SZFXO v Minister for Immigration - [2005] FMCA 814

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXO v MINISTER FOR IMMIGRATION

[2005] FMCA 814

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Pakistan – whether RRT refused to consider relevant evidence – a person appearing before the Tribunal to give evidence is not entitled to be represented or to examine or cross-examine any other person – Tribunal must act according to substantial justice – Migration Act 1958 (Cth), s.420(2)(a) – whether a refusal by the Tribunal to call a relevant witness is a jurisdictional error – bias – apprehended bias.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.420, 427, 475A

Abebe v Commonwealth of Australia (1999) 197 CLR 510
ADH (2001) v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 328 at [14]
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 to 558
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Vakauta v Kelly (1989) 167 CLR 568
WADA (2001) v Ministr for Immigration & Multicultural & Indigenous Affairs [2002] FCA 201 at [38]
WAGO & Minister for Immigration & Multicultural & Indigenous Affairs (2003) 194 ALR 676

Applicant:

SZFXO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 687 of 2005

Judgment of:

Scarlett FM

Hearing date:

26 May 2005

Date of Last Submission:

26 May 2005

Delivered at:

Sydney

Delivered on:

31 May 2005

REPRESENTATION

Solicitors for the Applicant:

Ray Turner

Counsel for the First Respondent:

Mr McInerney

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

That a Writ of Certiorari is to issue bringing into this Court to be quashed the decision of the Refugee Review Tribunal made on

16 March 2005.
That a Writ of Mandamus is to issue requiring the Refugee Review Tribunal to reconsider the Applicant’s application for a protection visa according to law.
That the first Respondent is to pay the Applicant’s costs fixed in the sum of $4,600.00.
That the Refugee Review Tribunal is to be joined as the second Respondent to the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 687 of 2005

SZFXO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 16 March 2005.
The applicant is a man from Pakistan. He arrived in Australia on 2 March 2004 as a crew member of a ship. He left that ship on medical grounds and remained in Australia as an unlawful non citizen.

He was apprehended by officers from the Department of Immigration & Multicultural & Indigenous Affairs and placed in immigration detention on 26 November 2004. He has remained in immigration detention since then.
The applicant obtained advice from the Refugee Advice & Casework Service (RACS), and applied for a protection visa on

15 December 2004. He claimed a fear that he would be killed if he returned to Pakistan, because he had spoken up for the education of women and for greater freedom for women.
On 6 January 2005, a delegate of the respondent minister refused his application. The next day he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal arranged a hearing for 10 am on Monday, 21 February 2005. The applicant indicated that he wished to attend the hearing and give evidence. He also notified the Tribunal that he wished the Tribunal to hear evidence from two other detainees.
The Refugee Review Tribunal indicated on 9 February 2005 in a faxed message to the transport and escort supervisors at the Villawood Immigration Detention Centre that it had made arrangements for those two people to give evidence by way of telephone link up.
On 15 February 2005, the applicant's adviser from RACS sent a written submission to the Tribunal along with copies of a number of documents, including a further statement by the applicant.

The applicant attended the hearing on 21 February accompanied by his adviser, who is also a solicitor.
The applicant gave evidence at the hearing. He gave evidence that he feared an extremist group called the TNSM, who were responsible for the death in December 2004 of a friend of his, called Dr Wahab.

The two witnesses did not give evidence, either in person or by telephone. The applicant told the Tribunal that these people did not know him in Pakistan, but would be able to give evidence by way of country information.
The Tribunal member said that she was:
Not really very interested in taking any evidence from them.
See page 28 of the transcript.

On 28 February 2005, the applicant's advisers sought an extension of time to make a further written submission. The Tribunal granted this extension and the applicant's adviser forwarded a further document to the Tribunal. The further submission did not refer to any of the evidence of the two witnesses from Villawood Immigration Detention Centre might have given.
On 16 March 2005, the Refugee Review Tribunal gave its decision. The Tribunal said it was satisfied:
That the applicant does not have a well founded fear of persecution for a convention reason on his return to Pakistan.
See page 21 of the Court Book.

The applicant represented by Mr Turner, solicitor, who was not the person who appeared for the applicant at the hearing of the Refugee Review Tribunal, filed an amended application. That amended application was filed in Court without objection on 26 May 2005 when the matter came on for hearing.
In that application the applicant sought writs prohibiting the respondent from proceeding further with any action in respect of the decision of the Refugee Review Tribunal, a writ of certiorari, an order that the decision of the Tribunal was made in excessive jurisdiction and is therefore null and void, an order that the matter be remitted to the Refugee Review Tribunal for reconsideration, an order for costs and such other orders as the Court might deem fit.
The applicant relied on three main grounds. First, that the Tribunal failed to take account of relevant material. Second, that the Tribunal failed to fulfil its obligation to provide a hearing for the applicant. Third, that the Tribunal failed to carry out its role in a bona fide manner.
Dealing now with the first ground that the Tribunal failed to take account of relevant material, the applicant provided the following particulars:
(a)The Tribunal failed to hear the applicant's evidence about conditions in his country because the witnesses would be providing only country information and not any personal information relevant to the applicant. The Tribunal would not be seeking evidence from them as the Tribunal would be able to access country information from its own sources.
(b)By so acting the Tribunal failed to take account of the evidence which the applicant's witnesses could give in relation to a situation in the applicant's country.
In respect of the claim that the Tribunal failed to fulfil its obligation to provide a hearing for the applicant, the applicant provided the following particulars:
(a)By closing its mind to the evidence which could be brought by the applicant, the Tribunal failed to provide a real hearing to the applicant.
As to the third ground that the Tribunal failed to carry out its role in a bona fide manner, the applicant provided a number of grounds.

First, in a letter from the applicant's advisers, the Refugee Advice & Casework Service dated 2 March 2005, the letter pointed out that the Tribunal did not express concerns at the time of the hearing as to the credibility of the applicant's account of events, and requested notice in relation to any credibility concerns that the Tribunal might have had. The Tribunal did not respond to that request but went on to express concerns about the credibility of the applicant in his evidence.
The second ground is that the Tribunal refused to hear from the applicant's witnesses, as they would only be providing country information and not any personal information relevant to the applicant, because the Tribunal would be able to access country information from its own sources.
That by closing its mind to any evidence which the applicant might be able to bring in relation to his credibility or the situation in his country, the Tribunal failed to carry out its statutory duty in a bona fide manner. Finally, by closing its mind to any evidence which might rebut country information from its own sources, the Tribunal failed to carry out its statutory duty in a bona fide manner.
The applicant provided an outline of submissions in which he set out in more detail those particulars which he claimed. He claimed those matters were in fact jurisdictional errors. The failure to take evidence from the applicant's witnesses was in the applicant's submission, a failure to take account of relevant information which the witnesses could give.
He referred to WAGO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 194 ALR 676. Failure to provide from the applicant's witnesses was in fact a failure to provide a proper hearing.
The applicant provided further extensive material relating to the claim that the Tribunal failed to act in a bona fide manner. The applicant pointed out that the test of bona fides requires an applicant to show that there was some form of actual or apprehended bias in the decision making process. He referred to the Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553-558.
He also referred to the test for apprehended bias set out in ADH (2001) vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 328 at paragraph 14.
The general test for apprehended bias is whether the relevant circumstances are such that a fair minded and informed person might reasonably apprehend that the decision maker might not bring or have brought an impartial mind to bear on the decision.
The applicant's submission was that that was the situation in respect of the decision maker of this case.
The respondent has provided an outline of submissions and a supplementary outline. In the first outline, the respondent points out that the applicant's claim failed on the facts and that the Tribunal had rejected the applicant's claim on a creditability basis. The counsel for the respondent, Mr McInerney pointed to a number of adverse findings of fact that had been made by the Tribunal, which supported the Tribunal's rejection of the applicant's credibility.
He referred the Court to the principal of weighing of evidence as a matter quintessentially for the Tribunal. See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282 & 291-292. He submits that the Tribunal understood the task it was to perform and carried it out according to law.
The principal point made by counsel for the respondent in these submissions, related to the assertion that the Tribunal declined to hear from the applicant's two witnesses. As to that matter, he submitted that the Tribunal is not under any obligation to obtain evidence orally or otherwise from a person named in the applicant's notice, (s.426(3) of the Migration Act).
The respondent relied on a part of the transcript of the Tribunal's hearing to which I will refer further shortly. He points out that the transcript made it clear that first the two witnesses did not know the applicant or his personal circumstances, and secondly the two witnesses, if they did give evidence, would give evidence as to country information.
Third, that the applicant on advice from his migration agent determined not to adduce evidence from the witnesses. Fourth, having regard to the fact that the witnesses would only give evidence as to country information, and the fact that the applicant on advice from his migration agent to determine not to adduce evidence from those witnesses, the Tribunal determined not to make any inquiries of its own from the witnesses of the country information.
The letter from RACS to the Tribunal of 2 March relating to the fact that during the course of the Tribunal's hearing, the Tribunal did not raise any concerns about credibility is not, he submits, admissible.

In my view the letter from RACS to the Tribunal, written after the hearing about the applicant's credibility, is really too late for that to be an issue.
The evidence had already been given. It was inappropriate after the hearing to attempt to set the Tribunal's decision making process in stone as to whether or not there was an issue of credibility.

If credibility was to be a problem, it is something which in my view should have been raised at the hearing rather than in an afterthought.
Counsel for the respondent referred at some length to the Tribunal's decision not to take evidence from the two witnesses. He again referred the Court to the provisions of s.426 of the Migration Act. He made the points, first of all, that if the applicant or his adviser had wanted evidence to be adduced from the two witnesses, it was incumbent on them to ensure that the witness's evidence reached the Tribunal in some form. See appellant WADA (2001) v Minister for Immigration & Multicultural Affairs [2002] FCA 201 at [38].
It was for the applicant to advance whatever evidence or argument he wished to advance, and for the Tribunal to decide whether his claim had been made out. See Abebe v The Commonwealth of Australia (1999) 197 CLR 510. The Tribunal, he submitted, had taken into account the applicant's wish to adduce evidence from the two witnesses, but it is the applicant who bore the onus of proof to establish that the Tribunal refused to hear evidence from the witnesses.
His submission is that the evidence does not bear out that fact and he went on to point out to the Court that by standing silent during the course of the Tribunal's hearing and the further written submissions of the Tribunal after the hearing, and not raising any complaint of the bias that was now being made, the applicant waived any right to judicial review on the ground of apprehended bias. See Vakauta v Kelly (1989) 167 CLR 568 & 572.
The transcript of the exchange is to my mind informative. I received a copy of the transcript of the hearing of the Refugee Review Tribunal into evidence. The transcript was annexed to an affidavit of one Ana Sofa, sworn on 24 May 2005. Ms Sofa gives her occupation as word processor. There was no objection to the transcript being admitted into evidence.
Both Mr Turner for the applicant, and Mr McInerney for the respondent relied on the same relevant parts of the transcript.

The transcript bears two different page numbers, and for the purpose of the hearing reliance was made on the page numbers of the covering affidavit, which were the larger and more obvious of the page numbers, and I propose to follow that. So at page 3 of the affidavit, at about point 4, the Tribunal Member says to the applicant, and I quote:
And I have your application for a review for the Department's decision made out to this Tribunal, and I have the submission by your adviser in support of your application. Reading on in these materials I wasn't able to be satisfied that you qualified for a protection visa, and it is for this reason that we have organised this meeting this morning to give me the opportunity to ask you some questions about things that I am not satisfied about, and to give you the opportunity to make any further statements that you would like to make to the Tribunal.
In my view this goes no further than setting out the Tribunal's obligation under s 425 of the Migration Act, and nothing turns on it. At page 5 of the affidavit at about point 3 the Tribunal Member says:
As I said, what I would like to do is ask you some questions based on what you have given in your written statements. When I have asked you all of the questions I will need to ask you I will let you make any statements you would like to make that perhaps you think I have not covered in asking you questions, and to also give your adviser the opportunity to raise anything that she thinks might be of importance to your case.
In my view that statement by the Tribunal Member, to which I was referred by the solicitor for the applicant, is also not controversial.

It does little more to my mind than to make it clear to the applicant what the immediate procedure will be. It also makes clear to the applicant that the applicant's adviser, who was both a Migration adviser and I see a solicitor according to the correspondence, gives her the opportunity to raise anything that she thinks might be of importance to the applicant's case. That, to my mind, would include the opportunity to ask that the evidence of the two witnesses should be taken. I am mindful of the fact the Tribunal had already made arrangements for these two people to give evidence by telephone.
The relevant passage now to which the lawyers for the applicant and the respondent have referred to the Court begins at page 28 of the affidavit, which is 27 of the transcript, where the Tribunal Member says:
Okay, now I think I have enough. The only thing I wanted to raise with you is the witnesses. I notice there are two witnesses down; do you know anything in particular about the witnesses?
The Migration adviser then says:
I understand that they weren't allowed to come today, but the information that they were to provide was some country information so I have spoken with -
the name of the applicant -
and he is happy for them not to be here.

The Tribunal Member says:
I was just talking to your adviser. I know you put down two people as witnesses. Did these people know you in Pakistan, or they met you here in Australia?
The applicant replies:
No, they are not here, they are living in Pakistan, but they are not in Pakistan.
It should be borne in mind that the applicant's command of the English is not the best. Question:
And where were they living in Pakistan?
Applicant:

They are living away from us. One is, I believe, living in Baghdad, and the other one is living away somewhere in the same area.

It seems to be unlikely, even though the transcript refers to Baghdad, that that is exactly the word that the applicant used, and the witness has been living in Iraq. It is hardly likely that they would be able to give any evidence about Pakistan, and indeed, whatever the word was, it was clear that the people present at the hearing, including the Tribunal Member, were not of the belief that the people concerned lived anywhere near Baghdad, at least the Baghdad in Iraq. The Tribunal Member says:
Okay, but they didn't know you in Pakistan?
Answer:

No, I didn't see them in Pakistan.

The Tribunal Member:
Because I am not really very interested in taking any evidence from them because I have lots of country information about the area that you come from, so I would prefer to rely on that, and if they hadn't known you personally then there is not really a lot they can say that can throw any light of that matter.
The applicant says:

Okay.

The Tribunal Member says:
So I have asked you all the questions I need to ask you and I have followed up some things with your adviser.
The applicant says:
That's fine.
The Tribunal Member:
So I am happy to finish the hearing at this point. I might just check whether you were interested in doing another submission or whether you would like me to wait a bit.
The adviser says:
Yes, if I can prepare a further submission just following up on some of those concerns of communication.

That was agreed to, I note, and in fact the extension of time was agreed. For the applicant, Mr Turner has put that what was agreed to by the applicant's adviser was that the two witnesses would not be personally present at the hearing, not that they would not give evidence at all, because telephone facilities were available. In other words, the submission is that the applicant was agreeing to evidence by telephone rather than evidence in person.
The point made by the counsel for the respondent deals with the decision of a well-known case of Vakauta v Kelly (supra), to which I have previously referred. It is a decision of the High Court of Australia, and relates to comments by the Trial Judge in the Supreme Court of New South Wales about certain expert witnesses called on behalf of the defendant. The comments made by the Trial Judge were not particularly complementary to the expert witnesses concerned, who were three doctors, described by the Trial Judge as:
that unholy trinity
And the defendant appellants:

usual panel of doctors who think you can do a full week's work without any arms or legs.

What the High Court said in the joint decision of Brennan, Dean, and Gaudron JJ at page 572 is:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then if those contents prove unpalatable attack the judgment on the ground that by reason of those earlier comments there has been a failure to observe the requirements of the appearance of impartial judgment. By standing by such a party has waived the right subsequently to object.

In this case Mr McInerney of counsel pointed out that the applicant did have an adviser present, and the adviser, it is quite clear from the correspondence, was not only a Migration adviser but a solicitor and describes herself as such. She did not raise any objection to the way in which the Tribunal Member decided not to take the evidence of those two witnesses, and as such cannot now be heard - the applicant cannot now be heard to complain now that he has an adverse decision.
Mr Turner has pointed out that the situation of a person appearing before the Refugee Review Tribunal is different from that of a person appearing before a Court. He drew my attention to the provisions of section 427 of the Migration Act which sets out the powers of the Refugee Review Tribunal. Subsection (6) says:
A person appearing before the Tribunal to give evidence is not entitled: (a) to be represented before the Tribunal by any other person, or (b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.
The submission is that whether or not the adviser is a solicitor that person is not in the same position as a lawyer appearing before this Court or any other Court who has a right to appear where an applicant has a right to be represented. As such that person has a right to object to comments which would indicate to a layperson that there was some degree of bias, or object to some failure to provide procedural fairness.
The position of the adviser before the Tribunal is a much more precarious one in that the applicant has no entitlement to have that person represent them. Indeed, it is clear from the transcript the adviser played very little part in the actual hearing, which involved the applicant giving evidence and being examined by the Tribunal Member.
If, as is submitted, the Tribunal Member overrode the wish of the applicant to call these two witnesses, the adviser seems to have meekly acquiesced to that procedure without either correcting a misapprehension that the applicant sought to have those witnesses, and has still sought to have those witnesses give evidence, or failed to object to what could perhaps otherwise be seen as a high-handed refusal to accept witnesses who had relevant information.
To my mind it is relevant to look at s.420 of the Migration Act, which covers the Refugee Review Tribunal's way of operating. Section 420 says:

(1)the Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick;
(2)the Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms, or rules of evidence; and
(b)must act according to substantial justice in the merits of the case.

I am not aware of any decision that decides what is meant by the use of the term ‘substantial justice’. It would appear however that it is in some way different from natural justice. Certainly, in the decision of the High Court of Australia, the Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 it was held that sub-s.(1) of s.420 did not prescribe a procedure to be observed by the Tribunal in the making of a decision so as to found a right of review under what was then s.476(1)(a), and the clear language and purpose of s.476(2)(b) could not be avoided by treating s.420 as conferring rights not limited by s.476(2)(b). At paragraph 48 in the judgment the Court said:
It is not an acceptable approach to statutory interpretation to negate the clear intention of the legislature by reliance on s. 420 of the Migration Act. In any event, s. 420 when understood in its unstatutory context is an inadequate foundation for an attempt to overcome the provisions of s. 476(ii).
The relationship or lack of it between s. 420 and s. 476 was correctly explained by Lindenmayer J at first instance in Sun Zhan Qui v Minister for Immigration & Multicultural & Indigenous Affairs. The history of legislative provisions similar to s. 420 was examined in Qantas Airways Limited v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals at least to some degree from constraints otherwise applicable to Courts of law and regarded to inappropriate to tribunals.
The extent to which they free tribunals from obligations applicable to the Courts of law may give rise to dispute in particular cases but that is another question.
I would comment that s.476 as it was at the time of the decision in Eshetu is somewhat different from s.476 of the Act as it is now as the Act was amended in 2001 after that decision.
Quite clearly s.420 does not provide an extra ground of review but as their Honours made it clear in Eshetu there may be a ground for argument in particular cases. How far there is such a ground, bearing in mind the altered state of s.476, is perhaps a question that cannot be satisfactorily argued today.
What I propose to do is to look at the passage from the transcript relating to the exchange between the Tribunal member, the adviser and the applicant which appears, as I said, at page 28 of Ms Sofa’s affidavit.
It is quite clear from the Court book that when the Tribunal had been made aware of the applicant's wish that these two people who were then in Immigration detention were to give evidence. It was also clear that these people were not going to be physically brought to the Tribunal hearing but that arrangements were to be made for a telephone link-up. At page 72 of the Court book is a copy of a fax transmission from the Refugee Review Tribunal to the Transport and Escort supervisors at the facility in Villawood. The subject is headed "Advice of telephone link-up for witnesses in detention for the hearing of" and the name of the applicant.
The relevant part of the fax is "he", meaning the applicant:
has asked for two Villawood detainees to give evidence at his hearing which would be arranged via a telephone link-up.

Please advise us as soon as possible as to which phone number we have to dial up on the day of the hearing. The witness' detainees are -
and the fax gives the names.
At the time of the hearing before the Tribunal, it was certainly in the contemplation of the applicant and the Refugee Review Tribunal that these people would give evidence by telephone link-up. At page 28 of the affidavit and the transcript the Tribunal member asks the applicant's adviser:
Do you know anything in particular about the witnesses?
The adviser says:
I understand they weren't allowed to come along today
The Tribunal:
That's right.
The adviser:
But the information that they were to provide was some country information so I have spoken with the applicant and he is happy for them not to be here.
In my view, that statement must be taken according to its ordinary English meaning. They were not allowed to attend physically and the applicant was happy for them not to attend physically. It does not mean and should not be intended to mean that the applicant was happy for these people not to give evidence. It is then the Tribunal member speaks directly to the applicant and finds out that the two witnesses did not know the applicant in Pakistan – that basically they were people who would give country information.
Then the Tribunal member goes on to say:
Because I am not really very interested in taking evidence from them because I have lots of country information about the area that you come from, so I prefer to rely on that. If they hadn't known you personally then there is not really a lot they can say that can throw new light on your matter.
So the applicant says, "Okay". The Tribunal member said:
So I have asked you all the questions I needed to ask you and I have followed up some things with your adviser.
The applicant said:
Well, that's fine.
In my view, the passage quoted shows the applicant not arguing with the Tribunal member when she makes it clear that she does not wish to hear from the two witnesses. The concern that I have is that the Tribunal member did not know what sort of country information that the two witnesses were going to give. There was no reference to any statement from these people and the Tribunal member did not know whether those witnesses would give evidence that accorded with the country information that was already available to the Tribunal or would be directly contradictory to it. However by saying to the applicant:
Because I am not really very interested in taking evidence from them because I have lots of country information about the area that you come from so I would prefer to rely on that.
the inference that can be drawn is that country information which the Tribunal has is going to be favourable to the applicant's case and that it is unnecessary for these people to give further country information to support the applicant's case. To my mind, that can only lead to an inference that the applicant has been denied natural justice.

I am certainly of the view that substantial justice under s.420 has been denied. The applicant has been misled by the Tribunal or at least there is the potential to be misled. That may perhaps explain why the adviser did not follow up with a written submission which included the evidence which the witnesses were going to give because the applicant and the applicant's adviser had been misled into the belief that country information was not going to be a problem. Therefore there was no need for two witnesses to give country information favourable to the applicant's case.
I would have to say that if arrangements had already been made for witnesses to give evidence by telephone it is difficult to see why the Tribunal member did not take the step of hearing the witnesses' evidence The dismissal of the value of the evidence of the witnesses in what appears to me to be, with respect, a pre-emptory and high-handed way leads to an apprehension that the Tribunal had discounted the evidence of the applicant's witnesses without being made aware of whether those persons' evidence was going to assist the applicant or not.
In my view, this is a jurisdictional error. It is for those reasons that I propose to grant the application.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 14 June 2005