Meng v MIAC

[2007] FMCA 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MENG v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 173

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Partner (Migrant) (Class BC) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.46, 47(3), 65, 67, 68, 69, 101, 105, 109, 359A, 483A
Migration Regulations 1994 (Cth), reg.1129(1), 1220A

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Guo & Anor (1997) 191 CLR 559
NADR v Minister for Immigration [2003] FCAFC 167
SAAP v Minister for Immigration [2005] HCA 24
SCAA v Minister for Immigration [2002] FCA 668

Applicant: SU PING MENG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 877 of 2005

Judgment of: Lloyd-Jones FM

Hearing date: 4 October 2006

Delivered at: Sydney

Date of Last Submission: 12 December 2006

Delivered on: 23 February 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Mandarin interpreter

Counsel for the Respondents: Ms T Wong

Solicitors for the Respondents: Ms E Palmer, Clayton Utz Solicitors

ORDERS

1. The Migration Review Tribunal is joined as the second respondent.

2. The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

3. The application filed on 11 April 2005 is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 877 of 2005

SU PING MENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 April 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 18 March 2005, affirming a decision of the delegate of the first respondent made on 25 November 2003, to cancel the Partner (Migrant) (Class BC) visa held by Ms Meng. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

2. The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

1. The Tribunal decision of Maritsa Eftimiou, reference N03/08015, contains the following background information.  The applicant applied for a subclass 309 (spouse) visa on 16 November 2000 on the basis of her spousal relationship with Mr Simo Ninkovic (the sponsor).  The applicant claimed to have been introduced to Mr Ninkovic by her brother-in-law in 1997 or 1998.  They maintained regular contact by telephone and began correspondence in mid-1999.  In Spring 2000, the applicant claimed that she and Mr Ninkovic discussed marriage and they decided to marry in August 2000.  She claimed to have first met Mr Ninkovic in person in September 2000 and they married on 29 September 2000 in Shanghai, China.  On 3 October 2001, a delegate of the first respondent refused to grant the spouse visa on the basis that the delegate was not satisfied that the relationship was genuine and continuing.  Mr Ninkovic lodged a review with the Tribunal on 9 December 2001 and the case was remitted by the Tribunal to the Department of Immigration on 2 April 2003.  The applicant was granted a Partner (Migrant) (Class BC) Subclass 100 visa on 30 May 2003 and entered Australia on that visa on 15 June 2003.(Court Book (“CB”) 213-214)

2. On 28 July 2003, the applicant’s son was granted a subclass 101 (Child) visa.  On 3 August 2003, the applicant departed Australia and returned with her son on 24 August 2003.  The applicant and her son declared on their incoming passenger cards that they would reside at an address in Cheltenham.(CB 214)

3. On 8 August 2003, the Department received information alleging that the marriage between Ms Meng and Mr Ninkovic was contrived for migration purposes.  On 20 August 2003, the Department visited a Croydon Avenue address, which was the postal address listed by the sponsor on his sponsorship form.(CB 214)  The residents at that address did not know the sponsor and said that they had lived there since May 2003.  On 21 August 2003, the Department visited a Knox Street address, which was also an alleged address of the sponsor.  Again, the sponsor was not known at that address.(CB 135-137) 

4. On 21 August 2003, the Department visited the Cheltenham address.  The officers spoke to the applicant’s sister and brother-in-law who resided at that address and were advised the applicant was currently in China and expected to return the following month with her son.  They also stated that the applicant resided with her sponsor in the Ashfield area, but would not provide an address or contact details.(CB 215)

5. On 3 October 2003, a Notice of Intention to Consider Cancellation under s.109 of the Act was issued to the applicant on the ground that she had not complied with ss.101 and 105 of the Act. The visa applicant was invited to comment on the possible grounds for cancellation, by 24 October 2003. On 14 October 2003, the applicant responded to the notice.(CB 127) On 25 November 2003, the Department notified the applicant that her visa had been cancelled pursuant to s.109 of the Act for failing to comply with ss.101 and 105 of the Act.(CB 144)

6. On 28 November 2003, the applicant filed an application with the Tribunal for review of the decision to cancel her visa.(CB 155-160) The applicant submitted with her application a number of documents including submissions on why the delegate’s decision was incorrect.(CB 7-27) On 5 October 2004, the Tribunal sent a letter to the applicant pursuant to s.359A of the Act inviting the applicant to comment on certain information.(CB 184-187) On 14 October 2004, the applicant responded to the Tribunal’s request by facsimile.(CB 189-190)

7. On 11 January 2005, the Tribunal invited the applicant to a hearing to be held on 18 March 2005, which the applicant attended.(CB 197-198; 217)  On 18 March 2005, the Tribunal notified the applicant of its decision affirming the cancellation of the applicant’s visa.(CB 204)

Tribunal’s Findings and Reasons

1. A convenient summary of the Tribunal’s findings and reasons was contained in the respondent’s written submissions of 27 September 2006 and prepared by Ms Wong.  I adopt paragraphs 10 to 14 of those submissions:

   10.The MRT commenced its decision by setting out the legislation and policy applicable to the review: CB 207-213. The MRT then set out the evidence on file and the evidence presented by the Applicant in support of her application for review: CB 213-218.

   11.The MRT first considered whether the Applicant complied with s.101 of the Act: CB 219. The MRT was satisfied that the Applicant and her sponsor did not reside together in a genuine spousal relationship when the Applicant entered Australia for the Following reasons (CB 219-220):

   (a) there was little evidence before the MRT that the Applicant resided with the sponsor at his address in Ashfield upon her arrival in Australia

   (b) to the extent that there was evidence before the MRT that the Applicant and the sponsor resided together at an address in Campsie sometime after September 2003, the MRT placed little weight on that evidence, because the Applicant was aware at that time that the Department were making enquiries with respect to the genuineness of the relationship;

   (c)there was little evidence of the pooling of financial resources between the Applicant and the sponsor;

   (d)there was little evidence of the nature of the household of the Applicant and the sponsor, or of the social aspects of the relationship;

   (e)the MRT was not satisfied that the Applicant and the sponsor had a mutual commitment to a shared life as husband and wife; and

   (f)the Applicant had no intention of residing with her sponsor on returning to Australia and intended to reside with her sister.

   12. The MRT was therefore satisfied that the Applicant breached s.101 of the Act, as she never intended to maintain a lasting relationship with the sponsor: CB 220. The MRT was not satisfied that the Applicant breached condition 105 of the visa by providing incorrect information regarding the sponsor’s employment: CB 220.

   13.The MRT then reviewed each of the prescribed circumstances to be considered when deciding whether or not to cancel a visa under s.109 of the Act: CB 221-222. The MRT also considered the effect upon the Applicant’s son if the Applicant’s visa was cancelled, and determined that there was little evidence before the MRT of any effect that the cancellation of the Applicant’s son’s visa would have upon him: CB 222.

   14. The MRT affirmed the decision under review that the Partner (Migrant) (Class BC) visa held by the Applicant be cancelled: CB 222.

Application for Review of the Tribunal’s Decision

1. On 11 April 2005, the applicant filed an application for review under s.39B of the Judiciary Act. On 27 June 2005, the applicant filed an amended application which set out the following grounds:

   MRT failed to assess wather the delegate of Minister raised reasonable grounds for cancelling my permanent resident visa.

   MRT failed to exercise its jurisdiction as it failed to prove my trye relationship with my husband. The Tribunal made jurisdiction mistakes in saying “The Tribunal places little weight on this evidence, because the review applicant was aware at this time that the Department were making enquires in regards to the genuineness of the relationship. The Tribunal is of the view that the parties made arrangements to reside together at the end of August 2003 because of their concern regarding the Department’s enquiries.” I believe that the above statement was induced by the actual bias of the officer. Please refer to attachment 1 for evidence about my pregnancy with my husband. We have real relationship and I am pregnant with my husband’s child, I am pregnant because we love each other, not because our concern regarding the Department’s enquiries.

   The Tribunal also stated: “ No evidence has been provided from family and friends attesting to the genuine nature of the relationship between the review applicant and the sponsor when the sponsor first arrived in Australia. The Tribunal has placed little weight on the evidence provided from the review applicant’s teachers and neighbours for the period when she was residing with the sponsor at the Croydon. The Tribunal accepts the review applicant and the sponsor resided together at Croydon from 09/03 to 11/03 but is of the view that the relationship was contrived.” I believe that the above statement was induced by actual bias of the officer, a serious jurisdition mistake that MRT made. Please refer to Attachment 2 for evidence from family and friends attesting to the genuine nature of the our relationship between me and my husband.

   The Tribunal failed to consider my claims.

   I will provide more details to support my judicial review application in my outline of submission. (copied without alteration or correction)

2. Attached to the amended application are various documents in support of the applicant’s grounds.  These attachments include:

   a)Letter from Dr C Tan of Associated Medical Centre;

   b)Letter from Sonya Ninkovic (daughter of Simo Ninkovic);

   c)Letter from Goran Ninkovic (son of Simo Ninkovic);

   d)Letter from Simo Ninkovic (husband of Su Ping Meng);

   e)Letter from Dusan Ninkovic (brother of Simo Ninkovic);

   f)Letter from Maria Sabic (sister of Simo Ninkovic); and

   g)Christmas card from Simo Ninkovic to Su Ping Meng.

Submissions and Reasons

1. During the preparation of these reasons, I became concerned whether the applicant was validly granted the subclass 100 visa in lieu of the subclass 309 visa.  Consequently, I requested submissions in relation to whether the grant of the subclass 100 visa instead of the subclass 309 visa raised any issues in relation to the real status of the visa and the effect of the cancellation on that visa.

2. In the written submissions prepared by Ms Wong in respect of whether the subclass 100 visa was validly granted, it is submitted that even though Ms Meng did not meet the criteria for the grant of that visa as she did not hold (and had not held) a subclass 309 visa, once granted, and until cancelled or set aside, the visa remains in effect and “valid”. This is by reason of construction of the Act. In particular, s.46 of the Act provides that:

   …an application for a visa is valid if, and only if:

   (a)     it is for a visa of a class specified in the application.

   If the application for the visa is invalid, it cannot give rise to an obligation under s.65 for grant of the visa: ss.46 and 47(3) of the Act.

3. Once the Minister is satisfied that the criteria for the grant of the visa is met, she is to grant the visa: s.65(1). If she is not satisfied, she is not to grant the visa: s.65(2). However, a visa has effect as soon as it is granted: s.68(1). A visa is granted by “causing a record of it to be made”: s.67. Section 69 of the Act provides that:

   non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

   The effect of s.69 is that a visa, once granted, continues to be valid unless and until it is set aside: Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57.

4. The respondents submit that the Court is not required to consider whether the applicant had made an application for the subclass 100 visa or whether her subclass 309 visa application could be said to be such an application, it is noted that both the subclass 100 and the subclass 309 visas require an application to be made on either Form 47 or Form 47SP: see Items 1129(1) and 1220A of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”). In addition, an application for the subclass 309 visa “must be made at the same time and place as an application for a Partner (Migrant) (Class BC) visa”: Item 1220A(3)(c) of Schedule 1 to the Regulations. As the subclass 100 visa was a valid visa as it was “in effect” at the time of cancellation, it was open to the delegate and the Tribunal to use any of the cancellation powers derived from Division 3 of the Act. The cancellation powers set out in that Division are applicable to all visas, including visas where the decision to grant the visa was, or may have been, affected by a jurisdictional error.

5. Accordingly, the Tribunal decision to affirm the cancellation of the visa under s.109 of the Act was open to it. It cannot be vitiated by its failure to consider any other grounds of cancellation (which were not raised) and which, in any event, would only have led to the same outcome.  The grant of the subclass 100 visa instead of the subclass 309 visa means that the subclass 309 visa application remains undetermined.  That application being a valid application is required to be considered by the Minister until, as per s.47(2):

   (a)     the application is without; or

   (b)     the Minister grants or refuses to grant the visa; or

   (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

   Ms Wong submits that the Department is aware that the subclass 309 visa application is still to be determined and will process that application.

6. It is submitted that the grant of the subclass 100 visa, in lieu of the subclass 309 visa, did not ultimately affect the power and/or decision to cancel that visa pursuant to s.109 of the Act. It is submitted that the Tribunal did not commit any jurisdictional error in proceeding in the manner in which it did.

7. The applicant is a self-represented litigant who appeared with the assistance of a Mandarin interpreter.  The applicant appeared in person at the first Court date before Registrar Tesoriero and consented to orders setting out a timetable for these proceedings.  The applicant complied with the order to file an amended application but no written submissions were filed.  When the applicant was invited to give oral submissions in support of her application, she indicated she believed that the Tribunal had acted unfairly.  She indicated that she and her sponsor had rented a property in Campsie and that they had lived there together.  However, the Tribunal had found that they had lived separately.  The applicant indicated that her teacher, neighbour and classmates were willing to support her claims that she was living with her husband at the Campsie address.  I note that the statutory declarations submitted by the applicant in her amended application do not include any such material from this class of individuals.

8. The applicant advised the Court that she had lived in Ashfield with her sister for a brief period upon her return from China and before she and her husband were able to rent the Campsie property.  During this time, she intended to find work with her sister’s assistance.  However when she left Australia to return to China to collect her son, her husband lost his job and became unemployed.

9. The applicant then explained that the husband’s unemployment led to his developing a drinking problem which necessitated her obtaining two Apprehended Violence Orders (AVOs).  The applicant also indicated that she had spoken to her husband’s former wife, daughter and son who advised her that her husband had had a drinking problem which ultimately led to the divorce between him and his former wife.

10. The applicant advised the Court that it was difficult for her as a woman in her mid-forties from a foreign country and whose husband had lost his job, to look for work.  This had a direct impact on her teenage son, whose school work was suffering due to their problems.

11. Ms Wong, appearing for the respondents, indicated that she would rely upon her written submissions of 27 September 2006 and prepared in response to the amended application.  The grounds of review raised in the amended application can be effectively summarised as:

    a)The Tribunal was biased towards the applicant (“ground one”); and

    b)The Tribunal failed to consider the applicant’s claims (“ground two”).

    Ms Wong indicated that she would address the Court on the two new matters raised by the applicant in oral submissions.

12. In respect of ground one, which raises the issue of bias, Ms Wong submits that the applicant claims that the Tribunal was biased towards her by making the following finding:

    The Tribunal places little weight on this evidence, because the review applicant was aware at this time that the Department was making enquiries in regard to the genuineness of the relationship.  The Tribunal is of the view that the parties made arrangements to reside together at the end of August 2003 because of their concern regarding the Department’s enquiries.(CB 219)

    The applicant also claims that the Tribunal was biased in placing little weight on evidence provided by the applicant’s teacher and neighbours regarding the period she resided in Croydon. The applicant did not rely upon any material to support her allegations of bias, other than the Tribunal decision and other information, identified at [12] above, which was not available to the Tribunal at the time of its decision.

1. The authorities are clear that one cannot extrapolate bias from an adverse finding alone, see SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J:

   In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27] an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias."

2. Ms Wong submits that the Tribunal did make adverse findings against the applicant; however, these findings were open to the Tribunal and were a rational response to the evidence placed before it.  The applicant had not demonstrated any actual or apprehended bias, nor any jurisdictional error, on the part of the Tribunal.

3. In respect of the second ground, Ms Wong submits that the applicant’s claims that the “Tribunal failed to consider my claims”, but does not provide particulars of the claims which she says the Tribunal failed to consider. The Tribunal decision demonstrates that it carefully considered all of the applicant’s responses to the allegations made against her. The Tribunal sent the applicant a notice pursuant to s.359A of the Act which gave her full opportunity to put her case prior to the Tribunal reaching its decision. Ms Wong submits that no error has been shown in the Tribunal’s decision-making process.

4. In oral submissions, the applicant raised a matter not contained in her amended application.  It relates to three statutory declarations provided by the applicant in response to a request by the Tribunal on 28 November 2003 for any documents or further written arguments she may wish the Tribunal to consider but had not already provided to it or the Department.  Along with other documentation, the applicant provided the following three statutory declarations on 9 December 2003:

   a)The applicant’s neighbour, Ngdi Yung, declared on 8 December 2003;

   b)A teacher from Adult Migrant English Service (“AMES”), Isabel Salazar, declared on 8 December 2003;

   c)A classmate, also studying at AMES, Ping Su, declared on 8 December 2003.

5. The Tribunal dealt with these statutory declarations in the following manner:

   There is little evidence of the social aspects of the relationship. No evidence has been provided from family and friends attesting to the genuine nature of the relationship between the review applicant and the sponsor when the sponsor first arrived in Australia.  The Tribunal has placed little weight on the evidence provided from the review applicant’s teachers and neighbours for the period when she was residing with the sponsor at Croydon.  The Tribunal accepts that the review applicant and the sponsor resided together at Croydon from September until the sponsor was convicted and sent to jail in November2003. The Tribunal is of the view that the relationship was contrived at this point as the review applicant was aware of the Departments intention to cancel her visa. The review applicant has even evidence that she has met the sponsors family however no evidence has been provided to support her claim. The Tribunal notes that no photographs of the couple either alone or with family and friends have been provided to the Tribunal.(CB 219)

6. The other issue relates to the grant of the two AVOs against the sponsor.  In the applicant’s application to the Tribunal on 28 November 2003 provided the following comment, which is referred to in the Tribunal decision:

   Though their relationship is not stable at the moment it is genuine and continuing and they are both trying to maintain the relationship though there has been domestic violence and her husband is now being held by Police because he breached the conditions of an AVO taken out against him.  The delegate is wrong to think that their relationship is not genuine and continuing.(CB 217.5)

   At the Tribunal hearing held on 28 March 2005, the applicant gave evidence which included the following:

   Her son returned to China in February 2004 as the sponsor did not get on well with him.

   She is residing with a friend in Parramatta.  The sponsor resides in Bankstown. They are unable to live together because the sponsor has a drinking problem, however, she still considers that they are in a genuine spousal relationship.

   She resided with the sponsor at Evaline Street Campsie from early September 2003 until April 2004. The sponsor served two jail terms for assaults against her; he was last released from jail in April 2004. They have not resided together since that time.

   When she first arrived in Australia in June 2003 she lived with her spouse at his address in Ashfield but she would sometimes stay at her sisters house. She did not live permanently at the address in Ashfield as the lease specified that only one person could reside there and there were no cooking facilities.

   She stated that her spouse did not seek more suitable accommodation before she arrived in Australia because he enjoyed living in Ashfield as there were many people from Shanghai in the area and he liked Shanghai food.

   She stated that she did not seek more suitable accommodation after she arrived in Australia as she was not sure how long it would take for her son to arrive in Australia.

   Between the periods 15 June 2003 and 3 August 2003 the visa applicant and the sponsor divided their time between Ashfield and her sisters home in Cheltenham.(CB 218)

7. The conclusions that the Tribunal drew from this evidence are findings of facts, which were open to it on the evidence before it.  It is not for this Court to engage in a merits review of that fact finding operation.  NADR v Minister for Immigration [2003] FCAFC 167 at [9] states:

   …The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

   The Tribunal understood its task and proceeded to make findings on the evidence placed before it. There is no error apparent in the Tribunal’s reasons.  Essentially, the claims of the applicant in respect of the statutory declarations and the AVOs are attacks on the Tribunal’s findings of facts, which are not judicially reviewable.  Ms Wong submits that the issues raised by the applicant in these proceedings raise no jurisdictional reviewable question and I accept that submission.

8. In the applicant’s amended application, she claims that the Tribunal failed to understand her “true relationship” with her husband.  However, the relevant facts pertaining to the Tribunal application needed to be supplied by the applicant herself in as much detail as necessary to establish them.  It is for the applicant to make out her own case: Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. As the Tribunal only had before it the facts as alleged by the applicant and provided in writing and orally at the hearing, the Tribunal could only proceed on this material. The Tribunal accurately summed up the nature of the applicant’s claim. All of the matters taken into account by the Tribunal in arriving at its conclusion were probative of the issues before it: Kopalapillai v Minister for Immigration (1998) 86 FCR 547. Accordingly, the Tribunal made no error in its approach to reviewing the decision of the delegate. The Tribunal’s conclusion concerning the facts, including the plausibility of the applicant’s claims, were open to it and cannot be revisited.

9. The amended application also raised issues, such as the applicant’s pregnancy, that were not before the Tribunal at the time of its decision.  A clear example of this is a letter from Dr C Tan dated 4 June 2005, which was after the Tribunal hearing and could not be material which the Tribunal considered.  Similarly, the balance of the material attached to the amended application was not material made available to the Tribunal and formed no part of its decision-making process.

Conclusion

1. The applicant appeared at the hearing as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out.  Counsel for the respondents assisted the Court with written submissions which were supplemented by oral submissions in respect of the amended application, as well as further submissions in response to a request from the Court.  I am satisfied that none of the grounds identified can be sustained.  Neither is it apparent that any other ground of review exists that suggested the Tribunal made a jurisdictional error in its decision-making process.  The applicant’s claim should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  19 February 2007