being satisfied that the Commissioner had made out the defence?

e) If so, should the Appeal Panel extend the appeal to the merits of the decision?

8 Each of these issues is examined in turn below.

Misapprehension of the inherent requirements defence?

9 Finding of a threshold obligation. The Tribunal decided that it was not possible to consider the substance of the defence in s 49D(4) because the Commissioner had not met its threshold obligation of proving that he had appropriately identified the inherent requirements of the position of an operational police officer at the time Mr Zraika’s application was rejected. The Tribunal said that regardless of how difficult the task may be, if an employer wishes to avail itself of the right to reject job applicants with a disability, then they must compile a “statement or list” of the inherent requirements of the position. That task must be performed prior to rejecting an applicant with a disability. The Tribunal acknowledged that it is ultimately a matter for the Tribunal to objectively determine the inherent requirements of the position, but said at [50], that “the Tribunal’s task is limited to deciding whether a list of inherent requirements which is advanced by the respondent is an objective and appropriate description of the inherent requirements of the position. . .” The Tribunal concluded that the list of inherent requirements in the Professional Suitability Assessment kit was “too general to illustrate what is expected of the applicant.”

10 Why the Commissioner said this was an error of law. The Commissioner’s submission was that the Tribunal had misapprehended the test in X v Commonwealthof Australia (1999) 200 CLR 177 in relation to the need to properly identify the inherent requirements of the position at the time of making the decision to reject an applicant with a disability. According to the Commissioner, the High Court did not require an employer to develop a written document listing the inherent requirements of the position before it could rely on the defence. All that is required is probative evidence of the inherent requirements in order to determine whether an applicant with a disability can carry them out.

11 Tribunal’s reasoning. The Tribunal relied on the joint judgment of Gummow and Hayne JJ at 208- 209 and the single judgement of McHugh J at 199 in X v Commonwealth of Australia (1999) 200 CLR 177 in support of its conclusion. In that case the High Court was considering a decision of the Human Rights and Equal Opportunity Commission (HREOC) which concluded that the ability of a soldier with HIV to be deployed in any location as needed, was not an “inherent requirement” of his employment. The majority of the High Court (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting ) rejected the HREOC’s narrow interpretation of the inherent requirements of being a soldier.

12 The Tribunal correctly pointed out that the High Court’s statements are binding because they relate to s 15(4) of the Disability Discrimination Act 1992 (Cth) a provision that is effectively the same as s 49D of the NSW Act. The particular passages on which the Tribunal relied are set out below:

[103] It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.

[105] The inquiry that was required in the present case was an inquiry about what were the requirements of the particular employment. As we have said, that would begin by identifying the terms and conditions of service which revealed what the Army required of the appellant, not only in terms of tasks and skills, but also the circumstances in which those tasks were to be done and skills used. From there the inquiry would move to identify which of those requirements were inherent requirements of the particular employment. It was at this point that the Commissioner fell into error by confining the inherent requirements of the particular employment to the performance of the “tasks or skills for which [the appellant was] specifically prepared”. Only when the inherent requirements of the employment have properly been identified can one ask whether because of the employee’s disability the employee was unable to carry out those requirements.

13 The Tribunal highlighted the last sentence of the passage quoted above and noted at [44] that it was “simply not possible to move to the substance of the statutory defence . . . without first having properly identified the inherent requirements of the position.” The Tribunal also relied on the following passage of McHugh J at 199:
[67] As a matter of law, the Commission could not discharge its inquiry under s79 of the Act without determining the precise content of the “particular employment” of X and whether, by reason of an essential feature or defining characteristic of that employment, X’s disability posed a real risk to the safety or health of other soldiers or employees of the Commonwealth. It was also necessary to make those findings so that, if necessary, the Commission could also find whether X could carry out the inherent requirements of the particular employment with the aid of services or facilities which the Commonwealth could provide without unjustifiable hardship. It follows that the failure to determine these matters also constituted errors of law.
14 The Tribunal noted, correctly in our view, that the functions exercised by the HREOC (referred to by the High Court as the Commission or the Commissioner) in conducting an inquiry into a complaint under the Disability Discrimination Act 1992 are broadly similar to the functions exercised by this Tribunal in conducting inquiries under the NSW Act.

15 Errors in the Tribunal’s reasoning. The passages set out above do not support the Tribunal’s conclusion, repeated at [46], that the employer is required, at the time of deciding whether to offer employment to a person with a disability, to properly identify the inherent requirements of the position before they can rely on the defence. It is correct that the relevant date for determining whether an employer’s conduct was unlawful is the date that the alleged discriminatory conduct occurred. (See Kirby J (dissenting, but not on this point) in X v Commonwealth of Australia at 224.) However an employer who did not accurately identify the inherent requirements of employment at the time is still able to lead evidence at the hearing that, at the time the application for employment was refused, the applicant could not carry out the inherent requirements or would have required services or facilities to carry it out which would have imposed unjustifiable hardship on the employer to provide.

16 Whether or not an applicant could have complied with one or more of the inherent requirements of the position is a question of fact to be determined by the Tribunal on the basis of all the evidence adduced at the hearing. Access to the defence does not depend on the employer having compiled a list or statement of the inherent requirements, or identifying them in any other way, at the time the decision was made. An employer can present evidence at the hearing which may be sufficient to satisfy the Tribunal of the inherent requirements of the position regardless of whether those requirements had been formulated by the employer when the decision was made.

17 The Tribunal may have been misled by the fact that several sentences in the passages quoted from X v Commonwealth of Australia are expressed in the passive voice. For example, “it is necessary to identify” and “only when the inherent requirements of the employment have properly been identified”. Those passages do not identify the subject of the action. In our view the subject of the action is intended to be the HREOC, not the employer. The passages refer to the “Commission” (HREOC) and to the conduct of an “inquiry”. Gummow, Hayne and McHugh JJ were setting out HREOC’s task in conducting an inquiry, rather than laying down a pre-condition that an employer had to fulfil before relying on the defence. Although it is desirable for an employer to have accurately identified the inherent requirements before refusing to offer employment to an applicant with a disability, their failure to do so does not mean that they are prevented from relying on the defence in proceedings before the Tribunal.

Evidence of Assistant Commissioner Waites

18 Tribunal’s error led to it rejecting Waites’ evidence The second issue is whether the Tribunal placed insufficient weight on the evidence of Assistant Commissioner Waites. The Tribunal decided that Assistant Commissioner Waites’ opinion as to some of the inherent requirements of the position of a police officer “do not assist the respondent” because there was no evidence that those requirements were adopted or applied by the Commissioner when refusing Mr Zraika’s application. In our view, there is no need for Assistant Commissioner Waites’ opinion to have been adopted or applied by the Commissioner when refusing Mr Zraika’s application. The Commissioner can rely on evidence adduced at the hearing as to the inherent requirements of the position even if that information was not available to the Commissioner at the time the decision was made.

Effect of Tribunal’s error on ultimate decision

19 The third issue is whether, having found errors of law in the first part of the Tribunal’s decision, we should set aside the decision. There is no need to do so unless that decision “would have been or might have been” different had the error not been made (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ). As we have said, the Tribunal’s decision was in two parts. We have concluded that the Tribunal made an error of law in the first part of its decision when it concluded that it was “not possible to consider the substance of the s 49D(4) defence because the Commissioner had not met its threshold obligation of proving that he had appropriately identified the inherent requirements of the position of an operational police officer at the time Mr Zraika’s application was rejected.” However, the Tribunal went on to say that in case it was wrong in its conclusion it would go on to consider the substance of the defence.

20 Because the Tribunal went on to consider the substance of the defence, the error made in the first part of the decision would not have made any difference to the Tribunal’s ultimate decision. In particular, the Tribunal went on to assume, for the purposes of applying the defence, that the inherent requirements were those set out in the professional suitability application form or the list developed by Assistant Commissioner Waites. Consequently, in the second part of its decision the Tribunal accepted the Commissioner’s characterisation of the inherent requirements of the position which was based in part on Assistant Commissioner Waites’ evidence.

21 The Commissioner submitted that the Tribunal had made further errors of law in the second part of its reasoning. We will examine those grounds in the following paragraphs.

Mr Zraika’s individual circumstances

22 Were Mr Zraika’s individual circumstances taken into account? Section 49D(4) requires the Commissioner to satisfy the Tribunal that even taking into account Mr Zraika’s “past training, qualifications and experience relevant to the particular employment . . . and all other relevant factors that it is reasonable to take into account” Mr Zraika could not perform the inherent requirements of the particular employment. In the Professional Suitability Application, Mr Zraika wrote that he had been employed as a security guard and a motor mechanic and that he played social sport including Kung Fu, squash and tennis. He also gave evidence that he had held a firearms accreditation when he worked as a security guard. The Commissioner submitted that there was “clear evidence” that he had considered all of the material provided by Mr Zraika when assessing his application. The Commissioner referred to a letter of rejection dated 11 October 2002 in which he said that the information contained in the professional suitability assessment application has “been considered.”

23 Appeal Panel’s findings. At [59] of its reasons the Tribunal found that it was common ground between the parties that Mr Zraika’s failure to meet the visual acuity standard was the reason why his application was rejected. That conclusion is supported by Section 5 of the Professional Suitability Assessment kit which stated that:

Applicants must achieve a corrected visual acuity of 6/6 with both eyes and 6/9 with each eye, either corrected or uncorrected, and will not be considered further if they do not meet the standard.
24 The Tribunal took into account the letter of 11 October 2002 but found that the Commissioner had not taken Mr Zraika’s individual circumstances into account. We find no error in the manner in which the Tribunal made that finding of fact.

Appropriateness of the Snellen test as a measure of risk

25 The Tribunal’s second reason for failing to be satisfied that the Commissioner had made out the defence in s 49D(4) was that the Snellen visual acuity test was not an accurate basis for determining whether Mr Zraika was unable to safely perform the inherent requirements of the position of police officer. The Commissioner’s objections to this finding are that the Tribunal took insufficient notice of:

- the fact that the Commissioner had determined prior to rejecting Mr Zraika, that applicants needed to achieve 6/9 in a visual acuity test in order to perform the inherent requirements of the job; and

- the evidence of Dr Norris, a police medical officer of many years experience.

26 Neither of these points is persuasive. In the second part of its reasoning process, the Tribunal went on to consider the evidence of Assistant Commissioner Waites, Dr Norris and Professor Dain. The Tribunal then concluded that none of those expert witnesses sufficiently identified the degree of risk, and the consequences of any risk being realised, if a person with vision below the visual acuity standard was employed. On the basis of all the evidence, the Tribunal was not satisfied that the Commissioner was entitled to exclude Mr Zraika from employment on the ground that he could not safely perform any inherent requirements of the position. That conclusion does not disclose any error of law.

Provision of services and facilities – unjustifiable hardship

27 Finally, the Tribunal was not satisfied that the Commissioner had discharged his onus of establishing that the provision of services and facilities to enable Mr Zraika to perform the inherent requirements of the position would have imposed unjustifiable hardship. The Commissioner did not attempt to satisfy the Tribunal at the hearing either that there were no services or facilities which would assist Mr Zraika to perform the inherent requirements of policing or that the provision of relevant services or facilities would impose an unjustifiable hardship on the Commissioner. Consequently, we agree with the Tribunal’s conclusion that the Commissioner did not discharge his burden of proof in relation to that aspect of the defence.

Grounds of appeal which are not made out

28 There are several other grounds of appeal which do not constitute an error of law. We address them briefly below.

29 Extent of Mr Zraika’s disability. The Commissioner submitted that the Tribunal described Mr Zraika’s vision in an incomplete and misleading way and that this led it into error when deciding whether he could perform the inherent requirements of the position of police officer. The Commissioner criticised the Tribunal’s comment at [2] of its decision that amblyopia means that Mr Zraika “has a loss of visual acuity or sharpness of vision.” The Commissioner emphasised that Mr Zraika’s condition means that he has no binocular vision, a loss of stereopsis, reduced depth perception, a restriction of movement when the left eye looks down and an impaired ability to maintain visual fixation.

30 Appeal Panel’s reasons. We do not agree with the Commissioner’s submission for two reasons. Firstly, although the Tribunal did make the comment attributed to it at [2] of its decision, it expanded on that finding at [64] – [65] and [68] - [71]. In those paragraphs the Tribunal set out the evidence given by expert witnesses in relation to Mr Zraika’s disability and the impact it has on him. The Tribunal’s description of Mr Zraika’s disability throughout the decision was neither incomplete nor misleading. Secondly, whether or not the Tribunal described Mr Zraika’s disability in an incomplete or misleading way, contrary to the Commissioner’s submission, the Tribunal did not go on to decide whether he could perform the inherent requirements of the position. The Tribunal made no finding on that issue but merely decided that the Commissioner had not discharged his burden of proving the exception to liability in s 49D(4). As the Tribunal made no finding as to whether Mr Zraika could perform the inherent requirements of the position, it could not have done so from an erroneous starting point as submitted by the Commissioner.

31 Insufficient weight given to the dangers inherent in policing. The Commissioner submitted that the Tribunal did not place any or any sufficient weight on the dangers inherent in policing when considering the inherent requirements of the job and whether Mr Zraika was able to perform those requirements. As we said in the previous paragraph, the Tribunal did not come to a view as to whether Mr Zraika could perform the inherent requirements of the position, so it could not have failed to adequately take into account the dangers inherent in policing.

32 Judicial notice. The Commissioner submitted that the Tribunal paid no or insufficient attention to, and failed to take “judicial notice” of, the fact that someone with no depth perception would be unable to carry out at least some of the inherent requirements of policing. We do not accept this submission for two reasons. Firstly, there was no evidence that Mr Zraika “had no depth perception” as distinct from “reduced” depth perception. The evidence from Professor Dain was that Mr Zraika does not have binocular vision and that this has resulted in a loss of “stereopsis” which may have potential for problems when performing certain duties such as assembling a firearm or physically restraining a person. Stereopsis, as described by Professor Dain, is the phenomenon whereby the brain compares the two images from each eye, looks for differences, and provides for the perception of relative depth. Secondly, the Tribunal would have fallen into error if it took “judicial notice” of the “fact” that Mr Zraika was unable, because of a loss of stereopsis, to perform any of the inherent requirements of policing. Whether applying the common law doctrine of judicial notice or s 144 of the Evidence Act 1995, that “fact” is not a matter of common knowledge or capable of verification by reference to an authoritative document.

33 Amount of penalty. The Commissioner submitted that the Tribunal had made an error of law by awarding Mr Zraika $10,000 by way of damages for non-economic loss including distress, insult and humiliation. The Commissioner said that:

- there was insufficient evidence to warrant such an award;

- Mr Zraika did not establish that the application of the visual acuity standard caused the damage he alleges to have suffered;

- even if the application of the visual acuity standard did cause some damage, Mr Zraika’s response was disproportionate in the circumstances; and

- the amount of damage was “outside the range”.

34 Appeal Panel’s reasons . The assessment of the quantum of damage is a question of fact. ( Australian Iron & Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 at 620.) There was evidence from Mr Zraika that he felt “shocked”, “devastated” and “cheated” when his application was rejected. The Tribunal accepted that evidence which was set out in greater detail in his statement. As Abadee J stated in David Jones (Australia) Pty Limited v P & Anor (NSW Supreme Court, unreported, 29 August 1997):
An award for injuries to feelings is not automatically to be made whenever unlawful discrimination is proved or admitted. There must be evidence of compensable loss to found an award of compensation under section 113. Injury must be proved, though it will often be easy to prove in the sense that no Tribunal will take much persuasion that the anger, distress and affront caused by an act of discrimination has injured the Applicant’s feelings.”
35 The Tribunal decided that the application of the visual acuity standard led to Mr Zraika’s rejection and that the rejection caused him to be distressed and frustrated. Those are questions of fact. Finally, we reject the Commissioner’s submission that $10,000 is “outside the range” and that “other than the most egregious cases of discriminatory conduct” the Tribunal would not normally award more than $2000 for injury to feelings. The Commissioner cited no relevant authority for this proposition. In addition the comparison of awards for non-economic loss in other cases is not a basis for establishing that the Tribunal made an error of law in assessing the damages at $10,000 in this case.

Conclusion

36 The Tribunal made an error of law in deciding that X v Commonwealthof Australia (1999) 200 CLR 177 was authority for the proposition that in order to rely on the inherent requirements defence in s 49D, an employer must have compiled a statement or list of those requirements prior to refusing the application for employment. The Tribunal’s subsequent reasoning and findings make it clear that its decision would have been the same even if it had not made the error that error.

37 In order to make out the defence in s 49D(4) an employer is required to adduce evidence at the hearing which is sufficient to satisfy the Tribunal that, as a matter of fact at the time the employer refused the person’s application:

- the applicant would have been unable to carry out the inherent requirements of the particular employment because of his or her disability; and

- that in order to carry out those requirements the applicant would have required services or facilities that it would impose an unjustifiable hardship on the employer to provide.

38 The employer must also adduce evidence that these two conclusions have been reached taking into account the applicant’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account.

39 The Commissioner did not point to any matters which we consider constitute an error of law when the Tribunal considered the substance of the defence in the second part of its decision. In accordance with the principles set down by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 we refuse leave to extend the appeal to the merits of the Tribunal’s decision. Mr Zraika requested that he be given an opportunity to apply for costs. Our orders provide that opportunity.

Orders

1. The Tribunal’s decision is affirmed.

2. The appeal is dismissed.

3. If Mr Zraika wishes to make an application for costs, he should file and serve such an application together with any evidence or submissions in support within 28 days of the date of this decision.

4. If such an application is made, the Commissioner should file and serve any evidence and submissions in reply within a further 28 days.

5. The matter will then be set down for a hearing on a date to be fixed.