Dang and Minister for Immigration & Multicultural and Indigenous Affairs
[2003] AATA 268
•24 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/58
GENERAL ADMINISTRATIVE DIVISION ) Re YU BIN DANG Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal The Hon R N J Purvis Q.C. Deputy President Date24 March 2003
PlaceSydney
Decision The decision under review is set aside, and the matter remitted to the Respondent with a direction that the discretion to not refuse the grant of a spouse visa be exercised in favour of the Applicant. [SGD] The Hon RNJ Purvis Q.C
Deputy President
CATCHWORDS
IMMIGRATION - Spouse visa application - whether Applicant passes the character test - substantial criminal record - whether discretion should be exercised - Protection and Expectations of the Australian Community - minimal risk of reoffending - significant rehabilitation - academic achievements - prospective contribution to the Australian Community - hardship to immediate family - decision set aside
Migration Act 1958 - section 501
Direction No.21 - Direction - Visa Refusal and Cancellation under Section 501
REASONS FOR DECISION
24 March 2003 The Hon R N J Purvis Q.C. Deputy President the application
1. This is an application by Ms Yu Bin Dang ("the Applicant") seeking review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") refusing to grant to her a subclass 831 Spouse visa.
2. The relevant decision was given to the Applicant on 3 January 2003. In the notice of decision to refuse the grant of a visa it was stated:
"On 17 December 2002, you were informed that the Minister for Immigration and Multicultural Affairs intended to examine whether there were grounds to refuse your application for a visa under section 501 of the Migration Act 1958 (the Act). You were previously advised on 18 October 2002, that your criminal history may have an adverse effect on your immigration status.
You responded in writing by letter dated 29 October 2002 and 12 December 2002. Your comments were carefully considered and taken into account. The delegate of the Minister for Immigration and Multicultural Affairs has, after exercising the discretion, decided to refuse the grant of visa to you pursuant to s 501(1) of the Act. The particular ground under which you do not pass the Character Test is s 501(6)(a) of the Act."
the hearing
3. At the hearing of the application before the Tribunal the Applicant was represented by Mr Simon Jeans of Messrs Simon Jeans and Associates Solicitors, the Respondent by Ms Karen Gettens of Messrs Blake Dawson Waldron Solicitors.
4. The documents lodged with the Tribunal pursuant to section 501G of the Migration Act 1958 ("the Act") were admitted into evidence and marked G1 to G45. The Applicant caused to be tendered the following documents which were also admitted into evidence and marked accordingly:
Exhibit
Description
Date
A
Statutory declaration of Yu Bin Dang
7 March 2003
B
Statutory declaration of Ivan Ng
25 February 2003
C
Statutory declaration of Ngan Leng Fok
25 February 2003
D
Report of Bogdan Smeu-Kirileanu
7 March 2003
E
Pre-Release report from Department of Corrective Services, Laura Kelly
22 October 2002
F
Report of Dr Bruce Westmore
19 April 1996
G
Report of Dr Bruce Westmore
3 August 1998
H
NSW Department of Corrective Services summary Conviction, Sentences and Appeals
28 February 2003
J
New South Wales Court of Criminal Appeal decision R v Dang [1999] NSWCCA 42
2 March 1999
K
Two Notices of Assessment (Tax)
26 September 1997; 29 October 1998
L
Letter from the Department of Immigration and Multicultural Affairs to Ms Dang
3 January 2003
M
Report of Dr Susan Lawrence
17 February 2003
N
Report of Dr Ming-sum Lau
4 March 2003
O
Certificate of Australian Citizenship Wai Sam Ng
P
Certificate of Australian Citizenship Ngan Leng Fok
Q
US Department of State Report on China
5. The Applicant, her husband Mr Ivan Wai Sam Ng, her mother-in-law Mrs Ngan Leng Fok, Ms Laura Kelly, a Probation and Parole Officer, Ms Christine Giller, a Prison Chaplain, and Mr Bogdan Smeu-Kirileanu, Psychologist, gave evidence upon which, except for Mrs Fok, they were each cross-examined.
the issues
6. As enunciated on behalf of the Applicant the issues for determination in this matter are:
· whether the Applicant meets the Character Test as defined by section 501(6)(c)(i) of the Act on the basis of her substantial criminal record; and
· if the answer to the first issue is in the negative whether the Tribunal should exercise its discretion under section 501(1) of the Act in favour of the Applicant.
chronology of relevant events
1955 -
18 August Applicant's husband Ivan Ng (the husband) born in Shanghai China
1958 Husband's mother leaves China with children for Macau
1976 Husband travels to Australia
1984 Husband's mother migrates to Australia
1985 –
26 January Husband granted Australian Citizenship
1988 –
20 December Husband's mother granted Australian Citizenship
1993 –
6 October Applicant meets husband in Macau
1995 –
23 March Applicant granted subclass 300 prospective marriage visa
8 May Applicant arrives in Australia
1 July Applicant marries Mr Ivan Ng
31 July Applicant lodges application for subclass 831(permanent marriage) spouse visa
26 November Applicant commits offences of manslaughter and malicious wounding
27 November Applicant charged and remanded in custody
1996 -
25 March Applicant granted bail and released into community
1998 -
6 July Applicant convicted of manslaughter of Shen Hui and the malicious wounding of Vania Ng
28 August Applicant sentenced to six years imprisonment for manslaughter with a four and half year non parole period and four year concurrent sentence for malicious wounding
2001 -
10 July Serious Offenders Review Council recommends Applicant be granted educational leave including unescorted leave to attend University of Western Sydney
11 July Commissioner of Corrective Services approved recommendation
27 August Commissioner refers matter back to serious Offenders Review Council
29 August Serious Offenders Review Council re-affirms previous recommendation
29 August Commissioner for Corrective Services rejects recommendation
2002 -
19 February Serious Offenders Review Council recommends reduction of Applicant's classification allowing educational leave
26 February Commissioner for Corrective Services rejects recommendation
27 October Probation and Parole Service recommends Applicant be released on parole
17 December Respondent sends notice of intention to refuse visa
2003 -
3 January Application for subclass 831 Spouse Visa refused
5 January Applicant released from Emu Plains Correctional Centre and transferred to Villawood Detention Centre.
relevant legislation and direction
7. The factors that the Tribunal is required to consider in the exercise of the power conferred by section 501 of the Act are contained in the Minister's Direction made pursuant to section 499 of the Act, namely Direction-Visa Refusal and Cancellation under section 501 No 21. The Tribunal is required to have regard to the Direction.
8. In the exercise of the discretion conferred by section 501, the Tribunal is to consider the matter by way of a two stage process, that is, consideration is to be given to whether or not the Visa Applicant passes the Character Test and if the test is not passed, consideration is then to be given to whether the discretion should nevertheless be exercised in favour of the Applicant taking into account primary and other considerations.
9. Thus, if the Applicant does not pass the Character Test, the Tribunal nevertheless has a discretion not to refuse the grant of a visa. In exercising this discretion the Tribunal is to have regard to the above mentioned primary and other considerations as outlined in Direction 21.
10. The primary considerations relate to the Protection of the Australian Community and the Expectations of that Community. There is also to be considered the best interests of a relevant child, but as there is no such child or children in this matter this consideration is not relevant.
11. In the context of the protection of the Australian community the Tribunal is to take into account and consider the seriousness of offences that have been committed by the Applicant. Paragraph 2.6(f) of the Direction states that the Government considers the offence of manslaughter or any form of violence against the person as a serious offence. Paragraph 2.6(m) makes reference to crimes against children and states that "due to their vulnerability as victims and potential victims crimes against children taken on special significance especially crimes involving ...violence to children...".
12. Further in the context of protection, the risk of recidivism is to be taken into account. That is, the community is not to be placed at risk of an Applicant again committing an offence of a similar nature or otherwise. Allied with a consideration of the risk of recidivism is the fact that the refusal of a visa may have a deterrent effect that is dissuading others from engaging in the same course of conduct. Consideration is to be given to whether refusal of a visa would send a message that such conduct is not acceptable to the Australian community and that non-citizens can expect to be refused entry into Australia if they engage in the same.
13. The Direction also requires the Tribunal to consider as a primary factor the expectation of the Australian community that non-citizens are to obey Australian laws whilst they reside in Australia.
14. Other considerations relevant to an exercise of the discretion are to be given appropriate weight, the significance that is to be attached to the primary considerations being measured against that to be afforded to other considerations. Hardship is a factor in this latter regard, not only as it relates to the Applicant, but to others such as her husband and her mother-in-law. Ties to the Australian community are relevant, as is the contribution that an Applicant might well make to the Australian community.
the factual situation and findings of fact
15. As noted in the above chronology of events the Applicant and her husband first met in Macau this on an occasion when the husband was in the Territory for the purpose of attending a party arranged in his honour. The sister of the husband and the Applicant were both nurses working at the same hospital. Prior to her coming to Australia the Applicant spent in all about 10 years in the nursing profession obtaining a degree of distinction for her general and research achievements.
16. The husband with his mother and other members of his family migrated to Australia, the husband in 1976 having left China in 1961, the mother in October 1984. Before he married the Applicant the husband was the only one of his siblings in Australia who was not married. He had conducted a restaurant at Guildford, a suburb of Sydney, since 1984 where he was assisted by his brother Andrew. The husband at this time lived in a large house at Baulkham Hills at which place there was also residing his mother, his brother Andrew and Andrew's wife Shen Hui, their two young children and a nephew.
17. Following the husband's visit to Macau and his meeting the Applicant, a relationship developed between them and in May 1995 after they agreed to marry, the Applicant came to Australia. Two months later they married and began to live as husband and wife in the home at Baulkham Hills. Seemingly, from early days animosity arose between Andrew and his wife and the Applicant. The Applicant was criticised, abused and threatened with loss of her life. As the sentencing judge stated in his reasons for sentence:
"there was physical confrontation between particularly the prisoner and the deceased... there was subsequent verbal threats to kill her uttered by the deceased... she was threatened verbally... by the deceased and also ... attacked by the deceased who was wielding a stick. ... I accept that there was a verbal threat uttered by the deceased against the prisoner and that in combination with all that had gone before and that she felt that she had nowhere to seek help she felt threatened and she felt in such a state that the only way out it seemed to her was to use the rifle to kill the deceased..."
18. At a time when she was suffering from the effect of the conduct and behaviour of her brother and sister-in-law as so detailed by the sentencing judge she shot the sister-in-law and wounded her young daughter, the Applicant’s niece. The Applicant fled the house and tried to commit suicide by drowning. Some days later she surrendered herself to the Police. She was charged and remanded in custody where she remained until she was released on bail some four months later. The Applicant was convicted in July 1998 two and a half years after she committed the offences, and sentenced to the afore mentioned terms of imprisonment which expired in January 2003..
19. Apart from the commission of the offences for which she was sentenced there has not been any adverse act or course of conduct committed or engaged in by the Applicant. As noted by Ms Laura Kelly, the Probation and Parole Officer in her pre-release report:
“PROGRESS IN CUSTODY
Ms Dang has not incurred any offences in custody and custodial staff report that she is pleasant, co-operative and behaves in a responsible manner at all times. The inmate is employed as the Centre Librarian displaying initiative and diligence in the position and, in her application to her job Ms Dang is described overall, as excellent."
20. In addition to the favourable conduct reported during the term of her imprisonment the Applicant has achieved high distinction awards in studies undertaken by her, in Senior First Aid, English, Modern Chinese, Information Technology Certificate III, Accounting Certificate II, Desktop Publishing, Music, Hospitality, Yoga in addition to which she has obtained a fork lift licence. She completed the Advanced Diploma of Accounting with distinction as well as eight units of study towards a degree in Accountancy via Open Learning. As already noted, in July 2001 approval was given for her to participate in the education leave program. She commenced a Bachelor of Commerce degree and attended the University of NSW. However, the Commissioner withdrew the approval for her continuation on the education leave program commenting at the time:
"… given the media interest and the focus of the Opposition spokesman I do not believe that it is in the interest of the inmate or the good order of EPCC for such leave to continue in the short term."
21. During the period of her imprisonment the Applicant maintained daily telephone contact with her husband. He visited her frequently. She has a supportive relationship with the Applicant's two sisters both of whom live in Sydney. The Applicant's mother-in-law is now 92 years of age and completely dependent upon her son, the husband, for her comfort attention and support. Mr Ng himself is not in good health and at the present is on sick leave from his employment.
22. Mr Andrew Ng has refused to accept a letter of apology from the Applicant she wishing to reassure him that she is sorry for the events that transpired and intends no further harm to he or his family. He has distanced himself from his mother, Mrs Fok, who is favourably inclined towards the Applicant. Mr Andrew Ng seemingly maintains his dislike and animosity towards the Applicant.
the applicant's criminal conduct
23. On 6 July 1998 the Applicant was convicted of the manslaughter of Ms Shen Hui and the malicious wounding of her daughter Vania. Both incidents occurred on 22 November 1995. The maximum sentence for manslaughter was 25 years and for malicious wounding seven years. The Applicant was sentenced to an overall term of penal servitude of six years with a minimum term of four and half years, being eligible for parole on 5 January 2003.
24. In the course of his reasons for sentence the sentencing judge stated:
"I am satisfied in relation to those verdicts [conviction by a jury of manslaughter and malicious wounding] that the manslaughter verdict was because the jury found provocation and the malicious wounding verdict was because the jury was not satisfied that the prisoner bore any animosity towards the child..."
25. After considering the circumstances in which the acts were committed the judge continued by saying :
"There are the following subjective factors which I take into account. Firstly, the good character of the prisoner. Secondly, I am satisfied both from what I have heard of this matter and from the two reports of Dr Westmore,...that she is highly unlikely to re-offend and the prospects of rehabilitation in due course are good. I take into account that she is a foreign national with accompanying language difficulties in her present environment, namely custody in particular. In relation to the issue of contrition, I am satisfied that at no time did she intend any physical harm towards the children and I am also satisfied that she does regret what she did on that day and I bear in mind in that respect, her evidence about her attempts to end her own life subsequent to what had happened on 22 November... I accept the evidence of her husband, Ivan that he continues to love the prisoner, continues to stand by her and that in due course they will make a fresh start, if permitted elsewhere in Australia. I am confident that the prisoner will not have significant difficulty in obtaining appropriate employment..."
character test
26. It was not contended on behalf of the Applicant that she passes the Character Test pursuant to section 501(6)(a) of the Act. The Applicant accepts that she has a substantial criminal record within the meaning of the Act and as defined by section 501(7)(c). She was convicted of manslaughter and malicious wounding and was sentenced as afore mentioned.
27. In the context of exercising its discretion and being mindful of the Minister's Direction 21, the Tribunal needs to consider the seriousness of the Applicant's criminal conduct, the risk of recidivism, the deterrence aspect and expectations of the Australian community. Accordingly it is relevant to look to the nature of such conduct, the circumstances in which it occurred and the objective appraisals made of the Applicant.
reoffending
28. Ms Laura Kelly, the Probation and Parole Officer at Emu Plains Correctional Centre stated in her pre-release report:
"Throughout the period of her imprisonment, Ms Dang has sought the assistance of departmental psychologists for assessment, counselling and general support on a regular basis. The psychologist has advised that Ms Dang has addressed her offending behaviour and has displayed a commitment to improving her skills in non-violent conflict resolution through active participation in two Alternatives to Violence courses and individual therapy. Further, it would appear that the factors present at the time of the offences are highly unlikely to be present following Ms Dang's eventual release from custody. In terms of future counselling, it would be beneficial for Ms Dang to continue therapeutic counselling to assist in her reintegration into the community...
Ms Dang expresses significant remorse concerning the death of her sister-in-law and the wounding of her niece. In retrospect, Ms Dang identifies her immaturity and lack of independence at that time as having contributed, in part, to the events that led to the tragedy. She now recognises the benefits of seeking appropriate assistance when experiencing difficulties and maintains it is her intention to utilise appropriate services to assist her with any relevant matters in the future...
If granted residency status, Ms Dang has indicated that she would continue English and vocational studies and would probably seek some form of employment. ...
In interviews Ms Dang presented as a polite, softly spoken woman who appears to have done her best to manage the circumstances of her situation. She has utilised appropriate resources in an effort to address her offending behaviour and improve her language and vocational skills and has displayed exemplary behaviour throughout the period of her imprisonment. Ms Dang believes that she has matured significantly since the events that contributed to the offences and she now expresses a confidence in her ability to lead a normal, lawful life, whether it be in Australia or her native homeland."
29. In her evidence before the Tribunal Ms Kelly expressed the opinion that the Applicant is unlikely to reoffend and does not see any problem arising between the Applicant and her brother-in-law.
30. The Applicant was seen by Dr Bruce Westmore, Forensic Psychiatrist, both prior to her being sentenced and more recently. In a report prepared by him in April 1996 Dr Westmore stated:
"If this woman's account is accepted, it would seem that she was exposed to increasing levels of threat and intimidation, these occurring in a residence in which she and her husband lived. She expresses the belief that she was going to be killed by her sister-in-law, this threat having apparently been made on multiple occasions previously. She said she took the gun in self defence and discharged it in self-defence. There is nothing to indicate this woman represents a risk to the general community, she has no evidence of a personality disorder. No doubt coming to a new country where she had limited language, and then to a new marriage, would have been particularly stressful for her. It is quite likely she would have had very few resources to seek assistance for the problems she felt she was experiencing inside the home."
31. In a later report prepared by him in August 1998 Dr Westmore inter alia stated:
"She said she understands she has done a wrong thing but told me she had not done anything wrong before and she felt once she was released she could obtain a job to support herself and become a good member of this society.
There is nothing in her history to suggest that this would not be the case and it would be my view that this woman is unlikely to present before the courts again for any reason, and certainly not for a charge of a similar nature to the one currently being dealt with. It appears to have been a situationally specific event occurring in the context of acute on chronic family conflict."
32. The Tribunal has already noted observations made by the sentencing judge. Sister Chris Giller of the Chaplaincy Service Department of Corrective Services gave evidence before the Tribunal. In her report of December 2002 Sister Giller stated:
“As Chaplain of this centre I have had the pleasure of knowing Yu Bin Dang for almost four years. Her courtesy, quiet presence and steady application to study or whatever is asked of her is impressive. In spite of considerable odds Yu Bin has remained steady, resilient and focused... I think Yu Bin will return to society unembittered by her incarceration and she will make a very worthwhile contribution to Australian society."
In her oral evidence Sister Giller spoke of the Applicant as a strong resilient responsible person who "functioned as a peacemaker". The Applicant, she said, shows "love and courtesy to everyone".
33. Mr Bogdan Smeu-Kirileanu, Consultant Psychologist, interviewed the Applicant on a number of occasions. In his report of March 2003 he stated inter alia:
"The traumatic event and its after-effects are persistently re-experienced by Mrs Dang...
Overall Mrs Dang is an intelligent woman who leans to be slightly reserved and detached. She is not dominating in nature, but rather serious about things. She is conforming to society's rules and she is moralistic and conscientious.. She is self reliant and realistic about life.…"
34. With reference to the committing of the offences the psychologist stated:
"It is my opinion based on clinical observation that Mrs Dang acted driven by intense fear and not by anger. She was very concerned about the welfare of the two children. She said that she is ‘praying every day for them and for the soul of her mother’.. She wrote a letter to her brother-in-law Andrew to apologise. She wants to have a meeting with him and his family through the Restorative Justice Programme. Through counselling she gained more insight, increased the effectiveness of her coping skills, and assertiveness."
35. In his conclusion to the report the psychologist stated:
"In my professional opinion Yu Bin Dang shows insight in the crime she committed. During psychological sessions she was always remorseful. It is my opinion that Mrs Dang acted under the impulse of intense fear, accumulated stress, humiliation and insults. It is my opinion that Mrs Dang eventual prognosis of reoffending, by either a similar offence or other offences is very low. My opinion is based on my clinical observations, psychological test results, her attitude towards others, her good behaviour as an inmate, lack of criminal record in the past, very good reports from custodial and non custodial staff and her husband's support."
According to the psychologist the Applicant has no personality hold-ups or psychological disturbance.
36. The Education Officer at the Adult Education and Vocational Training Institute Emu Plains Campus in a report she made in October 2000 inter alia stated:
"On a personal level Yu Bin has a pleasing personality. She is polite and friendly in a quiet way. Her personal appearance is exemplary and she is always helpful and considerate of others. As both a student and as librarian she is reliable and committed not afraid of hard work and effort. Her incredible progress in English is a product of much labour and persistence.
Yu Bin has much to offer society and I have not seen any indication of inappropriate or unacceptable behaviour from Yu Bin even though she is living and working in a difficult environment."
37. The Tribunal was impressed by the Applicant whilst giving her evidence and under cross-examination and accepts that she is genuinely sorry and has felt remorse for her conduct. She was to a degree self effacing but is a determined lady who will ensure that by the love for her husband, her desire to have a family by him, her intent to care for him and his mother, let alone her academic inclinations she contributes favourably to the welfare of the Australian community and society generally. The Tribunal is satisfied that there is a minimal risk of the Applicant reoffending. It accepts the evidence detailed above which reflects favourably upon her rehabilitation.
protection of the australian community
38. There is no question as to the seriousness of the Applicant's criminal conduct and the consequent need to consider the protection of the community. The offences constituted violence against the person including violence against a vulnerable three-year-old child. They are offences which on their face are repugnant to the community.
39. As earlier discussed, the likelihood of the Applicant reoffending is minimal. Her prospects of rehabilitation so far as this remains a relevant consideration are good. She proposes to engage in further education commensurate with her responsibilities as a wife, daughter-in-law and prospective mother. In the opinion of the Tribunal she can only be a most worthwhile member of a community and will contribute measurably to its welfare.
40. It is maintained on behalf of the Respondent that sufficient time has not elapsed in order to make a reliable assessment of the Applicant's rehabilitation. While there has indeed been little time available to the Applicant since she committed the offences in which to gauge her behaviour, she was however on incident free bail for two years and the reports of her conduct whilst incarcerated are exemplary. Her desire to say sorry reflects favourably upon her. Her academic application and success is to her credit and speaks well for the future. The Tribunal does not accept the submission so made on behalf of the Respondent.
41. The circumstances associated with the conduct of the Applicant causing the death of her sister-in-law and the injury to her niece are of such a nature that a consideration of deterrence is hardly warranted. The factor as such is important. Crimes of violence are serious to say the least and violent conduct is not acceptable to the community. But the embargo on persons being refused entry into Australia if they engage in such conduct is not absolute. There is not an automatic disqualification even if non-citizens, as well as citizens, are expected to obey Australian laws while in Australia. The Applicant has been sentenced for the commission of the offences and has served her time in jail. Whether she should be allowed to remain in Australia can only be determined after consideration has been given to all of the matters that pertain to the commissions of the offences including provocation and remorse. It is only when this course has been followed that an objective appraisal of the community expectation can be made. It is noted by the Tribunal that evidence before it discloses measurable support for the Applicant and her remaining in Australia, this emanating from amongst others, friends, the prison chaplain and the parole officer.
42. The Tribunal is of the opinion having considered all relevant factors that the issue pertaining to protection of the Australian community does not weigh highly in this matter.
interest of the applicant and her family
43. The Applicant has been away from China since 1995. She is now fluent in the English language and has obtained qualifications additional to her nursing prowess enabling her to attend University and pursue her interests. She would have some difficulty in obtaining a position in China and readapting to life in that country especially if this was to be without her husband, an Australian citizen.
44. The husband Mr Ivan Ng has lived in Australia since 1976 and has the sole responsibility of carrying for his mother. His two sisters by reason of age, their indifferent healths and a need to care for their own children and grandchildren are unable to assist.. Neither sister is fluent in English or can drive a motor vehicle. If the Applicant was not permitted to remain in Australia, her husband says he would leave with her and have to take his 92 year old mother with him. She has not lived in China since 1958. However there is evidence before the Tribunal to the effect that a visa would only be granted to the husband for a limited period and that it is unlikely he would be allowed to remain in that country indefinitely.
45. The husband as afore mentioned is himself not in good health. According to Dr Susan Lawrence, a Consultant Nephrologist, he has polycystic disease affecting his kidneys, liver and pancreas. He has developed calculi in his right kidney and has had a retinol detachment on the left. His condition is stable at the moment but his various problems are likely to progress in time and he would require constant care and regular medical supervision. Dr Lawrence believes that it would be in his best interest to allow his wife to stay in Australia.
decision
46. The Tribunal recognises the primary considerations referable to the protection and expectations of the Australian community but does not consider in all the circumstances of this matter that they outweigh relevant hardship and the other factors earlier considered in these reasons.
47. Accordingly the decision under review is set aside, and the matter remitted to the Respondent for further consideration with a direction that the available discretion should be exercised in favour of the Applicant.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C. Deputy President
Signed: .......................................................................................
Associate
Dates of Hearing 13/14 March 2003
Date of Decision 24 March 2003
Solicitor for the Applicant Mr S. Jeans, Simon Jeans & Associates Solicitors
Solicitor for the Respondent Ms K. Gettens, Blake Dawson & Waldron Solicitors
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