QAAP v Minister for Immigration
[2005] FMCA 1908
•21 December, 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QAAP v MINISTER FOR IMMIGRATION | [2005] FMCA 1908 |
| MIGRATION – Refugee Review Tribunal – protection visa – applicant recognised as a refugee and granted temporary protection visa – application for permanent visa refused – approach to a case of possible cessation of refugee status. |
| Migration Act 1958, s.36(2) Convention Relating to the Status of Refugees adopted at Geneva on 28 July 1951, as amended by the 1967 Protocol Relating to the Status of Refugees art 1A(2), 1C(5) QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 |
| Applicant: | QAAP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | BRG 439 of 2004 |
| Judgment of: | Jarrett FM |
| Hearing date: | 26 January, 2005 |
| Date of Last Submission: | 3 November, 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 21 December, 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Atkinson |
| Solicitors for the Applicant: | Macrossans Lawyers |
| Counsel for the Respondent: | Ms M Brennan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Refugee Review Tribunal be joined as a second respondent to this application;
That the decision of the Refugee Review Tribunal made on 3 May 2004 be quashed;
That the applicant’s application for a permanent protection visa be remitted to a differently constituted tribunal for further hearing and determination according to law; and
That the respondent pay the applicant’s costs to be agreed between the parties and failing agreement to be fixed by the Court upon application by either party for that purpose, such application to be filed within sixty (60) days from the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG439 OF 2004
| QAAP |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act1903 seeking a review of the decision made by the Refugee Review Tribunal dated 28 June, 2004 affirming the Minister’s decision to refuse the applicant’s application for a Protection (Class XA) visa subclass 866.
The applicant, who is a national of Afghanistan, arrived in Australia in an unauthorised vessel on 26 November, 1999. On 1 February, 2000 and whilst he was detained at the Woomera Immigration Centre, he lodged an application for a protection visa with the Department of Immigration, Multicultural and Indigenous Affairs under the Migration Act1958 ("the Act").
On 3 August, 2000 the Minister granted a protection (Class XA) visa subclass 785 ("the temporary protection visa"). On 11 August, 2000 the applicant applied for a protection (Class XA) visa subclass 866 ("the permanent visa") but that application was refused by a delegate of the Minister on 24 February, 2004. On 10 March, 2004 the applicant applied to the Refugee Review Tribunal for a review of the Minister’s decision. In its decision made on 28 June, 2004 and handed down on 20 July, 2004 the tribunal affirmed the delegate's decision to refuse the grant of the visa.
Background
The applicant was born on 15 April, 1979. He is of Hazara ethnicity and a Shi’a Muslim.
In his original visa application, the applicant claimed that as a young Hazara male he feared persecution from the Afghan authorities – the Taliban. He feared that he would be forced to fight on the front line or would face torture and possibly death if he refused. He feared that if he were to return to Afghanistan he would be harmed or mistreated because he was a young Hazara male in an area where many such men had been taken by the Taliban to fight on the front line.
The respondent granted the applicant the temporary protection visa because the applicant’s fear of persecution for a reason prescribed by the Convention Relating to the Status of Refugees adopted at Geneva on 28 July, 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’) was well founded. To use the words of the delegate: “… if the applicant was returned to Afghanistan, his age could bring him to the attention of the authorities and he could be recruited or face other adverse actions by the Taliban on the basis of his ethnicity or religion. I consider that given the current situation in Afghanistan this is more than a remote chance.”[1]The applicant was not eligible for the grant of a permanent protection visa because he did not meet all of the criteria of Part 866 of the regulations.
[1] Paragraph 7 Protection Visa Decision Record contained in Bundle of Relevant Documents filed 26 October, 2004 (“RD”) page 47
On 11 August, 2000 the applicant lodged his application for the permanent protection visa relying on his earlier application. For reasons that are not presently relevant, that application was not processed until February, 2003. That application was refused and the refusal was affirmed by the RRT.
The Tribunal’s decision
The tribunal noted that the applicant had been recognised as a refugee in Australia under Article 1A(2) of the Convention and that therefore, the broad issues to be determined on the review were[2]:
a)whether Article 1C(5) of the Convention was satisfied so that the Convention no longer applied to him;
b)whether, irrespective of the finding about Article 1C(5), the applicant was otherwise entitled the protection of the Convention and the Act by reasons of claims made that were unrelated to the circumstances in connection with which he was recognised as a refugee (that is, whether he met Article 1A(2) independently of the claims originally made by him); and
c)whether, in the event that the applicant fell within Article 1A(2) of the Convention and was not subject to Article 1C(5), he was a person to whom protection obligations were not owed by reason of s.36(3) – (5) of the Act.
[2] at RD 100 - 101
When the applicant first claimed protection as a refugee, he did so on the basis of the following statement[3]:
[3] at RD 24 - 25
Background
I am a citizen of Afghanistan and I am 20 years of age having been born on 15 April 1979. I am not married and I resided with my parents and siblings in Kabul until I fled Afghanistan. I am Hazara and my religion is Muslim Shiite. In Afghanistan I was not able to work due to the civil war.
Why I left my country:
In our area many young Hazara men have been taken by the Taliban and forced to fight against the Hazara people.
Since 1996 the Taliban have come to our house on five different occasions in search for weapons and young Hazara males to take to the front. Whenever the Taliban approached our area I would hide under our house in a hiding place prepared by my Father. I also often went to stay with relatives in the Northern part of Afghanistan, until it fell under the control of the Taliban, to ensure my safety.
I lived in constant fear that I would be found by the Taliban and forced to fight against other Hazara males of my own religion where I would inevitably be killed. If I refused to go to the front line I would have been arrested, detained, tortured and possibly killed. For this reason I decided to flee Afghanistan to save my life.
What I fear might happen if I go back to my country:
I fear that I will be forced to fight on the front line by the Taliban where I will be killed. If I refuse I will also be arrested, detained and possibly killed.
Who I think will harm or mistreat me if I go back:
The Taliban.
Why I believe they will harm or mistreat me I go back:
I believe I will be harmed or mistreated because I am a young Hazara man in an area when many young Hazara men have been taken by the Taliban to fight on the front line.
Why the Authorities will not protect me if I go back:
It is the Afghan authorities, the Taliban, that will persecute me. There is no individual or group in Afghanistan to protect me.
The tribunal recorded that in his statement made on 25 March, 2003 the applicant claimed that[4]:
… the Taliban “are still armed and are powerful: they just pretend they aren’t Taliban”, and the government would be powerless to protect him if he returned, and his next door neighbours were Taliban soldiers from Kandahar and his relatives subsequently escaped to Iran and told him 6 months before that the Taliban were still living there so it was still dangerous to go back and they had been asking after him and had threatened his father as they thought he had escaped to fight against them.
[4] at RD 112
Further, at the hearing before the tribunal, the applicant claimed[5]:
… that he has heard in a media report that the government had created another group of Taliban who would vote for the government, and a Taliban spokesman claimed they have enough power to take over and reoccupy the country at any time as the government would allow them to work for it.
[5] at RD 112
The applicant was assisted by an adviser at the tribunal hearing and[6]:
Towards the end of the hearing, the adviser submitted what the applicant had meant was there were some extremists and some moderate Taliban and Karzai wanted the moderate Taliban to participate [in the election] and rejoin the coming new Afghanistan and government, and a new party for the Taliban had been established, so the applicant is concerned that the previous problems will re-emerge with the support of the majority Pashtuns (the applicant has previously claimed he fears he may be harmed by the Tajiks and Pashtos because he is Hazara and the fighting between the Hazara and these groups has worsened since his departure).
[6] at RD 112
The Tribunal accepted[7]:
a)that the president of Afghanistan (Mr Karzai) had made overtures to the moderate Taliban and had called upon them to participate in the forthcoming elections;
b)country information before it from the US State Department that the Taliban regime collapsed in late 2001 and was followed by the Bonn peace conference which in December 2001 approved the establishment of a Transitional Islamic State of Afghanistan and indicates that the Taliban are no longer in a position of power and political authority in Afghanistan;
c)that on 4 January 2004, a new Afghan constitution was approved by the Afghan Loya Jirga, and the Taliban were excluded from the constitutional debate;
d)that during the visit of Rudd Lubbers (UNHCR) to Afghanistan in April 2004, Lubbers’ is also reported to have stated:
Security in war-torn Afghanistan must be improved and extended beyond Kabul before more refugees can return home safely, the United Nations High Commissioner for Refugees (UNHCR) said here Sunday. Ruud Lubbers said the peacekeeping duties of the 6,500-strong International Security Assistance Force (ISAF) needed to be widened to take in all of Afghanistan to assist displaced people seeking to return home.
e)that while the security situation was uncertain in some parts of Afghanistan, the situation in Kabul was safe with a sizable international peacekeeping force in place in Kabul and the Interim Administration had established a new democratic constitution and democratic elections were due to be held later in 2004;
f)that notwithstanding the continuing difficulties outside Kabul, over 3.3 million refugees have now returned to Afghanistan since 2002;
g)that the Taliban are no longer in power in Afghanistan and more specifically no longer has control or authority in Kabul where the applicant comes from.
[7] at RD 113
The tribunal did not accept that the Taliban would re-emerge and either be able to form a government or even be a powerful political movement in Afghanistan (including Kabul) in the reasonably foreseeable future. The tribunal was not satisfied that there was a real chance that the applicant would be subjected to serious harm amounting to persecution from the Taliban, its remnants or its supporters such as his former Taliban neighbours, for a Convention reason if he returned to Kabul, either at the time of the decision or in the foreseeable future[8].
[8] at RD 114
The tribunal rejected the applicant’s claims and preferred the country information before it. The tribunal recorded that[9]:
It also follows that on the basis of all the material before it concerning the circumstances in connection with which the applicant was recognised as a refugee, the Tribunal finds that he can no longer continue to refuse to avail himself of the protection of Afghanistan because those circumstances have ceased to exist. Therefore, Article 1C(5) of the Convention applies to the applicant.
[9] at RD 114
As to whether the application met the requirements of Article 1A(2) of the Convention in respect of the claims made by him, but which were not made as a basis for the grant of the temporary visa, the tribunal considered the applicant’s further claims. After setting out those claims and noting that they were uncorroborated the tribunal referred to country information that demonstrated that[10]:
a)the position of the Hazara minority had improved significantly since the overthrow of Taliban;
b)the Hazara no longer face overt persecution or discrimination and were fairly well represented in the transitional administration and while there were difficulties for them outside Kabul due to the lawlessness, that was not the case in Kabul;
c)there were no reports of discrimination against Hazaras in Kabul city;
d)there were no reports of disappearances of Hazara in Kabul;
e)there were no problems for Hazara in Kabul or open war against Shi’a Muslims;
f)a Swedish fact finding mission concluded in April 2003 that Hazaras are not at risk in Kabul due to their ethnicity; and
g)during the visit of Rudd Lubbers (UNHCR) to Afghanistan in April 2004, he noted there was still a 6,500-strong international peacekeeping force in Kabul.
[10] at RD 115
The tribunal accepted the independent country information over the unsubstantiated claims made by the applicant and was satisfied[11] that there was “not a real chance of the applicant being subjected to serious harm amounting to persecution from the Taliban (including his former neighbours), the Pushtuns, the Tajiks, the Interim Government or indeed anyone else if he returned to Kabul where he has lived all his life without claiming that he has been subjected to any harm (even during the Taliban period) because of his Hazara ethnicity, his Shi’a religion, or for any other Convention related reason.”
[11] at RD 115
The applicant also claimed that he would be at risk of persecution because of his father’s activities in Afghanistan. The Tribunal determined[12]:
[12] at RD 118 - 119
In short, from the claims made by the Applicant, the Tribunal has not been able to satisfy itself that because of his father’s claimed former political affiliation and association with the PDPA, the former pro-communist administration, and the Russian (now over 12 years ago) he, the Applicant, would have a “profile of being associated with the people’s democratic party of Afghanistan”, the former communist government or the Russians -- actual or imputed -- and has a well-founded fear of serious harm amounting to persecution on this basis.
…
In summary, and having already accepted that the Applicant himself has had no political involvement or any personal political or religious profile, the Tribunal has not been able to satisfy itself that the Applicant would be subjected to serious harm amounting to persecution if he returned to Kabul because of remnants of the Taliban; his father’s former limited affiliation with the former pro-communist government of Afghanistan and the Russians (now over 12 years ago); his father’s disappearance and possible murder (about which the Applicant provides no evidence or support and even admits he has only recently heard such reports); or for any actual or imputed Convention reason flowing on from these factors.
The Tribunal was satisfied that the requirements of Article 1A(2) were not made out and that no protection obligations were owed to the applicant because he did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The Tribunal did not go on to consider the possible effect of s.36(3) of the Act, presumably because of its finding that protection obligations were not enlivened under s.36(2) of the Act.
The Applicant’s contentions
The applicant’s primary contention is that the tribunal fell into jurisdictional error because it asked itself the wrong question. It was submitted by the applicant that the tribunal failed to inquire into and reach conclusions about:
a)the circumstances in connection with which the applicant was recognised as a refugee;
b)the present circumstances, so as to be able to compare those circumstances with those prevailing at the time of the grant of the visa;
c)whether, by reason of the comparison, it could be properly be said that the circumstances in connection with which the applicant was recognised as a refugee had ceased to exist.
It was further argued that, having regard to the UNHCR Guidelines on International Protection, the tribunal ought to have enquired into whether any perceived changes in the relevant circumstances were significant, profound or durable. No inquiry into the nature or the extent of the changes in the relevant circumstances was entered upon by the tribunal.
It was also argued that the tribunal erred because it confined the inquiry it did make into the power and control exercised by the Taliban to the area of Afghanistan from which the applicant emanated (Kabul). It did not consider whether there was a real chance of persecution from the Taliban in areas away from, or originating in areas away from, Kabul.
The second contention advanced by the applicant was that the tribunal failed to take into account relevant information, namely information relied upon by the tribunal member in other decisions, not involving this applicant, but concerning the instability in Afghanistan and Kabul.
The Approach to Article 1C(5)
In QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 the Full Court of the Federal Court of Australia had cause to consider the approach to be taken to the interpretation of Article 1C(5) of the Convention in a case such as the present. The facts in that case are closely aligned with those in the present case, although there are some differences. The appellant was a citizen of Afghanistan. He was of the Hazara ethnic group and a Shi'a Muslim. He arrived in Australia without an entry permit in September 1999 and was detained as an unlawful non-citizen. In late November 1999 he applied for a protection visa. On 28 March, 2000, a delegate of the Minister determined that the appellant was ‘a person to whom Australia has protection obligations under the Refugees Convention’. He was granted a temporary protection visa. In March, 2003 he was granted a new species of visa created to deal with adminsitrative difficulties that had arisen in the Minister’s Department. In November, 2003 another delegate of the Minister refused the appellant’s application for a permanent protection visa. The appellant sought a review of that decision by the RRT. In May, 2004 the tribunal made a decision affirming the delegate’s decision not to grant the visa.
The tribunal considered the application of Article 1C(5) in the circumstances of the appellant’s case and determined that he could no longer continue to refuse to avail himself of the protection of Afghanistan because the circumstances extant at the time of the grant of his temporary visa in 2000 had ceased to exist.
For the reasons explained by Wilcox J, his Honour concluded that the tribunal had erred because it had asked itself the wrong question. It determined that Arcticle 1C(5) applied because the Taliban was no longer in government in Afghanistan and therefor, the appellant’s fears of persecution at the hands of the Taliban were not well founded. In his Honour's view, that conclusion, however, did nothing to dispose of the relevant question, namely whether the Taliban posed a continuing threat to the appellant by reason of his ethnicity and religion. His original claims did not rely upon the Taliban controlling the government, and so that inquiry was not to the point.
Wilcox J. summarised the approach to be taken when considering Article 1C(5) in circumstances where a claimant had previously secured "refugee status" as follows at [69]:
69 With the advantage of considering all that material, I have reached the respectful conclusion that the primary judge was wrong in saying that ‘it was not strictly relevant that he had previously applied for and received temporary (XA) and temporary (XC) visas’. On the contrary, that fact was of critical importance. The circumstance that the appellant had previously been recognised as a refugee was the starting point for consideration of his permanent visa application. The circumstance had considerable practical importance; it affected what might loosely be called the burden of proof. I accept that, in a technical sense, no burden of proof rests on any party in relation to review of an administrative decision: see McDonald v Director-General of Social Security (1984) 1 FCR 354; see also Mary Crock Immigration and Refugee Law in Australia, The Federation Press, Sydney, 1998 at 138 and 262 and the authorities there cited. However, it matters to the parties which one of them fails if the evidence is inconclusive, as may well happen when (as here) the critical question concerns conditions in a remote part of a foreign country. In an original application for refugee status, relying on Article 1A(2), the Minister (or her delegate or the Tribunal) must be satisfied of facts that support the inference that the applicant has a well-founded fear (including that there is a real chance) of persecution for a Convention reason if returned to his or her country of nationality. If the facts do not go so far, the claim for a protection visa will fail. The situation is different in relation to an inquiry under Article 1C(5) as to possible cessation of refugee status. If the facts are insufficiently elucidated for a confident finding to be made, the claim of cessation will fail and the person will remain recognised as a refugee.
Madgwick J agreed with the observations of Wilcox J, and added at [106] – [111]:
106 The Preamble to the Convention in general locates the Convention in the context of international human rights law: the U.N. Charter and the Universal Declaration of Human Rights were considered by the States parties (in the first placitum of the Preamble) to ‘have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’. The plight of persons who have become refugees is also stressed: the second placitum speaks of the U.N.’s ‘preferred concern’ for refugees and its endeavour ‘to assure refugees the widest possible exercises of [the] fundamental rights and freedoms’ referred to in the first placitum (emphasis added). Further, the fifth placitum recognizes that ‘the problem of refugees’ was of a ‘social and humanitarian nature’ with the potential for it to become a cause of tension between States. None of this suggests a reading of the Convention apt to require a ready, second uprooting of people who have achieved a measure of asylum on the strength of their recognition as refugees.
107 That impression is, in my opinion, confirmed in the substantive provisions of the Convention.
108 Firstly, the entire concept of a ‘well-founded fear of persecution’, which no doubt is the central underlying concept in the Convention (as counsel for the Minister argued), focuses on an objective justification for a fear of very serious consequences. It is inescapable that examining future possibilities over a very short, future time frame is not likely to suffice to dispel the justification for a well-founded fear harboured in the recent past. The requirement (rightly conceded by counsel for the Minister to exist) that the decision-maker should prognosticate the situation into the reasonably foreseeable future carries with it the necessity that the decision-maker bear that in mind. In the present case, for example, it would appear to be necessary to estimate how confidently any non-Taliban settlement can be predicted to endure, on a widespread basis, for a period of some years. The Tribunal did examine that question in a manner that does not attract review by way of the constitutional writs. But that is not the end of the matter.
109 Secondly, there is no warrant to confine the expression ‘the circumstances in connection with which he has been recognized as a refugee’ to a narrow conception of those circumstances. ‘In connection with’ is generally a phrase of wide import: Brown v Rezitis (1970) 127 CLR 157, 165 per Barwick CJ). In Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, 479 Wilcox J said that the expression has ‘a wide connotation requiring merely a relation between one thing and another’. In the present case, it might be surprising if the Taliban, their racism, their extremely intolerant and inflexible view of Sunni Islam and their readiness to resort to violence were not a manifestation of deep tendencies present in Afghani society. Any such tendency, if it carried a real risk of persecution, might also be reasonably thought to be included ‘in the circumstances in connection with which’ the applicant was recognized as a refugee. The question would then logically arise: if it is true that the Taliban genie has been largely put back in its bottle, will no other similarly violent, racist and/or religiously bigoted manifestation soon enough succeed it? The Tribunal appears, however, to have considered the ‘circumstances’ without sufficiently apprehending that they were able to be understood more broadly.
110 Thirdly, the Convention notion is that the circumstances should have ‘ceased to exist’. The phrase is not ‘abated somewhat’, or even ‘considerably abated’. The implication is that safety from serious harm needs to have been re-established (or, in some instances, established for the first time). In this regard, the Tribunal seems to have considered that the UNHCR and other expert commentators, in insisting on ‘durable’ or ‘profound and durable’ changes, had a view not in accordance with ‘the language of the Convention’. On the contrary, as I have sought to show, the language of the Convention itself mandates such conclusions.
111 Fourthly, it is now trite, in relation to the Convention, that satisfaction that a fear is ‘well-founded’ should be reached if there is a real and substantial possibility that the fear might be realised. As a matter of logic, if there is a real and substantial possibility that the feared, persecutory circumstances have not ‘ceased to exist’, it is difficult to see how a decision-maker could justifiably consider that they have so ceased.
Consideration
Once embarked upon a consideration of whether the Convention ceases to apply to a person if he can no longer continue to refuse to avail himself of the protection of the country of his nationality because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, the tribunal must consider and compare the relevant circumstances. As QAAH demonstrates, failure to accurately identify the circumstances in respect of which refugee status was first granted may well result in a tribunal asking and answering the wrong question and thereby falling into jurisdictional error.
In the present case, the applicant’s claim to the temporary visa was based upon the assertion, accepted by the Minister’s delegate, that if the applicant was returned to Afghanistan, his age could bring him to the attention of the authorities and he could be recruited or face other adverse actions by the Taliban on the basis of his ethnicity or religion. I consider that given the current situation in Afghanistan this is more than a remote chance.
Just as in QAAH, the applicant’s claims are not dependant upon the Taliban being in a controlling position in government. What is claimed is persecution by the Taliban because of ethnicity and religion. The critical finding of the Tribunal that: “…the Taliban are no longer in power in Afghanistan and more specifically no longer has control or authority in Kabul where the Applicant comes from, and does not accept that the Taliban will re-emerge and either be able to form a government or even be a powerful political movement in Afghanistan (including Kabul) in the reasonably foreseeable future.” confirms the focus of the tribunal upon the question of the Taliban’s control of the government, rather than its capacity to persecute the applicant for reasons of ethnicity or religion.
The Tribunal made a finding that the applicant would not be subjected to persecution from the Taliban in Kabul, but seemed to accept that in other areas of the country the Taliban may have greater capacity to exert influence. No investigation of the capacity of the Taliban to persecute individuals in Kabul for religious or ethnic reasons was undertaken by the Tribunal – the focus was on the capacity of the Taliban to return to power in government.
In supplementary submissions delivered on 1 November, 2005, the respondent submits:
11. Nonetheless, it is accepted that QAAH applied to this matter would have the effect that a jurisdictional error was made in relation to the application of article 1C(5) when the Tribunal limited its inquiry to matters going to the extent of control the Taliban continued to exert in the applicant’s prospective area of residence.
In my view, there was no comparative exercise undertaken by the tribunal in this matter. The basis for the claims by the applicant of persecution by the Taliban were not properly recognised by the tribunal as based in his ethnicity and religion alone, but rather were said to be connected with the ability of the Taliban to control or influence the government of Afghanistan. That was the wrong issue.
Conclusion
I am satisfied that the applicant has demonstrated that the tribunal fell into jurisdictional error by failing to address the correct question raised by Article 1A(5) of the Convention.
The respondent argues that notwithstanding any possible error by the tribunal as to the application of Article 1C(5) of the Convention, the application must nonetheless fail because of the tribunal's findings on the second issue, namely that the applicant was not otherwise entitled the protection of the Convention and the Act by reasons of claims made that were unrelated to the circumstances in connection with which he was recognised as a refugee. That finding, however, could not have been made if the tribunal had correctly addressed the first issue that arose with respect to Article 1C(5) of the Convention.
The orders will therefore be as set out at the commencement of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 21 December 2005
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