SZKOF v Minister for Immigration & Anor
[2007] FMCA 1590
•25 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKOF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1590 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution for reason of practice of Falun Gong – procedural fairness – whether Tribunal denied the applicant procedural fairness by denying her the opportunity to be heard in relation to a letter produced at the Tribunal hearing – credibility – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.91X, 425, 474 |
| R v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242; 1 All ER 651 referred to. Rettke v Comcare (unreported, FCA, 26 October 1994 referred to. |
| Applicant: | SZKOF |
First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1341 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 3 August 2007 |
| Date of Last Submission: | 3 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Archibald |
| Solicitor for the Applicant: | Michaela Byers |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1341of 2007
| SZKOF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, asks the court to declare void a decision of the Refugee Review Tribunal signed on 6th March and handed down on 27th March 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant had applied for a protection visa because she feared persecution as a Falun Gong practitioner. The Applicant also asks the Court to remit her application for review of the delegate’s decision to the Tribunal, differently constituted, for further consideration.
Ground of Review
In her amended application, filed in Court on 3rd August 2007, the Applicant claims that the Tribunal committed jurisdictional error by denying her procedural fairness in a relation to a letter from the school committee of the No. 19 Ji Lin School.
Background
The Applicant arrived in Australia on 12th November 2006 and applied for a Protection (Class XA) visa on 24th November. In a statement attached to her application, the Applicant claimed to have taken up the practice of Falun Gong for health reasons. She claimed to have been arrested by the Public Security Bureau when practising Falun Gong in a group and was detained for fifteen days. After her release, she continued to practise and, fearing arrest, she joined a tourist group and left the country. She claimed to have lost her employment at a high school and to left her husband and daughter.
A delegate of the Minister for Immigration and Multicultural Affairs[1] refused her application on 9th December 2006. A delegate of the Minister was not satisfied that the Applicant had a well founded fear of persecution, noting that her claims were “very general, lack specific detail and are internally inconsistent”[2].
[1] Now known as the Minister for Immigration and Citizenship
[2] See Court Book at 55
The Applicant then sought a review of that decision from the Refugee Review Tribunal.
Application for Review by the Refugee Review Tribunal
On 8th January 2007 the Applicant lodged her application for review. She attached to her application a copy of her original statement of 24th November 2006, which had accompanied her original application for a visa.
The Tribunal wrote to the Applicant on 17th January 2007, inviting her to attend a hearing on 22nd February 2007. The Applicant completed a Response to Hearing Invitation form and returned it to the Tribunal, stating that she wished to attend the hearing and would require a Mandarin interpreter.
The Applicant attended the hearing and gave oral evidence. She provided a letter written in Chinese to the Tribunal. Whilst the Applicant did not provide a written translation of the letter, she read it out and it was translated by the interpreter present at the hearing. The translation of the letter, taken from a transcript of the hearing is:
About the decision (SZKOF)[3] sex female, was born on 25th of January 1967. She was employee of the number 19 middle school. She started practising Falun Gong from June of 1999 and on many occasions she spread Falun Gong and didn’t want to change. And with the discussion in, of the discussion of the school committee we decide that, decided to give the penalty to administrative penalty to (SZKOF), Ji Lin City, Fu Man district, education bureau dated 15 of November 2006.[4]
[3] Applicant’s name has been deleted and replaced with Court pseudonym to comply with s.91X of the Migration Act.
[4] Transcript of Tribunal hearing 22 February 2007, pages 19 and 20
The Applicant produced no other documents to the Tribunal apart from her driver’s licence. She did not ask the Tribunal to hear evidence from any witness.
The Tribunal handed down its decision on 27th March 2007.
The Refugee Review Tribunal Decision
A copy of the Tribunal Decision Record appears at pages 84 to 97 of the Court Book. In that decision, the Tribunal considered the claims and evidence under the following headings:
a) Protection visa application
b) Application to the Tribunal
c) Independent Evidence[5]
[5] Court Book 87-94
The evidence from the protection visa application comprised the Applicant’s statement of 24th November 2006, which the Tribunal quoted in full.[6]
[6] Court Book 87
The Tribunal set out an extensive summary of the Applicant’s oral evidence.[7] The Tribunal asked the Applicant about when she had been detained by the Public Security Bureau. The Applicant said that she was supposed to be detained for 15 days but was released after 10 days because her husband paid the sum of 10,000 yuan.
[7] Court Book 87-91
The Applicant complained of nervousness and heart problems, so the Tribunal had a break in the proceedings.
The Tribunal Member asked the Applicant a number of questions about her practice of Falun Gong, both in China and Australia, and her understanding of it. The Member put to the Applicant that her knowledge of Falun Gong was weak:
The Tribunal advised the applicant that the independent information indicated that the concept of the Falun was very important to Falun Gong practitioners and read the applicant an extract on the meaning and importance of this concept within the practise of Falun Gong…
The Tribunal advised the applicant that she appeared to know very little about the practise of Falun Gong. The applicant stated that she is very nervous and very weak.[8]
[8] Court Book at 90
The Tribunal also asked the Applicant about her fear of arrest and the circumstances of her leaving China.
The Tribunal also referred to the letter which the Applicant read out at the hearing and set out an extensive account of the letter’s contents, as translated[9].
[9] Court Book at 91
The Tribunal decision record refers to independent evidence considered by the Tribunal. The evidence relates to Falun Gong and is set out under the following headings:
· Background to Falun Gong
· Guiding Principles
· When and why Falun Gong started to attract government attention[10]
[10] Court Book 92-94
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicant is a national of the People’s Republic of China. Although the Applicant forgot to bring her passport to the Tribunal hearing, she had produced her passport issued by The People’s Republic of China when she applied for a protection visa.
The Tribunal noted the Applicant’s claims that:
a)she was a Falun Gong practitioner in China;
b)as a result of her practice of Falun Gong, the Applicant was detained twice and mistreated whilst in detention;
c)she left China because of her fear of continuing persecution;
d)she was dismissed from her employment as a result of her practice of Falun Gong; and
e)she continued to practise Falun Gong in Australia.[11]
[11] Court Book at 94
However, the Tribunal stated:
The Tribunal does not accept any of the applicant’s claims in relation to her practise of Falun Gong in China or Australia.[12]
[12] Ibid.
The Tribunal then set out its reasons for that finding:
a)Whilst the Applicant was able to state the main principles of Falun Gong, knew the names of the exercises, demonstrated a reasonably thorough understanding of the first five Falun Gong exercises, and knew the name of one of the texts on Falun Gong, the Applicant’s knowledge of Falun Gong was “extremely rudimentary”.
b)The Tribunal did not accept that the Applicant’s inability to articulate anything other than extremely limited information about the Falun, after prompting by the Tribunal, or her lack of knowledge of Zhuan Falun, was consistent with her claim to have been a Falun Gong practitioner in China since 1999.
c)The Tribunal also considered the Applicant’s limited knowledge of the banning of Falun Gong to be highly adverse to her claim to be a member of that organisation. The Tribunal stated that it would have expected any person who was a member of a banned organisation to know considerably more information regarding when and what led to the banning of that organisation.
d)The Tribunal did not accept that the fact that the Applicant was nervous and distressed throughout the hearing explained her extremely rudimentary knowledge of Falun Gong. The Tribunal did not accept that the Applicant’s knowledge was consistent with her claim to have been a practitioner since June 1999.[13]
[13] Court Book at 95
The Tribunal also considered that the Applicant’s claims relating to her 2 detentions and departure from China in 2006 were also highly lacking in credibility. The Tribunal gave these reasons:
a)The Applicant gave inconsistent information about the dates for her detention.
b)The Applicant gave inconsistent evidence in her statement and oral evidence about the number of times she claimed to have been arrested.
c)The Applicant did not mention in her statement a significant factor about her reasons for leaving China.[14]
[14] Court Book at 96
The Tribunal considered that the Applicant gave highly inconsistent evidence between her statement and her oral evidence to the Tribunal about her claims relating to her detention and her reasons for leaving China. The Tribunal accepted that the Applicant was distressed and nervous during the hearing but did not accept that this factor explained the inconsistencies in her oral evidence and in her statement.
The Tribunal concluded that the Applicant learnt some limited information about Falun Gong for the purpose of the Tribunal hearing and purchased a Falun Gong text for that purpose. The Tribunal did not accept that:
a)that the Applicant was a Falun Gong practitioner in China;
b)that the Applicant had practised Falun Gong in Australia;
c)that the Applicant ever distributed pamphlets on Falun Gong in China;
d)that the Applicant ever came to the attention of the Chinese authorities;
e)that she secretly joined a tour group; or
f)that she was of any interest to the Chinese authorities for practising Falun Gong.[15]
[15] Court Book at 97
The Tribunal then specifically referred to the letter the Applicant produced at the hearing:
The Tribunal has considered the document provided to the Tribunal, which the applicant claims is a dismissal document due to her practise of Falun Gong. The Tribunal has not accepted that the applicant practised Falun Gong in China and, it follows, the Tribunal does not accept that she was dismissed in China for that reason. Given those conclusions and the Tribunal’s general findings about the credibility of the applicant’s evidence, the Tribunal does not accept that the document, which the applicant alleges is a dismissal document from the Education Bureau, is genuine.[16]
[16] Ibid.
The Tribunal was not satisfied that the Applicant held any genuine or well-founded fear of any harm for a Convention reason should she return to China and was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 24th April 2007.
Her counsel, Mr Archibald, obtained leave to file in Court an amended application. The amended application claims that the Tribunal committed a jurisdictional error by denying the Applicant procedural fairness in relation to the letter from the school committee of the No. 19 Ji Lin School.
The particulars of that ground are:
a) Failure to provide the applicant with the required opportunity to be heard in relation to the letter;
b) Curtailing the evidence by the applicant in relation to the letter; and
c) In circumstances where the applicant’s claims had not been rejected by stark findings of untruthfulness, relying on the non acceptance of those claims by the Tribunal and ‘general’ findings about credibility to reject the letter as being genuine.
The Applicant’s Submissions
In his submissions, Mr Archibald of counsel referred to the affidavit of his instructing solicitor, Ms Byers, annexing a copy of the transcript of the hearing tapes of the Tribunal hearing. He submitted that the transcript showed that the Applicant confirmed that she had prepared the statement in support of her application by herself. She further confirmed that she had been detained twice. The transcript at page shows the Applicant saying that she was first detained:
That was in May of 2002.[17]
[17] Transcript page 6
The Applicant told the Tribunal that she was detained a second time:
November 2006.[18]
[18] Ibid.
After short break, the Applicant said:
I made a mistake. It was in October, 11th October.[19]
[19] Transcript page 7
Mr Archibald submitted that the Tribunal must observe the practical requirements of fairness appropriate for the exercise of judicial power.[20] The expression “acting judicially” usefully comprehends concepts relevant to the application before the Court (see Australian Broadcasting Tribunal v Bond[21]).
[20] R v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 258; [1994] 1 All ER 651
[21] (1990) 170 CLR 312 at 365 per Deane J
He submitted that the Tribunal only obtains power to make a determination under the Migration Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds (see Minister for Immigration and Multicultural Affairs v Eshetu[22]).
[22] (1999) 197 CLR 611 at [145] per Gummow J
The satisfaction, or lack thereof, as to whether or not the Applicant is a refugee is to be determined reasonably, that is, properly, according tot his principle (Eshetu at [134]-[146] ).
Whilst the Tribunal may disregard purportedly corroborative material where an applicant’s claims have been discredited by comprehensive or stark findings of dishonesty or untruthfulness[23] that did not apply in this case. He submitted that the nature of the findings was that the Applicant’s claims were simply not accepted.
[23] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1 at [49]
Mr Archibald submitted that procedural fairness is denied if a party is not given a reasonable opportunity to make submissions and give evidence.[24] This opportunity was not given to the Applicant in relation to the letter. He submitted that the Tribunal abruptly curtailed the questioning as soon as the Applicant produced the letter from her former employer and read a translation.[25] (NB It is my understanding that the applicant read out the letter in Chinese and it was translated by the interpreter). The Tribunal immediately said:
(Name deleted[26]), I don’t have any more questions for you today.[27]
[24] Mayes v Mayes [1971] 1 WLR 679; Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1998) 30 FCR 49; Rettke v Comcare (unreported, FCA, Sheppard, Jenkinson and Spender JJ, 26 October 1994
[25] Transcript 19-20
[26] Name deleted to comply with s.91X of the Migration Act
[27] Transcript at 20
Mr Archibald submitted that there was no discussion on the provenance of the document yet the Tribunal found it not to be genuine. This was in circumstances where the Applicant had prepared her statement herself promptly after her arrival in Australia, had no assistance from anyone with her application, and was very nervous during the Tribunal hearing.
He went on to submit that the proposition that the document might not be genuine was not put to the Applicant, nor was she given the opportunity to address these concerns by presenting material confirming the provenance of the document (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs[28]). Here there was no finding of fact made by the Tribunal that could ground a conclusion that the document was a forgery (see WAGU v Minister for Immigration and Multicultural and Indigenous Affairs[29]).
[28] (2003) 77 ALD 1; 131 FCR 511 at [54]-[56]; also Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 at 382, 383, and 388; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597 at [52]-[55]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [51]-[56]
[29] [2003] FCA 912
The Tribunal did not deal with the possibility that the letter might be genuine, he submitted.
Mr Archibald went on to refer to the decision in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs[30], where the Full Court of the Federal Court considered the way in which the Tribunal had dealt with a notice of dismissal from the former employer and a letter from the Applicant’s sister. The Tribunal considered that the letter from the former employer would have been easy to manufacture and placed no weight on the letters.
[30] [2004] 80 ALD 568
The Full Court found that:
·The material set out in the documents had to be taken into account by the Tribunal in determining whether there was a chance that the applicant may suffer persecution in the future;[31]
·The Tribunal’s reasons for rejecting the documents revealed that the Tribunal failed to act judicially in respect of the material. It appeared to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that they could have been fabricated, which was not a course open to a Tribunal acting judicially.[32]
·It is a denial of a fair process to purport to dismiss documents from consideration where the material supports an applicant’s case and no ground for that course is provided by the documents on their face or by other facts.[33]
[31] [2004] 80 ALD 568 at 579 [49]
[32] [2004] 80 ALD at [52]
[33] [2004] 80 ALD at [53]
Counsel for the Applicant submitted that the Tribunal decision should be set aside.
The First Respondent’s Submissions
Counsel for the Minister, the First Respondent, submitted that there is no jurisdictional error in the Tribunal’s decision and the application should be dismissed with costs.
Counsel for the First Respondent, Mr Smith, submitted that the letter was rejected because of a total rejection of the Applicant’s credibility. In those circumstances, there was no obligation on the Tribunal to put the Applicant on notice that it may find the letter was not genuine. He referred to WACO v Minister for Immigration and Multicultural and Indigenous Affairs where the Court said at [54]:
[54] Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
As to the Applicant’s second ground, Mr Smith submitted that the ground was based on the assertion that the Tribunal “abruptly curtailed the questioning as soon as the Applicant produced a letter from her former employer and read a translation”. Whilst the Tribunal did not ask the Applicant any direct, closed questions about the letter, Mr Smith submitted that the Tribunal was not obliged to do so. Further, it was not the case that the Tribunal prevented the Applicant from giving evidence about the letter. It was the Tribunal who prompted the Applicant to produce and read out the letter in the first place[34] and said after the letter had been translated:
(Name deleted), I don’t have nay more questions for you today, Is there anything more that you would like to tell me today that you think is relevant/ Even if I haven’t asked that question, is there anything that you think that is relevant that I haven’t asked or that you would like to tell me?[35]
[34] Transcript 19
[35] Transcript 20
Mr Smith submitted that there was nothing in the evidence to suggest that the Tribunal limited the Applicant’s ability to give evidence or present arguments.
As to the Applicant’s third particular, where the Applicant’s claims had not been rejected for “stark untruthfulness”, Mr Smith submitted that this ground appeared to have two streams:
i)That there was no finding of fact that the document was a forgery; and
ii)That the principles discussed by the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs apply.
As to the first stream, Mr Smith submitted that it relies on the decision of French J in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs. In that case, however, the conclusions of the Tribunal in respect of the Applicant’s credibility had no direct bearing on its consideration of the documents in question. In the present case the finding of credit was the immediate and direct reason for the rejection of the letter, and that finding was sufficient to provide a rational basis for that rejection (See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002).
As to the “second stream” of the Applicant’s argument, Mr Smith submitted that in this case there were strong findings of untruthfulness. The Tribunal did not accept anything that the Applicant had said in support of her claim apart from her nationality. This factor is sufficient to distinguish the decision in WAIJ.
Conclusions
The Applicant’s case is that the Tribunal fell into jurisdictional error by denying the Applicant procedural fairness in relation to the letter from the school committee of the high school where she worked. The Tribunal, it is submitted, denied the Applicant procedural fairness by:
a) failing to provide the applicant with the required opportunity to be heard in relation to the letter;
b) Curtailing the giving of evidence by the applicant in relation to the letter; and
c) In circumstances where the applicant’s claims had not been rejected by stark findings of untruthfulness, relying on the non acceptance of those claims by the Tribunal and ‘general’ findings about credibility to reject the letter as being genuine.
Dealing with the first claim – Failing to provide the applicant with the required opportunity to be heard in relation to the letter – the Applicant’s solicitor has very properly provided an affidavit to which a transcript of the Tribunal hearing has been annexed.
The discussion between the Tribunal Member and the Applicant about the letter took place near to the end of the hearing and commences on page 19 of the transcript:
Tribunal Member: You have got that letter there, would you be able to read to me what it says, the letter?
Applicant: This one?
Tribunal Member: No, the letter that you’ve got.[36]
[36] Transcript 19
The Applicant then proceeded to read out the contents of the document which were translated from Chinese into English by the interpreter. After the Applicant had finished reading out the letter, the Tribunal Member said:
Tribunal Member: (Name deleted), I don’t have any more questions for you today. Is there anything more that you would like to tell me today that you think is relevant? Even if I haven’t asked that question, is there anything that you think is relevant that I haven’t asked or that you would like to tell me?
Applicant:Not really. I just hope that Australian Government can give me the protection visa. I really miss my husband and my daughter and also my parents because I cannot return to China now, I cannot see them.[37]
[37] Transcript 20
In my view, the Tribunal Member’s questions should be taken at face value and given their ordinary English meaning. The Tribunal Member asked the Applicant twice if there was anything more that the Applicant thought was relevant, whether or not the Tribunal Member had asked her any questions about or not. It was open to the Applicant to say whatever she wished to say about the letter, or about anything else.
It was not necessary for the Tribunal Member to express any doubts about the letter at that stage. It is well established that a Tribunal Member is not required to disclose his or her thought processes to the Applicant during the course of the hearing.
In any event, as counsel for the First Respondent submitted, the Tribunal rejected the letter because the Tribunal rejected the Applicant’s credibility. There was no obligation on the Tribunal to put the Applicant on notice that it might not accept that the letter was genuine (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs at [54]. This is a case where the findings of fact turned on the credibility of the Applicant.
I am not satisfied that the Tribunal failed to provide the Applicant with an opportunity to be heard in relation to the letter. There is no jurisdictional error.
The second part of the Applicant’s claim is that the Tribunal erred by curtailing the giving of evidence by the applicant in relation to the letter.
The Tribunal Member’s statement to the Applicant quoted at [55] above does not appear to me to be an “abrupt” curtailment of the hearing. The Tribunal Member made it clear to the Applicant that she, the Member, had no more questions to ask, but that did not mean that the hearing was at an end. The Tribunal Member was giving the Applicant the opportunity to say anything that the Applicant considered to be relevant, whether or not the Tribunal had asked the Applicant any questions about the subject.
The Tribunal gave the Applicant an opportunity to say whatever she felt was relevant about her case. The Applicant chose not to take that opportunity.
I am not satisfied that the Tribunal curtailed the giving of evidence by the Applicant in relation to the letter. There is no jurisdictional error.
The third part of the Applicant’s claim is that the Tribunal committed a jurisdictional error in circumstances where the applicant’s claims had not been rejected by stark findings of untruthfulness, relying on the non acceptance of those claims by the Tribunal and “general” findings about credibility to reject the letter as being genuine.[38]
[38] Should not that to reject the letter as not being genuine?
The fact is that the Tribunal comprehensively rejected the Applicant’s claims on the basis of credibility:
The Tribunal does not accept any of the applicant’s claims in relation to her practise of Falun Gong in China or Australia.[39]
The Tribunal also considers that the applicant’s claims relating to her 2 detentions and departure from China in 2006 were also highly lacking in credibility.[40]
The applicant also claimed that she did not put everything in her statement because she did not know the system and did not have enough ‘energy’ to write everything in her statement. The Tribunal does not accept that the applicant would not put significant details relating to her claims to be a refugee in her statement because of these factors. As such, the Tribunal does not accept that the applicant would omit to mention such significant factors in her statement relating to her claims to be a refugee if they had occurred as claimed[41].
[39] Court Book at 94
[40] Court Book at 96
[41] Emphasis added; Court Book 96
These findings show that the Tribunal has rejected the Applicant’s entire claim, except as to her nationality. Whilst counsel for the Applicant takes issue with the Tribunal’s statement about “the Tribunal’s general findings about the credibility of the Applicant’s evidence” in not accepting the genuineness of the letter, it is clear that the Tribunal rejected the letter because it had already rejected the Applicant’s entire case on credibility grounds.
I am not satisfied that the Tribunal fell into error in rejecting the genuineness of the letter on the basis of its rejection of the Applicant’s entire case on credibility grounds.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. There are no grounds to declare the decision void or to remit the application to the Tribunal by way of an order in the nature of mandamus.
The application will be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 September 2007
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