SZTPD v Minister for Immigration

[2015] FCCA 3109

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3109

Catchwords:

MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal complied with ss.414 and 415 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 414, 415, 476, 499

SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552
SZTMD v Minister for Immigration and Border Protection [2015] FCA 150
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Kuldip Ram v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1995] FCA 1333; (1995) 130 ALR 314
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant: SZTPD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2970 of 2013

Judgment of: Judge Nicholls

Hearing date: 9 July 2015

Date of Last Submission: 9 July 2015

Delivered at: Sydney

Delivered on: 23 November 2015

REPRESENTATION

Counsel for the Applicant: Mr J C Lee

Solicitors for the Applicant: Ren Zhou Lawyers

Counsel for the Respondents: Mr M P Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 29 November 2013 and amended on 31 July 2014 and further amended on 14 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2970 of 2013

SZTPD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 November 2013 and amended on 31 July 2014 and further amended on 14 November 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), now the Administrative Appeals Tribunal, made on 29 October 2013 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Evidence Before the Court:

1. The evidence before the Court is as follows:

   1)A bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

   2)The applicant’s affidavit of 12 June 2015 ([2] and the transcript of the hearing before the Tribunal at annexure “A” were not read into evidence). No objection to the remainder.

   3)The affidavit of David John Geyer of 8 July 2015. No objection by the applicant. Read into evidence.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 14 February 2011 as the holder of a student guardian visa. Her son was in Australia as a student. She applied for a protection visa on 9 May 2012 (CB 1 to CB 30). The applicant provided a written statement with her protection visa application (CB 27 to CB 30).

2. In essence, the applicant’s claims to fear harm on return to China were that she was a Buddhist follower of the Dalai Lama and had visited Tibet.

3. The delegate refused the grant of the protection visa on 6 December 2012 (CB 49 to CB 71). The delegate found that she was not an adherent of the Tibetan Buddhist faith, rejected key aspects of her factual claims, and found that she had “fabricated a scenario to support her claim that she is a refugee…” (CB 68.7).

4. The applicant applied to the Tribunal for review of the delegate’s decision on 2 January 2013 (CB 72 to CB 77). She attended a hearing before the Tribunal on 21 September 2013 (CB 80 to CB 81).

5. The factual background to her claimed fear was that she had grown up in a Buddhist town and become interested in Tibetan Buddhism in 1995 (CB 27). She visited Tibet for the first time in 2009 (CB 28). She claimed that she and her son returned to China from Australia in March 2012. She and her son visited Lhasa in Tibet to pray for her sick father-in-law and, as a result, came to the adverse attention of Chinese authorities because of an incident on 28 March 2012 involving a photograph taken by her son (CB 28 to CB 29).

The Tribunal

1. The Tribunal affirmed the delegate’s decision to refuse the grant of a protection visa to the applicant (CB 109 to CB 117). The Tribunal found that the applicant’s claims lacked credibility. The Tribunal further found that the applicant’s account of what occurred in Lhasa on 28 March 2012 changed during the course of the application process, both before the delegate and the Tribunal. Even further, that she has raised new aspects of this claim at the Tribunal hearing.

2. The Tribunal found that the applicant had embellished “her claim of assaulting the police” ([24] at CB 113). In seeking to explain discrepancies in her account, the applicant explained she was “misinterpreted” before the delegate, and had not been permitted to give details. The Tribunal rejected this explanation ([24] at CB 113 to CB 114).

3. The Tribunal also had doubts about the claimed incident because of photographs the applicant had presented to it of her visit to Lhasa. The Tribunal noted at the hearing that these did not include the photograph said to have been taken by her son that was said to have “triggered the incident” with police. She provided photographs taken before and after the claimed incident ([25] at CB 113 to CB 114).

4. The Tribunal asked the applicant to submit the photograph taken by her son, which was said to have led to the incident with the police in Lhasa. That is, the photograph which she said “was taken by her son of her standing by the gate of Dazhou temple after she prayed there, when behind her the police were taking a person away” ([25] at CB 113 to CB 114).

5. She provided the photograph to the Tribunal after the hearing. The Tribunal found that the photograph did not depict the police leading a person away. Ultimately, the Tribunal found the claimed incident was untrue, and it did not accept that there had been any altercation with the police ([25] at CB 113 to CB 114).

6. The Tribunal also found that the applicant gave two other explanations as to why the Chinese authorities were interested in her, apart from the March 2012 incident. The Tribunal found these were unconvincing.

7. The first was that the authorities suspected her of “bringing foreign influences…because she has been abroad”. The Tribunal did not accept that the relevant authorities in China would have known she was abroad ([26] at CB 114).

8. The second was that after she visited the temple in Lhasa (“Living Buddha”) two Tibetan Buddhists set themselves alight in Lhasa on 29 and 30 March 2012. The Tribunal rejected the claim that this led to the authorities investigating her. It referred to a US State Department Report which stated that an incident of self-immolation had occurred on 27 May 2012 ([27] at CB 114 and see footnote 1). The Tribunal rejected her explanation that there had been other instances of

   
   

   self-immolation and the authorities had covered these up (that is, on 29 and 30 March 2012). The Tribunal preferred information from the US State Department, which it said was more reliable than the applicant’s information ([27] at CB 114).

9. The applicant had claimed that she was of interest to the authorities and that her family home in China was visited by the local authorities. The Tribunal reasoned that if she had been of such interest then she would not have been able to leave China after such a visit ([28] at CB 115).

10. After this evaluation of her claims and evidence, the Tribunal stated ([29] at CB 116):

    “The Tribunal finds that the applicant has not been truthful in her evidence and considers that she lacks credibility. It thus has significant doubts as to whether she is a Tibetan Buddhist and genuinely considers the Dalai Lama her spiritual leader.”

11. In this latter regard, the Tribunal noted she had provided evidence of her Buddhist activities in Australia. It disregarded this pursuant to s.91R(3) of the Act for the purposes of the criterion at s.36(2)(a) of the Act ([31] at CB 116). The Tribunal found that, at its highest, the applicant could only be said to have an interest in Tibetan Buddhism. It found that such interest would not give rise to serious harm ([32] at CB 116 to CB 117).

12. The Tribunal found that, having dismissed the factual basis of her claim, what remained was that she would not be of interest to the Chinese authorities if she were to return, and would not be forced to write a “confession” as she had claimed. The Tribunal also found that she would not be at risk of significant harm and, further, that her activities in Australia, that is, her limited involvement in Buddhism, would not bring her to the attention of the Chinese authorities ([33] – [34] at CB 117). The Tribunal, therefore, found that she did not satisfy the criteria at s.36(2)(aa) of the Act.

Application Before the Court

1. While the further amended application pleaded two grounds, the second was abandoned before the Court. The sole ground is:

   “The second respondents decision dated 29 October 2013 was affected by jurisdictional error in that the second respondent failed, pursuant to its obligations in section 414 and/or s415 of the Migration Act (Cth) 1958 (‘the Act’), to comply with the mandatory condition of the exercise of the decision-making power which was to properly and fully review the decision of the first respondent according to law.

   Particulars of Ground

   (a) The second respondent did not refer to its actual reasoning, consideration or decision in respect of its obligation pursuant to s499 (2A) of the Act to comply with Ministerial Direction No: 56 dated 21 June 2013 and the materials therein.

   (b) The second respondent did not identify what materials it had to consider pursuant to Ministerial Direction No: 56.

   (c) The second respondent having identified the requirement to consider the materials set out in the Ministerial Direction No: 56 did not discharge its obligation by failing to have regard to and failing to consider the relevance or otherwise of those materials and failing to give reasons to that effect.

   (d) The second respondent failed to inquire, or openly inquire in the decision, about whether a country information produced by the Department of Foreign Affairs and Trade for the People’s Republic of China exi[s]ted for the protection status determination and if such material did exist failed to identify and apply it.

   (e) Alternatively, if the second respondent purported to apply the content required to be analysed by the Ministerial Direction No: 56, it is not apparent from the reasoning and it cannot be reasonably inferred from the decision record in that no such material was identified in the decision.”

Consideration

1. The particulars raised various complaints about the Tribunal’s failure to properly comply with Ministerial Direction No 56, dated 21 June 2013 (“the Ministerial Direction”). The arguments arose from the obligation on the Tribunal to comply with Ministerial directions which were authorised by s.499(1) of the Act. The dispute between the parties did not turn on whether the relevant Ministerial Direction was such a direction.

2. The applicant’s submissions pointed to what were said to be two errors by the Tribunal, which were central to its analysis.

3. First, the Tribunal failed to have regard to the department’s “Procedures Advice Manual” (“PAM3 Guidelines”) pursuant to the Ministerial Direction.

4. Second, the Tribunal proceeded on what was described as a “false distinction” between being interested in Buddhism (as the Tribunal found the applicant to be), and being a member of the Buddhist religion (which it found she was not).

5. In relation to the first matter, the applicant submitted that the Tribunal made reference to the Ministerial Direction at [18] of its decision record (at CB 112):

   “In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.”

6. The applicant’s argument was that the PAM3 Guidelines were not further considered in the remainder of the decision record.

7. The second matter was said to arise from [32] of the Tribunal’s decision record (at CB 116 to CB 117):

   “The Tribunal considers at its highest, that the applicant could be said to have an interest in Tibetan Buddhism. However, it does not consider that simply being interested in Tibetan Buddhism gives rise to a real chance of serious harm. The Tribunal notes that the independent country information, also referred to in the delegate’s decision record given with the application for review, indicates that there is a growing number of Chinese embracing Tibetan Buddhism and that it has become ‘positively trendy’. Other country information indicates that ‘many ethnic Han Buddhists were interested in Tibetan Buddhism and donated money to Tibetan monasteries and nunneries’ and refers to a growing number of ethnic Han Buddhists visiting Tibetan monasteries in the summer. The applicant agreed that not all Tibetan Buddhists are subject to persecution but believed that everyone who believed in the Dalai Lama would be attacked. However, the Tribunal does not accept that the applicant regards the Dalai Lama as her spiritual leader. The Tribunal considers that the applicant’s interest in Tibetan Buddhism does not give rise to a real chance that the applicant will suffer serious harm if she were to return to China now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of her religion, real or imputed, or for any other Convention related reason should she return to China now or in the reasonably foreseeable future.”

8. The applicant relied on SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 (“SZUQZ”) to argue that the consideration of the PAM3 Guidelines is “mandatory once the Tribunal determines that they are relevant to a particular case” (SZUQZ at [53]). Further, that where there are factual findings made by the Tribunal that render the PAM3 Guidelines potentially relevant, then it is necessary for the Tribunal to have expressly considered them (SZUQZ at [54]).

9. The applicant accepted that the decision in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 (“SZTMD”) per Perram J, stood, amongst other things, for the proposition that the applicant must point to some part of the PAM3 Guidelines upon which to base the assertion of jurisdictional error (SZTMD at [20]).

10. In this light, the applicant referred to two parts of the PAM3 Guidelines (at Annexure “C” to the applicant’s affidavit of 12 June 2015). First, the statement that (at page 193.7):

    “…persecution for religion can include persecution for reasons of a perception that a person has a particular religion…”

11. This was said to be relevant to the Tribunal’s finding that the applicant had an interest in Buddhism ([32] at CB 116 to CB 117). The applicant submitted that the Tribunal’s finding “provides a false perception of a finding”.

12. I understood the argument to be that the PAM3 Guidelines allowed for a situation where persecution for religious reasons can include the perception, by those from whom harm is feared, that a person has a particular religious faith. In the current circumstances, therefore, if the applicant was seen to have an interest in Buddhism (even if that was not the case), then there was still a real risk of persecution because of that perception.

13. The submission was that there was no “real difference”, if the Tribunal had taken this part of the PAM3 Guidelines into account, between a finding of having an interest in Buddhism, and being a practitioner of Buddhism. The applicant would still face a real risk of harm in either circumstance. By not taking the PAM3 Guidelines into account, the Tribunal failed to understand and apply this, and, therefore, failed to comply with its obligations in ss.414 and 415 of the Act.

14. The second reference to the PAM3 Guidelines was to the following (at page 197.5, see Annexure “C” to the applicant’s affidavit of 12 June 2015):

    “Similarly, if a persecutor mistakenly believes that an applicant holds a particular belief, the applicant may be persecuted for imputed ‘reasons of religion’ even though they do not actually profess to hold a particular belief.”

15. This is said to raise a similar argument as with the first reference. That is, that being taken to hold a particular religious belief the applicant may still be persecuted even if she does not hold that belief.

16. Some care needs to be taken in understanding the extracts of the PAM3 Guidelines on which the applicant now relies.

17. The first extract is, in context, the PAM3 Guidelines author’s view of what emerged from WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 (“WALT”). In that case, as is set out in the PAM3 Guidelines preceding the extract on which the applicant now relies, the Tribunal comprehensively disbelieved a Kenyan applicant’s claims to have converted from Islam to Christianity at the age of eleven and as a result being driven away from his home and family. The PAM3 Guidelines then set out three propositions that were said to emerge from the Full Court’s judgment in WALT.

18. However, there is nothing in that part of the PAM3 Guidelines, nor elsewhere in the guidelines, to say that every proposition emerging from every case cited is relevant to every case before the Tribunal. While the PAM3 Guidelines may provide assistance, the Tribunal’s obligation is to deal with the circumstances presented in each case before it, not to pursue hypothetical situations.

19. Similarly, the second extract on which the applicant now relies is also the PAM3 Guidelines author’s view of what was said to emerge from the High Court’s consideration in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”).

20. In all, there can be no doubt, based on the authorities cited, that persecution may still be likely in circumstances where a persecutor believes that a person holds a particular religious belief even though the person does not hold that belief. This situation is not restricted to “religion” as it appears in Article 1A(2) of the Refugees Convention, but extends to all the grounds set out there.

21. In all, an applicant does not have to hold a particular belief to be persecuted for a Refugees Convention reason. As Burchett J explained in Kuldip Ram v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1995] FCA 1333; (1995) 130 ALR 314 at [8] and [10]:

    “[8] …People are persecuted for something perceived about them or attributed to them by their persecutors…

    …

    [10] In this area, perception is important. A social group may be identified, in a particular case, by the perceptions of its persecutors rather than by the reality. The words ‘persecuted for reasons of’ look to their motives and attitudes…”

22. The difficulty for the applicant in the current case, however, is that while, in essence, this is explained in the PAM3 Guidelines, she has not satisfactorily explained how the extracts from the PAM3 Guidelines, to which she has referred, are relevant to the claims she presented and the circumstances of her case before the Tribunal. That relevance would need to be established before any failure by the Tribunal to take the PAM3 Guidelines into account can be said to lead to legal error.

1. The applicant’s relevant claim before the Tribunal was that she was a Tibetan Buddhist, had been interested in Tibetan Buddhism for some time, and had visited Tibet and attended a ceremony conducted by a senior member of the Tibetan Buddhist religion, connected to the Dalai Lama. She feared harm in China because she said this religion was “outlawed” in China.

2. The Tribunal found that the applicant had not been truthful in her evidence and lacked credibility. On this basis it had “significant doubts as to whether she [was] a Tibetan Buddhist and genuinely consider[ed] the Dalai Lama her spiritual leader” ([29] at CB 116).

3. This conclusion was based on a large number of antecedent findings concerning her claims and evidence ([23] at CB 113 to [28] at CB 115).

4. The Tribunal considered a number of matters that the applicant had put to it in support of her claim to be a Tibetan Buddhist. This included photographs and tickets relating to claimed attendances at Tibetan Buddhist events. However, ultimately, the Tribunal did not accept that she regarded the Dalai Lama as her spiritual leader ([30] at CB 116).

5. As set out above, the applicant’s ground directs attention to [32] of the Tribunal’s decision (at CB 116 and see [27] above). Two things emerge. First, what is set out at [32] of the Tribunal’s decision record (at CB 116 to CB 117) must be understood in the context of what precedes it in the Tribunal’s reasoning and findings.

6. That is, in essence, the Tribunal’s rejection of the applicant’s claim to be a Tibetan Buddhist and that the Dalai Lama was her spiritual leader. I should note that the Tribunal’s conclusion in this regard, and the various findings that informed it, were all reasonably open to the Tribunal on what was before it.

7. At [32] (at CB 116 to CB 117), on any fair reading, and drawing on its earlier findings, the Tribunal characterised what remained of the applicant’s claims, after it had rejected the larger parts of them, as being that she “would be said to have an interest in Tibetan Buddhism”.

8. I agree with the Minister that the applicant did not claim that she feared persecution because of an interest in Buddhism. The reference in her claims to having been interested in Buddhism for some time, when read in context, was not the basis for her claimed fear. Rather, it was contextual background to explain how she became a Tibetan Buddhist and came to accept the Dalai Lama as her spiritual leader. In my view, having rejected that central part of her claims, it was appropriate for the Tribunal, if not necessary, to deal with her claimed, when read in context, interest in Buddhism.

9. In her submissions, the applicant sought to draw a distinction between being persecuted for real or imputed religious beliefs. That distinction, as set out above, is accepted. However, what is missing in the applicant’s argument now is that the focus of the relevant test for persecution (as referred to above at [41] – [42]) is on the perception of the persecutor not the applicant. The applicant’s perception would fall into the subjective element of a well-founded fear of persecution. That is, the state of mind of the applicant. As the relevant authorities make clear, the relevant test of a “real chance of persecution for a Convention reason” also contains an objective element (Chan Yee Kin at 396 per Dawson J and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ).

10. In this light, I agree with the Minister that to the extent that the Tribunal was required to look at those parts of the PAM3 Guidelines that the applicant says it should have looked at, what was necessary was some claim by the applicant that she would be perceived by the Chinese authorities to have an interest in Tibetan Buddhism, as opposed to being an adherent of that faith. The applicant did not raise such a claim. In this circumstance, the Tribunal was not required to have regard to the “extracts” from the PAM3 Guidelines to which the applicant now refers.

11. It is also important to note that the Tribunal did address the matter of whether having in interest in Tibetan Buddhism gives rise to a real chance of harm. The Tribunal found that it was not “satisfied that the applicant has a well-founded fear of persecution because of her religion, real or imputed, or for any other Convention related reason” ([32] at CB 117).

12. Even without making specific reference to the “extracts” of the PAM3 Guidelines, the Tribunal’s reasoning here can be fairly read as the Tribunal having understood that it needed to consider whether a real chance of persecution may arise from the applicant having imputed to her an interest in Tibetan Buddhism. It found that would not be the case and it gave reasons for this. Its findings were reasonably open to it on what was before it.

13. Turning to each of the particulars to the ground. Particular (a) asserts that the Tribunal did not refer to its obligation pursuant to s.499(2A) of the Act to comply with the Ministerial Direction. However, the Tribunal did make such a reference (see [18] at CB 112).

14. To the extent that the particular complains that the Tribunal did not refer to the materials in its reasoning, or the extracts of these materials now identified by the applicant, then such a reference is only necessary when the materials are relevant to the decision under review (see SZTMD at [20] – [21]). For the reasons set out above, the Tribunal did not need to make specific reference to the extracts. In any event, and further, its approach and analysis was consistent with and included, the proposition in the extracts on which the applicant now seeks to rely.

15. Particular (b) to the ground asserts that the Tribunal did not identify the materials it had to consider. This also does not assist the applicant, for the reasons set out above in relation to particular (a) to the ground.

16. Particular (c) to the ground asserts, in part, contrary to particular (a) to the ground, that the Tribunal did identify the relevant requirement. The complaint is that having identified the requirement to consider the material set out in the Ministerial Direction, the Tribunal failed to have regard to that material. This particular does not assist in making out the ground of the application for the reasons set out above.

17. Particular (d) of the ground asserts that the Tribunal failed to inquire, or “openly inquire”, about whether information provided by the Department of Foreign Affairs and Trade (“DFAT”) in relation to China was in existence and, if it was, it failed to identify and apply it.

18. What is meant by inquire or “openly” inquire was not made clear before the Court. At best I understood the applicant’s argument here to be that the Ministerial Direction obliges the Tribunal to also consider “any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes…” ([18] at CB 112). The complaint is that it did not inquire whether such information existed, and if it did exist, the Tribunal failed to take it into account.

19. The Minister, in part, responded to this complaint by submitting that there is no general or specific statutory duty on the Tribunal to make inquiries on the applicant’s behalf. The duty is a duty to review (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]).

20. However, the applicant’s complaint, while using the language of making an “inquiry”, was really a complaint that the Tribunal had not satisfied itself as to whether there was any DFAT country information to which it was required, by the Ministerial Direction, to have regard.

21. I should note that the Ministerial Direction does not talk of any, or all, DFAT country information. The Ministerial Direction is focussed on information prepared by DFAT expressly for protection visa determination purposes, to the extent that such information is relevant to the decision that is under consideration by the Tribunal.

22. The applicant has not identified any such information that the Tribunal was obliged to take into account. In any event, the evidence of Mr Geyer, which was read without objection by the applicant before the Court, reveals that there was no such information as at the time of the Tribunal’s decision. Particular (d) of the ground, therefore, does not assist the applicant’s ground.

23. Particular (e) of the ground asserts, in the alternative to the particulars above, that even if the Tribunal purported to apply any of the material referred in the Ministerial Direction, such consideration is not apparent from the decision record. The particular asserts that it is not open to be reasonably inferred from the decision record, that it identified and took account of any such material.

24. Particular (e) of the ground also does not assist the applicant’s ground. As set out above, the applicant has not identified any country information which comes within the Ministerial Direction. The applicant’s submissions, in relation to the extracts from the PAM3 Guidelines on which she relied, have been addressed above.

Conclusion

1. The sole ground of the application is not made out. The application should be dismissed. I will make the order accordingly.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  23 November 2015