SZIWE v Minister for Immigration

[2007] FMCA 1114

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIWE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1114

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 430, 476

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
SZHKC v Minister for Immigration [2007] FMCA 334
Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
WAFD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 257
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Applicant: SZIWE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1442 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 15 May 2007

Delivered at: Sydney

Delivered on: 13 July 2007

REPRESENTATION

Counsel for the Applicant: Mr Combe (on a direct access basis)

Counsel for the First Respondent: Mr M P Cleary

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.

2. The application filed on 18 May 2006 is dismissed.

3. 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 1442 of 2006

SZIWE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act1958 (Cth) ("the Act") and has been given the pseudonym “SZIWE”.

2. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 18 May 2006, for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").

3. The Tribunal decision was made on 28 March 2006 affirming a decision of a delegate of the first respondent made on 20 December 2005, refusing to grant the applicant a Protection (Class XA) visa.

4. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

5. A Court Book ("CB") prepared by the first respondent's solicitors was filed and served on 30 June 2006.  I have marked it Exhibit "A" and it was read into evidence.

Background

1. The Tribunal decision of Dr Irene O'Connell, reference N06/53092, provides the following background information:

   The applicant, who claims to be a citizen of the People's Republic of China arrived in Australia on 21 November 2005. On 28 November 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958) ("the Act"). On 20 December 2005 a Delegate of the Minister of Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 27 January 2006 the applicant applied for review of that decision.(CB 72)

2. The applicant's claims are set out in a brief, typed statement attached to his protection visa application which states:

   I am a Falun Gong member.  When I was in Beijing, I worked for Yan Hua Co and I was assistant to Mr Xhi Cun Ma who was the senior member of the Falun Gong in Fangshan district.  In 1999 I assisted Mr Ma in preparing a signature book to submit to the Chinese Government to ask for the acknowledgement of Falun Gong by the Chinese authorities.  When the investigation team came to Yan Hua Co. for investigation, police took Mr Ma and me to the police station, we suffered mental and physical torture from the Chinese Government, he was sacked from the company, and I was lucky and I could keep my job at the same company until I left China.  After 1999, I became a senior member of Falun Gong in the Fangshan area.  My duties were to organise the workers of our factory to have Falun Gong activities.  After Mr Ma left the company, I became senior in that factory; I organised workers for meetings and activities of Falun Gong frequently.  I had close relationship with Mr Ma and we organised our activities together with member of other factories and companies.  Our homes were often searched by police and we could not have normal life in China because of our beliefs.  In July 2005, Yan Hua Co. formally warned me about my close relationship with Mr Ma and informed me that I would be sentenced to imprisonment if Mr Ma was charged, as they had evidence to believe that I was the assistant to Mr Ma for Falun Gong activities.  I had to make use of the opportunity to come to Australia for protection.(CB 27)

Tribunal’s findings and reasons

1. The Tribunal decision states:

   The Tribunal has come to the conclusion that the applicant is not credible in respect of key aspects of a claim for protection.  Not being satisfied in respect of these aspects of his claim, which are discussed below, led the Tribunal to conclude the applicant is not in genuine fear of persecution nor is there a real chance of persecution on his return to China. 

   The Tribunal does not accept that the applicant is or ever was involved in Falun Gong.  The Tribunal makes this finding on the basis of the applicant's oral evidence about his involvement in Falun Gong, which the Tribunal considers to be unconvincing in the following ways.  He claims on the one hand to be so committed to Falun Gong such that he practices and promotes it over a six year period, despite the fact that it was declared illegal and resulted in him being detained and tortured but on the other hand, since his arrival in Australia he has seldom practiced Falun Gong and made no attempt to connect with any Falun Gong association because he claims that since arriving in Australia he has been too busy working and too tired from his work to do so and because it is not necessary to practice all the time. 

   Further, when asked to elaborate on the principals of Falun Gong he was only able to do so in a highly general manner which the Tribunal considered as inconsistent with a person claiming a long-standing commitment to Falun Gong.

   As the Tribunal does not accept that the applicant has any involvement with Falun Gong in China, the Tribunal does not accept that he signed a petition or promoted Falun Gong in his workplace or associated with Falun Gong practitioners.  As the Tribunal does not accept that the applicant had any association with Falun Gong, the Tribunal does not accept that the applicant was monitored by the PSB, sought after by the PSB or arrested by them or will be arrested by them on his return to China because of his claimed association with Falun Gong.(CB 77-78)

Application for review of the Tribunal’s decision

1. On 18 May 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. In accordance with orders made at first directions, the applicant filed an amended application on 17 August 2006. Immediately prior to the hearing, Mr Combe, for the applicant, supplied the Court with a further amended application.

   
   

   Mr Combe sought leave to file the further amended application at the hearing.

2. No objection was raised by Mr Cleary for the first respondent and so leave was granted.  The further amended application contains the following grounds:

   The Tribunal, in the course of finding that "the applicant is not in genuine fear of persecution, nor is there a real chance of persecution on his return to China" (CB 77.7), makes no reference in its decision to the promptness with which the applicant applied for a protection visa following his arrival in Australia.  In the circumstances, the Tribunal failed to take into account a consideration or evidence which it was required to take into account, giving rise to jurisdictional error.

Submissions and reasons

1. Mr Combe indicated to the Court that he relied upon the written submissions, prepared and filed in these proceedings by Mr B Zipser, who was previously retained by the applicant. 

2. Mr Cleary submits in his written submissions that when an applicant arrives in Australia and delays applying for a protection visa, the delay:

   a)is relevant to whether the applicant has a genuine fear of persecution;

   b)suggests that the applicant does not have a genuine fear of persecution; and

   c)is relevant to the decision maker's assessment of the truthfulness of the applicant's claims.

3. Mr Cleary submits that there are a number of authorities which support this approach.  In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558 per O'Connor, Branson and Marshall JJ:

   Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43).

4. In Thuraisamy v Minister for Immigration and Multicultural Affairs [1999] FCA 1632 at [10], Wilcox, Einfeld and Tamberlin JJ state:

   [10] Finally, it is said the Tribunal erred in relying on the decision of Heerey J in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 - to the effect that it is legitimate in assessing the genuineness, or at least the depth, of an applicant's claimed fear of persecution to take into account any delay by the applicant in lodging an application for a protection visa. The Tribunal member commented:

   "In the present case the Applicant's delay in seeking Australia's protection, coupled with the fact that he has left and returned to Sri Lanka on three occasions after the events which he claims gave rise to his fear of being persecuted leads me to conclude that he does not have a genuine fear of being persecuted if he returns to Sri Lanka now or in the foreseeable future."

   We see nothing wrong with this statement. Of course, the existence of delay does not end the inquiry. There may be a good reason for the delay, notwithstanding genuine and deep fears of persecution. In this case, the Tribunal did not suggest otherwise. We do not think the Tribunal misunderstood or misused the decision of Heerey J.

   WAIJ v Minister for Immigration and Multicultural Affairs and Indigenous [2004] FCAFC 74 at [30] per Lee, Moore and RD Nicholson JJ states:

   [30] In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented. (See: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558).

5. Mr Combe argues that where an applicant arrives in Australia and promptly applies for a protection visa without delay, the absence of delay:

   a)is relevant to whether the applicant has a genuine fear of persecution;

   b)suggests that the applicant has a genuine fear of persecution; and

   c)is a factor favouring a finding that the applicant is truthful in relation to his claims.

   In the present case, the applicant arrived in Australia on 21 November 2005 and applied for a protection visa on 28 November 2005.  The applicant's promptness is relevant to the question whether (and supports the finding that) he had a genuine fear of persecution and was truthful in relation to his claims.  Yet, the Tribunal in the course of finding that "the applicant is not in genuine fear of persecution, nor is there a real chance of persecution on his return to China" (CB 77.7), made no reference in its "Claims and Evidence" or "Findings and Reasons" to:

   a)the date the applicant arrived in Australia and applied for a protection visa; or

   b)the applicant's promptness in applying for a protection visa.

   In the circumstances the applicant contends that the Tribunal ignored a relevant consideration or evidence before it, giving rise to jurisdictional error.

6. Mr Combe submits that the applicant must establish two points in order to succeed on this ground of review.  First, that the Tribunal was required to take into account the above considerations or evidence. 

   
   

   Mr Combe relies on Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 which states that "the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision". Mr Combe submits that the Tribunal has a common law obligation to take into account the evidence before it, consistent with its statutory obligation under s.424(1) of the Act.

7. Secondly, the applicant must persuade the Court that the Tribunal failed to take into account the above considerations or evidence. When the Tribunal has failed to refer to an important matter in a decision prepared under s.430 of the Act, it is open to the Court to infer that it was overlooked: Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212 at [23].Mr Combe submits that as the Tribunal did not substantially refer to this issue, it is open to the Court to conclude that it was overlooked and that the Tribunal committed jurisdictional error.

8. Mr Combe further submits that the proximity between the applicant’s entry into Australia and his application for a protection visa was an essential integer of the claim which was not considered by the Tribunal in its decision.  It is submitted that the proximity was an essential integer of the claim, and the failure to consider it constituted jurisdictional error.

9. Secondly, there are important factors to take into account in the application of any principle that may be elucidated from SZHKC Minister for Immigration [2007] FMCA 334.  In that case, concessions were made by the first respondent at [31]:

   31.… Counsel for the First Respondent conceded that promptness may be potentially relevant, in considering whether or not the Applicant has a subjective fear of persecution, however, the Tribunal would only have been bound to consider that fact, where it was raised by the Applicant as an integer of his claim.[emphasis added]

10. Mr Combe then to the statement attached to the applicant’s protection visa application.  That document briefly sets out the applicant’s claim and concludes:

    In July 2005, Yan Hua Co. formally warned me about my close relationship with Mr MA, and informed me that I would be sentenced to imprisonment if Mr MA was charged as they had evidence to believe that I was the assistant for Mr MA for Fulan Gong activities.  I had to make use of the opportunity to come to Australia for protection.(CB 27)

    Mr Combe argues that although it was not explicit that the close proximity between his arrival and the visa application was an essential integer of the applicant’s claim, nonetheless, the application was done with some urgency.  Furthermore, the applicant clearly stated that the need to avoid possible arrest and persecution.  In particular, Mr Combe emphasised the last sentence of the above statement.  He argues that the words the applicant used were not “I could have” or “I might have” but “I had to”.

11. Mr Combe further submits that the applicant’s visa application was made within four days of his arrival in Australia.  The application clearly raised a nexus between the need for immediate protection and the making of the application.  Therefore, the proximity between the applicant’s arrival and the application was integer of his claim and contrary to the factual circumstances in SZHKC.  Mr Combe submits that it is also clearly within the parameters of the concession made by the first respondent in SZHKC.

12. Mr Cleary submits that the Tribunal is not bound to consider promptness in making a visa application.  However, the Tribunal is bound to consider promptness if an applicant raises it as an integer of his claims.

13. Mr Cleary submits that promptness in making the visa application was not a fact relied upon by the applicant in his Tribunal application, nor one which he drew the Tribunal’s attention to during the hearing: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42] per Spender, Merkel and Alsop JJ:

    42. ...The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with...

14. Mr Cleary then submits that SZHKC dealt with the very same ground of review now relied upon by the applicant in the present case. 

    
    

    In SZHKC, Emmett FM rejected the applicant’s argument because, like the present case, the promptness of the protection visa application was not an integer of the claim made by the applicant in the Tribunal.  Her Honour held that, in those circumstances, it was not a consideration that the Tribunal was bound to take into account.  Her Honour found, on the contrary, that it was a relevant consideration that the Tribunal may or may not take into account: SZHKC at [32].

15. Mr Cleary referred to the Tribunal’s comment in its decision:

    The Tribunal pointed out to the applicant that his passport indicated that it was issued in April 2004 and that he left the country legally on this passport; this would tend to indicate that he was not in fact a person that the PSB were monitoring and had adverse interest in.(CB 75.3)

    Mr Cleary submits that the Tribunal noted that the information was a significant aspect of the applicant’s claim so far as the promptness was concerned.  A further statement by the applicant is significant:

    The Tribunal asked the applicant whether he practised Falun Gong since he had come to Australia.  The applicant stated that he does not practice very much because he is very tired.  He also stated that one does not need to practise Falun Gong as the principles work inside of one regardless of whether one practises or not.  The applicant stated he was too busy from work and too tired to practise Falun Gong in Australia.  In response to the question as to whether he has any contact with any Falun Gong association in here Australia, the applicant stated that he has only recently arrived and he has been too busy, but he does have the intention to make contact with the Falun Gong Association in Australia. (CB 75.9-76.1)

1. Mr Cleary submits that the Tribunal found that the applicant lacked credibility and, consequently, that he did not have a well-founded fear of persecution for a Convention reason and was not someone to whom Australia had a protection obligation under the Refugees Convention.  The Tribunal did not accept that the applicant practised Falun Gong in China.

2. Mr Cleary then referred to Peko-Wallsend at 39 per Mason J as a convenient summary of the law on relevant considerations:

   The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

   (A) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183, 196–7; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232–3). The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228, that a decision-maker must take into account those matters which he “ought to have regard to” should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion “must call his own attention to the matters which he is bound to consider”.

   (B) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 27 ALR 321; 144 CLR 45 at 49–50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757–8, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

3. Mr Cleary submits with reference to the above passage from Peko-Wallsend that a decision-maker must look to the Act to determine what matters are relevant and should be taken into account. He submits that s.430 of the Act, relied upon by Mr Combe, does not have regard to the promptness with which an application for protection is made. This is also so for the rest of the Act and the relevant provisions which govern the operation of the Tribunal.

4. Mr Cleary then referred again to SZHKC at [28] which he concedes is correct:

   It is common ground between the parties that the promptness of the application is not a matter that the Tribunal was prohibited from taking into account.

   At [30] Her Honour notes:

   The promptness of the application was not a fact relied upon by the Applicant nor one which the Applicant in any way drew to the attention of the Tribunal.

   Mr Cleary contends that in this Court, the applicant has not produced a transcript of the Tribunal hearing.  The applicant did not bring his passport to the Tribunal hearing despite having been requested to do so.  Mr Cleary argues that the only evidence the Tribunal had about the date which the applicant entered Australia was the applicant’s assertion.

5. Federal Magistrate Emmett summarised her view of the relevant law in SZHKC at [32]:

   Accordingly, the promptness of the Applicant’s application for a protection visa after having arrived in Australia was not a consideration, in all the circumstances, that the Tribunal was bound to have regard to such that failure to do so amounted to jurisdictional error.  In the circumstances, it was a relevant consideration that the Tribunal may or may not take into account.

   I agree with the submissions made by Mr Cleary and I am persuaded to follow the decision in SZHKC.  I formed this view because I believe that the promptness of the applicant’s visa application was not a part of the applicant’s claim.  A failure to weigh up any of the specific pieces of evidence would not amount to an error in law: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at [46]; WAFD of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 257 at [35], [37]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 at [74]. The distinction between an element or integer of a claim, and a “mere piece of evidence” was considered in VQAB v Minister [2004] FCAFC 104 at [25] and [31] per Beaumont, Weinberg and Crennan JJ:

   [25] The primary judge had another basis for rejecting this first ground. He concluded that the failure to make a finding regarding the passport claim could not amount to a jurisdictional error. That was because there was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was merely a piece of evidence to bolster the claim of persecution by reason of the appellant’s political opinion. His Honour referred to a passage in the judgment of Allsop J in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] in which a distinction was drawn between an element or integer of a claim, and a mere piece of evidence.

   [31] The first ground is singularly uninformative. The primary judge dealt with the complaint that the Tribunal had not addressed the passport claim correctly, and to the extent that this ground seeks to agitate that point, it is without merit. In addition to Paul, and the cases cited therein, regard should be had to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47], VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447, Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 509, and Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.

6. In the matter before this Court I am satisfied that the promptness of the applicant’s application for a protection visa after arriving in Australia is more appropriately characterised as a “mere piece of evidence” as discussed by Their Honours in VQAB above.  In the circumstances, the Tribunal was not bound to have regard to this evidence as being an integer of the applicant’s claim.

Conclusion

1. I am satisfied that the ground contained in the further amended application cannot be sustained and consequently the application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter. 

   
   

   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-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  13 July 2007