Dhillon v Minister for Immigration
[2014] FCCA 552
•28 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHILLON v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 552 |
| Catchwords: MIGRATION – Application for review of Migration Review Tribunal decision – admissions by third parties of criminal conduct affecting grounds of visa application – Tribunal having redacted material arising from criminal proceedings – material requested by applicant but not provided – whether Tribunal should have summoned third parties – whether Tribunal breached s.80 of the Country Court Act 1958 (VIC) and for s.32ZQU of the Crimes Act 1914 (Cth) – one of five grounds of application made out – application granted. |
| Legislation: Privacy Act 1988 |
| Fox v Percy (2003) 214 CLR 118 Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29 SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 Wago v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 412 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 Australian Securities and Investment Commission (ASIC) v Rich (2005) 220 ALR 324 |
| Applicant: | HARISH KUMAR DHILLON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 656 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 28 January 2014 |
| Date of Last Submission: | 28 January 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burchell |
| Solicitors for the Applicant: | Da Gama Pereira & Associates Pty Ltd |
| Counsel for the First Respondent: | Mr Johnson SC |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 17 April 2013.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent shall pay the costs of the Applicant fixed at $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 656 of 2013
| HARISH KUMAR DHILLON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant’s Amended Application filed 26 September 2013 lists four grounds of asserted jurisdictional error in the decision of the Migration Review Tribunal (“the Tribunal”) dated 17 April 2013.
As the matter has been progressed before the Court in both written and oral submissions there is in effect a further ground, or alternatively a sub-ground of the grounds relating to procedural fairness. It is that the Tribunal fell into jurisdictional error by failing to provide to the applicant copies of documents arising in a criminal prosecution in the County Court of Victoria, which the Tribunal had in its possession and which the applicant’s legal representatives had sought copies of.
For the reasons that follow, in my opinion none of the asserted grounds of review in the Amended Application are made out. The ground which I have characterised as the non-provision of the relevant material is however made out and in failing to provide this material the Tribunal fell into jurisdictional error.
The Course of the Application
In order to understand this application it is necessary to set out in some detail what happened in procedural terms. The applicant filed his General Skilled Migration Application Form dated 24 June 2009 (CB1-15) on or about that date.
One of the documents filed in support of that application was a letter of reference from what I shall describe as the bakery business (the reasons for this obscurity will become apparent), undated, set out at CB25-31.
On 17 October 2011, a delegate of the first respondent invited the applicant to comment on “suspected fraudulent information supplied with a valid application for a Skilled (Residence) (class VB) visa” (see CB46).
The gravamen of that letter was to the effect that the employment reference from the bakery business was non-genuine.
The letter pointed out (CB47) that:
“Please be advised that the introduction of Public Interest Criteria (PIC) 4020 allows a case officer to refuse an application and bar the primary applicant, along with any secondary applicants included in the application, from lodging a further application that is subject to PIC 4020 for a period no less than three years in duration.”
A letter sent to the applicant’s representative also dated 17 October 2011 raised the same difficulty and also stated (CB53) that:
“Please be advised that PIC 4020 requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in relation to:
· the application for the visa; or
· a visa that the applicant held in the period of 12 months before the application was made.”
It was not entirely clear to me initially whether the person to whom this letter was addressed was a formal representative of the applicant. The letter relevantly stated at CB53:
“Applicant details
You have advised that the following applicants are included in your application for a Class VB, Subclass 886 Skilled (Residence) Sponsored visa:
Main Applicant: Harish Kumar Dhillon DoB: 19/11/1982”
The letter went on to make it clear that it was the applicant who was the person who was being said not to have satisfied PIC 4020 because of the reference from the bakery business.
The applicant’s representative, Mr Saravjit, responded on 11 November 2011 (CB61). Relevantly the applicant’s representative asserted that the applicant:
“has not provided any incorrect information or documentation while completing his TRA skill assessment, 485 visa subclass and 886 visa subclass applications. He states that his employment and employment reference letter are genuine and provided to him by his employer at that time.”
The letter went on to say:
“Mr. Dhillon’s employer is no longer supporting him and denies to provide any further supporting material to him. He is not based in Victoria now and finding it difficult to maintain a contact with his then employer. He has no current evidence to prove that employment reference was genuinely obtained and was genuine as his application to TRA was made a few years back and at that time he had no idea and nor was he legally required to keep any evidence for future.
Mr. Dhillon cannot comment on the adverse information that has become available to DIAC in relation to his work experience for TRA skill assessment. He states that it should not be considered until there is some legal conviction or binding.”
It is clear from the correspondence passing between the delegate and Mr Saravjit that the latter was indeed the applicant’s representative (see CB62).
On 5 January 2012, the delegate wrote again to the applicant giving him an invitation to comment on suspected fraudulent information supplied with his application. A copy of PIC 4020 was provided as an attachment to the letter (CB68). Relevantly the letter asserted (CB69):
“It has been brought to the Department’s attention that Harish Kumar Dhillon may not satisfy PIC 4020 on the basis of the following information being submitted to the Department:
· On 24 June 2009, in support of your application for an 886 subclass visa, you provided to the Department a skills assessment dated 08 April 2008 from Trades Recognition Australia (TRA) with reference TRA08/107207438. To obtain this skill assessment, you supplied to TRA documents supporting your 900 hours work experience from (the bakery shop).
· On 4 November 2011, a (guilty party) pleaded guilty to the manufacture and sale of work references matching the one submitted to Trades Recognition Australia (TRA) to obtain your assessment. (Guilty party) has admitted the documents were fraudulent in content and they were created to assist you to apply for permanent residence in Australia.
· As a result of these events we have reason to believe that the skills assessment submitted as part of your 886 subclass application has been fraudulently obtained.”
The applicant’s response was supplied by his representative by email dated 29 January 2012 (CB74 to 75). That email repeated the assertion that the applicant had not provided misleading information and attached a statement from the applicant (CB78) which repeated his difficulties in being unable to obtain further documentation from his former employer.
The delegate refused the application by letter dated 2 February 2012 and the Decision Record is at CB85-88. The critical part of the Reasons are at CB88 where the delegate said:
“ On 4 November 2011, a (guilty party) pleaded guilty to the manufacture and sale of work references matching the one submitted to Trades Recognition Australia (TRA) to obtain your skills assessment. (Guilty party) has admitted the documents were fraudulent in content and that they were created to assist you to apply for permanent residence in Australia.”
This led to the conclusion that the information provided with the applicant’s application and submitted to Trades Recognition Australia was false or misleading and accordingly the applicant’s application was dismissed.
The applicant applied to the Tribunal for a review of the delegate’s decision by letter from his present solicitors De Gama Pereira and Associates Pty Ltd (“Da Gama Pereira”) on 7 February 2012 (CB89-113).
On 13 February 2012, the Tribunal wrote to the applicant acknowledging receipt of his application and stating relevantly “We have requested that the Department of Immigration and Citizenship (the Department) provide us with all documents and files which they consider to be relevant to your application.” (CB118).
On 21 November 2012, an officer of the Tribunal sent an email to the delegate requesting copies of all evidence that led to the finding that the applicant’s work reference was false or misleading including in particular details of (guilty party’s) evidence in respect of the applicant and/or the bakery. The Tribunal member had also requested a copy of the judgment of the County Court in relation to guilty party if available (CB126). On 21 December 2012, the Department sent the Tribunal four documents which constitute:
a)AFP Statement in relation to (guilty party) (CB148-157)
b)Agreed Summary of Material Facts presented in the trial of (guilty party) (CB158-165)
c)Summary of Taped Record of Interview with (guilty party) (CB166) and
d)Statement in the matter of DIAC v (second guilty party) made by (guilty party) (CB167-172).
Also attached was an order made by Judge Cannon in the County Court of Victoria on 30 November 2012 (CB173-175).
The letter from the Department to the Tribunal (CB141) which forwarded this material referred to the order made by Judge Cannon and pointed out that the publication of information in breach of the order could be prosecuted for contempt of court or for an offence against s.80(4) of the County Court Act 1958 and advised the recipient to seek legal advice, (CB141).
The materials forwarded disclosed amongst other things that between 1 November 2006 and 29 September 2009 (guilty party) created 777 false documents for the purpose of enabling international students to obtain a positive skills assessments. In May 2009, the Department investigated (guilty party’s) involvement in the creation of fraudulent documents, then on 29 September 2009 the Australian Federal Police together with Department and other officers executed a search warrant under section 3E of the Crimes Act1914 (Cth) at the residence of (guilty party) and that (guilty party) had no way of knowing whether the students actually completed their training. (This last matter being set out at CB164).
The Statement of (guilty party) at CB170-172 refers to nine persons in respect of whom (guilty party) confirmed that he wrote their work reference and signed the name of (second guilty party) on the relevant document.
On 7 January 2013, a Tribunal officer wrote on behalf of the Tribunal member inquiring whether the applicant in this case Mr Dhillon was one of the nine persons whose names had been redacted in the material sent (CB176) and the Department replied on 8 January 2013 that he was not (CB184).
On 17 January 2013, the Tribunal invited the applicant to appear at a hearing before it, by video conference, the member being in Sydney and the applicant in Perth (CB198).
On 15 February 2013, the applicant’s representative asked an officer of the Tribunal why the matter was being heard in Sydney rather than in Melbourne (to where the file had been transferred in the interim). The representative said that the applicant was willing to fly to Melbourne but not to Sydney because it was very expensive but the officer replied that the Tribunal had made arrangements to conduct the matter by video conference to Perth. The representative indicated that the applicant was overseas at the time (CB200).
The request for a hearing in Melbourne was repeated by letter from
Da Gama Pereira on 18 February 2013 (CB201) but the Tribunal refused to do so although arrangements were made to link the representative in by telephone (CB202).
Da Gama Pereira wrote again on 27 February 2013 enclosing the Response to Hearing Invitation Form and confirming that the applicant would take part in the hearing scheduled for 5 March 2013. On
4 March 2013, Da Gama Pereira wrote to the Tribunal requesting access to the entire file relating to the applicant “including file notes, case notes, etc, including investigation file if any” pursuant to s.362A of the Migration Act 1958 (Cth) (“the Migration Act”) (CB215-217).
On 5 March 2013, the Tribunal forwarded to Da Gama Pereira a copy of Cannon J’s Order made on 30 November 2012. Although the Court Book (“CB”) reveals that inquiries about the other aspects of Da Gama Pereira’s inquiry were the subject of follow up, it does not appear that any formal response was ever sent (see CB228-245). On 11 March 2013, however, the Tribunal wrote to the applicant giving an invitation to comment on or respond to information and to provide information. That letter is at CB248-251. It provided particulars involving the admissions by (guilty party) of involvement in the production of hundreds of fraudulent documents including work references for the bakery and referred to parts of (guilty party’s) statement referred to earlier.
On 18 March 2013, an officer of the Tribunal wrote to Da Gama Pereira ultimately responding to the s.362A application. For these purposes it is sufficient to note that Folios 116 to 128 of the Department’s file were said to be fully excluded from disclosure under the provisions of the Privacy Act 1988 (“the Privacy Act”). Following discussion in Court it seems clear that those Folios are the Folios of redacted material earlier referred to.
Following some to and fro about an Application for an Extension of Time, which was denied, Da Gama Pereira wrote to the Tribunal on the applicant’s behalf on 8 April 2013 (CB268-276). Relevantly the letter asserted (CB269-270):
“The delegate has relied on the credibility of the statement made by a convicted criminal (guilty party). However, both DIAC and the Tribunal has failed to provide any documents or evidence from documents lodged in the Magistrates Court which specifically states that (guilty party) manufactured the 900 work experience from the bakers for my client.
If the Tribunal makes an adverse decision based on the evidence provided by Convicted Criminal (guilty party) over riding the evidence and statements made by the visa applicant under oath, the Tribunal decision will fall into jurisdictional error.”
The letter also stated (CB270) that the Tribunal had not given the applicant an opportunity to have a face-to-face hearing in order to assess the applicant’s credibility.
At CB276 under the heading “CONCLUSION” the letter continued:
· MRT & DIAC have failed to provide Folios lodged by (guilty party) in the Magistrate Court specifically relating to my client.
· MRT & DIAC has failed to provide information to my client whether (second guilty party) has confirmed or refused to confirm that my client had not worked for 900 hours at the bakery as alleged.
· The Applicant also requests the Tribunal to give him a face to face hearing in Melbourne before making a decision.
· There is evidence that videolink evidence is not popular with the Courts in Australia. The line that is developing particularly in NSW that witness required to give evidence preferably for credibility issues must attend in person to give evidence. This NSW Land and Environment Court case serves to remind practitioners that NSW courts are generally reluctant to allow evidence by way of video link where the evidence is central to a case and particularly where cross-examination will involve examination of documents and/or a challenge to credibility.
By email on 9 April 2013, an officer of the Tribunal confirmed to Da Gama Pereira “that no further hearing would be offered and that the Member would be proceeding to a decision” (CB278).
The Tribunal did indeed continue to a decision and it was dated
17 April 2013 and runs from CB282-301.
The Tribunal’s Decision
The Tribunal’s decision commenced by characterising the Application for Review at CB283. The Tribunal noted at paragraph 2 that the applicant, to meet one of the requirements for the grant of the visa he was seeking, provided evidence of a skills assessment from Trades Recognition Australia (“TRA”) in the occupation of Pastry Cook. The TRA assessment arose inter alia from a letter from the bakery asserting that he had completed 900 hours work experience at that business.
The Tribunal noted that following an admission by (guilty party) that he had been involved in creating fraudulent documents for migration purposes including work reference letters from employers that included the bakery, a delegate had found that the evidence of the applicant’s work experience was false or misleading and he had been refused a visa. The Tribunal noted that the applicant had applied for a review of the delegate’s decision and that he had denied that he had not completed his 900 hours work experience at the bakery.
At paragraph 5 the Tribunal identified the issue before it as:
“The issue before this Tribunal is whether the applicant satisfies PIC 4020 (as required by cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations)). The applicant will satisfy PIC 4020 if there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’ (as defined in s.97); or ‘information that is false or misleading in a material particular’ (as defined in PIC 4020(5)) in relation to the visa application.”
Having set out the statutory background (including PIC 4020 which was reproduced in full) at CB283-284, the Tribunal set out factual background at CB285 and following. Relevantly the Tribunal noted that the applicant had relied upon his 900 hours of work as a pastry cook with the bakery and the reference to which this had given rise. The Tribunal traversed the exchanges with the delegate and paraphrased at paragraphs 22-62 what had transpired before the Tribunal (CB286-292). The Tribunal traversed the work that the applicant said he had done at the bakery and asked if there were any other students there whilst he was there. The applicant replied (paragraph 36) that there was another Indian student called Yash. It was hard for him to remember the other names but he remembered Yash (CB288).
The applicant repeated that he had worked 900 hours but that his employer (second guilty party) had been uncooperative after he completed the 900 hours. The Tribunal confirmed with the applicant that there was no other document and that the only record of his work experience was his reference letter (paragraph 38, CB288). The Tribunal traversed various issues about the applicant’s recording and completion of the 900 hours and went on at CB289 paragraph 45 to refer to (guilty party). At paragraph 46:
“The Tribunal put to the applicant that (guilty party) had admitted to being involved in the production of hundreds of fraudulent documents which included work reference letters from approximately 40 different employers including the bakery. It also put to the applicant that:
· (Guilty party) said he knew that all the employers knew they were providing false information to TRA and DIAC when verifying that the students had worked and completed the 900 hours;
· (Guilty party) stated that from his recollection, none of the students completed the full 900 hours with any of the employers he mentioned;
· (Guilty party) said he encouraged students to attend the business premises and do some training but told them it did not have to be the whole 900 hours. He said some students didn’t want to and never showed up;
· (Guilty party) stated that (second guilty party) from the bakery recorded all the students’ names, dates of birth, work experience start and finish dates and the total amount of hours completed on A4 size papers and would say to him “I had a telephone call from TRA today for this one” and then he would notice that the student’s name had been crossed out. It appeared to him that she was crossing out the students names after TRA had verified the student had completed 900 hours;
· (Guilty party) stated that migration agents and students wanted the work experience letter up front in exchange for a cash payment;
· (Guilty party) stated that (second guilty party) agreed to him signing reference letters on her behalf. He stated that when he provided a copy of the work reference she would read the first few paragraphs and saw that the work experience dates were prior to any student intending to start work;
· (Guilty party) stated that all the employers knew that the students weren’t going to complete the full 900 hours as the students had already paid for the reference prior to commencing any voluntary work experience. He had an agreement with the employers that they would verify false employment claims if TRA or DIAC checked.”
The Tribunal continued at paragraphs 47-48 (CB290):
“47. The applicant said he said he did not know about other things, but he had worked at the bakery for 900 hours. He does not know what other people did. The applicant said he had the letter signed by the owner. The Tribunal indicated that it was not even sure that the letter was even signed by (second guilty party) given the information from (guilty party).
48. The Tribunal again noted that (second guilty party) was not supporting his claim, and he agreed that she has refused to do so. He knew about (guilty party) because there are too many students affected because it was a long time.”
The Tribunal continued to traverse the issues arising from (guilty party’s) disclosures and it is fair to say that while a number of matters were put, the applicant’s position remained that he had indeed worked the 900 hours as he had said. I note that at paragraph 62 (CB292), the following is recorded:
“The representative indicated that she wished to have further time to make submissions. The Tribunal indicated that it would be sending a s.359A letter and suggested that the submissions could be sent with the response. The representative wanted the Tribunal to take into account that a copy of the applicant’s file had not been provided yet and the Tribunal noted that the request for access to documents was received that morning. Ms Pereira said they have been waiting for instructions as the applicant was overseas.”
The Tribunal paraphrased the s.359 letter at paragraph 63 (CB292) and the response already referred to by De Gama Pereira at paragraph 67 (CB293).
It will be necessary to return to some other aspects of the Tribunal’s reasoning (in relation to the closely related ground and the video link ground) but for these purposes it is sufficient to record that at paragraphs 73-75 (CB294-295) the Tribunal said:
“73. Although (guilty party’s) evidence is general in nature and there is no specific evidence from (guilty party) that the applicant was one of the persons who paid him or (second guilty party) directly for a false work reference, the Tribunal considers that the above material raises significant doubts about the reliability of reference letters provided to TRA from the bakery including the applicant’s. The Tribunal does not accept that the evidence should not be given any weight simply because (guilty party) is a convicted criminal. (Guilty party) was convicted in relation to selling and manufacturing work references on the evidence given to the County Court in Victoria and the applicant has not presented any evidence to refute that (guilty party’s) evidence is not a true account of what has occurred. The Tribunal does not accept the representative’s assertion that (guilty party’s) evidence cannot be relied upon because he may have given the information for a reduced sentence, as this is merely speculation from the representative. Nor is the Tribunal prepared to accept that the applicant’s evidence at the hearing was truthful simply because he gave it under oath.
74. In weighing up the evidence from (guilty party) of false work references from (second guilty party) and the bakery, the Tribunal has considered what evidence has been presented to demonstrate that the applicant did complete the 900 hours.
75. The applicant maintains that he did complete 900 hours of work experience at the bakery, however he has not been able to produce anything from (second guilty party) to confirm that he worked at the bakery or any other documentation. The Tribunal considers that (second guilty party’s) refusal to confirm his work experience indicates that his claims are not true and found his explanation as to why (second guilty party) would not confirm that he had worked there unconvincing. The Tribunal considers that it would be reasonable to expect that a person who had completed over 900 hours’ of work experience at the bakery would be able to provide additional documentation to support this claim. There is no record of the hours worked other than the reference letter and the Tribunal does not accept that he was able to record 900 hours’ of work mentally given that his hours varied from 15 to 20 hours per week and also during college breaks. The Tribunal is of the view that there are no contemporaneous records or any other documentation because the applicant did not in fact undertake 900 hours of work experience at the bakery.”
At paragraph 77 (CB295) the Tribunal said:
“At the hearing, the applicant was prepared to answer questions about his claimed work experience however the Tribunal considers that his responses were vague and general in nature. When asked a specific question about the methodology used at the bakery for receiving and storing goods as set out in the reference letter, he was unable to explain the method used, stating that it was so long ago that he had forgotten. However, the Tribunal considers that the reason he was unable to explain the method used was because he did not know what method was used, and he was not even able to explain the FIFO method when prompted. The Tribunal would expect that if he genuinely completed 900 hours of work experience as a pastrycook at the bakery he would be able to provide a more detailed account of that work experience and be able to explain baking techniques and use appropriate terminology.”
Having considered some other matters the Tribunal went on to find at paragraphs 80-81 (CB296):
“80. On the information before it, the Tribunal considers that the applicant has not completed 900 hours’ work experience at the bakery. It thus considers the reference letter contains false or misleading information and that the TRA skills assessment is a bogus document as it is a document that the Tribunal reasonably suspects is a document that was obtained because of a false or misleading statement, whether or not made knowingly (s.97(c)).
81. As the skills assessment was given by the applicant as part of the Subclass 886 visa application, the Tribunal finds that there is evidence before it that the applicant has given a ‘bogus document’ (s.97(c)) to an officer, or the Minister, in relation to the visa application the subject of this review. The Tribunal finds that the applicant does not meet PIC 4020(1)(a).”
Ground 1 - The Migration Review Tribunal (“the Tribunal”) denied procedural fairness or failed to apply correct legal principles in that the decision dated 17 April 2013 (“the Decision”) was void for jurisdictional error for the reason that the Tribunal did not conduct a review of the decision under the review as required under s 360 of the Migration Act 1958 (Cth) (“the Act”).
I have not set out the particulars to the ground because they can be effectively summarised. They amount to the proposition that the Tribunal failed to conduct a hearing under s.360 of the Migration Act because it made adverse credibility and/or demeanour findings without having seen the evidence given by the applicant in person.
It is certainly the case that the applicant sought a hearing in person and it is equally clear that the Tribunal refused to have a hearing at which the applicant was personally present but rather conducted the proceeding by video. It is also common cause that the applicant gave his evidence via an interpreter.
The applicant’s written and oral submissions concentrated on the reservations expressed by various courts from time to time about the caution that should be exercised in circumstances where a person provides oral evidence through an interpreter and/or where they are only observed by video link. What the applicant’s counsel submitted was that the circumstances of this case, in which it was put that demeanour was of very considerable significance, (given that the Tribunal was dealing in substance with an allegation of fraud), required that he be heard in person and the failure to do so vitiated the hearing to which the applicant was entitled pursuant to s.360.
I do not propose to set out the authorities in this regard. Although I appreciate the industry and endeavour that counsel for the applicant has put into bringing the relevant authorities to my attention, in my view the propositions that counsel advanced in general terms are uncontroversial. It is certainly the case that a court should approach demeanour with a measure of reservation (Fox v Percy (2003) 214 CLR 118 at [31]). I would go further and say that I accept that a court should be careful in considering evidence given through an interpreter and even more so where a hearing is conducted by video link. Having conducted trials by video link (not just in the Migration Law field) in circumstances where credit is in issue, I would respectfully entirely endorse the comments that have been expressed from time to time on this point.
However, as the first respondent in my view correctly submits, s.366 of the Act expressly provides that the Tribunal may take evidence by video link (s.366(1)(b) closed circuit television or (c) any other means of communication). In Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29 Black CJ, Wilcox and Moore JJ at [97]-[99] said:
“In this case, the tribunal heard the appellants’ evidence by video conferencing. This court regularly uses video to conduct hearings to great practical effect. It is a valuable tool for a court or tribunal in conducting hearings where one, some or all of the parties are located at various points over a large area. However, video can have its limitations: see the discussion by Spender J in Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526; BC200202276. The particular position applicants for protection visas are in has been the subject of judicial comment. In Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 557, the Full Court said:
We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations.
[98] The Full Court also quoted with approval the following passage from Professor J C Hathaway in The Law of Refugee Status, Butterworths, Toronto, 1991:
First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state.
[99] It is of course for the tribunal to decide whether it conducts a video hearing in a particular matter. It is empowered to use it: see s 429A of the Migration Act. But, in doing so, it is as well to be mindful of the limitations of using videos for hearings, particularly where language and demeanour may be relevant if not significant in assessing the veracity of what the applicant for the protection visa is saying in circumstances where the person giving the account is starting from a position of comparative disadvantage of the type just discussed.”
As Reeves J observed in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]:
“[24] Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology. It provides:
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
[25] As the Federal Magistrate observed, this is an enabling provision. It clearly gives the tribunal a discretion to allow an applicant’s appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).”
In the face of the fact that the Tribunal clearly had a discretion given to it by the legislation to proceed by way of video link in my view the Tribunal was clearly entitled to do so. Minds would differ as to whether in the particular circumstances of the applicant this was appropriate, but it seems to me that it cannot have been jurisdictional error for the Tribunal to adopt a form of communication that the Statute expressly empowered.
It should be noted that the Tribunal considered the applicant’s request for a face-to-face hearing and said at paragraph 68 (CB293-294):
“68. The Tribunal considered the request for a face-to-face hearing on the basis that the applicant’s evidence is of central importance to assessing his credibility and that evidence given by video link “is not popular with the Courts in Australia” and that there is a developing line that “witness [sic] required to give evidence preferably for credibility issues must attend in person to give evidence.” However, whilst the Tribunal accepts that the evidence given by the applicant at the hearing is relevant to its findings, it notes that the rules of evidence do not apply and there is no cross-examination of evidence before the Tribunal. The Tribunal considers that the applicant was able to give his evidence and arguments by video-conference at the hearing and will proceed to a decision on the information before it.”
At paragraph 77 (CB295) the Tribunal further stated:
“… However, the Tribunal does not consider that the hearing offered by video conference denied the applicant an opportunity to give evidence and present arguments about the issues before the Tribunal.”
In these circumstances it is clear that the Tribunal turned its mind to whether or not there should be a face-to-face hearing and concluded that it was not necessary to do so. In the circumstances this failure was not such as to give rise to jurisdictional error.
Ground 2 - The Tribunal denied procedural fairness or failed to apply correct legal principles, in that it relied on irrelevant material or made a finding for which there was no evidence.
PARTICULARS
a)The Tribunal made a finding that the applicant provided a false work reference.
b)The Tribunal relied on information given by two persons found guilty of fraudulent conduct, (guilty party) and (second guilty party), who did not attend the hearing to give evidence.
c)The information given by (guilty party) was general in nature and not specific to the applicant.
d)(Guilty party) had not specifically identified the applicant’s work reference from as one of the documents identified as being false.
e)There was no evidence from before the Tribunal that (second guilty party) had not signed the reference letter for the applicant.
f)There was no evidence before the Tribunal that proved that the applicant did not work at the bakery.
This ground effectively rolls up two sub-grounds. Particulars (c) and (d) are what I have described earlier as the new ground, and I shall return to it. The written submissions likewise range over both of these aspects of the case.
For present purposes I will deal with the part of the applicant’s case that touches upon the failure of the Tribunal, as it is put, to cause (guilty party) and (second guilty) party to appear and give evidence.
Counsel for the applicant referred to cases in which members of this Court have regarded the failure of a Tribunal to arrange for the attendance of a witness gave rise to a denial of procedural fairness in such a fashion as to attract judicial intervention (see Collins v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 571 at [41] per McInnis FM and Wago v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 412 at [52] also per McInnis FM but turning on a slightly different point).
Emphasis was placed upon the terms of PIC 4020 and counsel submitted that the instrument requires more than a bare prima facie case in order for a proposition to be made. Counsel submitted that fraud requires cogent proof and that there was none in this instance.
Counsel for the first respondent pointed likewise to the terms of PIC 4020 and drew attention to the introductory words in subclause (1) namely “there is no evidence before the minister …” Counsel also drew the Court’s attention to subclause (5) which defines “information that is false or misleading in a material particular.”
Counsel also drew the Court’s attention to the definition of bogus documents in s.97 of the Act which relevantly reads “bogus document, in relation to a person, means a document which the Minister reasonably suspects is a document …” (emphasis added).
Counsel submitted that the Tribunal had evidence about the bakery and that this was more than enough to satisfy the limited requirements of PIC 4020. He submitted, contrary to the applicant’s position, that s.138 and s.140 of the Evidence Act 1995 (“the Evidence Act”) simply cannot be relied on as the Tribunal is not bound by the rules of evidence.
Counsel referred to paragraph 16 of the first respondent’s written submissions which summarised the evidence before the Tribunal which gave rise to the findings made. He submitted that there was no entitlement to cross-examine in the Tribunal and no obligation to provide the redacted material that the applicant sought. Counsel submitted that this was not a case of the sort exemplified by Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 which suggests that jurisdictional error may arise when a Tribunal fails to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. Counsel did however concede that it was open to the Tribunal to summon parties such as (guilty party) or (second guilty party) pursuant to s.363 of the Act.
Counsel sought to distinguish the decisions in Collins and Wago which were said to be cases involving different factual circumstances. Here the Tribunal sent the applicant the s.359A letter which put the applicant fairly on notice of the issue of his false references. Counsel further submitted that in any event the decisions in Collins and Wago were contradicted by the terms of SZIAI.
In my opinion the first respondent’s submission is correct. The rules of evidence are expressly excluded from the Tribunal’s operation by the Statute and clearly therefore the terms of the Evidence Act do not apply. Likewise there is no entitlement to cross-examine in the Tribunal. It does not appear that any application was made to have (guilty party) or (second guilty party) summoned pursuant to s.363 by the applicant.
In circumstances where (guilty party) and (second guilty party) appear to have been dealt with by the Courts in Victoria for their misconduct, the utility of summoning them to a hearing might be open to question. They would not necessarily be at all likely to cooperate either in terms of attendance or, if compelled, at the hearing itself. Indeed (second guilty party) had made it clear to the applicant that she would not involve herself in his affairs in any event.
This was not a case where the evidence of (guilty party) or (second guilty party) was necessarily likely, given the sort of qualifications I have just described, to lead easily and readily to the resolution of the matters in dispute. True it is their evidence on one view would have had the capacity to be important but this is by no means certain and I do not think the Tribunal can be said to have fallen into jurisdictional error in failing to have them called.
Ground 3 - The Tribunal denied procedural fairness or failed to apply correct legal principles, in that it misconstrued the requirements of clause 886.211 of the Migration Regulations 1994 regarding the terms “closely related” and “relevance”.
PARTICULARS
The Tribunal erred in its assessment of the connectivity required between the applicant’s qualifications and his nominated occupation.
Here both the applicant’s written and oral submissions referred to the failure of the Tribunal to follow the approach taken in PAM3 that the qualifications be complementary to the nominated occupation.
At paragraphs 85-97 (CB297-299) the Tribunal considered the question as to whether each qualification used to satisfy the Australian study requirement was closely related to the applicant’s nominated skilled occupation. This was relevant to the time of application requirements in cl.886.221(3)(b)).
What this boiled down to in substance was that the Tribunal found that the applicant needed to rely inter alia on his Certificate IV and Diploma of Business Management to meet the Australian study requirement in order to satisfy cl.886.221(3)(b) bearing in mind that his nominated occupation was that of pastry cook.
The Tribunal found at paragraph 91 (CB298):
“Whilst the Tribunal accepts that “closely related” is not defined in the Regulations, the Tribunal considers that for a qualification to be “closely related” to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary or that it can be used in that occupation.”
(The Tribunal referred to the decision of Prasad v Minister for Immigration and Citizenship [2012] FCA 591 in this regard).
Put in a summary way the Tribunal concluded that a Diploma in Business Management was designed to equip a student with skills relevant to general business and not in performing the tasks of a pastry cook, which tasks were set out (see paragraph 93, CB298).
The Tribunal went on at paragraph 94 to say:
“In the Tribunal’s view, having regard to the subjects that the applicant has been assessed as competent in the Certificate IV in Business Management and Diploma of Business Management courses he undertook, these qualifications are not closely related to the duties or tasks of a pastry cook.”
At paragraph 95 the Tribunal said:
“… The ‘closely related’ test applies to the nominated occupation and not to the occupation in which the applicant hopes to engage in the future. The Tribunal must consider whether the Business Management qualifications are closely related to the nominated occupation of pastrycook and not to the occupation of a chef or restaurant manager, which are separate and distinct occupations under ASCO, or business owner.”
The applicant’s submission is summarised at paragraph 48 of the written submissions as:
“It is submitted that the Tribunal required an exact correspondence between the academic qualifications and the occupation than being merely useful which is not reflect the wording of the legislation. In those circumstances, the Tribunal erred in its construction of the requirements of clause 886.211 of the Regulations.”
Counsel for the applicant pointed to the fact that the delegate had accepted the applicant’s position but the Tribunal had not done so.
Counsel for the first respondent took the Court to the decision of Jacobson J in Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 in which his Honour said at [26]:
“…It seems to me that the wording of the clause implicitly imports the requirement that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists.”
Having set out a submission at [29] that the proximity between the qualification and the nominated skill occupation could be satisfied “where the course of study used to satisfy the Australian study requirement assists an applicant in his or her nominated skilled occupation” his Honour went on at [30] to say:
“Again, there is nothing to warrant this approach to construction of cl 485.213(b). In particular it is contrary to the construction which has been adopted in this court in the authorities referred to in the Tribunal, and in one other authority.”
His Honour went on to review the authorities to which he referred.
In my view the Tribunal’s finding that the applicant’s business qualifications were not closely related to his nominated occupation of pastry cook was one in the circumstances that it was open to the Tribunal to make. The fact is that the duties of a pastry cook as set out by the Tribunal are manifestly different to those of the business management courses that the applicant conducted.
Ground 4 - The Tribunal’s decision to refuse the applicant’s visa was made without the Tribunal having complied with a statutory condition essential to the validity of the decision, and is therefore affected by jurisdictional error.
The particulars to this ground are lengthy and it is not appropriate to set them out in full. They traverse the way in which the Tribunal requested the redacted documents and obtained them. They traverse the fact that the Tribunal knew that the applicant was not one of the nine clients named in (guilty party’s) document. They traverse the fact that the Tribunal sent the applicant the s.359A letter and the fact that the Tribunal made comprehensive use of the redacted material in its decision. At particulars (h) and (i) the particulars assert:
“(h) The Tribunal’s use of the information obtained pursuant to:
a. the criminal proceedings constituted a breach of the order made by Judge Cannon of the County Court of Victoria made on 30 November 2012 under s.80(1)(c) of the County Court Act 1958 (Vic) (“the County Court orders”), alternatively, constituted an impermissible use of material obtained in criminal proceedings for the purpose of civil proceedings; and
b. the search warrant executed on 29 September 2009 by the AFP at the residence of (guilty party) constituted a breach of section 3ZQU of the Act.
(i) The:
a. breach of the County Court orders; and/or
b. impermissible use of the criminal proceedings material in a civil case; and/or
c. breach of section 3ZQU of the Act
affected the validity of the Tribunal’s decision.”
I have already dealt in passing with the submissions made about the operation of s.138 of the Evidence Act (see paragraph 67 above). I repeat that I accept the first respondent’s submission in this regard.
There are therefore two strands to this ground. First, was the use of the redacted information a breach of the County Court orders and second, did it constitute a breach of s.3ZQU?
The terms of the orders which are set out in several places in the Court Book including CB174-175 are as follows:
“THE COURT ORDERS, PURSUANT TO SECTION 80(1) OF THE COUNTY COURT ACT 1958 (VIC), THAT:
1.Subject to paragraph 2 below, the publication of any information derived from the proceeding:
a)relating to (guilty party’s) cooperation with police or other law enforcement agencies; or
b)his undertaking to give evidence in any future legal proceedings;
be prohibited until further order.
2.The prohibition on publication set out in paragraph 1 above does not extend to any disclosure of information to or between any of the following persons:
a)any Judge of a Court or staff of a Court;
b)any officers or employees of the Commonwealth of Australia or holders of public office of the Commonwealth of Australia;
c)(Guilty party);
d)for the purposes of making or reviewing any decision under the Migration Act 1958 (Cth) or any legal proceedings arising from any such decision or review;
i) Persons for whom false documentation was, or might reasonably be suspected to have been, prepared by (guilty party) who have lodged, or might lodge, visa applications with the Department of Immigration and Citizenship;
ii) persons for whom false documentation was, or might reasonably be suspected to have been, prepared by (guilty party) whose visas have been, or might be, the subject of decisions under the Migration Act 1958 (Cth) in respect of those visas;
iii) persons who make, or have made, sponsorship or nomination applications under the Migration Act 1958 (Cth) based on or connected with false documentation that was, or might reasonably be suspected to have been, prepared by (guilty party);
e)the legal representatives of any of any persons referred to in subparagraphs (b) to (d) above;
f)the registered migration agents, the authorised recipients (within the meaning of the Migration Act 1958 (Cth)) and any interpreters in respect of any persons referred to in subparagraph (d) above.
3.Where any information of the kind referred to in paragraph 1 above is disclosed to any of the persons referred to in subparagraphs 2(b) to (f) above, it shall be accompanied by a copy of this order.
4.The prohibition on publication set out in paragraph 1 above does not extend to any disclosure of information by employees of, or Counsel engaged by, the Office of the Commonwealth Director of Public Prosecutions, officers or employees of the Department of Immigration and Citizenship or State or Federal police officers where that disclosure is made in the course of conducting duties associated with the investigation and/or prosecution of offences in relation to which guilty party has undertaken to give evidence.”
I note from CB173 that the first respondent was represented at the hearing which gave rise to the Judge’s order.
Counsel for the applicant submitted that order 2 only permits disclosure but not publication. Counsel referred to s.138 of the Evidence Act and the risk of the misuse of this information in civil proceedings and pointed to the fact that the Tribunal had not exercised discretion pursuant to s.138 of the Evidence Act. The applicant’s written submissions state at paragraph 51 relevantly:
“… The Tribunal hearing and decision was affected by the suppression order and, as such, the Tribunal was in breach of the non-publication orders in relation to the documents under s 80(4) of the County Court Act. This is particularly so if the jurisdictional error is found and the Tribunal decision is found to be no decision at all.”
The first respondent’s submissions (which I have already dealt with in relation to the s.138 Evidence Act point) first submitted that the information did not derive from the County Court proceeding.
Counsel further submitted that s.368 of the Migration Act required the Tribunal to record its reasons for decision. Both the first respondent’s written and oral submissions referred the Court to s.352(4) of the Migration Act which relevantly requires that the Secretary “must, as soon as practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review.”
It was submitted that in any event the order plainly contemplated in order 2(d)(i) of Judge Canon’s orders matched exactly the sort of circumstances arising here.
Plainly the request by the Tribunal member for the material from the County Court trial cannot have been in any sense a breach of the Court’s order as the Tribunal clearly was not aware of the order at the time. Thus when the material was forwarded to the Tribunal, together with a copy of the order, the Tribunal came into possession of it lawfully.
What the Tribunal then did with it was to use it for the purpose of reviewing a decision under the Migration Act in respect to a person “for whom false documentation was, or might reasonably suspected to have been, prepared by (guilty party).” (Paragraph 2(d)(i)).
The question that arises therefore is whether the provision of the decision to the parties and the naming of (guilty party), (second guilty party) and the bakery in that decision infracts the order itself. I note that the prohibition on the publication of information set out in order 1 is expressly “subject to paragraph 2 below”. Paragraph 2 expressly provides that the prohibition on publication set out in paragraph 1 does not extend “to any disclosure of information to or between any of the following persons” and they include a Judge of a Court, officers or employees of the Commonwealth of Australia and for the purposes of making or reviewing decisions under the Migration Act for persons like the applicant.
In my view the submission of the first respondent is correct. Reading the order as a whole it seems clear to me that her Honour did not intend to prohibit the use of this sort of information in proceedings before the Tribunal and in my view the terms of the order do not do so. To the extent that the applicant submits that only disclosure of information is prohibited I would say that reading order 2 properly it permits publication in the form of disclosure between the relevant nominated parties.
Even if I am wrong in this regard, the Tribunal had a statutory obligation to determine the matter before it. The material having been received lawfully it would not in my view constitute jurisdictional error on the Tribunal’s part to use it. Whether it constitutes a breach or not of the County Court Act 1958 (Vic) (“the County Court Act”) is in a sense a freestanding matter for the County Court.
I have canvassed during the currency of this proceeding whether I am myself bound by the County Court’s order. I expressed some doubt as to whether the order could be so broad so as to inhibit the performance of my functions pursuant to my oath of office. I have concluded that the terms of the order do not prohibit the Tribunal acting as it did and I have assumed the same applies to me. I should note that I have as an abundance of caution anonymised (guilty party), (second guilty party) and the bakery in any event.
The Crimes Act 1914 Point
Section 3ZQU of the Commonwealth Crimes Act 1914 (“the Crimes Act”) provides for the purposes for which things and documents may be used and shared.
It is common cause that the redacted material was obtained under a search warrant issued pursuant to s.3E of the Crimes Act. It was common cause that such material is covered by the terms of s.3ZQU.
Counsel for the applicant took me to Australian Securities and Investment Commission (ASIC) v Rich (2005) 220 ALR 324 where Austin J said at [186]:
“[186] As the Full Federal Court remarked in Hart’s case, at [65], the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them, and “recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined”. On the other hand, when one bears in mind that the search of premises and seizure of goods is illegal unless authorised by law, and the law establishes a very detailed regime for authorisation of seizure under a warrant (“an invasion of interests which the common law has always valued highly”: George v Rockett (1990) 170 CLR 104 at 110–11 ; 93 ALR 483 at 487), any ambiguity or doubt as to the meaning of the statutory words will be resolved in favour of the rights and freedoms of the subject: Hart’s case, at [65].”
It was submitted by counsel for the applicant that the use to which the redacted documents were put did not fall within any of the permitted purposes set out in s.3ZQU including sub-section (4) and this derivative use of the material obtained under warrant tainted the entire decision. It was submitted that the delegate should never have given the redacted material to the Tribunal. Section 3ZQU(4) reads:
“(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.”
Counsel submitted that the power of the Minister to seek further information contained in s.56 of the Migration Act was merely discretionary and did not given its general terms act against, so to speak, the confined terms of s.3ZQU.
Counsel for the first respondent naturally enough put the matter otherwise. It was submitted that s.359 of the Migration Act permitted the Tribunal to obtain any information it regarded as relevant (a submission that it is plainly correct since that is exactly what the section says).
In particular counsel emphasised that s.352(4), the requirement on the Secretary to provide documents to the Registrar, was plainly an exception within the meaning of s.3ZQU(4). It was further submitted that even if the delegate was not able to use the search warrant information for the purposes of decision-making it did not follow that the Tribunal’s decision would be vitiated by jurisdictional error (first respondent’s written submissions paragraph 46).
It was submitted “once a document is provided to the Tribunal under section 352(4), it can be taken into account by the Tribunal”.
In my opinion the submissions of the first respondent are correct. Section 3ZQU does not limit any activities taken pursuant to another Commonwealth Statute and the process whereby the information was both requested, provided and then used by the Tribunal was not in my view in any way a breach of s.3ZQU.
The Additional Ground – Whether the Applicant should have been given copies of the redacted material
Here what the applicant says is that the failure of the Tribunal to provide the applicant with the redacted material, which it undoubtedly relied on, produced a result that was sufficiently unfair as to vitiate the requirement under s.360 of the Migration Act for the applicant to have an opportunity for argument.
There is no doubt that the Tribunal had the redacted material. The Tribunal therefore knew that inter alia (guilty party) had said “from my recollection none of the students completed the full 900 hours with any employer mentioned in this statement” (CB152) and also he would always push students to do some training however, he had no way of knowing whether they actually completed the training (CB164).
The applicant was not, as the Tribunal knew, one of the nine persons specifically identified by (guilty party) as having fraudulent documentation.
As the applicant’s written submissions assert at paragraph 31:
“… The applicant did not know of this inconsistent statement at the time of hearing and the documents were only made available to the applicant when the Court Book was produced in this matter on 6 August 2013. Without the full particulars in relation to the investigation undertaken by the Department, the applicant was disabled from addressing the information which the Department and the Tribunal had reference to in their decisions.”
While in the written submissions and to an extent the oral submissions this matter was subsumed within the debate about whether (guilty party) or (second guilty party) should have been summoned to give evidence, in my view it should properly be considered as a stand alone item.
It is undoubtedly true as counsel for the first respondent submits that there was a wealth of evidence which might be thought to have justified the Tribunal’s finding that the applicant might be taken to have provided a bogus document because he had not completed 900 hours of work as he had said. The test to be met in PIC 4020 is a relatively low one (that there is no evidence before the Minister …) (emphasis added). Nonetheless there are two things to be said.
First the applicant was not provided the redacted material even though he had requested it. This would have shown that there were matters upon which the applicant could very properly have sought to develop either a demand that (guilty party) and (second guilty party) be summonsed or alternatively a more persuasive argument on the facts as the Tribunal, as it transpires, knew them to be.
It is easy to point to the numerous difficulties that the applicant faced. It would be easy to conclude that the Tribunal, had the applicant been made aware of the redacted material, would nonetheless have reached the same conclusion. The difficulty however with this approach is that we will never know.
In my view the failure of the Tribunal to provide the applicant with the redacted documents has affected the exercise of jurisdiction in this case. The applicant did not in these circumstances get the fair hearing to which s.360 of the Migration Act entitles him. If follows that I would uphold the application on this basis.
Conclusion
As the applicant has made out one ground of his grounds of application it follows in my view that the applicant should have the relief he seeks. This is not a case in which granting the applicant relief is likely to be of no value whatever so that relief should be denied. Given the nature of my conclusions, it follows axiomatically that that is not the case. Accordingly the application will be allowed with costs.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 28 April 2014
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