SZGPZ v Minister for Immigration

[2006] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 194

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Fiji on the basis of ethnicity – s.417 request – consideration of prospects of success – delay.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; S.417; 483

M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
Re Commonwealth of Australia;Ex parte Marks (2000) 177 ALR 491
Applicant M29/2001 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266
Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576
Re Ruddock; Ex parte LX [2003] FCA 561
Daniel v Minister for Immigration and multicultural and Indigenous Affairs (2004) 205 ALR 198
M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2005) 219 ALR 140
NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478
SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90
SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407
Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 162 ALR 577
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324

First Applicant: SZGPZ

Second Applicant: SZGQA

Third Applicant: SZGQB

Fourth Applicant: SZGQZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1710 of 2005

Judgment of: Emmett FM

Hearing date: 1 February 2006

Date of Last Submission: 1 February 2006

Delivered at: Sydney

Delivered on: 14 February 2006

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Ms E. Knight, Australian Government Solicitor

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. The application before this Court is dismissed.

4. That the Applicant pay the First Respondent’s costs in an amount of $6200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1710 of 2005

SZGPZ

First Applicant

SZGQA

Second Applicant

SZGQB

Third Applicant

SZGQC

Fourth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 December 1997 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicants.

2. The applicants are husband and wife and two of their children. The first applicant is the principal applicant upon whom the other applicants depend. The first applicant also has two other children who are married and reside in Australia.

3. The applicants claim to be citizens of Fiji.

4. The applicants arrived in Australia on 14 February 1996 having departed Fiji from Nadi Airport on 14 February 1996 on passports issued in their own names.

5. On 16 January 1997, the applicants lodged applications for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. The first applicant claimed that he was persecuted in Fiji on the basis of his ethnicity and religion.

7. On 27 March 1997, the Delegate refused the applicants applications for a protection visa on the basis that the first applicant does not face a real chance of persecution if he returned to Fiji and is therefore not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

8. On 24 April 1997, the applicants filed an application for review before the Tribunal. On 15 December 1997 the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

9. On 1 July 2005 the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia owes protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

1. The first applicant attended a hearing on 9 December 1997 and gave oral evidence. The Applicant’s brother in law also gave evidence at the hearing.

2. The first applicant claimed that he operated a grocery store between 1960 and November 1987. He claimed that he abandoned his shop and his residence in late 1988 following repeated attacks on his shop after the coup of May 1987. The first applicant claimed that his shop was attacked 3 or 4 times between May and November 1987 at which time the robbers used a knife. The first applicant acknowledged that he was not harmed during these incidents.

3. The first applicant claimed that during this period youths also attacked his home by throwing stones at his house during the night.

4. The first applicant claimed that, after fleeing his home, he stayed with his brother in the next town who also operated a shop. The first applicant claimed that ethnic Fijians moved into his home. The first applicant also claimed that since leaving his home in Fiji he was forced to continually move residences in Fiji and was unable to earn a sufficient living driving a taxi.

5. The first applicant claimed that following the coup ethnic Fijians harassed his family and came to shop and refused to pay for goods. He claimed that his shop was vandalised, windows broken, his car damaged and his phone lines cut.

6. The first applicant claimed that he reported these incidents to the authorities many times, however no action was taken.

7. The first applicant also claimed that he was beaten severely by ethnic Fijians in 1992 whilst driving a taxi. He claimed that whilst the offenders were charged they were only issued with a fine which he claimed was evidence of lenient treatment by the police.

8. The first applicant claimed that, prior to coming to Australia, he sold most of his property so he would have nothing if he were to return to Fiji.

9. The first applicant claimed that if he returned to Fiji he would be subject to harassment and harm from ethnic Fijian youths who are not controlled by the authorities as they themselves are ethnic Fijians. The first applicant claimed to fear harm to his family from the youths because they do not like to see Indian Fijians running successful businesses.

10. The first applicant also claimed that he has no family in Fiji and he would have nowhere to live and no money.

11. The Tribunal accepted that the first applicant and his family may have suffered some difficulties after the coups as he claimed, in particular, that his shop was robbed, that his car was broken into, that he was assaulted in 1992 and that he was harassed and threatened. However, the Tribunal concluded that such treatment was the result of ordinary criminal conduct as the owner of a small business.

12. The Tribunal found that the only serious incident experienced by the first applicant was in 1992 and that this was motivated by criminal behaviour. The Tribunal further noted that this incident was dealt with by the authorities. Whilst the Tribunal noted that the first applicant was not satisfied with the outcome of action by the authorities, it concluded that the response of the authorities was evidence that the criminal justice system is working in Fiji. The Tribunal further found that there was no evidence that the penalty imposed on the offenders was lenient or improperly motivated by the first applicant’s race or ethnicity and was thus not Convention related.

13. The Tribunal found that the first applicant’s reluctance to return to Fiji was motivated not only by his trauma following the 1992 attack bust also by non Convention related factors including the fact that two of his children are established in Australia, his other two children have better prospects in Australia, the first applicant does not get along with his remaining brother in Fiji and the first applicant has no home or financial security in Fiji.

14. In respect of the Applicant’s claim that he did not have a residence to return to in Fiji as a result of the occupation of his former residential leasehold property, the Tribunal concluded that the repossession of land by landowners after the departure of a leaseholder cannot be considered to be persecution.

15. The Tribunal, on the evidence before it, concluded that the first applicant did not, in the past, experience ill treatment of a level severe enough or systematic enough to constitute persecution and that the Fijian authorities have provided effective protection to the first applicant in respect of his complaints. Further, the Tribunal concluded that the first applicant did not face a real chance of persecution in reasonably foreseeable future were he to return to Fiji.

16. Accordingly, the Tribunal affirmed the decision of the Delegate to refuse to grant protection visas to the applicants.

The proceeding before this Court

1. The applicants were represented by Counsel, before this Court. At the outset of the hearing, the applicants sought leave to rely on a further amended application. Orders had been made by consent by the Court on 26 July 2005, directing the Applicant to file and serve an amended application by 2 November 2005, and written submissions 14 days before the hearing. On 4 November 2005, the applicants filed a 17 page amended application that was a convoluted and largely incomprehensible document with ambit claims that involved particulars largely cavilling with findings of fact made by the Tribunal. No written submissions were filed by the applicant by the date directed. Counsel for the First Respondent filed written submissions totalling 21 pages seeking to address issues appeared to be raised by the amended application.

2. Written submissions were then filed by the applicants in respect of the further amended application at the hearing before this Court.

3. Leave was granted to the applicants to file in Court and rely upon the further amended application on condition that the applicants bear any costs thrown away by the First Respondent in the preparation of written submissions which addressed the amended application filed on

   
   

   4 November 2005, and which was not relied upon at the hearing by the applicants.

4. The proceeding before this Court seeks constitutional writ relief in respect of a Tribunal decision handed down on 16 December 1997. Such relief is discretionary.

5. The applicants’ further amended application refers to eight grounds of review, which were addressed by counsel for the applicants in his written submissions filed in Court on the day of the hearing.

6. However, the applicants’ written submissions make no attempt to address the issue of delay by the applicants in filing their first application for judicial review on 1 July 2005, more than seven years after the Tribunal decision was handed down.

7. The applicants relied on an affidavit of the fourth applicant, being the son of the primary applicant, sworn 30 January 2006 (“the Affidavit”). The Affidavit chronicles the applicants’ attempts to instruct an adviser to apply to the First Respondent and her predecessor to exercise the discretion under s.417 of the Act to substitute a decision more favourable to the applicants (“s.417 Request”). Relevantly, s.417(1) is as follows:

   “(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.”

8. That Affidavit revealed that the applicants had instructed Adrian Joel and Co, solicitors, in August 1998, to join as plaintiffs in proceedings before the High Court. Pursuant to orders made by Gaudron J, a separate proceeding commenced by the applicants was remitted to the Federal Court. On 20 February 2004, the Federal Court refused orders nisi in respect of the proceedings which the applicants had commenced. Sixteen months then passed before the applicants filed for relief in this Court. During that sixteen month period the applicants made s.417 Requests which were refused in mid June 2005. The first s.417 Request was made and refused in mid June 1998.

9. There was no other evidence provided by any of the applicants despite leave being granted to Counsel for the applicants to lead further relevant evidence.

10. Counsel for the First Respondent contends that the applicants’ delay of more than seven years is unwarranted and that, in the exercise of this Court’s discretion, relief ought to be refused.

11. Counsel for the applicants contends that their delay in filing in this Court is explained by their s.417 Requests. The authorities differ as to whether any delay is unwarranted where the only conduct of an applicant has been to make s.417 applications and await the result. The authorities referred to by the parties are discussed below.

12. The First Respondent referred to M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 at 525 - 527 (“M211”) in which Black CJ, Sackville and Sundberg JJ cited Re Commonwealth of Australia;Ex parte Marks (2000) 177 ALR 491 at 495 (“Ex parte Marks”) in considering extension of time principles. The Full Court in M211 also cited Weiberg J in Applicant M29/2001 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 at [10] and [12]:

    “ (In relation to Ex parte Marks) The application to the High Court for an order nisi was not made until approximately 16 months later…The only explanation proffered for the delay was the request that the Applicants’ made pursuant to s.417 of the Act…

    In my view, the delay has not been adequately explained…There was nothing to prevent the Applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.”

    Weinberg J referred to Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at paragraphs [8]-[10] where Von Doussa J said of the applicant:

    “…having taken that other course, [to make an application under s.417, and await a decision in respect of the application] in my opinion he must live with the consequence of the delay that occurred.”

    In Re Ruddock; Ex parte LX [2003] FCA 561, Heerey J, stated at [42]:

    “As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s.417 itself including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.”

13. The Full Court in M211 also referred to Daniel v Minister for Immigration and multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said that a decision to make a s.417 application was indicative of a decision by an applicant to abandon any course that would seek to challenge the decision of the Tribunal on legal grounds. Goldberg J stated that in the case before him the s.417 application was not a sufficiently special circumstance to warrant excusing the delay, particularly because the applicant’s conduct in making the s.417 application implicitly accepted that the tribunal’s decision as not to be the subject of challenge.

14. The applicants relied on Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs and Others (2005) 219 ALR 140 (“M160”) where Finkelstein J was satisfied that an applicant’s delay in seeking judicial review was adequately explained by the unsuccessful attempt to obtain protection under s.417 of the Act. He stated that because judicial review is a proceeding of last resort, the exhaustion of alternative avenues of redress will generally provide an adequate explanation for delay in seeking judicial review. Finklestein J declined to follow the course taken by the Full Court in M211as he regarded the relevant comments as obiter.

15. In considering the time of delay and whether the relief sought should be granted, it is appropriate to have regard to the merits of the applicants’ application and its prospects of success (Ex parte Marks at [13].)

16. I do not understand the above to require a comprehensive and detailed analysis and determination of each of the grounds in respect of which relief is sought. In my view, where the applicants are represented by Counsel, who has provided relatively detailed written submissions in respect of each ground, it is sufficient to consider the prospects of success in the light of those submissions.

17. Counsel for the First Respondent submitted that the further amended application was a lot of “broad rubric”, involving a scatter gun approach, making it very difficult to isolate a specific jurisdictional error which is even reasonably arguable with respect to the Tribunal’s decision.

18. I shall address briefly each of the Grounds identified by Counsel for the applicants in his written submissions as follows.

Denial of natural justice/procedural unfairness

1. At the heart of this Ground is a complaint of the use made by the Tribunal of independent country information to which it had regard in its decision. Counsel for the applicants submitted that the Tribunal ought to have provided the information to the applicants prior to the hearing as it was not otherwise information with which the applicants were familiar. Counsel for the Applicant submits that the material relied upon by the Tribunal was out of date.

2. However, it is conceded by the applicants that, during the course of the hearing, the Tribunal put to the first applicant the independent country information upon which it relied. Further, the Tribunal raised with the first applicant the concerns it had in respect of the applicants’ claims arising out of that information.

1. The authorities have made it clear that it is a matter for the Tribunal to inform itself with independent country information it feels is relevant and it is a matter of fact the use of that information by the Tribunal. The question of the accuracy of country information is one for the Tribunal and not for the Court, as is the weight given by the Tribunal to that country information. (NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at 11; SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478, Hely J at [16])).

2. There is no apparent jurisdictional error with any reasonable prospects of success raised by that Ground.

Bias

1. The applicants claimed that the Tribunal’s use of independent country information indicated biased conduct on the part of the Tribunal as did various statements made by the Tribunal. The statements referred to would appear to be the Tribunal’s attempts to put to the first applicant the independent country information to which it was seeking to have regard.

2. There is nothing readily apparent or identifiable from the Tribunal’s decision, or the particulars referred to in the further amended application that would readily satisfy the serious test of actual bias or that there was a reasonable apprehension of bias on the part of the Tribunal.

3. The Tribunal is entitled and, indeed, is required, to assess the evidence and attach such weight to that evidence as it regards as appropriate. Reasons given by a tribunal are usually more than sufficient to rebut a claim of bias or lack of good faith. (SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15].) In this case, the Tribunal gave comprehensive reasons for its findings in respect of the applicants’ claims.

4. There is no apparent jurisdictional error with any reasonable prospects of success raised by that Ground.

Persecution/Nature of the harm

1. This ground relates to a complaint by the applicants of the findings of fact by the Tribunal that the harm the Tribunal was satisfied he had suffered was not sufficiently serious to amount to persecution. Those are findings of fact that were not obviously unavailable to the Tribunal. (SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407, Jacobson J)

2. There is no apparent jurisdictional error with any reasonable prospects of success raised by that Ground.

Relocation

1. This ground appears to relate to a complaint that the Tribunal “erred in the application of the test and asked wrong questions (if at all) in relation to the relocation finding”. Counsel for the applicants submitted that the Tribunal “failed to apply the law as stated by Randhawa as to the reasonableness in relation to the relocation as per the test formulated by Black CJ”.

2. On the face of it, this claim would appear to be misconceived as the Tribunal did not consider the issue of relocation.

3. There is no apparent jurisdictional error with any reasonable prospects of success raised by that Ground.

Convention reason

1. This Ground appears to be a complaint that cavils with the Tribunal’s findings of fact that any persecution of the first applicant was not Convention related. This Court has no jurisdiction to conduct merits review.

2. There is no apparent jurisdictional error with any reasonable prospects of success raised by that Ground.

Social class

1. Counsel for the Applicant submitted that the Tribunal failed to consider whether the Applicant was a member of a social class, being owners of “vulnerable” businesses that were being persecuted. There was no other evidence referred to by the applicants to suggest that there was such a class who were being persecuted for a Convention reason. The Tribunal found that the conduct suffered by the first applicant was conduct of a criminal nature and for which protection was available and otherwise had “no convention character and cannot give rise to his recognition as a refuge.”

2. There is no apparent jurisdictional error with any reasonable prospects of success raised by that Ground.

Substantial justice

1. This Ground appears to be a general complaint about the findings and conclusions of the Tribunal without any particulars.

2. To the extent that the applicants seek to rely on this ground as a breach of s.420, this ground is misconceived. Section 420 is an exhortive provision only and does not amount to a requirement that the Tribunal observe a procedure in connection with the making of a particular decision. (Minister for Immigration and Multicultural and Indigenous Affairs v Eshetu (1999) 162 ALR 577 at 600, Gummow J citing Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324, Lindgren J.)

Conclusion

1. Counsel for the applicants submits that there is no prejudice to the First Respondent occasioned by the applicants delay and that the applicants’ s.417 Requests are sufficient to explain the delay.

2. However, this ignores the importance to the public interest of having the acts or decisions of administrative bodies, such as the Tribunal, finalised. McHugh J in Ex parte Marks at [15] states:

   “An extension of time for seeking relief against the decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decision of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.”

3. The nature of constitutional writ relief, as referred to by McHugh J in Ex parte Marks, makes it clear that one must consider the public interest in there being efficacy in public acts, decisions and judgments which cannot be allowed to become “hostage of an applicant’s search for favourable legal advice’’  (Ex parte Marks at [17]). His Honour went on to say that, in all but exceptional cases, the inability of an applicant to obtain favourable advice within 2 months for mandamus and 6 months for certiorari is a strong indicator that the applicant has no case for relief. To enlarge the time for commencing proceedings by many months, the case would need to be exceptional and the explanation for such a delay is a relevant consideration (Ex parte Marks at [17]).

4. In the case before this Court the period of delay is significant and, in accordance, with McHugh J in Ex parte Marks, would require “exceptional circumstances” to excuse such delay. As McHugh J said at paragraph [16] in Ex parte Marks:

   “The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.”

5. There is no evidence from the applicants of any attempt by them to inform themselves of or pursue any rights they may have, other than joining the Federal Court proceeding. Certainly by 20 February 2004, when the Federal Court proceeding was dismissed, the applicants must have been aware that one can approach the courts to challenge decisions. The applicants were also aware at 20 February 2004, that the Minister had earlier refused their s.417 rRequests.

6. I consider the 2 periods of delay, namely between December 1997 and August 1998, and February 2004 and July 2005 as significant periods of delay that require explanations beyond merely the lodging of s.417 Requests.

7. In my view, in the circumstances of this case, the filing of s.417 Requests is not, of itself, adequate explanation of the seven year delay to entitle the applicants to the constitutional writ relief sought in the further amended application. This is particularly so where there are two periods of significant delay where the applicants had had the s.417 Requests refused, yet there is no evidence by any of the applicants of any attempt to inform themselves of any rights they may have and taking any steps to pursue them.

8. In considering whether relief should be granted, I have regard to the need to balance the interests of justice to the community in having such administrative decisions finalised and the interests of the applicants in having an opportunity to have their application for judicial review decided on the substantive issues of that application. Whilst the litigation before this Court is serious in its consequences for the applicants, the consequences for the applicants in refusing relief are less significant where there are no reasonable prospects of successfully identifying jurisdictional error in the Tribunal’s decision. Moreover, I do not regard the Applicant’s explanation as sufficient to explain the periods of delay. The periods of delay are unwarranted.

9. Further, I do not consider any of the grounds raised by the applicants as having sufficient prospects of success such as to make it inappropriate to refuse relief on the ground of the delay, without determining the applicants’ claims of jurisdictional error in the Tribunal’s decision. This is particularly so, having regard to the length of the delay, the inadequacy of the explanation, the conduct of the parties in failing to pursue any review of the Tribunal decision for seven years and the implicit acceptance by the applicant of the correctness of the Tribunal decision in making s.417 Requests. In the language of McHugh J in Ex parte Marks and referred to above at paragraph 69 herein, there is nothing “exceptional” about the circumstances in this case, in relation to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the relief sought.

10. Having considered all the circumstances, if I was ultimately persuaded that there was jurisdictional error based on the Grounds identified in the Further Amended Application, I would not be persuaded that the relief sought should be granted. Accordingly, the discretionary relief sought is refused.

11. For these reasons the application before this Court is dismissed with costs.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date: 6 February 2006