Levy, Guitta v Minister for Immigration and Multicultural Affairs
[1998] FCA 1666
•21 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – review of decision of Refugee Review Tribunal (“the RRT”) – marriage between Israeli Jew and Lebanese Christian Arab – ‘persecution’ – whether risk of physical injury necessary – whether Government unable to protect citizen – whether core human right.
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees
Migration Act 1958 (Cth), s 420(1) and (2), s 430 (1), (2) and (3)
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, followed
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260, cited
Ji Kil Soon v Minister for Immigration and Ethnic Affairs (1994) 37 ALD 609, cited
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, followed
Sandeep Dogra v Minister for Immigration and Ethnic Affairs (Unreported, Madgwick J, 28 April 1997), cited
Istvan Magyari v The Minister for Immigration and Multicultural Affairs (Unreported, O’Loughlin J, 22 May 1997), cited
United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1992) pars 54 and 55
GUITTA LEVY v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 588 OF 1998
TAMBERLIN J
SYDNEY
21 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 588 of 1998
BETWEEN:
GUITTA LEVY
APPLICANTAND:
MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
21 DECEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application for an order of review is dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 588 of 1998
BETWEEN:
GUITTA LEVY
APPLICANTAND:
MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
21 DECEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The present case calls for consideration of the grounds raised in an Amended Application for an order of review of a decision of the Refugee Review Tribunal (“the RRT”), which affirmed a decision of the ministerial delegate not to grant the applicant a protection visa on the ground that she was not a refugee.
The relevant definition of “refugee” is found in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). Article 1A(2) of the Convention defines a “refugee” as any person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality … is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country….”
The grounds on which the review is sought are that there was an error of law in interpreting the applicable law; or alternatively, that there was an incorrect application of the law to the facts as found by the RRT. More specifically, it is submitted that the RRT erred in determining that the harassment suffered by the applicant, and its effect on her, did not amount to persecution and that a wrong test was applied when deciding whether the applicant’s fear of persecution was well-founded. In addition, it is claimed that the procedures required by the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of the decision were not observed. In substance, the claim advanced is that the RRT did not set out the findings on material questions of fact, as required by s 430(1)(c) of the Act, nor did it act in accordance with substantial justice and the merits of the case, as required by 420(2)(b) of the Act. It is further submitted that the degree of damage to the applicant’s health, which was likely to flow from the discriminatory harassment if she is returned to Israel, is a material question of fact and that no findings were made by the RRT on this matter so that in deciding against her submissions, the RRT did not act according to the substantial justice and merits of the case.
It is convenient to set out the relevant provisions of the Act relied on by the applicant. Section 420 is in these terms:
“s 420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.”
Section 430 of the Act provides:
“430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and(d)refers to the evidence or any other material on which the findings of fact were based.
(2)The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.
(3) Where the Tribunal has prepared the written statement, the Tribunal must:
(a)return to the Secretary any documents that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other documents that contains evidence or material on which the findings of fact were based.”
Background facts
The applicant is a Christian Arab of Lebanese origin, who had been a resident of Southern Lebanon in the self declared Israel Security Zone. In 1989, at the age of 20, the applicant used an Israeli recruitment agency to find work in Israel as an assistant nurse. In December 1994, while working as an assistant nurse, she met and fell in love with her husband, who was the nephew of the owner of the employment agency.
Their friends and both their families strongly disapproved of the friendship between an Israeli Jew and a Lebanese Christian Arab and saw the relationship as falling into the “marriage with the enemy” class. From this time they were effectively estranged from their respective families. When the uncle heard about it, he and the rest of the husband’s family vowed to prevent their marriage. In about February 1995, the applicant lost her job and she believes that this was the result of the uncle’s intervention. Without a job and without the assistance of the agency, she would have been unable to extend her visa to stay in Israel. She and her husband decided they must get married so they could stay together. They could not be married in Israel because marriage is not available to those not of the Jewish faith. They went to see a lawyer, who said he could arrange a civil marriage under the laws of Paraguay but that it would take some months. He gave them a certificate which indicated that their marriage was in the process, which meant that the applicant could stay in Israel until it was finalised.
That evening, about midnight, the police called at her husband’s home and asked the applicant to come in for questioning. They told her not to be frightened but they were just checking up on a lead. It turned out that the uncle had denounced her to the police as being an illegal resident and an associate of terrorists. She was questioned until 5 am by the police. The questions included requests for information about her associates and family. For part of the interview, the uncle was present and was trying through various contacts to ensure that she was sent back to Lebanon. However, in the end the police were satisfied that she was in the country legally and she was allowed to go. They said they could be making further inquiries.
On 19 June 1995, their marriage was registered. After about three weeks, the couple moved from Tel Aviv to a village near Haifa where the husband hoped their mixed marriage would go undetected and they could lead a normal life. Within six months, the neighbours found out and they became the subject of minor harassment, such as being talked about as they passed in the street. There were arguments with the neighbours and some abuse. They were made to feel alienated. On two occasions when Arab friends visited them, the neighbours reported it to the police and the police, while not harassing them, suggested that they arrange for less Arab visitors to come to their house. Although Haifa is a place where many people in mixed marriages reside, the applicant did not know many people who were in mixed marriages and none where there was an Israeli husband and a Lebanese Christian wife.
The couple lived in Haifa for about two years.
After her marriage, the applicant sought pregnancy testing but could not obtain the appropriate medical treatment without an Israeli Identification card. Accordingly, she applied for Israeli citizenship. This was, at first, rejected. At the hearing before the RRT, the applicant produced a document dated August 1995, which was not translated but which the RRT understands to be a rejection of her application. The document describes her as a foreign worker rather than the wife of an Israeli national. She believes the uncle had a hand in delaying the application but the couple continued to press it. The applicant had no medical treatment during pregnancy. She was admitted to hospital for a caesarean section and their son was born on 26 October 1995. Her citizenship finally came through on or about the day he was born. She does not believe that she would have difficulty today in obtaining medical treatment in Israel.
When the child was about eight months old, the applicant advertised as a child minder but unlike another woman she knew who advertised in the same place she attracted no customers, except one woman who quickly withdrew her child saying she had found a cheaper place. The applicant believed it was because the customer had discovered her ethnicity. She applied for a job at a local branch of the hospital where she had worked before but was unsuccessful. She believes it would be very hard for an Arab in her position, married to a Jew, to find employment.
About three weeks before she left the country she received a threatening phone call and over the next few days about three more. The caller abused her and threatened injury to herself, her husband and her son. She was advised to go back to Lebanon and take her son with her if she did not want to be harmed. Both Arabic and Hebrew were spoken. The last call simply said that she had one week left. Her husband answered one of the calls and was abused in Hebrew for marrying an Arab. The couple did not recognise the voices and have no idea who is behind the calls. They say it could be anyone, including neighbours, radical Arabs or Jews, or the family of either of them. Both the applicant and her husband, when closely questioned, did not convince the RRT that they really believed the family of either of them would harm the child or themselves, although both families were clearly hostile to the marriage. The applicant went to the police but felt the police took it lightly, saying it was only telephone threats and that they could not protect the family against such threats from unknown persons. They agreed that her suggestion that she might leave the country was a good idea.
In her written submissions and in her Tribunal hearing, the applicant suggested that the calls might have come from radical Jewish elements. She drew a parallel with the assassination of Prime Minister Rabin. The content of the calls received by herself and her husband would appear to support this suggestion. She knew of no similar situations where physical harm had been done to ordinary people by radical Israelis.
The applicant claimed that her health had suffered. Her husband gave evidence about how disturbed the applicant was by the threats and about her particular fear when she was alone during the day.
The applicant felt that she could not take the chance of the threats being carried out and she and her husband agreed to leave the country as soon as possible. She had become entitled to obtain a passport late in 1996, after one year of citizenship, and she did so. The applicant explained that at the time of obtaining the passport she had no plans to leave and that she was “living like everybody else” and was “forced to live like that”. Her decision to leave was because of the threats.
In response to a question from the RRT, the applicant said she did not fear ill treatment from the Israeli authorities but, rather, the treatment which could occur at the hands of the general populace.
In her evidence, the applicant explained that the child of the marriage would face particular difficulties growing up in Jewish society because under Jewish law, children are taken to have the nationality of their mother and accordingly, in Israel, the child would not be considered a Jew. On the other hand, in Lebanon, the child’s nationality follows the father and, therefore, the child would be considered a Jew.
RRT reasons
The RRT examined the problems which the applicant claimed to have suffered in her interaction with Israeli society as a consequence of her marriage to an Israeli Jew. It then went on to consider the threatening telephone calls. It had regard to the cumulative effect of these two matters. The RRT reasons point to the disapproval manifested towards the applicant by her husband’s family in Israel. She said that they made considerable but unsuccessful efforts to separate them. Her own family in Lebanon did not approve of the marriage. The applicant and her family were not made welcome by the neighbours. She was insulted and abused directly and indirectly for her ethnicity in the context of her having married a Jew.
The RRT accepted that the independent evidence supported the applicant’s assertion that hostile attitudes towards mixed marriages were common in Israel. The RRT considered that mixed marriages, such as the applicants, contained an element of “association with the enemy” and might well attract even more unpleasant attention than other mixed marriages. It accepted that the treatment described by the applicant was discriminatory and systematic. It accepted that the applicant was justified in anticipating that it would occur again if she returned to Israel. It also accepted that the discriminatory harassment occurred by reason of the applicant’s race and probably also arose because of her religion, and that the police were unable to prevent it. While the RRT had sympathy for the applicant and her family, it did not consider that the treatment was sufficient in its nature and extent to amount to persecution within the meaning of the Convention. It pointed out that the applicant and her husband acknowledged that they anticipated some hostile treatment, although not of the intensity they claimed to have experienced. It was noted that the applicant and her husband had lived with it for two years prior to their departure from Israel.
The RRT also noted that there was independent evidence to justify a finding that while the applicant might face discrimination and difficulties in obtaining employment, there was no evidence to show that she would be denied the right to work in Israel.
The RRT then proceeded to consider the effect of the threatening telephone calls testified to on behalf of the applicant. The RRT accepted that the calls occurred and that they upset the applicant considerably and that the police were unable to offer any remedy. Further, the RRT accept that the calls led the applicant and her husband to a decision to leave the country as soon as possible rather than take the chance that the threats that the applicant “had only one week more” would be carried out. The RRT found that the calls only occurred over a period of a few days, shortly before the applicant’s departure from Israel. The RRT accepted that the calls were most likely made by Jewish extremists and that lurid language might be used and that serious pressure could be applied. The RRT stated that it was not aware of instances where any threats of violence had been carried out.
In relation to this latter matter, the RRT reasons record that the applicant referred to the assassination of Prime Minister Rabin by extremists and that she saw herself as an easier target. However, the reasons state that the RRT was not satisfied that ordinary citizens are at risk of actual injury to the same extent as the political figures. Moreover, it concluded that the telephone calls themselves did not amount to persecution nor that the threats would be acted upon. The RRT then considered the cumulative effect of the hostile social treatment and the telephone calls. It decided that even taken cumulatively, the consequences were not sufficient, as a matter of fact and degree, to constitute persecution. The RRT found that the social harassment and the extremist telephone calls occurred because of the applicant’s race or religion. It also found that both were likely to occur if she returned to Israel. It stated that both the social hostility and the telephone calls were in the nature of verbal assaults on the applicant as a party to a mixed marriage and that they combined to cause anxiety to the applicant in her everyday life.
The final two paragraphs of the RRT reasons are as follows:
“While it does not doubt her fear, nor that her fear is well-founded, the Tribunal is not satisfied that the treatment which the applicant has experienced and expects to experience if she returns to Israel amounts to persecution. It follows that it can not be satisfied that the applicant meets the requirement of the Convention, namely that she must have a well founded fear of persecution if she returns to Israel.
The Tribunal is well aware of the atmosphere in Israel and has real sympathy for the experiences of the applicant as a Lebanese who has taken up residence in Israel, and for her family. It acknowledges the problems which the child of the marriage would face growing up in Israel as the offspring of a mixed marriage. However, the role of the Tribunal is clearly defined and it has no power to make finding on compassionate grounds.”
Persecution
The applicant submits that the RRT wrongly assumed that persecution can only occur when there is a risk of actual physical injury. It is also said that the RRT failed to consider why the anxiety caused by the threats to the applicant in her everyday life did not amount to persecution.
The first consideration is whether the harassment claimed by the applicant was of such an extent and degree as to constitute “persecution” within the Convention meaning. As I read the RRT reasons, this was considered to be a primary issue in the case.
The term “persecuted” is not defined by the Convention or the Protocol. This is, no doubt, because of the difficulty inherent in anticipating the diverse and subtle ways in which persecution might be implemented over an indefinite period of time and the consequent need for flexibility in determining whether there is a chance of persecution. However, it has been necessary for the courts to grapple with the nature and content of the expression in a general way, having regard to individual cases as they arise. There is, therefore, no specific or simple touchstone of “persecution” which can be invoked as universally applicable in the myriad of circumstances arising before the RRT or this Court.
In the leading case, Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430, the content of the expression “persecution” is addressed by McHugh J. His Honour said that the notion of persecution involved selective harassment. He pointed out that the threat of such harassment need not be the product of any policy of the government of the person’s country of nationality and that it might be enough in particular circumstances that the government failed or was unable to protect the person in question from persecution. His Honour went on to say:
“Moreover, to constitute ‘persecution’ the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute ‘persecution’ for the purposes of the Convention and Protocol. Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution…”
At 431 his Honour said:
“Hence, the denial of access to employment to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.”
His Honour went on to note that in the Unites States the courts had taken a liberal view of the expression “persecution”.
Mason CJ generally agreed with the reasons for judgment given by McHugh J. He made a passing reference to the degree of harassment necessary to constitute persecution at 388:
“… the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, …amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question on whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.”
In the light of these remarks it would, in my view, be an error of law for the RRT to apply a test which requires that the applicant should suffer or be at risk of actual physical injury. There are many other ways, apart from the infliction of physical injury, which can result in persecution. For example, denial of core human rights to life, liberty, property, or the right to work could amount to persecution. As to the right to work, it is a question of degree: see Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 per Hill J at 265-267 and Ji Kil Soon v The Minister for Immigration and Ethnic Affairs (1994) 37 ALD 609 per Tamberlin J. The forms of persecution or selective harassment set out above do not involve a risk of any actual physical harm to the person. The United Nations Handbook on Procedures and Criteria for Determining Refugee Status (1992) at pars 54 and 55 states:
“54. Differences in the treatment of various groups do indeed exist to a greater of lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, eg serious restrictions on his rights to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.
55. Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.”
On a fair reading of the RRT decision as a whole, I do not think that when reference is made in the reasons to the assassination of Prime Minister Rabin by extremists, the decision-maker was applying a requirement that there must be a risk of actual physical injury before a person can be said to be at risk of persecution. The reference to the RRT not being satisfied that ordinary citizens were at risk of actual injury to the same extent as prominent political figures was no doubt intended to convey that the danger of a threat being carried out is generally greater in the case of a prominent political figure than in the case of any other citizen.
In considering this remark in context, it is also necessary to bear in mind the next sentence, which is to the effect that the RRT did not consider that the telephone calls themselves amounted to persecution. It is evident from the reasons given by the RRT that, as a matter of fact, the RRT did not think that there was any significant risk of the threats being carried out in relation to the applicant. In any event, this is a question of fact and degree for the RRT to determine. The RRT gave its reasons for reaching this view by reference to the fact that the calls had only commenced a few days shortly before the applicant’s departure and that there was no evidence of instances where such threats had been carried out. It is also apparent that the RRT did not accept that the degree of anxiety experienced by the applicant was sufficient to constitute “persecution”. This view was open to the RRT as the body charged with the task of determining the relevant facts.
There is a further, important consideration in relation to the harassment experienced by the applicant in the present case and that is the fact that the hostility and telephone calls were at the instance of private individuals or groups. There is no suggestion that the government or official agencies were involved in the harassment. To a considerable extent, the hostility experienced by the applicant, apart from the telephone calls, resulted from the disapproval by both her own family in Lebanon, her husband’s family in Israel and the social group within which she lived and moved. It is by no means a unique experience that where persons from different cultures, religions, races or traditions intermarry, there is a degree of social hostility manifested towards one or even both of the parties to the marriage for stepping outside traditional social, racial or religious norms. Generally speaking, such hostility would not properly be described as persecution in the context of a Convention concerning refugees, which is focussed, to a large extent, on the protection of core human rights. It is also important to bear in mind that when parties from different cultures, religions or traditions intermarry there can frequently be anticipated, as was the fact in the present case, that there will be social disapproval and hostilities shown to the parties.
In respect of the telephone calls, the RRT found that the calls appear most likely to have been made by Jewish extremists and it was accepted that ultra orthodox groups in Israel apply pressure of this nature and that lurid language is used and serious pressure is applied. There does not appear to be any action on behalf of the government or any government or police body to permit such harassment. The applicant’s case rather emphasises the consideration that the police indicated that they were unable to protect the family against the actions of unknown persons and the RRT accepted that this was the case.
This question concerning the role of government or governmental authorities was considered by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. In that case, Brennan CJ stated at 334:
“ the definition of ‘refugee’ must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality…”
A similar view was expressed by McHugh J, at 354 where he said:
“The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the counties of their nationality.”
These passages were referred to and applied in Sandeep Dogra v Minister for Immigration and Ethnic Affairs (Unreported, Madgwick J, 28 April 1997), and Istvan Magyari v Minister for Immigration and Multicultural Affairs (Unreported, O’Loughlin J, 22 May 1997).
This element of government acceptance is not present in the case before me. In this case, the evidence does not indicate that the State of Israel allows private persecution. The RRT accepted that the State was unable to protect the applicant from the social hostility and the telephone calls. The evidence referred to by the RRT indicates that the particular police contacted took no action in this case because of the inherent difficulty in providing protection from telephone calls received from unknown persons.
Accordingly, for the above reasons, I am not persuaded that the RRT erred in the manner in which it approached and resolved the question of “persecution”.
Wrong test
The applicant submitted that the RRT applied the wrong test in determining whether her fear of persecution was well-founded.
At the outset of its reasons, the RRT set out the relevant provisions and referred to the principles laid down in the primary authorities. In particular, reference was made to the authorities concerning the requirement of “persecution”.
I am satisfied that the RRT asked itself the right questions according to the authorities and that no error of law has been shown in relation to the selection or application of the relevant test. The conclusion which was reached was open to the RRT on the evidence. I, therefore, do not accept this submission.
Errors of procedure
The applicant claims that the RRT failed to observe procedures required by the Act to be observed. It is said that the RRT failed to set out findings on any material questions of fact as required by s 430(1) of the Act and, as a consequence, it failed to act in accordance with substantial justice and the merits of the case.
In particular, it is said that the degree of damage to the applicant’s health, which was likely to flow from the discrimination if she returned to Israel, was a material question of fact and that the RRT failed to make findings on this question.
In my view, it is evident from a fair reading of the whole of the RRT reasons that it appreciated the degree of anxiety and stress which the applicant would face if returned. In particular, it accepted that the telephone calls disturbed the applicant considerably and that lurid language and serious pressure were likely to be applied to her on return. The RRT reasons referred to the applicant’s fear as being well-founded and to the accepted fact that the calls led the applicant and her husband to leave the country as soon as possible after they first commenced. The RRT also accepted that the verbal assaults directed at the applicant, as a party to a mixed marriage, together with the telephone calls, combined to cause anxiety to the applicant in her everyday life.
Having regard to the above, I am not persuaded that the RRT failed to consider or make any finding in relation to the impact of the threats and abuse that the applicant received.
Conclusion
For the above reasons, I consider that the application should be dismissed with costs.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 21 December 1998
Counsel for the Applicant: Mr C R de Robilliard Solicitor for the Applicant: Diamond Peisah & Co Counsel for the Respondent: Mr R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 October 1998 Date of Judgment: 21 December 1998
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