SZQBN v Minister for Immigration
[2014] FCCA 434
•10 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQBN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 434 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – where applicant provided Tribunal with medical certificate in relation to psychological condition – where Tribunal accepted certificate but gave it little weight due to credibility findings – whether, because of condition, applicant unable to present his case properly – whether Tribunal required to make further inquiry about applicant’s condition – whether Tribunal failed to comply with provisions of s.425 of Migration Act 1958 (Cth) – whether medical report should have been taken into account independently of credibility findings – where Tribunal relied on a case note indicating that a letter informing the applicant of the remittal of his case from the Federal Magistrates Court to the Tribunal was sent to both the applicant and, in error, a third person – whether the case note fell within the requirements of s.424A(1) of the Act. |
| Legislation: Migration Act 1958 (Cth) ss.36A(2)(aa), 424A, 425 |
| Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534 MZYHS v Minister for Immigration [2010] FMCA 417 SZOPV v Minister for Immigration and Citizenship [2012] FCA 244 Minister for Immigration and Citizenship v SZRAI (2009) 259 ALR 429 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 |
| Applicant: | SZQBN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 992 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 25 February 2014 |
| Date of Last Submission: | 25 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr W G Flynn with Mr P Bodisco |
| Solicitors for the Applicant: | Sweeney Tiggemann Solicitors |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondents’ costs assessed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 992 of 2013
| SZQBN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons relate to an application for judicial review of a decision of the Refugee Review Tribunal made on 8 April 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The Tribunal described the applicant’s claims to be a person to whom Australia owed protection obligations in its findings and conclusions at [188-193] CB473:
“The applicant claims to fear that he is being blamed by the Chinese government for the misappropriation of funds from the TAO where he worked, and which provided funding for various purposes with the objective of improving the relationship between the PRC and Taiwan. He claims that an arrest warrant has been issued for him which falsely alleges that he has assaulted people.
He will be charged with disclosing government secrets and undermining the stability of mainland China.
He has applied for a protection visa which is treason under Chinese law and the Chinese government knows about it.
Australia has acknowledged that he has a Taiwanese passport in the Australian Federal Court and the Federal Magistrates Court. The Chinese have said that he is a Taiwanese spy.
He will be arrested, detained and punished “up to the death penalty for something” that he did not do. He is afraid of the National Security Department, the PSB and the central government if he returns to China.
The Tribunal also takes into account claims he made when he was interviewed after he returned to Australia from Fiji and before he applied for a protection visa. A confidential unlawful warrant has been issued against him two months after he found his daughter. If he returns to China he will treated [sic] unjustly. The other side will bribe the policeman. He will lose his daughter and property. He claimed to belong to a particular social group subject to the Chinese judicial system which is not independent and is subject to arbitrary decisions and he may face the death penalty on return to China.”
The applicant also claimed that a letter dated 17 August 2012, with its enclosures, was sent by the Tribunal not only to himself but also to another person with the same name. The applicant requested the documents be returned to him but the recipient refused. In regard to this claim, the Tribunal stated at [215-217] CB477:
“The Tribunal has taken into account the claim that the applicant’s information has been provided to another applicant in the Tribunal by mistake and that “This man could be working for the Chinese government, or know someone who does”, and in any event, “it is still a serious breach and makes me more fearful for my personal safety”.
The Tribunal has looked through the Tribunal files and has found a case note that indicates a letter dated 17 August 2012 advising that the Federal Magistrates Court has remitted the application for review to the Tribunal for reconsideration was sent incorrectly to a person of a similar but different name at an Ashfield address. The case note explained why that the [sic] error occurred. The only identifying feature in the letter that related the matter to the applicant was the file number. Absent information in this decision that is published which identifies the applicant, the Tribunal does not accept that the error would have the possibility of identifying the applicant. The Tribunal will note that this decision is not to be published. It is therefore not satisfied that there is any foundation for the applicant’s claim in relation to this error having been made.
The Tribunal is not satisfied that the fact that the applicant has applied for a protection visa in Australia is known to or will become known to any person or body such that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to China, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.”
The letter of 17 August 2012 is found at CB382 and the major attachment is found at CB383. The letter is addressed to the applicant’s migration advisor. It is in the following form:
“RECONSIDERATION OF APPLICATION FOR REVIEW – MR Z W
I am writing about the application for review made by Mr Z W in respect of a decision to refuse to grant a Protection (Class XA) visa.
The Federal Magistrates Court has remitted the application for review to the tribunal for reconsideration.
The enclosed documents are given to you as the authorised recipient of the applicant. As the authorised recipient, the tribunal is required to give you, instead of the applicant, any document that it would otherwise have given to the applicant.
By providing you with these documents, the tribunal is taken to have given the information to the applicant. You should ensure that the applicant is informed of this letter as soon as possible.
Please note that the case has been assigned a new case number, 1209135. You should use this number when you contact us.
If you have any questions about this letter, please contact me on the number listed below, or telephone the tribunal’s national inquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on […].
Yours sincerely,
Robert Jessop
TRIBUNAL OFFICER
Telephone: [..]
Attachments
Letter to applicant with attachments
cc: Mr ZW, [address 1]
Mr ZW, [address 2]”
At CB383 there is found a letter directly addressed to the applicant, which is in the following form:
“Mr Z W
[address]
Dear Mr W
RECONSIDERATION OF APPLICATION FOR REVIEW – MR ZW
I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XA) visa.
The Federal Magistrates Court has remitted the application for review to the tribunal for reconsideration.
Your case has now been re-allocated to a member of the tribunal. The member now wishes to do one or more of the following:
Seek further information
Seek your comments or response to particular information.
Invite you to attend a hearing
Make a decision
The tribunal will send all future communications to your previous authorised recipient, unless you advise us otherwise. I have attached forms which you can use if you wish to change your address details or to appoint or cancel a representative or authorised recipient.
I note that you have recently notified a change of residential address to the Department of Immigration. It is important that you tell the tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). That information should be provided to the tribunal in writing before 24 August 2012.
If you have engaged new representation or authorised recipient, it is also important that you inform the tribunal of their details also. You must keep them informed of any change in your contact details. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice.
Please note that your case has been assigned a new case number, […]. You should use this number when you contact us.
If you have any questions about this letter, please contact me on the number listed below, or telephone the tribunal’s national inquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on […].
Yours sincerely,
Robert Jessop
TRIBUNAL OFFICER
Telephone: […]
Attachments
‘Appointment of Representative/Appointment of Authorised Recipient’ form.
‘Change of contact Details’ form
Multilingual advice
R10 Refugee Review Tribunal – The Review Process”
In regard to this incident, the applicant stated in a statutory declaration of 4 December 2012 at [[27] CB432]:
“During this legal process for my applications, my personal information has been released, in breach of my privacy and compromising my safety. The first breach was by the Refugee Review Tribunal, when they sent all my documentation to another Chinese person with a similar name to mine. When this man was contacted to return the documents, he refused. We do not know who this man is or who he works for, this is a serious breach and makes me feel very afraid. This man could be working for the Chinese Government, or know someone who does. But even if he does not, it is still a serious breach and makes me more fearful for my personal safety.”
The applicant also submitted through his immigration advisors a psychologist’s report dated 11 October 2012 from Dr Mark Stephen de Teliga. In regard to that report, the advisors wrote a letter of 15 October 2012 requesting a further hearing after the applicant had not attended the originally scheduled hearing because the hearing invitation had not been received:
“(b) Consideration for a later Hearing Date.
We ask that you consider this application due to the state of psychological health of Mr W. Attached please find a letter from Mr W’s treating psychiatrist, attesting to the Mental well being of Mr W. Due to these psychological issues we respectfully submit that this renders Mr W unable to appear before a Tribunal Hearing at this time. We seek the Tribunal’s indulgence and would ask for consideration of at least 1 month to allow Mr W more time for treatment and recovery.” [CB400]
Dr de Teliga is neither a medical practitioner nor a psychiatrist, he is a psychologist with a PhD.
The report states:
“I have been assisting D W in a psychological capacity for the past 3 weeks or so.
Part A
I have been told the following by D:
1. D is approximately 40 years of age.
2. D is a Chinese National.
3. D has worked in Hong Kong and mainland China for most of his working life.
4. D worked in mid-senior levels of the Chinese government, being promoted well, and lived relatively comfortably throughout his career.
5. D’s father was a senior Chinese government official.
6. When the revolution occurred D’s father lost his authority, and D lost his “protection”. D was then accused of theft and wrongdoings, causing him to have to escape from China.
7. D has a daughter who is 6 years old now, and who is in constant danger from the authorities, who would like to hold her in order to get D to return to China.
D fears for his life, and especially for his daughter’s life.
Part B
My meetings with D have led me to believe the following:
1. D is telling the truth about his fears.
2. D’s fears are genuine, not imagined.
3. D’s fear for his daughter is genuine, and virtually paralysing him.
4. D’s fears for his own safety are real.
5. D is genuinely concerned that if he returns to China he will be incarcerated or worse.
6. D requires on-going psychotherapy / counselling.
7. D requires constant assurance that his daughter is safe.
8. D’s psychological state is that of a deeply distressed, anxious and fearful man.
Part C
In my opinion, D W is suffering from a severe psychological disorder… dissociative stress.
This stress causes Mr W to become angry, to be often confused, and often not capable of making rational decisions regarding his own situation.
Mr W is also suffering from a form of exogenous depression, but because of his fears will not accept medication, in the belief that medication will be administered in order to make him pliable and liable to be incarcerated in this country, just as he fears he would be in his homeland, China.
Mr W requires assurances that his daughter’s safety, and his own, can be provided from what he regards as a likely oppressive and highly dangerous environment in China.
At this stage I can only recommend further sessions with D W, and continued attempts to get him to agree to anti-depressant medication.”
At the hearing before the Tribunal, the applicant’s claims were discussed with him, and various inconsistencies in his evidence over the period from his original detention at the airport upon his arrival in Australia from Fiji until that hearing with the Tribunal were raised. The Tribunal concluded that it did not find the applicant to be a credible witness. It gave its reasons for so finding between CB473 and 477. At [219] CB478 the Tribunal states:
“In making the above findings, the Tribunal has taken into account the several reports about the applicant’s mental health by health professions. The Tribunal gives little weight to them because they rely on what the applicant or his representative on his instructions, have told them in order to give an opinion. Having found the applicant’s evidence not credible, the Tribunal does not accept that his reported symptomology and factual background is credible.”
There was filed in court at hearing an amended application. This application had three grounds. Ground one was:
“The RRT has breached section 425 of the Migration Act.
Particulars
(a) at paragraph [219] of the decision, the Tribunal gave “little weight” to reports about the Applicant’s mental health by health professionals;
(b) By so rejecting the medical evidence before the tribunal, the Applicant was denied a fair opportunity to present his case to the Tribunal because he was suffering from mental impairments or because the Tribunal did not investigate and consider whether that was the situation.”
There are two clear complaints made within this ground. First, that because of the applicant’s mental condition, he could not present his case properly and thus did not obtain a hearing which fully complied with the provisions of s.425 of the Migration Act 1958 (Cth):[1]
[1] The Act.
“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.”
The second part of this ground is that the Tribunal did not take steps itself to investigate the applicant’s mental condition.
The court is of the view that this ground is unsustainable for a number of reasons. First, the Tribunal did not reject the medical evidence, it merely gave it little weight. This is the situation that occurred in Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534, a matter considered by Kenny J on appeal from this court: MZYHS v Minister for Immigration [2010] FMCA 417. The headnote adequately explains the context:
“The evidence put forward to the second tribunal included a psychologist’s report. This report stated, among other things, that the respondent exhibited severe trauma and depressive symptoms. In its decision, the second tribunal referred to the evidence about the psychological condition, including the report. However, the second tribunal found that the respondent was not a credible witness and on the basis of this finding, it rejected the respondent’s claims of past persecution. On appeal, the federal magistrate found that the second tribunal had erred by failing to take into account a relevant consideration, notably, the corroborative effect of the report on the evidence presented. The minister appealed against this decision.”
Her Honour gave full reasons for rejecting the argument accepted at first instance, at [31]-[33] :
“[31] In substance, the tribunal rejected the first respondent’s claims because of its “major concerns” with the first respondent’s account, which led the tribunal to conclude that the first respondent was not a credible witness. Although I have not set out these concerns in these reasons, the tribunal in fact explained them in some detail. In this circumstance, it was open to the tribunal to determine that, in so far as the Stewart report and the other psychological reports tended to corroborate the first respondent’s account, they were to be accorded little, if any, weight. Put another way, it was for the tribunal to determine the weight to be given an expert psychologist’s opinion, having regard to the other evidence before it that supported or undermined the supposed facts on which the opinion was said to be based: see Cong Tam Dang v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 29 ;[2000] FCA 73 at [83]–[87] per Drummond, Matthews and Mansfield JJ. In this case, the corroborative effect of the evidence constituted by the Stewart report (and the other psychological reports) was significantly diminished by the tribunal’s “major concerns” about the first respondent’s account and, most particularly, its adverse finding about the first respondent’s credibility. Such an approach does not disclose jurisdictional error: compare Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 ; 115 ALD 294 ; [2010] FCAFC 50 at [35]–[40] per North and Lander JJ; and Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 ; 73 ALD 1 ; [2003] HCA 30 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ.
[32] In any case, even if the tribunal had failed to take into account that the first respondent’s claims of past persecution were consistent with the psychological condition set out in the Stewart report, there would have been no jurisdictional error. This failure would not amount to a failure to take into account a consideration that the tribunal was bound to take into account. Rather, it would constitute a failure to address a piece of evidence before the tribunal. As North and Lander JJ said in SZNPG at [28] and [29]:
[28] [A]n error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim.
[29] In our opinion, the RRT did not fall into jurisdictional error in this case. It weighed a particular piece of evidence against other evidence, but was not persuaded by that particular piece of evidence enough to alleviate its concerns in relation to the whole of the first respondent’s evidence. [Citations omitted.]
[33] The same approach had generally been adopted on other occasions where a failure to consider an expert psychologist’s report has been alleged. For instance, in Subramaniam v Minister for Immigration and Multicultural Affairs [2002] FCAFC 255, a Full Court (constituted by Drummond, Cooper and Finkelstein JJ) considered whether an almost identical failure on the tribunal’s part in that case amounted to reviewable error and concluded that it did not. See also Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; VMAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 21 at [27]–[29]; VGAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1607 at [34]; and Rezaei v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1294 at [57].
In regard to the complaint that the Tribunal did not make any further inquiry, the court would follow the views expressed by Collier J in SZOPV v Minister for Immigration and Citizenship [2012] FCA 244, where her Honour quoted in full what fell from the High Court in Minister for Immigration and Citizenship v SZRAI (2009) 259 ALR 429 at [25-26], which limited the type of inquiries that a court might expect a Tribunal to make to those which constituted:
“an obvious inquiry about a critical fact the existence of which is easily ascertained.”
Her Honour continued at [30]:
In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Gummow J referred specifically to observations of the Court in SZIAI in finding that, in the circumstances of SZGUR, no obligation existed in the Tribunal to obtain a medical report (at [87]).
Before concluding at [31]:
“This Court has also considered the interaction of s 425 and s 427(1)(d). In Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, Keane CJ observed:
20 In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20]–[25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
...
22 None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. In those cases where the applicant is not disabled by his psychological deficits from giving evidence and presenting arguments, the hearing required by s 425 of the Act is not nullified by a mere failure by an applicant to present his case in the best possible light.”
Her Honour also noted relevantly to the instant case at [36-37]: set out
“It is important that the Courts be alert to circumstances where a litigant suffers from a mental illness and to whether that litigant is provided with a fair hearing. However in this case the reasoning of the Federal Magistrate is, with respect, sound. I am not satisfied that the Tribunal was duty-bound to conduct additional investigation into the mental health of the appellant pursuant to s 427(1)(d) of the Act. The Tribunal was already on notice that the appellant suffered from schizophrenia and took this into account in its dealings with the appellant. Nonetheless, the Tribunal was satisfied that the appellant was capable of giving evidence and presenting her case at a hearing before it. I am not satisfied that the Tribunal constructively failed to exercise its jurisdiction under s 425 when it did not exercise its inquisitorial power under s 427(1)(d) of the Act.
Finally, to the extent that the appellant contends that she was unfit to attend the hearing before the Tribunal – a point not specifically pleaded by the appellant but suggested by the appellant’s submissions – the decision of Branson J in NAMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 is of particular relevance. In that case her Honour held that, in the context of a claim that the Tribunal had failed to issue an invitation in accordance with s 425, it was for the appellant to establish that he or she was unfit to attend the hearing. Her Honour also found that the Court should accord weight to the view of the Tribunal in this respect.”
The applicant here did not go so far as to say that he was unable to take part in the Tribunal hearing in a meaningful way. The court has some difficulty in comprehending exactly what was being said that constituted a jurisdictional error on the part of the Tribunal if it was not that. In any event, the court is satisfied, from the authorities quoted above, the constituents of the applicant’s argument are untenable.
Ground 2 is in the following form:
“The RRT has failed to take a relevant consideration into account.
Particulars
In determining the credibility of the Applicant, the RRT has failed to take into account a relevant consideration – namely the possible explanation for inconsistencies in the claim advanced by the Applicant during the hearing as contained in the medical before the Tribunal.”
The applicant maintains that the Tribunal should have considered the medical report independently of the credit findings. If it had done so, it could have come to the view that the applicant’s mental condition provided a plausible explanation for credibility findings that the Tribunal would otherwise have made. In other words, it may not have come to those conclusions about the applicant’s credibility if it had considered the reports and taken them properly into account.
The difficulty that the applicant has with this ground is that he cannot establish the Tribunal failed to consider the possible explanation for the inconsistencies was the medical condition evidenced in the psychologist’s report and other medical material. The Tribunal most certainly considered the material and did not dismiss it. Looked at in this way, the ground is really one seeking merits review by suggesting that another Tribunal to which the matter might be referred would come to that conclusion. Merits review is impermissible in this court. The respondent argues that the Tribunal took the evidence into account but did not accept that the applicant’s reported symptomology and factual background was credible. There was no obligation on the Tribunal to take into account diagnoses based upon a patient’s history that the Tribunal did not consider credible. This ground must also fail.
Ground three states:
“The RRT has breached section 424A of the Migration Act.
Particulars
(a) At paragraph [216], the Tribunal relied upon a case note that indicates that a “letter dated 17 August 2012 advising that the Federal Magistrates Court has remitted the application for review to the Tribunal for reconsideration was sent incorrectly to a person of a similar but different name at an Ashfield address”;
(b) Clear particulars of the information contained in the case note were not given to the Applicant, nor was he invited to comment on or respond to it.”
The case note which is referred to in the Tribunal decision record, extracted at [3] herein, (or as the applicant would have it, the case note alleged to be the one referred to) is found as exhibit 1, it is in the following form:
“Case Note 8057121
Case Number: 1209135 State Processed: NSW
Primary Review Applicant:
Mr Z W
Gender: Male DOB: 28/01/1972
Case Note info:
Date and Time: 29/08/2012 09:34:00 AM
User: Robert Jessop
Note Type: Case Note
Comments:
Letter sent to Ashfield address was incorrectly addressed as the address (obtained from DIAC records) was confused with another tribunal applicant with a similar name and dob (12011982). Both Members appraised of the situation and correct ICSE and movements records placed on file.”
For the case note to call within s.424A(1) it must “in its terms constitute a rejection, denial or undermining of the applicant’s claims to be owed protection obligations”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609[2] at [17], and Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 at [22]. The case note is supportive of the applicant’s claim that he would suffer harm if he returned to China because of his identification as an asylum seeker. It corroborates his argument that his identity would become known to the Chinese authorities. It is thus not a document that would come within the terms of s.424A(1). The applicant argues that things have changed since SZBYR by the inclusion of complementary protection under s.36A(2)(aa) of the Act, but the court is unable to see the matter in this way. Complementary protection is just another form of protection to which the Migration Act and the authorities explaining it apply. The applicant’s claim is that for persons of his status within China, an application for a protection visa is an act of treason. The discovery of his identity could constitute grounds for a sur place claim within the Convention ground of imputed political opinion. But even if that was not the case and the only claim the applicant had was one under s.36A(2)(aa), there is no authority that says that s.424A, as interpreted in SZBYR does not apply. This ground must also fail.
[2] ‘SZBYR’
In these circumstances the court is unable to grant the applicant the review he seeks. The application is dismissed. The applicant must pay the respondents’ costs assessed in the sum of $6,646.00.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 10 March 2014
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