SZHXT v Minister for Immigration - [2008] FMCA 709

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHXT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 709

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZHXT”.

Migration Act 1958 (Cth), ss.91R, 91X, 425, 433
Statutory Declaration Act 1959 (Cth), s.11

Australian Capital Territory Reserve v Alphaone Pty Ltd [1994] FCA 1074
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1
Scorgie v Minister for Immigration & Citizenship [2007] FCA 2046
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
WACO v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 511
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 64

Applicant:

SZHXT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3157 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

15 February 2008

Delivered at:

Sydney

Delivered on:

30 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr C Jackson (on a direct access basis)

Counsel for the Respondents:

Mr M P Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 27 October 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3157 of 2006

SZHXT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The male applicant was born in 1957 in Hebei, the People’s Republic of China. He claims that he was born into an “ordinary working class family in Tainjin City”. The applicant claims that he worked for his uncle who published Buddhist magazines and materials. Such work was unacceptable in China and he claims that as a result he feared for his life.
The applicant arrived in Australia on 25 July 2001 and applied for a Protection (Class XA) visa on 9 August 2001. A delegate of the first respondent refused to grant the visa on 8 November 2001 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision on 8 July 2002. The applicant then sought review of the Tribunal’s decision by the Federal Court. The matter was transferred to the Federal Magistrates Court and orders were made by consent setting aside the decision and remitting the matter to the Tribunal for reconsideration. The second Tribunal decision (reference number 060580844) is the decision which is the subject of proceedings before this Court.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. An affidavit of Sue Archer affirmed on 31 January 2007 is marked Exhibit “B”. Annexed to the affidavit is a transcript of the hearing tapes recorded at the hearing on 29 August 2006.
When the application was filed, the applicant was represented by Ms M Byers, solicitor and Mr I Archibald of counsel. The matter had been set down for final hearing on 8 November 2007. On that date Mr Archibald appeared and sought leave for Ms Byers to withdraw as legal representative for the applicant and to inform the Court that his instructions to appear had also been withdrawn. At that time it was apparent that the applicant, then unrepresented, was not in a position to proceed. I adjourned the matter and made the following orders:
(a)Leave was granted for Ms Byers to withdraw as legal representative for the applicant.
(b)The applicant was to advise the Court and the respondents’ solicitors if he continued to rely on any of the documents listed below, or to file a further amended application and written submissions by 14 December 2007:
(i)Application filed on 27 October 2006 containing four grounds of review
(ii)Amended application filed on 6 February 2007 containing four grounds of review
(iii)Affidavit of Ms Byers filed on 18 June 2007 attaching a copy of the hearing transcript (File number 060580844)
(iv)Applicant’s submissions prepared by Mr Archibald and filed on 9 July 2007
(c)The matter be adjourned to a final hearing on 25 January 2008 at 10.15am
Due to unforeseen circumstances the matter was further adjourned to 15 February 2008. On that date, the applicant was represented by Mr Jackson on a direct access basis. A further amended application was filed on 14 January 2008 and written submissions were filed on 4 February 2008. The first respondent filed new submissions on 6 February 2008.

Ground of application

The Tribunal failed to comply with section 425 of the Act in failing to accord the applicant procedural fairness (SZBEL paragraph 37; compliance with section 425 requires a “fair hearing”).
Particulars
1. Critical to the Tribunal’s decision was where, when, and for what purpose the applicant had practiced Falun Gong, in particular, whether he had practised prior to August 2005.
(i) Two witnesses were called at the applicant’s request who claimed to have witnessed the applicant practicing Falun Gong from October 2002 in a public place (in the case of the witness,[Mr X]), and from 2004 in a public place (in the case of the witness, Qian Sun), and their evidence was taken without criticism or comment, or any suggestion that it would not be accepted.
(ii) The Tribunal did not warn either the witnesses nor the applicant that their evidence in relation to when the applicant was seen practicing would not be accepted, but did not accept their evidence, and found, in relation to both [Mr X] and Sun, that the evidence was provided “in an effort to corroborate the applicant’s evidence that he practiced in Australia prior to joining the Burwood group in August 2005”, in other words, that it was false evidence.
(iii) Consequently, the Tribunal did not accept that the applicant practiced Falun Gong prior to August 2005.
(iv) Procedural fairness required the Tribunal to warn both the applicant’s witnesses and the applicant that their apparently independent evidence may not be accepted, in order to give them the opportunity to persuade the Tribunal to find otherwise.

Applicant’s submissions

Mr Jackson advised the Court that the applicant did not press the claims he made in his protection visa application and that they had been created without his authorisation by his original migration agent. Therefore, the claims that he made to the first Tribunal relating to his practice of Falun Gong in China and Australia, were not considered until his application went before the second Tribunal. Two witnesses called at the applicant’s request attested to having witnessed the applicant practice Falun Gong in a public place from October 2002 (CB 137). Mr Jackson notes that the Tribunal rejected their evidence, finding that it was provided “in an effort to corroborate the Applicant’s evidence that he practiced in Australia prior to joining the Burwood group in August 2005” (CB 141.9). The Tribunal did not accept the applicant’s claim that he had practiced Falun Gong in Australia and only accepted that he commenced practice in Australia when he joined the Burwood group in August 2005 (CB 141.30).
Mr Jackson submits that when s.425 of the Migration Act 1958 (Cth) is engaged, the Tribunal has an obligation to provide a fair hearing. The provisions of the section are:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In support of this contention, Mr Jackson relied on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [37] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ:
[37] That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
Mr Jackson submits that the common law rule of natural justice applies as an overarching principle in that the applicant should not have been deprived of a genuine and fair opportunity to present his case.
Mr Jackson further submits that in SZBEL at [29]-[32] the Court examined, explained and expanded upon the Full Federal Court decision in Australian Capital Territory Reserve v Alphaone Pty Ltd [1994] FCA 1074:
[29] No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone.17 The Full Court (Northrop, Miles and French JJ) said:18
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
[30] Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision?
[31] Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
[32] In Alphaone the Full Court rightly said:
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. (emphasis added)
Mr Jackson submits that the High Court thus made clear that it is the issue upon which the decision will turn which must be provided to the applicant. He submits that the Court below misplaced its purported reliance on Alphaone by distinguishing between a reasoning process (not required to be disclosed) and adverse material (required to be disclosed). He submits that the facts in SZBEL are instructive, as the issues which that Tribunal was obliged to identify were at a high level of particularity and related to aspects of the applicant’s evidence that it did not consider credible. Mr Jackson submits that in this matter, the Tribunal made a series of findings in relation to the evidence of the two witnesses. It is submitted that a finding by the Tribunal that a witness had lied in a statutory declaration and thereby offending s.11 of the Statutory Declaration Act 1959 (Cth). The Tribunal found that the two witnesses had lied under oath at the hearing: s.433(3) of the Act.
It is submitted that a finding of criminal dishonesty in relation to witnesses who did not apparently stand to gain from being dishonest was serious and not “obvious and open” to the Tribunal. Mr Jackson submits that the Tribunal neither asked questions nor warned that the apparently credible evidence of the witnesses would be rejected. The Tribunal found that the applicant had not practiced Falun Gong prior to August 2005 and that formed part of its reasoning process in rejecting the applicant’s claim.
Mr Jackson submits that if the applicant had been warned that their evidence may not be accepted, he would have had a chance to persuade the Tribunal to find otherwise. An opportunity to respond could have made a difference to the outcome of the decision.

Respondent’s submissions

Mr Cleary, for the first respondent, submits that the Tribunal decision was based essentially on adverse credibility findings and the evidence of the two witnesses. It is submitted that credibility findings are matter of fact for the Tribunal alone and should not be disturbed by the Court: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J. Mr Cleary submits that contrary to the applicant’s written submissions, the Tribunal did not make any positive findings that the witnesses had lied or were criminally dishonest.
It is submitted that the Tribunal, on weighing the evidence, given by the two witnesses, simply did not accept their evidence to be credible (CB 141-142). Ultimately the Tribunal gave the evidence of the two witnesses no weight which was a finding open to it as an administrative decision-maker responsible for carrying out the review process under the Act.
Mr Cleary submits that analysis of the authorities indicates no denial of procedural fairness in this matter. An administrative decision-maker is not obliged to expose his or her mental processes to comment before making the decision in question: Alphaone at [591]-[592]. It is submitted that this general principle applies to all administrative decision-makers: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.
Mr Cleary also referred to the observations of French J in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [26]:
[26] In my opinion, there is no failure of procedural fairness here. The Tribunal, of course, is not obliged as a matter of procedural fairness to alert parties about, and invite their comments on, its thought processes in decision-making, nor upon the possibility that it might not accept certain of the evidence tendered by a party. The process is, of course, inquisitorial but in the course of it the applicant for review submits the evidence that the applicant relies upon and makes his or her case based upon that evidence.
Further Mr Cleary referred to the observations of Flick J in Scorgie v Minister for Immigration & Citizenship [2007] FCA 2046 at [10]:
[10] Procedural fairness does not require the disclosure to a party of the manner in which material may be used or disclosure of an evolving process of deliberation or decision-making. Procedural fairness does not generally require a decision-maker to disclose what he is minded to decide so that a party may have a further opportunity of criticising his mental processes before he reaches a decision: see Hoffman-La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128. Lord Diplock there observed at 1157:
… the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
There is no general requirement to give a party a running commentary on his prospects of success warning him of every reason why his claims might not be thought sufficient to justify the relief sought: see Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] per Edmonds J, 90 ALD 362, citing Abebe v Commonwealth of Australia [1999] HCA 14 at [187], 197 CLR 510. See also Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 at 591–2. In the circumstances of the present proceedings, there has accordingly been no denial of procedural fairness in not disclosing the various texts not referred to in the reason of the Tribunal now under appeal but in the reason of earlier Tribunal decisions.
Mr Cleary submits that in the matter before this Court there was no positive finding of dishonesty or that the applicant concocted his evidence: WACO v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 511; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 64. It is submitted that the Tribunal was entitled “to accept or reject or give such weight to the evidence as it thinks appropriate in all the circumstances”: Lee at [27].
Mr Cleary submits that there is no requirement under the Act (see SZBYR at [17]-[18]) or at common law that the Tribunal warn the applicant that the evidence of the two witnesses may not be accepted and to give him an opportunity to persuade the Tribunal to find otherwise. To do so would be to disclose what the Tribunal “is minded to decide”, its thought process or subjective reason process on the evidence it is considering.

Consideration

The ground of review in this application concerns rejection of the evidence from the applicant’s witnesses about his participation in Falun Gong prior to August 2005.
Mr Jackson relied on SZBEL at [37]:
if the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis on the applicant was not a national of the country claim, there would not have been a compliance with s.425(1); the applicant would not have been accorded procedural fairness.
The subject of the issue in SZBEL was the applicant’s nationality whereas this matter concerns the applicant’s participation in Falun Gong before 2005.

Conversely, Mr Cleary argues that the Tribunal simply did not accept the witness’s evidence and did not accept the evidence to be credible. Mr Cleary also relied on both SZBYR and Alphaone.
I believe the first issue to be determined is whether the applicant was fully aware that the significant issue at stake in his claim was whether he was involved in the practice of Falun Gong while in Australia and prior to joining the Burwood group in August 2005.
The applicant’s agent, Southpac Services, forwarded five statutory declarations to the Tribunal on 26 August 2006. Three of those stated that the deponents had met the applicant at the Burwood Falun Gong Study Centre in August 2005 and had associated with him since then (CB 91-97). Another stated that she met the applicant at the Parramatta Falun Gong Study Centre in 2006. A fifth deponent, “Mr X”, had a much longer association with the applicant and was contacted by the Tribunal to give evidence by telephone at its hearing. Although this witness was named in the Tribunal decision, I do not name him in this judgment because he was once a detainee at Villawood Immigration Detention Centre. I will return to his evidence again below.
At the Tribunal hearing, the applicant was accompanied by his migration agent, Ms Esther Yu of Southpac Services, and three witnesses. Two witnesses gave evidence that was in accordance with their statutory declarations that they knew the applicant from the Burwood Group since August 2005. Ms Sun, the third witness, had not filed a statutory declaration and told the Tribunal that she met the applicant in 2004 through a friend. Ms Sun indicated that in 2004 she lived on the same street as the applicant and that she occasionally saw him near home. During this time, the applicant had told her of his interest in Falun Gong and she saw him practising in the neighbourhood on several occasions.
Then the following exchange occurred between the Tribunal member and Ms Sun:
TM: And when did he ask you to come to the Tribunal?
Sun: Last month, early of July this year [2006].
TM: And what did he say to you?
Sun: He asked me whether I could go to the Tribunal to prove that he did do exercises during the time, I said yes.
TM: Are you a Falun Gong practitioner?
Sun: No, never done it.
TM: So how do you know he was doing Falun Gong exercises?
Sun: I asked him. I was curious. He was doing it with hands up like someone surrendering and I asked him what it is and he told me it was Falun Gong. (Transcript, p.35)
The evidence of the witnesses took place in the presence of the applicant and his advisor.
The evidence of the final witness, Mr X, was that he first met the applicant when they were working at a sofa factory in May or June 2002. They worked together for two to three months. Mr X next saw the applicant in October 2002 in Campsie practising Falun Gong with a small group. When they finished practice, Mr X spoke to the applicant about Falun Gong.
The following exchange took place at the Tribunal hearing:
TM: In between 2002 and 2006, did you and the applicant continue to practice Falun Gong together?
Mr X: No we didn’t practice Falun Gong together.
TM: So when did you start practising Falun Gong together?
Mr X: No stopping practicing together. I haven’t practiced together with him.
TM: Have you never done the exercises together?
Mr X: That’s right.
TM: So what have you done together, just a study group in Parramatta?
Mr X: Yes.
TM: And when did you start doing that?
Mr X: You mean going to Parramatta?
TM: Yes.
Mr X: After I got out of Villawood.
TM: And when was that?
Mr X: After July this year [2006].
TM: And when did you go to Villawood?
Mr X: 15 September 2004
TM: And before 15 September 2004, when had you last seen the applicant?
Mr X: Around January 2003 but I can’t recall for sure because after I left Villawood, my mind was a bit confused. (Transcript, pp.40-41)
The applicant was represented by a registered migration agent since July 2006. The preparation and submission of documents prior to the Tribunal hearing was done by the agent on behalf of the applicant. However, it appears that the statutory declarations and attendance of the witnesses were at the instigation of the agent. The agent would have been well aware of the provisions of s.91R(3) of the Act and explained its operation to the applicant. It was abundantly clear from the line of questioning that the Tribunal member was seeking to establish the applicant’s involvement in Falun Gong from his arrival in Australia July 2001 until he joined the Burwood group in August 2005.
All the witnesses, except for Ms Sun and Mr X, gave evidence that they had not met the applicant until he joined the Burwood group. Ms Sun gave evidence that she first became aware of the applicant in 2004 and, although not a Falun Gong practitioner, was told by the applicant that his exercises were in fact Falun Gong. In the circumstances, I do not believe that the evidence of Mr X or Ms Sun would not be closely examined by the Tribunal to ensure that the applicant was not strengthening his claim to be a refugee contrary to s.91R(3) of the Act.
The evidence given by Ms Sun and Mr X was after the applicant had given evidence indicating that he first met Mr X in October 2002 when he was exercising with a small group in Campsie. The applicant’s evidence was that one morning after completing those exercises he met Mr X who had been observing them. They had a discussion about the exercises they had been doing. The applicant later saw Mr X on the street a few times but did not meet up with him again until 2006 when he went to a Falun Gong study centre in Parramatta. They both attended the centre on Friday nights to discuss Falun Gong but they did not practice together. The applicant said that there were no other witnesses that could verify that he participated in Falun Gong activities in 2002 or 2003.
The question of what evidence the applicant could produce to support his involvement in Falun Gong was directly put to him in the following line of questions:
TM: And you don’t have any other witnesses apart from him [Mr X] about your practicing Falun Gong in 2000?
Applicant: No.
TM: What about 2003?
Applicant: I lived in Campsie in 2002, 2003.
TM: There are no other witnesses about you practising Falun Gong in those two years.
Applicant: No. I have those co-practitioners but I can’t find them anymore.
TM: And what about 2004?
Applicant: I was living in Flemington.
TM: What were you doing about Falun Gong practice?
Applicant: I continued.
TM: Did you go to a study group?
Applicant: In Flemington there was no study group, only doing exercises.
TM: Where did you do that?
Applicant: In a small garden in Flemington.
TM: Who did you practice with?
Applicant: A few other practitioners, not many three or four.
TM: Have you got any of those persons to give evidence on your behalf?
Applicant: No, I moved away from Flemington in 2005 and I can’t see any of them now. (Transcript, pp.26-27)
The Tribunal dealt with the evidence of Mr X in the following way:
However, I do not accept the evidence of [Mr X] that he saw the applicant practicing Falun Gong in October 2002. The witness told the Tribunal that he was working with the applicant for a couple of months in early 2002. They did not discuss Falun Gong or mention to each other that they were Falun Gong practitioners. They did not discuss it because they were too busy. A witness stated that he and the applicant had attended Falun Gong study sessions in Parramatta since July 2006, when the witness was released from Villawood. I am of the view that if the applicant was a sincere Falun Gong practitioner as claimed he would have engaged in his practice or at least discussed with [Mr X] when they met and worked together in early 2002. I am not satisfied that the witness [Mr X] saw the applicant practicing in 2002. I am of the view that this evidence was provided to the Tribunal in an effort to corroborate the applicant’s evidence that it practiced in Australia prior to joining Burwood Group in August 2005. (CB141.8)
The Tribunal then dealt with Ms Sun’s evidence in the following passage:
The applicant’s friend Qian Sun stated that the applicant told her after they met in 2004 that it was a Falun Gong practitioner and that when she was out walking she sometimes saw him practicing. The witness is not a Falun Gong practitioner when asked how she knew the applicant was practicing Falun Gong, she said it was because he told her so. I do not accept that the applicant was practicing, as claimed by this witness. I am of the view that the witness provided this evidence in effort to assist the applicant to prove that he was a Falun Gong practitioner and was engaged in such practice before he joined the Burwood Group. (CB 142.1)
In the circumstances, I agree with Mr Cleary’s submissions that the Tribunal decision was essentially based on an adverse credibility finding about the two witnesses called by the applicant. On a fair reading of the Tribunal hearing transcript and the decision, I am satisfied that the hearing was focused on the validity of the claim that the applicant had been practicing Falun Gong since his arrival in Australia, in particular from 2002 to 2004. The applicant was represented by a qualified migration agent in the preparation and representation before the Tribunal. The agent would have been acutely aware of the issue at stake and the emphasis that the Tribunal member placed on the critical years of 2002 and 2003. I am not satisfied that the Tribunal, as an administrative decision-maker, made no jurisdictional error in its approach in dealing with the evidence of the two witnesses.

Conclusion

I am satisfied that the Tribunal complied with s.425 of the Act and that no jurisdictional error has been made. In the circumstances the application should be dismissed.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 30 May 2008