An v Minister for Immigration
[2006] FMCA 1357
•17 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1357 |
| MIGRATION – Application to review a decision of the Migration Review Tribunal – refusal of Employer Nomination (Residence) (Class BW) visa – whether the Tribunal failed to ask itself the correct legal question: whether the applicant’s appointment to business was exceptional – whether the Tribunal breached section 348 of the Migration Act by failing to consider the applicant’s case – whether policy ultra vires and outside of the regulations – no jurisdictional error – application dismissed. |
| Migration Regulations 1994 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.348, 476 |
| Vetter v Lake Macquarie City Council (2000) 202 CLR 439 Re MIMA; ex parte Cohen (2000) 177 ALR 473 Hope v Bathurst City Council (1980) 144 CLR 1 Abebe v Commonwealth (1999) 197 CLR 510 Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 Narayan v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 789 Narayanv Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1745 Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1575 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 |
| Applicant: | JUNG KUK AN |
| Second Applicant: | SOON JIN LEE |
| Third Applicant: | JI HYUN AN |
| Fourth Applicant: | JI SON AN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1602 of 2006 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 12 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $3500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1602 of 2006
| JUNG KUK AN |
Applicant
| SOON JIN LEE |
Second Applicant
| JI HYUN AN |
Third Applicant
| JI SON AN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Migration Review Tribunal (the Tribunal) dated 8 May 2006 affirming a decision of a delegate of the first respondent not to grant to the applicant and his family an Employer Nomination (Residence) (Class BW) visa. As only the first applicant made substantive claims he will be referred to henceforth as the applicant.
The applicant, a national of Korea, arrived in Australia on 17 October 1998 on a Subclass 976 (Electronic Travel Authority) visa.
On 13 January and 3 May 1999 respectively the applicant was granted a Visitor – Long Stay Subclass 686 visa. On 11 February 2002 he was granted a Subclass 457 (Business – Long Stay) visa as a dependent applicant which expired on 11 February 2004. The applicant has held a Bridging visa since that date. On 10 February 2004 the applicant, together with his spouse and two daughters applied for a Employer Nomination (Residence) (Class BW) visa. In support of that application the applicant relied upon the nomination of his employer, Toy Hut Company (ABN 39 851 636 155) for the position of Production Supervisor and Toy Designer. The nomination was approved on 24 February 2005 for the position of Industrial Designer (ASCO code 2533-15). On 24 February 2005 a delegate of the Department of Immigration and Multicultural and Indigenous Affairs (the Department) refused to grant the said visa on the basis that the applicant did not have vocational English. On 20 March 2005 the applicant applied to the Tribunal for review of that decision. In that application the applicant stated: The applicant failed to meet subclause 856.213(c)(ii) to demonstrate vocational English or to be approved as an exceptional appointment on the English language requirement. Therefore the applicant will demonstrate vocational English to show a score of at least 5 in each of the components of the IELTS test (see page 74 of the Court Book).
At the time of application the applicant was required to meet the criteria under Schedule 2, clause 856.213 of the Migration Regulations 1994 (the regulations): It provides:
“856.213 The applicant:
(a) has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and
(b) is a highly skilled person, within the meaning of Regulation 5.19, in relation to that appointment; and
(c) unless the appointment is exceptional:
(i) has not turned 45; and
(ii) has vocational English.
The applicant was also required to meet vocational English as defined in regulation 1.15B:
In this regulation:
"vocational English" , for a person, has the meaning given in subregulation (3) or (5).
(2) Subregulation (3) applies to a person if, on or after 1 July 1999, the person has applied for a visa a criterion for the grant of which is that the person has vocational English.
(3) A person to whom this subregulation applies has vocational English if:
(a) the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the
4 test components of speaking, reading, writing and listening in a test conducted:
(i) not more than 12 months before the day on which the application was lodged; or
(ii) during processing of the application; or
(b) the Minister:
(i) determines that it is not reasonably practicable, or not necessary, for the person to be tested using the IELTS test; and
(ii) is satisfied that the person is proficient in English to a standard that is not less than the standard required under paragraph (a).
(4) Subregulation (5) applies to a person if, before 1 July 1999, the person has applied for a visa a criterion for the grant of which is that the person has vocational English.
(5) A person to whom this subregulation applies has vocational English if the person satisfies the Minister that he or she is proficient in English to at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6.
The amended application
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.476 of the Migration Act 1958 (Cth) (the Act) the applicant filed an application for review in this Court on 5 June 2006 and relies upon his amended application filed 29 August 2006. That application alleges that the Tribunal decision is affected by jurisdictional error as follows:
The Tribunal failed to ask itself the correct legal question: whether the relevant “appointment is exceptional”.
This ground is particularised as follows:
(a) The Tribunal simply addressed the questions of whether the applicant had made a concerted effort to learn English and would be able to pass on skills to any English (and non Korean) speaking employees who may be hired in the future.
(b) The Tribunal addressed what it considered to be the policy behind the relevant regulation, rather than the regulation itself.
(c) The policy applied by the Tribunal is ultra vires Migration Regs, Sch 2 para 856.213(c) in that:
(i) The stated policy narrows the meaning of the words, “unless the appointment is exceptional”, in para 856.213(c) inconsistently with the plain meaning of those words.
(ii) Migration Regulations, Sch 2 Part 856.213(c) does not permit labour market testing in circumstances where such testing is required by Reg 5.19(2)(e) before approval is granted for an employer nomination.
The second ground alleges:
The Tribunal failed to consider the case put before it as to the requirements of the relevant appointment – those being a vocational knowledge of Korean, supervisory, toy design and production skills – and thus failed to ask itself the correct question, take relevant considerations into account, and conduct a review contemplated by s.348 of the Migration Act.
The Tribunal decision
A Tribunal hearing was held on 29 March 2006 and the applicant attended with his representative and gave oral evidence with the assistance of a Korean interpreter. The applicant’s employer and manager and part owner of Toy Hut, Mr Gak Hee Lee also attended and gave evidence. In a letter dated 13 January 2006 the Tribunal requested the following information:
a)Evidence that the applicant had vocational English and evidence that he had attained a score of at least 5 in each of the components of the International English Language Testing System (IELTS) test; and
b)A statement from Toy Hut Company addressing the following:
i)Why the nominated position should be considered exceptional on English language and age grounds; and
ii)Why the nominated position is essential to the operation of the business; and
iii)Details of the company’s current employees and current training program; and
iv)The applicant’s current role in providing training to English speaking employees; and
v)The company’s management policy for Occupational Health & Safety (OH & S) responsibilities; and
vi)
Explanation of the applicant’s role in implementing the
OH & S policy.
That evidence was submitted to the Tribunal in a letter dated
9 February 2006. Included in that letter was the business’ OH & S training manual, a toy design plan, evidence of another employee’s enrolment at university and new IELTS test results dated 12 November 2005 showing an overall score of 3.5 in English vocation.
In its reasons for decision the Tribunal noted that when the nomination was lodged Toy Hut claimed that it was a partnership with Mr Lee and his wife as partners. According to that information the business manufactured soft toys for the souvenir market. At the time of the application the business employed both Mr and Mrs Lee, an accountant (the applicant’s wife), four machinists/junior sewing designers and approximately 20 subcontractors and a part time trainee who studied design at university.
The Tribunal was advised that Toy Hut commenced operation in 1994 and as the business was expanding it required the services of a production supervisor as the Manager was not able to undertake and his work in addition to managing the business. The Tribunal was told that the applicant had responsibility for all aspects of production supervision, quality control, implementation of safety requirements, control of production reports and directing production activities and training. The Tribunal was told that the applicant’s responsibilities included designing products, preparing the sketches and consulting with customers in relation to the design of materials. He would also undertake research and develop and consider the aspects of design and production such as the availability of material, production methods, new technology and marketing. He would also oversee junior sewing designers and modify designs to meet manufacturing or cost requirements. The position would require a person with at least 10 years experience in production management.
The applicant submitted to the Tribunal an employment certificate from his previous employer which confirmed he had worked for the company from 25 August 1988 to 30 September 1998 in the capacity of production supervisor in a section that produced soft toys.
The certificate also confirmed that the applicant was experienced in soft toy design and had trained staff.
In its written material Toy Hut requested that the applicant’s appointment to the position of Production Supervisor be considered exceptional. The submission stated that the applicant had been employed by the business since 27 January 2004. It stated that the business urgently needed to secure a production supervisor and toy designer for success and that Australia would benefit from increased training opportunities for Australians and increased job opportunities, business for local suppliers and greater competition among soft toy manufacturers. It also stated that the applicant’s skills in soft toy design and production could be transferred to Australian workers.
Mr Lee in his submission outlined the benefit to Australia that would result from the employment in similar terms. Mr Lee claimed that the applicant had trained others for design skills, sketches of designed soft toys, identification of fabric characteristics, appropriate use of fabrics and tools. He also claimed that the applicant demonstrated the skills very well to English speaking employees and stated that a trainee studying design was able to assist in enabling the applicant’s skills to be transferred to English speaking employees. It was further claimed by Mr Lee that the business had benefited from the applicant’s contribution to its development.
The Tribunal noted and had regard to a number of documents including three character references from clergymen and evidence that the applicant’s daughters were enrolled at school. The trainee stated in a letter that she had received training from the applicant and described him as clear and precise when giving instructions and explanations.
In his oral evidence the applicant stated that Toy Hut first employed his wife as the sponsor of a subclass 457 visa at which time he was subcontracted with Toy Hut. However since he was employed by Toy Hut they no longer employed his wife because they were unable to afford to employ both of them and her English was not sufficient.
The applicant stated that he had been previously employed in a soft toy business in Korea from 1988 to 1998. He told the Tribunal that he first commenced employment in administration and then in 1993 or 1994 he was promoted to production supervisor and also did some design work. He told the Tribunal that his career had been in administration and production supervision but by working with designers he had acquired a level of skill. He told the Tribunal that only 20% of his time at
Toy Hut is spent in design as the toys had largely been designed by the time he began but that they were looking at new designs. The applicant told the Tribunal that he had undertaken some part time English courses and attended classes but had not had time to undertake an intensive English course. He told the Tribunal that all employees at Toy Hut were Korean speaking and that Korean was the only language of the workplace.
The Tribunal noted that it asked the applicant if he had read or implemented the OH & S training manual. The applicant stated that he had not been able to read all of it but he had attended an OH & S induction course on 16 March 2006 with the assistance of a Korean interpreter. The Tribunal noted that it asked the applicant to describe his training activity. He told the Tribunal that he had trained Ms Jenny Kang (the part time trainee) but he had not trained the machinists although sometimes he taught them the process of toy making and how to make toys look more natural. The Tribunal noted that the applicant submitted a CD which showed him at work demonstrating the use of metal pattern to cut out material shapes and explaining other aspects of the process in Korean.
The Tribunal received evidence from the applicant about his duties as set out in the job description. He told the Tribunal that he was not responsible for meeting with customers to discuss designs. Although new designs were not now required both he and Mr Lee were preparing some new toys in order to have new products to meet their competition. He told the Tribunal that his main job was to check on the machinists and supervise their work. The applicant told the Tribunal that he was fit and healthy and worked 40 hours each week, sometimes more.
Mr Lee told the Tribunal that he had owned the business for 13 years and prior to January 2004 there had been another manager who had left. When he left Mr Lee said he wanted to replace him with the applicant. Mr Lee told the Tribunal that he estimated that the business’ turnover had been steady in the past few years at about $600,000.
He told the Tribunal that there were two employees less and approximately 13 contractors who did piece work at home, compared with 20 contractors claimed at the time of nomination. He told the Tribunal that the machinists employed at the business were learning design including Ms Kang who worked 20 hours each week. Mr Lee told the Tribunal that the business had in the past employed
non-Korean speaking people but they did not stay long because they did not speak Korean disliked the smell of the food and found it difficult to fit in and co-operate.
The Tribunal asked Mr Lee if the business had expanded since the applicant began working there. Mr Lee told the Tribunal that the business was improving but the Tribunal noted that he did not provide any specific details. He told the Tribunal that he and his wife designed the toys and the applicant managed the factory and the cutting of the steel patterns. He told the Tribunal that the applicant had helped the business to be more efficient in the use of materials. He also told the Tribunal that the applicant demonstrated skills in estimating materials required and placing people in the position and managed the subcontractors when they brought their work to the office.
The Tribunal noted that Mr Lee claimed that it was not possible to find a suitably qualified person with functional English locally and that there was no evidence that he had tried to recruit overseas.
The Tribunal noted that Mr Lee presented evidence of labour testing to the Department. It noted that Toy Hut only employed Korean speaking people including subcontractors. It noted that Korean is the only language spoken in the business and the CD provided to the Tribunal shows the applicant speaking Korean to employees when explaining aspects of their work. The Tribunal stated that non Korean speaking employees are effectively barred from working at Toy Hut or receiving training from the applicant. The Tribunal noted that the applicant had not been able to take OH & S training without the assistance of an interpreter and was not able to implement that training or pass on those measures to non Korean speaking people.
The Tribunal noted that although detailed training plans both for toy design and for OH & S measures were presented to the Tribunal as programs drawn up for Toy Hut, the programs had not been implemented to any meaningful degree. It noted further that the applicant had only undertaken OH & S training in March 2006.
The evidence given at the Tribunal hearing suggested that the toy design program had not been implemented.
The Tribunal found that although the applicant had been living in Australia since 1998 and working as a contractor for Toy Hut and from January 2004 as a full time employee, his exposure to English in his daily life was limited. The applicant told the Tribunal that where necessary he asks his daughters for assistance in translation.
The Tribunal found that although he has been able to function in the business that is due not to the improvement in his English but to Korean being the only language spoken in the workplace.
The Tribunal was not satisfied that the applicant had made a concerted effort to learn English in the eight years he had lived in Australia.
The Tribunal was not satisfied that he was able to pass on his skills as a production supervisor or toy designer to non Korean speaking employees or that he would be able to undertake all the responsibilities and duties of the position including OH & S training and supervision particularly if Toy Hut were to employ non Korean speaking people. The Tribunal found that it was not the policy intention of the legislation that a person should not be able to pass on skills and supervise a workplace unless it confined to people who speak that person’s language. The Tribunal noted that the policy guidelines address other special situations such as congregations of religious workers.
The Tribunal found that it was not satisfied that the appointment is exceptional. Accordingly, as the appointment is not exceptional on the grounds of English it was unable to reach a finding that the applicant satisfied the essential criteria. As to the submission by the applicant that the appointment should be considered exceptional on the grounds of age the Tribunal noted that the policy stated that if the applicant is over 45 and under 50 years of age the appointment may be considered exceptional if the position is essential to the operation of the business and the employer demonstrates that it is not possible to find a suitably qualified person younger than the applicant. The Tribunal did not consider it appropriate to seek further evidence on this point but it accepted that the appointment is essential for the business and found that the nomination met labour testing requirements.
I now propose to deal with each of the grounds as they appear in the amended application.
Ground one: Did the Tribunal ask itself the correct legal question: whether the appointment is exceptional
Ground 1(a) of the amended application alleges that the Tribunal fell into jurisdictional error by only considering whether the applicant had made a concerted effort to learn English and whether he would be able to pass on his skills to future non Korean speaking employees.
In doing so it was claimed that the Tribunal failed to correctly ask whether the applicant’s appointment to the position of Production Supervisor/Toy Designer was exceptional for the purposes of Schedule 2, clause 856.213(c) of the regulations.
In its decision the Tribunal correctly noted that at the time of application the Employer Nomination (Residence) (Class BW) contained the following subclasses: subclass 856 (Employer Nomination Scheme) and subclass 857 (Regional Sponsored Migration Scheme). It noted that the applicant only sought a subclass 856 visa and therefore was required to satisfy the criteria in 856.231 which is correctly stated at paragraph 7 of the Tribunal decision and extracted at page 205 of the Court Book.
The Tribunal accepted that the applicant had been nominated by
Toy Hut in accordance with regulation 5.19(2) for the position of Production Supervisor/Toy Designer (ASCO Code 2533-15-Industrial Designer). However, as the applicant failed to achieve the prescribed vocational English requirements pursuant to regulation 1.15B the Tribunal rightly understood that it was required to consider whether the appointment was exceptional.
Whether or not the applicant’s appointment to the business was exceptional was a finding of fact and not one of law (Vetter v Lake Macquarie City Council (2000) 202 CLR 439 at [24] - [27], per Gleeson CJ, Gummow and Callinan JJ; Re MIMA; ex parte Cohen (2000) 177 ALR 473 at [35], per McHugh J). In any event the ordinary meaning or common understanding of a non-technical word is generally a question of fact (Hope v Bathurst City Council (1980) 144 CLR 1; Cohen (supra)). Even if the Tribunal made a wrong finding of fact it would not give rise to jurisdictional error. There is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137], per Gummow and Hayne JJ).
Ground 1(b) of the amended application alleges that the Tribunal fell into jurisdictional error in considering the policy behind the regulations rather than the regulation itself.
I reject this ground. It is plainly apparent that the Tribunal considered the regulation. As the Tribunal correctly noted, it was then required to consider whether the applicant’s appointment was exceptional. It was reasonably open to the Tribunal to apply the policy at paragraphs 45 and 46 as it correctly noted at paragraph 7 of its decision. It is well established that it is the function of the Tribunal to have regard to policy and if there are cogent reasons for departing from it the Tribunal is permitted to do so (see Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634 at [645], per Brennan J). There is no error in applying policy (Narayan v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 789 at [54] – [56], per Sackville J and affirmed on appeal in [2001] FCA 1745 at [45], per Lindgren, Tamberlin and Merkel JJ; Fraser v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1575 at [35] – [38], per Weinberg J) unless the Tribunal misapplied or misunderstood the policy (Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at [208], per French and Drummond JJ).
Ground 1(c) of the amended application alleges that the policy at paragraphs 45 and 46 is ultra vires. In particular the applicant alleges that the findings at paragraphs 47 to 50 of the Tribunal decision are inconsistent or ultra vires with respect to the wording of 856.213(c).
At paragraphs 45 and 46 the Tribunal sets out policy relevant to whether the appointment is exceptional. Mr Karp of Counsel argued that the first and third points were not matters relevant to whether the applicant’s appointment was exceptional and on that basis are ultra vires. Policy could only be said to be ultra vires if the policy directed consideration to matters that fell outside of the words “unless the appointment is exceptional”. The said policy applied by the Tribunal is as follows:
1. a suitably qualified person with functional English is not available from the local labour market or overseas and
2. a person with less than functional English is able to undertake all the responsibilities and duties of the nominated position including occupational health and safety training and supervision considerations and
3. the prospective visa applicant worked in the nominated position in Australia on a temporary residence visa, eg a subclass 457 visa, for a reasonable period (at least 12 months) immediately prior to the visa application being made and had during this period undertaken some training in English.
4. It would normally be expected that appointments be considered exceptional for the English language requirement only if the applicant is to work in an occupation where it is not essential they have vocational English to transfer their skills to the Australian workforce. These situations may occur in special circumstances where most of their work to be performed is in their own language, such as religious workers.
Mr Karp argued that the first and third matters were not relevant to whether the applicant’s appointment was exceptional and on that basis the policy is ultra vires as the policy narrows the meaning of the term unless the appointment is exceptional. Mr Karp argued that the findings made at paragraphs 49 and 50 fell outside of the regulations and the policy as it was not relevant to whether the appointment was exceptional. In my view the policy stated at paragraphs 45 and 46 was relevant to the question of whether the appointment was exceptional.
The Tribunal at paragraphs 47 to 50 applies the matters set out in the policy. It has regard to the evidence from Mr Lee. It considers the fact that the applicant is not able to undertake all of the responsibilities of the position including occupational health and safety training and notes that the applicant is unable to undertake occupational health and safety training without the assistance of an interpreter.
The requirement that the applicant be able to transfer his skills to other Australians in the workforce is a matter the Tribunal considers at paragraph 50 of its decision. Mr Karp took issue with the finding: The Tribunal is of the view that the policy intention of the legislation is not that a person should be able to pass on skills and supervise a workplace that is confined to people who speak that person’s language. I find that in my view that was reasonably open to the Tribunal.
The fact that the applicant’s workplace comprised only people who spoke Korean is irrelevant to the fact that the applicant could not speak the requisite level of vocational English.
As to the exception for religious workers stated in the policy, it was reasonably open for the Tribunal to have regard to what is a normal factory workplace (albeit with Korean speakers). The situation is not analogous to that of a religious workplace where there may be specific cultural reasons requiring that the work be performed in a particular way.
In relation to the question of whether there had been local labour testing under regulation 5.19(2)(e)(i) the Tribunal was required to consider the possibility of there being suitably qualified persons with functional English available from overseas the Tribunal noted that there was no evidence that the business had tried to recruit a suitable person to fulfil the nominated position. I am therefore not satisfied that there is any inconsistency in regards to regulation 5.19(2)(e)(i).
Ground two: whether the Tribunal failed to consider the case put before it as to the requirements of the relevant appointment and thus failed to ask itself the correct question, take relevant considerations into account and conduct a review pursuant to section 348 of the Migration Act
The final ground relied upon by the applicant alleges that the Tribunal failed to consider the applicant’s case, failed to take into account relevant considerations and thus failed to conduct a review under s.348 of the Act. This ground asserts that the Tribunal failed to consider all of the requirements for the nominated position. More specifically this ground alleges that the Tribunal failed to consider the requirements of the business which included the requirement that the nominee be skilled in management, skilled in supervising software production, skilled in the design of soft toys and that the nominee be a Korean speaker. Mr Karp argued that the Tribunal failed to consider whether the nominated position with those necessary criteria was exceptional.
In this regard I note that in response to the Tribunal’s letter of
13 January 2006 the applicant provided detailed submissions regarding the requirements of the applicant’s position as Production Supervisor/Toy Designer. In its decision the Tribunal sets out the evidence taken from the applicant and Mr Lee and it notes the written material submitted on behalf of the applicant.
I am satisfied that the Tribunal did ask itself the correct question and that had regard to the evidence of the applicant and his employer. I am also satisfied that the Tribunal had regard to the written evidence presented in the letter of 9 February 2006.
The role of the Court is limited to jurisdictional error. It is not a merits review. The Tribunal itself recognised the many positive skills of the applicant but his vocational English skills were below the level required and the Tribunal made a finding of fact that the applicant’s circumstances were not exceptional. I do not see any apparent error and on that basis the application should be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 17 October 2006
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