Chey v Minister for Immigration - [2006] FMCA 1224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEY v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1224

MIGRATION – Review of decision by Migration Review Tribunal – alleged jurisdictional errors – bias – application dismissed.

Migration Act1958 (Cth), ss.359, 359A, 360
Migration Regulations 1994, sub-reg.1.5A(4)(3), 1.15A(4), 1.15A(4)(3)(d)

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44
SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724
SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303
Woods v Migration Agents Registration Authority [2004] FCA 1622
Re Refugee Review Tribunal and Another; Ex Parte H and Another (2001) 179 ALR 425
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:

PHENG CHEY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 441 of 2006

Judgment of:

Burchardt FM

Hearing date:

14 August 2006

Delivered at:

Melbourne

Delivered on:

6 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr. Gilbert

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondents:

Mr. Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 441 of 2006

PHENG CHEY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 30 March 2006, the Applicant applies for orders that the decision of the Migration Review Tribunal (“the Tribunal”) given on 3 March 2006 be quashed, and ancillary orders remitting the matter to the Tribunal to be determined according to law.
At the hearing of the matter, the Applicant relied upon contentions of fact and law filed on 5 July 2006, which raise four contentions of law which in effect were treated as the four grounds of attack upon the decision of the Tribunal.
The relevant background is set out in the contentions of fact and law filed by the parties and can be summarised as follows. (The succeeding paragraphs 4 – 25 repeat substantial parts of those contentions and are not, in my view, contentious).
The Applicant was married in Cambodia on 18 April 2001 to

Ms Channy Tong, an Australian citizen. On 3 September 2002, the Applicant lodged a combined application for a partner (provisional) (class UF) (sub-class 309) visa and a partner (migrant) (class BC) (sub-class 100) visa and Ms Tong acted as the nominator.
The Applicant arrived in Australia on 9 October 2002, following the issue to him on 10 September 2002 of a provisional sub-class 309 visa.
On 7 July 2003, the nominator, through her then Migration Agent, advised the First Respondent’s Department (“the Department”) that the parties’ spousal relationship was in question from November 2002. She advised that the parties had separated in March 2003 and were now living apart and that the Applicant had moved from Melbourne to Sydney. The advice to the Department from the nominator’s Migration Agent also asserted that the nominator was fearful of her safety at the hands of the Applicant, and also fearful for the safety of her family in Cambodia. It was asserted that the Applicant had threatened the nominator not to report him to the First Respondent.
On 12 August 2003, the Applicant was advised by letter from the Department that it had received information that the relationship with the nominator was no longer continuing. The letter invited the Applicant to provide additional information and documentation for further consideration of the application for a sub-class 100 permanent visa.
On 11 November 2003, the nominator telephoned an officer of the Department and advised that the Applicant wanted her to go to Melbourne to sign papers and that he would be sending her a ticket. She told the officer of the Department that she was very scared of the Applicant because of what he might do to her or her family and that she would be going to Melbourne.
On 3 December 2003, the Applicant’s new Migration Agent provided additional information and documentation to the Department. The letter from the Applicant’s Migration Agent, Erskine Rodan & Associates (“Erskine Rodan”) asserted inter alia that:
“Mr Chey and Ms Tong have instructed me that they are together in a genuine relationship. They were living apart for a short time because Mr Chey could not find work in Sydney.”
The other material sent by Erskine Rodan included a statutory declaration from the Applicant consistent with the assertion made by Erskine Rodan and a statutory declaration declared on 1 December 2003 from the nominator in more detailed terms, that likewise was consistent with a relationship that was not only enduring and committed but also had been so throughout its currency.
On 3 September 2004, a delegate of the First Respondent refused to grant the Applicant a spouse visa on the basis that he was not satisfied that the Applicant was the spouse (as defined) of the nominator.
On 22 September 2004, the Applicant applied to the Tribunal for review of the delegates’ decision.
On 8 December 2004, further information was provided to the Tribunal by Erskine Rodan by letter dated 1 December 2004. The correspondence from Erskine Rodan was more detailed than the earlier correspondence sent in 2003 but can fairly be described as painting the same picture as before. It was put that the couple had lived together from October 2002 until July 2003 in Sydney, at which time the Applicant had moved to Melbourne because he had a better chance of work. It was put that the parties were in a genuine and committed relationship. It was pointed out that the nominator was now pregnant and the couple were planning to start a family in Australia.
The material sent with the Erskine Rodan letter of 1 December 2004 included inter alia further statutory declarations by the Applicant and the nominator. That material was again in slightly greater detail than that filed the previous year. Relevantly, it asserted that the Applicant and the nominator had lived at 1/151 Canley Vale Road, Canley Heights address for about five months, after which they moved to friends at 5 Edmunds Street, Carramar. Following which, the Applicant moved to Melbourne where the nominator rejoined him in November 2003. Once again, the tenor of those statutory declarations was to the effect that the marriage was not only a genuine and committed one as at the date of the statutory declarations, but that it had been so throughout.
Further information was forwarded by Erskine Rodan to the Tribunal on 19 August 2005, being some photographs and a water bill.
On 22 September 2005, the Tribunal invited the Applicant pursuant to s.359 of the Migration Act1958 (Cth) (“the Act”) to provide it with additional information. The material requested went it may be fairly said, to the nature of the relationship between the Applicant and the nominator. On 7 October 2005, Erskine Rodan wrote again to the Tribunal providing further information. Amongst the material sent with that letter were further statutory declarations by the Applicant and the nominator, both declared it would seem on or about 14 October 2005. The statutory declaration of the nominator and that of the Applicant still maintained that they had lived together in a rented house in Canley Heights for about five months and then moved to friends, following which the Applicant was said to have gone to Melbourne in July 2003 and had been joined by the nominator in November 2003. The statutory declarations also addressed in greater detail the couple’s work and other relevant circumstances, not the least being the birth of their child, born on 7 April 2005.
On 25 November 2005, an officer of the Tribunal spoke to the nominator concerning the disclosure of information that the nominator had given to the Department about the Applicant in 2003. The nominator said that she did not want that information disclosed to the Applicant.
On 2 December 2005, the Tribunal invited the Applicant pursuant to s.359A of the Act to comment on information relevant to the existence of a genuine spousal relationship. The matters on which comment was sought were the earlier letter of 7 July 2003 from the nominator’s then Migration Agent and the telephone conversation with an officer of the Department in November 2003.
On 5 December 2005, the Tribunal invited the Applicant to appear before it on 19 January 2006.
On 16 December 2005, Erskine Rodan wrote to the Tribunal. For the first time it was revealed on the Applicant’s behalf that “there were very serious problems in the marriage from late 2002 until the couple settled together in Melbourne in late 2003”. The letter went on to assert in effect that while the nominator had advised the Department of problems, her assertions about the violence and her fear of the Applicant were not correct. The relationship had been ongoing and that the nominator was extremely concerned about any notification to the Applicant of the complaints that she had made to the Department. The letter requested a response from the Tribunal.
On 23 December 2005, the Tribunal responded. The Tribunal stated that it did not regard Erskine Rodan as the Applicant’s representative because Erskine Rodan had not given the information in the s.359A invitation to the Applicant for comment. It asserted that it would canvas the information at the Tribunal hearing.
On the same day, Erskine Rodan responded advising inter alia that the information had now been given to the Applicant.
On 11 January 2006, two further statutory declarations by the Applicant and the nominator were provided to the Tribunal. The Applicant asserted that he “did not ever consider that our marriage was over” and denied ever threatening to hurt the nominator or her family. The nominator likewise said that she had not been threatened but said that she was very angry with her husband “because he was not working and had friends around. I was just not happy with how our marriage was working out.” She also deposed that she was angry with the Applicant because she had been told that the Applicant had a girlfriend in Cambodia and, as a result, wanted the Applicant to leave Australia. She went on to say that things had got better after they settled together in Melbourne, that they had a baby son born on 7 April 2005 and that they were committed to making their life together.
On 19 January 2006, the Tribunal held a hearing at which evidence was given by the Applicant, the nominator, the Applicant’s mother and two friends of the Applicant.
On 3 March 2006, the Tribunal made its decision, affirming the decision under review. Essentially, the Tribunal did not accept that the parties were in a genuine relationship.
Before this Court, the Applicant advanced four grounds of criticism of the Tribunal’s decision. To an extent, some of those grounds overlap.

Breach of Section 360:

The essence of the criticism made under this heading was that the Tribunal fell into jurisdictional error because it “acted in breach of its obligation to invite the Applicant to appear before it to give evidence and present arguments relating to issues arising in relation to the decision under review” (see Applicant’s contentions of fact and law at paragraph 10).
What was put in respect of this ground was that the hearing was not directed to the central issue before the Tribunal, namely whether or not the Applicant and the nominator were in a genuine spousal relationship at the time of the decision. Rather, it was said, the hearing was almost completely preoccupied with the issues arising from the 2003 letter to the Department and the various inconsistencies in the Applicant and the nominators’ statutory declarations. It was put that the Applicants “simply did not have an opportunity to give evidence and present arguments on the issues arising” (see Applicant’s contentions of fact and law at paragraph 13).
It is common cause between the parties that an invitation pursuant to s.360 must not be a hollow shell or an empty gesture and must be a “real and meaningful” invitation (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 299) (“Scar”). I accept further that for the hearing to be meaningful, the parties must have an opportunity to put their case and must have, as Finklestein J put it, “a fair crack of the whip” (see Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44 at [9]) (“Tran”). His Honour Finklestein J’s remarks rose in the context of the obligation of the Tribunal to observe the rules of natural justice. The facts of Tran were very different from those in this case.
While it is true, as the Applicant asserts, that the Applicant’s representative, Ms Rodan, expressed objection (Court Book pages 72 to 73) to the way in which the hearing had been conducted, and while there were a number of argumentative interchanges between Ms Rodan and the Tribunal (a matter to which I will return later in these reasons). I do not think the material taken as a whole can fairly be said to suggest that the Applicant was not allowed to put his case. Evidence was called on behalf of the Applicant by the Applicant’s mother and two friends, Mr. Ruos and Mr. Chuon. There is no indication that the Tribunal sought in any way to exclude any of the material that had been filed on behalf of the Applicant.
Further, at the conclusion of the evidence of Mr. Chey (following an extended period of questioning by the Tribunal, predominantly about the various inconsistencies in the versions of events put forward by the Applicant and the nominator) the Tribunal at transcript page 32 asked “Is there anything arising out of that, Ms Rodan, out of your client’s evidence? You don’t want me to clarify or revisit anything?”

Ms Rodan replied “Not at this stage”.
At the conclusion of the evidence of the nominator, (transcript page 65) the Tribunal said:
“Mr Chey, is there anything that you wanted to add before I close the hearing? To which the interpreter replied on behalf of the Applicant “No, I don’t have any questions”.”
The Tribunal went on to say:
“Alright. Ms Chey, is there anything else you wanted to say before I close the hearing? (This question was clearly addressed to the nominator as the Applicant did not speak in English).”
To which the answer was:
“No, I just say please give us a chance, you know. I know I made mistake.”
Ms Rodan then announced that there were three other witnesses to give evidence and went on to say that “I just wanted to say, about the financial issues, that surely the issue is whether they have got dual financial ….”. To which the Tribunal replied “alright, perhaps we’ll leave it, because you’ll probably have other things to say at the end of the hearing. If we’ve got other witnesses, we’ll hear from them now.” Those other witnesses were then called. Following that, Ms Rodan at page 72 of the transcript made a number of observations from line 11 onwards. The burden of what Ms Rodan said was that the hearing had been over-focussed on the letters to the Department and the statutory declarations and that it had not focussed in any way on their relationship as it then was. She said, “they have given no evidence whatever about how they live, what they do, how their live [sic] is, about their financial relationship now, which gives the impression that you are basing your whole consideration of it on what happened in Sydney and what happened when they separated rather than of the relationship now”. The Tribunal replied, “there are two very big files here with all of that material on it. I didn’t want to waste anyone’s time by going over the material that it [sic] already on file about the social recognition and financial circumstances. I’ve seen all of that”. Ms Rodan replied, “Alright. Well, we’ll leave it at that. But it just seems to me that this hearing has been skewed on the problems and hasn’t looked in any way at the genuineness of their relationship now”. The Tribunal went on to reply with an analysis of some of the points that had been made.
No application was made by Ms Rodan for the admission of any further evidence by the Applicant or the nominator. While complaint was made of the manner in which the proceeding had been conducted, it is not possible to accept the proposition that the Applicant was prevented from putting forward any information that he desired to put forward.
While the proceeding before the Tribunal was heavily concentrated upon the various inconsistencies in the statutory declarations filed from time to time by the Applicant and the nominator, and most particularly the July 2003 letter and November 2003 telephone call, that concentration did not prevent the Applicants from putting before the Tribunal the materials that were already filed, which were dealt with in the reasons for the Tribunal’s decision (a matter to which I shall return), and no application was made to the Tribunal for the receipt of further evidence which was refused. Accordingly, in my opinion, the Tribunal did not fall into the error identified in Scar. The invitation to the hearing was not a hollow shell, nor was the Applicant deprived an opportunity to put his case.

Failure to Exercise Jurisdiction/Failure to Consider Claims:

The complaint here is that the Tribunal was so overborne by issues as to credit that it failed to carry out its statutory task, namely to consider the Applicant’s claim to be in a genuine spousal relationship as at the date of decision.
It was submitted (paragraph 15 – 16 of the Applicant’s contentions) that the Tribunal either failed to deal with the evidence put on behalf of the Applicant or did so in such a fashion as to dismiss it perfunctorily (in respect of the birth of the child of the Applicant and nominator) or simply got it wrong (in relation to the number and identity of witnesses having given evidence). It was submitted further, that the most significant aspect of the evidence, namely the birth of a child to the relationship, was acknowledged but not investigated or dealt with in any meaningful way. It was submitted that this issue warranted proper, genuine, and realistic consideration, not only at the hearing, but in the reasons for decision. Perfunctory dismissal of this aspect and the evidence in support without reasons was quite inadequate. In this regard the Applicant referred to SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 (“SZEJF”).
In SZEJF Rares J analysed the task before the Tribunal at paragraphs [37] to [41] of the reasons for decision. Rares J at paragraph [38] said, “In exercising its function of conducting the review of decision … the Tribunal cannot simply act perfunctorily. Nor can it shut its ears or eyes so as to ignore, consciously or inadvertently, the claims made by the Applicant for review (authority omitted)”. His Honour went on to say [at 39], “In arriving to what it considers to be the correct or preferable decision … (authority omitted) at the conclusion of its review … the Tribunal must give “proper, genuine and realistic consideration to the merits of the case” (authorities omitted)”. At paragraph [40], his Honour referred to “the inference which is open to a Court exercising the function of judicially reviewing a decision of the executive government that if the decision-maker does not give any reason for his or her decision, the Court may be able to infer that he or she had no good reason”.

Applying those observations to the circumstances of which complaint is made in this case, and bearing in mind the qualification referred to by Rares J in SZEJF at paragraph [41], that “reasons of an administrative decision maker are meant to inform and are not to be scrutinized upon over zealous judicial review”, it should be noted that:
a)The Tribunal did expressly refer to the fact that the Applicant’s mother had given evidence (paragraph 31 reasons of the Tribunal);
b)The Tribunal expressly noted the evidence given by the two friends of the Applicant, Mr. Ruos and Mr. Chuon (paragraphs 31 and 53 to 54 of the reasons for decision of the Tribunal); and
c)The Tribunal made findings in respect of the evidence given by the Applicant’s mother and Mr. Ruos and Mr. Chuon (at paragraphs 77 and 78 of its reasons for decision( (the reference in paragraph 77 to “the sponsor’s” mother is plainly an inadvertent error given the earlier accurate reference to that person in paragraph 31).
What the decision of the Tribunal did was to examine in some detail the versions of events given by the Applicant and the nominator. Most of the matters set out in paragraphs 1 to 56 of the Tribunal’s reasons are uncontroversial recitations of the events and the evidence given before the Tribunal.
The Tribunal then went on to set out (at paragraphs 57 to 69) its findings arising from what the Tribunal described as “the inconsistencies in the evidence in this case”. In my opinion, the conclusion arrived on that important issue of credit was open to the Tribunal on the material before it and does not disclose jurisdictional error.
Further at paragraph 69, the Tribunal expressly turned its mind to the matters required to be considered by sub-regulation 1.15A(4) of the Migration Regulations 1994 (“the Regulations”). In my opinion, the Tribunal correctly identified the task it was required to undertake. While it is true, as the Applicant asserts, that the birth of a child to the relationship did not receive extensive attention in the Tribunal’s reasons for decision, the Tribunal found that “the fact that the parties have had a child together, usually a very strong indicator of commitment, and appear to have lived together for six months, which also gives rise to presumption of genuineness. However those matters, which would in other circumstances be cogent evidence of a spouse relationship, are outweighed by the other evidence”.
The other evidence to which the Tribunal refers was of course the inconsistencies in the various accounts of the events provided by the Applicant and the nominator.
While minds might reasonably differ as to whether the Tribunal gave appropriate weight to the fact of the birth of a child of the relationship, this is not a ground for review (see SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303). Further, I am mindful of the qualification referred to by counsel for the First Respondent in the observations of Crennan J in Woods v Migration Agent’s Registration Authority [2004] FCA 1622 at [55] to [56] (“Woods”) as follows:
“55.The reasons of an administrative decision-maker should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way the reasons are expressed: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Whether the Tribunal failed to give proper consideration to the evidence before it is a question of fact not one of law: Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321; Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [152]. Where a Tribunal makes a wrong finding of fact within the jurisdiction, there is no error of law: ABT v Bond at 355-356; see also Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1263 per Gummow J. It should only be in exceptional cases where there is a clear case that there was no evidence to support a particular conclusion that the court should undertake the exercise of evaluating the evidence in circumstances where the Tribunal is the ultimate determiner of facts: Parks Holdings at [62]. This is not a case where there is no evidence to support a conclusion of fact nor was it a case where the conclusions drawn could be said not to have been open to the Tribunal. It is not a jurisdictional error for an administrative decision-maker to fail to refer to a piece of evidence: Ping, L.S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J. (Sheppard and Gummow JJ agreeing).
56.A Tribunal is not required to set out in its reasons a line-by-line refutation of the evidence led by the Applicant which is contrary to its findings or conclusions: see Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 at 422-423 per McHugh J. The Tribunal had regard to the evidence and made findings of fact, which were open to it and were not perverse. The Tribunal undertook the task of determining the facts without error in accordance with the principles referred to in the abovementioned authorities.”
For these reasons, I do not believe the assertion that the Tribunal failed to exercise jurisdiction and/or failed to consider claims is made out.

Apprehension of Bias:

Counsel for the Applicant put forward the argument on this ground in a global way. In paragraph 18 of the Applicant’s contentions of fact and law, which were repeated in oral submissions, it was stated:
“The Applicant relies upon the conduct of the Tribunal before the hearing, and the hearing itself, in support of this ground. Reliance is also placed on the decision of the Tribunal as a whole. The combined effect is that a reasonable observer would consider that the Tribunal has brought a closed mind to the issues under consideration.”
The conduct before the hearing referred to was constituted by correspondence between the Tribunal and Erskine Rodan in December 2005. On 16 December 2005, Christine Rodan wrote to the Tribunal stating inter alia that the nominator was extremely concerned that if her husband (“the Applicant”) was advised of her communications with the Tribunal, he would be extremely upset, and requested that the nominator be allowed to provide a written statement and give evidence to the Tribunal but with the Applicant excluded. That letter itself responded to the Tribunal’s letter to Erskine Rodan dated 2 December 2005.
The Tribunal responded by letter dated 23 December 2005, which it is clear from supplementary material filed by the Applicant was authored by the Tribunal member who heard the application. That letter stated inter alia “in light of your failure to provide the review Applicant with our letter of 2 December 2005, the Tribunal no longer regards you as the review Applicant’s representative in his application for review by the Tribunal” and went on to assert that the Tribunal would canvas the material earlier enclosed at the hearing and that the Tribunal was not prepared to take evidence from the sponsor in the absence of the review Applicant. The letter concluded, “please telephone me if you have any questions. You may reverse the telephone charges if this office is outside your local area”.
Ms Rodan replied by letter dated 23 December 2005, taking exception to the terms of that correspondence, but confirming that in the interim the relevant documents had been passed to the Applicant and that they had been explained to him in detail.
As I have said to both counsel for both parties during the running of the trial, I do not think that either Ms Rodan or the Tribunal deserve much criticism for this correspondence. Each was seeking to attain an end that could fairly be seen by them to have been reasonable. Initially, Ms Rodan was seeking to protect the interests of one of her clients i.e. the nominator, and the Tribunal by contrast was endeavouring to fulfil its statutory obligation to give the Applicant the proper opportunity to comment on adverse information. I do not think that a fair minded and informed observer would make over much of that exchange of correspondence.
It is true, as the Applicant has submitted that the course of the proceeding shows tension between Ms Rodan and the Tribunal. Examples can be seen on pages 11 to 13 of the transcript, pages 20 to 21 of the transcript and page 54 of the transcript. Ms Rodan also expressly complained at page 72 of the transcript what she described as the hearing being “very skewed on the problems and hasn’t looked in any way at the genuineness of their relationship now”.
In the end, when a submission of bias is put in this global way, the Court ultimately has to look at all of the material and form a view. In my opinion, taking the course of proceedings as a whole, a fair minded lay observer would not reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the question to be decided (see Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at 27).
While the Tribunal plainly resented what it saw as Ms Rodan’s interrupting its questions, the questions that the Tribunal were seeking to put do not, in my mind, go so far as to support a finding of bias.
The course that the proceedings took has to be seen in context. On the one hand, there was material filed by the Applicant and the nominator, supported by the three witnesses called on behalf of the Applicant, all of which was to the effect that the relationship was genuine and continuing. The Tribunal was obliged to have regard to that evidence and plainly did so.
The Tribunal was not, however, required to accept uncritically the evidence put forward by the Applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). In truth, there were only two possible outcomes available in the proceeding before the Tribunal. Either, the Tribunal was to accept the evidence of the Applicant and those who supported him, or the Tribunal had to come to a contrary conclusion as a result of the demonstrated untruths put forward by the Applicant and nominator, on any version of the events for which they contended.
Taking the materials before the Tribunal and the transcript of the hearing, as a whole, I do not find that the Tribunal’s decision was affected by bias as alleged by the Applicant.

Failure to deal with Regulation 1.15A(4)(3) of the Regulations:

The Tribunal expressly referred to the matters set out in sub-regulation 1.5A(4)(3) and dealt with each of them. It was not necessary, in my opinion, for the Tribunal to have dealt individually with each of the matters set out in each placitum to each sub-paragraph of that sub-regulation. While it is true that the Tribunal dealt with the birth of the child of the relationship under the sub-heading of the nature of the persons’ commitment to each other (i.e. sub-regulation 1.15A(4)(3)(d) rather than under sub-regulation 1.15A(4)(3)(b)), the fact is that the Tribunal did turn its mind to this issue. The observations of Crennan J in Woods quoted above are, in my view, applicable to this ground. The reasons of the Tribunal should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way reasons are expressed, and accordingly this ground must also fail.
In these circumstances, none of the grounds advanced by the Applicant having been made out, it follows therefore hat the application must be dismissed. The orders of the Court will be that the application will be dismissed and I will hear the parties on the question of costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 6 September 2006