SZEIE v Minister for Immigration
[2005] FMCA 440
•13 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEIE & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 440 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XU) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Pilbara Land Council v MATSIA (2000) 103 FCR 539
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
Han v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 166
Minister for Immigration & Multicultural Affairs v Savyin (2000) 98 FCR 168
| Applicants: | SZEIE, SZEIF & SZEIG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2741 of 2004 |
| Delivered on: | 13 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 24 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicants appeared in person with the aid of a Mandarin interpreter.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2741 of 2004
| SZEIE, SZEIF & SZEIG |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 July 2004 and handed down on 4 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 April 2004 to refuse to grant the applicants a protection visa.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZEIE” (applicant husband), “SZEIF” (wife) and “SZEIG” (son)”.
The applicants claim to be citizens of the People’s Republic of China. They arrived in Australia on 31 August 1998. On 14 April 2004 they lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 20 April 2004 the delegate refused to grant a protection visa and on 21 May 2004 the applicants applied to the Tribunal for a review of the delegate’s decision.
Only the first named applicant SZEIE (the applicant husband) made specific claims under the Refugee Convention, his wife and son rely on their membership of his family.
The applicant claimed his brother worked for the National Security Bureau (“NSB”) in the People’s Republic of China. He claimed his brother and other NSB colleagues attempted to persuade him to provide specific information that he could obtain from his business dealings, particularly with respect to the applicant’s overseas travel. He declined and was told he may not be permitted to travel for business purposes if he did not agree (Court Book p.35) (“CB”). The applicant claimed he was under mental and psychological pressure at the time. He became involved in Falun Gong in early 2001 and the practice became an important part of his life (CB p.36).
In September 2002 the applicant claimed he returned to his home town to visit relatives. He claimed he was visited by his brother and invited to dinner on several occasions. One week prior to the applicant departing from China, the NSB officials told him they “clearly knew what I have done in the overseas and especially my involvement in the Falun Gong”. The applicant claimed the authorities did not give him trouble as they wanted him to work for them again and they wanted him to collect information about Falun Gong practitioners in Sydney. In order to leave China, the applicant agreed. The applicant claimed that both he and his brother would be in trouble if they dared to betray the NSB (CB p.36).
The applicant claimed that he had not assisted the NSB with information whilst he was in Australia but he received threatening telephone calls. He claimed he had to inform the NSB in writing that he would not assist them. The applicant also advised the NSB he would openly expose to the media in Australia what the NSB had done to Falun Gong practitioners (CB p.37).
The Tribunal’s findings and reasons
The Tribunal wrote to the applicant in relation to his application on
4 June 2004 indicating that they were unable to make a favourable decision based on the material before it and inviting the applicant to attend a hearing (CB pp.80-81). The applicant subsequently attended the Tribunal hearing on 8 July 2004.
The applicant claimed to fear persecution for reason of his political opinion and religion in China. He claimed to be at risk from the NSB, where his brother worked and who had requested the applicant gather information on Chinese people in Australia. The applicant claimed he was not told which people the NSB wanted information on, other than supporters of Falun Gong. The applicant also claimed he commenced practicing Falun Gong himself in Australia and feared harm for this reason if he returned to China (CB pp.34-37).
The Tribunal did not accept the applicant’s claims concerning the NSB, noting a number of implausibilities and contradictions such as:
a)the applicant allegedly being sent to obtain information on Cantonese speakers despite him not speaking the language;
b)the applicant having been given no guidance as to what information was desired or from whom it was to be sought; and
c)being asked to gather information of Falun Gong practitioners before Falun Gong was made illegal in China.
The Tribunal concluded on the basis of these considerations, the applicant was not a witness of truth (CB p.171). Nor did the Tribunal accept that the applicant would have repeatedly returned to China from Australia at times when he was allegedly in fear because of his Falun Gong practice. The Tribunal concluded that this claim was made for the sole purpose of enhancing his claim for a protection visa (CB p.172) and that the applicant was not a sincere and genuine Falun Gong practitioner (CB p.174). The Tribunal also noted that none of the supporting evidence presented by the applicant supported his claims (CB p.173).
Application for review of the Tribunal’s decision
On 3 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error;
Particulars
-The Tribunal failed to give me any chances to confirm its “description” (or “summary” or it may be called as “record”) regarding to the hearing on Thursday, 8 July 2004 in its decision from Page 3 to Page 9, which have been used as main reason to affirm the unfair decision of the Delegate of Minister. As a matter of fact, such a “description” or “summary” or “record” can not accurately, fairly and thoroughly demonstrate my evidences provided, and unfair treatment that I had suffered from during the hearing:-
a.The Tribunal has distorted my evidences provided during the hearing;
b.The Tribunal many times interrupted my claims or explanations;
c.The Tribunal failed to give sufficient time to the interpreter’s translation so that the Tribunal failed to make me understand its questions or issues clearly, thoroughly and accurately;
d.The Tribunal failed to give me any fair chances to comment its negative understanding of my claims as well as the important independent country information;
e.The Tribunal intentionally gave me strong pressure; and
f.The Tribunal failed to consider my claims according to actual situation in China
-The Tribunal’s decision is obviously relied on its definitely incorrect understanding of basic knowledge and background as well as operation of National Security Bureau (NSB) in China. However, the Tribunal should, at least, make me aware, clearly and thoroughly, its negative opinions, and must give me a chance to make my comment on it, or to make my explanation. Unfortunately, the Tribunal failed to do so.
-The Tribunal, has, obviously, distorted the meaning of those documentary evidences provided by me in support of my practice of Falun Gong in Australia. However, the Tribunal should, at least, give me a chance to comment its misunderstanding of those documentary evidences, particularly the reference from ‘Falun Dafa Association NSW Inc’. I do indeed believe that the Tribunal should, at least, give a chance to ‘Falun Dafa Association NSW’ and asked the association to response its negative information against the reference. Unfortunately, the Tribunal failed to do so.
-The Tribunal garbled piece of Independent Country Information (ICI) the hearing, but the Tribunal failed to pay attention to the fact that it is impossible for me to completely and clearly understand the actual meaning of those pieces of ICI information, because it is impossible for the interpreter at the hearing to do so.
-As the fact that the Tribunal failed to provide me complete ICI information before or during or after the hearing arranged by the Tribunal, it is definitely impossible for me to have a fair chance to make my comment on the ICI information, which has been used by the Tribunal as main reasons to affirm the refusal decision of Immigration Department of Multicultural and Indigenous Affairs (the “DIMIA”).
-In summary, the Tribunal failed to comply with its obligations under Section 424 of the Migration Act 1958, including-:
·The Tribunal failed to provide me complete ICI information, which has been used as the reason, for affirming the unfair decision of the DIMIA.
·The Tribunal failed to explain to me, clearly and thoroughly, the information, he used in his decision, later on, will directly relating to my review application for DIMIA’s decision.
·The Tribunal failed to ensure that I fully and completely understand the information that he would be used in his decision before and during the Tribunal.
·Particularly, the Tribunal failed to provide me the information by one of methods specified in Section 441A of the Migration Act 1958.
·There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
-The Tribunal, in fact, failed to arrange a fair hearing. Apart from some evidences that I have mentioned above, the Tribunal should, at least, give my wife and son chances to make their claims, because it is a combining application;
-The Tribunal’s decision has, obviously, included a reasonable apprehension of bias in relation to my previous application for a subclass 457 visa. However, the Tribunal failed to provide me any chances to make my comment before, during or after the hearing.
-The Tribunal, obviously, failed to well understand the definition of Convention Ground with obvious bias; and failed to demonstrate its necessary knowledge about actual situation in China; and
-The Tribunal failed to accurately, fully and carefully consider all of my claims.
·The Tribunal failed to carefully and fairly consider the applicant’s claims based on procedures and criteria prescribed in Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“UNHCR Handbook”)
a)The Tribunal failed to demonstrate its necessary knowledge and experience and such an understanding
I have been guided by Paragraph 190, Part II, UNHCR Handbook that a qualified examiner should have necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs. Especially, an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.
b)The Tribunal failed to use all the means at its disposal to produce the necessary evidence in support of the application. Also, the Tribunal failed to demonstrate that there are good reasons to the contrary.
I have been guided by Paragraph 196, Part II, UNHCR Handbook, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. It may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Also, if the applicant’s account appears credible, he should unless there are good reasons to the contrary, be given the benefit of the doubt.
c)The Tribunal failed to consider my statements in the context of the relevant background situation. Especially, the Tribunal failed to demonstrate its sound knowledge of conditions in my country of origin.
I have been guided by Paragraph 42, Part I, UNHCR Handbook, the applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation.
d)The Tribunal failed to consider the fact that the mere possession of a valid national passport is no bar to my application, because my passport is obtained surreptitiously.
I have been guided by Paragraph 48, Part I, UNHCR Handbook, possession of a passport cannot therefore always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear. There may be cases where a passport has been obtained surreptitiously. In conclusion, therefore, the mere possession of a valid national passport is no bar to refugee status.
e)The Tribunal failed to give weight to the fact that various sufferings and experiences of mine in China, if taken together, must produce a strong effect on my mind that can reasonably justify my claim to well-founded fear of persecution on cumulative ground.
I have been guided by Paragraph 53, Part II, UNHCR Handbook, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on ‘cumulative grounds’.
In conclusion, I believe to be a person to whom Australia has protection obligations under the United Nations Refugees Convention as amended by Refugee Protocol; and I do not think that the Tribunal has considered all of my claims fairly and carefully.” (Errors included)
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
The applicant appeared self represented with the aid of a Mandarin interpreter. The interpreter advised the Court that the applicant spoke with an accent which made it a little difficult for her to understand. The interpreter was informed that the Court understood the difficulties that they may be experiencing and advised her to take her time and ask the applicant to repeat his statements if she was having trouble comprehending. At some stages during the applicant’s address to the Court it was necessary for the interpreter to request him to repeat what he had said but part of this may have been due to the fact that the applicant was raising his voice and appeared to be nervous in his presentation.
On several occasions the applicant advised the Court of how important the issue was to him and his family and he became quite agitated at those times. The applicant had previously appeared before me at a directions hearing on 17 September 2004 and at that time consented to Short Minutes of Order which required the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by 29 November 2004. On that occasion the applicant indicated he wished to participate in the Pilot RRT Legal Advice Scheme. Subsequently to the directions hearing the applicant received legal advice in respect of his application.
As ground 1 of the applicant’s application made numerous references to the Tribunal hearing and raised complaint about the manner in which the hearing was conducted, I enquired of the applicant whether he had filed any further information or written submissions prior to the final hearing. The applicant indicated he had not done so and that he intended to rely upon his original application but that he would make oral submissions in support of that document.
When invited to do so, the applicant made a long oral submissions which, in effect, was a review of the circumstances of his application and the effect that it had on both him and his family. Although not especially stated, it was a request for a merits review of a range of material that the Tribunal had in the form of written submissions together with the testimony the applicant had divulged during the oral hearing. The applicant was permitted to make this extensive submission as it was unclear as to what material he wished to present to the Court with the presentation being wide ranging and touching on many topics and being delivered from a pre-prepared check list.
As the applicant was 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 (“Yo Han Chung”). The pleaded grounds were comprehensive and canvassed a wide range of issues. Unfortunately, the oral submissions, although extensive, did not address or supplement the written pleadings.
Respondent’s submissions
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)It was apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its finding that the applicant was not credible and his claims untrue. Such findings are matters of fact for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]. So such conclusions: Kopalapillai v Minister for Immigration & Multicultural Affairs at 558-559; W148/00A v Minister for Immigration & Multicultural Affairs per Tamberlin and R D Nicholson JJ at [64]-[69]. The Tribunal’s findings were open for the reasons it gives, including the country information to which it refers. It is unlikely that a state party is expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality: Chan v Minister for Immigration & Ethnic Affairs per McHugh at 428 (although here the Tribunal did not find the applicant’s claims to be ‘plausible and coherent’). The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (“Wu Shan Liang”) at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth of Australia (“Abebe”) at [137].
b)The application made a number of complaints about the Tribunal’s decision. Firstly, it alleged that the applicant was a pious Falun Gong practitioner who had a well-founded fear of persecution, but this did no more than seek merits review. Secondly, complaint appeared to be made about the Tribunal’s summary of the hearing, and its conduct of the hearing. The applicant had not filed a transcript of the hearing, so these claims have no evidential foundation. Moreover, the Court cannot infer that any material not mentioned in the Tribunal’s account of the hearing was not raised with him: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs (“NAOA”) at [21]; Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (“NAMW”) at [121]-[122]. Thirdly, complaint was made that the Tribunal did not make its “negative opinions” known to the applicant. This claim failed both because in the absence of a transcript the claim had no evidential foundation and because there was no such obligation on the Tribunal to make known its though processes or preliminary conclusions: Abebe; Pilbara Land Council v MATSIA per Merkel J at [63]-[73]; Re Ruddock; Ex parte Applicant S154/2002 at [54], [57]-[58]; NAOA at [27]. Moreover, s.422B of the Act applied, so any common law procedural fairness complaint was unavailable to the applicant.
c)Fourthly, complaint was made about the Tribunal’s “negative” treatment of the letter from Falun Dafa Association of NSW (CB p.173), but the Tribunal did not appear to have doubted the veracity of the letter, but did not regard it as supporting the applicant’s claims. Fifthly, complaint was made about the interpretation of country information at the hearing. Again, without a transcript such complaints had no factual foundation. Sixthly, complaint was made that the Tribunal failed to provide complete country information to the applicant at or prior to the hearing. It was clear that some country information was discussed at the hearing (CB p.167), and this was the only country information the Tribunal relies upon in its decision (CB p.171), so this claim would appear to be factually wrong. In any case, s.424A did not require disclosure of such country information: NAMW and as stated s.422B applied in this case so the applicant cannot rely upon common law procedural fairness.
d)Seventhly, complaint was made that the applicant’s wife and son were not given a chance to make their claims, but the Tribunal records that they did not wish to say anything additional to the applicant’s claims (CB p.166). Complaint was also made that the Tribunal did not alert the applicant about its concerns about his previous visa application. It did not appear that the Tribunal had concerns about his previous visa application. It did not appear that the Tribunal had concerns on this issue, but even if it did claim would fail for the reasons given in (b) above. The remaining complaints concerning the Tribunal not following the UN Handbook fail both because the particulars given did not establish any such failure and because the Handbook was a guide and not binding on the Tribunal: Han v Minister for Immigration & Multicultural Affairs per Sackville J at [12]-[17]; Minister for Immigration & Multicultural Affairs v Savyin at [101]-[112].
e)As there was no jurisdictional error in the Tribunal’s decision, it followed that it was a ‘privative clause decision’ within s.474 of the Act.
Reasons
As alluded to earlier, the applicant made extensive oral submissions which were focused on the factual basis of the applicant’s claim and the applicant’s disagreement with the way the Tribunal had considered and drawn conclusions from that material in their decision making process. The applicant appeared to be working from a pre-prepared list which re-stated the facts presented to the Tribunal and canvassed the actual or apparent conclusions the Tribunal had drawn from those facts. The applicant was inviting the Court to conduct a merits review of the Tribunal’s decision and the factual findings made by it. In so far as the applicant seeks merits review, a merits review is not available in this Court: Wu Shan Liang.
The applicant’s disagreement with the Tribunal’s finding of fact was general in nature and could best be described as the Tribunal coming to a conclusion which was different from that desired by the applicant. Individual elements of the material under consideration were not isolated and identified in a specific way. However, even if the applicant had been more specific in his approach it is not within the powers of this Court to make findings as to whether the Tribunal made a wrong finding of fact: Abebe per Gummow and Hayne JJ at 137:
“… while there is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.”
The most significant of the claims made by the applicant was that he alleged he is a pious Falun Gong practitioner who has a well-founded fear of persecution and that the Tribunal failed to make that finding.
The applicant in his pleadings took issue with a number of matters that arose during the Tribunal hearing on 8 July 2004. However, no transcript was tendered as evidence at the hearing. At the commencement of the hearing in this Court the applicant was asked whether he had filed any further material subsequent to his initial application and he indicated that he had not. The pleadings indicate they have been prepared by a person with some legal training who was familiar with the jurisdiction. The pleadings have been drawn in a manner that required the support of the transcript of the Tribunal hearing and it would have been expected that the filing of the appropriate transcript would have been pursued. In the current form the pleadings are no more than assertions which are not capable of being sustained in the absence of the supporting transcript.
The applicant appeared before me at a directions hearing on
17 September 2004. At that time, the applicant was provided with various information from the Court Registry staff and one of the documents provided to the applicant was headed “Information for (Unrepresented) Applicants”. On the back of that document are a number of items which are noted for the applicant’s attention. The third statement on the information list was headed “Hearing tape” and stated:
“You should obtain from the Refugee Review Tribunal or the Migration Review Tribunal a tape recording of the hearing in the Tribunal. If you do not have a copy, speak to the Minister’s Solicitor who is in Court today. If it is intended to use the hearing tape as part of your application to the Court, a written transcript of the hearing should be obtained and certified by both parties to the proceedings.”
The contents of the information sheet were explained to the applicant by the respondent’s solicitor and the interpreter at the Court during the directions hearing. When the applicant appeared before me to have a scheduled hearing date allocated to him, a number of issues were viewed with the applicant including the contents of the information sheet. The applicant signed the bottom of the information sheet indicating that the document was read to him by the interpreter. During that directions hearing the applicant indicated he wished to participate in the Pilot RRT Legal Advice Scheme (NSW) and an adviser was subsequently allocated to the applicant and advice provided. During that advice session the applicant was accompanied by a friend who was fluent in English and acted as an interpreter.
I am satisfied that the applicant had been given every opportunity to be informed in respect of the importance of the transcript of the Tribunal’s hearing and the importance of that document at the final hearing. There are a number of factors that would support this contention. However, no transcript was filed. The initial review of the file prior to the hearing indicated a transcript would be crucial for a number of the issues in the pleadings and that transcript was absent from the file. At the beginning of the hearing in this Court, the applicant confirmed that he had not filed the transcript material.
The applicant in these proceedings was self represented and the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung. The applicant filed detailed pleadings where were particularised but regretfully addressed the fact finding function of the Tribunal of which the applicant did not agree. It is not within the power of this Court to undertake a merits review of the Tribunal’s decision making process. A fair reading of the Tribunal’s decision does not readily identify issues of jurisdictional error by the Tribunal in performing its role. The applicant’s pleadings took issue with seven different aspects of the Tribunal’s decision which have been individually addressed by Counsel for the respondent and I am satisfied that each of those issues has been correctly addressed and they do not identify jurisdictional error on the part of the Tribunal.
Conclusion
The applicant’s pleadings did not identify any ground that the Tribunal committed any jurisdictional error nor on a fair reading of the Tribunal’s decision were any jurisdictional errors apparent. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 13 April 2005
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