SZDZI v Minister for Immigration
[2005] FMCA 13
•11 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZI & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 13 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Refugee Review Tribunal decision the subject of previous application in Federal Court which was dismissed at interlocutory stage – no arguable case of jurisdictional error on the part of the Refugee Review Tribunal – application dismissed as an abuse of process. |
Federal Magistrates Court Rules 2001, r13.10(a)-(c)
Migration Act 1958 (Cth), ss.417, 474, 476(1)(g), 476(4)
Judiciary Act 1903 (Cth), s.39B
Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126
M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21
Hassen v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCA 1036
SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 207
SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 479
SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 96
SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 377
Roser v Immigration Review Tribunal (No. 2) (1992) 29 ALD 182
SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 255
A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 238
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
SZARH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 615
Curragh Qld Mining v Daniel (1992) 34 FCR 212
Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854
Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1556
T v Minister for Immigration & Multicultural Affairs [1999] FCA 878
NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137
| Applicants: | SZDZI & SZDZJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2038 of 2004 |
| Delivered on: | 11 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 14 December 2004 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Solicitors for the Respondent: | Mr P Reynolds of Clayton Utz |
ORDERS
The respondent’s Notice of Motion is upheld.
The application is dismissed pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules 2001.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2038 of 2004
| SZDZI & SZDZJ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an application filed on 13 October 2004 the respondent moves the Court for the following:
a)An order that the application filed on 2 July 2004 be dismissed pursuant to Part 13, Rule 13.10(b) and/or 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) on the grounds that the proceedings are vexatious and/or an abuse of process.
b)Further, or in the alternative, an order that the applicant be estopped from bringing these proceedings.
c)Further, or in the alternative, an order that the application filed on 2 July 2004 be dismissed pursuant to Part 13, Rule 13.10(a) of the Rules on the ground that no reasonable cause of action is disclosed.
d)An order that proceedings be otherwise stayed or dismissed.
For the purpose of this Notice of Motion, the respondents tendered and applied for an affidavit of Olga Matouk sworn on 11 October 2004 (“the affidavit of Ms Matouk”) to be admitted into evidence.
Background
The first applicant is a married woman and the second applicant is the husband of the first applicant. They claim to be citizens of Russia and arrived in Australia on 14 September 1999. On 26 October 1999 they lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 21 January 2000 a delegate of the respondent (“the delegate”) refused to grant protection (Class XA) visas and on 10 February 2000 the first applicant applied for a review of the delegate’s decision.
The first applicant was born on 15 August 1969 and described her ethnicity as “Ingush-Russian”. She claimed she worked in the retail sector for two years after leaving school and was then employed as an accountant in a store from 1989 to 1995, followed by a year as a bar attendant. The first applicant claimed she changed her residential address in 1990 and again in 1992 but always lived in St Petersburg.
The first applicant claimed her son was born in 1990 and she was divorced from her first husband (her son’s father) in February 1995. She married her current husband (the second applicant) in July 1996. The current husband is ten years older than the first applicant, was of Russian ethnicity and was also from St Petersburg.
The first applicant claimed a number of incidents of harm that had befallen her since 1995 and both she and her husband since 1999 for reasons of her Caucasian ethnicity.
Litigation history
A brief summary of the litigation history of the first applicant is as follows:
a)The initial application for a protection visa was lodged with the Department on 26 October 1999.
b)The application was rejected by the delegate on 21 January 2000.
c)The first applicant sought a review of the delegate’s decision on 10 February 2000.
d)On 22 November 2001 the Refugee Review Tribunal (“the Tribunal”) constituted by Ms Sue Zelinka made a decision to affirm the decision of the delegate to refuse to grant a protection visa. That decision was handed down on 12 February 2001 (refer annexure A to the affidavit of Ms Matouk).
e)On 7 January 2002 an application was filed in the Federal Court of Australia seeking a review of the Tribunal’s decision. Those proceedings were given the Federal Court proceedings number N14 of 2002.
f)On 16 April 2002 the applicants’ migration agent, LCJ Migration Services, forwarded to Clayton Utz a Notice of Discontinuance signed by the first applicant.
g)On 17 April 2002 at a hearing before his Honour Justice Moore, a copy of the Notice of Discontinuance signed by the first applicant was handed up to his Honour. The applicants were represented at that hearing by Perl Chew of LCJ Migration Services.
h)On 15 July 2003 the applicants’ migration agent, Mr V T Correia, wrote to the Minister seeking the Minister exercise his power to grant the applicants a visa pursuant to s.417 of the Act.
i)On 5 May 2004 the respondent advised the applicants that the request to exercise his power under s.417 of the Act was declined.
j)On 2 July 2004 the first applicant filed these current proceedings in the Federal Magistrates Court.
Respondent’s application
Solicitor for the respondent, Mr P Reynolds, filed written submissions prior to the hearing. It was submitted that the critical facts and circumstances concerning the applicants’ application for review of the Tribunal’s decision are:
a)On 7 January 2002 the applicants commenced proceedings in the Federal Court. The application filed by the applicants was plainly deficient in that it contained general and unparticularised grounds which did not properly raise any reviewable errors on the part of the Tribunal (see pages 19-20 of the affidavit of Ms Matouk).
b)On 16 April 2002 the applicants’ solicitor and migration agent sent a signed Notice of Discontinuance to the respondent (see pages 21-22 of the affidavit of Ms Matouk). On 17 April 2002, at the hearing, the respondent’s solicitor handed up a copy of the Notice of Discontinuance to his Honour Justice Moore (see page 24 of the affidavit of Ms Matouk). At the time of the discontinuance the applicants were legally represented (see pages 21-23 of the affidavit of Ms Matouk).
c)On 15 July 2003 the applicants’ migration adviser sent a letter to the respondent seeking that the Minister exercise his discretion under s.417 of the Migration Act 1958 (see pages 25-27 of the affidavit of Ms Matouk). The respondent submits that the discontinuance of the Federal Court proceedings followed by a s.417 submission to the respondent was the sort of tactical decision referred to by the Full Court in Bizuneh v Minister for Immigration & Multicultural Affairs at [19]. Moreover, it amounted to an acceptance of the finality of the Tribunal’s decision: see M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“M162 of 2002”) at [22]; see too Daniel v Minister for Immigration & Multicultural & Indigenous Affairs; Hassen v Minister for Immigration Multicultural & Indigenous Affairs.
d)On 5 May 2004 a delegate of the respondent advised the applicants that he would not exercise his discretion under s.417 of the Act (see page 28 of the affidavit of Ms Matouk).
e)On 24 July 2004 the applicants filed an application in this Court seeking to challenge the Tribunal’s decision. The application raises the following grounds of judicial review (see pages 30-31 of the affidavit of Ms Matouk):
i)“the applicants’ claims and evidence [are] fully consistent” with independent country information available to the Tribunal;
ii)“the Tribunal had no evidence to suggest the persecution of the [first] applicant’s spouse had nothing to do with the [first] applicant’s ethnicity”.
The first ground raised in the application is an invitation for a merits review, and the second ground replicates one of the grounds raised in the previous application (see page 20 of the affidavit of Ms Matouk at (ii)).
f)On 13 October 2004 at a directions hearing the Court ordered the [first] applicant to file any affidavit in reply containing any additional evidence she proposed to rely on by 3 November 2004. No evidence was filed by the [first] applicant.
It was submitted that the application was an abuse of process for the same reasons as those given by Driver FM in SZBQW v Minister for Immigration & Multicultural & Indigenous Affairs (“SZBQW”). It was submitted the case is indistinguishable on the facts from SZBQW. His Honour said in that case (at [5]) (footnotes omitted):
“An application for judicial review amounts to an abuse of process if it is filed for a collateral purpose, for example, for the purpose of extending the period of the applicant’s stay in Australia. However, even if no ulterior motive is found to exist, the repeated bringing of similar applications can still be an abuse of process, if it would be unjustifiably vexatious or oppressive or would bring the administration of justice into disrepute. The Court should also consider the underlying public interest that there be finality in litigation and that a party should not be repeatedly vexed in the same manner.”
The respondent submitted that his Honour also referred to the decision of this Court in SZAWW v Minister for Immigration & Multicultural & Indigenous Affairs, where it was held, in similar circumstances, that it would be unfair to the Minister to permit multiple applications for review. See also: SZBXA v Minister for Immigration & Multicultural & Indigenous Affairs; SZAMM v Minister for Immigration & Multicultural & Indigenous Affairs.
It was submitted that the only rational explanation for the applicants’ actions in discontinuing the Federal Court proceedings and recommencing proceedings in this Court more than two years later (and after an unsuccessful attempt to have the Minister exercise his discretion under s.417 of the Act), was that the applicants were motivated by a collateral purpose, namely the purpose of extending the period of the applicants’ stay in Australia: see also Roser v Immigration Review Tribunal (No. 2). It was contended that the applicants’ actions cannot be explained away on the basis of legal advice, or the absence of proper legal advice, as the applicants were aware and had previously been advised that their application for review had no chance of success. It was submitted that the discontinuance of the earlier Federal Court proceedings was “not only explicable on the basis that the applicant was not challenging the finality of the RRT decision”: M162 of 2002.
The solicitor for the respondent submitted that the application, like the application before the Federal Court, disclosed no proper grounds for challenging the Tribunal’s decision under s.39B of the Judiciary Act and having regard to s.474 of the Act: cf SZBIC v Minister for Immigration & Multicultural & Indigenous Affairs at [21]. It was also submitted that no affidavit in reply containing additional evidence had been filed by the applicant in accordance with the Court’s orders and that no jurisdictional error was apparent from a fair reading of the Tribunal’s decision.
It was submitted that a fair reading of the Tribunal’s decision disclosed it had considered the application; all of the material put forward by the applicants and the statement attached to the application for review and had reached a state of non-satisfaction concerning the relevant criteria for the grant of a protection visa. It was further submitted that the Tribunal’s non-satisfaction was based entirely on factual findings that were open to it to make on the material before it.
The respondent contended that the failure of the Tribunal to find that the applicants’ claims were consistent with available independent country information, namely the Amnesty International Report of 2003, did not amount to a jurisdictional error. The Tribunal, in its reasons, accepted that “Russians have been particularly discriminatory towards Chechens and other Caucasians” but that “since 1993, discrimination against persons from the Caucasus and Central Asia increased concurrently with the new measures at both the federal and local levels to combat crime” (see page 15 of the affidavit of Ms Matouk). It was submitted the Tribunal had examined the events suffered by the applicants before 1999 and was not satisfied that the “applicant experienced any harm (let alone harm that could be called persecution) on the basis of her real or imputed ethnicity in the period up to the beginning of 1999” (see page 16 of the affidavit of Ms Matouk).
It was submitted that the Tribunal’s finding that it was not satisfied that the “harm that befell [the applicant’s spouse] can be attributed even in part to the applicant’s real or imputed ethnicity” (see page 17 of the affidavit of Ms Matouk), was not a jurisdictional error. The Tribunal’s view, it was submitted, was not based on an opinion of the applicant’s appearance but was formed from an assessment of the incidents experienced by the applicant and her spouse post 1999.
It was further contended that the Tribunal’s findings in paragraphs 11 and 12 were open to it on the evidence and that the Court is not entitled or jurisdictionally empowered to engage in such merits review or to reconsider the factual aspects of this matter: see A v Minister for Immigration & Multicultural Affairs at [8].
The applicant filed submissions on 30 November 2004. These submissions outlined the reasons for the previous action in the Federal Court being discontinued and made reference to the legislative changes that occurred in October 2001 in respect of the “privative clause”. There was also a submission in respect of s.476(1)(g) of the Act which was apparently reproduced from some previous advice. Also attached to the submissions was a number of documents including a copy of the Notice of Discontinuance from the Federal Court matter and a letter of advice from the Legal Aid Commission.
The first applicant handed up to the Court a document entitled “Translation of the Applicant’s Oral Submissions”. The content of this document indicated that the applicants disagreed with the Tribunal’s decision and disagreed with the respondent’s current application. There was a brief summary as to why the previous proceedings in the Federal Court had been abandoned and the outcome of the application to the Minister under s.417 of the Act.
Applicant’s review of the Tribunal’s decision
An application made under s.39B of the Judiciary Act 1903 (Cth) set out the following grounds:
“The decision was not a decision with any lawful effect because it was infected by jurisdictional error.
1.The applicants’ claims and evidence have fully been consistent with the available to the Tribunal independent country report information.
·Amnesty International Police repeatedly tortured and ill-treated detainees in custody in order to extract confessions, virtually as a matter of routine. In May the UN Committee against Torture expressed deep concern about numerous and consistent allegations of widespread torture and ill-treatment of detainees by law enforcement personnel, commonly with a view to obtaining confessions. People were at greatest risk of torture and ill-treatment in police custody during the hours immediately after arrest, before they were charged. The victims came from all walks of life, but members of ethnic minorities were most at risk.
According to information received by Amnesty International, minority ethnic groups from the Caucasus region have once again become the target of discriminatory rhetoric, arbitrary document checks and searches, and racially-motivated revenge attacks. Although no-one has as yet claimed responsibility for the metro blast, senior Russian government officials, including President Vladimir Putin, were quick to blame Chechens. New tougher legislation – linked to the unconstitutional residence registration system “propiska” – is currently being drafted in the capital, allegedly aimed at combating “illegal migration” (for further details see ‘Russian Federation: Out of control: Anti-Chechen sentiment in Moscow post-metro blast”).
As can be seen from the above mentioned information there are documented evidence regarding numerous human rights violations in the Russian Federation. The Russian authorities have been particularly targeting the national minorities, namely people from the Caucuses and Chechnya.
2.The Tribunal’s decision was based on its findings namely that the applicant had not looked like a person of Caucasian origin and that the persecution the applicant’s spouse had been subjected to had not been attributed to the applicant’s real or imputed ethnicity and that the state there had no failure of the state to protect the applicant for that reason.
The generalised view regarding one’s appearance, however, can not be the reason or part of the reason to refuse the applicant a protection visa. Indeed, there are a great deal of people of Caucasian origin who do look similar to Europeans or Russians. Therefore the mentioned finding can not be regarded as a factual finding because it was not based upon available material but rather on an unprofessional opinion.
The Tribunal had no evidence to suggest that the persecution of the applicant’s spouse had nothing to do with the applicant’s ethnicity. There are a number of factors, which prove the opposite. The factors are as follows:
·The Tribunal accepted that the applicant was an Ingush;
·The Tribunal accepted that ethnic minorities had been subjected to persecution in the Russian Federation;
·The applicant provided the Tribunal with detailed accounts of her story. It must be noted that the applicant’s husband had been threatened and insulted by the authorities because “he had a Caucasian wife”;
·The Tribunal was also in error stating that the Russian state had not failed to protect the applicant. According to the applicant’s account (which was accepted by the Tribunal) namely the authorities had been responsible for the harm.”
Submissions
The first applicant in these proceedings was representing herself and appeared with the assistance of a Russian interpreter. The first applicant endeavoured to assist the Court by filing written outline of submissions on 30 November 2004. The first applicant also handed up in Court a document headed “Translation of the applicant’s oral submissions” which had been translated into English.
Where an applicant is self represented, the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. In the first applicant’s outline of submissions she is very honest in setting out the details of why she discontinued her previous application on 16 April 2002. It was explained that the applicants’ decision to discontinue the application was related to advice they had received regarding the new judicial review scheme, which, for convenience, is identified as the introduction of the privative clause. The first applicant indicated that she had sought legal aid in February 2002 but was advised by that organisation that the law had recently been changed making it much more difficult to succeed on appeal and that the Legal Aid Commission was not prepared to represent the applicants.
As part of her submissions, the first applicant referred to the decision of the High Court in February 2003 of S157/2002 v Commonwealth of Australia. At this point, however, the applicant’s explanation of delay ceases and no further action was taken until 2 July 2004 when the applicants filed their application in the Federal Magistrates Court. I believe that this delay is acknowledged although there is no attempt to offer any further explanation as to why no action was pursued to re-invigorate the proceedings discontinued in April 2002.
There was an attempt by the first applicant to justify this delay by raising the authority of SZARH v Minister for Immigration & Multicultural & Indigenous Affairs (“SZARH”) with the following passage:
“In SZARH the respondent argued that the Court could not exercise its discretion to grant review in favour of the applicant because of the delay involved in persecution of its claims. The Court accepted that there had been a delay but it did not accept that it had been so significant that it should preclude review in a situation where it is believed that review should be granted. The Court considered the nature of the litigation, the conduct of the parties and the consequences of the parties of a grant of or refusal of an extension: Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491. In particular it took into account the view of the English Court of Appeal in R v The Secretary of State for Home Departments; Ex parte Bugdaycar (1987) AC 1514 at 531 and 537.”
In SZARH Raphael FM accepted that there had been delay but held that there were significant issues in the Tribunal’s decision that justified the putting aside of the delay in order to permit the examination of those significant issues. In SZARH the applicant claimed to have well founded fears of persecution for reasons of his homosexuality and political opinion. The applicant claimed he had made a documentary exposing local government corruption which resulted in him being physically assaulted and threatened. Consequently, the question arose whether the Tribunal failed to consider whether the conduct could amount to persecution by reason of actual or imputed political opinion. I believe that SZARH can be distinguished on its facts. The applicant in SZARH was involved in a number of incidences which directly related to the activities of exposing government corruption. The activity which generated the reaction was clearly a direct result of the activity in which the applicant was involved.
The two grounds in the applicants’ current application do not give rise to specific errors made by the Tribunal in its decision making process. The grounds raised are, in effect, seeking merit review of the decision. It is the respondent’s submission that on a fair reading of the Tribunal’s decision it has considered all the material put forward by the applicants and the statement attached to the application for review and reached the decision that it was not satisfied that the relevant criteria were present for the granting of protection visas. It was further submitted that the Tribunal’s non satisfaction was based entirely on factual findings that were open to it to make on the material before it. I agree with that submission and believe that the first contention contained within the applicants’ outline of submissions cannot be sustained.
In the applicants’ outline of submissions there is a ground identified alleging an error in the Tribunal’s decision. The applicants claim there is a breach of s.476(4) of the Act. This section is contained in Part 8, Division 2 of the Act prior to the amendments made in 2001. For convenience, I reproduce below the relevant sections:
“s.476 – Application for review
(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
…
(g)That there is no evidence or other material to justify the making of the decision.
(4)The ground specified in paragraph (1)(g) is not to taken to have been made out unless:
(a)The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)The person who made the decision based the decision on the existence of a particular fact, and that fact did exist.”
The applicants submitted that in order to make out a ground in s.476(1)(g), as qualified by s.476(4), the following must be established:
·the decision of the Tribunal was based on a fact;
·there was no evidence of that fact before the Tribunal;
·the fact is disproved.
It was submitted that it was fair to conclude that the Tribunal based its decision on the conclusion that the first applicant had not looked like a person of Caucasian origin, and, hence, the persecution she had been subjected to had not been attributed to her real or imputed ethnicity and that the State had not failed to protect the first applicant for that reason. The contention was that the Tribunal’s opinion regarding one’s appearance cannot be a reason or part of a reason for refusing to grant the applicants’ protection visas because:
a)The Tribunal finding (and the decision based upon that finding) was not based upon a fact; and
b)There was no evidence of that fact before the Tribunal (the Tribunal’s opinion regarding the first applicant’s appearance was not ‘evidence’ within the meaning of s.476(1)(g)).
The applicants’ contended that the following authority supports that submission: Curragh Qld Mining v Daniel at 224; Yilan v Minister for Immigration & Multicultural Affairs; Pat Tai Choi v Minister for Immigration & Multicultural Affairs; T v Minister for Immigration & Multicultural Affair. This submission supported the second ground in the application.
Reasons
The first issue that needs to be resolved is whether the applicants identified issues that should be subject to review as they raise a question of whether the Tribunal has made a jurisdictional error in its decision making process. Both of the grounds pleaded in the application filed on 2 June 2004 are in effect seeking a merits review. The material raised in the first ground suggested that the Tribunal failed to consider material which addressed the treatment of minority ethnic groups by Russian Government officials and the Russian populous generally. In this regard, the Tribunal had before it United States State Department Reports regarding the discrimination against people from Corsica and Central Asia.
In the second ground of the application the suggestion arises that the Tribunal in some way made an arbitrary decision as to whether the first applicant could be clearly identified as a member of a particular minority ethnic group. Again, that does not reflect the decision making process adopted by the Tribunal as the Tribunal made observations based on a substantial body of information supplied by the first applicant, her experiences and the country information generally. From those observations the Tribunal made statements as to the probability of the first applicant being identified as a member of a particular minority ethnic group purely by appearance. This was a process of evaluation before the Tribunal. This is a question of evaluation of relevant material versus a merit review: see NAQS v Minister for Immigration & Multicultural Affairs per Hill J at [45]:
"... The question how much weight the Tribunal should place upon some portion of the evidence is a matter for it and not for this Court. It is not difficult to understand the applicant's dissatisfaction with the way this matter was dealt with by the Tribunal in the passage to which I have referred. However, I do not think that it can be said that the applicant's claim was just ignored in such a way as to constitute jurisdictional error. The claim was not ignored, it was just given no or little weight.”
In the absence of any clear grounds for review, the remaining issue is whether the applicants should be permitted to further pursue their application or whether it is an abuse of process and should be dismissed accordingly. I believe that the application on the applicants’ own admission falls clearly within the provisions given by Driver FM in SZBQW and there are a number of decisions which support this approach. The applicants also have a problem in that there has been no information or evidence forwarded to this Court to explain the delay between the time of abandoning the proceedings in the Federal Court, allegedly on the advice concerning the changes in legislation, and the time of the current application. There is no evidence that there has been any attempt in this intervening period by the applicants to pursue their claim.
Conclusion
I accept the respondent’s arguments in the current application contained in the Notice of Motion and I uphold that Motion. Consequently, the substantive application is dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 11 February 2005