SZHLM v Minister for Immigration

[2007] FMCA 411

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLM v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 411

MIGRATION – Application to review decision of Refugee Review Tribunal – whether denial of procedural fairness – whether obligation to invite applicant to a hearing where s.425(1) of the Migration Act 1958 not applicable.

Migration Act 1958, ss.424, 424A, 425, 441A

Abebe v Commonwealth (1999) 197 CLR 510
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
M v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 91 ALD 629
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural & Indigenous Affairs vVSAF of 2003 [2005] FCAFC 73
Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475
SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592
SZDBI v Minister for Immigration & Multicultural Affairs [2005] FMCA 426
SZEQF v Minister for Immigration & Multicultural Affairs [2005] FMCA 1819
Uddin v Minister for Immigration & Multicultural Affairs (2005) 149 FCR 1
Usman v Minister for Immigration & Multicultural Affairs [2005] FMCA 966

Applicant: SZHLM

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3106 of 2005

Judgment of: Barnes FM

Hearing date:	1 March 2007
Last date for submission:	6 March 2007

Delivered at: Sydney

Delivered on: 5 April 2007

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Counsel for the Respondents: Mr J. Smith

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3106 of 2005

SZHLM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 September 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, a citizen of the Ukraine, arrived in Australia in January 2000.  He applied for a protection visa.  The application was refused and he sought review by the Tribunal.  The applicant attended a Tribunal hearing.  On 20 December 2002 the Tribunal made a decision (the first Tribunal decision) affirming the delegate’s decision not to grant the applicant a protection visa.  The applicant sought judicial review of the Tribunal’s decision by proceedings commenced in this Court in August 2003.  In June 2005 the Court, by consent, set aside the Tribunal’s decision and remitted the matter for reconsideration.  It is that reconsideration which is the subject of these proceedings.

2. On remittal the Tribunal wrote to the applicant under s.424 of the Migration Act 1958 (Cth). The letter of 5 July 2005 was sent by facsimile to the applicant’s last notified authorised recipient. It requested additional information to be provided by 19 July 2005. However, by letter received by the Tribunal on 11 July 2005, the applicant’s newly appointed migration agent informed the Tribunal of a change in authority. A copy of the letter of 5 July 2005 was sent to the new agent on 12 July 2005.

3. On 4 August 2005 the Tribunal again wrote to the applicant care of his migration agent, noting that more than two weeks had elapsed since the time by which such information was to be provided but that no response had been received. The Tribunal sought comment from the applicant under s.424A of the Migration Act 1958 (Cth) on information in relation to a change in the political conditions in the Ukraine since the time of the application for a protection visa. The comment was to be provided by 18 August 2005.

4. In a letter of 10 August 2005 to the applicant’s migration agent the Tribunal stated that due to an administrative error the brief summary outlining changes in the Ukraine had not been included with the facsimile of 4 August 2005. A copy of the request for comment under s.424A of the Act dated 10 August 2005 (including the summary of changes in the Ukraine) was sent by facsimile to the applicant’s migration agent on 10 August 2005. Comment was to be provided by 24 August 2005.

5. On 23 August 2005 the applicant’s migration agent responded to both the 5 July 2005 request for additional information and the s.424A letter of 10 August 2005, enclosing additional documentation, and commenting on the previous Tribunal decision, the current situation in the Ukraine and protection principles.

6. On 12 September 2005 the Tribunal wrote to the applicant advising that it would hand down its decision on 29 September 2005.  On 27 September 2005 the applicant’s agent forwarded to the Tribunal a letter/submission prepared by the agent and a statutory declaration of the applicant and other information.  The submission referred to what was said to be some information the applicant would have given had he been invited to a hearing.  It claimed that further evidence may have been forthcoming at a hearing, particularly from a named witness. 

The Tribunal decision

1. On 29 September 2005 the Tribunal affirmed the delegate’s decision. In its reasons for decision the Tribunal set out the evidence of the applicant before the Tribunal as previously constituted, including the evidence at the Tribunal hearing. It described the documents submitted to the Tribunal and referred to independent information in relation to recent political changes in the Ukraine, the request for further information, the s.424A letter and the applicant’s response and further submissions.

2. The Tribunal then addressed the issue of the need for a further hearing. It found first that it had discharged its obligation to invite the applicant to appear before it to give evidence and present arguments under s.425(1) of the Migration Act 1958 (Cth) by the invitation to the hearing on 13 December 2002 before the Tribunal as originally constituted.

3. However it went on to find that even if remittal imposed a fresh obligation to invite the applicant to a hearing, as the applicant had failed to respond to the Tribunal’s request for further information under s.424 of the Act within the time provided, he was not entitled to appear before the Tribunal (s.424C(1), 425(2)(c) and 425(3)). The Tribunal also had regard to the opportunities the applicant had had to raise relevant issues, his failure to identify significant error in the first Tribunal’s summary of evidence or to give any reasons for disagreeing with that decision. The Tribunal discussed the applicant’s claims about further evidence he and a proposed witness may have given, the provisions of the Migration Act and the submissions of the applicant about the need for a further hearing. It found that it was satisfied that he had had ample opportunity to raise all matters with it. It recognised that it was not compelled to proceed to a decision without offering an applicant a hearing in a case where he had been invited to give information but did not do so before the time for giving it had passed, but considered that such a course of action was appropriate in this case.

4. In its findings and reasons the Tribunal addressed first a claim relating to an alleged 1996 theft of horses trained by the applicant.  The applicant had claimed that the horses had been stolen with false documents by the police internal security.  He claimed that he had complained to the authorities and had been given official police protection.  Two of those responsible were charged and convicted.  However the applicant claimed that he feared to return to Ukraine because at the time of the Tribunal hearing (in late 2002) those responsible were being released.  The Tribunal recorded that in his most recent statement he claimed to fear these people still and to believe that current serving police would assist them. 

5. The Tribunal found that it was not necessary to make a definitive finding on whether these events actually took place as it was of the view that any harm the applicant feared from the people who had been convicted and gaoled for stealing his horses would be motivated by revenge for the imprisonment and not by any Convention-related factor.  While the applicant claimed that the people responsible were government officials, the Tribunal inferred they were not acting on behalf of the authorities, as the authorities had investigated and convicted at least some of those involved and had found that various items of the applicant’s property had been “unlawfully seized” and should be returned to him.  It also had regard to the fact that if the then authorities were prepared to protect the applicant at the time when he claimed he was an open opponent of the then President, there was no reason to believe that in the new political climate he would be denied official protection for any Convention reason. 

6. The Tribunal then addressed the applicant’s claim that he had suffered and feared persecution in the Ukraine because of his political activities as a member of the Christian Democratic Party of Ukraine (the CDPU).  The Tribunal found first that, leaving aside the question of whether or not the applicant was a member of the CDPU, it did not accept that he suffered persecution in the Ukraine at the hands of the SBU (the Security Service of Ukraine) or others because of any involvement with the CDPU. 

7. The Tribunal had regard to what the applicant claimed was a reference from the head of the CDPU dated 20 April 2000 which asked the Department to help the applicant “to obtain a right to officially reside in Australia”.  The Tribunal observed:

   Though the letter states that the applicant was a member of the CDPU, it does not state he was an aide to the signatory of the letter, and makes no mention of any persecution experienced by him.  Had the applicant experienced persecution for political reasons, the Tribunal would have expected such a letter to have stated this. 

8. It also referred to an “email document” said to be from the head of the CDPU, which the Tribunal found made no mention of persecution and was “little more than a greeting card wishing [the applicant] well”.  It found:

   Given the absence of any mention of persecution and the fairly neutral terms of the two documents, … the applicant was not an aide to Mickhel Gutor (whether spelled that way or ‘Huktor’ or ‘Gutov’), and did not experience persecution in Ukraine because of any membership of the CDPU.  It follows from this that the Tribunal does not accept that members of the SBU would now wish to harm the applicant because of past events. 

9. In any event, the Tribunal was not satisfied that the applicant was a member of the CDPU.  It had regard to the fact that while he now claimed through his lawyer that he had first been a member of the People’s Movement of Ukraine (the RUKH) and later became a member of the CDPU, previously he had claimed only to have been a member of the CDPU.  He claimed that before, during and after the Presidential campaign leading to the re-election of President Kuchma he had worked against Kuchma and suffered persecution at the hands of the SBU.  The Tribunal found that although the applicant had presented various documents apparently from the CDPU, including what was said to be a membership card, the “reference” and documents which “on their face” suggested that he was being harassed “by being required to establish his good character”, it had strong doubts about his claim as to membership of the CDPU “because of  the conflict between the applicant’s statement of 11 December 2002, prepared with legal assistance, and his current lawyer’s submissions, no doubt prepared on the applicant’s instructions.”  In the December 2002 statement the applicant had said “quite clearly” that he was a member of the CDPU as far back as 1994.  This was contrasted with his “most recent assertions and the alleged CDPU membership card” indicating that he did not join the CDPU until 1997, having previously been a member of RUKH.  In these circumstances the Tribunal was not satisfied that the applicant was a member of the CDPU. 

10. The Tribunal also found that the applicant’s delay in leaving Ukraine and travelling to Australia after obtaining travel documentation led to the inference that he was not in fear of persecution at that time for any reason, and in particular not in fear of persecution for reason of political opinion because of any association with the CDPU. 

11. The Tribunal then found that, in any event, in the intervening period there had been a fundamental change in the political climate in the Ukraine which “makes these claims irrelevant”, so that even if it were to accept the applicant’s original claims, the new regime would have no reason to seek to target the applicant because of any prior activities as a member of the CDPU (on which point the Tribunal stated it had “made no definitive findings”). 

12. The Tribunal considered information from internet sources about continued corruption in Ukraine that had been submitted by the applicant’s agent.  It did not consider that this information altered the fact that the regime of Kuchma (that the applicant claimed to have opposed) had ended and had been replaced by a regime headed by an opponent of Kuchma.  It found that “While corruption may continue, the applicant has not explained how this might impact adversely on him for reasons of political opinion or for any other Convention reason”.  It did not accept the belated claim, unsupported by evidence, that the CDPU leader had been harassed in Ternopil and moved to Kyiv.

13. The Tribunal also found that the applicant had provided no evidence to support his stated belief that the SBU would be aware of his having sought protection in Ukraine or to support the assertion that this would be adversely regarded in Ukraine.  It did not accept that he would face persecution in Ukraine because he had sought protection in Australia. 

14. The Tribunal concluded for all these reasons that the applicant did not have a well-founded fear of persecution in Ukraine for a Convention reason and that he was not a refugee.

This application

1. The applicant sought review by application filed in this Court on 25 October 2005.  He relies on an amended application filed on 1 March 2007. 

2. There are two grounds in the amended application. Both assert a denial of procedural fairness. Section 422B of the Migration Act 1958 (Cth), which seeks to limit the content of the natural practice hearing rule (see MIMA v Lay Lat [2006] FCAFC 61), is not applicable, as the original application to the Tribunal (in 2000) preceded the 2002 introduction of s.422B.

Whether the Tribunal made its decision on the basis of matters not obviously open on the known material

1. In the amended application it was claimed generally that there was a denial of procedural fairness by the Tribunal.  In submissions for the applicant it was clarified that it was argued that there had been a denial of procedural fairness in light of the principles applied by the High Court in SZBEL v MIMA (2006) 231 ALR 592 because the Tribunal was said to have made its decision on the basis of matters which were not obviously open on the known material before the Tribunal. Reliance was placed on the statement by the High Court at [38] in SZBEL as follows:

   When it is said that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible” and that this conclusion was ‘not obviously … open on the known material’, the focus of the contention must fall on what was ‘obviously open’ in the tribunal’s review.  That can be identified only by having regard to ‘the issues arising in relation to the decision under review’.  It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was ‘obviously … open on the known material.

2. The applicant argued that when the matter was before the reconstituted Tribunal the issues arising in relation to the decision under review could be said to be those that had been identified in the decision of the delegate dated 12 May 2000, the first (purported) decision of the Tribunal dated 20 December 2002 and the s.424A letter dated 10 August 2005. It was acknowledged that certain issues had been identified in the first Tribunal decision and the s.424A letter beyond those addressed by the delegate, but was contended that five specific “findings” made by the Tribunal were in relation to matters that the applicant was not aware were issues and hence that there was procedural unfairness in the Tribunal having failed to identify such issues as dispositive. The applicant submitted that the Tribunal had rejected his claims on the basis of matters which were not obviously open on the known material before the Tribunal and that in light of SZBEL there was a denial of procedural fairness in the sense addressed by the High Court at [35] as follows:

   The tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the tribunal.  But if the tribunal takes no step to identify some issue other than those the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’.

3. The five “issues” relied on in this regard were identified by the applicant as findings that:

   1. Any ‘harm against the applicant … would be motivated by revenge for the imprisonments and not by any Convention-related factor (CB 210.8)

   2. One reason the applicant did not experience persecution for political reasons is because the matter was not stated in a letter dated 20 April 2000 (CB 211.2)

   3. The applicant was not a member of the CDPU.  The basis for the Tribunal’s finding was that there was a conflict between his statement dated 11 December 2002 and some submissions prepared by his lawyers in 2005.  (CB 211.7)

   4. Despite corruption in Ukraine, this would not impact adversely on the applicant for a Convention reason (CB 212.6)

   5. The applicant would not face persecution in Ukraine because he had sought protection in Australia (CB 212.7)

4. First it was acknowledged that the finding that any harm against the applicant would be motivated by revenge for the imprisonment and not by any Convention-related factor was a finding in relation to the applicant’s claimed fear of the people involved in the theft of his horses who were subsequently imprisoned.  It was accepted that because the first Tribunal had found that the events did not occur that “issue” would have been in the applicant’s mind as he was preparing his evidence for the second Tribunal.  However it was said that a separate issue, of which the applicant was unaware, was the second Tribunal’s concern that, even if the events occurred, the motivation of the persecutors was not for a Convention reason.  It was submitted that this was an issue that met the test in SZBEL. 

5. Secondly it was said that in making the finding that it did not accept that members of the SBU would wish to harm the applicant because of past events, the Tribunal had had regard to the document of 20 April 2000 which was said to be a reference from the CDPU.  However it had found that although the letter stated that the applicant was a member of the CDPU, it did not state that he was an aide to the signatory of the letter and made no mention of any persecution experienced by him.  The Tribunal stated that had the applicant experienced persecution for political reasons “the Tribunal would have expected such a letter to have stated this”. The applicant submitted that the way the letter was used to support a finding by the Tribunal that it did not accept that members of the SBU would wish to harm the applicant (that is, that the letter said some things, but did not say more) was not an issue that had been identified in the delegate’s decision, the first Tribunal decision or the s.424A letter. This was said to be so even though the first Tribunal had made a strong finding (at a time when the letter of 20 April 2000 was before it) that it did not believe the applicant, as the first Tribunal decision did not refer to this letter.

1. The third issue, the Tribunal finding that the applicant was not a member of the CDPU, was said to be based on the conflict between his statement dated 11 December 2002 and some submissions prepared by his lawyers in 2005.  The Tribunal took into account an inconsistency between what the applicant’s lawyer submitted on instructions and an earlier statement by the applicant in relation to his membership of the CDPU in finding that it did not believe the applicant.  It was said that the Tribunal was aware of this inconsistency before or at the time it made the decision not to hold a further hearing but that the applicant was not aware that this was “an issue” and hence was taken by surprise.  The applicant argued that there was a denial of procedural fairness under the SZBEL test, in that the Tribunal failed to bring this issue to the attention of the applicant. 

2. The fourth and fifth “issues” are said to be the Tribunal findings that corruption in the Ukraine would not impact adversely on the applicant for a Convention reason and that he would not face persecution in Ukraine because he had sought protection in Australia (although in fact the Tribunal did not “accept” the unsubstantiated claims about the impact of corruption and that the applicant would face persecution because he had sought protection in Australia). 

3. Counsel for the applicant referred to the fact that after the Tribunal notified the applicant’s agent that the decision was to be handed down, the migration agent had provided a further submission and a statutory declaration of the applicant in which he raised these two matters as new claims.  It was said that it was open to the Court to find that the Tribunal’s rejection of both of these claims were also issues that fell within the SZBEL test.  This was put by counsel for the applicant on what was said to be a “tentative” basis, as it was conceded that it would be problematic if every time an applicant was notified that a decision was to be handed down and raised a new issue the Tribunal was then required to delay the handing down of the decision. 

4. Counsel for the applicant contended generally that the principles in SZBEL applied to the second Tribunal as well as the first Tribunal, as if this were not the case then on remittal the Tribunal would not be bound by the rules of procedural fairness and would be entitled to make a decision without warning the applicant that it was for example, going to reverse favourable findings of the first Tribunal. It was also contended that where a matter was remitted to the Tribunal and it had power to hold a hearing, other than by way of invitation under s.425, nonetheless the principles explained by the High Court in SZBEL would apply.

5. Counsel for the first respondent pointed out that in SZBEL the High Court was of the view that the content of the rules of natural justice was to be determined by reference to the statutory context in which was found the source of the power to be exercised and all the factual circumstances of the case. 

6. It was submitted, however, that there was a distinction between SZBEL and the present case in relation to the statutory context. In this case, at the relevant stage of enquiry, there was no longer an obligation on the Tribunal under s.425 of the Act to invite the applicant to attend the hearing “to give evidence and present arguments relating to issues arising in relation to the decision under review”.  Secondly, it was argued that this case differed from SZBEL in the factual circumstances. In particular it was said that the issues that arose and which were critical to the decision of the Tribunal were issues of which the applicant had been given notice. The first respondent submitted that in considering whether this was so, all of the circumstances should be considered, including not only the delegate’s decision, the first purported Tribunal decision and the s.424 and s.424A letters but also all aspects of the conduct of the review, including the hearing by the originally-constituted Tribunal and the correspondence between the Tribunal, the applicant and his adviser.

7. In elaboration in relation to the statutory context, it was submitted that s.425 of the Migration Act had been critical to the decision in SZBEL and that outside that context SZBEL established no more than the applicability of the principles in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 591 (referred to in SZBEL at [29])in which the Full Court of the Federal Court had stated:

   It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. 

8. It was pointed out that there was no complaint in this instance about the second aspect of that principle.  In considering the question of whether the party affected was given the opportunity of ascertaining the “relevant issues”, the High Court in SZBEL had found that the fact that the Migration Act “defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal” by reference to s.425 (which refers to “the issues arising in relation to the decision under review”) was important.  It was in that statutory context that the High Court found in SZBEL at [34] that the “issues arising in relation to a decision under review” were to be identified:

   having regard not only to the fact that the Tribunal may exercise … all the powers and discretions conferred by the Act on the original decision-maker … but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

9. It was acknowledged for the first respondent that the High Court treated the original decision and the issues arising in relation to that decision as the starting point.  However, the Court also stated (at [35]), that the Tribunal was not confined to whatever those issues may have been, although “… if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’”. 

10. Thus, counsel for the first respondent submitted that, central to the High Court’s reasoning in SZBEL was the extant obligation under s.425. This was said to be apparent from the acknowledgment by the High Court at [36] that ordinarily the Tribunal would begin a hearing knowing it was “not persuaded by the material already before it to decide the review in the applicant’s favour” and its statement that, unless the Tribunal “tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate refusing to grant the application will identify the issues that arise in relation to that decision”. 

11. In contrast, it was submitted that in this case, as appeared to be implicitly conceded by counsel for the applicant, there was no obligation on the Tribunal under s.425 to invite the applicant to a further hearing after the Tribunal was reconstituted, because of his failure to respond to the request for further information under s.424 within the applicable time limits. It was pointed out that the Tribunal letter of 5 July 2005 not only requested comment on particular changes in political conditions in Ukraine but also highlighted as an issue the applicant’s reasons for disagreeing with the decision of the Tribunal. It was said that this request must necessarily have highlighted everything found by that Tribunal as an “issue”. The letter was sent by facsimile to the fax number provided by the applicant in connection with the review in the last letter from his then current migration agent. It was submitted that the letter was sent in accordance with s.441A of the Act and that the time of 14 days allowed was not unreasonable and complied with the requirements of the Regulations. On this basis, as there was no reply within 14 days from the date of receipt, it was said that the particular issue in SZBEL did not arise because the s.425(1) obligation was no longer applicable. (See ss.424C and 425(2)(c) and 425(3)).

12. In any event, the first respondent argued that even if s.425 was to be taken into account as part of the statutory framework, given that the applicant’s case had originally been quite limited and had been altered and put on additional bases after the delegate’s decision (so that the issues could not simply be identified from the delegate’s decision), then any response, evidence or material that the applicant put forward after the delegate’s decision must of itself raise the issue of whether that claim would be accepted by the Tribunal. In contrast in SZBEL the three important “issues” addressed by the High Court related to aspects by the applicant’s claims contained in his original statutory declaration in support of his protection visa application.  The delegate dealt with only one of these matters.  The Tribunal did not question the applicant about the other two at the hearing.  However it found his account of events was implausible in three respects.  It was in those circumstances that the High Court had said that the applicant was entitled to assume that there was no issue factually in respect of the two matters not addressed by the delegate’s decision and not identified by the Tribunal to be issues arising in relation to the decision under review.  

13. It was said that in this case the applicant was given the opportunity to present and elaborate on his case knowing the issues and the arguments against him and responding to them.  It was submitted that nothing in SZBEL required that an applicant must be given notice of the Tribunal’s response to such an issue. It was noted that the High Court had stated (at [47]):

    … there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

14. In addressing the factual circumstances of this case, counsel for the first respondent pointed out that counsel for the applicant had identified three issues of which the applicant was aware from the delegate’s decision (that the delegate did not accept the applicant campaigned for the CDPU’s Presidential candidate, that he was targeted by the administration or that members of the CDPU were targeted or harassed as potential victims by the administration at the time).  It was observed that in his application to the Tribunal in 2000 the applicant had taken particular issue with some of the matters raised by the delegate and had provided documents including a letter stating that he was a member of the CDPU. 

15. Subsequently the applicant had been invited to a Tribunal hearing. The hearing was summarised in the first Tribunal’s statement of reasons for decision. The transcript of the Tribunal hearing was also before the Court. The first respondent submitted that a consideration of this transcript revealed that the applicant was aware of issues arising on the review both generally and whether or not regard was had to the particular obligations of s.425 of the Act. In particular, it was said that the transcript of the Tribunal hearing indicated that the Tribunal raised fairly and squarely the issue of whether there was a Convention nexus to the theft of the horses and the inconsistency in the applicant’s claims in relation to the time of his membership of the CDPU and whether he had been a member of the RUKH. Further, the first Tribunal made a clear finding that it did not believe that the applicant was a member of the CDPU political party or that he was harassed, detained or assaulted before, during or after the 1999 Presidential campaign. Nor did it believe the applicant’s story about the horses, but in any event found that there was no Convention basis and that the police had adequately protected him during that time.

16. It was said that the fact that the whole of the applicant’s “story” was in issue was clear from the first Tribunal’s findings.  Hence the applicant was on notice not only that there was a possibility that these claims would not be accepted, but also that even if they were he may not come within the definition of a refugee.  More generally, the Tribunal finding that the applicant had created his claims to enhance his claim to refugee status was said to put everything that the applicant had claimed in issue when the matter was before the reconstituted Tribunal. 

17. It was submitted that it was also relevant to take into account all the circumstances after the applicant had succeeded in judicial review proceedings and the matter came before the reconstituted Tribunal for a continuation of the review process.  The first respondent argued that the Tribunal letter of 5 July 2005 clearly raised the issue of the particular findings made by the first constituted Tribunal as well as the changes in the political climate in the Ukraine.  The applicant was given a further opportunity to address the situation in the Ukraine and the information provided to him by the Tribunal (which it said might suggest that regardless of what had gone on in the past, the situation now was such that the applicant had no basis for any fear because the political situation upon which the claims were based was no longer applicable and as he had not identified any fears in the new environment he did not have a well-founded fear of persecution in the Ukraine).  The first respondent suggested that this constituted an invitation in some respects to identify any new fear, or new basis for a fear which necessarily could not have been considered by the delegate.  The applicant’s adviser then made a submission of 23 August 2005 addressing the previous Tribunal decision and also the current situation in the Ukraine. 

18. After the Tribunal informed the applicant it was going to hand down a decision further information was provided to the Tribunal in the letter from the advisor and a statutory declaration.  As counsel for the applicant had pointed out, this raised two new claims (‘issues’ 4 and 5 listed at [25] above).  The first respondent argued that as these submissions were made in the light of the first Tribunal’s purported decision that had completely rejected the applicant’s factual claims on the basis of credit, it must have still remained a potential issue in the applicant’s mind that his claims would be rejected and hence that he had the opportunity to bring about a different result. 

19. In light of these circumstances it was contended that as the Tribunal had put the applicant on sufficient notice that none of his claims may be accepted (see SZBEL at [47]), the applicant could not succeed under this ground. It was also pointed out that the five matters relied on by the applicant were at a very high level of specificity, being particular reasons for rejecting particular claims given after an evaluation of those claims through submissions and evidence made in response to the delegate’s original decision and hence quite different to the circumstances considered in SZBEL. 

20. Counsel for the first respondent also addressed the five “issues” relied on under this ground.  In relation to item (1) (the finding that there was no Convention-related motivation for the claimed fear of harm in relation to those who had stolen the horses and been imprisoned) it was contended that it was clear that that issue was raised in the first Tribunal hearing and that it was not an answer to say that the first Tribunal decision overrode or overtook what had occurred at the hearing, because all the circumstances of the case had to be examined to determine the content of natural justice and whether the requirements had been fulfilled and because there was only one Tribunal and one review.

21. As to item 2 (the finding based on the absence of reference to persecution for political reasons in the letter of 20 April 2000) it was said that this finding must also be seen in context, in particular in light of the fact that although the letter predated the delegate’s decision, it was given to the Tribunal after the delegate’s decision, apparently in response to issues arising out of that decision.  The first respondent submitted that the letter was dealt with at a more general level by the first Tribunal simply because the Tribunal did not believe the applicant was a member of the CDPU at all.  It was also said that once such an issue was raised (see Abebe v Commonwealth (1999) 197 CLR 510), it was a matter for the applicant to put forward material in support of that issue and for the Tribunal to determine whether or not to accept it and that it could not have taken the applicant by surprise that it was rejected. In other words the critical issue was said to be whether the applicant was a member of the CDPU at all.

22. This reasoning was also said to be relevant to item (3) (the finding that the applicant was not a member of the CDPU on the basis of a conflict between the applicant’s evidence in relation to whether he was a member of the CDPU and from when and whether he was a member of the RUKH).  It was pointed out that this issue had arisen at the Tribunal hearing and became critical to the first decision.  It was after, and perhaps in response to, that first decision that the adviser made the second statement.  It was contended that the inconsistency was clear on its face from all of the material and that the applicant was aware, having been put on notice by the hearing and the first decision, that his so-called membership of the CDPU and/or RUKH gave rise to some credibility issues. 

23. In relation to item (4) and (5) it was again pointed out that the Tribunal had put the present situation in the Ukraine, and the manner in which that affected the basis for his claimed fear, to the applicant for comment.  The applicant had responded with new claims that he feared persecution because there was some corruption in the Ukraine and because he had sought protection in Australia.  The first respondent submitted that these were responses to an issue, rather than issues that were pre-existing and that the applicant was already on notice of the grave credibility finding. 

24. On this basis, having regard to all the circumstances of this case, including the fact that there was said to be no ongoing obligation to invite the applicant to a hearing under s.425, the first respondent submitted that even if there was an obligation to raise issues with the applicant, the critical issues had been raised, the applicant was aware of them and was given an opportunity to deal with them, so that the Tribunal met the requirement in SZBEL at [32] that, as stated by the Full Court of the Federal Court in Alphaone, the party affected be “given the opportunity of ascertaining the relevant issues”. 

Reasoning

1. As the High Court pointed out in SZBEL at [25], in determining what is required by procedural fairness “The relevant question is about the tribunal’s process, not its actual decision.” 

2. In considering that question their Honours then stated (at [26]):

   It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.  It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.  As Kitto J said in Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 503 – 4; [1964] ALR 517 at 558 – 60:

   …[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [“to correct or contradict any relevant statement prejudicial to their view”] … in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place …(emphasis added)

1. The Court also referred to the “fundamental principle” set out by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 – 1 that “the party liable to be directly affected by the decision is to be given the opportunity to be heard.”  As the High Court emphasised: “That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues” (Alphaone at 590 – 1 cited at [32] in SZBEL). 

2. In that context their Honours had regard to the particular statutory framework of the Migration Act and the fact that the Act “defined the nature of the opportunity to be heard” given to a review applicant by requiring (in s.425(1)) that the applicant was to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [33]). 

3. In this case, while the same statutory framework is in issue, it is not disputed that s.424C(1) of the Act applied because the applicant had been invited to give additional information and had not given it before the time for giving it had passed (although, as discussed below, issue is taken under ground 2 in the application as to whether the manner in which the Tribunal exercised its discretion under s.424C(1) and decided not to invite the applicant to a further hearing involved a denial of procedural fairness). Under s.424C(1), in the absence of provision of the information within the time provided the Tribunal could make a decision on the review without taking any further action to obtain the additional information. Further, under ss.425(2)(c) and 425(3), the applicant was “not entitled to appear before the Tribunal”. Because the Tribunal proceeded on this basis it is not necessary to determine whether it was also correct in suggesting that the s.425 obligation had been met by the invitation to the hearing conducted on 13 December 2002 by the Tribunal as originally constituted.

4. It is relevant in considering this ground that, in contrast to the situation in SZBEL, this was not a case in which there was an extant obligation on the Tribunal to invite the applicant to a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. As counsel for the first respondent submitted, while the s.425 obligation in relation to “issues arising in relation to the decision under review” is part of the statutory framework under the Migration Act, even if it had not been met (by the 2002 invitation to a hearing) it did not apply to require a further invitation to a hearing because of ss.424C(1), 425(2)(c) and 425(3). Hence, there could not be said to be a statutory obligation on the Tribunal to put matters to the applicant at a hearing to which the applicant was to be invited under s.425(1). The applicant had lost his entitlement to appear before the Tribunal. 

5. This does not necessarily mean that the Tribunal therefore had no obligation to put issues to an applicant as an incident of the requirements of natural justice.  The existence of such an obligation at the time the Tribunal commenced its review is nonetheless relevant to a determination of the requirements of natural justice.  The first respondent did not rely on an argument that the principles in SZBEL would not apply to a reconstituted Tribunal, recognising that there was one review.  What occurred before reconstitution does form part of all the factual circumstances relevant in assessing what procedural fairness required after the matter was remitted to the Tribunal for reconsideration.  In this case it is not, however, necessary to determine the scope of the obligation to put issues to an applicant who had in the course of the process of review lost his statutory entitlement to appear before the Tribunal, because for the reasons given below, having regard to the whole of the facts and circumstances of the case, I am satisfied that the applicant was in fact “given the opportunity of ascertaining the relevant issues” (Alphaone at 590 and SZBEL at [32]) including each of the matters identified in the amended application. Further, it has not been established that the Tribunal made its decision on the basis of matters not obviously open on the known material before it. No lack of procedural fairness is established in all the circumstances of this case.

6. The applicant’s initial claims were limited in scope.  He claimed, in essence, that he had been an active member of the CDPU since 1997, that he was threatened and attacked at the time of the 1999 presidential elections and thereafter as a political activist who campaigned against President Kuchma.  The delegate rejected his claims about past persecution based on country information about the situation in Ukraine (in particular that there was no CDPU candidate in the presidential elections in issue and that the CDPU was a minor force belonging to the same political spectrum as the President). 

7. The applicant elaborated on these claims when he sought review, for example, adding claims that he was the victim of a police fraud and that he lost his horse business.  As submitted for the first respondent it is apparent from the transcript of the hearing that issues relevant to credibility and the Convention nexus of his claims were raised with the applicant.  The originally constituted Tribunal was of the view that the applicant had created his claims in order to enhance his claim to be a refugee.  In particular it did not accept that he was a member of the CDPU.  It did not believe his claims about his business, but in any event did not accept that he had suffered Convention-based persecution in the Ukraine.  It went on to reject his credibility, finding that he had created his claims to enhance his application for a protection visa.  These circumstances made it clear to the applicant that every aspect of his claims would be in issue when the matter came before the reconstituted Tribunal, and that none of his claims might be accepted.  This does not mean the principles in SZBEL do not apply to a reconstituted Tribunal, just that the prior circumstances may make it clear that there is a possibility that the applicant’s past claims may not be accepted if the concerns expressed in the first Tribunal decision are not addressed to the satisfaction of the reconstituted Tribunal. 

8. Moreover, in its s.424 letter of 5 July 2005 the reconstituted Tribunal afforded the applicant the opportunity to address “the accuracy (or otherwise) of the summary of evidence in the first Tribunal decision”, his “reasons for disagreeing with that decision” and “for fearing persecution in Ukraine … given the change in presidency and changed political conditions” and also to provide any other claims, evidence or arguments he wished the Tribunal to consider.  This letter clearly raised both the particular findings made by the first Tribunal and the effect of changes in the Ukraine and gave the applicant an opportunity to be heard in relation to such issues (albeit by providing a response in writing). 

9. The Tribunal also put the applicant on notice that it would listen to the tape recording of the hearing and may decide that it was not necessary to hold a further hearing.  In this way the applicant (who had a migration agent) was expressly alerted to the fact that he should put to the Tribunal any matters he wished it to consider (such as new claims) and that all of what was before the first Tribunal and its findings were in issue. 

10. The applicant responded to this letter (albeit belatedly) and to the subsequent s.424A letter. This response (of 23 August 2005) makes it clear that the applicant understood that the matters addressed by the first Tribunal (which totally rejected his factual claims on the basis of credit) were in issue. This process is such that the Tribunal had “sufficiently indicated to an applicant that everything he or she says in support of the application [was] in issue” (SZBEL at [47]).

11. On 27 September 2005 the applicant further elaborated in writing on information he wished to put before the Tribunal.  He raised two new claims.  These claims were raised as responses to issues.  As the first respondent submitted, it must at the time of these claims have been a potential issue in the applicant’s mind that any or all of his claims could be rejected. 

12. Further, the “issues” identified in the amended application are reasons given by the Tribunal for rejecting particular claims which evolved through submissions and evidence in response to the delegate’s decision.  These are at a very different level to the aspects of the claims relied on in Tribunal implausibility findings that were considered in SZBEL.  The five findings, said to be adverse conclusions on “issues arising in relation to the decision under review” (if, s.425 is to be taken into account) or more generally “relevant issues” in the sense considered in Alphaone at 590 – 1 and approved in SZBEL at [32], were conclusions open to the Tribunal on the known material. The fact that all the applicant said was in issue was clear in the sense considered in SZBEL at [47]. In any event the particular issues relied on by the applicant under this ground were sufficiently brought to his attention by the Tribunal in its review process.

13. First, the finding that there was no Convention-related motivation for the claimed fear of harm in relation to the horse theft and the imprisonment of those responsible, was clearly raised in the Tribunal hearing as submitted for the first respondent.  Further, the letter of 5 July 2005 put the applicant on notice that what occurred in the Tribunal hearing and the reasoning of the first Tribunal would be considered by the re-constituted Tribunal. 

14. The finding that one reason the applicant did not experience persecution for political reasons was because it was not stated in the letter of 20 April 2000 related to the Tribunal’s response to evidence the applicant put to it after the delegate’s decision.  It was for the applicant to put forward material in support of a claim rejected by the delegate.  In all the circumstances, the fact that the Tribunal might not accept that the evidence established that there was past persecution for a political reason could not be said to be an adverse conclusion not obviously open on known material (including a letter from the political party in question which made no reference to such persecution). 

15. As to the finding that the applicant was not a member of the CDPU on the basis of a conflict in the evidence, first while the Tribunal was not satisfied the applicant was a member of CDPU it also stated that even if it were to accept the applicant’s original claims it considered the new regime in Ukraine would have no reason to seek to target him because of “any prior activities as a member of the CDPU”.  In any event, the issue of the applicant’s membership of the CDPU was raised at the 2002 hearing and was critical to that decision.  The fact that the applicant put inconsistent material forward was apparent to the applicant on the face of the material.  It cannot be said that the Tribunal’s conclusion was not obviously open on the known material. 

16. Similarly, the fact that the Tribunal might reject the applicant’s claims (in particular those in items (4) and (5)) made in response to issues, cannot be said to be conclusions not obviously open on the known material.  The fact that the claims might be rejected was sufficiently indicated to the applicant in all the circumstances (particularly given the adverse credibility finding of the first Tribunal) as submitted for the first respondent. 

17. I am satisfied on all the material before the Court, having regard to the statutory framework and all the facts and circumstances that no lack of procedural fairness, whether consisting of adverse conclusions involving a rejection of the applicant’s claims “on the basis of matters not obviously open on the known materials” (SZBEL at [38] referring to Alphaone at 591 – 2) or otherwise, is established.

18. The Tribunal met the requirements of procedural fairness, in particular as elaborated on in SZBEL, that the applicant be “given the opportunity of ascertaining the relevant issues”.  No jurisdictional error is established on this basis. 

Oral hearing issue

1. The other ground in the amended application is that “The Tribunal chose not to offer the applicant an oral hearing.  The Tribunal fell into jurisdictional error in making this finding.  Among other reasons, the Tribunal failed to act judicially and reasonably in exercising its discretion, giving rise to a denial of procedural fairness.” 

2. The applicant submitted in relation to the five “issues” relied on under the more general procedural fairness ground, that if such matters did not satisfy the SZBEL test, nonetheless these issues combined to establish that the Tribunal acted unreasonably or unfairly in not acceding to the applicant’s request to attend a second hearing. 

3. It was submitted that s.424C(1) of the Migration Act gave a discretion to the Tribunal where a person who was invited under s.424 to give additional information did not give the information before the time for giving it had passed. The Tribunal “may” make a decision on the review without taking any further action to obtain the additional information. In the present case the Tribunal decided not to hold a further hearing. It was contended that the Tribunal must exercise this discretion reasonably (see MIMA v Bhardwaj (2002) 209 CLR 597 at [40]) and that the rules of procedural fairness applied to the exercise of the discretion. Reliance was placed on the statement by Gaudron and Gummow JJ in Bhardwaj at [40] that:

   Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it.  The opportunity to answer must be a reasonable opportunity.  Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness [footnotes omitted]

4. It was acknowledged that this statement was obiter, but it was said nonetheless to be important and applicable.  It was argued that, just as a Tribunal may, by failing to accede to a reasonable request for an adjournment engage in conduct that constitutes procedural unfairness, similarly it must exercise its powers or discretion in relation to the issue of whether there should be a second Tribunal hearing reasonably and in accordance with procedural fairness.

5. It was submitted that in this case the Tribunal had dismissed the applicant’s application on the basis of a number of matters which the applicant was not on notice about (as set out in relation to the other ground).  In such circumstances it was argued that the Tribunal should have invited the applicant to a hearing, so that it could put such matters to him.  The Tribunal was said to have acted contrary to the rules of procedural fairness in not doing so.  

6. In the alternative, it was submitted that in considering the exercise of its discretion under s.424C(1) of the Act the Tribunal should have taken into account the fact that it intended to dismiss the application on the basis of a number of matters that the applicant was not on notice about and that in failing to do so it failed to take into account a relevant consideration in the exercise of its discretion under s.424C(1) giving rise to jurisdictional error. After the hearing each party provided a supplementary list of authorities in relation to the Tribunal’s exercise of power under s.424C.

7. It was submitted for the first respondent that it was important that in the particular circumstances of this case the Tribunal had the potential to obtain information from the applicant at a hearing or an interview or another way, but that it was under no such obligation and could in the circumstances of this case as a matter of law proceed to a decision (see MIMIAvVSAF of 2003 [2005] FCAFC 73 in relation to s.426A).

8. The first respondent submitted in respect of the discretion as to whether or not to exercise its power in this case, that it was clear that the Tribunal had had regard to whether or not to invite the applicant to a further hearing.  The Tribunal had written to the applicant’s adviser acknowledging receipt of his submissions and stating that it had considered that information in making a decision.  In its reasons for decision it addressed in some detail the question of the need for a further hearing and each of the matters it had considered in determining whether or not to exercise its power.  It was argued that none of these reasons was such that it could be said that there was no rational basis for the exercise of the discretion.  Nor did any of these reasons indicate that the Tribunal had failed to understand that it had a discretion or that it had misunderstood the breadth of the discretion. 

9. It was said that in essence the applicant’s disagreement was simply a disagreement with the Tribunal’s exercise of its discretion and that it had not been established that there was a legal error in the manner in which the Tribunal exercised its discretion.  (see Gleeson CJ and McHugh J in MIMAv Eshetu (1999) 197 CLR 611).

10. As to the applicant’s reliance on Bhardwaj, counsel for the first respondent pointed out that the statutory context considered by the High Court in that case was very different to that now under consideration.  Bhardwaj related to the requirement under s.360 of the Act (the equivalent of s.425 in relation to the Migration Review Tribunal) to give the applicant the opportunity to appear before it to give evidence and present arguments in relation to the issues arising in relation to the decision under review. It was said that in that context it could be understood that where an opportunity for a hearing was denied there could be a lack of procedural fairness where there was a failure to accede to a reasonable request for adjournment. That was said to be a very different situation from the consideration by the Tribunal of whether to conduct a further hearing in circumstances where there was no statutory obligation under the Act to give such an invitation to or hold a hearing.

Reasoning

1. First, it is not disputed that the Tribunal was under no statutory obligation to hold a further hearing.  Sections 424C, 425(2) and 425(3) make that clear. 

2. Section 424C(1) does not itself refer to a discretion as to whether to hold a hearing, but rather provides that if the requested information is not given within time the Tribunal “may” make a decision on the review “without taking any further action to obtain the additional information” (emphasis added). In this case, the Tribunal in fact took into account the information provided. There is no obligation in s.424C(1) itself to require the Tribunal to consider inviting the applicant to a hearing – no doubt because the Tribunal may give a s.424 (or 424A) invitation at any time in the review process and the statutory obligation to invite an applicant to appear is in s.425. The applicant does not dispute that part of the applicable statutory framework is that under s.425(2)(c) and s.425(3) the applicant was not entitled to appear before the Tribunal.

3. In this case, the Tribunal put the applicant on notice in its s.424 letter that it might not have a further hearing. Thus the applicant had (and took) the opportunity to address this issue.

4. In its reasons for decision the Tribunal addressed the issue of the need for a further hearing.  It not only had regard to the statutory provisions but also addressed the particular circumstances of the case and the reasons advanced by the applicant as to why he should have a further hearing.    

5. It has not been established that there was any legal error in the manner in which it exercised its discretion.  In particular, given my earlier findings that the five findings relied on by the applicant were not conclusions not obviously open on the known material, that the applicant was on notice that none of his claims might be accepted and that the critical issues were in fact sufficiently raised in all the circumstances, there was no necessity as a matter of procedural fairness to invite the applicant to a hearing to put such matters to him.  Further, it has not been established that the Tribunal failed to have regard to relevant considerations. 

1. As discussed in relation to ground 1, it is clear from SZBEL that the requirements of procedural fairness require consideration of the statutory framework and all the facts and circumstances.  This is not a case (unlike Bhardwaj) where there was a failure to accede to a reasonable request for an adjournment in circumstances where this meant that an applicant lost an opportunity to be heard (despite the existence of a provision akin to s.425). In contrast, in this case the issue was whether to conduct a further hearing where there was no statutory obligation to do so and where the applicant had failed to meet the time requirements of s.424 (see s.424C), but where the written information provided by the applicant had nonetheless been taken into account by the Tribunal.

2. It has not been established that the Tribunal failed to exercise its discretion under s.424C(1), or more generally in relation to the issue of whether there should be a further hearing, reasonably or that the manner in which it did so involved a denial of procedural fairness.

3. The Tribunal’s obligations under s.424C have been considered in a number of cases.  None of these cases assist the applicant.  In SZDOG v MIMIA (2005) 213 ALR 439 the Tribunal had failed to take into account that the applicant was not aware of a request for information. Smith FM found that the Tribunal was bound “to take into account … the most recent information available to it (that the request letter had been returned to sender) on an issue of fact material to its decision to apply s.424C and to conclude its review without inviting the applicant to a hearing” (at [34]).  In that context his Honour stated (at [33]) that “The discretion to deprive an applicant of the normal right to attend a oral hearing should be exercised by balancing considerations of procedural fairness for the individual against considerations of efficiency of general tribunal procedures”.  However, there is nothing to suggest the Tribunal failed to engage in such an exercise in this case. 

4. As in Uddin v MIMA (2005) 149 FCR 1 at [61] there is nothing to suggest that the Tribunal proceeded on an assumption that it was not entitled to grant the applicant a hearing (cf the statutory provisions considered in M v MIMIA (2006) 91 ALD 629 at [39] – [55]). I also note that there is no suggestion that the letter of 5 July 2005 was not an invitation in s.424 of the Act (see SZDBI v MIMA [2005] FMCA 426 at [19] – [32]). Given the Tribunal’s thorough consideration, not only of the information provided by the applicant, but also of issues relevant to whether a further hearing should be held, the exercise of its discretion has not been shown to be unreasonable in the circumstances (see SZEQF v MIMA [2005] FMCA 1819 at [30]). Finally, it has not been established that the Tribunal misunderstood its power (Usman v MIMA [2005] FMCA 966 at [48]).

5. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  5 April 2007