SZDFF v Minister for Immigration - [2006] FMCA 433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 433

MIGRATION – RRT – Lebanese applicant – fears of persecution from politician and Muslim militias – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 91R(1)(a), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Applicants:

SZDFF, SZDFG, SZDFH & SZDFI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 989 of 2004

Judgment of:

Smith FM

Hearing date:

22 March 2006

Delivered at:

Sydney

Delivered on:

22 March 2006

REPRESENTATION

Counsel for the Applicants:

Mr C Jayawardena

Solicitors for the Applicants:

Chandra Jayawardena Solicitor

Counsel for the First Respondent:

Mr P Braham

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The first applicant must pay the first respondent’s costs in the sum of $5,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 989 of 2004

SZDFF, SZDFG, SZDFH & SZDFI

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 5 April 2004 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated

17 December 2002 and handed down on 21 January 2003. The Tribunal affirmed a decision of a delegate which refused to grant protection visas to the applicants.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see sch.1 cl.41 of the amending Act and the Acts Interpretation Act 1901 (Cth), s.8).
The Court's powers under s.483 are the same as the Federal Court powers under s.39B of the Judiciary Act 1903 (Cth). They are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal's decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants’ refugee claims should be believed or accepted, nor whether they qualify for protection visas.
The applicants in the proceedings are a mother and four sons, who arrived in Australia in October 2000 on visitors visas from their country of nationality, Lebanon. They had relatives already in Australia, including a daughter of the mother who had recently been married and whose marriage was in difficulties.
The mother put herself forward as the principal applicant and, although there was a reference in her original visa application to one of her sons having a separate history of persecution, no such separate claims were made subsequently to the Department nor to the Tribunal. I shall therefore in these reasons refer to the mother as the applicant, as did the Tribunal.

The applicant’s claims

The visa application contained a brief statement supporting the applicant's refugee claims:
36. Why did you leave that country?
We cannot go back to Lebanon as I will be persecuted killed if returned to Lebanon. I left Lebanon because I was wanted and my son was wanted by the Islamic militia or parties and not being protected by any government.
These people thought I was helping Lahad’s Army and the Jews in getting information and other means. My son and I were previously been beaten, detained and tortured and accusations being made against us. They classified us as being traitors to the Arab Countries and to my religion.
I will forward a complete statement of claims very soon outlining what would happen to me if I went back and identify the parties who want to persecute me at any cost and outline why the allegations were framed against me.
A "complete statement of claim" was never presented to the Department. Nor was it presented to the Tribunal until shortly before a hearing to which the applicant was invited, notwithstanding that the applicant was assisted at all stages by a migration agent.
A delegate refused the applications on 27 February 2001 and the applicants appealed to the Refugee Review Tribunal on 26 March 2001. Their application said merely:
A full statement of claim is being translated and will be forwarded to you in due course.
The statutory declaration which was presented to the Tribunal on

27 September 2002, made no suggestion that one of her three sons who were secondary applicants to her application had been "beaten, detained and tortured" as originally claimed. However, the Tribunal made nothing of that inconsistency.
The applicant’s statement presented a history containing several separate elements, upon which she claimed to need Australia's protection. She first referred to the death of a elder son in 1990, for which she accused a political leader, Mrad, who was still active in Lebanon. She then referred to the events occurring in June of 2000, when she claimed that a Muslim militia suspected her of collaborating with a pro Israeli militia, the South Lebanon Army or “SLA”. The SLA had been set up to support the Israeli occupation of a strip of southern Lebanon, and its former members became the subject of investigation, prosecution and harassment at the time of the Israeli withdrawal from that territory in mid 2000. The applicant claimed that a person for whom she performed housekeeping services was suspected as a supporter of the SLA. Although she was not herself active in support of the SLA, she claimed that she had been taken into detention and held for questioning by a Muslim militia force for two days before being released. She then claimed to have been watched until obtaining an Australian visa and travelling to Australia.
A third element in her claims to fear returning to Lebanon arose from the circumstances of the breakdown of her daughter's marriage in Australia. Her daughter's husband, who came from Lebanon and had family there, had threatened the applicant and her daughter, and according to the applicant: "he had arranged with his family in Lebanon to kill me". She claimed that as a result of these threats an uncle in Lebanon had committed suicide. She presented evidence of the death of her uncle and of domestic violence in the household of the daughter, but no other corroboration of her claims.
The applicant attended a hearing before the Tribunal on 1 October 2002. A transcript of the hearing is not in evidence before me, but the Tribunal gives a description which was not challenged by the legal representative of the applicant. I shall refer to some relevant passages further below. I note that, when asked by the Tribunal as to her explanations for the three month delay in applying for a protection visa in Australia:
She stated that her daughter was having difficulties with her husband when she arrived. She stated that her first reason for coming to Australia was the fact that her daughter was about to give birth and that she was having difficulties with her husband. The second reason was to bring her children out for the Olympics to relieve them of the prison like situation they were living in.
The Tribunal indicated that it put to the applicant independent evidence concerning Hezbollah, which was the Islamic militia which she first suggested had conducted her questioning in June 2000. The Tribunal said that she then gave conflicting evidence about who the questioning group, by suggesting that it was a different Islamic militia called al-Jama’a al-Islamiya.
Following the hearing, the Tribunal received a letter from the applicant's agent enclosing an unsworn statement by the applicant, which said:
I just wanted to notify you of an incident that happened a few weeks ago. My home in Lebanon was robbed and smashed, everything inside the house was destroyed including furniture and windows. The neighbours at Lebanon called me in Australia to let me know that they were also asking for me. They made sure my home was in complete ruins before the left. It was like a threat, a warning made to me, they're in search for me.
She claimed that her brother in Lebanon had had a stroke as a result of this. She presented evidence that a person was admitted to hospital for acute subdural haematoma in October 2002.
In its statement of reasons, the Tribunal referred to the claims made by the applicant, and then set out extensive independent evidence concerning the situation of the SLA, and the acts of retribution and response against members of that group when the Israeli withdrawal occurred in mid 2000. The Tribunal referred to further information current in 2002 concerning whether acts of retribution or harassment were continuing. This included statements that: “Hezbollah is not targeting former South Lebanon Army members, collaborators or supporters”.
The Tribunal also identified information about al-Jama'a al-Islamiya. Apart from one report of the beating up of a returning SLA militiaman in March 2001 attributed to that militia, it said: “no evidence was found among the sources consulted by the Tribunal that mentioned the direct involvement of Al-Jama'a Al-Islamiya in harassing former SLA members or collaborators.”
The Tribunal also identified country information concerning the political movements led respectively by the MP for whom the murdered son was claimed to have worked, and the political figure whom the applicant identified as his murderer.

The Tribunal’s reasoning on Hezbollah claim

Under the heading "Finding and Reasons" the Tribunal, in my opinion, sufficiently summarised the applicant's three separate claims as follows:
•   She is suspected of collaborating with the SLA and fears persecution by Hezbollah and other Islamic groups.
•   One of her sons was killed in Tripoli in 1990 and that she suspects that the people behind his murder belonged to the same party as that of the current Minister for Education, Abdel Rahim Mrad, in Lebanon. She fears that Mrad is wary that once her other sons grow up they will try and avenge their brother’s murder and therefore he may harm them.
•   Her daughter’s marriage has fallen apart in Australia and her son-in-law blames her (the applicant) for the breakdown of the marriage. She claims that he is a violent man and has a powerful family in Lebanon. He and his family have threatened her family and she fears harm at the hands of her son-in-law’s relatives if she returns to Lebanon.
The Tribunal then addressed each of those claims under separate headings.
In relation to the first claim to fear Convention related persecution, the Tribunal said that it was “prepared to accept that in June 2000 the applicant was detained by Hezbollah for a period of two days and that she was questioned and mistreated by Hezbollah while in detention.” However, it concluded that it was “not satisfied that there is a real chance that the applicant will face persecution by Hezbollah or any other Islamic group if she returns to Lebanon now or in the reasonably foreseeable future”. The Tribunal gave two separate reasons for this conclusion. The first was:
The applicant was never a member of the SLA, had no political profile, had no association with Israel or its administration in South Lebanon and did not claim to have been suspected of passing sensitive information to the SLA. She only worked as a housekeeper and did not perform any other duties. Having regard to the applicant's profile, the Tribunal is not satisfied that she would be perceived as a collaborator with the SLA.
The second reason was:
In any event, the independent sources consulted by the Tribunal make it clear that former SLA members and their families, or other accused of "collaboration", are not at risk of violent retribution from Hezbollah or other armed organisations in Lebanon; and that Hezbollah is not targeting former SLA members, collaborators or supporters.
The Tribunal then addressed “the applicant's vague suggestion that the hearing at the Islamic militia that was after her may have been al-Jama'a al-Islamiya”, and said that no evidence was found among the sources consulted by the Tribunal to indicate that that group, or any group other than Hezbollah, had been involved in harassing former SLA members or collaborators in the region where she lived.
The Tribunal also addressed the implications of the claims made in the letter sent to the Tribunal after the hearing that her house had been robbed, ransacked and damaged. The Tribunal said:
Even if the Tribunal accepts that her house was robbed and ransacked, the applicant provides no information on who may have been responsible for the incident. The Tribunal notes that the applicant states in her letter that her neighbours had called to tell her that “they” were also asking about her. If that is the case, then it is not unreasonable to assume that the neighbours would have been able to identify or at least describe these people. The applicant, however, provides no information as to who was asking the neighbours about her or why they were asking about her. There was no acceptable evidence before the Tribunal to suggest that the act was not an opportunistic crime committed during the applicant’s long absence from her house; or that it was committed for the reason of her imputed political opinion or any other Convention reason.
For the above reasons, the Tribunal does not accept that the applicant’s house was robbed and ransacked for the reason of her imputed political opinion.

Ground (4) – the Hezbollah claim

The grounds of the amended application which were relied upon in argument before me contain a challenge to the Tribunal's reasoning in relation to the first of its reasons for considering that it was not satisfied that there was a real chance of persecution by Hezbollah if she returned to Lebanon now. The challenge is found in Ground (4) (others were abandoned):
(4) The Tribunal made Jurisdictional Error by breaching s430(1)(b) & s430(1)(d) in The Migration Act 1958 in relation to its conclusions:
Particulars – Page 20 – para 4
“The applicant was never a member of the SLA, has no political profile, had no association with Israel or its administration in S. Lebanon and did not claim to have been suspected of passing information to SLA. She only worked as a house keeper. Having regard to the applicant’s profile, the Tribunal is not satisfied that she would be perceived as a collaborator with the SLA.”
In submissions, the suggested breach of the Tribunal’s duty to provide reasons under s.430(1)(b) and (d) was not pressed as itself providing a ground of jurisdictional error vitiating the Tribunal's decision. As a result of Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, it could not be so contended. However, as I understood the argument of the applicant's legal representative it was contended that the Tribunal's reasoning revealed two errors in the passage extracted.
The first was that the Tribunal was in error in saying “the applicant did not claim to have been suspected of passing sensitive information to the SLA". In this respect, the material before me shows (emphasis added):
i)The applicant's original visa application included the statement "these people thought I was helping Lahad's army and the Jews in getting information and other means".
ii)Her statutory declaration given to the Tribunal said:
The Muslim Militia in our country began to suspect that I was helping Lahad because I was working with Mr Al Khoury and was travelling quite frequently to Jezine. I was questioned and was accused to collaborating with Lahad’s supporting. I was treated like I was a traitor to my own country and to Islam. I denied the accusation and told them I was merely working there to support my family and raise my children. They did not believe me. I used to receive threatening phone calls that I will be killed because I was a collaborator with Lahad’s supporters. Life became unbearable but I had to support my young children. In June of 2000 I was taken by the Islamic militia to their head quarters and questioned, interrogated, insulted, and beaten up. I was accused of being a traitor and they threatened to kill my family and me. They said that they had information on me that I was helping Lahad and the Jews. I was detained for 2 days.
iii)The Tribunal records the applicant saying at the hearing:
The Tribunal asked the applicant when she was first questioned about being a collaborator. She replied in June 2000. The Tribunal asked her who was she questioned by. She replied by Hezbollah. When asked how she knew they were from Hezbollah, she replied that she was not certain as they never identified themselves, but they believed that they had liberated the South. She stated that they came to her house at 8 am and told her that their leader would like to speak to her. She was blindfolded and taken by car to an office somewhere. There were 7 or 8 people in the room and she was questioned by 2 of them. They accused her of carrying information to Khoury. When she denied this they started to kick and abuse her. She was asked about Khoury’s whereabouts which she had no information about. Finally, after two days she was taken back to her house in exactly the same manner. During the two days she was kept in the office, she was fed and was allowed to sleep when she was not being interrogated. She said that after she was released she was being watched on a daily basis and she was being followed. Later on, a friend of her husband came and asked her to move to Bakaa and live with his family. He told her that she was being watched. She moved to Bakaa in September 2000 a month prior to her departure from Lebanon. The Tribunal asked if between June and September she continued to live at her house in Saida. She replied yes.
Assuming that the applicant's oral evidence was indeed to the effect attributed to her at the hearing, I am not persuaded that it was not open to the Tribunal to conclude that her evidence did not maintain a claim to have been suspected of passing "sensitive information" to the SLA. Rather, the claim seems to have been to the Tribunal that she was accused of being a courier of communications to her employer in the course of his collaboration with the SLA. In effect, the Tribunal was saying that the applicant was not accused of being a spy. I am not persuaded that it was not open to the Tribunal to make its finding of fact.
Moreover, if the Tribunal was in error as to the effect of her evidence, then, in my opinion, that error was an error of fact which did not result in the Tribunal failing to address a claim in a manner which would amount to jurisdictional error. I consider that the situation would fall within NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68].
A third reason for not accepting that the Tribunal made a jurisdictional error at the point identified is that the Tribunal provided at least one alternative and independent reason for not being satisfied that her experiences in June 2000 gave rise to a real chance of persecution if the applicant returned to Lebanon at the time of decision, December 2002, or in the reasonably foreseeable future. As I have explained above, the alternative reason was that, on its assessment of independent sources, former SLA members and others accused of collaboration were no longer at risk of retribution from the Hezbollah or other Islamic militia. It was therefore immaterial whether the Tribunal made an error in its finding that the applicant did not claim to be suspected of ‘passing sensitive information to the SLA’.

The second error which was argued to be shown in the passage extracted under Ground (4) was, as I understood it, that it was not open to the Tribunal to draw the conclusion that "the Tribunal is not satisfied that she would be perceived as a collaborator with the SLA".
However, in my opinion, that conclusion was an assessment of fact, which was reasonably open to the Tribunal on the material before it, and I can perceive no basis of jurisdictional error arising from that finding.
The Tribunal's further reasoning in relation to the applicant's claims to fear Hezbollah and other Islamic groups arising from her June 2000 experiences was not the subject of grounds of review which were pressed by the applicant's representative.

The Tribunal’s reasoning on Mrad claim

The Tribunal addressed what, in my opinion, was clearly a separate basis of the applicant's claims under the heading "Fear of Abdul Ramand Mrad". These concerned the applicant's claims relating to the death of her eldest son in 1990.
The Tribunal’s reasoning in relation to this claim was:
The Tribunal accepts that he applicant’s eldest son was killed in 1990 while working at the office of Mustafa Saad MP in Tripoli. However, whilst the Tribunal appreciates the traumatic effect of this incident on the applicant, she has provided no acceptable reason as to why she believes her son was killed by members of Abdel Rahim Mrad’s party. The only explanation the applicant provided at the hearing was that following the murder she had seen one of Mrad’s “people” at the scene of the crime. Furthermore, in the sources consulted in the Tribunal there was no evidence that Saad and Mrad had ever worked together. Saad became the secretary-general of the Popular Nasserite Organization in 1975, while Mrad founded the Arab Socialist Union Party (al-Ittihad al-Ishtiraki al-Arabi) in 1974. There was also no evidence in the sources consulted by the Tribunal to suggest that there had been a rift between Saad’s party and Mrad’s party to the extent that Saad’s employees and workers had been a target of harm or harassment by Mrad. The Tribunal notes that in 1991 both Saad and Mrad, representing, respectively, the Popular Nasserite Organization and the Arab Socialist Union, were elected to the Lebanese Parliament. Even if the Tribunal accepts that the murder of the applicant’s son can somehow be linked to Mrad and members of his party, the Tribunal does not accept that there is a real chance that the applicant and members of her family are at risk persecution at the hands of Mrad. Firstly, as indicated above there was no evidence before the Tribunal to suggest that Mrad or members of his party had been involved in harassing or inflicting harm upon members of Saad’s party or his employees. Secondly, the applicant did not claim, and there was no evidence before the Tribunal to suggest, that the she had encountered or had been harassed or harmed by Mrad or members of his party, despite having lived at the same address in Saida from 1985 to 2000. Thirdly, the applicant’s fear of Mrad is based on a somewhat farfetched theory. The applicant believes that Mrad is conscious that once the applicant’s other sons grow up they will try and avenge their brother’s murder and as a consequence Mrad may move to harm them in advance. In other words, the applicant’s fear of harm appears to be based on her speculation that Mrad will harm her and her sons because he wants to prevent the applicant’s sons exacting revenge from him for the death of their brother. Apart from the implausibility of this highly speculative scenario, the Tribunal is of the view that the essential and significant reason for the applicant’s fear of harm in this regard is not her imputed political opinion, rather Mrad’s anticipatory action against possible revenge by the applicant’s sons for the murder of their brother.
For the above reasons the Tribunal does not accept that the applicant’s chance of persecution in this regard, if she return to Lebanon now or in the reasonably foreseeable future, is real.

Grounds 1 and 3 – the Mrad claim

The Tribunal's reasoning and findings in the above passage was the subject of the following grounds, which were maintained in submissions before me:
(1) The Tribunal made Jurisdictional Error by drawing the following conclusion where there is no evidence and thus questioning the credibility of the Applicant:
Particulars: page 20 – para 5
“The Tribunal accepts that the applicant’s eldest son was killed in 1990 while working at the Office of Mustafa Saad MP in Tripoli. However, while the Tribunal appreciates the traumatic effect of this incident on the applicant, she has provided no acceptable reason as to why she believes he son was killed by the members of Abdel Rahim Mrad’s Party.
Page 23 – para 1
“Apart from the implausibility of the highly speculative scenario, the Tribunal is of the view that the essential and significant reason for the Applicant’s fear of harm in this regard is not he imputed political opinion rather Mrad’s anticipatory action against possible revenge by the applicant’s sons for the murder of their brother.”
(3) The Tribunal made wrong conclusions contrary to the evidence available to it:
Particulars: Page 23 – para 1
“Even if the Tribunal accepts that the murder of the applicant’s son can some-how be linked to Mrad and the members of his party, the Tribunal does not accept that there is a real chance that the applicant and the members of her family are at risk of persecution at the hands of Mrad.
The first point which was argued was that the Tribunal's statement “she has provided no acceptable reason as to why she believes her son was killed by members of Abdul Ramand Mrad's party” showed error because in fact the applicant had provided reasons for her belief as to the murderers.
However, in my opinion, this submission relied on a misreading of the Tribunal's reasoning. It is clear that the Tribunal was aware of the reasons that were put forward by the applicant for her belief as to the identity of the murderer. The Tribunal's use of the word "acceptable" is in my opinion a reference to reasons acceptable to the Tribunal. This was its conclusion, expressed at the start of its relevant reasoning. The Tribunal then gave rational reasons in the passage set out above why it had difficulty accepting the applicant's reasons for her claimed belief.
The second criticism of the Tribunal's reasoning was that it was not open to the Tribunal to make the finding that "the essential and significant reason for the applicant's fear of harm in this regard is not her imputed political opinion", so as to exclude a Convention reason for the currently feared persecution.
The applicant's legal representative accepted that the Tribunal had purported to apply s.91R(1)(a) of the Migration Act, which requires that a claim of persecution must concern persecution for which a Convention reason “is the essential and significant reason, … for the persecution”. Although the Tribunal did not framed its sentence precisely in the language of s.91R, it was not contended that it should not be read, in effect, as finding that the reason for the feared persecution would not be Convention related, because "the essential and significant reason" would be the non-Convention reason identified by the Tribunal.
In my opinion, so read, the Tribunal made no error of law in its understanding of s.91R or the Refugee Convention. In the context of a claim to fear physical harm from the murderers of a relative, a search for the "essential and significant reason" for the feared harm would normally require the decision maker to address the motives of the feared persecutors in relation to the future harm which was feared. In the present case, in my opinion it was open to the Tribunal to conclude that the applicant's fears concerned a non-Convention related motivation by the murderers, aimed at preventing actions of personal revenge by the surviving siblings. I am not persuaded that the Tribunal's reasoning at this point reveals any error of law.
Moreover, I accept the submission of counsel for the Minister that the Tribunal's characterisation of the feared harm was the third of three independent reasons given by the Tribunal for concluding that the applicant did not have a real chance of persecution in the future arising from the death of her son. The other two reasons were, first, a failure to be persuaded that the accused politician was responsible for the murder, for the reasons the Tribunal gave. The second reason pointed to the significant and uneventful lapse of time since the murder. The Tribunal said:
Even if the Tribunal accepts that the murder of the applicant's son can somehow be linked to Mrad and members of his party, the Tribunal does not accept that there is a real chance that the applicant and members of her family are at risk (of) persecution at the hands of Mrad.
I therefore consider that any error made by the Tribunal in its third reason concerning the characterisation of the feared harm was not material to this part of the Tribunal's reasoning, and therefore would not provide jurisdictional error vitiating the Tribunal's decision.
A third criticism was made of the Tribunal's reasoning which I have extracted above concerning the Mrad claim. This addressed the Tribunal's second reason for not accepting a basis for the applicant's claims arising from the fear of Mrad. The applicant’s legal representative argued, as I understood him, that it was not open to the Tribunal to form an assessment of the chances of the applicant and her family being at risk of persecution at the hands of Mrad as being remote or not providing a real chance.
However, in my opinion, the submissions that were made to me did not go beyond criticisms of factual assessments which were essentially part of the duty of the Tribunal to make. I am not persuaded that this finding reveals jurisdictional error.
I therefore reject all the grounds of review which sought to address the Tribunal’s reasoning in relation to the Mrad claim.

The Tribunal’s other reasoning

After dealing with the Mrad claim, the Tribunal addressed the third basis of the applicant's claimed fears of returning to Lebanon: her fears of the son-in-law and his relatives in Lebanon. In relation to that claim, the Tribunal found that the fears were not for a Convention reason. It is unnecessary for me to explore this part of the Tribunal's reasoning since it was not the subject of any ground of review which was argued before me.
For the above reasons, I have not been persuaded by any of the arguments presented in support of the grounds of the amended application which were pressed. I therefore find that the Tribunal's decision was not affected by jurisdictional error, and that it is a privative clause decision under s.474(1) for which relief is barred. I must dismiss the application.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 6 April 2006