S1011 of 2003 v Minister for Immigration
[2005] FMCA 31
•31 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1011 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 31 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
NAYQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 365
Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] HCA 32
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex partePalme (2003) 201 ALR 327
Periannan Murugasu v Minister for Immigration & Ethnic Affairs, unreported, Federal Court, 28 July 1987
| Applicant: | APPLICANT S1011 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1417 of 2004 |
| Delivered on: | 31 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 29 November 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr A N Silva of Silva Solicitors |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1417 of 2004
| APPLICANT S1011 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 February 1998, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 June 1996 to refuse to grant the applicant a protection visa.
Background
The applicant who is a citizen of Pakistan arrived in Australia on 20 November 1990. On 19 March 1991 he lodged an application to the Department of Immigration & Ethnic Affairs (“the Department”) for refugee status under the Migration Act 1958 (Cth) (“the Act”). As from 1 September 1994 by operation of s.39 of the Migration Reform Act 1982 that application was deemed to be an application for a protection visa. On 20 June 1996 the delegate refused to grant a protection visa and on 15 July 1996 the applicant sought a review of that decision.
The applicant claimed he was born on 10 May 1963 and lived in Lahore, in the Punjab Province of Pakistan. He completed his Higher School Certificate Examination and stated his occupation as Press Photographer. The applicant claimed he was a member of the Pakistan Peoples Party (PPP) and became actively involved in the Party in late 1988. His younger brother was also involved in the Party and together they helped recruit new members. The applicant made speeches for a PPP candidate during the 1988 elections and became well known in his district. After the removal of Prime Minister Benazir Bhutto in August 1990 the applicant claimed that reprisals and retaliation commenced and many people were harassed, injured or died. He claimed his family were regularly threatened (Court Book p.127) (“CB”).
The applicant stated on his application form that he had never been arrested, in detention or imprisoned in Pakistan or tortured or physically mistreated or interrogated by the authorities. He also claimed that he had suffered no detriment as a result of practising his religion (CB pp.15-18).
The applicant was given permission by the Department to return to Pakistan in November 1994 to visit his terminally ill father who died just hours after his return. As a result of his visit the applicant submitted a new claim because of the changed political situation in Pakistan. The applicant claimed that his father was a prominent Shia Muslim leader, representing numerous religious and social welfare organisations in Pakistan and editor of a local newspaper. Although his father died from natural causes, the applicant claimed his father constantly received death threats from Sunni Muslim groups. He also claimed a number of his father’s associates, including his father’s personal physician, were assassinated by Sunni groups. The applicant claimed he fled back to Australia because his life was under threat (CB pp.127-128).
On 8 February 1996 the applicant was interviewed by the delegate regarding his new claims and a summary of that interview indicated the applicant now claimed persecution due to his religious beliefs. He claimed in the interview that he no longer had any problems as a result of his membership of the PPP because that Party had gained national government in 1993 and the previous problems had dissipated. The applicant then introduced the new claim that the Sipah-e-Sihaba (SSP) were looking for him and wanted to kill him (CB p.128).
The applicant appeared before the Tribunal on 3 February 1998 and claimed the election of the PPP to government meant he no longer feared persecution because of his political opinion (CB p.127).
The Tribunal’s findings and reasons
In his original application to the Department, the applicant sought refugee status upon the basis of his membership of the PPP. He abandoned that claim before the delegate because the PPP had come into power. The applicant then re-asserted this claim before the Tribunal as the PPP had again lost power. The Tribunal considered the claim made on the basis of the applicant being a member of the PPP, but did not accept the claim for protection visa on this basis (CB p.134.5). This issue did not appear to be the subject of any dispute in these proceedings.
The applicant was permitted to return to Pakistan in 1994 with re-entry rights upon humanitarian grounds. After his return to Australia, and by a letter dated 27 March 1985 addressed to the Department, the applicant made new claims based upon his assertion that his father had been a prominent Shia leader who had constantly received death threats and warnings from several Sunni Muslim groups. The applicant claimed that after his father’s death he and his family received numerous threats which had caused him to flee to Australia in February 1995. The Tribunal accepted that the applicant was a Shia and that Shias are a Mulsim minority in Pakistan (CB p.135.1). The Tribunal also accepted independent advice that there was no obvious discrimination against the Shia sect in Pakistan and that its members were free to practise their religion. It noted that whilst the majority of Sunnis and Shias lived together peacefully, each had their own militant organisation with violent clashes between these hard core groups being a constant feature of a Pakistan political landscape since the 1980s
(CB p.135.2).
In assessing the applicant’s claim based on his Shia religion, the Tribunal accepted that the applicant’s father was a Shia leader but noted that he had died of natural causes and not at the hands of the Sunnis. The Tribunal member noted that the applicant’s mother and six brothers and sisters all lived in Pakistan practising their religion and that none had been harmed by the Sunnis (CB p.135.4). The Tribunal considered that apart from an assertion by the applicant that he was on a hit list he had provided no satisfactory evidence to explain why he would be targeted by militant Sunnis because of his deceased father’s role in the Shia community. The Tribunal was not satisfied that the applicant was at any risk of harm because of his father.
The Tribunal next considered the applicant’s claim to have been a Shia advocate (CB p.135.5). The Tribunal noted this claim might give rise to a well-founded fear of persecution independently of the claim based on the applicant’s father. However, this basis for the Convention being applicable failed on an adverse finding of fact, namely that the claim to be a Shia advocate was a fabrication. The finding of a fabrication was open to the Tribunal on the material before it, including the absence of any claim to be a Shia in the applicant’s original application for refugee status and inconsistencies in the account given by the applicant’s wife (CB p.135.6).
The Tribunal noted that the applicant’s absence of a claim to fear persecution by the Sunnis in his original application occurred in the context of fierce Sunni/Shia conflict in the 1980’s (CB p.135.8), and that his claim had originated after the applicant’s return from Pakistan in 1994 when the PPP was returned to government and the magnitude of conflict increased between these two groups (CB pp.135.9-136.1). The Tribunal considered the applicant’s position based on the general assertion of life not being safe for him by reason of communal violence, as opposed to being identified as being a Shia by reason of either his father or his own claims of Shia advocacy, neither of which had been accepted.
The Tribunal noted the evidence of the applicant at the hearing concerning the death of various persons and the claim that because of these killings his life was not safe (CB p.136.2), but concluded that even if his claim to fear persecution because of the Shia/Sunni conflict was accepted, this would not suffice because a fear of being involved in incidental violence was not enough (CB p.136.3).
The Tribunal also made a finding that protection was available to the applicant from the Pakistani authorities, who had indicated that they were determined to control incidences of sectarianism. The Tribunal noted that no state could ensure the complete safety of all its citizens against all forms of harm, mistreatment or even death, and further observed that the Pakistan government had taken decisive action against militant groups, rounding up large numbers of activists, deploying the army and giving the police sweeping powers to combat the violence (CB p.136.5).
Application for review of the Tribunal’s decision
On 7 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903. On 14 September 2004 the applicant filed an amended application and on 22 November 2004 filed a further amended application which contained the following grounds:
“2(a)The Tribunal made jurisdictional error as it made a critical finding without evidence (page 135.40) (Alternatively the finding was Wednesbury Unreasonable as there was scarce evidence). It found that the Applicant’s mother and six brothers and sisters who live in Pakistan have not been harmed.
Particulars
On page 12 of the transcript the conversation goes as follows:
“J. What I am saying is, your brothers and sisters …… none have been harmed.”
S. I am the eldest son. My brother doesn’t live at the same place, they keep running around.”
…………………
S. He don’t live in Peshawar, he move because he is not safe.”
2(b)The Tribunal misunderstood the applicant’s claim when it said (page 13.30) in relation to the Applicant that “it is not enough that there be a fear of being involved in incidental violence as a result of civil or common disturbances.” It thus made jurisdictional error by applying the principles from Periannan.
Particulars
The Tribunal says on page 13.10:
“At the hearing the applicant in his evidence referred to the death of his father’s friends, the death of his wife’s cousin, a famous poet, the death of the author and the death of a policeman. He claimed because of these killings “life is not safe”. The applicant …… communal disturbances Periannan Murugasu v Minister for Immigration & Ethnic Affairs, unreported, Federal Court, 28 July 1987 per Wilcox J at p.8 and 13.
The applicant was not referring to incidental violence. The applicant was referring to people who had some profile and thus telling the Tribunal that he too was liable to get killed because of his connection to his father.
On page 12.70:
“When the Tribunal asked the applicant why the SSP would target him he replied “they killed the author who wrote the book about my father”. The applicant then indicated that his real threat related to being the son of his father.
2(c)The Tribunal made jurisdictional error as it was unreasonable (in the Wednesbury sense) in making a finding
Particulars
CB135.40
“Apart from the applicant’s assertion that he was on a hit list the applicant provided no satisfactory evidence of why he would be targeted by militant Sunnis because of his father’s role in the Shia community.
The applicant gave evidence as follows:
(i)His siblings were forced to move between places for safety.
(ii)He was the eldest child
(iii)His father’s friend who wrote the biography about his father was killed” (Errors in original)
Applicant’s submissions
Mr A N Silva of Silva Solicitors, appearing for the applicant, filed written submissions prior to the hearing. Mr Silva applied for the affidavit sworn on 20 July 2004 and filed in Court on 26 July 2004 (“the affidavit”) to be admitted into evidence. Attached to the affidavit was a transcript of the Tribunal hearing conducted by the Tribunal member, Kerry Anne Hartman, on 3 February 1998.
In the written submissions in respect of ground 2(a) it was submitted that one of the critical facts on which the Tribunal based its finding that the applicant was not a refugee was that his siblings and mother in Pakistan were not harmed. It was submitted that if there was no evidence for this critical fact then it would be a jurisdictional error for the Tribunal to have made that finding without evidence or if the evidence was scarce: NAYQ v Minister for Immigration & Multicultural & Indigenous Affairs; Minister for Immigration & Multicultural Affairs v Rajamanikkam (“Rajamanikkam”); SFGB v Minister for Immigration & Multicultural & Indigenous Affairs.
Reference was then made to the hearing transcript (pp.11.70-13.10) and it was submitted that these passages showed that the Tribunal did not challenge the applicant’s evidence that his siblings had to move between places because of their safety.
In respect of ground 2(b) it was submitted the Tribunal stated the following:
“At the hearing the applicant in his evidence referred to the death of his father’s friends, the death of his wife’s cousin a famous poet, the death of the author and the death of a policeman. He claimed because of these killings ‘life was not safe’. The applicant also submitted newspaper reports detailing incidents of communal violence. Even if I accept the applicant’s claim that he fears persecution because of the Sunni/Shia conflict, because persecution involves systematic conduct aimed at an individual or at a group of people ‘it is not enough that there be a fear of being involved in incidental violence as a result of civil or communal disturbances’. Periannan Murugasu v Minister for Immigration & Ethnic Affairs, unreported, Federal Court, 28 July 1987 per Wilcox J. At p.8 and 13.” (CB p.136.1)
It was submitted that the applicant’s position was that his life was in danger because he was the eldest son of a Shia leader and that even the average Shia person faced danger and was not safe. It was further submitted that the applicant referred to people who had some connection to his father being in danger and told the Tribunal that he too was liable to be killed because of his connection to his father. In reference to the policeman’s death, it was submitted that the applicant noted that even a policeman was liable to suffer death. The Tribunal noted:
“When the Tribunal asked the applicant why the SSP would target him he replied ‘they killed the author who wrote the book about my father’. The applicant then indicated that his real threat related to being the son of his father.” (CB p.135.7)
It was submitted that the authority of Periannan Murugasu v Minister for Immigration & Ethnic Affairs (“Periannan”) per Wilcox J at p.8 and p.13 could only be applied by the Tribunal if the applicant was claiming fear only from incidental violence and therefore it misapplied the law when it was not the case and thus made jurisdictional error.
In respect of ground 2(c) the pleaded particulars of that ground appear at CB p.135.4 as follows:
“Apart from the applicant’s assertion that he was on a hit list the applicant provided no satisfactory evidence of why he would be targeted by militant Sunnis because of his father’s role in the Shia community.”
The applicant gave evidence as follows:
(i)His siblings were forced to move between places for safety.
(ii)He was the eldest child
(iii)His father’s friend who wrote the biography about his father was killed
Respondent’s submissions
Mr R Beech-Jones of Counsel, appearing for the respondent, filed written submissions prior to the hearing. In respect to ground one, it was submitted that the applicant’s submissions on this ground wrongly suggested that the Tribunal was under some obligation either to challenge each assertion being made, or to accept it as an uncontradicted fact. It was submitted that the Tribunal did not have to reveal its thought processes: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (“Alphaone”) at 591–2, as quoted with apparent approval by the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex partePalme (“Palme”) at 332 [22]. Counsel submitted that it was for the Tribunal to consider and assess the evidence before it, and it had no obligation to challenge the applicant’s evidence.
It was submitted that nothing that the applicant had placed before the delegate or the Tribunal indicated that actual harm had taken place to his mother or his brothers or sisters. Counsel contended that an inference was able to be drawn from the absence of evidence of harm and referred to the transcript of the applicant’s affidavit (p.12.6) where the Tribunal put to the applicant the effect of that evidence by saying: “What I am saying is, your brothers and sisters are related to your father and they are living in Pakistan, none have been harmed”. It was submitted that the applicant did not deny the correctness of that suggestion and instead sought to explain the lack of actual harm suffered by members of his family by reason of them “keep running around” and he attempted to explain how he said it was that members of his family had avoided being harmed, rather than asserting, contrary to the Tribunal’s suggestion, that one or more of them had in fact been harmed. Counsel submitted that it was reasonable and legitimate for the Tribunal to regard the applicant’s response as confirming the impression that it had gained from the material that was before it, viz that no actual harm had occurred to members of the applicant’s family.
Secondly in respect of this ground, Counsel submitted that the important thing was not whether there was positive evidence of members of the applicant’s family remaining in Pakistan not being harmed, as opposed to an absence of positive evidence of actual harm having occurred, but rather that by either route there was little support for the applicant’s claim that his father’s profile at the time he died in November 1994 could give rise to a well-founded fear of persecution of the applicant in 1998. It was further submitted that the Tribunal was entitled to conclude that the lack of evidentiary support for the applicant’s claim that he would be subjected to secondary persecution by reason of his father’s profile was a proper basis for rejecting that claim and it did not have to regard vague references to “keep running around” as amounting to such evidence.
Counsel submitted that, alternatively, it remained the case that there was no evidence before the Tribunal that any member of the applicant’s family had been harmed and the Tribunal’s comment to this effect should beneficially be read as meaning that there was no evidence that any of them had been harmed by the Sunnis, despite a clear opportunity to place any such evidence before the Tribunal (CB p.135.4). In any event, it was submitted, the comment as to the lack of harm suffered by the applicant’s family was only a factual finding on the evidence that was before the Tribunal and even if that was a wrong finding of fact, it did not amount to legal error, let alone a jurisdictional error. Counsel contended that this could not amount to WednesburyUnreasonableness because that attached to the Tribunal’s ultimate decision to affirm the decision of the delegate, or some step in reaching that conclusion, not mere findings as to evidence, which was for the Tribunal alone to determine: see Associated Provincial Picture Houses Ltd v Wednesbury Corp (“Wednesbury Unreasonableness”). It was submitted that a claim of Wednesbury Unreasonableness did not entitle an applicant for review to engage this Court in merits review.
In respect of ground 2, it was submitted that when the Tribunal referred to incidental violence, it was dealing with the applicant’s case upon an alternative basis of a claim to have a well-founded fear of persecution by reason of communal violence, independently of the unsuccessful claim based on the applicant’s father’s profile, and the unsuccessful claim based on being a Shia advocate (which in turn was based on nothing more than a 10 minute speech given in 1994). Counsel submitted that the Tribunal was characterising the risk to the applicant as being random violence arising from communal violence, rather than violence inflicted upon him for a Convention reason and there was no misunderstanding of the case being bought and accordingly no factual, legal or jurisdictional error.
In respect of ground 3, Counsel submitted that the applicant asserted that there was a jurisdictional error in the Tribunal’s statement that: “Apart from the applicant’s assertion that he was on a hit list the applicant provided no satisfactory evidence of why he would be targeted by militant Sunnis because of his father’s role in the Shia community” (emphasis added) (CB p.135.4). It was submitted that the particular to this ground of review referred to the applicant’s claim that his siblings were forced to move between places for safety, that he was the eldest child, and that his father’s friend who wrote a biography about his father was killed. Counsel contended that the Tribunal was not saying that there was no evidence in support of the applicant’s claims, but rather that there was no evidence which it regarded as being satisfactory. It was submitted that it was the Tribunal’s jurisdictional task to weigh and assess the evidence and to reach conclusions and there was no error in the Tribunal forming the view that the evidence provided was not satisfactory. Counsel submitted that the applicant, by the particulars to this ground, and repeated in his submissions, seemed to suggest that his claims in those particulars amounted to “satisfactory” evidence and that was nothing more than a challenge to the facts found by the Tribunal and as such an attempt at impermissible merits review.
It was submitted that, as noted above, even if any of the grounds relied upon by the applicant were capable of being made out, they did not meet and overcome the finding of effective protection. Counsel further contended that the finding of effective protection was fatal to the applicant’s challenge to the Tribunal’s decision.
Reasons
In respect of the first ground, I am satisfied that the applicant was not in fact asserting that actual harm had occurred. Threats were being made and there was material that supported that proposition but there was no evidence of past harm. It was legitimate for a Tribunal, in the absence of allegations of harm, to infer that because nothing had been alleged it had not occurred: see SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (“SFGB”) per Mansfield, Selway and Bennett JJ at [30]:
“That the Tribunal could have reached various conclusions based upon the lack of such reports.”
In the case of SFGB reports of persecution were made on the basis of ethnicity or religion by members or supporters of the former Taliban regime. The Full Court contemplated that a Tribunal was entitled to reach conclusions, not only on the basis of the presence of evidence but on the basis of the absence of evidence. Such are the circumstances of the present case. The Tribunal inferred that harm had not occurred, put that proposition to the applicant which the applicant did not dissent but sought to explain why that was the case. There was no suggestion, beyond some references to threats being made, of any actual harm to any member of the applicant’s family who remained in Pakistan. The Tribunal member put this to the applicant during the hearing and reference is made to the transcript (p.11) where the applicant stated:
“They want to kill all my brothers because of my father.”
The Tribunal member responded to the applicant saying:
“But they are living in Pakistan and none of them have been killed.”
The applicant’s response was:
“Lucky. They are still alive. You want them to be killed.”
After some discussion, the questioning continued and the Tribunal member put to the applicant:
“What I am saying is; your brothers and sisters are related to your father and they are living in Pakistan, none have been harmed.”
This was followed by a number of questions and exchanges which can be summarised in that the applicant’s family members kept moving around and managed to avoid any harm. I agree with the submission that it was open for the Tribunal to interpret from the applicant’s responses that there was not an assertion of actual harm.
I was referred to the test in Rajamanikkam per Gaudron and McHugh JJ at [58]:
“Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision-making process. And unless it is possible to say on a proper analysis of the decision, the reason for the decision or the decision-making process that, a particular finding has not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding.”
What had been reviewed was not factual findings as to individual parts of the decision but the ultimate finding affirming the decision of the delegate not to grant protection visas. In the pleadings the sentence being complained of was:
“The applicant’s mother and six brothers and sisters all live in Pakistan practising religion and none have been harmed by the Sunnis.”
If you apply the test that comes from their Honours Gaudron and McHugh JJ and simply strike out that sentence, you are unable to conclude in the absence of that sentence the same decision would have been reached. That sentence is not indispensable in the final conclusion. The Tribunal was simply not satisfied as to the state of evidence as to why the applicant would be targeted by militant Sunnis because of his father’s role in the Shia community.
Having considered the opposing arguments presented by Counsel for both parties in respect of ground 2(a), I do not believe that the applicant’s arguments can be sustained and I accept the respondent’s submissions.
I note the applicant’s line of argument that if the Tribunal member hears a piece of evidence and does not necessarily agree with it, then the Tribunal member is obliged to go back and indicate to the applicant. The authority in Alphaone at 91-92, as quoted with apparent approval by the High Court in Palme at [22], the Tribunal was under no obligation either to challenge every assertion being made, or to accept it as uncontradicted fact. It was incorrect to say that the Tribunal must reveal its thought processes in these circumstances. The Tribunal was entitled to sit and listen to the evidence being presented. One would hope and expect in a case such as this that the Tribunal member would then deliberate upon the case and at the end of the day would not have to accept a piece of evidence nor have to reveal its thought processes in coming to its decision.
In respect of the second ground, his Honour Wilcox J in Periannan at [13] made the observation that:
“The word ‘persecution’ suggests a course of systematic conduct aimed at an individual or a group of people. It is not enough that there be a fear of being involved in an incident violent as a result of civil or communal disturbances.”
The applicant’s pleading suggested that the Tribunal made a jurisdictional error by applying this principle by looking at communal violence in isolation. The Tribunal found against the applicant on his primary claim, that is the claim based on his father’s role in the Shia community, and then the Tribunal went a step further and considered the wider claim. In its decision, the Tribunal made the following observation:
“The Tribunal notes that at the hearing the applicant in his evidence referred to the death of his father’s friend and the death of his wife’s cousin a famous poet, the death of the author and the death of a policeman.” (CB p.136)
It was submitted that the death of a policeman did not appear to be in any way related to the father’s death or the applicant’s claim that because of these killings, life was not safe. The applicant also provided newspaper reports of incidents of communal violence which were of similar relevance. The Tribunal member was not just accepting the applicant’s claim as originally presented by way of the March 1995 letter to the delegate, but was also dealing with the claim based on communal violence. I do not accept that the Tribunal misunderstood the greater claim being made but rather for the sake of completeness dealt with the claim based on communal violence as a separate issue. The Tribunal was not mistakenly looking at the issue instead of the case based upon the applicant’s father but was looking at the issue in addition. In effect, the Tribunal was considering the applicant’s claims at different levels to ensure that nothing was overlooked. Therefore, I do not accept that the Tribunal misunderstood the applicant’s claims and applied the wrong principle. I believe the Tribunal was undertaking a further examination and was not mixing or confusing the issues.
In respect of ground 3, I believe the analysis hinged on the question of whether evidence was satisfactory or unsatisfactory. The statement in dispute appeared in the Tribunal decision as follows:
“The applicant provided no evidence of why he would be targeted by militant Sunnis.” (CB p.135)
Although not contained within the sentence, I believe the Tribunal’s reasoning was based on “no satisfactory evidence”. It was the Tribunal’s role to come to such a decision. The Tribunal and the Tribunal alone forms the view as to the weight of the evidence: Rajamanikkam. The Tribunal was characterising the evidence as simply being satisfactory or not satisfactory which was its role and did not lead to jurisdictional error.
Conclusion
I have had the benefit of detailed written and oral submissions from both parties. I am not satisfied that any jurisdictional error has been identified and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 January 2005
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