DY v Minister for Immigration
[2006] FMCA 79
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 79 |
| MIGRATION – Residence visa – Migration Review Tribunal – cancellation of visa – failure to inform Department of change of circumstances – bogus circumstances – whether jurisdictional error – whether actual bias. |
| Migration Act 1958, ss, 101, 103, 104, 109, 111, 359A |
| Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 Applicant A165/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 178 ALR 421 |
| First Applicant: | LIN DY |
| Second Applicant: | THIDA CHIM |
| Third Applicant: | RACHANA CHIM |
| Fourth Applicant: | VEASNA CHIM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1220 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 30 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr. T. Fernandez |
| Solicitors for the Applicants: | Nathan Legal Practitioner Solicitors |
| Counsel for the Respondents: | Mr. W. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application dated 21 February 2005 be dismissed.
The Applicants shall pay the First Respondent’s costs, including reserved costs fixed in the sum of $8,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1220 of 2004
| LIN DY |
First Applicant
| THIDA CHIM |
Second Applicant
| RACHANA CHIM |
Third Applicant
| VEASNA CHIM |
Fourth Applicant
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants in this application rely upon an amended application dated 21 February 2005, seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 31 August 2004. In the decision the Tribunal affirmed a decision made by a delegate of the Second Respondent on 25 February 2004 to cancel the general (residence) (class AS) subclass 801 visa held by the First Applicant, a female national of Cambodia born on 25 October 1947.
The other Applicants are children of the First Applicant, except the Second Applicant. Thida Chim was born on 15 January 1979, the Third Applicant, Rachana Chim was born on 8 September 1980 and the Fourth Applicant, Veasna Chim was born on 20 November 1983. As a result of the decision to cancel the First Applicant's visa, it followed that the children had their visa’s cancelled automatically under the Migration Act 1958 (“the Act”). The Applicants have relied upon an amended application dated 21 February 2005 supported by contentions of fact and law dated 23 February 2005.
A separate interlocutory application was filed with the Court on 21 March 2005, seeking a declaration that the then Respondent deliver the notes of evidence of the hearing as recorded by the Tribunal Member in her notes of evidence. That application was heard and refused by the Court. It is appropriate at the outset to set out in brief terms the reasons for that decision, which I had indicated would be delayed until delivery of the judgment in the substantive application.
It is inappropriate for the Court to grant the declaration in circumstances where judicial review is sought. The Court's role is to examine the decision sought to be challenged and the reasons for the decision by the Tribunal Member. It is not the role of the Court, and nor would it be appropriate, to seek production of the Tribunal Member's notes.
The somewhat unusual interlocutory application arose in circumstances where a request had been made for further copies of hearing tapes of the Tribunal proceedings. That request prompted the following facsimile transmission from the Tribunal to the Solicitors for the Applicants dated 14 December 2004, where the Tribunal states:
“On 13 December 2004, Ms Elly Krimotat received a fax from you requesting a fresh copy of the above named Applicant's hearing tapes as the copy you received in response to your FOI request was destroyed. As file is currently in Melbourne, Ms Krimotat requested that I arrange to have the hearing tapes copied and sent to you pending the outcome of the review Applicant's case before the Federal Magistrates Court. There were two tapes to be copied. Unfortunately, the first tape had been destroyed by the tape machine and therefore cannot be copied. Based on our conversation this morning about the quality of the first hearing tape it is with regret that I must inform that the Tribunal cannot comply with your request.”
There is no doubt that if the tapes had been made available then the interlocutory application would not have been made in this instance. Essentially it was argued for and on behalf of the Applicants that the only available alternative in the absence of the tape were notes of the evidence recorded by the Tribunal member.
When pressed on the relevance of the notes and likewise the relevance of obtaining the tape, it was argued for and on behalf of the Applicants that a number of issues are raised in the amended application including actual bias. In general terms the actual bias claim appeared to rely upon information which had been "gathered" by departmental officers during 2000 and 2003 before the grant of the visa and a failure to put that material to the Applicant.
As I understand it other evidence was referred to by the Tribunal in its decision, and due to the lack of availability of the tape recording of the proceedings before the Tribunal, the Applicants' ability to put their case based upon actual bias is seriously affected. Reference was made to Tribunal correspondence dated 10 May 2004 where the Applicant was invited to comment on certain information which included one sentence where the Tribunal states:
“… Information before the Tribunal shows that Mr Chim is alive.”
It was argued that the information has not been given to the Applicant to enable the Applicant to make an appropriate comment. For reasons which will become apparent, the issue of whether or not Mr Chim was deceased was dealt with in other material and during the course of submissions the court indicated to counsel for the Applicants that this issue was not particularly relevant from a practical point of view given that the Applicant herself claims to have discovered that her husband was still alive in April 1999 though did not notify the Department until December 2003.
It was argued there is a practical difference by enabling the Applicant to at least comment on the investigation and information obtained by the Department and that if the tapes of the hearing were available then an assessment could be made as to how that matter was dealt with by the Tribunal.
It seems to me on the material that in any event the Applicant, however, disagreed with any assertion of giving false or misleading statements about whether her husband was alive or dead and/or whether she was entitled to rely upon a purported death certificate. In this case I cannot see any practical benefit to the Applicant in obtaining the notes to determine what may or may not have occurred in relation to that issue.
Furthermore, as a matter of general principle, as indicated earlier, I do not believe it is appropriate or proper for the court to make the declaration sought. There is some assistance to be obtained from authorities which deal with the immunities of courts and specifically authorities dealing with interrogatories administered on members of the Refugee Review Tribunal seeking disclosure of aspects of decision‑making processes. In the matter of Herijanto v Refugee Review Tribunal & Ors (2000) 170 ALR 379, it is noted that Gordon J relevantly states the following:
“[3] Section 435(1) of the Act provides that a member of the tribunal “has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal”. By s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), a member of the Administrative Appeals Tribunal has, in the performance of his or her duties, “the same protection and immunity as a Justice of the High Court”. The protection and immunity enjoyed by a justice of this court is not the subject of legislative provision. Rather, he or she has such protection and immunity as is conferred by the common law and, perhaps, such as is to be derived by implication from Ch III of the Constitution.
[4] It is contended that the protection and immunity of a justice of this court is such that he or she cannot be compelled to disclose what material was read in reaching a decision — much less, when and where it was read and in what form. And it is argued that that is what the interrogatories administered in these cases seek of members of the tribunal. The plaintiffs contend that the interrogatories do not require disclosure of what was actually read by members of the tribunal, merely disclosure of the tribunal's record. Moreover, they argue that s 435(1) of the Act simply confers protection or immunity from civil suit, not from compulsory disclosure.
…
[11] It is convenient, before turning to the interrogatories, to consider the extent of the protection and immunity enjoyed by members of the tribunal. As already indicated, the plaintiffs argue that the only protection or immunity conferred by s 435(1) of the Act is protection or immunity from civil suit. In this regard, they claim that the only protection or immunity which is peculiar to judges and which is not shared by other decision-makers is immunity from civil suit. Further, they claim that that is the only immunity that is conferred by s 435(1). That argument must be rejected.
[12] Section 435(1) of the Act, which operates by reference to s 60(1) of the AAT Act, is not concerned with the protection and immunity that is peculiar to a justice of this court. Rather, it is concerned with the entirety of that protection and immunity, whether or not some aspect of it is also enjoyed by other decision-makers. And the entire general protection and immunity of a justice of this court is conferred on a member of the tribunal by s 435(1) of the Act.
[13] It has been settled law since Knowles’ Trial2 that judges cannot be compelled to answer as to the manner in which they have exercised their judicial powers. In Hennessy v BHP Co Ltd, the immunity was said to be such that judges cannot be compelled “to testify as to matters in which they have been judicially engaged”.3 However, it was also pointed out in that case that “their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers”.4
[14] In MacKeigan v Hickman,5 the Supreme Court of Canada held that judges could not be compelled to disclose what affidavit evidence had been received when that did not clearly appear from the record. However, Wilson J, in dissent on this point, would have held that they might be asked “what as a factual matter comprised the final record for purposes of their decision”.
[15] In MacKeigan, the immunity of judges from compulsory disclosure was rested on the principle of judicial independence. In Sirros v Moore, a case concerned with immunity from civil suit, Lord Denning MR suggested that the reason underlying that immunity was to ensure that judges “may be free in thought and independent in judgment”.7 That, in my view, is also the true basis of the immunity from compulsory disclosure. And on that basis, I see no reason why a judge might not be compelled to disclose the record upon which he or she has acted. However, that is subject to the qualification that disclosure of the record cannot be compelled if it would also reveal some aspect of the decision-making process, as may well have been the case in MacKeigan.8
[16] There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, “the record” bears a clear meaning.9 The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy.”
In the present case, in my view the declaration sought effectively seeks to compel the Tribunal member to disclose the record upon which she has acted. In doing so it would require the Tribunal member to disclose a decision-making process in breach of what I accept to be protection and immunity of the Tribunal member in the sense that it would require a Tribunal member to produce not simply a record of material relied upon but rather notes of that Tribunal member, which in my view may well provide, whether directly or indirectly, disclosure of an aspect of the decision-making process which would encroach upon the freedom of thought and independence of judgment of the Tribunal member.
On that basis I am not prepared to grant the declaration. Further, as indicated, in this instance in any event, even if I were incorrect in that assessment, I do not see any practical benefit to this application in granting the declaration when issues sought to be agitated in the amended application can be dealt with in the normal manner in the judicial review process when dealing with the substantive application.
Background
It is relevant to set out the chronology of events, which do not seem to be in contention. The first Applicant is a citizen of Cambodia who arrived in Australia on 18 November 1997 as a holder of a three‑month visitor visa. On 17 January 1998 she married Wawang Wiharno, an Australian citizen. On 28 January 1998 the Applicant applied for an extended eligibility (temporary) (class TK) subclass 820 visa on the basis of her marriage to Mr Wiharno. That application included the four children as family members applying.
In that application, question 18 provides “Have you previously married or been in a de facto/common law marriage?”
The Applicant ticked "Yes" and then stated that the period of marriage was from 1975 to 1997. When asked “How did it end (divorce etc)?” the Applicant inserted, "Deceased."
A death certificate appears in the court book purportedly for Sothy Chim which was provided in support of the assertion that he had died (court book page 29).
On 18 January 2001 the Applicant was granted a subclass 820 visa and on 15 December 2001 was granted a subclass 801 permanent visa, as were three of her children, Thida, Rachana and Veasna.
On 4 March 2002 the Applicant's daughter Thida (the second Applicant) sponsored an Applicant in an application for a prospective marriage (temporary) (class TO) subclass 300 visa. During the course of processing that application it is claimed that the second Respondent's department ascertained that Mr Chim was in fact still alive. On 17 November 2003 the Department sent the Applicant a notice of intention to consider cancellation under s.109 of the Act on the basis that the Applicant may not have complied with ss.101 and 103 of the Act.
The notice of intention to consider cancellation of the visa prompted a response from the solicitors for the Applicant in correspondence dated 9 and 17 December 2003. The correspondence included a number of statutory declarations from the Applicant and her children and a Mr Dorm who claimed to live with the Applicant and her children at the same address.
In her declaration, the first Applicant declared that police had informed her on 3 November 1997 that her husband had been killed in a motor accident. A commemoration service was conducted on 7 November 1997. The Applicant arranged for a death certificate to be issued and came to Australia on 18 November 1997 and thereafter married Mr Wiharno.
While in Australia in April 1999 the Applicant claimed that Mr Chim had reappeared at their family residence in Cambodia accompanied by a woman who he claimed to be his new wife. The Applicant claimed that her marriage to Mr Wiharno deteriorated and they separated and were divorced on 4 July 2003.
On 5 January 2004 the Department sent the Applicant a further notice of intention to consider cancellation of the visa. On 28 January 2004 the Applicant's solicitor responded, including further statutory declarations from the Applicant and her children.
On 25 February 2004 a delegate of the second Respondent cancelled the visa pursuant to s.109 of the Act as the delegate was satisfied the first Applicant had not complied with s 101, 103 and 104 of the Act. As a consequence the children's visas were cancelled. The first Applicant then filed an application for review with the Tribunal on 5 March 2004.
On 10 May 2004, as indicated earlier, the first Applicant was invited to comment on certain information pursuant to s.359A of the Act. On 15 July 2004 the Applicant's solicitors provided various statutory declarations and other material in response to the invitation from the department (court book 174-247).
The hearing in this matter was conducted on 10 August 2004. After the hearing a further written submission was provided to the Tribunal together with other material (court book 252-262). Significantly, in those submissions the following statement appears:
“In all the circumstances the Applicant submits her application for Permanent Residency on the grounds of a spousal relationship with Mr Wiharno was accurate and valid as she firmly believed that she had entered into a valid marriage as Mr Chim was dead. On these grounds it is submitted that the circumstances had not changed.”
Relevant Legislation
The relevant sections are as follows:-
101 Visa applications to be correct
A non-citizen must fill in his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
103 Bogus documents not to be given
A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
The Tribunal Decision
During the course of the Tribunal hearing it is evident that a discussion occurred between the Tribunal and the first Applicant. Relevantly, the following appears in the decision:
“38.The Tribunal discussed the following with the review applicant. According to her own submission she was aware that Mr Chim was alive in 1999. However she did not disclose this to the Department prior to the grant of her subclass 820 visa in January 2001 or the grant of her subclass 801 visa in December 2001 (this information was referred to in the delegate's decision record). It was after the delegate investigated and disclosed this information to her, that she confirmed Mr Chim's continued existence.
39. The review applicant provided the following response: she did not know how to tell the Department when her husband reappeared. Her children could not call her. On New Year Day in 1999, she telephoned her son Rachana, and was advised that his father had come back for two hours to see his children and then gone back into hiding. Their father told her children not to tell anyone that he was alive. If the children disclosed the information they would have been in danger with the police. She felt confused and did not know what to do. She was worried about the safety of her children and husband. She was worried that if the troops knew Mr Chim was alive the children would be arrested in order to find out where he was.
40. The Tribunal queried how advising the Department of the re-appearance of Mr Chim would compromise her children's safety, the review applicant responded that if the government in Cambodia were told it would not be safe for her children.
41.The Tribunal discussed with the review applicant the non-compliance with usual procedures in obtaining the death certificate for Mr Chim. The Tribunal indicated that her local authority had indicated that the death should have been reported to the local authorities who would then have reported it to the district authority. The Tribunal indicated that the local authority did not have a record of Mr Chim’s death and advised that he was alive and residing at his home, where he had an Internet café business (this information was in the delegate decision’s record.
42.The review applicant indicated that her nephew posted Mr Chim’s death certificate (dated 7 November 1997) to her after had departed for Australia. She indicated that she attended to all formalities. She indicated that documents may have been lost in the mail and there are no computer records. She stated that the delegate spoke to the local authorities after 2000 and that the death certificate was obtained in 1997.
43.The review applicant stated that she complied with the law and that may be it was ‘their fault’. She had registered the death in Phnom Penh. She had provided the information that Mr Chim was dead.
44.The Tribunal discussed with the review applicant that the claims that Mr Chim disappeared in November 1997, re-appeared for one hour in April 1999 before disappearing again were inconsistent with the Family Book registered in July 1999, which indicated that Mr Chim himself, herself and her children were registered at that address. (In the decision record the delegate refers to the family book registered in July 1999 which listed Mr Chim as being alive and which included details of the review applicant as his wife and details of the children).
45.The review applicant stated that the document was not correct. It incorrectly stated that Mr Chim was born in 1947, when he was in fact born in 1948. She stated that she was in Australia in 1999. She indicated that her son Rachana’s name was misspelt Ratana. (These details are on the English translation of the Family Book). She stated that Mr Chim appeared for two hours and then disappeared again. She indicated that the family book may have resulted from the government compiling statistics as to who lives in a house and they may have copied the old family book.
46.The Tribunal discussed with the review applicant that in its experience with death certificates from Cambodia where persons are missing/a body has not been found, it is indicated that the person is ‘missing’. The Tribunal discussed that the death certificate she provided with her visa application indicated that Mr Chim died in a traffic accident. Subsequently, after the delegate’s disclosure to her that Mr Chim was alive, she indicated that Mr Chim had disappeared.”
Other discussion occurred between the Tribunal and the first Applicant, referred to in detail in the Tribunal's decision.
In its findings the Tribunal correctly referred to the relevant sections of the Act and in particular, apart from those sections referred to earlier in this decision, also referred appropriately to s.111, which provides that s.107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
The key findings of the Tribunal included a finding that the Applicant had not complied with s.101 as she had indicated on her application that she had been married or been in a de facto/common law marriage and that relationship ended because of the death of the other party. The Tribunal found and it was conceded by the Applicant that Mr Chim was not dead. The Tribunal was then satisfied that there was non-compliance with s.101 of the Act.
The Tribunal further found that the Applicant had provided a bogus document pursuant to s.103, since the Applicant submitted a death certificate of her former spouse which recorded him as being deceased when in fact he was alive. In its decision the Tribunal, whilst noting the death certificate may have been issued lawfully, concluded that it contained "false information". The Tribunal was satisfied there was non-compliance with s.103 of the Act.
The Tribunal further found that the Applicant failed to comply with s.104 of the Act, which requires the Applicant to inform an officer in writing of any change in circumstances which would make the answer to a question on a non-citizen's application or an answer under that section incorrect.
The Tribunal otherwise made findings and gave consideration to the prescribed circumstances set out in regulation 2.41 of the Migration Regulations. It concluded that on the evidence before it, it was not satisfied the Applicant's non-compliance had been inadvertent. It considered it was appropriate to cancel the Applicant's visa and accordingly affirmed the decision of the delegate.
The Grounds for Review
As indicated earlier, the Applicants have relied upon an amended application dated 21 February 2005 supported by written contentions dated 23 February 2005 and oral submission made before the court.
The grounds relied upon are as follows:
(a)the decision of the Tribunal was vitiated by actual bias;
(b)the Tribunal breached section 359A of the Act;
(c)the Tribunal's satisfaction that there was non-compliance with section 101, as described in the delegate's notice, is not a satisfaction that accords with section 65 of the Act;
(d)the Tribunal has adopted the delegate's satisfaction rather than reaching its own state of satisfaction as contemplated by section 65 in relation to the review Applicant's alleged breach of section 104 of the act, and denied the Applicant procedural fairness and failed to correctly interpret section 101, 103 and 104 of the Act.
There were other grounds referred to as grounds (f), (g) and (h) in the amended application which were not pursued at the hearing.
(a) The decision of the Tribunal was vitiated by actual bias
It was submitted on behalf of the Applicants that the Tribunal decision was vitiated by actual bias in that the Tribunal ought to have known that:
“In the period 2000 to 2003, departmental officers in Cambodia spoke with various officials and individuals who know Mr Chim.” (court book page 55)
Reference was made to the decision made by the Tribunal in relation to the family book and observations in relation to that document. At the hearing it was clear, the Applicant having failed in the interlocutory application to require production of the Tribunal's notes, that the Applicant was not then in a position to pursue with vigour the claim of actual bias.
In my view the claim of actual bias in any event is misconceived. Allegations of actual bias are indeed serious and grave allegations and should not be made lightly. In addition it is clear that when an allegation of actual bias is made, it is essential that cogent evidence is needed (see Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 per Wilcox J at 123).
In this case I am not satisfied that there is any base upon which the claim of actual bias can be made out, and nor am I satisfied that the pursuit of that claim would have in any way been advanced by a declaration being made for the production of the Tribunal's notes. What is required is for the court to consider the decision of the Tribunal and its reasons in writing and then determine whether on the material it could be satisfied the Tribunal had a closed mind to the issues raised and was not open to persuasion (See Applicant A165/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 877 at [58] and [59]. In that case reference was made to the High Court decision of Gleeson CJ and Gummow J in Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 178 ALR 421.)
Applying those principles to the present case, I am not satisfied that there is any material which would lead this court to conclude that there has been actual bias and I would reach that conclusion regardless of the outcome of the interlocutory application, as even if successful, that application would only produce notes of a hearing and does not provide any or any proper base upon which the court could possibly conclude that there has been actual bias. Accordingly the ground of actual bias should fail.
(b) The Tribunal breached section 359A of the Act
At the hearing this ground was not pursued.
(c) The Tribunal's satisfaction that there was non-compliance with section 101, as described in the delegate's notice, is not a satisfaction that accords with section 65 of the Act
Particulars subjoined to this ground included a reference to a claim that the Tribunal had adopted the delegate's satisfaction rather than reaching its own state of satisfaction by a consideration of all further information up until the hearing. That particular was not pursued at the hearing but rather it was argued the Tribunal failed to grasp the incorrectness of the tense used in the delegate's decision where reference was made to the words "now" and "was".
As I understand the submission, an argument was advanced that in hindsight or after the event a clear picture may emerge as to whether or not the first Applicant's husband was deceased. The test for the purposes of ss.101, 102, 103 and/or 104 it was argued was at the time when the information was stated categorically correct.
The Respondent submitted that the Tribunal hearing is a de novo hearing, and whether the delegate made an error in the use of tense is irrelevant. In any event it was submitted that a complete answer to the question is that even though a person who gives the answer did not know it was incorrect, it does not matter for the purposes of ss.100 and 101 of the Act. I agree with that submission, and this ground should fail. It is clear that under s.100 of the Act it does not matter that the person who gave the answer or caused the answer to be given did not know that it was incorrect. So much is evident from the section itself, referred to earlier in this judgment.
(d) The Tribunal adopted the satisfaction rather than reaching its own state of satisfaction as that contemplated by section 65 in relation to the review Applicant's alleged breach of section 104 of the act, and denied the Applicant procedural fairness and failed to correctly interpret section 101, 103 and 104 of the Act
This ground was amended at the hearing, though the particulars subjoined to the ground in the amended application were not all pursued. Particulars (2) and (3) were not pursued. Instead it was argued the Tribunal failed to consider the meaning of "change of circumstance" and instead presumed that there was a change in circumstances and that there were new circumstances. Further, it was argued the Tribunal failed to specific what was the review Applicant's own information to show there was non-compliance with s.104 as described by the delegate's decision and a failure to consider and correctly interpret if there were "new circumstances or not".
Counsel for the first Respondent submitted that the Tribunal set out the relevant legislation and found there was non-compliance, and in doing so did not err in its consideration of whether a change of circumstances had been notified pursuant to s.104. On the Applicant's own admission she had not notified the Department that an answer to a question in the application was incorrect.
In my view it is clear that the decision by the Tribunal was reasonably open and free of any error. I do not see any error in the way the Tribunal interpreted the relevant provisions of the act and it was entitled to rely upon the evidence available to it, which included the admission of the Applicant that she had not notified the Department that an answer to a question on the application form was incorrect. Accordingly this ground should fail.
(e) The Tribunal's decision is a decision that is not made under the Act
It is clear that this ground depends upon other submissions, and as submitted by the Respondent, the particulars appear to be a repetition of issues raised and considered earlier. It should be noted that particulars (2), (3) and (4) subjoined to this ground were not pursued at the hearing. As indicated earlier, I am not satisfied the Tribunal failed to interpret correctly the relevant provisions of the act, and in my view this ground should fail.
Conclusion
It follows for the reasons given, therefore, that the application should be dismissed and that the Applicant should be ordered to pay the first Respondent's costs including reserved costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 January 2006
0
5
1