England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th December 2005

Mr Justice COLLINS :

1. This claim seeks to challenge the decision of the Asylum and Immigration Tribunal (A.I.T.) dated 29 April 2005 whereby it decided that there were errors of law in the determination of an adjudicator, who had heard the claimant's appeal, dated the 12 March 2004. It is said that there were no errors of law and that accordingly the adjudicator's decision, which had allowed the claimant's appeal against the refusal by the first defendant to grant him asylum or to permit him to remain in the United Kingdom on the ground that to remove him would breach his human rights, should stand. This claim is most important for the A.I.T. since it involves consideration of its practice in dealing with cases which have to be reconsidered in accordance with s.103A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act).
2. The claimant is a national of Pakistan. He is an Ahmadi. Ahmadis are discriminated against in Pakistan and are frequently subjected to violent attacks by Muslim fundamentalists. They are regarded as non-Muslims and the Pakistan Code forbids them to refer to themselves as Muslims and, in particular, prohibits them from proselytising. This prohibition can lead to problems for devout Ahmadis since one of the tenets of their faith is that they should promote their beliefs and so should proselytise. Having said that, there are large numbers of Ahmadis in Pakistan and, although there is discrimination and some violence, they are able to live there and it has never been accepted that an Ahmadi should be granted the right to remain in the United Kingdom simply because of the problems faced by Ahmadis in general. But if there is evidence that a particular individual has suffered serious ill-treatment and cannot relocate to a part of Pakistan where Ahmadis are in the majority or otherwise can live in reasonable safety and there is a real risk that such ill-treatment may recur, he or she may be granted asylum. If a real risk of ill-treatment which is sufficiently severe to amount to persecution is established, it is obvious that such persecution would be for reasons of religion and so would be within Article 1A of the Refugee Convention.
3. The claimant arrived in this country on 5 November 2003 and claimed asylum two days later. He said that his father was a leading member of the Ahmadi community in the town in which he was born and by 1987 attacks on his family had become so serious (he was then 12) that his sister and brother-in-law sought asylum here. He personally began to suffer specific abuse and attacks in 1991 when he was at college. In 1996 he was attacked and beaten up by an anti-Ahmadi gang led by one Javed. In 1997, following another attack, his family moved to Rawalpindi. There was no further trouble until 2000 when he had the misfortune to come across Javed again and was attacked and rendered unconscious. He then moved to Lahore when, he said, he became a preacher of the Ahmadi faith. In March or April 2003 he happened to see and be seen by Javed at a bus stop and this led to a further vicious assault in August 2003 as a result of which he decided to leave Pakistan and seek asylum. He was, he said, unable to get any help from the police who were not interested in assisting an Ahmadi such as him.
4. The adjudicator said that on the whole he was inclined to find that the claimant was a credible witness although he admitted to having some scepticism about the chance meeting with Javed in Lahore. He also expressed reservations whether the claimant could properly be described as a preacher, but said that he accepted that the substance of his complaints was genuine. In paragraph 7 of his determination, the adjudicator set out his conclusions in these words:-

"I am prepared to accept that the appellant is an Ahmadi and that he practises his religion in a sincere spirit. I also accept his evidence as to the extremely objectionable behaviour which he has received at the hands of Islamic fundamentalists in Pakistan. As I have indicated above there were one or two incidents evidenced about which I have some reservation. For example I am not sure that he can properly be described as a teacher although he could possibly be described as a proselytiser. One point which was made by the Home Office was that he was not really at risk of persecution by fundamentalists (in the plural) but had simply been targeted by the abovementioned Javed. I personally think this is far too narrow a submission and I am prepared to accept the evidence as to the wider basis of objectionable behaviour. It seems to me that having accepted that the appellant is an Ahmadi and having accepted his evidence as to the treatment which he has received in Pakistan I must now on the basis both of his own evidence and of the objective evidence form a view as to what is likely to happen should he return to Pakistan".

5. The adjudicator considered the objective evidence about the treatment of Ahmadis and the harassment and discrimination suffered by them. He then went on to consider whether there would be any breaches of the European Convention on Human Rights were the claimant to be returned to Pakistan. He said (Paragraph 9):-

"I accept that the appellant has been assaulted on occasions and that he has suffered serious physical ill-treatment. I do not however consider that his evidence brings him within the scope of Articles 2 or 3".

He concluded, however, that the claimant was entitled to asylum and that there would be a breach of Article 9 (Freedom of religion) so that his appeal was allowed under both Conventions.

6. The first defendant applied for permission to appeal. This was limited to a point of law (2002 Act s.101). The Immigration and Asylum Appeals (Procedure) Rules 2003 provided that permission should only be granted if the legally qualified member considering the application was satisfied that the appeal would have a real prospect of success or there was some other compelling reason why the appeal should be heard (Rule 18(4)). This test is much the same as that applicable in the Court of Appeal and the threshold is a relatively low one.
7. The grounds relied on were that the adjudicator's findings on credibility were contradictory, that internal relocation ought to have been considered, that the conclusion that the claimant had not suffered ill-treatment which crossed the threshold of Article 3 was inconsistent with his finding that he had been persecuted and that the adjudicator erred in finding a breach of Article 9 in the light of the decision of the House of Lords in R(Ullah) v Special Adjudicator [2004] 2 AC 323. On 18 June 2004 permission to appeal was granted on all four grounds.
8. On 4 April 2005 s.103A of the 2002 Act came into force and the Immigration Appeal Tribunal (I.A.T.) was abolished to be replaced by the single tier Tribunal, the Asylum and Immigration Tribunal (A.I.T.) The transitional provisions in the relevant Commencement Order provide that any pending appeal to the I.A.T. should continue as an appeal to the A.I.T. and Article 5(2) of the Order reads:-

"The A.I.T. shall, after commencement, subject to [procedure rules] deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision".

9. Reconsideration is dealt with in s.103A of the 2002 Act. So far as material, this provides:-

"(1) A party to an appeal … may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on appeal.

(2) The appropriate court may make an order under subsection (1) –

(a) only if it thinks that the Tribunal may have made an error of law, and

(b) only once in relation to an appeal".

10. The appropriate court in relation to England and Wales is the High Court (s.103A(9)). However, transitional provisions in Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (the 2004 Act) (which inserted s.103A into the 2002 Act) provide by paragraph 30, that while the Lord Chancellor so directs, an application for reconsideration is to be dealt with by a member of the A.I.T. and, if it is refused, the applicant may renew the application to the High Court. The Lord Chancellor has so directed and that regime is in place.
11. The procedure of the A.I.T. is governed by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (2005 No.230). Reconsideration is dealt with in Section 2 of Part 3. The relevant rule is 31 which, after requiring that a reconsideration must be carried out as soon as reasonably practicable, provides by paragraph (2) :-

"Where the reconsideration is pursuant to an order under Section 103A –

(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law, and

(b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal should stand".

A material error of law is defined in paragraph (5) to mean an error of law which affected the Tribunal's decision upon the appeal.

12. The Tribunal had to decide the most expeditious and cost effective system to deal with reconsiderations. Some errors of law would not require reconsideration of the original findings of fact or the hearing of further evidence. An example might be where the original Tribunal had failed to follow a Country Guidance case for no good reason and so the facts would have to be reassessed in the light of such guidance. The contrary would be likely to be the case where, for example, the findings of fact were not supported by evidence or the reasons for such findings were so poor that it was apparent that the original Tribunal had failed to have regard to important factors. It would accordingly be a waste of money to require the parties to attend with their witnesses when the reconsideration was to be commenced. If the Tribunal then decided that there was no error of law or that it could reconsider the appeal without hearing any further evidence, it would be able to dispose of the appeal. Otherwise, if it decided that there were any errors of law, it would adjourn the reconsideration. It would often be impractical for the rehearing to be by the same constitution, particularly where the appellant was located outside London so that it would be sensible and more cost effective to hear the appeal locally. Furthermore, the number of reconsiderations is substantial and so those that require evidence and fresh findings of fact will often have to be decided by single immigration judges. Whether the final determination of a reconsidered appeal is by a single immigration judge or by a panel, an appeal lies on a point of law to the Court of Appeal.
13. The President of the A.I.T. (Hodge J) has issued Practice Directions which set out how the A.I.T. is to operate. These are issued pursuant to powers bestowed upon him by s.107 of and Paragraph 7 of Schedule 4 to the 2002 Act. Paragraph 14 of the Directions deals with procedure on reconsideration. I do not need to refer to the Directions which deal specifically with cases such as the present which arise under the transitional provisions since the reconsideration where the I.A.T. has granted permission is treated as if it was a reconsideration under s.103A of the 2002 Act. The relevant sub-paragraphs of 14 read:-

"14.1. Subject to paragraph 14.12, where an appeal has been ordered under section 103A to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and, if so, whether, on the basis of the original Tribunal's findings of fact, the appeal should be allowed or dismissed.

14.2. Where the Tribunal decides that the original Tribunal made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose.

14.3. Where the Tribunal acting under paragraph 14.2 adjourns the hearing, its determination, produced after the adjourned hearing has taken place, will contain the Tribunal's reasons for finding that the original Tribunal made a material error of law.

14.4. Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be attached to, and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal."

14. The A.I.T. is a single tier Tribunal. Reconsideration does not take place in two separate stages but in one place. Thus an adjournment, if it is needed, is an interlocutory stage in that process. There is a distinction drawn in the Procedure Rules between transitional cases (such as the present) and those that are dealt with by the new procedure imposed by the 2004 Act. Rule 27 (which is in Section 1 of Part 3 which covers reconsideration under s.103A of the 2002 Act) obliges the Immigration Judge who makes an order for reconsideration to state the grounds on which the Tribunal should reconsider its decision. There is no Rule which precludes the Tribunal at the reconsideration hearing from allowing other grounds to be argued.
15. But in transitional cases, Rule 62(7) provides that 'the reconsideration shall be limited to the grounds upon which the I.A.T. granted permission to appeal'. Apart from reflecting the then practice which enabled there to be a statutory review of a refusal on any ground, I am bound to say that I cannot detect any good reason for this restriction. If a point had been missed which was obviously potentially determinative of the appeal, it would seem absurd to have to ignore it and so require a costly and time consuming appeal. Parliament has chosen to make the distinction and, unless it can be said to be irrational, it must be applied. It has the potential for delay, but will not in the end perhaps result in injustice since an appeal lies against a decision which is wrong in law. That is not a full answer since appeals are expensive and the losing party may not be able to pursue one. There is also the possibility that a wrong decision to return an appellant whose human rights would be breached might mean that the Tribunal was contravening s.6 of the Human Rights Act 1998. Equally, it would seem to me that a person should not be granted refugee status which is based on an error of law.
16. In R v Secretary of State for the Home Department ex p Robinson [1998] QB 929, Lord Woolf M.R., giving the judgment of the court, said this (at page 946B-D):-

"If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, than the special adjudicator should apply it in his favour but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the Tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum seeker which does not appear in the decision, he should grant leave to appeal. If it does not do so, there will be a danger that this Country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do."

For my part, I see no reason in principle why those observations should be limited to Convention points favourable to an appellant. But I recognise that there is authority of the Court of Appeal which suggests that they may be so limited: see Miftari v Secretary of State for the Home Department [2005] EWCA 481 and so I accept that in transitional cases such as the present s.62(7) must be applied in all cases except where a Convention point favourable to an appellant which passes the Robinson test is identified. I reach this conclusion with some reluctance having regard to what I have said in paragraph 15 above, but I must apply the Rule in accordance with the guidance provided by the Court of Appeal. Robinson also makes the more general point that in other reconsideration cases which are not covered by Rule 62(7) the Tribunal should only be prepared to listen to arguments seeking to raise new grounds or otherwise challenge the findings of the Tribunal which dealt with the first hearing if they are truly new and obvious and would have a strong prospect of success.

17. If the Tribunal decides that there was no error of law, it must immediately uphold the original decision. It will give its reasons and there is a right of appeal to the Court of Appeal. If the Tribunal decides that there was any error of law, it may be able to deal with the case without the need for an adjournment. If it does, it will produce a reasoned decision which can be appealed to the Court of Appeal. The Practice Direction distinguishes between an adjournment and a transfer (see Paragraphs 12.3 and 14.2), an adjournment being to the same panel and a transfer to a different panel or to a single immigration judge. In reality, each is an adjournment of the proceedings involved in carrying out a reconsideration, but it is no doubt convenient to deal separately with the requirements for what is called a transfer and what is called an adjournment. It is here that Paragraph 14.4 becomes material. It is obvious that, if the case is to be heard by the same panel, there is no need to prepare written reasons for a fresh panel or judge. It was recognised that the reconsideration would usually be dealt with initially at Field House in London where the Senior Immigration Judges are based and by a panel and that in any event it was undesirable that further argument should be allowed which covered the same ground as that deployed at the first reconsideration hearing. It was further undesirable that an immigration judge should reconsider a decision of or made by a panel chaired by a senior immigration judge.
18. However, although I recognise the sense behind the considerations to which I have referred and I do not doubt that they should normally prevail, it must be open to the parties to argue that a binding authority or a material Country Guidance case has been overlooked or that there is otherwise a material error based on arguments which had not been deployed. There may for example have been incompetent representation at the first hearing. Since the reconsideration is all one process, it would in my view be wrong to shut out the possibility of arguing for an error of law on a different ground or that one found to exist was no error at all. But I must emphasise that this will only arise in very exceptional cases.
19. Equally, I have no doubt that judges or panels hearing the transferred proceedings should not normally permit points to be reargued. It is only if it is clear that there are new arguments that the issue can be raised. The parties should be required to identify any fresh points or, for example, an unconsidered authority in advance.
20. This brings me to Paragraph 14.4. While reasons following the first hearing are rightly required and it is sensible that they should form part of the ultimate decision, that decision must be properly reasoned when finally delivered. Thus, if they are to stand as the Tribunal's reasons for deciding that there were any errors of law, they must be sufficient to satisfy the Court of Appeal that all material considerations have been properly taken into account. Otherwise, following the subsequent hearing, the judge will have to amplify or amend them to ensure that they are sufficient and correct.
21. At present, the written reasons required by Paragraph 14.4 are not disclosed to the parties. Mr Cooray has submitted that that is unfair. He has received the reasons in this case since these proceedings were instituted, the view having correctly been taken by the Secretary of State, once he himself received the reasons, that they were material and disclosable in connection with this claim. But Mr Tam has argued that they need not be disclosed and that the practice of the Tribunal is not unfair nor is there any procedural impropriety in the failure to disclose them. He submits that to disclose the reasons would encourage applications to reopen the conclusions following the first hearing based upon an attack on the reasons. That would be to create yet more delay.
22. I recognise the danger, but it seems to me that it has been overstated. It is important that the parties should know what issues they have to address at the second hearing and so should be aware not only what errors of law have been found to exist but why such errors have been found. It may be possible to produce evidence (for example, where a country guidance case has not been followed) which shows that an apparent error is not an error. Equally, the arguments deployed may be influenced by the knowledge of what matters have troubled the Tribunal. Even the bare knowledge of what grounds are live – and that must be disclosed in order to comply with the Rules – may tempt the parties to seek to reargue the law. If they know the reasons, that temptation can be more readily resisted and, if an attempt is nonetheless made, it can more easily be ruled impermissible.
23. It is important that the reasons should be adequate. If the system laid down in the Practice Direction is to be applied, they must be sufficient to stand on their own without the need for amplification or amendment after the second hearing. That is, of course, subject to the exceptional case where further argument has been ruled permissible or to any fresh findings of fact which require a more general reconsideration.
24. Mr Tam's main submission was that since the reconsideration was, as he put it, a single exercise, judicial review of what was an interlocutory decision should not be entertained. The court undoubtedly has jurisdiction to consider claims such as this, but will not in general entertain challenges to interlocutory decisions on the ground that the challenge is premature: cf: R v Secretary of State for the Home Department Ex p Nader [1998] 1 A.R. 33 and R v Rochford JJ Ex p Buck (1978) 68 C.A.R. 114. The proceedings should be allowed to take their course and, if the Tribunal was wrong to find errors of law where none existed, the remedy lies in an appeal to the Court of Appeal. While that approach may sometimes be modified in relation to a decision to adjourn proceedings, it will normally apply to a decision such as is in issue in this case which amounts to a preliminary ruling. If, as I believe, the parties must see the reasons and are able in the circumstances which I have set out in this judgment to argue against them, there is all the more reason to refuse to entertain proceedings for judicial review. I am satisfied that the court should not permit claims such as these. They are premature and can only create delays which are manifestly contrary to the intention of Parliament as appears from Rule 31(1) of the Procedure Rules. There is no prejudice to the aggrieved party since, if the alleged error persists in the final determination, there is a right of appeal to the Court of Appeal. And it is always possible that he will succeed in the appeal.
25. Accordingly, I am satisfied that it would normally be an abuse of the process of the Court to seek to pursue claims such as this. I have learnt that it is dangerous to say 'never' in this jurisdiction, but I find it difficult to conceive of circumstances in which such a claim would be proper.
26. Since the issues raised in this claim were of considerable importance to the Tribunal, I think it is right that I should grant permission and dispense with all further procedural steps. The claim came before me as what is known as a 'rolled-up hearing', that is to say that it would be a permission hearing and, if permission were granted, the full hearing would follow. The reasons which I have given are sufficient to dismiss the claim without considering whether, as Mr Cooray has submitted, the Tribunal was wrong to decide that there were errors of law. Mr Tam did not make any submissions on the issue but rested his defence to the claim on the prematurity point.
27. Since I have heard argument from Mr Cooray, I think I should, albeit briefly, consider the point. I am afraid that the reasons given are inadequate. They read:-

"1. Contradictory findings made by the Immigration Judge, for example paragraph 4.

2. Findings were unclear and confusing.

3. Objective material was not adequately taken into account in making the findings.

4. The determination is too short, with insufficient reasoning.

5. Error of law in allowing the asylum appeal while dismissing the Article 3 claim.

6. Error of law in allowing the appeal under Article 9 while finding Article 3 not engaged, contrary to the C.A. judgment in Ullah and Do (the authority at the time of the hearing)."

28. It is to be noted that they do not mention the failure to deal with internal relocation. That indeed was an error of law, although it may turn out that there was good reason why it was not a viable option for the claimant. 5 and 6 are errors of law, but by themselves would not necessarily require further evidence and so a subsequent hearing. The findings on credibility and the reasons given were undoubtedly somewhat unsatisfactory. Reconsiderations are limited to errors of law and poor factual decisions do not normally qualify, unless the reasons are clearly inadequate or the findings are irrational. I do not detect any obvious failure to take objective material into account and I am horrified at the criticism that the determination was too short. Most determinations are far too long and length is normally no indicator of a properly reasoned determination. However, I accept that the findings can properly be criticised as inadequately reasoned and confusing and overall the adjudicator's decision was sufficiently poor to require reconsideration. I would not therefore have allowed this claim on the merits.
29. As it is, the claim is dismissed.
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MR JUSTICE COLLINS: For the reason I which I have set out in the judgment, copies of which have been given in advance, I am proposing to dismiss this claim.

Are there any subsequent orders that need to be made?

MR MOSS: My Lord, on behalf of the Secretary of State, I apply for the First Defendant's costs in this matter. My Lord, this is a contested rolled-up hearing and in my submission the costs should follow the event. The Secretary of State accepts that there was an important issue at stake in this matter, but the single exercise, as Mr Tam described it, was very fully set out in the Secretary of State's summary grounds of defence.

MR JUSTICE COLLINS: Yes, but one of the arguments that you lost was equally important, which was disclosure of the pink form.

MR MOSS: That is right. What the Secretary of State does say about is that although the Claimant is publicly funded in this matter, this is a case that is obviously going to be ongoing before the AIT and it is not impossible that there might be future costs orders made against the Secretary of State, and the costs of these proceedings.

MR JUSTICE COLLINS: The Tribunal has now power to award costs, does it, except on a reconsideration?

MR MOSS: My Lord, no, but of course it is conceivable because of your Lordship's judgment that this matter might come before the Court of Appeal.

MR JUSTICE COLLINS: That is up to the Court of Appeal. That does not concern me at all, if someone takes it to the Court of Appeal, whether via the AIT or from me, although I cannot quite see there is much scope for either side to appeal my decision.

MR MOSS: My Lord, the submission that I make is that the point on which the Secretary of State won was the main argument in this case, the single exercise point, and that is the basis of my application.

MR JUSTICE COLLINS: The Claimant is publicly funded, is he not?

MR COORAY: My Lord, yes.

MR JUSTICE COLLINS: I know that votes matter, and so on, but really is this a case where it is sensible to ask for costs. You are never going to get anything, are you?

MR MOSS: My Lord, so be it.

MR JUSTICE COLLINS: Mr Cooray, so far as costs are concerned, I am inclined to say no order.

MR COORAY: Yes, my Lord. I am not raising that matter. I believe that this is an important issue, and, while I have taken note of your Lordship's judgment, there are two issues that concern me. That is firstly although through a circuitous route the Claimant can go to the Court of Appeal and challenge the initial decision or the preliminary decision of the AIT, today, with restricted legal aid, it would be impossible and also very long. Secondly, on the merits of the matter, your Lordship has agreed at least in large part with my submissions.

MR JUSTICE COLLINS: I have agreed that the reasons are inadequate. But the result would have been the same. What I am getting at is that I do not think you are right to say that there was no error of law in the Adjudicator's decision. Unfortunately both the adjudicators and the Senior Immigration Judge's decisions were bad, as far as reasons are concerned.

MR COORAY: The difficulty, my Lord, is that of course under the Rules only those specific areas which have been considered and where the AIT has granted leave can be considered by the transferred AIT.

MR JUSTICE COLLINS: There is nothing, is there, that is missing so far as consideration is concerned?

MR COORAY: My Lord, the main point I was trying to make is that I am seeking your leave to appeal to the Court of Appeal.

MR JUSTICE COLLINS: Yes, I thought you were.

MR COORAY: Because there is an important issue involved in this.

MR JUSTICE COLLINS: No, Mr Cooray, I do not think this is an appropriate case to grant leave to appeal, partly of course, or largely, perhaps, because it seems to me that there is no factual merit in the claim in as much as you would not succeed in establishing, even if I had been with you on the question as to whether judicial review was an appropriate remedy, you would not have succeeded in persuading me that judicial review would be granted. Accordingly, if this issue is to go further this is not the right way. If on the reconsideration the view is taken that there was indeed no error of law then you can take it, or try to take it to the Court of Appeal from there, if you lose the substantive appeal. You may win the substantive appeal, in which case the whole thing becomes academic anyway. So, no, I am not going to grant leave to appeal. You will want presumably the usual detailed assessment order for legal aid?

MR COORAY: Yes.

MR JUSTICE COLLINS: That of course you can have. I make it clear that although I have indicated that to take judicial review in this sort of situation would be an abuse of the process, I was not suggesting, and I hope it is clear that I was not suggesting that this application was an abuse of the process because this application was important to sort out the proper practice of the Tribunal.