SZDSU v Minister for Immigration

[2005] FMCA 167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDSU & ORS v MINISTER FOR IMMIGRATION [2005] FMCA 167

MIGRATION – RRT decision – Lebanese businessman fearing Syrians –Tribunal sufficiently dealt with fears as member of social group and from Alawite Moslems.

Migration Act1958 (Cth), ss.415, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Dranichnikov v Minister for Immigration & Multicultural Affairs (2000) 197 ALR 389
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZAWW v Minister for Immigration [2003] FMCA 479

Applicants: SZDSU, SZDSV, SZDSW, SZDSX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1686 of 2004

Delivered on: 3 March 2005

Delivered at: Sydney

Hearing date: 21 February 2005

Judgment of: Smith FM

REPRESENTATION

Counsel for the Applicants: Mr B Morris

Solicitors for the Applicants: Michaela Byers

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. First and second applicants to pay the respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1686 of 2004

SZDSU, SZDSV, SZDSW, SZDSX

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application under s.483A of the Migration Act1958 (Cth) (“the Migration Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 29 March 1999. The Tribunal affirmed a decision of a delegate taken on 6 March 1998 which refused applications for protection visas by the applicants. They are a husband and wife and their two sons who arrived in Australia from Lebanon on visitors’ visas in October 1997. In this judgment I shall refer to the father as “the applicant”, since his family members relied entirely upon his claims for refugee protection.

2. The present application for judicial review was filed on 2 June 2004, and the applicant filed a brief affidavit seeking to explain his delay in commencing proceedings.  He said that after receiving the Tribunal’s decision, he joined the Lie class action in the High Court “until 11 July 2003 when we discontinued and made a request to the Minister for Immigration in accordance section 417 of the Migration Act.”  He states that he was told that this request failed in a letter dated 12 May 2004.  Since I have decided that his application fails on its substantive merits, I have not found it necessary to consider whether the delay would warrant the Court refusing relief in its discretion.

3. The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present proceeding, that jurisdiction is found in s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) replaced provisions in Part 8 of the Migration Act, so as to significantly limit the powers of the Court to give relief in relation to a Tribunal decision if it is found to be a “privative clause decision”. For matters affected by Part 8, the High Court has held that it is necessary to consider whether the Tribunal’s decision is vitiated by jurisdictional error.

4. Proceedings relating to decisions made before the commencement of the amendments on 2 October 2001 are subject to transitional provisions found in cl.8 of Sch.1 of the amending Act.  Under cl.8(2)(b) the amendments apply “in respect of judicial review of a decision under the Migration Act 1958 if … as at that commencement, an application for judicial review of the decision had not been lodged”.  In cases similar to the present, the Minister has conceded that if “as at 2 October 2001” an applicant was party to an earlier application seeking judicial review of the present decision of the Tribunal by reason of being represented parties in Muin or Lie at that date, then the limitations in relation to privative clause decisions do not apply to new proceedings brought in this Court after the commencement.  This position appears to have been taken by the Minister in several proceedings and, although I am not confident that it is based on a proper interpretation of clause 8, I have accepted the concession in the past.  Although counsel for the Minister in the present case had no instructions on the matter, he did not submit that I should not act on the concessions made in other cases, and I have decided that I should do so.

5. The concession was accepted by Driver FM in SZAWW v Minister for Immigration [2003] FMCA 479 in relation to a case where at the date of commencement there was no pending application for judicial review of any sort, but a judicial review proceeding brought by the applicant had been finalised prior to the commencement. In 2003 the applicant commenced a new challenge, which the Commonwealth conceded was not subject to any legislative restraints. Driver FM accepted the concession and held that the Court had jurisdiction in the matter under s.483A which was unaffected by any limitation under either the new or the former provisions of Part 8.

6. Accordingly, I have considered the present application for an order by way of mandamus directing the Tribunal to give further consideration to the matter, on the basis that the Court has jurisdiction to give this relief according to principles applicable to s.39B matters unaffected by Part 8. However, since the grounds argued by the applicant are well established to provide grounds of jurisdictional error and for mandamus on “common law” grounds, the distinctions I have raised above would not seem to have a bearing on the outcome.

7. Counsel for the applicant in his oral submissions departed somewhat from the applicant’s amended application and his written submissions, and argued what I understood to be two grounds:

   i)The Tribunal failed to identify and deal with a claim implicitly made by the applicant to come within the Convention definition of “refugee” on the basis that he had well-founded fear of being persecuted “for reasons of membership of a particular social group”, being a group of Lebanese entrepreneurs who retail food products.  [At times in his submissions, counsel’s formulation of the group of Lebanese business persons subjected to the persecution claimed by the applicant was broader or narrower than this.]

   ii)The Tribunal also, or alternatively, failed to identify and deal with a claim that the applicant’s fear of persecution was “for reasons of religion”, because his fears of arrest arising from a charge of assault on a Syrian soldier resulted from his harassment by Syrians because he was not a member of the Moslem Alawite sect.

8. Is clear that such failures may provide grounds on which relief may be granted.  Counsel for the applicant referred me to Dranichnikov v Minister for Immigration & Multicultural Affairs (2000) 197 ALR 389, where a majority in the High Court held that the Tribunal had failed to afford natural justice and had constructively failed to exercise jurisdiction by mistaking, and failing to deal with, the “social group” which Mr Dranichnikov and his solicitor had put forward as the basis for his fears of persecution.

9. The relevant principles were subsequently examined in the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263. Their Honours held at [48-51] and [55] that failure by a Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to jurisdictional error by failure to carry out the review required by s.415. At [63] they said:

   It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.

10. However, their Honours also held at [68] that “a judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal”.

11. Allsop J has recently given further guidance in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:

    From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it:  NABE at [61].  As the Full Court said at [63] much depends on the circumstances.  Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.  A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

12. In the present case the applicant was assisted by solicitors both when presenting his original protection visa application, and when appealing to the Tribunal.  However, at no stage did he nor they present an analysis of his claims which identified persecution by reason of “membership of a particular social group” or “religion” as the basis of his claim to be a refugee.  Instead he presented a narrative of personal experiences involving Syrian security forces in Lebanon culminating with his flight from Lebanon to avoid being prosecuted for an assault by him on a Syrian soldier. 

13. It is unnecessary for me to set out his narrative in full.  Counsel for the applicant accepted that the Tribunal properly identified and recounted all the elements of his narrative in its reasons.  I consider that its summary of his original statutory declaration was accurate:

    The applicant submitted a detailed statutory declaration with his Protection Visa application.  In the statement he describes how the Civil War in Lebanon affected his family.  His father’s shops in Beirut were destroyed and his father kidnapped by a Christian militia for 10 days before being released.  The applicant also describes various confrontations with Syrian soldiers, including an occasion in 1987 when the van he was using as a salesman was damaged by Syrian soldiers, and he himself questioned, detained for 3 days and mistreated by the Syrians.  As a result of this, the applicant claims to have lost his job as a food salesman since they did not want to employ a person who had been detained.

    The applicant claims to have been involved in confrontations with Syrian soldiers at checkpoints on various occasions both during and after the Civil War.  The confrontations involved physical mistreatment and verbal abuse when the applicant refused to do such things as pay the Syrians bribes.

    The applicant states that by 1995 he had saved enough money to buy a shop and two vans, with financial assistance from his father.  The applicant ran an ice cream business.  The business was very successful and in 1996 the applicant travelled to Australia for a holiday.  He stayed in Australia from December 1996 to February 1997.

    Since the applicant had bought the shop he had continuing problems with Syrian soldiers.  They would demand goods and refuse to pay for them.  The applicant also took boxes of ice creams with him in the vans when he went from Tripoli to various tourist locations.  These ice creams would be handed out to Syrian soldiers at checkpoints with the aim of avoiding trouble.  On one occasion, a soldier at the checkpoint demanded more ice cream from the applicant than he wanted to give him.  On this occasion, the applicant was attacked by soldiers at the checkpoint and their superior officer did nothing to assist the applicant.  In fact, the officer ordered the soldiers to break the windows of the applicant’s van.  The applicant said he complained about this incident to the Lebanese authorities but they refused to interfere in the matter.

    The applicant said that he applied for an Australian visa in July 1997 with the intention of going with his wife to her brother’s wedding in Australia.  They did not go in July because his wife had a miscarriage.  The applicant states that on 25 August 1997 he had trouble with one of his employees.  This person had been stealing from the applicant’s business.  There was a confrontation between the applicant and the employee, in which the applicant tried to snatch papers from the employee.  The papers were connected with one of the applicant’s vans and the employee was trying to take them with him.  The confrontation involved several people.  The employee went to the police and the applicant was required to settle the matter of the employee’s dismissal in a proper way.  He was to pay the man one month’s wages and then dismiss him, and the employee was to sign a document saying that this had been done.

    The applicant says that on 26 August he went to a government officer to have the document dismissing his employee certified.  The one month’s wages were paid to the employee and he signed the required document.  The applicant then went with his younger son to the garage where he kept his vans.  When he got there he found his brother involved in a confrontation with 2 Syrian security men.  One had a gun and they both had sticks with which they were damaging the vans.  When the applicant saw that one of the Syrians was holding a gun to his brother’s head, he gave his son to one of his employees and attacked the Syrian.  He hit him with a stick, swore at him, and abused the Syrian, his country and his President.  One of the applicant’s employees gave the applicant’s son back to him and told him to run away.  He did so, and was chased by the other Syrian who pursued him and his son with a stick, breaking his son’s collarbone.  The applicant took his son to a doctor, and from there contacted his wife to come to the doctor’s surgery with his other son in order to escape from the Syrians.

    The applicant and his family went to his wife’s aunt in Beirut where they stayed until they left for Australia in October 1997.  The applicant states that the Syrians were looking for him after the incident.  He says that he discovered the ex-employee was an Alawite Muslim and that he persuaded the Syrian soldiers to take revenge against the applicant for dismissing him from employment.  The applicant states that while he was in Beirut, the Syrians forced the applicant father to close his shop because they drove other customers away by their swearing.  The applicant’s father did everything he could to solve his son’s problems with the Syrians.  He gave the Syrian President’s nephew the gift of the applicant’s Mercedes car, worth 25,000 Australian dollars.  He states that his father went with the nephew to the Syrian Intelligence Service office and asked for the applicant’s file.  The nephew destroyed the applicant’s file in front of his father.  However after a week the Syrians came looking for the applicant again.  His father went to the Syrian Intelligence service and asked what was happening since the applicant’s file had been destroyed.  They said that there was another file on the applicant because the applicant had assaulted and broken the arm of a Syrian soldier, and that there were orders to arrest the applicant.  The applicant states that the gift of a car to the Syrian President’s nephew was “just a trick” to get the car and the Syrians would not assist the applicant.

14. The applicant’s statutory declaration claimed that “the Syrians” were searching for him in Lebanon, and that “I know that I will be arrested by the Syrian Intelligence Service if I am forced to return and I do not know what will happen to me then.  Some people they have arrested are still missing, some came back with a disability and some have been killed.”  In the course of the Tribunal proceedings, he tendered documents (which it appears to have accepted) corroborating the incident involving the dismissal of his employee, and an “arrest warrant” issued by the Arab Republic of Syria, Intelligence Agency section.  This requested his arrest “for alleged assault of a state security guard and to be handed over to the mentioned forces due to his escape from the absent issued order on xxxx through the criminal appeal court, xxxx Branch, that ordered him to be in prison for a period of six years.”

15. The Tribunal’s reasons recount the course of its questioning of the applicant at a hearing held on 16 March 1999.  A transcript is in evidence, but I was taken to only one passage in it, which I shall refer to below.

16. The Tribunal said that it “found the applicant to be a credible witness” and that his oral and written accounts of events were consistent.  It accepted that he was “involved in a number of confrontations with the Syrian military from 1987.  These confrontations generally resulted from the applicant’s refusal to give goods to the Syrians without payment and involved verbal abuse and at times physical mistreatment.  The Tribunal accepts that on one occasion in 1987 the applicant was detained for 3 days by Syrian soldiers and abused verbally and physically.  As a result of this incident, the applicant lost his job.”

17. The Tribunal accepted that after he bought his ice cream business in 1995 he “in early 1997 was involved in a major confrontation with Syrian soldiers at a checkpoint because of his refusal to hand over extra ice-creams from his van.  The Tribunal accepts that the applicant was verbally and physically abused and his van damaged by the soldiers.”

18. In relation to the July 1997 incident leading to his being pursued for his assault on a Syrian soldier, the Tribunal’s findings were:

    The Tribunal accepts the applicant’s account of having dismissed an employee for stealing in July 1997 and finds that the applicant’s attempt to dismiss the employee resulted in a public quarrel which lead to a police charge of disturbing the peace.  While there is some discrepancy between the applicant’s written account of this event and the description of the event in the “Process Verbal” submitted by the applicant, the Tribunal found the applicant was truthful if somewhat confused in describing the event.  The applicant presented at the hearing as a highly emotional man unlikely to behave completely rational under pressure.  The Tribunal is satisfied that the applicant’s behaviour towards  his employee resulted in his being charged with an offence, having to negotiate a satisfactory dismissal agreement with his employee, and liability to pay a fine. 

    The Tribunal accepts that after a dismissal agreement had been signed, the day after the public fracas, and witnessed by a Notary Public, the applicant became involved in a serious confrontation with two Syrian guards who were threatening his brother and attempting to damage his vans.  Although the applicant believes that the Syrians organised this attack at the instigation of the dismissed employee, the Tribunal considers this explanation to be highly implausible.  While the employee may have been an Alawite and this Muslim sect is the religion of men who are dominant in Syria’s power structure, the evidence suggests that only a relatively small proportion of Syrians are in fact Alawite (see p 13).  These Syrian soldiers do not appear to have been other than junior personnel and it is statistically unlikely that they were Alawite.

    The Tribunal accepts that the encounter between two Syrian soldiers and the applicant resulted in the disarming of one of the soldiers by the applicant and the breaking of his arm.  The Tribunal accepts that the applicant having carried out this assault when, as he describes it, his blood was boiling, was extremely afraid of the consequences of his action and took flight with his wife and family to Beirut, to the home of his wife’s relatives.  The Tribunal finds that this assault took place in July 1997.

1. As I read the Tribunal’s reasons (and neither counsel sought to persuade me otherwise), it attempted in two paragraphs to apply the Convention definition against all the factual circumstances which it accepted.  The second paragraph dealt with the applicant’s fears in relation to the outstanding warrant for the applicant’s arrest, and concluded that “his arrest and detention would be the result of the enforcement of a law of general application.  There is no evidence that the enforcement or the real purpose of a law against physical assault in Lebanon is persecutory or Convention-related.”  It is not necessary for me to examine this reasoning, since it is not the subject of any ground for judicial review argued before me.

2. Counsel for the applicant submitted that the previous paragraph did, however, reveal error.  In this paragraph the Tribunal drew conclusions on whether his mistreatment by Syrian agents prior to his assault on the Syrian soldier revealed persecution for a Convention reason.  It appears to have assumed that, if there were previous acts of persecution, then this would provide a basis for a grant of protection.  That is, it appears to assume that the applicant had made claims to fear not only the effects of the arrest warrant if he returned to Lebanon, but also a repetition of  Syrian mistreatment as a result of which he was “unable or unwilling” to avail himself of the protection of that country.  Certainly, the Tribunal made no finding that he did not have such a fear.  This may have been a generous reading of his claims, but I accept that if the Tribunal erred in the manner argued when characterising and dealing with his account of Syrian mistreatment, then its decision should be set aside and the matter remitted.

3. The Tribunal’s critical reasoning was:

   The Tribunal finds that the applicant has suffered harassment and sometimes serious physical and verbal abuse from Syrian soldiers, and retaliation against him for his unwillingness to co-operate in giving them goods for which they did not pay.  The Tribunal accepts that the applicant had a settled antipathy against the Syrians and in particular their behaviour towards the Lebanese. He does not claim, nor does the Tribunal find, nor does it arise from the factual circumstances of the applicant’s claims, that he was singled out for harassment and abuse by the Syrians for reasons of his race, religion, nationality, membership of a particular social group, or his political opinion.  The Tribunal accepts that the Syrians might well have had a general attitude of contempt towards the local Lebanese civilians.  The applicant claims, and the Tribunal accepts, that he in fact had a political opinion which was one of hostility and opposition to the Syrian military.  However, there is no evidence that the applicant was harassed and abused for other than personal reasons, for his often spirited attempts to stop the Syrians taking or damaging his property.  His particular business brought him into frequent contact with Syrians soldiers at check points, and his ownership of the business made him vulnerable to demands by the Syrians.  While the harm the applicant has suffered in the past from Syrian soldiers may have amounted to persecution in a Convention sense, the Tribunal is not satisfied that this harm was inflicted on the applicant for a Convention reason. 

4. I do not accept the arguments of counsel for the applicant that the Tribunal failed in the above paragraph to deal with a claim that the applicant feared persecution as a member of a social group of “entrepreneurs”.  Counsel sought to identify the making of such a claim as being implicit within the applicant’s account of his being subjected to demands for free ice-creams etc.  I am far from satisfied that such an “unarticulated claim” arises “tolerably clearly from the material itself” (c.f. Allsop J in NAVK cited above). 

5. In any event, I consider that the Tribunal has shown that it sufficiently addressed the applicant’s narrative when it considered whether it carried a claim to have been “singled out for harassment and abuse by the Syrians for reason of … membership of a particular social group.”  The Tribunal expressly says that it considered this.  I do not consider that, given the manner in which his claims were put forward, its failure to provide a more extensive discussion of possible “social group” reasons for persecution should cause me to infer that it overlooked a possible analysis that all ice-cream vendors in Lebanon (or a broader class of “entrepreneurs” to which they might belong) are at risk of the types of Syrian mistreatment described by the applicant.

6. Moreover, I consider that the Tribunal’s finding that “there is no evidence that the applicant was harassed and abused for other than personal reasons, for his often spirited attempts to stop the Syrians taking or damaging his property” answered any claim that his serious complaints of mistreatment resulted from characteristics shared with a “particular social group” however defined.  In effect, the Tribunal found that, although his surrounding circumstances as an ice-cream vendor and businessman in Lebanon left him “vulnerable”, it was his own volatile personality which was responsible for him and his property being mistreated by Syrian agents.  I consider that this was a finding which was open to the Tribunal, and which rendered immaterial any need for it to engage in a more extensive examination of the “social groups” to which he might be regarded as belonging.

7. I have a similar doubt whether the applicant’s narrative ever put forward “tolerably clearly” a claim to fear persecution by Alawite Moslems backed by Syrian agencies.  It is most difficult to find this in his written claims, where reference to Alawites appears to be no more than part of an hypothesis of why a Syrian soldier who he assaulted might have been motivated to support his ex-employee and to damage his van.

8. However, counsel for the applicant submitted that a general fear of Alawite Moslems in the Syrian security forces was indicated during the hearing in the following passage from the transcript of the hearing:

   TRIBUNAL MEMBER: So my impression is however that it was this ex-employee who’d persuaded these soldiers to attack you and the van

   APPLICANT: Correct, to take revenge.

   TRIBUNAL MEMBER: How did you know that?  Did you just imagine that, or how did you know that?

   APPLICANT: The night before I learned that he was alowak (?) and I felt in my heart I felt scared.  I don’t have any enemies.

   TRIBUNAL MEMBER: Apart from the Syrians?

   APPLICANT: Well the Syrians are not my personal enemies, I mean they behave like that with everyone.

   TRIBUNAL MEMBER: So you assumed that because your employee was alowak (?) that he had got these Syrian soldiers to do harm to you and your son?

   APPLICANT: Well if you look at the timing.  He signed and then I left and went there and they were present.  Well, he was not present, it was sort of a statement, like I signed, it’s not my responsibility, I’m not guilty of anything.

   TRIBUNAL MEMBER: How long had this employee worked for you?

   APPLICANT: A year and a half.

   TRIBUNAL MEMBER: Was he Lebanese or was he Syrian?

   APPLICANT: Lebanese

   TRIBUNAL MEMBER: But he happened to be this particular kind of Muslim?

   APPLICANT: Yes.

   TRIBUNAL MEMBER: Okay.  You certainly believe that it was his revenge on you that was taken by these Syrian soldiers?

   APPLICANT: Yes.

   TRIBUNAL MEMBER:  So you describe here what happened, you describe in your statement what happened.  You actually hit one of the Syrian soldiers and then there was a lot of problems?

9. In my view, the Tribunal shows in its reasons that it has fully considered and dealt with the applicant’s fears of Alawite Moslems in the Syrian security forces.  It does so in the passage which I have extracted above at [18] where it rejects the applicant’s fear as “highly implausible”.  It found that “these Syrian soldiers do not appear to have been other than junior personnel and it is statistically unlikely that they were Alawite.”  I do not consider that there was any need for the Tribunal to examine this issue further.

10. Counsel for the applicant sought to avoid the effect of the Tribunal’s findings on the basis that they were “against the evidence or the weight of evidence”, and that there was “no evidence to support” the findings.  However, this attack in my view did no more than challenge a factual finding which I am not persuaded was not legally open to the Tribunal.  The Tribunal refers to evidence that “only about 12 per cent of [Syria’s] population” are “members of the minority Alawite sect of the Shia Moslem community”, and I do not accept that the Tribunal could not draw from this information when making its finding.

11. In any event, even if the finding was not open to the Tribunal, I do not consider that the erroneous finding when purporting to deal with the applicant’s Alawite fears could establish a constructive failure to exercise jurisdiction (c.f. the “unfortunate factual error” in NABE (supra) at [68]).

12. For the above reasons, I reject the two grounds for judicial review which were argued by counsel for the applicant, and dismiss the application.

13. The applicants accept that my costs order should follow this outcome.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  3 March 2005