Mardini v Minister for Immigration
[2005] FMCA 1409
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARDINI v MINISTER FOR IMMIGRATION | [2005] FMCA 1409 |
| MIGRATION – Review of Migrant Review Tribunal decision – refusal of a Partner (Migrant) (Class BC) visa – no jurisdictional error – leave sought for a “McKenzie Friend” – discussion of whether appropriate in the circumstances – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 474
Migration Regulations 1994 (Cth), regs.1.23(1)(g), 1.23(2)(b), 1.24, 1.25, 1.26
McKenzie v McKenzie (1970) 3ALL ER 1034
R v Leicester City Justices; Ex parte Barrow & Anor (1991) 3 ALL ER 935
Smith v R (1987) 71 ALR 631
Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 257
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1097
Meroka v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 482
Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1279
| Applicant: | RAYMOND MARDINI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2231 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person, with the assistance of Mr Toufic Laba-Sarkis, with leave.
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2231 of 2004
| RAYMOND MARDINI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 July 2004 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 23 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 April 2003 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa. The applicant seeks unstated relief against the decision of the Tribunal.
Background
Ms T Wong of Counsel, appearing for the respondent, prepared and filed written submissions which contained an effective summary of the background to these proceedings and the applicant’s claims. I have adopted the summary and reproduced the same as follows:
a)
On 25 July 2002 the applicant, a citizen of Lebanon, made an application for a Partner (Migrant) (Class BC) visa to the Minister for Immigration & Multicultural & Indigenous Affairs (“MIMIA”) (Court Book pp.1-18). On 28 April 2003 the delegate refused to grant the applicant a Partner (Migrant) (Class BC) visa, principally on the basis that the applicant had failed to demonstrate that he suffered domestic violence committed by the sponsoring spouse, within the meaning of Regulation 100.221(4)(c)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”) (CB pp.207-213). On 19 May 2003 the Tribunal received an application for review of the decision of the delegate (CB pp.214-219). On 21 May 2003 the Tribunal wrote to the applicant acknowledging receipt of the application and inviting the applicant to submit any documents or written arguments he wished the Tribunal to consider (CB p.238). By letter dated
31 March 2004 the Tribunal wrote to the applicant inviting him to attend a Tribunal hearing (CB p.239). On 2 June 2004 the applicant attended the Tribunal hearing and gave oral evidence in support of his claims (CB p.253). On 23 June 2004 the Tribunal handed down its decision affirming the delegate’s decision (CB p.251). On 16 July 2004 the applicant filed an application in the Federal Magistrates Court for a review of the Tribunal’s decision.
b)In a statutory declaration annexed to his application for review, the applicant made the following claims:
i)the applicant met his wife, Claudine, while she was visiting Lebanon with her family at the end of December 2000;
ii)the applicant married Claudine in Lebanon on 14 July 2002 and Claudine returned to Sydney on 9 August 2002;
iii)
the applicant was granted a temporary spouse visa on
13 September 2002 and arrived in Australia on
14 November 2002;
iv)the couple first stayed at the applicant’s parents-in-law home, and then moved to the applicant’s sister’s home in Merrylands;
v)Claudine then ignored the applicant, “put him down” in private and in public and did not treat him with respect;
vi)soon afterwards, Claudine informed the applicant that she regretted marrying him and that she had no feelings for him anymore.
c)The applicant claimed that Claudine:
“… humiliated, insulted, abused and endangered my health and life. She dominated the relationship and caused me stress, anxiety and despair. She is directly responsible for damaging my life, self esteem and confidence in myself as a man and a human being … The emotional and psychological damage she caused to me in a short time will take many years to heal.” (CB p.197)
d)In addition to his statutory declaration, the applicant submitted:
i)a report dated 18 February 2003 from Dr Ben Teoh, consultant psychiatrist and physician; and
ii)a report dated 5 March 2003 from Dr Hany Hanna, registered medical practitioner.
McKenzie friend
Mr Toufic Laba-Sarkis sought leave of the Court to act as a “McKenzie friend” for the applicant. Mr Laba-Sarkis informed the Court that he migrated from Lebanon and is now an Australia citizen. He is the Managing Director of a salvage timber and recycling value added business. Mr Laba-Sarkis stated that he is an NAATI accredited interpreter in the Arabic-English medium and that he had previously practised as a migration agent until 1996. Since 2004 Mr Laba-Sarkis has assisted people on a voluntary basis through the various community organisations of which is a member. He has made representations to the Minister and attended Courts and Tribunals in respect of migration issues. He is a member of the Ethnic Community Council, Maronite Christian Society, Secretary of the General Council of Community of Hasroun (Charitable Association) and other committees. Mr Laba-Sarkis stated he completed academic studies in theology, philosophy and migrant education.
In McKenzie v McKenzie and R v Leicester City Justices; Ex parte Barrow & Anor the concept of “McKenzie friend” envisages permitting a lay person to attend a trial and take notes, quietly make suggestions to the litigant in person and give advice to the litigant. It is a matter of discretion of the Court as to whether it is appropriate for a “McKenzie friend” to be involved at all: Smith v R. I appreciate the practical difficulties in which a person in the position of the applicant is confronted because he is in a strange country whose language is not familiar and whose legal system he does not understand. Nor is the applicant likely to be in a financial position to enable him to obtain legal representation or retain Counsel.
At the conclusion of the final hearing I directed Mr Laba-Sarkis to file an affidavit setting out the details of his background and experience. The purpose of the affidavit was to put into evidence the information Mr Laba-Sarkis provided orally to the Court. Mr Laba-Sarkis complied with this direction and on 2 September 2005 an affidavit was filed in Chambers containing details of his qualifications, employment history, business ventures and membership of various community organisations.
The Tribunal’s findings and reasons
The submissions prepared by Ms Wong contained an effective summary of the Tribunal’s decision, which I have adopted and reproduced as follows:
a)The Tribunal commenced its decision by having regard to the legislation and policy applicable to the application for review, and then summarising the evidence presented to the Tribunal by the applicant (CB pp.252-255). The Tribunal noted that the applicant and his brother-in-law, Mr Tony Mardini, gave evidence at the Tribunal hearing (CB p.254).
b)The Tribunal stated that the applicant gave evidence that his wife hit him twice with her elbow, and that one month after the relationship ended, he received two telephone calls where the caller said he would be killed (CB p.254). The applicant recognised these callers as a friend and relative of the applicant and reported these calls to the police (CB p.254).
c)The Tribunal then summarised the statutory requirements of the Partner (Migrant) (Class BC) visa, and noted that it relevantly contained two subclasses: subclass 100 (Spouse) and subclass 110 (Interdependency). The Tribunal stated that the only subclass in respect of which claims had been advanced was subclass 100 (Spouse) (CB p.255).
d)The Tribunal noted that the relationship between the applicant and the sponsor had ceased and the applicant therefore needed to meet one of the alternative limbs in reg.100.221 of the Regulations. The only limb of relevance was whether domestic violence had occurred (CB p.255).
e)The Tribunal then referred to the requirements of Division 1.5 of the Regulations which state that a particular regime relating to domestic violence and its methods of proof (CB p.255). The Tribunal summarised the relevant case law, including the decision of Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs (“Cakmak”) where it was stated that the violence suffered by the applicant must involve an act or threat of application of physical force (CB pp.257-258).
f)The Tribunal held that the applicant’s complaints of being pushed by his wife’s elbow on two occasions did not cause the applicant to be fearful for his personal well-being or safety, and that “they appear to be measures by which the sponsor was attempting to stop unwanted attention as she is entitled to do” (CB p.258). The Tribunal also noted that the applicant did not complain of these matters to either of the doctors he saw and that neither statutory declaration sworn by the applicant referred to such physical acts (CB p.258).
g)The Tribunal also rejected the relevance of the alleged threats made to the applicant (CB p.258). With respect to all of the other matters stated in the applicant’s statutory declaration, the Tribunal held that these difficulties referred to “the emotional or psychological effects of the rejection of the visa applicant by the sponsor” which were “not violence for the purpose of the regulations and cannot form the basis for determining that relevant domestic violence has occurred” (CB pp.258-259).
h)The Tribunal further held that the declarations filed by the applicant did not establish relevant domestic violence because of the basis of those claiming to be competent persons (CB p.259). The Tribunal noted that the statutory declarations filed by Dr Hanna and Dr Teoh fell under the same paragraph of reg.1.21(1)(a)(i), which was not permitted pursuant to reg.1.24(2) (CB p.259). The Tribunal affirmed the delegate’s decision not to grant the applicant a Partner (Migrant) (Class BC) visa (CB p.259).
Application for review of the Tribunal’s decision
On 16 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 14 December 2004 the applicant filed an amended application which contained the following grounds:
1.The Tribunal erred in law by accepting letter to the Department by Claudine Mardini stating the relationship with the visa applicant has ended and that the visa applicant was only with her to gain entry to Australia and that she bore much emotional abuse from him. The Tribunal fell into jurisdictional error on the basis that they accepted such statement without cross examining or verifying this information.
2.The Tribunal took evidence from the applicant and his brother-in-law, Tony Mardini, (who is Claudine’s Uncle) and such evidence was uncontested as truthful and the Tribunal erred in law by denying the applicant his natural right to be considered as a victim of domestic violence. Such is a jurisdictional error.
3.The Tribunal erred in law by stating in the decision dated 23 June 2004 verse 18 ‘the visa applicant confirmed that his former spouse was still alive and that he had no children either from that relationship or any other’. The applicant was never married before.
4.The Tribunal did not fully understand the violence suffered by visa applicant in spite of the medical reports and oral evidence supported by witnesses. The applicant wishes to rely on the transcript of the hearing which is attached to prove he has suffered domestic violence for the purpose of the regulation and the poor translation may have led the Presiding Member not to understand the gravity of the suffering of the applicant.
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
The applicant, with the assistance of Mr Laba-Sarkis acting as his McKenzie friend, prepared a written statement to be read to the Court by Mr Laba-Sarkis setting out the applicant’s submissions. It was agreed that a copy of the written submissions be provided to the respondent Counsel and to the Court and that it was not necessary for the document to be read aloud in Court. These submissions set out the history of the applicant’s marriage, its breakdown and the subsequent damage that he suffered. Unfortunately, the submissions do not directly address the issues the Tribunal was required to consider in its assessment of whether the delegate erred in her decision-making process.
Ms T Wong of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)The Tribunal’s decision rested upon two independent bases, namely:
i)a finding that the evidence presented by the applicant failed to demonstrate domestic violence for the purposes of the Regulations; and
ii)a finding that the two statutory declarations presented by the applicant did not satisfy the requirements of reg.1.24(2) of the Regulations.
b)The Tribunal’s finding regarding the applicant’s failure to satisfy the requirements of reg.1.24(2) was an alternative and independent basis upon which the Tribunal’s decision can be upheld: Theunissen v Minister for Immigration & Multicultural & Indigenous Affairs at [29].
c)In circumstances where the applicant was unable to present evidence of a judicially determined claim of domestic violence, he was required to satisfy the requirements of reg.1.23(1A)(b)(ii), and present evidence in accordance with reg.1.24.
d)The applicant sought to satisfy the requirement in reg.1.24(1)(b) by presenting reports from Dr Hanna and Dr Teoh. However, both of these individuals fell with the “same subparagraph of paragraph (a) of the definition of competent person”, namely subparagraph 1.21(1)(a)(i), being “a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners”. The applicant therefore was in breach of the requirements of reg.1.24(2), because he failed to submit two statutory declarations by competent persons satisfying different subparagraphs of paragraph (a) of reg.1.21(1).
e)The grounds of review raised by the applicant seek to attack the first category of findings made by the Tribunal concerning whether the applicant’s evidence of emotional and psychological harm was sufficient to establish domestic violence as defined by the Regulations. The applicant had not demonstrated any error in the Tribunal’s finding regarding reg.1.24(2), which is a separate and independent basis upon which the Tribunal’s decision can be upheld by this Court.
Reasons
In the absence of any evidence of a judicially determined claim of domestic violence, the determination of these proceedings is confined to the single issue of whether the statutory declarations tendered by the applicant satisfied the requirements of Division 1.5 of the Regulations. I note that these Regulations have been amended subsequent to the Tribunal hearing of this matter and came into operation on 1 July 2005 but are not relevant to this decision.
No evidence or submissions have been made to indicate that the issue of domestic violence has been the subject of judicial considerations as required under reg.1.23:
(1)For the purposes of these Regulations:
(a)a person ( the alleged victim ) is taken to have suffered domestic violence; and
(b)…
if:
(c)on the application of the alleged victim, a court has granted an injunction under paragraph 114 (1) (a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator; or
(d)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence and, unless the alleged victim had, before 1 January 1998, claimed to Immigration to have suffered domestic violence committed by the alleged perpetrator, that order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter; or
(e)a court has convicted the alleged perpetrator of, or has recorded a finding of guilt against the alleged perpetrator in respect of, an offence of violence against the alleged victim; or
(f)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim; or
(g)…
The Tribunal noted in its decision the oral evidence given at the hearing by the applicant in respect of the nature of the domestic violence. Details of the evidence were set out in the Tribunal’s decision at paragraphs 14-20 inclusive (CB pp.254-255). In the section “Findings and Reasons”, the Tribunal set out the requirements of Division 1.5 of the Regulations, confirming that none of the material from the hearing provided by the applicant and his brother-in-law was relevant to the consideration.
Under reg.1.22 and reg.1.23, domestic violence is taken to have occurred when the requisite evidence prescribed under the Regulations alleging that domestic violence has occurred has been provided to the Tribunal. Reg.1.24 prescribes that evidence can be provided in the form of a statutory declaration. The statutory declaration must satisfy the requirements set out in regs.1.25 and 1.26.
The Tribunal referred to the Full Court decision in Cakmak which states that the Tribunal is required to ask itself whether there has been evidence presented to the Tribunal called for by regs.1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26. The relevant regulations are:
1.23
(1)For the purpose of these Regulations:
…
(g)if the alleged victim is a person referred to in subregulation (2) – the alleged victim or another person on the alleged victim’s behalf presents evidence in accordance with regulation 1.24 that:
(i) the alleged victim has suffered relevant domestic violence; and
(ii) the alleged perpetrator has committed that relevant domestic violence.
(2)In paragraph (1)(g):
(a)…
(b)a reference to relevant domestic violence is a reference to violence against the alleged victim or his or her property that causes the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about, the alleged victim’s personal well-being or safety.
1.24 Evidence
(1)The evidence referred to in paragraph 1.23(1)(g) is:
(a)a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims) together with:
(i) a statutory declaration under regulation 1.26 (which deals with statutory declarations by competent persons); and
(ii) …
(b)a statutory declaration under regulation 1.25, together with 2 statutory declarations under regulation 1.26.
(2)A person must not submit, for the purposes of an application that relies on this Division, 2 statutory declarations by competent persons who both have a qualification specified in:
(a)the same subparagraph of paragraph (a) of the definition of competent person ; or
(b)subparagraph (b) (ii) of that definition.
1.25Statutory declaration by alleged victim etc
(1)A statutory declaration under this regulation must be made by:
(a)the spouse of the alleged perpetrator; or
(b)…
(2)A statutory declaration under this regulation that is made by a person who alleges that he or she is the victim of relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) must:
(a)set out the allegation; and
(b)name the person alleged to have committed the relevant domestic violence.
(3)…
1.26Statuory declaration by competent person
A statutory declaration under this regulation:
(a)must be made by a competent person; and
(b)must set out the basis of the competent person’s claim to be a competent person for the purposes of this Division; and
(c)must state that, in the competent person’s opinion, relevant domestic violence (within the meaning of paragraph 1.23 (2) (b)) has been suffered by a person; and
(d)must name the person who, in the opinion of the competent person, has suffered that relevant domestic violence; and
(e)must name the person who, in the opinion of the competent person, committed that relevant domestic violence; and
(f)must set out the evidence on which the competent person’s opinion is based.
Reg.1.21 of the Regulations states as follows:
1.21Interpretation
(1)In this Division:
"competent person" means:
(a)in relation to domestic violence committed against an adult:
(i) a person registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners; or
(ii) a person registered as a psychologist under a law of a State or Territory providing for the registration of psychologists; or
(iii) a person who:
(A)is a registered nurse within the meaning of section 3 of the Health Insurance Act 1973; and
(B)is performing the duties of a registered nurse; or
(iv) a person who:
(A)is a member of the Australian Association of Social Workers or is recognised by that Association as a person who is eligible to be a member of that Association; and
(B)is performing the duties of a social worker; or
(v) a person who is a court counsellor under the Family Law Act 1975 ; or
(vi) a person holding a position of a kind described in subregulation (2); or
(b)…
statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.
violence includes a threat of violence.
(2)The positions referred to in subparagraph (a) (vi) of the definition of competent person in subregulation (1) are:
(a)manager or coordinator of:
(i) …
(ii) a crisis and counselling service that specialises in domestic violence; or
(b)a position with:
(i) decision-making responsibility for:
(A)…
(B)a crisis and counselling service that specialises in domestic violence;
that has a collective decision-making structure; and
(ii) responsibility for matters concerning domestic violence within the operations of that refuge or crisis and counselling service
The applicant sought to satisfy the requirements of this regime by presenting reports from “competent persons” namely, Dr Ben Teoh, MBBS (UNSW) MPsych (UNSW) FRANZCP FAChAM (RACP) (Consultant Psychiatrist and Physician in Addiction Medicine) (CB pp.232-234) and Dr Hany Hanna (MBBch, AMEC, D.A.(ENG)) (Registered Medical Practitioner) (CB pp.235-236). The qualifications and descriptions of both these doctors clearly place them within reg.1.21(1)(a)(i) as the category of “competent person”. This was clearly in breach of the requirements of reg.1.24(2)(a).
The Tribunal’s findings are set out in the decision under the heading of “Findings and Reasons” at paragraphs 40-44 inclusive. The Tribunal clearly stated its reason for the decision that the applicant was not able to satisfy the prescribed criteria for any Class BC visa and consequently a grant of that class of visa must be refused under s.65 of the Act (CB p.259). The Tribunal correctly applied the criteria of the Regulations and made reference to the authorities to support this interpretation. The Tribunal is not required to take any additional matters into consideration in its analysis and has not overlooked or incorrectly interpreted this regime.
Ground 1 of the applicant’s amended application alleged that the Tribunal fell into jurisdictional error on the basis that it accepted the letter to the Department by Claudine Mardini stating that the relationship with the applicant had ended and that the applicant was only with her to gain entry to Australia. The alleged error was that the Tribunal accepted the statement of Claudine Mardini without cross examination to verify this information. The ground was not particularised and it was not clear whether it was being suggested that Claudine Mardini or Raymond Mardini should have been formally subjected to cross examination under oath.
There does not appear to be a denial of any party that the marital relationship of the couple has broken down or that there was a possibility of any reconciliation. A statutory declaration of Raymond Mardini confirmed the breakdown of the marriage and there was no suggestion by the applicant at any stage that this was not the case. The decision of the Tribunal was not based on any statement made by Claudine Mardini. The suggestion that the applicant had used the marriage to circumvent the immigration policy of this country was not a determining factor in the Tribunal’s decision making process. The Tribunal accepted the martial relationship between the Mardinis had broken down and played no part in the decision as to the eligibility of the applicant being granted a visa. This ground has no relevance in the decision and cannot be maintained.
Ground 2 suggested the Tribunal made a jurisdictional error because it took evidence from the applicant and his brother-in-law and that evidence was not properly tested in an evidentiary sense. The relevance of this ground was not clear as this information was not used by the Tribunal in its decision making process. The regime for testing whether the applicant was a victim of domestic violence is set out in Division 1.5 of the Regulations and those requirements were adhered to and correctly applied. The issues raised in this ground are not relevant to the Tribunal’s decision and the ground cannot be sustained.
Ground 3 of the application was at issue with paragraph 18 of the Tribunal’s decision which stated:
“The visa applicant confirmed that his former spouse was still alive and that he had no children either from that relationship or any other.” (CB p.254)
The issue raised by the applicant appeared to be a misunderstanding of that statement. It was purely procedural in nature and had no bearing on the Tribunal’s decision.
Ground 4 of the application raised issues that are not within the powers of the Tribunal to consider when faced with a claim of domestic violence in a spousal relationship. The Tribunal correctly recorded the Federal Court decisions in the matters of Meroka v Minister for Immigration & Multicultural & Indigenous Affairs and Ibrahim v Minister for Immigration & Multicultural & Indigenous Affairs that state it is not the role of the Tribunal to assess the credibility of claims of domestic violence being made by an applicant. The role of making an assessment as to the truth or otherwise of a claim has been entrusted through the operation of reg.1.23 to competent persons. This approach has been affirmed by the Full Court in Cakmak at [49]:
"The correct question for the Tribunal to ask itself here is: Has there been presented the evidence called for by regs 1.23(1)(g), 1.23(2)(b), 1.24, 1.25 and 1.26?"
This ground cannot be maintained.
Conclusion
As the grounds in the application are general and without particularisation, I have not been able to identify any ground that the Tribunal has committed a jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005