FEDERAL COURT OF AUSTRALIA

BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221

IMMIGRATION – Tribunal originally refused applicant’s claim for protection visa based on fear of persecution in native Pakistan due to Christian religious beliefs – thereafter complex course of litigation pursued – initial application to Federal Court challenged Tribunal decision solely under s 476(1)(e) of Migration Act – asserted that Tribunal decision involved error of law being an incorrect application of law to facts as found – application for review so framed dismissed – further proceedings then instituted in original jurisdiction of High Court under s 75(v) of Constitution seeking constitutional writs – those proceedings still on foot albeit that single judge of High Court remitted part of proceedings to Federal Court – in remitted proceedings appellant sought to argue point not raised before original primary judge that Tribunal decision so unreasonable that no reasonable person could form that view so as to constitute jurisdictional unreasonableness – primary judge in remitter proceedings dismissed application, inter alia on ground that questions as to errors of jurisdictional fact not reviewable under s 476(2) of Act following earlier Full Federal Court decision in Gamaethige – also held that appellant estopped from arguing jurisdictional error because of Anshun principal – then followed present Appeal to Full Court – whether “special circumstances” exist to permit of departure from Anshun principle so as to allow argument on the jurisdictional error point – whether Full Court decision in Gaemethige to be followed - appeal dismissed.

Migration Act 1958 (Cth) subss 476(1)(e), 476(2)(b)

Constitution s 75(v)

Judiciary Act 1903 (Cth) s 44

“BC” v Minister for Immigration and Multicultural Affairs [2001] FCA 393 referred to

BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to

Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59 followed

House v R (1936) 55 CLR 499 referred to

Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 applied

Henderson v Henderson (1843) 3 Hare at 115 cited

Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 referred to

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to

Stuart v Sanderson (2000) 100 FCR 150 considered

Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 436 referred to

Telstra Corporation v Treloar (2000) 102 FCR 595 cited

Byrne v Australian Airlines Ltd (1994) 47 FCR 300 cited

Brooks v Commissioner of Taxation (2000) 100 FCR 117 cited

BC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1590 of 2001

CARR, TAMBERLIN & CONTI JJ

23 JULY 2002

SYDNEY 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1                     This is an appeal from a judgment of a Judge of this Court dismissing the appellant’s application for an order of review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent not to grant a protection visa to the appellant. 

factual and procedural background

2                     The following description of the factual and procedural background of this matter is taken largely from the reasons for judgment of the learned primary judge. 

3                     The appellant arrived in Australia by boat, from Indonesia, on 17 December 1999.  He subsequently applied for a protection visa.  The appellant claimed to have a well-founded fear of persecution in Pakistan by reason of religion.  He had been raised as a Roman Catholic in that country and married a Roman Catholic.  He said that his brothers-in-law (all of whom were Muslim) had strongly disapproved of the marriage and had perpetrated outrages, including kidnapping his wife and children.  The appellant claimed to have converted to Islam in order to obtain protection from the local Muslim community against his wife’s family.  The conversion had received publicity in local newspapers. 

4                     The appellant said that he ultimately located his wife and children, with the assistance of the Muslim community, and they resumed living together.  In 1998, the appellant was rebaptised into the Christian faith by Christian missionaries.  Thereafter he continued to live like a Muslim for all outward purposes, but secretly adhered to Christianity (although his son attended a Roman Catholic school).  He said that he feared that false blasphemy charges would be brought against him and also that he feared harm from Muslims by reason of his reconversion to Christianity. 

5                     On 25 October 2000 the appellant’s application for a protection visa was rejected by the Minister’s delegate.  The Refugee Review Tribunal (“the Tribunal”) affirmed that decision on 20 December 2000, finding that the appellant did not have a well-founded fear of persecution for reasons of religion. 

6                     On 9 January 2001, the appellant filed an application for review of the Tribunal’s decision in this Court.  His amended application, filed on 15 March 2001, contained a single ground, as follows:

“S 476(1)(e) of the Migration Act 1958 – decision involved an error of law being an error involving an incorrect application of the law to the facts as found.

Particulars

The RRT considered the applicant’s case in the context of Moslem extremists making false charges of blasphemy against individuals. 

The RRT did not consider the applicant’s case in the context of the applicant having satisfied the grounds for charges to be laid against him, on account of his reconversion from Islam to Christianity and the persecutory application of that law, nor did the RRT consider the law as persecutory per se against converts from Islam to Christianity.”

7                     Madgwick J heard the first application for review of the Tribunal’s decision on 16 March 2001.  The appellant was represented at the hearing by the same counsel who appeared on his behalf both at first instance and on the appeal in the present proceedings.  His Honour delivered an ex-tempore judgment dismissing the application (published as “BC” v Minister for Immigration and Multicultural Affairs [2001] FCA 393).  As Sackville J, the primary judge in the second Federal Court application (reported as BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669) observed, the core of Madgwick J’s reasoning is contained in the following passages at [13-16]:

“Mr Killalea, for the applicant, in a careful argument submitted in essence that the factual finding that “[t]he Tribunal is not satisfied that anyone would take claims made by the applicant’s brother[s]-in-law about him being an apostate seriously” could only reasonably have been made on the assumption that, when the finding was made, the Tribunal was only considering potential false blasphemy charges.  This is because the applicant was truly guilty of some blasphemy or apostasy type offence for his actual apostasy, and would so obviously be gravely at risk from the likely outraged Moslem community, who came to his aid, if word of his reconversion should reach them, and that the Tribunal could not have had a true blasphemy type charge, or the community’s reaction to true allegations, in mind.

I have considered this carefully.  It is a matter of impression and turns on how one reads the decision of the Tribunal.  In my opinion, the Tribunal distinguished between on the one hand trumped-up non-blasphemy charges, of which the applicant had also complained and, on the other hand, authentic blasphemy type charges and trouble which the applicant might face on account of his actual apostasy.

The finding that “[t]he Tribunal is not satisfied that anyone would take claims made by the applicant’s brother[s]-in-law about him being an apostate seriously” was properly conceded by counsel for the respondent Minister to be a somewhat heroic one.  However, it does not seem to me that, on that account alone, it is reviewable in this Court, and counsel for the applicant, who is experienced in these matters, has not attempted to place any reliance in this Court on the possible unreasonableness of that finding.  That finding, it seems to me, really disposes of the applicant’s case. 

So does the finding that he could safely relocate and live in a Christian community.  Again, with all due respect to the Tribunal, that is not a finding that would compel unanimous agreement.  However, in my opinion it is not possible to say that the Tribunal approached the question of relocation wrongly in a relevant legal sense…”.

8                     The appellant did not appeal from the judgment of Madgwick J.  On 12 April 2001 he commenced proceedings in the original jurisdiction of the High Court of Australia pursuant to s 75(v) of the Constitution.  Those proceedings are still on foot.  In fact, as will be seen, this appeal is part of those proceedings.  The proceedings again seek to challenge the Tribunal’s decision of 20 December 2000.  The relief sought by the appellant in the High Court includes a writ of certiorari quashing the Tribunal’s decision and a writ of mandamus directing the Tribunal to perform its statutory duty.  The key claim made by the appellant, which he wishes to have reconsidered by the Tribunal, is that he has a well-founded fear of persecution in Pakistan, in particular because he converted from the Muslim faith to Christianity, after having previously converted from Christianity to the Muslim faith. 

9                     On 8 June 2001, Gummow J made an order pursuant to s 44 of the Judiciary Act 1903 (Cth) remitting a portion of the High Court proceedings to this Court, and thereafter the resultant application was heard by Sackville J.  Adapted to take account of the removal of the second and third respondents initially named in the High Court proceedings and the substitution of the Tribunal as the second respondent, the grounds remitted to this Court were as follows:

“(a)     The Tribunal did not have jurisdiction to make the decision affirming the decision of the Minister’s delegate refusing to grant the appellant a protection visa;

 (b)      The decision of the Tribunal was not authorised by the Migration Act 1958 (Cth) (“the Migration Act”) or the Migration Regulations; and

 (c)       The decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal.”

the proceedings and judgment at first instance

10                  The appellant’s “second” case at first instance was based on the reasoning, obiter, of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 650-659.  That is, jurisdictional error on the Tribunal’s part in reaching the state of non-satisfaction that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The jurisdictional error asserted was that the Tribunal reached that state of satisfaction so unreasonably that no reasonable decision-maker could properly have arrived at it.  It is convenient to refer to that ground, as the primary judge did, as “jurisdictional unreasonableness”. 

11                  The respondent put forward some five responses to the appellant’s arguments.  As matters transpired, his Honour decided only three issues. 

12                  The first was whether the appellant was precluded from pursuing the matters remitted to this Court by the High Court, by reason of the res judicata doctrine or the principle explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 

13                  Sackville J held that the appellant was not barred by res judicata or cause of action estoppel from pursuing the remitted proceedings.  However, his Honour held that it was unreasonable for the appellant not to have relied, in the earlier proceedings before Madgwick J, on the jurisdictional unreasonableness argument.  The appellant does not dispute that conclusion. 

14                  The primary judge then considered whether there were special circumstances which warranted the Court declining to apply the Anshun principle to the remitted proceedings.  His Honour’s conclusion was that there were no such special circumstances.  The appellant challenges that conclusion. 

15                  Sackville J appreciated that, having concluded that there were no special circumstances, it was not strictly necessary to consider the two further issues, but he proceeded to do so. 

16                  First, his Honour held that he was bound by a decision of the Full Court of this Court in Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 59 where it was held (by a majority) that s 476(2)(b) of the Migration Act 1958 (Cth) (“the Act”) precludes an applicant for judicial review of a decision of the Tribunal relying on jurisdictional unreasonableness in this Court.  That subsection provides that two specified grounds of review are not grounds upon which an application may be made under s 476(1).  The second ground, specified in subsection 476(2)(b), is:

“(b)     That the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

17                  [On 5 March 2002 (three months after the primary judge’s decision) the High Court of Australia granted special leave to the applicant in Gamaethige to appeal from the decision of the Full Court in that matter.] 

18                  Secondly, his Honour made some observations about jurisdictional unreasonableness.  He noted that the borderline between judicial review on the merits and consideration of whether a finding as to a jurisdictional fact is unreasonable in the relevant sense may be very difficult to identify.  Then his Honour referred to an observation by Gummow J in Eshetu (at 654):

“… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.”

19                  The primary judge then said, that despite those two comments, the contention that the Tribunal’s decision was affected by jurisdictional unreasonableness had “some force”.  His Honour also said that the Tribunal’s reasons were difficult to follow.  He concluded his description of the relevant portions of the Tribunal’s reasons by saying (at [69]):

“The extract from the RRT’s reasons reproduced in the previous paragraph seems to me to come close to a finding that was unsupported by any probative material or logical grounds.  It is also arguable that the finding was one upon which the ultimate decision of the RRT was based.  Because it is unnecessary to do so, I express no final view on these questions.”

20                  Counsel for the appellant had not disputed that if the Anshun principle applied to the remitted proceedings, the appropriate order was to dismiss them.  His Honour did so. 

the appeal

21                  There were three questions in the appeal from the judgment of Sackville J.  The first was whether the primary judge erred in finding that there were no special circumstances which warranted the Court declining to apply the Anshun principle.  The second was whether this Court should follow the decision of the Full Court in Gamaethige.  The third question was whether the Tribunal’s decision was vitiated by jurisdictional error amounting to jurisdictional unreasonableness.  An answer unfavourable to the appellant to any of those three questions would result in the appeal being dismissed. 

the reasoning of the court on the APPEAL

Whether there were special circumstances?

22                  Ms N Abadee, counsel for the respondent, submitted that the primary judge’s conclusion that there were no special circumstances was an exercise of discretion and that we should not interfere with it unless error of the kind referred to in House v R (1936) 55 CLR 499 at 404-5 was disclosed. 

23                  Counsel referred us to three authorities for that proposition.  The first was Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 at 89, a decision of the Full Court of the Supreme Court of Victoria.  Anshun (No 2) was the decision affirmed by the High Court in Anshun. 

24                  In my view, a careful reading of Anshun (No 2) shows that it is not authority for the proposition advanced on behalf of the respondent.  In that case the primary judge, McGarvie J, held that the claim by the Port of Melbourne Authority for indemnity under its agreement with Anshunproperly belonged to the matter which was the subject of its claim for contribution in the damages action brought by Mr Soterales and that it was reasonably practicable for the Authority to have claimed its contractual right of indemnity in its proceeding against Anshun,within the action brought by Mr Soterales.  McGarvie J took the view that once he reached that conclusion, a judicial discretion arose to grant or refuse a perpetual stay of the second action, in the exercise of which regard was to be had to all the circumstances of the case.  The Full Court said this (at 89):

“Mr Hulme [senior counsel for the Authority] submitted that the exercise of discretion had miscarried.  We find it unnecessary to set forth his arguments in this regard, for we accept the submission of Dr Pannam that the learned Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule (Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, at p 590).

. . .

Since in the present case the learned Judge, notwithstanding a careful investigation of the authorities, regarded himself as called upon to exercise a general discretion, as opposed to determining whether special circumstances in the sense indicated by their Lordships in the Yat Tung Case existed, it falls to this Court to make that determination.” 

25                  There was no discussion in the reasons for judgment of Gibbs CJ, Mason and Aickin JJ on this point in Anshun, although their Honours upheld the Full Court’s decision.  Murphy J, in a brief reference at 605, expressed the view that there was no discretion where the principle applied, but was not specifically addressing the question of special circumstances.  Brennan J took a different approach to that taken in the main judgment and held that the Port Authority’s right of indemnity had merged in the contribution orders, thus barring the second action.  His Honour’s conclusion was expressed at 613 in the following terms:

“As the Authority’s right of indemnity merged in the contribution orders, the second action is barred.  There is no discretion to be exercised.”

26                  His Honour explained that the view that there was a discretion or power stemmed from a reference to special circumstances in the often-cited passage from Henderson v Henderson (1843) 3 Hare at 115 [67 ER at 319] and was a reference to the former Chancery practice and principles which governed the discretion to give leave to file a bill of review to impeach a decree which had been signed and enrolled. 

27                  The second authority relied upon by the respondent was Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558.  It is true that at that page Clarke JA expressed the view that even where it is found that a point was unreasonably omitted from a previous case, the Court retains a discretion not to stay the second proceeding if special circumstances exist.  However, that observation was obiter dictum because his Honour found on the facts that the Anshun principles did not apply.  Priestley JA agreed with that conclusion.  Powell JA (at 617-618) expressed the view, again obiter, that it would seem that where an Anshun estoppel is raised, the Court retains a residual discretion as to whether or not such an estoppel might be given effect. 

28                  In the third case cited on behalf of the respondent, Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, a Full Court of this Court at 296, referred to the passage in the opinion of the Privy Council in Yat Tung at 590 as demonstrating:

“… that their Lordships thought that “special circumstances” comprehended situations where, for broad discretionary considerations relating to notions of justice, Henderson v Henderson should not be applied with full rigour.” 

29                  Again, in our view, their Honours cannot be taken to have decided the question whether a conclusion about the existence of “special circumstances” amounted to the exercise of a discretion in the House v R sense.  Their Honours assessed for themselves whether there were special circumstances and did not seem to be troubled by any notion of restraint in reviewing the primary judge’s decision on the Anshun point, although they agreed with that decision. 

30                  In our opinion, the better approach is, with respect, that taken by the Full Court of the Supreme Court of Victoria in Anshun (No 2) i.e. that once a court has found that the Anshun principle applies, then the only “discretion” which the court may exercise not to apply the Anshun principle is if it finds that “special circumstances” exist.  That is essentially a finding of fact to which the rule in House v R has no application. 

31                  The special circumstances on which the appellant relied can be summarised as follows:

            (a)        the proceedings raised important issues concerning the life and liberty of the appellant and were analogous to criminal proceedings;

            (b)        the Minister is a respondent by force of statute only, a respondent not subject to pressures of costs and time which often weigh on individuals who are litigants;

(c)        review is sought in the context of complex bifurcated process of review (a reference to the alternative sources of judicial review available in the High Court of Australia and this Court);

(d)        the state of the authorities at the relevant time was such that it was reasonable not to rely on jurisdictional unreasonableness;

(e)        a High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 had opened up the possibility of judicial review on the ground of jurisdictional unreasonableness;

(f)         the proposed ground of review was meritorious especially in view of the fact that the High Court had granted special leave in Gamaethige; and

(g)        the appellant could not obtain redress by suing counsel for neglecting to take the point in the proceedings before Madgwick J.

32                  In view of the conclusion, which the Court has reached below, that we should follow the Full Court’s decision in Gamaethige, it is strictly not necessary for the Court to decide whether special circumstances exist. 

33                  However, as we consider that some of the circumstances advanced by the appellant, when taken cumulatively, amount to special circumstances, we hereafter provide brief reasons for that view. 

34                  In Stuart v Sanderson (2000) 100 FCR 150 the applicant had sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision of an authorised delegate of the Chief of the Army confirming the decision of an Army reviewing authority upholding three convictions of the applicant and her discharge from military service.  The fact that the applicant had not been legally represented during the military proceedings was referred to at the hearing of the application but not pressed as a ground of review.  Beaumont J dismissed the application.  The applicant then brought proceedings, again in the Federal Court, pursuant to s 39B of the Judiciary Act 1903 (Cth).  Madgwick J held that it was unreasonable, in the Anshun sense, for the applicant not to have relied upon the applicant’s lack of legal representation in the proceedings under the ADJR Act.  He then considered whether there were special circumstances which could avoid the prima facie operation of the rule.  His Honour at [33] expressed the view that as issue estoppel was not part of Australian criminal law, there was even less justification for importing an Anshun barrier against a defence which an accused might wish to raise.  His Honour then drew an analogy between the circumstances of the case and criminal proceedings saying:

“The analogical force of this [that the Anshun principle ought not to apply to criminal proceedings in a manner which prevents an accused person from asserting his or her innocence] should, in my view, be given weight in the present case: here, the applicant seeks belatedly to raise a question which could have been raised in the criminal proceedings or in earlier civil proceedings concerning that criminal process.  The Court should be slower to shut her out than if merely civil rights or remedies were at issue throughout.”

35                  His Honour then referred to the matters relied upon as amounting to special circumstances.  These were that:

·          the applicant had been denied a then-existing, important right of every soldier (to legal representation when charged with offences);

·          the consequence of allowing her to take the point would not go beyond inconvenience and expense (albeit to a not insignificant degree); and

·          the respondents could at least in part be compensated by a costs order, were litigants only in an official capacity, and were unlikely to feel the other pressures which often weigh on individuals who are litigants. 

36                  His Honour found that these were special circumstances.

37                  The primary judge in this matter distinguished Stuart v Sanderson on the basis that it did not involve the application of the criminal law or of criminal sanctions, notwithstanding the possible serious consequences for the applicant. 

38                  In the Court’s view, a combination of the four factors referred to above at subparagraphs (a), (b), (c) and (d) amounted to special circumstances.  In the context of this case, we would not regard any one of those four factors on its own as amounting to special circumstances.  In the Court’s view the first, third and fourth factors are of significantly greater weight than the second factor to which we would attach only marginal weight.  In relation to the fourth factor (the state of the authorities), there may appear to be some contradiction in the proposition that for Anshun purposes it was unreasonable on the appellant’s part to fail to raise jurisdictional unreasonableness in his first application, on the one hand, and, on the other hand, to have regard to the degree to which the case law on jurisdictional unreasonableness had developed at the relevant time when considering whether special circumstances exist.  However, the two points of view can be reconciled by treating the appellant’s use of the word “reasonable” as meaning that mitigating circumstances existed.  From a technical and procedural viewpoint, failure to raise jurisdictional unreasonableness was unreasonable in the Anshun sense, but in our opinion that is excusable partly because the concept of jurisdictional unreasonableness had only quite recently been the subject of judicial exposition and there was little guidance in the particular context of the Act.  Now that the High Court has granted special leave to appeal in Gamaethige, it is likely that a clearer picture of the law will emerge.  This leads to the next question in the appeal, namely whether we should follow the decision of the Full Court in Gamaethige. 

Whether we should follow gamaethige? 

39                  As discussed above, in Gamaethige a Full Court of this Court held, by a majority, that s 476(2)(b) of the Act precludes an applicant for judicial review of a decision of the Refugee Review Tribunal from relying on jurisdictional unreasonableness.  Stone J (with whom Hill J agreed) referred to Gummow J’s discussion on the subject of an absence or excess of jurisdiction arising out of a finding of a jurisdictional fact where such finding was so unreasonable that no reasonable decision-maker could properly have arrived at it.  Her Honour then said this, at para [92]:

“When one considers the provisions of the Act which govern judicial review, it is clear that the legislature intended such review to be limited; see also the explanatory memorandum which accompanied the Migration Reform Bill 1992 (Cth).  In this context, it is not appropriate to limit the effect of the restriction imposed by s 476(2) by seeking to graft it onto common law stock.  I see no reason to give the words of s 476(2)(b) a meaning other than their conventional meaning or to be unduly technical in their interpretation.”

40                  Her Honour then referred, with apparent approval, to the comments made by Madgwick J in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 436 at para [30] to like effect. 

41                  It is clear that a Full Court of this Court is free to depart from a previous decision of a Full Court: see the discussion in Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at paras [24]-[28].  It seems to be well established that this Court should follow a decision of another Full Court unless it is clearly wrong: see Hill J in Gamaethige at para [13]; Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 333 and Brooks v Commissioner of Taxation (2000) 100 FCR 117 at paras [69]-[70].

42                  In the present appeal the appellant has not demonstrated that the decision of the Full Court in Gamaethige was clearly wrong.  In those circumstances, we should follow it.  Accordingly, it is not necessary to consider the third question in the appeal.  The appeal should be dismissed. 

Associate:

Dated:              23 July 2002