MZXLD v Minister for Immigration and Anor (No.2) - [2007] FMCA 1267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXLD v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2007] FMCA 1267

MIGRATION – Protection visa – whether jurisdictional error – whether grounds of review can be relied upon if abandoned at earlier hearing – whether Applicant can rely upon new evidence at Court hearing – whether error by producing decision on same day of receipt of Applicant’s response to s.424A request – no error – application dismissed.

Migration Act 1958, ss.424A, 425

MZXLD v Minister for Immigration & Anor [2007] FMCA 442
MZXGK v Minister for Immigration & Anor [2006] FMCA 1469
Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483; [1998] FCA 1088

Applicant:

MZXLD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 874 of 2007

Judgment of:

McInnis FM

Hearing date:

21 March 2007

Date of last submission:

9 May 2007

Delivered at:

Melbourne

Delivered on:

3 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr D. Cheung

Solicitors for the Applicant:

Sky Legal

Counsel for the First Respondent:

Mr A.J. Palmer

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Amended Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 874 of 2007

MZXLD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Preliminary Issues

In these proceedings the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 24 May 2006. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa. The proceedings before this court were commenced by an application filed 11 July 2006. It is apparent that the grounds relied upon in the original application appear to be vague and without particulars. They appear to cover what might be described as a wide range of grounds often encountered in applications of this kind. The lack of particularity was self-evident when the proceedings commenced and it is noted that the First Respondent, in contentions filed 2 November 2006, significantly addressed the lack of particulars in the grounds then relied upon by the Applicant.
When the matter came before the court on 21 March 2007, the solicitor for the Applicant made application for an adjournment. The court rejected the application for an adjournment and determined that the Applicant had ample opportunity through legal representatives to properly prepare the case for hearing that day (see MZXLD v Minister for Immigration & Anor [2007] FMCA 442). However, the court then proceeded to make the following orders:
“1.The Applicant be granted leave to file and serve an Amended Application by 5.00pm on 28 March 2007.
2.The Applicant be granted leave to file and serve substituted Contentions of Fact and Law by 5.00pm on 28 March 2007.
3.The First Respondent be granted leave to file and serve substituted Contentions of Fact and Law by 5.00pm on 11 April 2007.
4.Liberty to apply is granted to the parties in relation to any matters arising out of these orders with any Application to be made by 5.00pm on 12 April 2007.
5.Pursuant to s.54 of the Federal Magistrates Act 1999 the Application shall be decided on the written submissions without an oral hearing unless otherwise ordered.
6.Costs of the First Respondent be reserved.”
I should add that during the course of the hearing, the court permitted the Applicant to amend the name of the First Respondent by deleting the words "Multicultural and Indigenous Affairs" and inserting, in lieu thereof, "Citizenship".
It will be noted from the orders made on 21 March 2007 that the Applicant was granted leave to file and serve an Amended Application. This occurred on 28 March 2007 and the following grounds appear in that document:
“1.THAT the decision of the Second Respondent is tainted by jurisdictional error, and is flawed depicting an apprehension of bias on the part of the Second Respondent entailing the Applicant being denied procedural fairness and Natural Justice.
2. THAT the Second Respondent has exceeded its jurisdiction in that the Second Respondent had taken it upon itself to make a professional judgment and decision when not qualified to do so and not competent as well to do so.”(sic)
During the course of the hearing on 21 March 2007, the Applicant's representative raised the issue of apprehended bias together with a request that the court permit the Applicant to adduce new evidence before the court. It was then noted that the original application referred to a claim of bias, though particulars, as indicated earlier, were not provided.
A matter of concern then raised before the court and pursued in subsequent submissions was the fact that the Tribunal decision is dated 24 May 2006 and records reveal that at 11.32 am on the same day, the Tribunal received a response from the Applicant to an invitation made by the Tribunal pursuant to s.424A of the Migration Act 1958 (the Migration Act) seeking comment on information. I shall refer to the submissions arising from the undisputed chronology of events later in this judgment.
In any event, the Applicant not only relied upon an Amended Application but also filed the following documents:
·Applicant's amended contentions of fact and law filed 28 March 2007.
·Submission in support of admission of new evidence and facts filed 28 March 2007.
·Applicant's reply to respondent's further contentions of fact and law filed 9 May 2007.
The First Respondent complied with orders made by the court on 21 March 2006 and filed what is described as "First Respondent's further contentions of fact and law" on 11 April 2007.
It should be noted that at the hearing on 21 March 2007 the court, in addition to rejecting the application for adjournment, was prepared to stand the matter down for approximately three hours to enable the Applicant's representative to prepare an Amended Application and make oral submissions. Ultimately, as demonstrated by the orders made on the date of the hearing, it was determined that the matter would proceed on written submissions. At one point the Applicant’s representative referred to that as being a "better" option.
The issue arising from the chronology of events is the date being the same of the decision of the Tribunal and receipt of the Applicant's response to the s.424A request. This was noted by the court to be always evident on the material, though apparently the Applicant's representative claimed he only realised it just two days before the hearing. The court somewhat reluctantly was prepared to grant an indulgence to the Applicant to provide written submissions together with the Amended Application.
It is also noted that in its decision refusing the adjournment, the court, although having heard some submissions in relation to the additional information sought to be relied upon, clearly indicated to the parties that it did not have a final view on that issue and was prepared to give both parties the opportunity to provide written submissions as to whether the court ought to permit the Applicant to rely upon information obtained after the hearing date.
When considering whether to grant leave to the Applicant to amend the grounds of the application, the following exchange occurred between the court and the Applicant's representative:
“HIS HONOUR: Let me see if I understand your grounds for the application for an adjournment. You want time to prepare an amended application, amended contentions, and the grounds for the application in part are that you want to expand on the ground in relation to apprehended bias and to show an error on the part of the tribunal in its reliance upon the DFAT report, in part based on information subsequently obtained by your client from Sri Lanka. Have I summarised it accurately?
MR CHEUNG: Very accurately, sir.”
(Transcript p.17 lines 35 – 43)
It was after that exchange that the court indicated a willingness to delay the commencement of the hearing.
It is also noteworthy that in the transcript, Counsel for the First Respondent relevantly stated, after hearing the application for adjournment and leave to file an Amended Application, the following:
“... it seems that the existing contentions are no longer relied on.”
(Transcript p.20 lines 25-26)
Following that comment from counsel, the following appears in the transcript:
“HIS HONOUR: … I don't think he abandons the contentions which were filed on 13 October but seeks to add to them in two ways: (1) he seeks to provide particulars of the ground of apprehended bias and (2) seeks to bolster the claim either of bias and/or that the tribunal took into account an irrelevant matter by arguing that there are subsequent facts to demonstrate reliance on the DFAT report occurred in a manner which may provide a basis for arguing jurisdictional error. That's all he's doing. I can hear argument about that I would have thought. Despite what your friend says about his being complicated, that part is not, but I might just ask him quickly whether he does abandon the contentions and whether I've accurately described what he now seeks to do. That might assist you.
…
HIS HONOUR:   I wouldn't get too troubled by that. If he wants to abandon them, he can. Let me ask you this. Your friend wants to know and is entitled to know, and I am entitled to know, is it your position that you abandon the contentions of fact and law filed by the applicant on 13 October 2006?
MR CHEUNG:   That is our intention, sir.
HIS HONOUR:   Is it?
MR CHEUNG:   Yes, it is our intention because I think the entire contentions there are actually not up to scratch, if I may say so.”
(Transcript p.10 lines 29 – 43 and p.21 lines 1 – 12)
Not surprisingly, the First Respondent, relying upon the exchange set out above, notes in its further contentions of fact and law filed 11 April 2007 that:
“… counsel for the applicant specifically and expressly stated in open court that the applicant no longer relied on the original grounds and contentions.”
The First Respondent then goes on to state:
“3. In light of the applicant's withdrawal of his original grounds and contentions, the first respondent did not make any oral submissions in support of its own previously filed contentions.”
The First Respondent then proceeds to deal with the Amended Application.
In my view the transcript of the earlier proceedings clearly reveals that the original grounds and contentions have been abandoned. Once abandoned, then it is not appropriate in my view for them to be resurrected in the manner now sought to be achieved simply by reference to those earlier grounds in subsequent contentions. To the extent, however, that an attempt has been made to otherwise rely upon the earlier unparticularised grounds, I conclude that there is no substance in those grounds and I am not satisfied that in any event they provide any or any proper basis upon which the court could conclude that there has been jurisdictional error. Hence, even if I am wrong in ruling that the Applicant should now be confined to the grounds set out in the Amended Application, having abandoned the earlier grounds and contentions, I would otherwise find in any event that for the reasons advanced in the First Respondent's further contentions of fact and law (paragraphs 27-38), that no error is revealed, arising out of the original grounds and contentions.
There remains for consideration another preliminary issue; namely, whether the Applicant should be permitted to rely upon new evidence before this court. The Applicant, in the document entitled, "Submission in support of admission of new evidence and facts" filed 28 March 2007, refers to the amended contentions of law and fact. The submission appears to claim that as a result of the allegation of jurisdictional error, including in part an apprehension of bias, the court ought to allow the Applicant to submit new facts and evidence in support of his case so that these issues can be canvassed equitably by this court, the rightful venue for redress at law which the Applicant is entitled.
Reliance was placed on a decision of this court in MZXGK v Minister for Immigration & Anor [2006] FMCA 1469 at [73] (MZXGK) where the court in part states, "the Tribunal has failed to discharge its duty" and at [76] further states, "which constitutes jurisdictional error".
Whilst the Applicant concedes that ordinarily in proceedings of this kind there is "no reason to allow a placing of new evidence before the court apart from the material that was before the decision-maker at the time of the decision", it was further submitted that the present case provides a basis for an exemption. Some reliance was placed upon the decision of Weinberg J in Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483; [1998] FCA 1088 (Percerep) where the court relevantly states at p.13 -
“It is, no doubt, rare for the Court when hearing an application in the nature of an appeal pursuant to s 44 of the AAT Act to receive evidence which was not before the Tribunal. In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J expressed the view that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal, a proposition which is generally unassailable. The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.”
The First Respondent has submitted that the new evidence has not been identified in the amended submissions, nor is it explained how the "new evidence relates to the grounds in the amended contentions".
Whilst acknowledging that there is authority to suggest that an Applicant will sometimes be permitted to lead new evidence in a judicial review hearing, it was argued that the circumstances when this would be permitted are very limited. The First Respondent also referred to the extract from the decision of Weinberg J in Percerep set out above.
The First Respondent submitted that in this case the Applicant has not claimed the Tribunal was in fact biased but that a fair-minded observer might have an apprehension of bias. Accordingly, it was argued that it is difficult to see how new evidence could be necessary to demonstrate an apprehension of bias (although it might conceivably be relevant if the claim was one of actual bias).
In my view, having regard to the relevant authorities, I am not satisfied that it is appropriate to permit new evidence to be adduced. I accept that the "new evidence" is not identified in the submissions by the Applicant, and in any event I am satisfied that where there is a claim for apprehended bias, it is not appropriate for this court to permit new evidence to be adduced.
I cannot see any or any proper basis upon which this court, undertaking judicial review, should permit the Applicant to adduce new evidence. The court is able to deal with the current grounds set out in the amended application without the assistance of new evidence. It is relevant to note that the chronology of events, including the date of delivery of the Tribunal decision and the time when it received a response to the s.424A request, are not matters in dispute. Accordingly, no evidence is required of those matters.
The court likewise is able to deal with the second ground now relied upon in the amended application without any requirement for new or additional evidence. Accordingly, I rule as a preliminary matter that the Applicant should not be permitted to adduce new evidence before this court undertaking judicial review.
It remains then for the court to consider the background material in this application together with the grounds now relied upon, having regard to the submissions made by the parties.

Background

The Applicant is a citizen of Sri Lanka who arrived in Australia on 13 April 2002. On 10 May 2002 he lodged an application for a protection visa with the First Respondent's department. On 29 August 2002 a delegate of the First Respondent refused to grant the protection visa. On 27 October 2005 the delegate reissued a copy of the decision to the Applicant's authorised representative. It is not necessary for the court to have regard to the reasons for the delay or the requirement for reissuing of a copy of a decision. In any event, on 30 November 2005 the Applicant applied to the Tribunal for review of the delegate's decision.
It is common ground that on 15 December 2005 the Tribunal wrote to the Applicant, inviting him to attend a hearing on 1 February 2006. At that hearing the Applicant submitted various documents including extracts from newspapers downloaded from the Internet. The hearing was not completed on 1 February 2006. On 6 February 2006 the Tribunal invited the Applicant to attend a resumed hearing on 28 March 2006. On 17 February 2006 the Tribunal advised the Applicant that the hearing would resume on 27 March 2006. On 24 March 2006 the Tribunal advised the Applicant that the hearing would resume on 10 April 2006. Despite all the alterations in hearing dates, the Applicant in fact attended a Tribunal hearing on 10 April 2006 and submitted further documents in support of his application.
It is not disputed that on 10 May 2006 the Tribunal wrote to the Applicant pursuant to s.424A of the Migration Act, seeking comment on information which specifically included a Department of Foreign Affairs and Trade report (DFAT) dated 11 April 2006. In the letter the Tribunal also relevantly states the following:
“You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 24 May 2006.
IF YOU DO NOT GIVE COMMENTS BY 24 MAY 2006 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”
(Court Book p.152)
As indicated earlier, the Tribunal signed its decision on 24 May 2006 and it is not disputed that on the same day the Tribunal received the Applicant's response to the s.424A letter. The response to the s.424A letter was provided by a letter from the Applicant's representative dated 23 May 2006 which also included a number of additional Internet reports (Court Book pp.156-178).
On 26 May 2006 the Tribunal decided not to recall the decision record and did so on the following basis:
“Information provided has previously been submitted to the Tribunal.”
(Court Book p.179)
By letter dated 26 May 2006, the Tribunal informed the Applicant that it had made its decision and invited him to attend the handing down of the decision on 6 June 2006 (Court Book pp.180-181).
On 6 June 2006 the Tribunal handed down its decision.

The Applicant's Claims

It is noted that at the time when the Applicant made application for a protection visa, the ruling party in Sri Lanka was the United National Party (UNP). The opponents of that party, supported by the Applicant, were the Sri Lanka Freedom Party and the People's Alliance (SLFP/PA).
It is not in dispute that the UNP were defeated at the April 2004 general election and since that date the SLFP/PA has been in power.
The Applicant claimed to have been a member of the SLFP since 1989 and to have participated in intelligence gathering within the SLFP.
In support of his application for a protection visa, the Applicant stated the following:
“The authorities (United National Party and its allies) will definitely take me into custody on false charges as it has happened to many of the SLFP activists during the last few months …”
(Court Book p.18)

Before the Tribunal the Applicant gave evidence in February and April 2006 and claimed a real chance of suffering serious harm upon return to Sri Lanka on the basis that the SLFP/PA had split into two distinct factions, one supporting the former President and the other supporting the former Prime Minister. The Applicant was a supporter of the former and claimed that in 2006 he had been a victim of threats from the faction of the former Prime Minister while the Applicant was in Australia.

The Tribunal Decision

The Tribunal produced what could only be described as a very detailed decision. The decision set out the legal principles to be applied and the claims of the Applicant. Under the heading "Claims and Evidence", the Tribunal not only referred to the claims in support of the protection visa but also devoted almost 30 pages of its decision, setting out the exchange between the Tribunal and the Applicant at the hearings and relevant country information and other documents provided by the Applicant. It proceeded to then consider in detail country information.
In its "Findings and Reasons", the Tribunal accepted the Applicant was a member of the SLFP and had been active in supporting that party, particularly at election time.
It otherwise rejected the Applicant's evidence and in particular his claim to be part of a special intelligence group formed to counter opposition to the government. It referred to inconsistencies in the Applicant's evidence and the fact that information provided to the Tribunal by DFAT did not support the existence of any such group (Court Book p.226).
In its decision, the Tribunal acknowledged the importance of "adopting a reasonable approach in the finding of credibility" (Court Book p.224).
It proceeded to then reject certain claims made of the Applicant, as a result of inconsistencies in evidence together with inconsistencies between evidence and country information, and otherwise described as ‘implausible’ some of the Applicant's claims.
The significant finding made by the Tribunal appears as follows:
“… The Tribunal therefore does not accept, if the applicant returned to Sri Lanka and resumed his active support of the SLFP he would face a real chance of persecution from the UNP or any other political party or group, now or in the reasonably foreseeable future, on the basis he was able to support his party in the past without experiencing any trouble which could be characterised as serious harm and it finds he does not have a profile which would warrant any adverse attention from political opponent. The Tribunal therefore finds the applicant's fear of being persecuted because of his political opinion or for any other Convention reason is not well-founded.”
(Court Book p.232)
It is also significant to note, given the current grounds relied upon in the amended application, that the Tribunal specifically states the following under the heading "Findings and Reasons":
“The Tribunal has considered the applicant's adviser's submission dated 24 May 2006 in response to a number of inconsistencies put to the applicant to comment under s424A, in relation to the applicant's mental state at the hearing. However the Tribunal's observations of the applicant at the hearing was that he had an understanding of the matters at issue and was able to give coherent evidence. The Tribunal also notes the applicant was invited to two hearings and had sufficient opportunity to express his case, which he did, providing further detailed evidence. The Tribunal therefore does not accept the applicant's adviser's assertions the applicant's ability to give evidence was the reason for his inconsistent evidence.”
(Court Book pp.224-225)
Further in its decision, the Tribunal again refers to the submission from the Applicant's adviser in the following terms:
“… The Tribunal has taken into consideration the submission from the applicant's adviser dated 24 May 2006. It notes the article from the Sunday Leader which the adviser quoted in his submission and which the Tribunal also discussed with the applicant in the hearing however, the Tribunal does not accept the advisers assertions this information demonstrates Mr Tennakoon has close links with President Kumaratunga. …"
(Court Book p.226)
Again in its decision, the Tribunal makes further reference to the submission from the Applicant's adviser dated 24 May 2006 in the following passage:
“… In the submissions from the applicant’s adviser, dated 24 May 2006, in response to the Tribunal’s s424A letter which identified this inconsistency amongst the issues which it put to the applicant for comment, it was submitted Mr Tennakoon’s current position was co-ordinating secretary of Ministry of Rural Economic Development which came under the preview of the Minister, D.M Jayaratne, who was also the Minister of Telecommunication and Media and also the Director of Mahaweli Consulting Bureau, which was an agency operating under the Mahaweli Ministry. The Tribunal refers to the response from DFAT which provides the Secretary of the Ministry of Telecommunications and Postal Services was Mr W.R.A.P Ranasinghe and according to the office of the Minister for Telecommunication and Postal Services, Mr Tennakoon did not hold any position connected to the current Minister or Ministry. Further, DFAT was not aware of any titles or positions given the Mr Tennakoon by President Rajapakse. Given the inconsistency in the applicant’s evidence and the independent information discussed above, the Tribunal does not accept Mr Tennakoon was associated with the President, as the applicant claimed, or that he has been rewarded by the President in the manner claimed for his service.”
(Court Book p.231)

Submissions

Applicant's Submissions

The Applicant relied upon the amended contentions of fact and law filed 28 March 2007. In those contentions, reference was made to the background facts set out earlier in this judgment. It was claimed there had been a denial of procedural fairness on the basis that the Tribunal had made its decision without taking into account and consideration "the crucial submission by the Applicant's adviser faxed to the Tribunal on 24 May, indicating jurisdictional error". Reference was then made to the statutory obligation of the Tribunal to invite the Applicant to a hearing pursuant to s.425 of the Migration Act.
In the alternative, it was submitted that the Tribunal decision includes a perceived apprehension of bias in the conduct of the Tribunal, and the decision-maker, in her actual decision and the process of the decision‑maker, has denied the Applicant's right to procedural fairness and is thus a breach of the principles of natural justice.
Again, it was argued that the Tribunal member either did not or is perceived to have not considered the relevant information submitted in response to the member's request pursuant to s.424A of the Migration Act.

First Respondent's Submissions

The First Respondent referred to the extracts from the Tribunal decision set out earlier in this judgment where reference was made to the letter from the Applicant's adviser dated 24 May 2006. It was submitted that those references clearly indicate that the Tribunal had considered the submissions forwarded in response to the s.424A letter.
It was further submitted that the Applicant had failed to identify any specific information which the Tribunal had failed to consider. Accordingly, this case is distinguishable from other cases relied upon by the Applicant including the matter of MZXGK.
It was submitted that there is no basis upon which the court is able to conclude that there has been apprehended bias. The mere fact that the Tribunal handed down its decision on the same day that it received the s.424A submissions from the Applicant does not of itself provide a basis upon which the court is able to conclude there has been apprehended bias. It was submitted that it is likely that a normal part of the process of forming such a view and of identifying such information would be the writing of draft reasons for decision.
It was further submitted that:
“… it is difficult to see how a Tribunal could properly identify the information which would be the reason, or a part of the reason, for affirming a decision under review without first drafting reasons for decision.”
The First Respondent conceded that it would be highly likely the Tribunal had drafted its detailed reasons for decision before receiving the Applicant's s.424A submissions and there did not seem to be any dispute that those submissions were received at approximately 11.32 am on 24 May 2006. It was argued, however, that the Tribunal then incorporated those submissions in its reasons for decision, as revealed in the extract set out earlier in this judgment.
It was further submitted there was therefore nothing remarkable about "what happened in this case and that it does not give rise to any apprehension of bias".
The Applicant, it was submitted, was given ample opportunity to comment on information that would be the reason or part of the reason for the decision that the Applicant was not entitled to a protection visa. It was submitted the Tribunal has "in its final decision addressed the Applicant's submissions".

Reasoning

In my view the Tribunal has embarked upon a process free of jurisdictional error. It has appropriately prepared very detailed reasons for decision and, upon receipt of the response to the s.424A request, has then incorporated that response in its reasoning.
I can see nothing wrong with the Tribunal preparing a draft of its reasons in advance in circumstances where there have been two hearings and a significant volume of documents. In fact the Tribunal preparing a draft in those circumstances, in my view, is acting in a reasonable and acceptable manner. It is not unusual for Tribunals and courts to prepare a draft of reasons and then to receive either written or oral submissions prior to the delivery of a judgment or reasons for decision.
In the present case I am satisfied that the Tribunal not only received a response to the s.424A letter from the Applicant's advisers but otherwise clearly incorporated the response and dealt with it appropriately in its reasons. The mere fact that a Tribunal is able to incorporate submissions received in a sense at the "11th hour" does not in my view lead to a conclusion, having regard to the appropriate authorities, that there is any suggestion of apprehended bias. It has simply produced, in a timely and efficient manner, its reasons for decision after considering and appropriately dealing with submissions in reply to the s.424A letter.
In my view there is no substance in the ground, relying as it does upon apprehended bias.
I am further satisfied that the manner in which the Tribunal dealt with the response to the s.424A letter does not reveal any denial of procedural fairness. In fact I have concluded that quite the contrary appears in the circumstances of this case where the Tribunal, having given the Applicant an opportunity on two occasions to attend a hearing and adduce evidence and having received other material together with the response to the s.424A letter, has acted in a manner consistent with the principles of procedural fairness.
Contrary to the submissions made by the Applicant both in the "Applicant's reply to respondent's further contentions of fact and law" and during the course of the brief resumed hearing on 2 May 2007, I am not satisfied that there is any error revealed by the Tribunal in the preparation of its draft reasons for decision.

Conclusion

It follows for the reasons given that the application as amended should be dismissed with costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 3 August 2007