A Failure to Provide Reasons - the Disciplinary Action Taken
36 The final argument advanced on behalf of Dr Soliman assumed that the first two arguments had been rejected and that his conduct fell within the definition of "misconduct" in cl 46.2.
37 Upon this assumption, the final argument was that the decision to demote Dr Soliman was a decision disproportionate to the "misconduct". Submissions had been advanced before the Vice President regarding both the existence of "mitigating factors" and the "sanction" being "neither fair nor reasonable". These submissions, it was said, had not been addressed by the Vice President in his reasons for decision.
38 The written "Outline of Submissions" provided to the Vice President emphasised from the outset what Dr Soliman regarded as the harshness of the decision taken by the Acting Vice-Chancellor. Those submissions thus identified the "Issues in dispute" as follows:
Issues in dispute
5. The issue before FWA is essentially whether the disciplinary decision to demote the applicant taken by the Acting Vice-Chancellor under the Agreement was the result of an appropriate operation of the Agreement. See, by analogy, Miller v University of New South Wales (2003) 132 FCR 174 at [73]. See also Soliman v University of Technology Sydney [2010] FWA 4324.
6. The applicant employee submits that the Agreement has been applied or operated so harshly, oppressively or unreasonably against him as to amount to an abuse: see North West County Council v Dunn [1971] HCA 34; (1971) 126 CLR 247 at 263; Victoria v Commonwealth [1995] HCA 45; (1995) 187 CLR 416 at 517.
7. There are three limbs to the applicant's argument before FWA:
a. The misconduct said to have occurred was not 'misconduct' within the meaning of the Agreement.
b. Alternatively, if it is found that the applicant's conduct was 'misconduct', there were mitigating factors that should have been taken into account, and if taken into account would properly (that is, fairly or reasonably) have led to a materially different result.
c. If it is found that the applicant's conduct was misconduct, demotion was neither a fair nor reasonable response in the sense that the sanction was disproportionate to the act.
The written "Outline of Submissions" reverted to the perceived harshness of the decision taken by the Acting Vice-Chancellor later when those submissions continued in part as follows:
There were mitigating factors that should have been taken into account
30. If it is found that the above policies did provide a clear benchmark and that the applicant has fallen short of that benchmark, then the applicant submits that the University should have taken into account the mitigating circumstances. These include:
a. The absence of any clear University policy on the issue.
b. The permitted discretion allowed to academics in respect of assessment and revision.
c. The divergent assessment practices throughout the University and the existence of similar practices in other units.
d. The previous absence of any interference by the University in relation to assessment and revision practices.
e. That it was the first time Dr Soliman had been the Subject Coordinator, thereby having control over the method and assessment strategy for the course.
f. The lack of any communication or guidance provided to Dr Soliman by the School of Management in relation to the setting of exams and revision classes.
g. The conduct was the same in relation to all three classes, so that no student was disadvantaged against the other.
h. The applicant's significant employment history and distinguished career (see Annexure A1 to Statement of Dr Soliman dated 7 September 2010) where no allegations of this type had been raised before.
The written submissions also continued on to state:
The sanction was neither fair nor reasonable
…
37. The following matters of relevance should have been given weight by the University.
The gravity of the conduct
38. The conduct, even as found by the Committee, did not involve acts of moral turpitude, stealing or deceit. …
39 It was also properly accepted by Junior Counsel for the University that the only reference made by the Vice President to the submissions advanced were the following:
Submissions
[24] Counsel for Dr Soliman submit that the issue in dispute is whether the Vice Chancellor's decision to demote Dr Soliman was the result of appropriate operation of the Agreement. They submit that the terms of the Agreement have been applied harshly, unreasonably or oppressively.
[25] Counsel for Dr Soliman submit that there were a number of mitigating factors that the Vice Chancellor should have taken into account when determining the appropriate disciplinary action to be taken against Dr Soliman. These include, the absence of a clear policy, the differing assessment practices used throughout the University, that Dr Soliman was coordinating the subject for the first time and had limited guidance concerning setting examinations and revision classes, that the conduct was the same in each of the classes and no student was disadvantaged against other students and Dr Soliman's employment history with the University.
…
[28] Counsel for Dr Soliman contend that the sanction imposed on Dr Soliman was disproportionate to the conduct and that Dr Soliman should be reinstated to his former position as Senior Lecturer with remuneration backdated to 15 January 2008.
But these statements were simply a restatement of the submissions. The only reference to the manner in which the submissions were resolved by the Vice President was again properly accepted by Junior Counsel for the University to be found in the following statements:
Conclusions
[31] This matter involves disciplinary action against a long serving academic over a most unfortunate incident concerning an examination in June 2007. Both the disciplinary action and the controversy concerning a breach of security over the examination are serious matters.
…
[43] In all of the circumstances I consider that the Committee was entitled to make the findings that it did and the Vice Chancellor was entitled to reach the conclusions on the misconduct and disciplinary action involved.
40 It is concluded that the final argument advanced on behalf of Dr Soliman should prevail. In reaching this conclusion, however, it is necessary to address a number of propositions.
41 First, and at its most fundamental level, there can be no doubting the proposition that Dr Soliman placed great significance upon his submissions that the decision taken by the Acting Vice-Chancellor was unduly harsh and disproportionate. Although there may be some doubt as to whether the Vice President adequately summarised these submissions in his reasons for decision, there can be no doubting the proposition that those reasons failed to resolve the submissions advanced. There was, for example, no finding of fact or reason which expressly addressed the submission that:
the sanction that was imposed was harsh and oppressive and sufficient to "amount to an abuse". If the University sought to rely upon the conclusion at para [43], even that conclusion was defective in that it employed language more appropriate in a judicial review application than that which is appropriate in a case where the merits of the decision are being reviewed. To conclude that the Acting Vice-Chancellor was "entitled to reach the conclusions on the misconduct …", really says nothing about whether or not the Vice President would also have made the same decision.
Moreover, the findings and reasons of the Vice President also fail (for example) to expressly address the submissions that:
there was "permitted discretion allowed to academics in respect of assessment and revision"; and
"… no student was disadvantaged against the other".
Although there is no requirement that a decision-maker need refer to every piece of evidence and every submission which may be advanced for resolution, no conclusion (with respect) is open in the present proceeding other than that the Vice President failed to engage with and address the submissions advanced in respect to the perceived harshness of the sanction imposed.
42 Second, in the absence of an express statutory requirement there is no general common law duty to provide findings or reasons for an administrative decision: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. See: Akehurst, 'Statements of Reasons for Judicial and Administrative Decisions' (1970) 33 Modern Law Review 154
43 Third, notwithstanding the absence of an express statutory requirement to provide reasons, a requirement to do so may be implied in circumstances where (for example) there is a right of appeal or a right to seek judicial review: Osmond (supra) at 666-667 per Gibbs CJ. See: Campbell, 'The duty to give reasons in administrative law' [1994] Public Law 184. But where the "legal rights as between an employee are determined", the decision in Osmond has been confined to "administrative decision-making and not to the exercise of judicial power": Campbelltown City Council v Vegan [2006] NSWCA 284 at [109]-[110], 67 NSWLR 372 at 394-395 per Basten JA. Handley JA (with whom McColl JA agreed) there expressed a broader view, namely that there was an "implied duty to give proper reasons" where "there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts": [2006] NSWCA 284 at [24], 67 NSWLR 372 at 377.
44 Fourth, where reasons have been voluntarily provided a court may look at the reasons which have been provided for the purpose of determining whether any grounds of review are available: Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 at [9] per Gray J. In East Melbourne Group Inc v Minister for Planning [2008] VSCA 217, 23 VR 605 at 661-662 Ashley and Redlich JJA have observed:
[228] In our view, reasons are no less important where an authority, though not under a statutory duty to provide reasons, provides reasons to explain the discretionary exercise of a statutory power. Where the authority gives reasons for its decision, the court may act upon them if they demonstrate an erroneous approach to an exercise of power. But like reasons given pursuant to a statutory obligation, reasons voluntarily provided should not be overzealously scrutinised.
45 Fifth, the extent of any such obligation to give reasons imposed upon the Australian Industrial Relations Commission has in any event been considered by a Full Court in Edwards v Giudice [1999] FCA 1836, 94 FCR 561. Edwards there applied to the Commission for relief in respect to what she regarded as the harsh, unjust or unreasonable termination of her services. A Commissioner ordered her reinstatement. A Full Bench granted leave to appeal and upheld the appeal. The Full Bench concluded that the Commissioner had failed to make findings as to whether Edwards had in fact engaged in the conduct relied upon to terminate her services. An application seeking orders (inter alia) quashing the decision of the Full Bench was dismissed. Moore J relevantly concluded:
[10] I should mention one further matter. While the Full Bench did not say so expressly, it appears to have proceeded on the basis that Commissioner Tolley had a duty to give reasons which addressed material issues of fact and law. It was correct in taking this approach. The powers exercised by the Commission in relation to an application under s 170CE in an arbitration involve the vindication of personal rights conferred by the [Workplace Relations Act 1996 (Cth)]. The proceedings result in inter partes orders: see s 170CI. As is apparent from the passage quoted from [Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 at 341-342), the exercise of those powers gives rise to quasi-judicial proceedings with a conditional right of appeal. An appeal is by leave. Though it was decided in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 that there is no general obligation to give reasons, there are many cases where the obligation does arise: see Fleming v The Queen (1998) 73 ALJR 1 at 7 [22]; 158 ALR 379 at 386 [22] and particularly when a right of appeal exists: see T v Medical Board (SA) (1992) 58 SASR 382; Re Saunders [1993] 2 Qd R 335 and Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729.
[11] A comparatively recent decision of the Court of Appeal, R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310, addressed whether the Civil Service Appeal Board of the United Kingdom was obliged to give reasons in relation to its consideration of penalty in a claim for unfair dismissal. Lord Donaldson said at 319: "Any other conclusion would reduce the board to the status of free-wheeling palm tree." In my opinion the subject matter of the power to arbitrate under s 170CG, when taken together with the conditional right of appeal conferred by s 45 and the grounds of appeal in s 170JF, point to the conclusion that the Commission is, when determining an application under s 170CE by arbitration, obliged to give reasons for its decision which deal with the material legal and factual issues presented for determination and which deal with the matters the Commission must consider because of s 170CG(3) and the relevant provisions of s 170CH. The power conferred by s 45(6)(b) is, in my opinion, not directed to the provision of reasons by the primary decision-maker against whose decision or order an appeal is brought. That provision is intended to facilitate the hearing of an appeal where the Full Bench seeks to investigate itself issues that were not investigated or investigated fully at the original hearing.
Marshall J there similarly concluded:
[44] In a seriously contested case before a tribunal which is required to afford procedural fairness and act judicially, an arbitrator is obliged to disclose the steps involved in the reasoning which leads to a particular result. There does not appear to be any obligation expressed in the Act to require a member of the Commission to give adequate reasons for a decision. It does not thereby follow, however, that in some cases such as strongly contested ones where a final order of significant consequence may be made that full reasons should not be given.
[45] As Deane J said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366:
"A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made."
[46] The obligation to give adequate reasons may more readily arise when a right of appeal lies from the order which gives effect to the decision at first instance, as is the case in the instant circumstances. Indeed a statutory right of appeal was considered by the New South Wales Court of Appeal as being a relevant "special circumstance" in the context of the portion of the judgment of Gibbs CJ in Osmond. See Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 per Priestley JA, with whom Powell JA agreed (at 734-5), and per Handley JA at 739.
[47] It should be noted that Full Benches of the Commission have thoroughly reviewed the obligation of Commission members to provide adequate reasons for decision on previous occasions and that their decisions accord with the views expressed above. See, for example, Re Astec Pty Ltd (1992) 45 IR 261 and Confectionery Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49 at 52. See also Dornan v Riordan (1990) 24 FCR 564, in the context of the obligation of the Pharmaceutical Benefits Remuneration Tribunal's duty to disclose its reasoning process, (at 568).
[48] Commissioner Tolley's reasons for decision did not disclose with any certainty an understanding of the reasoning process he applied. The Full Bench, in those circumstances, was entitled to reach the conclusion that the Commissioner was in error in deciding to make the order which flowed from his decision. Accordingly it is my opinion that the Full Bench made no error of law in granting leave to appeal and upholding the appeal. I agree with Moore J that the Full Bench was empowered to remit the matter to a Commissioner other than Commissioner Tolley pursuant to s 45(7)(c) of the Act.
That decision, it may be noted, says nothing expressly as to whether a failure to provide reasons constitutes jurisdictional error for the purposes of s 75(v) of the Commonwealth of Australia Constitution or s 39B of the Judiciary Act. Finkelstein J dissented. However, it is implicit from the judgments of the majority in Edwards that they considered that the decision of the Full Bench did not contain any relevant error, let alone jurisdictional error.
46 In the circumstances of the present proceeding, it is concluded that there was a requirement imposed upon the Vice President to provide reasons and findings in respect to his decision. That requirement is to be implied by reason of:
the fact that his decision affects the rights and livelihood of Dr Soliman;
the obligation on his part to comply with the common law requirements of procedural fairness;
the obligation on his part to act in a quasi-judicial manner;
the availability of a right of appeal from his decision, albeit subject to the grant of permission by the Full Bench; and
the availability of judicial review in respect to both his decision and that of the Full Bench.
The requirement to provide reasons also gives full effect to the majority decision of the Full Court in Edwards.
47 The consequence of there being a failure to provide findings and reasons where such a requirement or obligation exists, however, is less certain.
48 The submission advanced on behalf of Dr Soliman that the failure to provide findings and reasons constitutes either jurisdictional error or an error of law such that the decision of the Vice President should be set aside is rejected.
49 Even in a context where there is a statutory duty to provide reasons, a failure to provide reasons may not in itself be sufficient to warrant the decision being set aside: Repatriation Commission v O'Brien (1985) 155 CLR 422. Brennan J there observed in respect to the duty to provide reasons imposed by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth):
… It is not clear to me that the A.A.T. did fail to expose its reasons for rejecting Mr. O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: … An obligation to give oral or written reasons for a decision is cast on the A.A.T. by s. 43(2) of the A.A.T. Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so. An A.A.T. decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. In my opinion the reasons given by the A.A.T. in this case do not warrant an inference that it failed to review the Commission's decisions according to law. [(1985) 155 CLR at 445-446]
Subsequently, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, 216 CLR 212 when considering s 501G of the Migration Act, which imposed a requirement to give reasons, Gleeson CJ, Gummow and Heydon JJ concluded:
[46] … [F]ailure in the notification required by s 501G does not impeach the cancellation decision for jurisdictional error.
McHugh J similarly observed:
[55] The prosecutor contends that the Minister's failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority. Whether a scheme has that effect is determined by applying the principles stated by this Court in Project Blue Sky Inc v Australian Broadcasting Authority. In Project Blue Sky, the majority Justices rejected the traditional distinction between "mandatory" and "directory" requirements, saying that "[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". In determining the purpose of the legislation, regard has to be had to "the language of the relevant provision and the scope and object of the whole statute". In this case, it is beyond argument that the Act did not intend that failure to comply with s 501G should invalidate the decision to cancel a visa. Section 501G(4) of the Act states that "[a] failure to comply with this section in relation to a decision does not affect the validity of the decision".
See also: Seiffert v Prisoner's Review Board [2011] WASCA 148 at [162]-[179] per Martin CJ. Nor may a failure to provide reasons be sufficient to warrant part of a decision being set aside.
50 A failure to comply with a statutory obligation to provide reasons may constitute an error of law but it does not follow that a failure to do so constitutes jurisdictional error sufficient to warrant setting a decision aside either in whole or in part: Kennedy v Australian Fisheries Management Authority [2009] FCA 1485, 182 FCR 411. See also: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137 at [45]-[49], 179 FCR 554 at 562-563 per Bennett, Flick and McKerracher JJ; Sherlock v Lloyd [2008] VSC 450 per Kyrou J.
51 In circumstances such as the present, where there is no statutory requirement to provide either reasons or findings of fact, it would be difficult to conclude that a failure to do so constitutes jurisdictional error such as to warrant the decision of the Vice President being set aside. A similar reservation was expressed in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [21], 289 ALR 541 at 548 per Flick and Jagot JJ.
52 It would be equally difficult to conclude that an order in the nature of mandamus would be available. Mandamus "will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty": Re Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513 at 515 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ. "[C]ritical to the assessment of whether an arguable case sufficient to warrant grant of an order nisi is made out … is the identification of some duty of a public nature which remains unperformed": Re Reith; Ex parte Hollier (1998) 72 ALJR 1412 at 1414 per Hayne J. In the absence of any statutory requirement to provide reasons or to make findings of fact and in the absence of any common law "duty" to do so, it would be difficult to identify any "duty" which would attract the grant of the remedy.
53 But where findings of fact and reasons have been provided, and where those reasons fail to address a submission which has been advanced, it may found a conclusion that that submission has not been considered or addressed.
54 Such a conclusion may be available where there is a statutory requirement to provide findings and reasons. Thus, for example, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 a submission was advanced that a decision of the Refugee Review Tribunal should be set aside because the Tribunal had failed to provide adequate reasons. Section 430(1) of the Migration Act 1958 (Cth) required the Tribunal to prepare a written statement setting out "the reasons for the decision" and "the findings on any material questions of fact". Although it was concluded that s 430 did not require the Tribunal to make findings on every question of fact which it may be considered were material ([2001] HCA 30 at [8]-[10], 206 CLR 323 at 331-332 per Gleeson CJ), McHugh, Gummow and Hayne JJ observed:
[69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material … This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error … The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration …
What is of present relevance is the proposition that a failure to mention a particular matter may support a conclusion that that matter was not in fact considered. A failure to include a matter in a statement of reasons provided pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) may similarly justify an inference being drawn that that matter was not taken into account: Sullivan v Department of Transport (1978) 20 ALR 323 at 349 per Deane J, 352-353 per Fisher J; Alexander v Australian Community Pharmacy Authority [2010] FCA 189 at [56], 265 ALR 424 at 435 per Bromberg J. See also: Electronic Industries Ltd v The Mayor, Councillors and Citizens of the City of Oakleigh [1973] VR 177 at 188-189 per Gowans J. But the "mere fact that not every issue was addressed in the statement of reasons or in the departmental advice contained in departmental briefs does not prove that the material was not considered by the Minister": Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 399 at [123], 167 FCR 463 at 492 per North J. See also: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [96] per Cowdroy J.
55 Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error: cf. WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319. Lee, Carr and Tamberlin JJ there concluded:
[21] However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].
56 In the present proceeding it is concluded that the failure to refer to the submissions relating to mitigating circumstances and the reasonableness of the decision of the Acting Vice-Chancellor is properly to be characterised as a failure on the part of the Vice President to resolve, in accordance with law, the application that had been made.
57 Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case. Two factors, in particular, dictate the conclusion that the reasons of the Vice President fail to give any real consideration to the submissions advanced on behalf of Dr Soliman as to mitigating circumstances, namely:
the fact that the findings and reasons provided were written by an experienced, senior member of Fair Work Australia with legal qualifications and a person who had the considerable benefit of written submissions filed by experienced legal practitioners: Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [36], 290 ALR 326 at 337; Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia [2012] FCAFC 114 at [37] per Lander, Flick and Jagot JJ;
and, irrespective of any consideration being given to the qualifications and experience of the person who prepared those findings and reasons:
the fact that any reading of the findings and reasons of the Vice President disclose no real attempt to engage with the submissions being advanced on behalf of Dr Soliman.
The submissions advanced on behalf of Dr Soliman as to mitigating circumstances were not considered by the Vice President. The decision of the Full Bench gives no greater consideration to those submissions. Both the decision of the Vice President and the decision of the Full Bench, it is concluded, should be quashed.