SZCXP v Minister for Immigration

Case •

[2007] FMCA 581

•

30 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCXP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 581
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Fiji claiming fear of persecution by way of domestic violence – no Convention nexus – no jurisdictional error.
Migration Act 1958 (Cth), ss.36(2), 65, 91R, 424, 427, 474
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1; 187 ALR 574 referred to
SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 followed
Attorney-General (NSW) v Quin (1990) 170 CLR 1 followed
Minister for Immigration & Multicultural & Indigenous Affairs (2004) 207 ALR 12 followed
SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 followed
SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 followed
Applicant: SZCXP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1842 of 2006
Judgment of: Scarlett FM
Hearing date: 20 November 2006
Date of Last Submission: 20 November 2006
Delivered at: Sydney
Delivered on: 30 April 2007

REPRESENTATION

Applicant: In person
Counsel for the Respondent: Mr Mitchell
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The title of the first respondent is changed to Minister for Immigration and Citizenship.

  2. The application is dismissed.

  3. The applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1842 of 2006

SZCXP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal signed on 16th May and handed down on 6th June 2006.


    The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class XA) visa.

  2. The applicant seeks a declaration that the decision was made in excess of jurisdiction and is consequently void and of no effect. She also seeks an order by way of mandamus requiring the Tribunal to determine the matter according to law. There is no mention of any order by way of certiorari but I would expect that the applicant, who is not legally represented, seeks an order that the Tribunal decision be quashed.

  3. I note that the applicant seeks an order that she be granted a bridging visa until a decision is made by the Court. The Court does not have any jurisdiction to grant a Bridging visa, which is a matter for the Minister.

Background

  1. The applicant is a citizen of Fiji who arrived in Australia on


    2 November 1991. She applied for a protection visa on 25 August 1995, but her application was refused. She applied for a review of that decision from the Refugee Review Tribunal, but the delegate’s decision was affirmed on 13th June 1997.

  2. The applicant sought judicial review of the Tribunal decision, and on 1st February 2006 the Federal Magistrates Court made orders by consent, quashing the Tribunal decision and remitting the application to the Tribunal for determination according to law.

Application for review by the Refugee Review Tribunal

  1. The Refugee Review Tribunal wrote to the applicant on


    21st March 2006, inviting her to attend a hearing on 19th April 2006. The applicant, through her authorised recipient, provided to the Tribunal copies of a Police Brief concerning an assault by her husband on one of her sons. She also submitted a Response to Hearing Invitation in which she asked the Tribunal to take evidence from her two sons. She also advised the Tribunal that her sons no longer needed to be included in her application for review, as they had been granted permanent residence. The applicant also provided a copy of her passport issued by the Republic of the Fiji Islands.

  2. The applicant attended the Tribunal hearing and gave evidence.


    Her two sons also gave evidence about the domestic violence that they had suffered at the hands of their father, the applicant’s ex-husband. After the hearing, the Tribunal forwarded to the applicant’s authorised recipient copies of three documents that had been discussed at the hearing. Those documents were:

    (1)United States Department of State Country Report on Fiji for 2005;

    (2)United States Department of State International Religious Freedom report on Fiji for 2004; and

    (3)DFAT report 332 of 15th October 2004.

  3. The Tribunal signed its decision on 16th May 2006. A copy of the Decision Record can be found on pages 194 to 210 of the Court Book. The Tribunal decision summarises the applicant’s claims and evidence on pages 196 to 204. The Tribunal noted that the applicant claimed to be a member of a particular social group, women, and she had been the victim of domestic violence by her former husband, who has now returned to Fiji. The applicant claimed to fear for her life if she were to return to Fiji because the police could not protect her.

  4. The Tribunal noted that the applicant claimed to be afraid of her husband if she were to return to Fiji. She said that he had called his friends about her whereabouts and she feared that he would look for her and bash her. The applicant told the Tribunal that she would go to the police if her husband assaulted her, but he had friends in the police force and they would not do anything to help her. The Tribunal said:

    I asked the applicant why she thought her husband would seek her out and assault her if she returned to Fiji. She said she does not know why, but she knows that he would. Her husband has a lot of contacts and she could not return without him knowing.[1]

    [1] See Court Book at 199

  5. The Tribunal also noted the applicant’s general fears about returning to Fiji:

    The applicant said that she has no place to go in Fiji and she is really afraid to go back; she has spent all her life with her two boys and she does not know what she would back in Fiji. She has nobody else, and nowhere to go.[2]

    [2] Court Book at 199

  6. The Tribunal considered the evidence of the applicant’s two sons and also a written submission by the applicant’s adviser. The Tribunal considered external country information, being the two reports from the United States Department of State and the DFAT Report referred to at [7] above.

Findings and reasons

  1. The Tribunal’s findings and reasons are set out on pages 204 to 210 of the Court Book. The Tribunal found that the applicant was a national of Fiji and assessed her claims against that country. The Tribunal also noted that the applicant’s two sons, who had been included in the applicant’s protection visa application, had both been granted permanent residence in Australia.

  2. The Tribunal noted that the applicant’s claims to refugee status were focused on her fear that she would face violence at the hands of her husband if she returned to Fiji. The Tribunal was satisfied that the harm the applicant’s husband inflicted on her was done “for private reasons to do with his own personality, rather than because of the applicant’s membership of any identifiable particular social group.”[3]

    [3] Court book at 205

  3. The Tribunal considered whether protection might be denied or withheld from the applicant because of her race, her membership of a particular social group comprised of women, or for another convention reason. However, the Tribunal was not satisfied that this was the case, saying:

    Firstly, while the independent evidence suggests that the effectiveness of the Fiji police force is hampered by inefficiency and corruption, there is no evidence before me which suggests that police officers fail to treat domestic violence against women seriously, or that they discriminate against any identifiable group for a Convention reason…I am not satisfied, in these circumstances, that the Fijian authorities systematically condone or tolerate domestic violence against women, against any of the subgroups of women suggested in this case, or against Indian women.[4]

    [4] Court Book at 206

  4. The Tribunal considered whether there was any evidence that would support a finding that the applicant had a well founded fear of persecution for reasons of her religion or her race. In each case, the Tribunal was not satisfied that there was any credible evidence that would support such a finding.

  5. The Tribunal also looked at matters personal to the applicant, under the heading of “Other considerations” and acknowledged that the applicant might have difficulty finding employment and settling back into Fijian society after an absence of over 15 years. The Tribunal found:

    The applicant claims that she faces problems in Fiji as a woman alone, however, none of the evidence she has presented supports a finding that there is a real chance that she would face serious harm amounting to persecution for this reason…Most particularly, I accept that the applicant would be very distressed at leaving her sons, who are now permanent residents of Australia. However, this is not a matter that gives rise to a claim to refugee status.[5]

    [5] Court Book at 208

  6. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal found that the applicant did not satisfy the criterion in s.36(2) for a protection visa and affirmed the delegate’s decision not to grant the applicant a visa.

Application for judicial review

  1. The applicant commenced proceedings in this Court on


    30th June 2006. In her application, the applicant sets out five grounds, summarised as follows:

    (1)The Tribunal failed to exercise its jurisdiction by not addressing the applicant’s case insofar as it was based on her claim to fear harm because she is an ethnic Indian woman who suffered domestic violence and would not have realistic protection in Fiji.

    (2)The Tribunal erred in law in finding that there was no real chance that the applicant faced serious harm from her husband and that the violence suffered was not motivated by her membership of any particular social group within the terms of the Refugees Convention but rather was a function of her husband’s own personality.

    (3)

    The applicant was denied procedural fairness in that the Tribunal found that she had no real chance of facing serious harm from her husband, for Convention reasons, should she return to Fiji.


     

    This finding is contrary to the evidence.

    (4)It is a denial of natural justice to make a finding on a critical matter contrary to the probative evidence.

    (5)The Tribunal ignored the applicant’s claim as a woman at risk who does not have any support in Fiji and who does not have the skills and ability to relocate. The Tribunal’s rejection of the claim indicates that it did not consider the full extent of the applicant’s claim to have a subjective and objective well founded fear of persecution.

The Applicant’s submissions

  1. The applicant filed a written outline of submissions on


    16th November 2006. In that submission, the applicant largely reiterates her factual claims. She makes the following specific claims:

    a)The Tribunal overlooked the behaviour of her ex-husband.

    b)Country information showed that violence against women had increased by 25%.

    c)Her claims are based on the Convention ground of membership of a particular social group. The applicant fears her husband and the authorities will not protect her in Fiji.

    d)

    The Tribunal had evidence before it of the applicant’s husband’s record of violence to her and her son.


    The Tribunal accepted that the husband’s treatment amounted to serious harm. The Tribunal failed to understand that the applicant’s relatives could not help her.

    e)The Tribunal overlooked the fact that the applicant is unable to return to Fiji and live there without being harmed by her husband.

    f)The Tribunal made an error of law in not finding that the applicant would be subjected to serious harm from her husband (which seems to contradict the applicant’s claim referred to in 2(d) above) and in doing so failed to follow s.91R(1)(b) of the Migration Act.

    g)The Tribunal failed to take into consideration the applicant’s Convention claim of belonging to a particular social group, namely women in Fiji. The law is lenient to men who inflict domestic violence on women and the police do little to protect women in those circumstances.

    h)Women in Fiji possess characteristics and attributes that make them distinguishable from the rest of society and the Tribunal accepted that women form a particular social group in Fiji for the purpose of the Convention.

    i)The applicant referred the court to the decision in Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1; 187 ALR 574, submitting that the Convention test can be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention-related.

    j)The Tribunal failed to consider that the applicant was unable to relocate to another place within Fiji.

    k)The Tribunal failed to comply with its obligation to undertake further factual inquiries as to the future harassment of the applicant in Fiji by her husband.

    l)The Tribunal failed to accord procedural fairness in, apparently, failing to ask itself about the critical circumstances that would surround the applicant in Fiji as an Indian separated woman.

    m)The Tribunal made an unreasonable decision and failed to take the applicant’s evidence into account correctly.

    n)The Tribunal overlooked important factual statements.

  2. The applicant made an oral submission to the court that the Tribunal had failed to consider that she was a member of a particular social group, being the wife of a man who was a victim of the last coup, referring to her husband whose business had failed as a result of the coup. The applicant’s son addressed the court on his mother’s behalf, pointing out the inadequacy of the protection offered by the police in Fiji and the fact that the Government in Fiji was itself suffering problems. He said that the Army was running the country. He also said that the Tribunal did not deal with the question of the use of violence as a result of the 1987 coup.

Conclusions

  1. The applicant’s written submissions do not necessarily address the grounds in the applicant’s application, so I will deal with all of the points raised in each document. Neither document accords with the applicant’s case as it appears to have been presented to the Tribunal, and both documents appear at times to have been prepared without reference to the Tribunal’s findings and reasons at all.

  2. In dealing with the applicant’s grounds of review, it should be remembered that the applicant’s case was presented to the Tribunal as one of a fear of domestic violence:

    The applicant made only peripheral mention of any fear of racial persecution in the current proceedings, and indeed, Mr Laba Sarkis[6] submitted that her case is now based entirely on her fear of domestic violence;[7]

    [6] The applicant’s migration adviser

    [7] See Court Book at 207. See also at 205

  3. The applicant’s first ground claims that the Tribunal failed to address the applicant’s claim of a fear of harm as an ethnic Indian woman who suffered domestic violence and would not have realistic protection in Fiji.

  4. The Tribunal considered the fact that the applicant is an Indian and noted that some Indo-Fijians may face a level of discrimination in Fiji, and some Indo-Fijians have been the victims of racially-motivated violence. The Tribunal stated that the applicant had put forward no persuasive evidence to support a finding that there was a real chance that she would be the victim of racially-motivated harm amounting to persecution, including harm of an essentially criminal character.[8]

    [8] Court Book at 207

  5. The Tribunal also considered the applicant’s claim that she faced problems in Fiji as a woman alone, but found that none of the evidence that she presented supported a finding that there was a real chance that she would face serious harm amounting to persecution for that reason.[9]

    [9] Court Book at 208

  6. The Tribunal certainly considered the applicant’s claim to fear domestic violence and accepted that the applicant had suffered harm by way of violence at the hands of her husband over a number of years. The Tribunal approached the claim in this way:

    Where an applicant fears harm inflicted by a private individual, rather than an agent of the state, as in this case, it is necessary to determine, firstly, whether the harm is inflicted for a Convention reason. In the present case, the applicant argues that the harm she fears from her husband is directed at her because she is a member of a particular social group, comprised of women, or possibly “Fijian women”, “wives of estranged husbands”, or “married or separated women”, as was suggested by Mr Laba Sarkis.

    Having considered all the evidence presented by the applicant and her two sons about the nature of the relationship between the applicant and her husband, I am satisfied that the harm he inflicted on her was done for private reasons to do with his own personality, rather than because of the applicant’s membership of any identifiable social group, including those listed above.[10]

    [10] Court Book at 205

  7. In my view the Tribunal did consider the applicant’s claim to have suffered domestic violence and made a finding that was supported by the evidence before it. The Tribunal also considered whether protection from harm might be denied or withheld by the authorities on a discriminatory basis for a Convention reason, as set out in Minister for Immigration & Multicultural Affairs v Khawar (supra). The Tribunal considered whether protection might be denied or withheld on Convention grounds such as race or membership of a particular social group comprised of women, or for another Convention reason.


    The Tribunal was satisfied that that was the case, saying:

    I am not satisfied, in these circumstances, that the Fijian authorities systematically condone or tolerate domestic violence against women, against any of the subgroups of women suggested in this case, or against Indian women…There is no evidence before me to suggest that there is a real chance that any failure on the part of the authorities to provide protection to the applicant was previously, or would be in the reasonably foreseeable future, for any Convention reason.[11]

    [11] Court Book at 206

  8. The Tribunal clearly considered all aspects of the applicant’s case contained in the first ground of review, and the ground has not been made out.

  9. The applicant’s second ground is that the Tribunal erred in law in finding that there was no real chance that the applicant faced serious harm from her husband and that the violence suffered was not motivated by her membership of any particular social group within the terms of the Refugees convention but rather was a function of her husband’s own personality.

  10. The first thing to be said, as counsel for the Minister pointed out, is that the Tribunal did not make a finding that there was no real chance that the applicant faced serious harm from her husband. Rather, the Tribunal found that there was no Convention nexus with the violence because the Fijian authorities did not systematically tolerate or condone violence against women, or any subgroup of women in Fiji.

  11. The finding that the violence that the applicant suffered was not motivated by her membership of a particular social group within the terms of the Refugees Convention but was a function of the applicant’s husband’s own personality was not an error of law. It was a finding of fact based on the evidence. This ground is no more than an attempt to challenge a factual finding by the Tribunal and there is no scope for merits review in an application for judicial review. As Gyles J said in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]:

    Insofar as the Federal Magistrates Court is concerned, it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.

  1. The applicant’s second ground of review fails.

  2. The applicant’s third ground of review is that she was denied procedural fairness in that the Tribunal found that she had no real chance of facing serious harm from her husband for Convention reasons if she should return to Fiji. The applicant claims that this finding is contrary to the evidence.

  3. This ground does not relate to procedural fairness at all. There is no evidence that the Tribunal denied procedural fairness to the applicant. The applicant was invited to attend a hearing where she gave evidence. The Tribunal heard evidence from her two sons, as she requested.


    The Tribunal wrote to the applicant after the hearing, sending her copies of the independent country information and inviting her comments.

  4. The finding by the Tribunal was not made contrary to the evidence. There was evidence that allowed the Tribunal to form that view.


    This ground is no more than an attempt at merits review and cannot be sustained.

  5. The applicant’s fourth ground is that it is a denial of natural justice to make a finding on a critical matter contrary to probative evidence.

  6. The claim of a denial of natural justice is misconceived. It is not a denial of natural justice to make a finding contrary to probative evidence. The task of assessing the evidence is one for the administrative decision maker, in this case the Tribunal, not for the court conducting judicial review. The Tribunal’s findings were open to it and based on the Tribunal’s view of the evidence. It is not for the Court to review the fairness or correctness of the Tribunal’s factual findings (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35]-[7]). This ground fails

  7. The applicant’s fifth ground is that the Tribunal ignored the applicant’s claim as a woman at risk who does not have any support in Fiji and who does not have the skills and ability to relocate. The applicant claims that the Tribunal’s rejection of the claim indicates that it did not consider the full extent of her claim to have a subjective and objective well founded fear of persecution.

  8. I am satisfied that the Tribunal did consider the applicant’s circumstances and what she would face on returning to Fiji after such a long absence. The Tribunal’s conclusions appear at page 208 of the Court Book under the heading Other considerations. The fact that the Tribunal rejected the applicant’s claim does not indicate that the Tribunal did not consider it. The applicant’s fifth ground fails

  9. Turning now to the applicant’s written submissions, she makes some fourteen claims which I have summarised in subparagraphs 19 (a) to (n). I will deal with these claims in order.

    a)The Tribunal did not overlook the behaviour of the applicant’s ex-husband; quite the reverse, in fact. The Tribunal found that the applicant was the victim of beatings inflicted by her husband on more than one occasion over a number of years.[12]

    b)Whilst country information may well have shown that violence against women in Fiji had increased, this does not provide any evidence that the applicant would be likely to be subject to violence with a Convention nexus. The Tribunal considered this matter, saying:

    While the reports cited above note that domestic violence and violence against women is a problem, this does not, of itself, support a finding that all women are persecuted in Fiji, or that the state discriminates against them because they are women.[13]

    c)The Tribunal considered the applicant’s claims of membership of a social group:

    In the present case, the applicant argues that the harm she fears from her husband is directed at her because she is a member of a particular social group, comprised of women, or possibly ‘Fijian women’, ‘wives of estranged husbands’, or ‘married or separated women’, as was suggested by Mr Laba Sarkis.[14]

    The Tribunal rejected that claim, finding that the harm that the husband inflicted upon her was done for private reasons rather than because of her membership of a particular social group. The Tribunal also considered and rejected the applicant’s claims of denial or withholding of state protection for a Convention reason. [15]

    [12] Court Book at 205

    [13] Court Book at 206

    [14] Court Book at 205

    [15] Court Book at 206

    d)The Tribunal accepted that the applicant’s husband had been violent to her but was not satisfied that there was any Convention nexus.[16] The Tribunal accepted that the applicant’s relatives would not be in a position to offer material support but found that the applicant would not be completely lacking in emotional and family resources.[17] This was a factual finding that was open to the Tribunal on the evidence.

    e)The Tribunal did not overlook the applicant’s claim that she would be unable to return to Fiji and live there without being harmed by her husband. Rather, it considered the possibility of future violence and found that any such violence in the future would be motivated by personal reasons and would not be Convention related.[18] The Tribunal also found that any failure on the part of the authorities to protect her would not be Convention related but would arise from the individual circumstances of the applicant and her husband.[19]

    f)The Tribunal did not make an error of law by not finding that the applicant would be subjected to serious harm from her husband and thereby failed to follow s.91R (1)(b) of the Migration Act. This argument is misconceived. Section 91R (1) of the Migration Act says:

    [16] Court Book at 205

    [17] Court Book at 208

    [18] Court Book at 206 and 207

    [19] Court book at 207

    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

    (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

    (b) the persecution involves serious harm to the person; and

    (c) the persecution involves systematic and discriminatory    conduct.

    As the Tribunal found that the harm suffered by the applicant was not Convention-related, s.91R(1) does not apply.

    g)As has been previously mentioned at (c) above, the Tribunal did consider whether the applicant belonged to a particular social group but found that the harm done to her by her husband was not done because of her membership of any identifiable social group.

    h)The Tribunal considered whether or not the applicant was a member of a particular social group who had suffered harm because of that fact and rejected the claim.

    i)The Tribunal did consider the decision in Khawar and referred to it[20] in the reasons for decision (see above at [27]).

    [20] Court Book 195 and 206

    j)The submission claims that the Tribunal failed to consider that the applicant was unable to relocate to another place within Fiji, but, as the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Fiji for a convention reason, the question of relocation was not a relevant consideration. The Tribunal did not fall into error in this regard.

    k)The Tribunal did not fail to comply with any obligation to undertake further factual inquiries as to the future harassment by the husband. There was no obligation on the part of the Tribunal to make further inquiries. Whilst the Tribunal has the power to seek further information under ss.424 and 427, it has no obligation to do so. The Tribunal’s power under s. 424 is clearly discretionary and the tribunal does not have any duty to investigate the applicant’s claims (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [42]-[43]; SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 at [12]). There is no general obligation on the Tribunal to make further inquiries (see SZBVM v Minister for Immigration & Citizenship [2007] FCA 332). In this case, the Tribunal had already found that the harm done by the husband to the applicant was not Convention-related, so any further inquiries would not have assisted the Tribunal in any event. It is not the task of the Tribunal to make out the case for an applicant. The applicant must satisfy the Tribunal that the applicant meets the criteria for a visa (Migration Act, s.65).

    l)The applicant’s claim of a breach of procedural fairness fails, even if the Tribunal had failed to ask itself about the critical circumstances that would surround the applicant in Fiji as an independent separated woman. The Tribunal considered that very claim at pages 205, 206 and 207 of the Court Book. Further, the Tribunal said at 208:

    The applicant claims that she faces problems in Fiji as a woman alone, however, none of the evidence she has presented supports a finding that there is a real chance that she would face serious harm amounting to persecution for this reason.

    m)As to the claim that the Tribunal made an unreasonable decision and failed to take the applicant’s evidence into account correctly, this appears to be no more than a challenge to the Tribunal’s factual findings. Merits review is not available on judicial review. I am unable to discern any unreasonableness in the Tribunal decision, which appears to be based on the evidence. The Tribunal did, in my view, give a thorough consideration to the applicant’s evidence.

    n)

    The applicant claims that the Tribunal overlooked important factual statements but does not state what they are.


    The applicant has not shown that the Tribunal has overlooked any factual material and my reading of the decision leaves me firmly with the view that the Tribunal considered the applicant’s evidence very thoroughly.   

  10. I am not satisfied that the applicant has made out any jurisdictional error on the part of the Tribunal, either in the grounds in the application or in the applicant’s submissions. I am mindful of the fact that the applicant is not legally represented, and my independent reading of the decision does not show any arguable case for any jurisdictional error.

  11. As there is no jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. As a privative clause decision, it is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court (s.474(1)).

  12. The application will be dismissed. I will hear submissions on costs.

  13. The application will be dismissed.

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

Associate:  S.Polley

Date:  4 April 2007


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