Ibrahim v Minister for Immigration and Citizenship
[2008] FCA 503
•21 April 2008
FEDERAL COURT OF AUSTRALIA
Ibrahim v Minister for Immigration and Citizenship [2008] FCA 503
MIGRATION – where appellant conducted business in Australia – where balance sheet showed that the net assets throughout the period of 12 months prior to the appellant making the application was in excess of AUD$100,000 – whether Tribunal answered the questions it was bound to answer in the exercise of its jurisdiction and in the consideration of cl 845.215 – appeal allowed.
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) Schedule 2 cl 845.215SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 cited
ROMEO ELIAS IBRAHIM, AMAL FARID EL BAZI, ELIE IBRAHIM, SABINA IBRAHIM AND SEBASTIEN IBRAHIM v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 1673 OF 2007
LANDER J
21 APRIL 2008
ADELAIDE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1673 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
ROMEO ELIAS IBRAHIM
First AppellantAMAL FARID EL BAZI
Second AppellantELIE IBRAHIM
Third AppellantSABINA IBRAHIM
Fourth AppellantSEBASTIEN IBRAHIM
Fifth AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
21 APRIL 2008
WHERE MADE:
ADELAIDE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Magistrate made on 10 August 2007 be set aside.
3.The decision of the Migration Review Tribunal made on 22 November 2006 and handed down on 4 December 2006 be quashed.
4.The appellants’ application for review of the delegate’s decision to refuse to grant the appellants a visa be remitted to the Migration Review Tribunal for determination according to law.
5.The first respondent pay the appellants’ costs before the Federal Magistrate and on appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1673 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
ROMEO ELIAS IBRAHIM
First AppellantAMAL FARID EL BAZI
Second AppellantELIE IBRAHIM
Third AppellantSABINA IBRAHIM
Fourth AppellantSEBASTIEN IBRAHIM
Fifth AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
21 APRIL 2008
PLACE:
ADELAIDE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal against an order of a Federal Magistrate made on 10 August 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 22 November 2006 and handed down on 4 December 2006. In that decision the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant an Established Business (Residence) (Class BH) (Subclass 845 (Established Business in Australia)) visa to the first appellant.
The first appellant is a citizen of Lebanon who arrived in Australia in September 1998. The first appellant, Mr Romeo Ibrahim, was the main visa applicant and will be referred to in these reasons as the appellant. The other appellants are his wife and three children.
On 8 October 2004 the appellant applied for an Established Business in Australia (Subclass 845) visa. On 31 May 2005 a delegate of the first respondent refused that application. On 7 June 2005 the appellant applied to the Tribunal for a review of that decision.
The criteria which must be established to satisfy the grant of a Subclass 845 visa is contained in cl 845 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, for the purpose of this application, cl 845.215 provided:
The total value of the net assets owned by the applicant, or by the applicant and the applicant’s spouse together, in the main business or main businesses in Australia:
(a) is; and(b)has been throughout the period of 12 months immediately preceding the making of the application;
at least AUD$100,000.
It was necessary therefore if the applicant were to obtain the grant of a Subclass 845 visa that the applicant satisfy the delegate that in the period 7 October 2003 to 7 October 2004 he or he and his wife jointly had assets in a business amounting to $100,000.
The applicant claimed that on 28 March 2001 he had commenced the business of providing access and scaffolding to the construction industry trading under a business name REI Construction. He provided evidence of the registration of that business name in the Australian Business Register. He claimed that REI Construction Pty Ltd was incorporated on 13 September 2004 and he was the sole shareholder of that company. He provided evidence of the incorporation of the company and that he was the sole shareholder. He claimed that the company acquired the assets owned by the business some time prior to 30 September 2004.
In support of his application, he provided a profit and loss statement for the financial year ended 30 June 2004 of REI Construction which showed a profit of $115,012.48 out of gross receipts of $1,332,204.30. The profit and loss statement shows expenditure for materials and supplies $123,598.23, salaries $196,157.15 and subcontractors $685,386.40 He also provided a balance sheet for the business as at 30 June 2004 which disclosed net assets of $469,535.51.
The assets comprised receivables of $285,000, cash of $11,000 and property, plant and equipment (including motor vehicles) of $317,035.91 after allowance for depreciation.
The liabilities included $24,807 said to be unsecured cash at bank (an overdraft), a liability for GST payments of $138,700 against which was offset $87,251.66 for an input tax credit control account and amounts withheld from salary and wages of $67,243.46.
No trade creditors or any moneys owing to subcontractors are disclosed which might be thought to be odd, especially having regard to the profit and loss statement.
The figures were unaudited but were prepared by a public accountant. Note 1 to the Notes to the Financial Statements includes a Statement of Accounting Policies which asserted that the report had been prepared in accordance with two particular Australian Accounting Standards; AAS 5 – Materiality and AAS 8 – Events Occurring After Reporting Date. The accounts also included a Compilaton Report which disclosed that the report had been compiled in accordance with APS 9 “Statement of Compilation of Financial Reports”. The Compilation Report discloses that the appellant was solely responsible for the information contained in the report. The Compilation Report includes a disclaimer:
To the extent permitted by law, we do not accept liability for any loss or damage which any person, other than the Proprietor, may suffer arising from any negligence on our part. No person should rely on the special purpose financial report without having an audit or review conducted.
The special purpose financial report was prepared for the benefit of the proprietor and the purpose identified above. We do not accept responsibility to any other person for the contents of the special purpose financial report.
In response to a request from the Department, the applicant also provided a profit and loss statement for the period 1 October 2003 to 30 September 2004 which covers almost the whole of the relevant period under consideration and a balance sheet as at 30 September 2004. A Statement of Significant Accounting Policies in the same terms as the previous statement was a note to those financial statements. The profit and loss statement showed a net profit before tax of $230,299.92. This was achieved on a turnover of $1,339,364.05. The profit and loss statement disclosed salaries of $181,371.15 and payments to subcontractors of $701,351.85. A sum of $41,511 was applied to depreciation.
The balance sheet compared the business’s assets and liabilities as at 1 October 2003 and the company’s assets and liabilities as at 30 September 2004. There are obviously some difficulties in comparing the balance sheet of a business which the appellant owned as at 1 October 2003 and the balance sheet of a company of which the appellant was the sole shareholder as at 30 September 2004. An attempt had been made, however, in the balance sheet to do so.
The net assets of the business as at 1 October 2003 are disclosed at $234,607.28. The net assets of the company as at 30 September 2004 are given as $471,529.10.
In both cases, the balance sheet discloses “Owner’s Equity”. That owner’s equity would appear to reflect an opening balance, the profit for the year less the drawings.
The comparisons are:
Owner’s Equity
Opening balance 281,901.11 277,761.65
Capital contribution 135,168.27 42,500.25Less:
Drawings 68,546.37 90,406.67
Current year profit 230,299.92 52,045.88
___________ __________
Owners Equity 578,822.93 281,901.11It is curious that the owner’s equity is in both cases greater than the net assets. I think, however, that may be explained by the way in which the owner’s equity is described.
These financial statements were prepared by HM & Associates for REI Construction. The principal of HM & Associates is Harry Mavrolefterou.
If the financial statements accurately record the net assets at the respective dates indicated, then the company’s net assets increased by in excess of $230,000 over the relevant period. As the appellant is said to be the sole shareholder in the company, the value of the shareholdings was, as at 30 September 2004, $471,529.10 which is significantly greater than the criteria required under cl 845.215.
On 4 February 2005 the delegate wrote to the applicant’s migration adviser:
Thank you for your letter dated 4 January with which you forwarded documentation in support of the above application. This submission has shown up a number of anomalies which require clarification and/or further documentation.
Could you please provide explanations and further evidence as necessary in relation to the following matters:
1.The applicant claims to have been given money indirectly by his father, Elias Ibrahim, via two persons to whom his father lent money in 1996, Joseph Nassif and Malek Jarjo, who subsequently settled the loans with the applicant. Please submit documentation evidencing (a) the existence of these loans from Mr Ibrahim snr to Messrs Nassif and Jarjo; (2) Mr Elias Ibrahim’s foregoing of the repayment of the debts in favour of his son; and (c) movement of funds. Appropriate documentation would be legal contracts (to evidence loans and gift of money) and bank account statements and transactions to show the movement of funds. The onus is on the applicant to demonstrate the source and legal ownership of windfall assets.
2.You state that the business, REI Construction, was established, rather than purchased, by Mr Ibrahim. However REI Construction’s Company Profile indicates it has been in existence for over 10 years, while the applicant did not arrive in Australia until September 1998.
3.Romeo Ibrahim’s initial entry visa had a “no work” provision, and the subsequent visas granted him to date specified “work limitation” due to employer sponsorship provisions. Please give full details of the applicant’s employment by Holdmark Australia P/L, and how this was combined with establishing and running REI Construction since 27 March 2001.
4.The business address given for REI Construction is the same as the applicant’s home. There is an expense item for “rent on land and buildings” in the financial statements, what is this rent for? What are the arrangements for employees of REI Construction in terms of accommodation?
5.Original Republic of Lebanon police certificate for applicant which is less than 12 months old. (The one provided was issued on 22 June 1999.)
6.Completed form 80 for both applicant and spouse. (See attachment.)
The appellant’s migration adviser responded to that letter on 25 February 2005. The delegate was advised that the applicant’s father lent the sum of AUD$42,500 to Mr Malek Jarjo and the sum equivalent to AUD$130,000 to Mr Joseph Nassif in 1996. The applicant’s adviser said that in 2003 both amounts were “fulfilled” by Messrs Jarjo and Nassif paying the above sums to the applicant which the applicant injected into his business.
The reply enclosed statutory declarations from Mr Nassif, Mr Jarjo and the applicant confirming the assertions made in the applicant’s adviser’s letter. Other issues were also addressed.
The delegate refused the application on the basis that insufficient evidence had been provided to support the applicant’s claimed ownership of the existence of assets in the sum of $100,000.
The delegate was not satisfied by the explanation which had been given by the applicant’s adviser and by the contents of the statutory declarations. The delegate wrote:
The applicant was not able to furnish any bank statements (withdrawals/deposits), money transfers, excess cash declarations, or the like, for the claimed cash assets. Not one, of the three parties involved, presented anything other than statutory declarations, for a total sum amounting to over AUD $170,000.00 which was apparently repaid in cash (some two months after the request to do so). Leaving no trace where these funds were derived from, how they were acquired, nor their ability to collect such an amount, in cash form, within the short timeframe.
Irrespective of the fact, that it may well be customary in some cultures, to provide loans from one individual to another, it seems implausible that no record of such a debt would have existed, and no conditions and time set for its repayment. In that this would not warrant any claim to, or timeframe, on the repayment of the same. No mention was made on the depreciative value, currency fluctuations, or the like, all of which may have had an impact on loans provided some 8 years earlier.
In summary, and in accordance with policy guidelines, I find that insufficient evidence has been provided to support the applicants claimed ownership or existence of the claimed assets. I can not be satisfied that the applicant has legal title to the assets, nor that any such assets were legally acquired. As such I am unable to determine that Mr Ibrahim meets the AUD $100,000.00 net business asset requirement.
The applicant applied to the Tribunal for a review of the delegate’s decision.
On 18 April 2006 the Tribunal sought further information from the applicant in relation to the same matters raised by the delegate.
The Tribunal, however, was given different advice from that given to the delegate. The Tribunal was advised by the appellant’s solicitor that the loans to Mr Nassif and Mr Jarjo were not repaid in cash as the relevant statutory declarations claimed.
It was said they were repaid in kind by both Mr Nassif and Mr Jarjo supplying product to the applicant’s business to the value of the amount loaned by the applicant’s father. The solicitors wrote in relation to the statutory declarations which had previously been supplied:
The statutory declarations arose as a result of the conduct of the Applicant’s former agent Ms Polina Domburga. Ms Domburga stated to Mr Ibrahim that she had made a submissions (sic) to the DIMIA to the effect that the loans had been repaid by means of a cash payment. This statement was made without reference to our client and certainly without his instruction or permission. She then stated that the Applicant was obliged to obtain statutory declarations supporting the incorrect statement which she had already put to the Department. Our client then acted on that advice.
It should be noted that Ms Domburga has subsequently been de-registered as a migration agent and has fled Australia.
Mr Ibrahim has always felt concerned about the mis-statements. However, he felt that he had been placed in an extremely difficult position with no clear choice.
In due course, the applicant, Mr Nassif and Mr Jarjo gave evidence before the Tribunal. It is not necessary to discuss their evidence in detail except to observe that both Mr Nassif and Mr Jarjo gave evidence that they repaid the loans in money. Mr Nassif also said that he repaid his loan by providing $90,000 worth of materials. The Tribunal was clearly not satisfied by the explanations given as to the payment of the loans. Subsequent to the hearing held on 12 September 2006, on 13 September 2006 the Tribunal wrote to the applicant advising that it required further information, in particular, in relation to discrepancies between the evidence given by Mr Jarjo and Mr Nassif, and the appellant. In that letter to the appellant, the Tribunal pointed out the differences between that evidence and the claim in the appellant’s solicitor’s letter that both Mr Nassif and Mr Jarjo had repaid the loans “not in cash but in kind”. The appellant’s solicitor responded.
In its reasons, the Tribunal after discussing the matters to which I have referred said:
In the Tribunal’s view the state of the evidence is such that the assertions of the applicant and those giving evidence on his behalf cannot be relied upon. In the Tribunal’s view, their actions in providing obviously deceitful material to the Department simply to support the application demonstrates a disregard for the truth and a willingness to make any assertion which would assist the application. There has been an attempt to blame the former adviser of the applicant for these issues, however in the Tribunal’s view the applicant and those making declarations on his behalf equally set out to deceive the Department.
The Tribunal was not satisfied with the oral evidence that had been given having regard to the inconsistencies inherent in that evidence.
The Tribunal was not satisfied that the applicant or his spouse owned assets of at least $100,000 in REI Construction Pty Ltd or its predecessor business for the period 7 October 2003 to 7 October 2004. For those reasons, it was not satisfied that the criteria prescribed in cl 845.215 were met. For those reasons, it affirmed the decision of the delegate.
The applicant applied to the Federal Magistrates Court for judicial review of that decision.
An amended application was filed on 17 July 2007. The grounds of that application were:
1.The Tribunal asked the wrong question in failing to apply the statutory criteria for the grant of the visa applied for.
2.The Tribunal failed to comply with its obligations under s 425 of the Migration Act 1958 (Cth)
The application was dismissed. The Federal Magistrate concluded that the Tribunal simply placed no credence on any of the information provided by or on behalf of the applicant.
The Federal Magistrate found that the applicant had been put on notice as to the issue which needed to be addressed both at the hearing and in the Tribunal’s letter dated 13 September 2006 where the Tribunal sought further clarification in the light of the evidence given to the Tribunal at the hearing.
He found that there had been no jurisdictional error and, in those circumstances, the decision amounted to a privative clause decision which meant that the application had to be dismissed.
At the hearing of the appeal the appellant sought and was granted leave to substitute a notice of appeal which was filed in Court:
Ground one
1.His Honour, Federal Magistrate Driver, erred in finding that the Tribunal did not ask the wrong question, and/or erred in law, that error going to jurisdiction.
1.1His Honour should have found that the Tribunal failed to apply the statutory criteria for the grant of the visa applied for because it asked whether it could be satisfied that Mr Ibrahim was the beneficial (as well as legal) owner of certain assets owned by REI Construction P/L (“the Company”), rather than whether or not Mr Ibrahim had a legal ownership interest in the Company, being his sole shareholding in the Company (section 134 of the Migration Act 1958 (Cth), Migration Regulations 845.215).
Ground two
2.His Honour erred in finding that the Tribunal complied with its obligation under section 425, which required it to give the Applicant an opportunity “to give evidence and present arguments arising in relation to the decision under review”.
2.1His Honour should have found that the Tribunal was obliged, pursuant to section 425, to warn the Applicant that it proposed to find that it could not or would not rely on the accounts, prepared by the accountant, and provided by the Applicant as representing the net asset position of the Company.
2.2His Honour should have found that this was not an issue arising “out of the review”, because it was not an approach relied upon by the delegate, who rejected the claim because the delegate was not satisfied that the applicant had legal title to the assets, nor that they were legally acquired.
2.3In the alternative to 2.2, His Honour should have found that the delegate’s decision did not sufficiently disclose the issue such that it was an issue arising out of the decision under review, and the Tribunal did not sufficiently disclose the issue on review.
The appellant also sought leave to file in Court an affidavit of Harry Mavrelefterou sworn on 13 November 2007. The evidence was put forward to show the evidence that would have been available if the appellant had been warned that the Tribunal might not rely upon the financial statements which had been provided the Tribunal at the instigation of the appellant and in response to the request of the Tribunal. I allowed the tender of the evidence. I adjourned the appeal so that the first respondent could consider whether counsel wished to cross-examine the deponent. In due course, I was advised that the first respondent did not wish to cross-examine the deponent.
The evidence, therefore, is only relevant to show that if there was an obligation on the Tribunal to give the warning which the appellant contends needed to be given, that there was evidence which might have addressed the Tribunal’s concern. I will therefore consider that evidence only if the appellant satisfies me that the threshold question is to be answered in the appellant’s favour.
It was contended by the appellant that the inquiry that the Tribunal needed to undertake was into whether the appellant was able to satisfy the criteria in cl 845.215, which I have set out above: [4].
The appellant contended that an “ownership interest” was defined in s 134 of the Act:
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
I do not think that that definition has any relevance to the inquiry which was to be carried out by the Tribunal. As s 134(10) shows, the definitions in that subsection are only relevant for the purpose of that section itself. In any event, cl 845.214 does not refer to any “ownership interest”.
Because of the wording of paragraph (b) of cl 845.214, the inquiry to be carried out by the Tribunal needed to address these matters. First, whether the applicant alone or together with his spouse, owned assets in a business in Australia. Secondly, whether at the date of the application the applicant alone or together with his spouse owned net assets of a value of at least AUD$100,000. Thirdly, whether the applicant alone, or the applicant together with his spouse had owned assets of that value in businesses in Australia throughout the period 12 months immediately preceding the making of the application.
In this case, there was only one business into which an inquiry needed be made. That was the business which had been carried on under the business name, REI Construction from 7 October 2003 until some time prior to 30 September 2004 and the business carried on by REI Construction Pty Ltd after that time until 7 October 2004.
The evidence adduced by the appellant was the appellant was the sole owner of the business and the sole shareholder in the company. In those circumstances, no inquiry needed to be made of the applicant’s spouse’s holding in the business. There was no suggestion the appellant or his spouse owned any assets in any other business.
The appellant contended that the Tribunal distracted itself from its inquiry by its consideration into the veracity of the explanations of the source of funds used in the business and did not answer the questions which it was bound to answer in the exercise of its jurisdiction.
That submission must be accepted. Whilst the Tribunal was entitled to take the view that it was not satisfied as to the quality of the evidence adduced by the appellant, there was no suggestion in any of the evidence that anyone else apart from the appellant was the owner of the business or later the sole shareholder in the company. The evidence in relation to the injection of funds was contradictory but the first question to be addressed was whether the appellant was the owner of the business and later the sole shareholder in the company. That evidence was all to the same effect. Once that question was addressed the inquiry which needed to be made was as to whether the net assets of the business, and later the company, was throughout the period of 12 months in excess of AUD$100,000.
The balance sheet which was presented by the appellant for the period 1 October 2003 to 30 September 2004 supported a finding that the net assets exceeded $100,000 throughout the whole period. That would have been so whether or not there were debts owing by the business, if in fact there were, to either Mr Nassif or Mr Jarjo during the relevant period. That follows, it seems to me, because of the net assets which the business’ balance sheet disclosed as at 1 October 2003 and the net assets disclosed in the company’s balance sheet as at 30 September 2004.
In my opinion, the appellant was right to contend that the Tribunal did not address the question which was posed and therefore fell into jurisdictional error. The Tribunal did not address the first question whether the appellant owned assets in a business in Australia.
In my opinion, the Federal Magistrate fell into the same error. The appeal should be allowed.
Notwithstanding that I think the first ground has been made out, I will address the other ground. Ground 2 complains of a failure by the Tribunal to comply with s 425 of the Act. Of course, s 425 had no part to play in the review before the Tribunal. That section applies only to protection visas and imposes obligations upon the Refugee Review Tribunal.
The Tribunal’s conduct of a review was regulated by Division 5 of Part 5 of the Act which is in similar terms to Division 4 of Part 7, which regulates the conduct of the Refugee Review Tribunal. In particular, the Tribunal had to comply with ss 359A and 360 of the Act. The Tribunal was apparently not prepared to rely upon the accuracy of the financial statements which had been prepared by a public accountant apparently in accordance with the accounting standards to which reference has been made. So much can be inferred from the absence of any reference to those financial statements in the Tribunal’s reasons. The Tribunal did not advise the appellant that it was not prepared to have regard to those financial statements. The appellant claimed that failure meant that s 360 had not been complied with.
The appellant contended that the Tribunal had failed to identify as an issue arising in relation to the decision under review. It was contended that the Tribunal should have particularly brought to the appellant’s attention that it might not rely upon the accuracy of the financial statements which had been prepared by a public accountant.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, the Court said that an applicant for review before a Refugee Review Tribunal could ordinarily expect that the issues under review were those which had been issues before the original decision maker which were determinative against the applicant unless the Tribunal raised for consideration some other additional issues. In those circumstances, it was incumbent upon the Tribunal, if it intended to rely upon some other issues to reject the applicant’s review, to give notice of those issues to comply with s 425.
In this case, the issues which were raised by the Tribunal related to the circumstances in which the appellant had received either money or value from Mr Nassif and Mr Jarjo.
That issue raised squarely for determination the question of the accuracy of the financial statements. If, for example, Mr Nassif and Mr Jarjo were lenders to the business or to the company then the sum lent would be shown as an asset and the amount owing would be shown as a liability. The financial statements which were presented did not show liabilities owing to Mr Nassif and Mr Jarjo.
As the Tribunal had notified the appellant that the source of funds was an issue under review, then the appellant should have understood that the accuracy of the financial statements which he had presented in support of his claim to be entitled to a visa was also an issue. This is not the type of case that the High Court considered in SZBEL 231 ALR 592. The Tribunal was not under any obligation to provide some sort of running commentary as to the view that it takes on the evidence as it unfolds before it. In SZBEL 231 ALR 592 the High Court said at [48]:
Secondly, as Lord Diplock said in F Hoffmann – La Roche & Co AG v Secretary of State for Trade & Industry:
“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice, only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence it has given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
In my opinion, nothing has been shown which would indicate that the Tribunal failed to comply with s 360. Ground 2 has not been made out.
In those circumstances, it is not necessary for me to have further regard to the affidavit of Harry Mavrelefterou.
I would make the following orders:
1.The appeal be allowed.
2.The orders of the Federal Magistrate made on 10 August 2007 be set aside.
3.The decision of the Migration Review Tribunal made on 22 November 2006 and handed down on 4 December 2006 be quashed.
4.The appellants’ application for review of the delegate’s decision to refuse to grant the appellants a visa be remitted to the Migration Review Tribunal for determination according to law.
5.The first respondent should pay the appellants’ costs before the Federal Magistrate and on appeal.
The appeal must be allowed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 21 April 2008
Counsel for the Appellants: Mr C Jackson Counsel for the First Respondent: Ms S Sirtes Solicitor for the First Respondent: Clayton Utz Date of Hearing: 14, 23 November 2007 Date of Judgment: 21 April 2008
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