Kangotra v Minister for Home Affairs

[2018] FCA 1860

FEDERAL COURT OF AUSTRALIA

Kangotra v Minister for Home Affairs [2018] FCA 1860

Appeal from:

Kangotra v Minister for Home Affairs [2018] FCCA 1553

File number:

NSD 1192 of 2018

Judge:

MARKOVIC J

Date of judgment:

28 November 2018

Catchwords:

MIGRATION – appeal from orders of the Federal Circuit Court of Australia dismissing the appellants’ application for judicial review – where the Administrative Appeals Tribunal (Tribunal) affirmed the decision of a delegate not to grant the appellants temporary business entry visas – where the delegate’s decision was affected by clear error – whether the Tribunal was required to review the delegate’s decision and whether in this case no such review took place – whether the Tribunal was obliged, under s 359A of the Migration Act 1958 (Cth), to give the appellants clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review – appeal dismissed.

Legislation:

Migration Act 1958 (Cth) ss 338, 348, 349, 359A, 360(1), 360A

Migration Regulations 1994 (Cth) Sch 2, cl 457.223

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Date of hearing:

14 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

51

Solicitor for the Appellants:

Mr M Newman

Counsel for the First Respondent:

Mr M Cleary

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

The second respondent filed a submitting notice, save as to costs

ORDERS

NSD 1192 of 2018

BETWEEN:

RONIKA KANGOTRA

First Appellant

AMIT KANGOTRA

Second Appellant

RANVEER KANGOTRA (and another named in the Schedule)

Third Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	28 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs as agreed or assessed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

AMENDED ORDERS

NSD 1192 of 2018

BETWEEN:

RONIKA KANGOTRA
First Appellant

AMIT KANGOTRA
Second Appellant

RANVEER KANGOTRA (and another named in the Schedule)
Third Appellant

AND:

MINISTER FOR HOME AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	29 APRIL 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants pay the first respondent's costs as agreed or assessed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1. This is an appeal from orders made on 14 June 2018 by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Tribunal) made on 19 December 2017: Kangotra v Minister for Home Affairs [2018] FCCA 1553 (Kangotra).  The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the first appellant (Appellant) a Temporary Business Entry (class UC) (subclass 457) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act) and the second, third and fourth appellants accompanying secondary visas.

   BACKGROUND

2. On 30 January 2016 the Appellant applied for the Visa.  The second, third and fourth appellants, the Appellant’s spouse and two children, were included in the application as secondary visa applicants on the basis that they were members of the Appellant’s family unit.  In the application for the Visa the Appellant provided details of her migration agent, Bimal Bhattarai, who was authorised to act on her behalf and receive all written communications about the application and nominated Darby Raj Pty Ltd (Darby Raj) as her sponsoring employer.

3. It was a requirement of the grant of the Visa that the Appellant satisfy the primary criteria including cl 457.223 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 457.223 required the Appellant to meet the requirements of one of the alternative streams for the Visa, either cl 457.223(2) or cl 457.223(4). The Appellant only made claims under cl 457.223(4) (set out at [20]-[21] below).

4. On 10 June 2016 the Department of Immigration and Border Protection (Department), as it then was, wrote to the Appellant informing her that one of the criteria for the grant of the Visa was an approved nomination but her prospective employer, Darby Raj, did not have such nomination for her at that time and as a result her Visa application was unlikely to be successful.  The Department invited the Appellant to comment on her intentions regarding her Visa application, provide any other information which she thought was relevant in response to the adverse information provided or withdraw the Visa application. 

5. On 21 July 2016 the Appellant was informed that her application for the Visa had been refused because she did not satisfy the relevant criteria included in the Regulations. The delegate’s decision was set out in a decision record dated 21 July 2016 which relevantly included:

   The [Appellant’s] claims

   The [Appellant] has applied for the grant of a Subclass 457 - Temporary Work (Skilled) visa on the basis that she has been nominated for the position of radiologist by her sponsor Cafe or Restaurant Manager 141111.

   …

   Findings

   From all the information available to me, including the documents and information the applicant provided, I find that the criteria for the grant of a Temporary Work(Skilled) (sic) Visa are not met by the [Appellant].

   Reasons

   …

   Under the migration law, a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the Act and the Regulations. 457.223(4)(a) has not been met by the [Appellant] on the date I made my decision.

   Subclass 457 - Temporary Work (Skilled)Primary (sic) Criteria

   Assessment of Paragraph 457.223(4)(a)

   Paragraph 457.223(4)(a) states in full:

   …

   On 10/06/2016, a decision was taken by the Department to refuse the nomination application lodged by the [Appellant’s] prospective employer, BETTA FOOD PTY LIMITED.

   …

   At the time of decision, as the [Appellant] is not the subject of an approved nomination, I am therefore not satisfied that paragraph 457.223(4)(a) has been met.

6. The delegate was thus not satisfied that the Appellant satisfied the primary criterion for grant of the Visa.  As the primary criterion was not satisfied, the delegate did not assess the Appellant’s application against any other criteria.  The delegate also assessed the Appellant’s ability to meet the secondary criteria for the Visa included in cl 457.321 but was satisfied that she did not meet that criteria.

7. On 27 July 2016 the Department wrote to Darby Raj acknowledging receipt of its nomination application in which the Appellant was named as the nominee.

8. On 27 July 2016 the appellants applied to the Tribunal for review of the delegate’s decision refusing to grant her and her family the Visa.  In their application the appellants nominated Mr Bhattarai of NAOSAMS Migration Services as their representative. 

9. On 28 July 2016 the Tribunal acknowledged receipt of the application for review.  In its letter addressed to the appellants, among other things, it stated:

   …

   We have requested that the Department of Immigration and Border Protection (the department) provide us with all documents and files which they consider to be relevant to your applications.

   …

   If you wish to provide material or written arguments for us to consider, you should do so as soon as possible. …

10. On 20 September 2016 the Department wrote to the Appellant noting that one of the criterion for the grant of the Visa was an approved nomination and that her prospective employer, Darby Raj, did not have an approved nomination for her at that time.  The Department noted that, as a result, her Visa application was unlikely to be successful.

11. On 3 October 2017 the Tribunal invited the appellants to a hearing scheduled to take place on 22 November 2017 (Hearing Invitation).  The Hearing Invitation requested the appellants to “provide all documents [they] intend to rely on to establish that [they] meet the criteria for the visa”.

12. On 15 and 21 November 2017 the Tribunal sent SMS hearing reminders to the Appellant.

13. The Appellant did not respond to the Hearing Invitation, nor did she attend the hearing on 22 November 2017.

14. By letter dated 28 November 2017, addressed to Mr Bhattarai and copied to the Appellant, among other things, the Tribunal informed Mr Bhattarai that:

    Our records show that you are currently the migration agent for the above mentioned applicants.  We have recently received advice that your MARA registration (MARN 9685736) was lapsed on 27 September 2017.  We require you to provide information about any arrangements that may have been made for your clients.

    Until advised of any new authorised recipient arrangements by the applicants, we are required to continue sending all correspondence to you.  We will also send the applicants copies of all correspondence sent to you.

15. On 7 December 2017 the Tribunal contacted the Appellant by telephone.  The file note of the conversation records:

    RA applicant returned my call – I asked RA - as your migration agent has lapsed and you were invited for a hearing on 22/11/17 if you were aware of it.  RA said she was aware of the upcoming hearing and was thinking that her migration agent (MA) will attend the hearing.  Also AR informed that she does not want to change her MA as her MA has all her information.

    I told RA it is your hearing and you had to attend and asked her to send in writing regarding the lapsed MA and COA.  RA that she will send in writing by tomorrow – 8/12/17.  End call.

16. On 11 December 2017 an appointment of representative/authorised recipient form was emailed to the Tribunal nominating Mr Kushal KC, also of NAOSAMS Migration Services, as the Appellant’s “representative/authorised recipient”.

17. On 20 December 2017 the Tribunal made its decision affirming the delegate’s decision not to grant the Visa.

    TRIBUNAL DECISION

18. The Tribunal noted that it did not have jurisdiction in relation to the third and fourth appellants, the Appellant’s children, as they were not in Australia when the application for review was made.  It proceeded to determine the application in relation to the Appellant and her husband, the second appellant.

19. The Tribunal exercised its discretion pursuant to s 362B of the Act to make a decision on the review without taking any further action to enable the Appellant to appear before it. In doing so, at [6]-[8] of its reasons, it said the following about the circumstances leading to the hearing:

    6.On 3 October 2017, the Tribunal wrote to the applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The notice was sent to the email address of their representative. The Tribunal invited the applicants to give evidence and present arguments at a hearing on 22 November 2017. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders to the mobile number provided about the hearing 5 business days and one business day before the scheduled hearing.

    7.No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal subsequently became aware that the registration of the migration agent, who had been appointed as their representative, had lapsed on 27 September 2017. The Tribunal wrote to the representative and the applicants on 28 November 2017 regarding the registration lapsing. No response was received and, in these circumstances, the applicant was contacted by phone directly regarding whether she had been informed of the hearing. She said that she had but thought her migration agent would attend. The applicant confirmed to the tribunal officer that she did not want to change her migration agent and the Tribunal has received a completed appointment of representative and authorised recipient form for a migration agent from the same organisation, NAOSAMS Migration Services, which appears to be signed by the applicant and dated 8 December 2017. This form was emailed to the Tribunal on 11 December 2017 from the email address provided on the review application form for the previous migration agent. Nothing further has been received.

    8.Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.379A(5). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

20. In considering the merits of the application the Tribunal noted that the issue was whether the Appellant met the requirements of cl 457.223(4)(a) of the Regulations requiring that there be an approved nomination of an occupation relating to the Appellant by a standard business sponsor that had not ceased. The Tribunal noted that there was no evidence before it that a nomination of an occupation relating to the Appellant had been approved and that she had not provided evidence that she met the requirements of cl 457.223(4)(a)(i). Accordingly, the Tribunal found that the Appellant did not meet the requirements of cl 457.223(4)(a) and thus found that the requirements for the “standard business sponsor stream” had not been met.

21. The Tribunal noted that no claims had been made in respect of the other streams in cl 457.223 and that there was no evidence that the appellants would be able to satisfy the specific criteria for those streams.

22. The Tribunal thus affirmed the decision not to grant the Appellant and her husband the Visa.

    FEDERAL CIRCUIT COURT PROCEEDING

23. The appellants sought judicial review of the decision of the Tribunal in the Federal Circuit Court.  In their application filed in that court, the appellants raised two grounds of review as follows:

    1.After hearing but before decision the Tribunal contacted the [Appellant] by telephone and sought from her what she proposed to do in circumstances where her registered migration agent’s licence had lapsed and where neither she nor the former agent had appeared.  The applicant said she was aware of the hearing date but wanted to retain her agent.

    2.Also, before decision the agent appeared to have regained his licence and notified the tribunal from which it may be reasonably implied that he was able to provide representation.  Notwithstanding, the tribunal seemed to have having (sic) gone to some effort to make contact after hearing but then ignored it and failed to give reasons why contrary to law.

24. Despite the grounds raised in their application before the primary judge, the appellants claimed at the hearing before his Honour that the Tribunal had failed to perform its review function because it did not identify or address errors that were patent in the decision of the delegate in which reference was made to “the nature of the visa being a Temporary Work Skilled visa for the position of a radiologist in respect of Better Foods Pty Limited”.  The appellants claimed that it should be inferred that the Tribunal had failed to correctly review the application before it: Kangotra at [4].

25. The primary judge found that the review by the Tribunal correctly identified the relevant Visa application and that, in circumstances where the Appellant failed to appear at the Tribunal hearing, the decision of the Tribunal to proceed to determine the matter could not be said to “lack an evident and intelligible justification” and could not “be said to be an unreasonable exercise of power by the Tribunal”: Kangotra at [9].

26. The primary judge found that there was no reference to the position of “radiologist” or the prospective employer “Better Food Pty Limited” in the Tribunal’s reasons and did not accept that it should be inferred that the Tribunal made the same errors as the delegate in determining whether the Appellant met the criteria under cl 457.223(4) of the Regulations. The primary judge found that, significantly, there was no evidence pointed to by the Appellant that there was an approval in place at the time of the hearing before the Tribunal in respect of Darby Raj for the position of customer service assistant manager. Accordingly, the court rejected the submission that the Tribunal failed to perform its duty to conduct the review and found that it had not committed any jurisdictional error: Kangotra at [10].

27. The primary judge noted that the appellants had not made any submissions to develop the two grounds in their application and found that those grounds did not make out any jurisdictional error.  His Honour found that the Tribunal had correctly invited the Appellant to attend a hearing and that it was open to the Tribunal to proceed to determine the application: Kangotra at [11].

    THE APPEAL

28. At the hearing the appellants were granted leave to file an amended notice of appeal adding a fourth ground of appeal.  The grounds of appeal raised by the appellants are:

    1.The Tribunal was charged with the duty of reviewing a decision of the Minister’s delegate pursuant to s 414 of the Migration Act 1958. That decision which is contained in the court book at page 102 says this: “The applicant’s claims

    ‘The applicant has applied for the grant of a Subclass 457 - Temporary Work (Skilled) Visa on the basis that she has been nominated for the position of radiologist by her sponsor Cafe or Restaurant Manager 141111 ………… and at 103 ‘On 10/06/2016, the primary applicant was given an opportunity to either:

    provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved nomination); or

    provide comment or any other information which you think is relevant in response to this adverse information; or withdraw your application in writing

    At the time of decision, as the primary applicant is not the subject of an approved nomination,

    I am therefore not satisfied that paragraph 457.223(4)(a) has been met …….”

    2.His Honour upheld the decision in effect on the basis that as the applicant did not attend the tribunal hearing, the decision could not be challenged.

    3.The applicant says that His Honour erred, for whether or not the applicant is present, the tribunal operates under statutory duty to review and clearly in the circumstances that did not happen.

    4.The Tribunal erred in law and in its jurisdiction when being in possession of information potentially fatal to the appellant’s review application, it failed to give the mandatory notice to her as it was obliged to do under s. 359A of the Migration Act 1958.

    STATUTORY FRAMEWORK

29. The relevant provisions for a Temporary Work (Skilled) visa (subclass 457) was in force at the time of the Visa application in Sch 2 to the Regulations. Clause 457.2 prescribed the primary criteria to be satisfied at the time of the application and at the time of decision. In relation to the Appellant, the criteria to be satisfied at the time of the decision was set out in cl 457.223(4) which relevantly provided:

    (4)       The applicant meets the requirements of this subclause if:

    (a)       each of the following applies:

    (i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)the approval of the nomination has not ceased as provided for in regulation 2.75; and

    …

1. Part 5 Div 5 of the Act concerns the conduct of review of Pt 5 reviewable decisions by the Tribunal.

2. Section 359A(1) of the Act provides:

   (1)       Subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

3. Section 360(1) of the Act provides that, subject only to the limited circumstances in subs (2), the Tribunal must invite an applicant to appear before it to give evidence and present arguments in relation to the decision under review. For an applicant who is not in detention, the notice of hearing must be given to the applicant by one of the methods specified in s 379A within at least the prescribed period, or if no period is prescribed, a reasonable period, and contain a statement of the effect of s 362B of the Act: s 360A of the Act.

4. Section 362B of the Act applies if an applicant is invited to appear before the Tribunal pursuant to s 360 of the Act but does not appear at the scheduled hearing. In those circumstances:

   (1A)     The Tribunal may:

   (a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

   (b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

   THE APPELLANTS’ SUBMISSIONS

5. The appellants submitted that the Tribunal was required to review a delegate’s decision and that in this case no such review took place.  They submitted that “had even a cursory review been conducted it is possible - even likely - that [their] application for a Temporary Work Visa would have been remitted by the Tribunal to the Department for further consideration”.  The appellants contended that the delegate’s decision contains two major errors: first, the delegate described the Appellant’s role as that of a radiologist whereas in fact she was a restaurant manager; and secondly, the sponsor was not Betta Food Pty Ltd (Betta Food) but Darby Raj.  The appellants noted that the delegate said that Betta Food did not have an approved nominee but made no finding about Darby Raj.

6. The appellants submitted that the Tribunal’s decision should be based on a review of the delegate’s decision.  The appellants contended that where there was no decision made by the delegate, there could not be a review by the Tribunal.

7. The appellants submitted that the primary judge erred because, contrary to his Honour’s findings, the Tribunal was not purporting to review in the abstract.  They contended, by reference to the letter from the Department to the Appellant dated 20 September 2016 (see [10] above), that “it must have been apparent that it was at least aware of the situation of DARBY RAJ PTY LTD overlooking the fact that no finding had been made by the delegate about that company”.

8. The appellants further submitted that, even without a finding by the delegate about Darby Raj’s nomination, the Tribunal was obliged under s 359A of the Act “to give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and invite the applicant to comment on or respond to it”. The appellants contended that given there was no clear decision as to the position of Darby Raj, the Tribunal was required to provide correct particulars to the appellants about the issues and that those particulars which must be contained in one of the s 359A notices are not “necessarily correct”. The appellants said that the Tribunal should have written to them pursuant to s 359A of the Act in relation to the factors included in the delegate’s decision.

   CONSIDERATION

   Grounds one, two and three

9. At the hearing the solicitor for the appellants clarified that these grounds are related. The appellants do not seek to challenge the Tribunal’s decision to proceed in their absence pursuant to s 362B of the Act on the basis that they had been notified of the hearing. Rather, by these grounds, the appellants raise the same argument they made before the primary judge, namely that the Tribunal did not perform its review function. The appellants allege that the primary judge erred in failing to find that the Tribunal did not perform its review function as required by the Act.

10. Understandably, the appellants are concerned by the errors that were made by the delegate.  They are, on one view, regrettable and, on another, quite unacceptable.  However, for the reasons that follow, these grounds cannot succeed.

11. First, contrary to the appellants’ submissions, it is not the case that there was nothing for the Tribunal to review. The delegate refused the application for the Visa. That was a “Part 5-reviewable decision”: see s 338(2) of the Act. That there were errors in the decision record does not affect its character as a Pt 5 reviewable decision.

12. Secondly, the appellants made an application to the Tribunal for review of the delegate’s decision. 

13. Thirdly, the Tribunal was required to review the delegate’s decision: see s 348 of the Act. In undertaking its review the Tribunal has the powers set out in s 349(2) of the Act. It may exercise all the powers and discretions conferred by the Act on the person who made the decision, in this case the delegate: s 349(1) of the Act.

14. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10] French CJ said, in relation to the functions and powers of the then Migration Review Tribunal (which his Honour referred to as “MRT”) and the Refugee Review Tribunal:

    Section 348 provides that if an application for review of an MRT-reviewable decision is properly made “the Tribunal must review the decision”. It may, for the purposes of the review, “exercise all the powers and discretions that are conferred by this Act on the person who made the decision”. It is well established that the reviews that both the MRT and the Refugee Review Tribunal (the RRT) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue. The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears”. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. …

    (citations omitted and emphasis added)

15. That is what the Tribunal did in this case. The Tribunal did not fail to perform its review function. To the contrary, it determined the application having regard to the material before it. It identified that the issue for determination was whether the Appellant met the requirements of cl 457.223(4)(a) of the Regulations and found that she did not because there was no evidence before it that a nomination of an occupation relating to the Appellant had been approved and the Appellant had not provided any evidence that she met the requirements of the clause. Despite invitations to do so, the Appellant did not provide any material to the Tribunal nor did she appear at the hearing.

16. There was no error on the part of the primary judge in addressing this ground.  As seemingly recognised by the primary judge, the Federal Circuit Court has no jurisdiction to review the decision of the delegate: see Kangotra at [8].

17. His Honour found, in undertaking its review, the Tribunal identified the relevant visa which was the subject of the application and made no reference to the position of radiologist or Betta Foods as a prospective employer in its reasons.  The primary judge correctly found that it could not be inferred that the Tribunal made the same errors as the delegate.  Accordingly, the primary judge rejected the appellants’ contention that the Tribunal failed to perform its review function.

    Ground four

18. Ground four is a new ground not raised before the primary judge.  It too cannot succeed.

19. Section 359A of the Act requires the Tribunal to provide an applicant with clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review, to explain to the applicant why the material is relevant to the review and the consequences of reliance on it and to invite the applicant to comment on or respond to it.

20. In my opinion, s 359A was not engaged here. Contrary to the appellant’s submission, the Tribunal did not rely on the incorrect matters in the delegate’s decision in relation to the Appellant’s occupation and her nominated employer. As the primary judge noted, that is evident from the Tribunal’s reasons.

21. The Tribunal found that the Appellant did not satisfy cl 457.223(4)(a) of the Regulations because there was no evidence available to it which could lead it to be so satisfied. The Appellant did not provide any information to the Tribunal despite the opportunity for her to do so and did not respond to the Hearing Invitation or attend the hearing. There was no information that could engage s 359A of the Act.

    CONCLUSION

22. For those reasons the appeal should be dismissed with costs.  I will make orders accordingly. 

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:        28 November 2018

SCHEDULE OF PARTIES

NSD 1192 of 2018
Appellants
Fourth Appellant:	ARSH KANGOTRA