SZJLU v Minister for Immigration

[2007] FMCA 589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 589

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.91R, 91X, 424A , 476
Federal Magistrates Court Rules 2001 (Cth), rr.44.11, 44.12

Applicant S301/2003 v Minister for Immigration [2006] FCAFC 155
Anthony David Craig v The State of South Australia [1995] HCA 58
Das v Minister for Immigration (2004) 208 ALR 229
Minister for Immigration v Kord (2002) 125 FCR 68
Minister for Immigration v NAMW [2004] FCAFC 264
Minister for Immigration v SZANS [2005] FCAFC 41
Prahastono v Minister for Immigration (1997) 77 FCR 260
Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71
Re Minister for Immigration; Ex parte Durairajasingham (2000) HCA 1
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZAYT v Minister for Immigration [2005] FCA 857
SZDTQ v Minister for Immigration [2005] FCA 867

Applicant: SZJLU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2732 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 15 March 2007

Delivered at: Sydney

Delivered on: 20 April 2007

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Punjabi interpreter

Solicitors for the Respondents: Mr G Hooper of DLA Phillips Fox

ORDERS

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

2. The application filed on 4 October 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

SYG2732 of 2006

SZJLU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 4 October 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 25 August 2006. The letter issuing the decision was dated 7 September 2006, affirming a decision of the delegate of the first respondent made on 19 May 2006, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZJLU”.

3. The applicant seeks an order that the first respondent show cause why the remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.

4. A Court Book ("CB") prepared by the first respondent’s solicitors was filed on 3 November 2006 and marked Exhibit "A".  It was read into evidence. 

Background

1. The Tribunal decision of Sue Zelinka, reference 06/44103, provides the following background information:

   The applicant, who claims to be a citizen of India, arrived in Australia on 28 February 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 13 April 2006.  The delegate decided to refuse to grant the visa on 19 May 2006 and notified the applicant of the decision and his review rights by letter dated 19 May 2006.

   The delegate refused the visa application as the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.

   The applicant applied to the Tribunal on 5 June 2006 for review of the delegate’s decision.(CB 99)

Applicant’s claims

1. In his protection visa application, the applicant indicated that he was a 22 year old single man from the Punjab in India who was a salesman in his family business.  He states that he was from a Hindu family who did not follow their religion rigidly.  Their home was surrounded by Punjabi-speaking Sikhs with whom he associated.  The applicant went to their Gurdwarda (place of worship) where he developed a love for Sikhism and its Gurus.  He adopted Sikh traditions and habits.  When at school during 1997/1998 a family friend introduced him to the hierarchy of Shiromani Akali Dal (Armristar) (the Party).  The applicant attended Party meetings and developed an interest in politics and an emotional attachment to Saranjit Singh Mann, the Party leader.  He worked for the Party and with friends displayed banners and posters for candidates.  He claims his schooling was affected because of his political activities.  The applicant left school at Year 9 to serve Mr Mann and the Party.  In March 2004, the Party appointed him campaign director for forthcoming elections and participated in many public meetings.  The applicant claims he was arrested a few times because he was framed by the opposition.(CB 101-102)

2. Around 2004, the Akali Dal Badal Group issued a statement that the applicant was not Sikh and should not be allowed to attend Sikh congregations.  Since then, he was not allowed to attend Gurdwara controlled by that group and was twice thrown out of them.  In the last state elections, the opposition Congress party won and the new Chief Minister took action against all the opposition groups.  Mr Mann and Mr Badal came under investigation for corruption.  The applicant claims that both these cases were politically motivated and the authorities harassed local members, including the applicant.  The applicant claims that in November 2005, he was framed as being involved in a murder by the police and the opposition.  This resulted in his arrest.  The applicant’s family offered a substantial bribe to the police for his bail.  After he was released, his family arranged a passport and visa to help him leave India.(CB 102)

Tribunal’s findings and reasons

1. A summary of the Tribunal's reasons is contained in the first respondent's written submissions and I adopt paragraphs 7 to 15 for the purposes of this judgment: 

   7.The RRT affirmed the decision under review refusing to grant the applicant a protection visa. The applicant is a citizen of India. He claimed to fear persecution for reasons of his political opinion.

   8.The applicant submitted various documents to DIMA with his Protection Visa Application (PVA). At the hearing the RRT indicated to the applicant and his advisor that it had these particular documents before it. The applicant and advisor stated that they wanted the RRT to have regard to these documents and could not re-submit them to the RRT because they did not have any copies. This also applied to the applicants written statement, to which they made two minor corrections.

   9.The applicant provided his passport at the RRT hearing.

   10.The RRT did not accept that the applicants claim that in March 2004 he was appointed campaign director of the Shiroman Akali Dal (Amritsar) party (SAD-A) for the forthcoming elections. It was not satisfied he held any official role within SAD-A:

   10.1Independent country information indicated that there were no elections on this date in Punjab State.

   11.Based on the applicant’s oral evidence, the RRT was not satisfied he had any particular knowledge of Punjab politics in general or the SAD-A in particular. It was not satisfied that he had become publicly known for his successful rallies and recruiting new members, as he claimed. It was not satisfied he had any political profile.

   12.The RRT noted that the applicant knowingly submitted a false document (the letter of appointment as campaign director) in support of his claims. His willingness to do so raised serious concerns about his credibility and the veracity of his other supporting documents.

   13.The RRT found ‘that the applicant was not a credible witness, He made a series of assertions and, when questioned, simply re-asserted them. The RRT made clear to him its concerns about his oral evidence but he was unable to allay these concerns.

   14.The RRT rejected the applicant’s claim that he had been targeted by the authorities for reasons of his political activism:

   14.1It had already found he had no political profile.

   14.2If in fact the applicant had been investigated for murder, as claimed, it was implausible that his family would not have thought to call their lawyer.

   14.3If the applicant was being detained while investigations were ongoing, it was implausible that the police would simply allow him to leave detention upon payment of a bribe.

   14.4If the applicant did leave detention unlawfully upon payment of a bribe, it was implausible that he remained in the Punjab and later in Delhi for four months before departing, given he had a valid passport and multiple entry visa to Australia.

   14.5If the applicant was facing a murder charge, it was implausible that no summonses had been sent regarding court dates in the nine months since the FIR was allegedly lodged.

   15.In relation to the applicants claim that members of the Badal group of SAD had him removed from a ‘gurdwara’ on two occasions, the RRT did not accept that this constituted persecution on the grounds of religion, or any other Convention reason:

   15.1A gurdwara is a Sikh temple, governed by a temple committee, which is entitled to regulate the proper use of the facility.

   15.2The applicant did not claim, nor was there any evidence to suggest, that he suffered serious harm in being denied the use of the temple for his political purposes.

   15.3There were no grounds to pursue any claim that he was discriminated against within SAD for being a Hindu rather than a Sikh because the faction to which the applicant allegedly belonged (Amritsar) had welcomed Hindus into its ranks since 1999.

Application for review of the Tribunal’s decision

1. On 4 October 2006, the applicant filed an application for review under s.39B of the Judiciary Act. At the first Court date of 31 October 2006, the applicant was granted leave to file and serve an amended application, giving complete particulars of each ground of review relied upon. The applicant complied with this order and filed an amended application on 16 February 2007, which contained the following grounds:

   1. That the Tribunal failed to assess the Applicant’s ‘fears of harm’ suffered according to the Refugee Criteria and misapplied the Applicant’s claims due to following finding: and thereby failing to evaluate the fears as per sec. 91R of the Migration Act 1958:-

   “On the evidence before it, the Tribunal is not satisfied that harm amounting to persecution has befallen the Applicant in the past for a Convention reason. The chance that such harm will befall on him in the reasonably foreseeable future is remote. It follow that the Tribunal is not satisfied that the Applicant has a well founded fear of persecution for a Convention reason. He is not a refugee’

   The Applicant submit that the finding clearly indicates that the Tribunal was aware that there was evidence submitted by the Applicant about he being implicated in a murder case and that he was arrested by the Police in that connection. In addition the Tribunal was aware that the Applicant was forcibly evicted from the several ‘Gurudwaras’ by the Badal Group which information the Tribunal did not rebut. Hence the Applicant submit that such harassments and planned arrests were none other than persecution suffered by the Applicant.

   Wherefore the Applicant submit that the Tribunal failed to consider vital information given by the Applicant while assessing the Applicant’s claims of fear and such avoi-ance of information amounts to a jurisdictional error committed by the Tribunal.

   2. That the Tribunal failed to reach the required satisfaction in terms of section 414 the Migration Act 1958 as to the Applicant’s political opinion under Article 1(A)(2) despite clear oral and written claims, when it concluded:

   “The Tribunal notes that the Applicant knowingly submitted a false document (the letter of appointment as campaign Director) to support his claims. His willingness to do this raises serious concerns about his credibility and about the veracity of his other supporting documents. Indeed the Applicant was not a credible witness. (CB page 107 last para)

   The Applicant submit that the Tribunal made a wrong conclusion that the Party letter of April 2004 appointing the Applicant as a Campaign Director of the Party was in connection of the campaigns for future elections and he said in his claims – ‘People has a great deal of faith in him: people asked his help with their problems. He was very popular. They bestowed titles on him such as “leader” and “village head” After the election – which he had already noted, his Party lost he straightaway started working for the next election” (CB page 105, para 3/4)

   The Applicant submit that the Tribunal misunderstood the Applicant’s evidence and the written claims when branding the Applicant as a ‘fabricator’ of that document whereas the intention of the Party was for the Applicant to build up for the future elections and not the one in 2002 which was already lost by the Party. Wherefore the Applicant submit that the Tribunal misunderstood and misconstrued the Applicant’s claims and therefore made a serious error.

   3. The Applicant further submit that the Tribunal was ‘bias’ when considering the Applicant’s claims because of the following assessment it made:

   “The Tribunal put it to the Applicant that if was knowingly prepared to put one false letter – “the appointment as campaign director’ letter – then there was no reason to accept that any of the other documents were valid. Indeed the Tribunal put it to the Applicant that it was implausible that a lawyer who, according to his letterhead, was an Advocate in the Punjab and Haryana High Courts, would write indicating that his county’s legal system was so poor that the Applicant should stay away rather than defend himself on a false charge”.(CB page 106–last para)

   The Applicant submit that the Tribunal was highly unfair towards the Applicant because of the conclusions of the nature stated above, specially the comments made against the Punjabi lawyer which indicates chat he was prejudiced and biased’ against him. (copied without alteration or correction)

Submissions and reasons

1. The application in this matter was filed in the Court registry on

   
   

   4 October 2006.  The Lawyer’s Certification was signed by Mr Chandra Jayawardena on that date.  Mr Jayawardena had previously appeared with the applicant at the Tribunal hearing as a registered migration agent.  The Court file does not contain a notice of appearance to indicate Mr Jayawardena’s involvement after the original application.  I note this only because the applicant was initially treated as having legal representation and did not have the opportunity to participate in the Court’s free Panel Advice Scheme.

2. The applicant filed submissions on 16 February 2007.  In those submissions is a brief background of his claims.  Under the heading ‘Primary Claims Made By The Applicant’ is reproduced the statement attached to his protection visa application (CB 40-41) and information he provided to the Tribunal during the hearing.  Under the heading ‘Matters Arising Out Of The Hearing’, the applicant indicated that he attended a hearing conducted by the Tribunal on 11 August 2006 and gave answers to questions it raised.  He acknowledged that the hearing was conducted in an inquisitorial manner.  The submissions then reproduce part of the Tribunal decision in its ‘Claims and Evidence’.(CB 104.2 – 104.6)  It also repeats the three grounds of review as pleaded in the amended application.

3. In the applicant’s submissions under the heading ‘Legal Arguments Of The Applicant’ are a number of decisions which he claims supports his argument that the Tribunal failed to carry out its “jurisdictional commitment under s.91R of the Act for ascertaining whether there is a “real chance” of facing serious harm or persecution by the Applicant”. The applicant referred to SZDTQ v Minister for Immigration [2005] FCA 867 at [11] per Branson J:

   The appropriate test for the determination of whether a fear of persecution is well-founded is whether there is a ‘real chance’ of persecution, in the sense of a substantial as distinct from a remote chance (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379).

   The applicant submits that in his case, the Tribunal failed to consider whether there would be a ‘real chance’ that he would be subjected to persecution if he were to return to India.

4. The applicant then referred to SZAYT v Minister for Immigration [2005] FCA 857 at [31] per Wilcox J:

   I agree with what Crennan J said about the consequences of Marshall J’s view. Plainly, persecution is not established merely by proof that somebody has made a statement (the ‘threat’) about an intention to kill the person seeking recognition as a refugee. The relevant decision-maker must evaluate the ‘threat’ and determine whether it amounts to ‘serious harm’ within the meaning of s 91R(2)(a) of the Act. That evaluation needs to take into account all the surrounding circumstances including: the nature of the relationship between the relevant people; the occasion and manner of making the ‘threat’; any immediate effect of the ‘threat’ upon the threatened person; the opportunity (if any) for the threatener to carry out the threat; and so on. Subsequent events may also be relevant, bearing in mind that the ultimate question for the Tribunal is not what has already happened to the protection visa claimant, but what might happen to that person in the future, if he or she returns to the country of nationality.

   The applicant submits that the Tribunal is committed to evaluate the extent of threat to the applicant’s life or “a threat to the person” as per s.91R(2)(a) of the Act.Its failure to do so amounts to jurisdictional error.

5. The next part of the applicant’s written submissions does not address specific grounds of the amended application, but rather takes a general approach to all of the claims and treats them together.   In relation to the Tribunal deciding that all the claims were unreliable, the applicant relies upon Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J:

   In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.

   The applicant submits that the Tribunal did not assess other claims and therefore did not give any reasons whether the claims were real or not.  The applicant further argues that the Tribunal’s failure to consider the other claims amounted to it ignoring the applicant’s claims, and was a jurisdictional error according to Anthony David Craig v The State of South Australia [1995] HCA 58 at [14] quoting Lord Diplock in In re Recall Communications Ltd (1981) AC 374 at 383:

   …If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

1. The applicant in his written submissions contends that the Tribunal came to its conclusion because it found that the applicant was not truthful about one element in his evidence.  Therefore, it refused to accept all his other claims as reliable.  The applicant argues that the Tribunal made a serious error by excluding all of the other relevant evidence and he was denied a fair hearing.  He referred to the Tribunal’s findings and reasons:

   The Tribunal notes that the applicant knowingly submitted a false document (the letter of appointment as campaign director) to support his claims.  His willingness to do this raises serious concerns about his credibility and about the veracity of his other supporting documents.(CB 107.9)

   …On the evidence before it, the Tribunal is not satisfied that harm amounting to persecution has befallen the applicant in the past for a Convention reason.  The chance that such harm will befall him in the reasonably foreseeable future is remote.(CB 108.7)

   The applicant argues that the test used by the Tribunal to conclude that a real chance of future harm would be remote was an incorrect way to determine the test under s.91R. On this basis, he submits that the Tribunal committed a jurisdictional error.

2. The Tribunal decision indicates that a detailed examination was made of the applicant’s claims and evidence he submitted in support of those claims. The Member clearly indicated that she had concerns about the applicant’s testimony and put those concerns to him during the hearing. The end result of this process was that his credibility was not accepted. With regard to serious elements of his claims such as the murder allegations, the Tribunal found that the actions of the applicant and his family were implausible. In particular, their failure to seek assistance from a lawyer or the police. Also, that the applicant’s removal from the Gurudwaras did not demonstrate any element of persecution. Consequently, the Tribunal was not satisfied that the applicant faced “serious harm” resulting in “a threat to his life or liberty”. The Tribunal did not have to apply the test pursuant to s.91R(2)(a) of the Act because it was not satisfied that a threat existed.

3. The applicant’s written submissions do not address grounds two or three and no oral submissions were made during the hearing on these grounds.

4. Mr Hooper’s written submissions argue that all three of the applicant’s grounds amount to an invitation that the Court engages in merits review.  The particulars submitted do no more than challenge the findings of fact made by the Tribunal.  Mr Hooper submits that the Tribunal rejected the applicant’s claims based on its findings of adverse credibility.  It reached these findings based on the applicant’s oral evidence at the hearing.

5. Mr Hooper submits that the applicant’s claim about the date of elections direct contradicts independent country information: Minister for Immigration v NAMW [2004] FCAFC 264 at [71] – [73]. In that case, the Tribunal relied on country information to reject specific claims of the applicants or to otherwise impugn their credibility. The Full Court held that the information adverse to the applicants was general in nature and thus fell within s.424A(3)(a) of the Act such that there was no obligation under s.424A.

6. In respect of the applicant knowingly submitting a false document in support of his claim, Mr Hooper submits that the question of credibility is a factual finding for the administrative decision-maker.  Provided there is evidence which supports a factual finding, no jurisdictional error can be established: Re Minister for Immigration; Ex parte Durairajasingham per McHugh J.

7. Mr Hooper submits that there is no s.424A issue when an applicant expressly refers to and relies on documents he provided to the delegate. The applicant’s protection visa application was accompanied by several documents, letters and a statement. At the Tribunal hearing, the applicant and his adviser stated that they wanted it to consider these documents and the statement. The applicant and his adviser explained to the Tribunal that they did not have any copies to provide to it. So in effect, the documents and statement were before the Tribunal for the purposes of the review. In its ‘Findings and Reasons’, the Tribunal relied on the information of a purported letter of appointment as a campaign director, which was one the documents provided to the delegate and discussed at the hearing. Mr Hooper submits that based on the exchange between the Tribunal member, the applicant and his adviser, this information took on the character of information provided to the Tribunal for the purposes of the application and falls within s.424A(3)(b) of the Act.

8. The Tribunal decision under the heading ‘Claims and Evidence’ records the following in respect of the documents provided to the delegate, and the Tribunal’s direct request for their inclusion in the review:

   At the hearing, the Tribunal indicated to the applicant and his adviser the documents that it had before it (as listed above).  The applicant and the advisoer stated that they wished the Tribunal to have regard to these documents: that is, they were before the Tribunal for the purposes of the review.(CB 103.6)

   Applicant S301/2003 v Minister for Immigration [2006] FCAFC 155 per Heerey, Mansfield and Emmett JJ at [3] states:

   The central issue raised by the appellant is whether the Tribunal failed to comply with s 424A of the Act. Section 424A(1) requires the Tribunal to give to an applicant "particulars of any information that the Tribunal considers would be the reason, or a part of the reason" for affirming the decision under review. Section 424A(3)(b) however excludes from this requirement any information "that the applicant gave for the purpose of the application". "(T)he application" has been held to mean the application for review by the Tribunal, not the initial application to the Department: Al Shamry (2001) 110 FCR 27 (notwithstanding that s 418 requires the Department to forward the applicant’s file to the Tribunal and, as a matter of practice, applicants are told this by the Tribunal).

   Applicant S301/2003 then dealt with three separate items of information that were submited to the delegate and given to the Tribunal for the purposes of that application. The applicant directly requested the Tribunal consider that information. Consequently, s.424A(3)(b) was held to apply. I am satisfied that the comments by the Tribunal above comply with the requirements of the Act and no jurisdictional error arises.

9. Mr Hooper submits that one of the applicant’s claims was that he was removed from a Sikh temple.  The Tribunal considered whether this could constitute persecution for reason of religion or any other Convention ground.  It was not satisfied that it could.  Mr Hooper submits that this was a finding of fact that was open to the Tribunal on the material before it, in particular, the absence of any evidence from the applicant that he suffered serious harm from being denied use of the Temple.  Mr Hooper contends that the determination of whether conduct is sufficiently serious to amount to persecution is a matter of fact and degree for the Tribunal to consider: Prahastono v Minister for Immigration (1997) 77 FCR 260 at 268 and 271 per Hill J; Minister for Immigration v Kord (2002) 125 FCR 68 at [3], [53] – [56]; Das v Minsiter for Immigration (2004) 208 ALR 229 at [23] – [24] per Sundberg J; Minister for Immigration v SZANS [2005] FCAFC 41 at [50] – [53].

10. The applicant raised the issue of his removal from certain Gurudwaras by the Badal Group in the particulars of ground one.  He claims that this exclusion was persecutory.  The authorities submitted by Mr Hooper indicate that the Tribunal must determine the issue as a question of fact which is not a matter for this Court.

11. The other issue that arises under the third ground is bias.  Mr Hooper contends that an allegation of bias is a serious claim and there is no evidence to support it.  The applicant did not suggest whether the claim was one of actual bias or a reasonable apprehension of bias.  The test for actual bias is set out in Sun Zhan Qui v Minister for Immigration (1997) 81 FCR 71 at 127 per Wilcox J:

    …that s476(1)(f) requires an applicant to show "that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case".

    The test for reasonable apprehension of bias is found in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434:

    The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided…

    The applicant has not provided any evidence or made any submissions to support a claim of bias.  A fair reading of the Tribunal decision on its face does not suggst that any element of bias infected the decision-maker’s decision.  This claim of jurisdictional error can not be sustained and should be dismissed.

Conclusion

1. I am satisfied that none of the grounds of review contained in the amended application can be sustained.  On a fair reading of the Tribunal decision it is not evident that any other error not identified by the applicant or his adviser exists.  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 twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  17 April 2007