Khan Kamahli and Minister for Immigration and Citizenship
[2012] AATA 730
•24 October 2012
[2012] AATA 730
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2251
Re
Khan Kamahli
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Date 24 October 2012 Place Sydney Decision Summary The decision under review is affirmed.
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Deputy President R P Handley
CATCHWORDS
CITIZENSHIP – Application for Australian Citizenship by conferral – Application refused by Minister – Residence requirement under the Australian Citizenship Act 2007 (Cth) – Ministerial Discretion – Applicant an unlawful citizen on arrival in Australia in 2010 – Applicant was a refugee – Applicant now a permanent resident – Applicant a minor at time of application for Citizenship but now of majority – Whether or not Applicant is suffering significant hardship or disadvantage by being denied Citizenship – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Australian Citizenship Instructions
United Nations Convention on the Rights of the Child
United Nations Convention Relating to the Status of Refugees and its 1967 Protocol
REASONS FOR DECISION
Deputy President R P Handley
Mr Kamahli has applied for a review of a decision by a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral on the ground he does not meet the policy set out in Chapter 5 of the Australian Citizenship Instructions (the Instructions).
BACKGROUND
Mr Kamahli was born in Afghanistan in March 1994 and is 18 and a half years old. He first arrived in Australia in May 2010 and is currently enrolled as a student in year 11.
On 7 April 2011, Mr Kamahli was granted a Subclass 866 Protection (permanent) visa by the Minister. He is now a permanent resident of Australia. Subsequently, on 30 December 2011, while still 17, Mr Kamahli lodged an application for citizenship by conferral. This was supported by his guardian, Ms Anna Ryburn.
On 9 February 2012, Mr Kamahli attended the Department of Immigration and Citizenship (the Department) for a citizenship interview. By letter dated 22 May 2012, a delegate of the Minister notified Mr Kamahli that his application for citizenship had been refused. The letter stated that while Mr Kamahli had satisfied the legal requirements for a person under 18 applying for citizenship, he did not satisfy the Department’s residence requirement under its policy guidelines.
RELEVANT LAW AND POLICY
Section 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility requirements:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister's decision on the application.
Section 22(1) sets out the general residence requirement:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
As Mr Kamahli was under 18 years of age when he lodged his application, his application was assessed under s 21(5) of the Act. This states:
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application.
However, s 24(2) of the Act states:
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
The Australian Government has developed policy in the form of the Instructions to provide guidance to decision makers. The introduction to the Instructions states that their role is:
… to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake).
Paragraph 34 of the Instructions states that where a person is under 18 years of age, the discretion to refuse an application to become an Australian citizen, despite the applicant being eligible under s 21(5), is usually “exercised where the applicant does not meet the policy guidelines”. It further states that the primary considerations in making a decision to approve or refuse an application are the legislative requirements (ie those set out in the Act), the best interests of the child, and the policy guidelines set out in paragraph 35 of the Instructions (addressing the situation where a person is aged over 16 but under 18 at the time of making the application).
Paragraph 35 of the Instructions states the following:
…
Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:
·satisfies the residence requirement
·the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See section 42 Attachment B – Significant hardship and disadvantage for guidance
·understands the nature of an application
·possesses a basic knowledge of the English language
·has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
·is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
…
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
…
Paragraph 42 of the Instructions, Attachment B – Significant hardship and disadvantage, states:
Attachment B - Significant hardship and disadvantage
The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition, make the following definitions:
Significant of consequence; important or momentous
hardship conditions of life difficult to endure; something that causes suffering or privation
disadvantage an unfavourable circumstance, thing, person; injury, loss or detriment
People would normally be required to demonstrate some or all of the following circumstances:
·inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
·difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
·academic (for example, research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Decision makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.
Evidence of significant hardship and disadvantage is required (for example, a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal requirements and policy guidelines).
The onus is on the applicant to provide the evidence to support the application.
Decision makers must be mindful of the difference between personal needs and personal wants.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).
THE ISSUE FOR THE TRIBUNAL
The issue to be determined by the Tribunal is whether to exercise the Ministerial discretion in s 24(2) of the Act to refuse to approve Mr Kamahli’s application for Australian citizenship despite his eligibility under s 21(5). This requires consideration of the policy set out in Chapter 5 of the Instructions and its application in Mr Kamahli’s case. The policy requires that the Tribunal should consider the full circumstances of the case to determine whether the application warrants approval because of the unusual nature of the circumstances and, in particular, whether Mr Kamahli would suffer significant hardship or disadvantage by reason of the refusal of his application for citizenship. The Applicant also contends that the policy requires that the ‘best interests of the child’ are a relevant consideration because Mr Kamahli was under 18 at the time of his application for citizenship.
EVIDENCE
Mr Kamahli was born in Afghanistan and arrived in Australia (on Christmas Island) by boat in May 2010. From Christmas Island, he was transferred to the Northern Immigration Detention Centre in Darwin where it was recognised that he was a refugee. He was granted a permanent visa on 7 April 2011. Thereafter, he came to Sydney where he completed an intensive English course and enrolled in year 11 at Ryde Secondary College in 2012.
Mr Kamahli said his family belong to the Hazara community which is subject to persecution in Afghanistan and Pakistan, particularly by the Taliban. The Taliban are Sunni Moslems and do not accept that Shia Hazara are also Moslems. His father was a teacher in Herat who was killed by the Taliban in 2008. His mother and four sisters are refugees in Quetta, Pakistan, but may return to Afghanistan because of the danger to which they are exposed in Quetta where many people have been killed by suicide bombers. Mr Kamahli has a younger brother who also fled Afghanistan and is now working in Iran, and had another younger brother who was killed in an accident in October 2011. His younger brother in Iran is too scared to return to be in Pakistan as a Hazara refugee. Mr Kamahli has made a split family application for visas for his mother and siblings and a cousin to migrate to Australia but has been told by Departmental officials that it may be more than 12 months before the applications are processed. Other officials have told him that it may take another three or five years for the applications to be processed.
Mr Kamahli fled from Afghanistan into Pakistan after his father was killed. He was arrested by Pakistani police, imprisoned for two months and sent back to Afghanistan but then managed to re-enter Pakistan, where he obtained an identity card. Then, with the assistance of people smugglers, he travelled to Malaysia, on to Indonesia and finally, in a small boat carrying about 50 people, by sea to Christmas Island. Mr Kamahli spent two and a half months on Christmas Island before being moved to the Northern Immigration Detention Centre where he remained until granted a permanent visa.
Mr Kamahli last saw his family in 2008. He misses them but his mother will not allow him to visit because it is too dangerous. His mother is not an educated person and would not be able to travel to Iran if he tried to meet his family with his brother who is working there. Mr Kamahli said if he were an Australian citizen and had an Australian passport, this would enable him to travel to Pakistan and to Iran. The fact of Australian citizenship would provide him with Australian Government protection. Mr Kamahli said he would also like to visit England where he has some friends. He wants the experience of travelling.
Mr Kamahli said when he moved from Darwin to Sydney after his visa was granted, he undertook an intensive English course at Holroyd High School. Early in 2012, he commenced studying in Year 11 at Ryde Secondary College and is now progressing into Year 12. He said he is getting on “okay” but has had a lot of language problems. He is studying ESL English, General Mathematics, Legal Studies, Business Studies, Information Technology and, at Saturday school, Persian.
Mr Kamahli said he applied to join the Australian Defence Force (ADF), an application supported by the Principal of Ryde Secondary College where he is studying. He attended the Australian Army Open Day to learn about job opportunities in the Army. Initially, he would like to be involved in combat engineering and learn new skills while receiving an income. This might equip him for running his own business. After a few years, he would like to attend university and perhaps become a general services officer in the Army. Mr Kamahli said he would also like to study law. When he attended the Army Open Day, his eyes were tested but he did not have aptitude or other tests. He was told that to be accepted into the Defence Force he would need to be an Australian citizen and then pass the various tests. The whole application process would probably take about six months.
Mr Kamahli said he has explored other job options and acknowledged that it would be possible for him to attend University before applying to join the Army. However, other options would not enable him to be paid while learning new skills. Being paid means that he can support his family in Pakistan or Afghanistan and sponsor their migrating to Australia. If he is not granted citizenship, and he gets a good HSC score, he will go to university. Otherwise, he will go to college for a year.
Mr Kamahli said when he first arrived in Sydney, a friend acted as his guardian. But others who were living in the same house in Auburn kept fighting him and, after he met Ms Ryburn at the Salvation Army, she offered to allow him to stay in her house. Ultimately, she became his guardian. When, in August 2011, Ms Ryburn was making plans to travel to England in the September school holidays, he applied to the Department for a Convention Travel Document (CTD) but his application did not proceed because he was unable to produce evidence of his father’s death or the consent of his mother to the issue of such a document. He was also told that he might not be granted visa to enable him to visit the UK. Mr Kamahli said he has not applied for a CTD since turning 18 although he would not now require parental consent. He said it is very hard to travel to other countries with a CTD because, as an Afghani citizen, he is treated with suspicion. He is afraid that if he travelled to Pakistan he would be killed. He has heard of another man who was granted permanent residence in Australia and about eight months ago, using a CTD, travelled to Pakistan where he was killed. Mr Kamahli said he heard that the Australian Government did nothing.
Mr Kamahli provided the Tribunal with a number of documents in support of his case. A letter from the Secretary of the Kateb Hazara Association Inc, dated 25 August 2012, confirms that Mr Kamahli is a member of the Hazara community and states that if he travelled to Pakistan to visit his family, “we believe that he could be targeted by extremist groups which terrorise Hazaras for the last six years; the risk would be significantly reduced if he would be an Australian citizen.” An earlier letter, dated 1 September 2009, from the same Association, provides general information about the Hazara community in Sydney.
Information from the Department of Foreign Affairs and Trade states that a CTD is issued to persons recognised as refugees within the meaning of the United Nations Convention relating to the Status of Refugees (1951) and its 1967 Protocol. Applications are made to the Department of Immigration and Citizenship.
With regard to travel restrictions, information from IATA (the International Air Transport Association) indicates that an Afghani citizen with a CTD travelling from Australia would not be granted a visa permitting entry to Pakistan, while an Australian citizen with an Australian passport would be granted a visa permitting entry. Information from Henley & Partners analysing the visa-free access citizens enjoy to other countries around the world, ranks Afghanistan as the country whose citizens attract the most restrictions. Information available from the World Islamic Tourism Mart (Matta) for, as an example, Malaysia, indicates that while most nationalities do not require a visa for entry into Malaysia, Afghani citizens must obtain a visa and provide a reference.
Mr Kamahli also provided the Tribunal with documentation from the ADF stating that only Australian citizens are permitted to serve in the ADF and requiring that proof of Australian citizenship must accompany an application for entry.
APPLICANT’S SUBMISSIONS
Mr Ryburn, speaking on behalf of Mr Kamahli, submitted that the Instructions should be interpreted as requiring that the best interests of the child are considered if the applicant is under 18 at the time the application for citizenship is made. Otherwise, Departmental officers would often be able to avoid consideration of the child’s best interests by delaying the decision until after the applicant has turned 18 and, in any event, applications for citizenship commonly take many months to process.
Mr Ryburn noted that the Instructions refer to three specific situations which may demonstrate significant hardship or disadvantage, of which two are relevant in Mr Kamahli’s case: inability to obtain employment (in Mr Kamahli’s case, in the ADF); and difficulty of international travel because of his current Afghan citizenship and his having to obtain a CTD. Mr Kamahli is interested in a career in the ADF because this would provide him with a career and a pathway to further study, and also an income which would allow him to help support his family.
Ms Ryburn noted that the paragraph 42 Attachment B of the Instructions - Significant Hardship and Disadvantage in effect at the time the delegate made his decision did not include in the reference to ‘difficulty of international travel’ the words “or cannot obtain an alternative travel document”, which appear in the current version of the Instructions at the end of that bullet point (see above paragraph 13). She submitted that it is the Instructions in effect at the time of the decision that should be applied and not those currently in effect and the words “or cannot obtain an alternative travel document” should be disregarded. However, even if the newer Instructions are applied, a broad interpretation should be applied and consideration given to the lack of utility of a CTD in Mr Kamahli’s case and his safety concerns arising from having to travel as an Afghani citizen.
Ms Ryburn referred to the visa requirements of other countries restricting travel by Afghani citizens which can, in some cases, result in an inability to travel to a country. She also noted Mr Kamahli’s evidence that Hazaras travelling on CTDs have been killed in Pakistan. She said the Tribunal should note that Mr Kamahli has experienced the difficulty of travelling without documents, that he misses his family greatly, that one of his younger brothers died recently in an accident, and that there is very little certainty about when his application to permit his family to migrate to Australia will be processed and whether it will be successful.
Ms Ryburn submitted that Mr Kamahli’s circumstances are very unusual, noting in addition to the above, that he has family to support, is taking steps to undertake that responsibility and is subject to pressures quite different from those of average Australians.
RESPONDENT’S SUBMISSIONS
Mr Kikkert, for the Minister, noted that the Instructions state the requirement that the decision-maker considers the best interests of the child as a primary consideration only applies if the child is less than 18 years of age at the time of the decision. This accords with Article 3.1 of the United Nations Convention on the Rights of the Child which states that the best interest of the child shall be a primary consideration “in all actions concerning children”.
With regard to waiving the residence requirements if this would cause significant hardship or disadvantage to an applicant, Mr Kikkert referred to other cases where the Tribunal discussed whether the evidence was sufficient to establish significant hardship or disadvantage. He acknowledged the ADF evidence that Australian citizenship is required for entry but contended that Mr Kamahli could undertake his university study first and then apply for ADF entry, for example as a general services officer. In any event, since Mr Kamahli has not undertaken and passed the other tests required for entry, there is no assurance that he will be accepted into the ADF. There is also other employment open to Mr Kamahli which would enable him to earn an income and help support his family in Afghanistan or Pakistan.
With regard to international travel, Mr Kikkert submitted that it is the current version of the Instructions that should be applied. Moreover, while Mr Kamahli has provided some evidence of the difficulties of travelling with a CTD and, in particular, that Afghan citizenship may give rise to further scrutiny of an application for entry to a country, this does not amount to significant hardship or disadvantage. In any event, Mr Kamahli has not made an application for a visa while holding a CTD and the outcome of such an application in unknown. Mr Kikkert said Mr Kamahli has not supported his account of another CTD holder with Australian permanent residence being killed in Pakistan with any documentary evidence.
DISCUSSION
There is no dispute that at the time of his application, Mr Kamahli was eligible for Australian citizenship under s 21(5) of the Act. The question for the Tribunal is whether, nevertheless, to exercise the discretion under s 24(2) to refuse his application. I note the policy developed in the form of the Instructions to guide decision-makers in the exercise of this discretion and, in my view, in this instance, that policy should be applied.
With regard to the criteria set out in paragraph 35 of the Instructions (see paragraph 12 above), it is not in dispute that Mr Kamahli does not satisfy the general residence requirement set out in s 22(1) of the Act:
(1) Mr Kamahli arrived in Australia in May 2010 and has therefore been in Australia less than 4 years. Thus, he does not satisfy s 22(1)(a) of the Act.
(2) Mr Kamahli was an unlawful non-citizen from the time of his arrival in Australia in May 2010 up until the time he was granted his Subclass 866 Protection (permanent) visa on 7 April 2011. He has, therefore, been an unlawful citizen during the 4 year period prior to his application, and does not satisfy s 22(1)(b) of the Act.
(3) Mr Kamahli was a permanent resident for less than 12 months immediately before he lodged his application for citizenship on 30 December 2011. Thus, he does not satisfy s 22(1)(c) of the Act.
However, paragraph 35 of the Instructions states that “the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage”, as described in paragraph 42 of the Instruction (see paragraph 13 above). Moreover, paragraph 35 goes on to say that:
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
In my view, the best interests of the child are not relevant here because Mr Kamahli is now aged 18 and no longer a child. Paragraph 34 of the Instructions states that consideration of the best interests of the child “only applies if the child is or would be less than 18 years of age at the time of decision on the application”. I agree with Mr Kikkert that this accords with Article 3.1 of the Convention on the Rights of the Child which states that the best interests of the child shall be a primary consideration “in all actions concerning children”. It is the Tribunal’s decision on the application for review that is the relevant decision and, where there is no temporal element in the legislation, the Tribunal will take into account all relevant evidence up to and including the time of the hearing in making the correct or preferable decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286, see for example, Kiefel J at [143]. However, in Mr Kamahli’s case, very little turns on this because the Tribunal must still consider the full circumstances of the case, including whether the application warrants approval because of the unusual nature of the circumstances.
Mr Kamahli has been a permanent resident of Australia for 18 months – since April 2011. His evidence indicates that he is relatively settled in Sydney, and has made good progress with his English language skills and studying for the HSC, in respect of which he is now commencing Year 12. However, I have no doubt that his personal circumstances, in terms of the separation from his family, are difficult. Mr Kamahli and his family belong to the Afghan Hazara community who, it is well-known, have suffered persecution by the Taliban. His father was killed by the Taliban, his mother and sisters are presently refugees in Pakistan, and his brother is in Iran. Mr Kamahli has not seen them since seeing fleeing Afghanistan in 2008 although he said he has been able to maintain contact be telephone.
Mr Kamahli contends that his being refused Australian citizenship would cause significant hardship or disadvantage because of his inability to gain employment with the ADF and the difficulty for him of international travel. He would like to join the ADF as this would enable him to learn new skills while receiving an income. Receiving an income is important for him because he wants to support his family in Pakistan whose migration to Australia he is sponsoring. However, it is a requirement for entry into the ADF that the person is an Australian citizen and, without citizenship, Mr Kamahli will be unable to join.
However, in my view, this is not significant hardship or disadvantage. Mr Kamahli still has a year of study before completing his HSC. At that stage, he will have been in Australia as a permanent resident for two and a half years. Having completed his HSC, it will be open to him to apply to undertake tertiary education and study which, it is reasonable to assume, will enhance the prospect of his application for entry into the ADF being accepted. In any event, Mr Kamahli’s aspirations to join the ADF are contingent on his passing other entry tests, and his entry into the ADF is not, therefore, assured. Other employment options are also open to Mr Kamahli and, like many students, he will be able to work part-time while studying. While this might not be as advantageous as immediate entry into the ADF (which in the short term seems unlikely given that he has not finished studying for the HSC), I do consider this amounts to significant hardship or disadvantage in terms of how those words are interpreted in paragraph 42 of the Instructions.
With regard to the difficulty of international travel, I note that Mr Kamahli does not currently hold a passport, and if he wishes to travel he will need to apply for a CTD. With a CTD, he will continue to be treated as an Afghan citizen. The evidence provided by Mr Kamahli indicates that his travelling with a CTD is likely to prove more difficult than travelling as an Australian citizen with an Australian passport, insofar as many countries impose greater restrictions on entry and travel by Afghan citizens. It is also possible he may be denied a visa by certain countries. Further, I accept that travelling, for example, in Pakistan with an Australian passport, may afford him greater protection than if he was travelling in Pakistan as an Afghan citizen on a CTD. However, in my view, it is reasonable to assume that whatever the nature of his travel document, for Mr Kamahli to travel to Pakistan to visit his family, especially to Quetta, near the border with Afghanistan, will be dangerous. With regard to travelling to Western countries, for example to the UK, where Mr Kamahli had hoped to travel with Ms Ryburn in the school holidays in September 2011, I am not satisfied from the evidence that if he travelled on a CTD, having been accepted as a refugee and as a permanent resident of Australia, he would be subject to significant hardship or difficulty in travelling.
More generally, with regard to the full circumstances of Mr Kamahli’s case and as to whether because of the unusual nature of those circumstances his application for citizenship warrants approval, I accept that Mr Kamahli’s situation is different from that of many applicants for citizenship and that he had to undergo significant hardship in getting to Australia and in having his refugee status recognised. He is, however, now settled in Australia, and has taken appropriate steps in terms of both his further education and in applying for his family to join him in Australia. In my view, these matters should be allowed to take their course and, in this regard, like many others, Mr Kamahli will able to apply for citizenship when he satisfies the residence requirements. Thus, I am not satisfied that Mr Kamahli’s circumstances are so unusual as to warrant approval of his application for citizenship outside the usual policy requirements.
DECISION
The decision under review is affirmed.
I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
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Associate
Dated 24 October 2012
Date of hearing 15 October 2012 Date final submissions received 15 October 2012 Applicant In person Respondent In person Advocate for the Respondent Sean Kikkert
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