MZAEU v Minister for Immigration

[2015] FCCA 2612

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2612

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – ground of application allegation that Tribunal failed to consider claim relating to relocation within Pakistan – whether claim was sufficiently clearly articulated – whether claim of lack of kinship support was put only as
a subset of employment difficulty – kinship claims analysed by Tribunal in terms in which applicant advanced them – bias – Tribunal constituted by same person who previously found against the applicant – whether member free of prejudgment – no objection taken during hearing or in written submissions thereafter to the constitution of the Tribunal – bias objection waived – Tribunal’s reasons not indicative of bias in any event. 

Legislation:

Migration Act 1958, s.36(2)(aa)

MZZQV v Minister for Immigration and Border Protection [2015] FCA 533
Smits v Roach (2006) 227 CLR 423
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Applicant: MZAEU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1028 of 2014

Judgment of: Judge Burchardt

Hearing date: 11 August 2015

Date of Last Submission: 11 August 2015

Delivered at: Melbourne

Delivered on: 7 October 2015

REPRESENTATION

Counsel for the Applicant: Mr Hosking

Solicitors for the Applicant: HWL Ebsworth Lawyers

Counsel for the Respondent: Ms Symons

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. The Application is dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1028 of 2014

MZAEU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed 30 June 2015, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 28 April 2014.  The Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant

   
   

   a Protection (Class XA) visa.

2. The two grounds of application assert jurisdictional error on the part

   
   

   of the Tribunal arising out of a failure to consider the applicant’s claim that it would be unreasonable for him to relocate within Pakistan because he would be without traditional support mechanisms in the prospective area of relocation, and, secondly, an assertion

   
   

   of apprehended bias.

3. For the reasons that follow, I do not think that these criticisms are made out and the application will be dismissed.

The Background to the Application

1. This application has had a relatively lengthy history.  An initial application to the Tribunal led to an application to this Court.  On

   
   

   6 September 2013, the Court, as presently constituted, quashed the Tribunal’s first decision and remitted the matter to it to be determined according to law.  The essential reason for the decision was that

   
   

   I concluded that the Tribunal had failed to consider a claim on the applicant’s part, sufficiently clearly articulated, that he was at risk

   
   

   in Karachi not just in relation to convention grounds, but in relation

   
   

   to endemic violence more broadly.

2. It should be noted that the first Tribunal hearing found the applicant to be generally credible.  His claim was unsuccessful because the Tribunal found that he could relocate to Karachi.

3. It should further be noted that no objection was taken to the present application being heard and determined by me.

The Materials Filed in Support of the Second Review Application

1. The applicant’s legal advisers, whom it should be noted have acted for the applicant throughout both sets of review applications, forwarded written submissions by letter, dated 13 November 2013.  They run from Court Book (“CB”) 262-286.  They are not in the same terms as the submissions to the first review application dated 19 October 2012 (CB158-181) but there is inevitably an area of overlap.

2. The written submissions commencing at CB262 refer to the applicant’s fears of persecution based upon his religion (Shia Muslim), his membership of a particular social group (Shia members of the Bangash tribe), and his imputed political opinion of opposition to the Taliban.

3. The submissions continue by traversing the decision of the delegate and of Mr Millar, the person who constituted the Tribunal during the first review application (and as it transpired, the second review application also).  The submission pointed to the decision of this Court paragraph 6, CB263, and went on to address in considerable detail the question of relocation.  It should be noted that while relocation was touched on in the submissions to the first review application, the submissions were essentially concerned with the alleged risks of violence throughout Pakistan.  The submissions made to the second review application put the matter slightly differently.

4. The submission at paragraphs 7-10 (CB264) repeats the claims that the applicant would face persecution throughout Pakistan and that, as a result, the issue of relocation does not arise.  Detailed material was annexed regarding the security situation in Karachi, Rawalpindi and Islamabad and about persecution of Shias in Pakistan.

5. At paragraphs 11-15, CB264-266, the submission deals with the matters that stand at the heart of this application.  Although it is

   
   

   a relatively lengthy extract, it is appropriate to set that out in full:

   “11.  In the event that the Tribunal does not accept that

   
   

   Mr Hussain will be persecuted throughout Pakistan, we submit that internal relocation would be unreasonable in light of

   
   

   Mr Hussain’s personal circumstances – beyond his Convention-based claims.  According to the UNHCR’s Eligibility Guidelines, the following factors must be taken into account in determining whether internal relocation is ‘reasonable’ in an applicant’s individual circumstances:

   (i) the availability of basic infrastructure, access to essential services, such as sanitation, health care and education,

   
   

   as well as food security in the prospective area of relocation;

   (ii)    the availability of traditional support mechanisms, such as relatives and friends, in the area of prospective relocation;

   (iii)   the availability of the displaced individuals to sustain themselves, including livelihood opportunities;

   (iv)    the presence of landmines and unexploded ordinance;

   (v)     the criminality rate and resultant insecurity, particularly in urban areas; as well as

   (vi)    the scale of displacement in the area of relocation.

   12.  It is our submission that relocation would be unreasonable in light of Mr Hussain’s particular circumstances.  In particular, we note the following:

   a.  Mr Hussain instructs that he has no family outside Parachinar in Pakistan.  Aside from representing

   
   

   an absence of ‘traditional support mechanisms’ in itself,

   
   

   a lack of kinship or family connections upon which to draw will severely restrict his ability to access employment opportunities.

   b.  Mr Hussain instructs that he has no friends remaining outside Parachinar or Peshawar in Pakistan.

   c.  Mr Hussain instructs that he has never been to Karachi, and is unfamiliar with the city; he instructs that all he knows of the city is that it is violent, and that its Shia residents (particularly those from Parachinar) suffer discrimination and violence.  In light of his unfamiliarity with the city,

   
   

   his ability to find employment will be severely limited;

   
   

   in particular, his prospects for working as a taxi driver in

   
   

   a city which he has never visited, and with which he

   
   

   is unfamiliar, in the absence of familial or personal connections to help him secure such work, must be deemed remote.

   d.  Mr Hussain further instructs that he has never been

   
   

   to Islamabad or Rawalpindi.  As above, this will significantly limit his ability to find employment in either city (particularly as a taxi driver, an occupation which depends to a significant extent upon knowledge of the roads and districts of the location in question).

   e.  Mr Hussain also notes that although he speaks some Urdu, the dialect he uses is different from the Urdu spoken in places outside of Parachinar.  He believes this would make it difficult to communicate and also mark him as an outsider, thus making it hard to relocate or find employment in a place such as Karachi, Islamabad or Rawalpindi.

   13.  We further submit (in line with the Federal Circuit Court’s findings and in light of the UNHCR Eligibility Guidelines’ emphasis upon ‘the criminality rate and resultant insecurity, particularly in urban areas’) that relocation is ‘unreasonable’

   
   

   in the present case in light of widespread civil unrest and violence in Pakistan (even that which may affect Mr Hussain for non-Convention-based reasons).  We have provided independent country information with regard to such violence below

   
   

   in ‘Annex 1: Security Situation in Karachi, Rawalpindi and Islamabad’.

   14.  Kinship links, and networks of patronage and friendship, are crucial to survival in Pakistan.  Absent the presence of friends and family, Mr Hussain will be even more exposed to sectarian violence or terrorist attacks, regardless of where in Pakistan

   
   

   he should seek refuge.  Such kinship links are also Mr Hussain’s greatest guarantor of employment, shelter, and access

   
   

   to government services, necessary for his survival.

   a.  In his book Pakistan:  A Hard Country (2011), Anatol Lieven stresses the continuing role of tribal and clan links

   
   

   in ensuring personal safety and economic security

   
   

   in Pakistan.  He quotes a landowner-politician on the importance of these links:

   “This is hard country.  You need family or tribal links to protect you, so that there are people who will stick with you and sacrifice for you whatever happens.  That way you will not be abandoned even when out

   
   

   of government.  The tribal people gives even ordinary tribesmen some strength and protection against attack, whether by dacoits, the police, the courts – your tribesmen will get you out of jail, lie for you to the court, avenge you if necessary.”

   b.  Lieven confirms this assessment, stating that ‘in a violent society in which none of the institutions of the state can

   
   

   be relied on to act in accordance with their formal rules, close relations with kinsfolk are essential for help against rivals, against the predatory and violent police, in the courts, in politics, and in the extraction of political patronage –

   
   

   all areas of activity which overlap and depend on each other.’

   c.  More pithily, Lieven observes ‘[t]hat kinship is of critical importance in Pakistan is something on which all the academic experts agree – which is nice, because they tend

   
   

   to agree on nothing else about the subject.’  He notes that this is especially true amongst Pakistan’s Pashtun population, for whom ‘tribal membership is a tremendously important marker of identity and status.

   15.  In a nation with a youth unemployment rate of 35% and

   
   

   a general unemployment rate of 15.4%, Mr Hussain’s prospects for finding employment – with no tribal or kinship connections to call upon, in a nation where such connections are crucially important – must be deemed bleak.”

6. The written submissions go on to deal with protection under the Refugees Convention and the complementary protection scheme arising from s.36(2)(aa) of the Migration Act 1958 (“the Act”).  They do not need further analysis for these purposes because the Tribunal accepted the applicant’s claims in this regard.

The Constitution of the Tribunal and its Decision

1. The second review application was heard again by Mr Millar, the person who had heard the first one.  It is fair to say that the materials sent by the Tribunal to the applicant and his representative (who attended the hearing with him) would not have revealed the fact that Mr Millar was to be the presiding member until the hearing itself.  Nonetheless, it must have been apparent to the applicant (or more probably his adviser) who Mr Millar was, and I note that no issue was taken with Mr Millar’s hearing of the matter in two post-hearing submissions sent by the applicant respectively on 5 February 2014 (CB310-311) and 21 February 2014 (CB312).

2. The Tribunal set out some introductory remarks (in part to which it will be necessary to return) and set out the relevant law at CB335-336.

3. The Tribunal then set out a paraphrase of the applicant’s claims for Convention protection at paragraph 9, CB336, and set out country information relied upon by the Tribunal at CB336-343.  At CB345, paragraph 42, the Tribunal considered whether the applicant would suffer serious harm in Parachinar and in the current agency and concluded:

   “The Tribunal has set out above more recent country information on the situation in that area and the Tribunal remains of the view that there is a real chance the applicant will suffer serious harm in that area on the same grounds.”

4. The Tribunal continued at paragraph 43:

   “Accordingly, the issue which falls for determination in this review is whether it may be reasonable for the applicant

   
   

   to relocate in Pakistan to a region where, objectively, there is

   
   

   no appreciable risk of the occurrence of the feared persecution.  The Tribunal assessed whether it may be reasonable for the applicant to relocate to Karachi in the event that, objectively, there is no appreciable risk of the occurrence of the feared persecution in that city.  In making this assessment the Tribunal has, as directed by the Federal Circuit Court of Australia, considered the prevalence of generalised violence in Karachi and its impact on the reasonableness of relocation (as opposed to considering only convention related harm).”

5. It is sufficient to say for these purposes that the Tribunal was not satisfied that the applicant faced a risk of harm in Karachi either on the basis of Convention related matters or otherwise.

6. The Tribunal went on to set out, at paragraphs 65-67 (CB350), matters germane to the present application.  The Tribunal said:

   “65.  The representative set out a number of factors to be considered in deciding whether relocation is reasonable.  Those factors included the availability of basic infrastructure and access to essential services; the availability of traditional support mechanisms; the ability of the displaced person

   
   

   to support themselves; the insecurity and level of crime in an urban area and the scale of displacement in the proposed site. 

   
   

   It was submitted that the applicant does not have family

   
   

   or friends outside his native area which will restrict his ability

   
   

   to access employment.

   66.  Country information was submitted to the effect that

   
   

   in Pakistan a person needed family or tribal links for protection including dealings with state agencies and that was

   
   

   so particularly in the context of the Pashtun population.  There is high unemployment in Pakistan and without kinship links

   
   

   he will not find employment in Karachi.  In the first review

   
   

   the representative submitted country information about poor living conditions faced by certain internally displaced families in Pakistan as at early 2012.

   67.  In terms of the ability to speak Urdu, at the first Tribunal hearing, the applicant claimed he could only speak a little bit

   
   

   of that language.  At the Tribunal hearing in January 2014

   
   

   he said that the Urdu he spoke was a different dialect from that spoken in Karachi.  The representative claimed that this would make it difficult for him to communicate.  Further,

   
   

   the representative submitted that the applicant had never been

   
   

   to Karachi and so could not work as a taxi driver there.”

7. The Tribunal findings are at paragraphs 70-71 where the Tribunal said:

   “70.  The Tribunal acknowledges the submissions and information put forward about the need for tribal or familiar links to assist in finding employment and in general living in Pakistan.  The Tribunal repeats its statement that it has no country information that Pashtun Shias are harmed in Karachi (including prevented from finding work and accommodation) and the only information it does have indicates that that such people are living in that city and studying there.  The applicant himself

   
   

   is relatively well educated and has previous employment experience as a driver.  While he may have difficulty working as such in Karachi as he is unfamiliar with that city the Tribunal still considers that this applicant should be well placed to be able to find employment and accommodation there.

   71.  While the applicant claims that the Urdu he learned when he lived in Pakistan is different from that spoken in Karachi, the fact remains it is still the Urdu language and the Tribunal does not accept that this will be an impediment to him being able

   
   

   to live in Karachi.  He also speaks Pashto and there is a sizeable Pashtun population there.  While he claimed that he could speak Urdu when he learned that language at college in school and does not speak it now the Tribunal is not satisfied that he would be unable to draw on his language skills that he learned to be able to communicate in Karachi.  Similarly, the Tribunal does not accept the applicant’s present anxious mental state would make it not practicable for him to settle in Karachi.”

8. When considering the complementary protection regime, the Tribunal referred to relocation at paragraphs 78-79 (CB352) as follows:

   “78.  In the context of assessing whether it is reasonable for the applicant to relocate to Karachi, in essence, for the same reasons the Tribunal finds it reasonable to expect him

   
   

   to relocate there in the context of the Refugee Convention,

   
   

   it finds it is reasonable to expect him to relocate there in the context of the complementary protection criteria.  As stated above, the risk of the applicant suffering harm in Karachi because of generalised violence and crime is remote and such violence (political and sectarian) and crime does not render relocation to Karachi as being not reasonable.  Again the Tribunal remains of that view notwithstanding claims made about deteriorating security and militants attacking government targets. 

   79.  Karachi remains the commercial centre of Pakistan notwithstanding this violence and crime and those difficulties will not prevent the applicant from finding accommodation and employment there which he should be well placed to do given his past employment experience; language capacity and his level of education.  For these reasons the Tribunal finds that

   
   

   it would be reasonable for the applicant to relocate to Karachi where there is not a real risk he will suffer significant harm and, so, there is taken not to be a real risk he will suffer significant harm in Pakistan.”

Ground 1

The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to consider the applicant’s claim that it would be unreasonable for him to relocate within Pakistan because he would be without traditional support mechanisms in the area of prospective relocation.

1. The essential point made in the applicant’s oral submissions is that indicated by the written submissions at paragraphs 31-34 as follows:

   “31.  The applicant submits that the Tribunal failed to consider the applicant’s claim that it would be unreasonable for him

   
   

   to relocate within Pakistan because he would be without traditional support mechanisms in the area of prospective relocation.

   32.  The Tribunal recorded the applicant’s claim (at [65]-[66]), and acknowledged it (at [70], but then made no further reference to the applicant’s lack of kinship or family connections in Karachi.  By contrast, the Tribunal made specific reference

   
   

   to the applicant’s other arguments.  In particular, the Tribunal considered the applicant’s arguments that it would be unreasonable  for him to relocate to Karachi because of:

   (a)discrimination against Shias (and, more specifically, against Shias of Pashtun ethnicity) in Karachi (at [64] and [70]);

   (b)     the applicant’s unfamiliarity with Karachi (at [70]);

   (c)     the applicant’s limited ability to speak Urdu (at [71]);

   (d)     the applicant’s anxious mental state (at [71]); and

   (e)the violence and decreasing security in Karachi and Pakistan generally (at [72]-[73] and [78]-[79].

   33.  The applicant submits that, by merely recording and acknowledging the applicant’s claim without analysing it or resolving it, the Tribunal failed to consider that claim.

   34.  The Tribunal’s comments that there are Pashtun Shias living and studying in Karachi (at [70]), and that the applicant is relatively well educated and has previous employment experience as a driver (at [70]), do not amount to consideration of the applicant’s claim.”

1. The written submissions continue on at paragraph 36:

   “The fact that other Pashtun Shias live and study in Karachi says nothing about whether it would be reasonable for the applicant to relocate there, without the emotional support provided by kinship and family connections.  Similarly, the fact that the applicant is relatively well educated and has previous employment experience as a driver says nothing about his ability to live in Karachi without the traditional support mechanisms that friends and family provide.”

2. The written submissions go on to refer to a decision of the Federal Court in MZZQV v Minister for Immigration and Border Protection [2015] FCA 533.

3. The submissions of the first respondent concede that jurisdictional error may occur where there is a failure on the part of the Tribunal to deal with a claim clearly articulated.  Nonetheless, what was strongly submitted here was that when one looks at the material actually provided to the Tribunal to sustain this aspect of the claim, the claims about family support were all articulated in the context of possible difficulties in obtaining employment.

Consideration

1. In my view, the question that arises is whether the claim now relied upon by the applicant was sufficiently clearly articulated for it to have been an error of jurisdiction on the part of the Tribunal to fail to deal with it (if that is what it did).  The submissions of the applicant’s representative, at paragraphs 11-15 (set out in full earlier), initially set out the UNHCR Eligibility Guidelines at paragraph 11.  In paragraph 12, a list of matters was set out that was said to make it unreasonable for the applicant to relocate.  Those included the absence of family

   
   

   or friends outside Parachinar or Peshawar.

2. Nonetheless, the same paragraph 12 was concerned with the applicant’s likely difficulties in obtaining employment should he relocate

   
   

   to Karachi.  The absence of family and friends was clearly, in my view, at least open to the Tribunal to be concluded to be an interrelated matter.

3. The matters asserted at paragraph 14 are broadly put and show the difficulties of absence of kinship links in relation to “employment, shelter and access to government services”.  They are all put at a level of generality.  The matter is concluded at paragraph 15 of the submissions with a reference to the general unemployment rate and the fact that the applicant would find employment, without tribal or kinship connections to call on, extremely difficult.

4. The Tribunal dealt with various specific aspects of the problems the applicant faced (his language, his lack of Urdu, his lack of experience of Karachi and the like) in terms.  The Tribunal’s finding, at paragraph 70, referred to difficulties “in finding employment and in general living in Pakistan”.  The Tribunal clearly addressed this very much in the context of employment opportunity.

5. In the ultimate, on the facts as they were presented, I do not think that a separate claim of difficulty in relocation related solely to an absence of friends and family outside of Parachinar and Peshawar can be made out.  These matters were articulated only at a very general level and were, on the submissions as they were put, very clearly interrelated with the prospect of employment and likely employment difficulties.  As Barker J noted in MZZQV, at [68]:

   “a range of issues may become relevant to the question

   
   

   of whether internal relocation is reasonable, depending on the circumstances and the issues raised by an applicant for refugee status, and, when they do, must be carefully regarded by the decision-maker.”

6. The decision in that case turned on its own facts and I note that, at [94], his Honour described the matter as “not an easy matter to determine on appeal”.  His Honour found that in that case it was not open to infer that the Tribunal had considered all of the material matters raised by the applicant (at [100]).

7. In this case, to the contrary, I think that the matters raised by the applicant were dealt with by the Tribunal in the terms in which he himself had put them.  It follows that the Tribunal did not fall into error in this regard.

Ground 2

The decision of the Tribunal was affected by jurisdictional error, in that, in the circumstances, a fair minded and reasonably well informed observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the decision.

The Parties’ Submissions

1. Here, there were three matters emphasised in oral submissions.  First; the same Tribunal member heard the case.  It was conceded that this was known to the applicant.  Second; it was submitted that there was a similarity of findings in the two decisions.  Third; the applicant pointed to the language in the second decision noting that, for example,

   
   

   at CB349, paragraph 58, the Tribunal said:

   “However, the fact remains that much of the sectarian violence in that city takes place between extremist groups themselves

   
   

   (to which the applicant does not belong) and the pattern

   
   

   of attacks on Shias, being on occasions where large numbers

   
   

   of them are likely to gather, and the numbers harmed, considered in the context of the size of the Shia population in Karachi, still leads the Tribunal to consider that the risk of the applicant suffering serious harm in that city because of his religion is remote.”

2. Counsel submitted that the use of the word “still” suggested that the Tribunal had already determined the matter prior to hearing.

3. Similarly, at paragraph 61 (CB349), the Tribunal said:

   “However, the Tribunal does not consider these trends take place at a rate that would cause the Tribunal to depart from its view that the risk of the applicant suffering serious harm in Karachi is remote.”

4. Once again, it was submitted that this showed pre-judgment.

5. The written submissions of the applicant traverse in more detail the areas of the Tribunal’s first and second decisions where conclusions were repeated and further refers to authority suggesting that it is generally undesirable for the same Tribunal member to hear a matter remitted for re-hearing.

6. The submissions of the first respondent first strongly submitted that it was simply too late for the applicant now to raise the question of bias constituted by the fact that the same Tribunal member conducted both hearings.  Reference was made to Smits v Roach (2006) 227 CLR 423 at [43] (a case handed up by counsel for the applicant) where Gleeson CJ, Heydon and Crennan JJ observed that objection on the ground

   
   

   of apprehended bias may be waived if a litigant who is aware of the circumstances constituting a ground for such objection fails to object.

7. It was further submitted that a fair reading of the Tribunal’s decision would show that the Tribunal member did properly address his mind

   
   

   to the matter anew.  The written submissions pointed to new country information being referred to and considered, reference to and consideration of the applicant’s submissions relating to increased attacks on Shias across Pakistan and similar reference to and consideration of the applicant’s submissions and country information concerning the deterioration of security in Pakistan generally.

Consideration

1. Put shortly, I think that the first respondent’s submission about waiver is substantially correct.  The applicant and his representative knew that the same Tribunal member was hearing the matter at the second review.  No application was made at the time or in the subsequent written submissions forwarded to the Tribunal.  Consistent with the judgment of the High Court in Smits, any objection had been waived.

2. Furthermore, as the first respondent’s written submissions point out, the Act authorises the Tribunal to continue to review the decision to conclusion, even though the particular member has determined the matter previously (Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [26]-[27]).

3. Furthermore, although the Tribunal did indeed refer to the proceedings from the first review application, this was, in the circumstances, anything other than surprising.  The materials before the Tribunal would have included the first review application, whoever sat on the second one.

4. While there are several instances, itemised above, in which the applicant is correct to say that the Tribunal arrived at the same conclusion it had previously reached, adverse to the applicant, I have already set out a similar conclusion favourable to the applicant that the Tribunal repeated.

5. In my view, the use of the two phrases to which objection is taken

   
   

   is really all that the applicant can point to, other than the constitution

   
   

   of the Tribunal by the same member.  As I say, a fair reading of the Tribunal’s decision, in my view, shows that the Tribunal applied itself in a fashion that would not lead an informed lay observer to conclude that the Tribunal member’s mind was not open to persuasion.  The Tribunal was conscious of the matters raised by this Court’s decision remitting the matter to the Tribunal, and, as I would read it, conscientiously applied itself to the matters that the applicant raised in a fashion that was fair.

Conclusion

1. The grounds of application not having been made out, it follows that the application must be dismissed with costs. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date: 7 October 2015