MAO v Minister for Immigration
[2005] FMCA 89
•9 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAO v MINISTER FOR IMMIGRATION | [2005] FMCA 89 |
| MIGRATION – Review of decision of Migration Review Tribunal – refusal of Subclass 820 (Spouse) visa – de facto relationship – whether genuine and continuing – findings as to credit – opportunity to put case – hearing de novo – adverse material put to the applicant – whether compelling and compassionate circumstances – IVF treatment – matter of fact and degree – no jurisdictional error – application dismissed – costs – Migration Regulations 1994 (Cth) Regs 1.15A(2A)(2)(b); (2A)(2)(d); (3) – Migration Act 1958 (Cth) ss.359(2); 475A. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Bretag v Immigration Review Tribunal (Federal Court, 29 November 1991, unreported)
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Minister for Immigration and Multicultural v Dunne [1999] FCA 204
Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590
Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438
SAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 345
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
| Applicant: | YUTHAN MAO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1446 of 2003 |
| Delivered on: | 9 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 27 January 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms S.M. Frederico |
| Solicitors for the Applicant: | Terence T O’Brien |
| Counsel for the Respondent: | Ms H.M. Riley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6,500.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1446 of 2003
| YUTHAN MAO |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant filed an application pursuant to section 39B of the Judiciary Act 1903 (Cth) and section 475A of the Migration Act 1958 (Cth) (“the Act”) on 18 December 2003. The applicant sought an order declaring that the decision of the Migration Review Tribunal made on 20 November 2003 was invalid in law. As a consequence the applicant sought an injunction restraining the Minister from giving effect to the decision of the tribunal and an order directing the tribunal to rehear and re‑determine the application according to law. The grounds of that application are as set out in paragraph (B).
History
The applicant was born on 12 December 1978 in Cambodia. He is now 26 years of age. He arrived in Australia on 26 August 2000 on a Subclass 309 Spouse (Provisional) visa based on his marriage to an Australia citizen, Ms Ung. The applicant's relationship with Ms Ung ended and she withdrew her nomination on 22 February 2002. The applicant's application for permanent residence based on his relationship with Ms Ung was refused on 22 May 2002.
Following Ms Ung’s withdrawal of her nomination and on 25 February 2002 the applicant applied for permanent residence on spouse grounds based on an alleged de facto relationship with another Australian citizen, Ms Mary Set. Ms Set was born on 15 April 1957 and is now aged 47 years. On 19 August 2002 the Department sent a letter inviting the visa applicant and the nominator (Ms Set) to attend an interview scheduled for 30 August 2002. The visa applicant was also asked to bring to his interview a number of documents indicating that his spousal relationship with the nominator was genuine and continuing. By decision dated 2 October 2002 the delegate refused the grant of a class UK Partner (Temporary) visa and a class BS Partner (Residence) visa to the applicant. By application dated 11 October 2002 the applicant sought review to the Migration Review Tribunal.
In accordance with section 359(2) of the Act and by letter dated
30 June 2003 the tribunal invited the visa applicant to provide evidence in support of his claim that he was living in a de facto relationship with the nominator during the period of 12 months prior to the lodgement of his application. In particular, the review applicant was requested to submit information in regard to the financial and social aspects of the relationship, as well as the nature of the household and the parties' commitment to each other. In addition the visa applicant was asked to submit written statements issued by Centrelink and the Tax Department. Further, the tribunal also invited the visa applicant to submit compelling and compassionate reasons for the waiver of the one year pre‑existing cohabitation requirement.
On 8 July 2003 the review applicant submitted to the tribunal a large number of documents, such as utility accounts, social and wedding photographs, medical receipts, bank statements and airline tickets. On 18 August 2003 the review applicant submitted a receipt dated 11 August 2003 issued in the parties' joint names for the purchase of whitegoods, as well as an electricity account also issued in joint names for the period April to July 2003. The tribunal noted that none of the documents submitted by the visa applicant was issued during the relevant period, 25 February 2001 to 25 February 2002. Instead the submitted documents post‑dated this period and the earliest date to appear on the documents was August 2002, being a telephone account.
A hearing was held on 10 September 2003 and oral evidence was given by the visa applicant; the nominator; Ms On - a friend of the nominator; Mr Savad - a friend of the visa applicant and the nominator; Mr Lim Chann - a friend of the visa applicant; and Mrs Meas - Mr Chann's spouse. The visa applicant's migration agent represented him at the tribunal hearing and an interpreter in the Cambodian language was engaged to facilitate oral evidence.
The tribunal affirmed the decision under review by a decision made on 20 November 2003. The applicant then filed his review application in this Court.
Legislation
The application was for a Subclass 820 (Spouse) visa. That subclass, by subclause 820.211(2) required that the applicant be the spouse of an Australian citizen at the time of application. Ms Set was an Australian citizen at the relevant time, having been an Australian citizen since August 1989. The matter for the tribunal was therefore whether Ms Set was the applicant's spouse at the time of application, namely 25 February 2002.
In order for the applicant to succeed it was necessary for him to satisfy all of the criteria for the grant of a visa. To meet the requirements of a Subclass 820 visa the applicant was required to satisfy the criteria set out in subdivision 820.21 of the Migration Regulations 1994 (Cth) at the time of application and subdivision 820.22 at the time of decision.
Subclause 820.211(2) was relevant for the purposes of the application before the tribunal. That subclause required the visa applicant to be the spouse of an Australian citizen. The term "spouse" is defined in Regulation 1.15A of the Regulations. It relevantly provides that:
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
…
(b) in a de facto relationship, as described in subregulation (2).
(2) Persons are in a de facto relationship if:
…
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis; and
(d) … the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B) not been living separately and apart on a permanent basis…
Paragraph (2)(d) does not apply if:
(2A)
…
(b) the applicant can establish compelling and compassionate circumstances for the grant of the visa.
Subregulation (2A) paragraph (3) states:
(2A)
…
(3)
(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
…
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties' living arrangements; and
(iii) any sharing of responsibility for housework;
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d) the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
Subregulation 1.15A(3) are mandatory considerations. Thus the tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in this subregulation. The tribunal noted in its reasons the decision of Bretag v Immigration Review Tribunal (Federal Court,
29 November 1991, unreported) in which O'Loughlin J quoted from Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160, saying the tribunal may have regard to the subsequent history of a relationship for the purpose of testing or determining whether the relationship was genuine at the time of application so long as it:
tends logically to show the existence or non‑existence of facts relevant to the issue to be determined.
Thus, it was necessary for the applicant to show firstly that he was in a spousal relationship, as defined, with Ms Set as at the date of his application, which was 25 February 2002 and, secondly, that he had been in that relationship from 25 February 2001, being the period of 12 months before the date of his application. This was so unless he could establish compelling and compassionate circumstances under paragraph 1.15A(2A)(b) of the Regulations.
History
In his initial application form the applicant said that:
a)
his relationship with Ms Set began on 5 April 2001 and later
5 February 2001;
b)he separated from his (now) previous wife on 11 November 2001;
c)Ms Set was born on 15 April 1957;
d)
Ms Set had been married to a Mr Van from 5 April 1999 until
6 July 2001;
e)Ms Set had two children, a daughter, born in 1980 and a son born in 1982;
f)the applicant and Ms Set met on 5 January 2001;
g)the applicant was still married but had a divorce application pending.
With that application form the applicant submitted amongst other things:
(1)a bank cheque receipt for $5,000 dated 20 February 2001 showing the applicant as the payee and a housing loan deposit slip for $5,000 dated 20 February 2001;
(2)a letter dated 22 February 2002 to the applicant showing his address as the nominator's address;
(3)a mobile telephone account for the applicant due on 5 August 2002 showing his address as the nominator's address;
(4)various other accounts from 2002;
(5)a photograph;
(6)a letter addressed to both the nominator and the applicant at her address and the date stamped 21 May 2001;
(7)an undated letter from the Khmer Community of Victoria Inc received by the Department on 4 September 2002 saying that the applicant and the nominator participated in a Cambodian singing competition on 3 February 2001, but they had "already developed feelings for each" a month earlier.
The applicant sent further documents in support of his application to the tribunal. These included:
a)statements from friends;
b)a letter confirming an appointment, apparently on 11 September 2002 with Professor David Healy and a report concerning that appointment, which noted that the applicant and nominator would like IVF treatment but there were difficulties due to the age of the nominator. She was 45 at the time;
c)two receipts from Monash Reproductive Pathology and Genetics, one for $119.45 and the other for $70.05;
d)accounts and other documents for the year 2002 and later;
The tribunal sent the applicant a letter pursuant to section 359 of the Act inviting the applicant to provide evidence supporting his claim to have been in a de facto relationship with the nominator from February 2001. In particular the tribunal sought evidence about the financial and social aspects of the relationship and the nature of the household and the parties' commitment to each other. That letter also asked for a letter from Centrelink confirming when the nominator informed Centrelink about her de facto relationship with the applicant and if the parties were not cohabiting from February 2001 onward details of any compelling and compassionate circumstances they wished to rely upon. In response the applicant submitted a large number of documents dated August 2002 onward.
MRT Hearing
At the hearing before the tribunal on 10 September 2003 the applicant gave evidence that he separated from his former wife approximately one to two months after arriving in Australia in August 2000, although he remained living at her address. His former wife then moved out. The tribunal indicated to the applicant that he had said in his initial application that he had separated from his wife on 11 November 2001 and that he had told the delegate that they had separated in September 2001 and that he had then told the tribunal that they had separated in October 2000.
The applicant said that he had met the nominator in January 2001 and commenced a relationship with her. He had moved in with her in February 2001. The tribunal then noted to the applicant that in his application he had claimed to commence his relationship with the nominator on 5 April 2001 whereas elsewhere he had claimed it to begin on 5 February 2001. The applicant said the migration agent had filled in his form, and incorrectly in reference to the April date.
The applicant gave evidence that when he moved in with the nominator he had no savings except for $50 and that he worked in a spare parts factory and earned $425 a week. He claimed that at the time he moved in with the nominator he was paying his former wife $200 each week and that he commenced to give the nominator, at a time unspecified, $225 each week for food, clothing and living expenses. The tribunal asked the applicant as to the $5,000 he claimed to have given to the nominator for her mortgage in February 2001 and the applicant responded that those funds had come from his father. The tribunal asked the applicant if he had made any other contributions to the mortgage but the applicant could remember none. The tribunal then reminded the applicant that he had claimed to make a payment to the nominator of $3,000 on 12 August 2002 and the applicant claimed to have given this money to the nominator because he wanted to contribute to the mortgage. He said that when he came to Australia he had $10,000, which he kept with him, rather than in a bank. When reminded that he had just said he had no savings other than $50 the applicant replied that he meant that he had saved nothing from his work in Australia.
The tribunal put to the applicant why it should not conclude that the lump sum payments were not in exchange for the nominator's assistance in the applicant's visa application. The applicant responded that he gave the money to the nominator because he loved her and that he had not bribed her.
When asked about utility accounts the applicant indicated that in 2000 the relationship was still new and that there was not 100 per cent trust and thus they were not transferred into joint names until mid‑2002. When asked about photographs of the parties taken in 2001 the applicant claimed to have not taken them to the interview with the delegate in August 2002 because he did not think they were important, even though he had a migration agent to advise him and had been advised by the Department to bring any documentary evidence of his relationship. He claimed to have notified Centrelink of the de facto relationship approximately one month after they had moved in together. The applicant claimed that he and the nominator loved one another and planned to have a baby.
The nominator told the tribunal that the applicant had moved in with her in February 2001 and that initially he had given her $200 each week out of his earnings but that after about five months the applicant gave the nominator his entire pay. She confirmed the applicant's evidence that he had not paid her $5,000 to assist him to obtain permanent residence and said that she had not notified Centrelink of the relationship for a long time because she needed the Centrelink funds. The nominator claimed that she advised Centrelink in or about February of 2002, being perhaps six months after the commencement of their relationship. The nominator claimed that compelling and compassionate reasons the tribunal should consider were that the applicant and the nominator were now married and that they wished to have a child together and a business together.
MRT Reasons
In relation to the financial aspects of the parties' relationship the tribunal found that the couple first met in January 2001. Although the tribunal was prepared to proceed on the basis that the parties commenced a joint household, despite inconsistencies in the parties' own evidence, in February 2001 the tribunal found little objective evidence that the parties had combined their affairs or shared assets and liabilities from the commencement of their relationship in February 2001 through to February 2002, as claimed by them.
The tribunal referred to the earliest joint bank account statement of the parties in February 2002 and the earliest utilities account in joint names dated March 2002. The tribunal noted that the timing of the visa applicant's lump sum contributions to the nominator's mortgage in February 2001 and August 2002, the first payment being just before the lodgement of the visa applicant's visa application with the Department and the second just prior to the parties' Departmental interview, appeared to indicate that the nominator had been paid to assist the visa applicant to achieve permanent residence in Australia despite the denials of the parties.
On balance the tribunal was not satisfied that the financial aspects of the parties' relationship for the period February 2001 to February 2002 existed and found the documentary evidence submitted to the tribunal did not establish the existence of a de facto relationship from February 2001, as claimed by the parties.
In relation to the nature of the parties' household the tribunal took into account the evidence of Ms On, Mr Savad and a letter of support from Mr Chheang. However, the tribunal found that that evidence did not necessarily establish the nature of the parties' household during the relevant period. It noted that a third party assessment of a relationship to be a "de facto relationship" did not of itself necessarily establish that this was in fact the case in accordance with the requirements of the Regulations. The tribunal found that there was no other objective evidence before it to support the claim that the parties cohabited from February 2001. The tribunal observed the inconsistency in the evidence of the applicant and nominator as to the notification to Centrelink of the parties commencing to live together and noted the nominator's credibility was not assisted by her evidence because it indicated a willingness on her part to hide the truth in order to access benefits from the Australian government. Based on the evidence before it the tribunal found that the parties did not share a household in February 2001.
In relation to the social aspects of the relationship the tribunal accepted that by the time of its decision the parties appeared to be accepted by their family and friends as a couple. The tribunal, however, considered there was little evidence that was the case in February 2001. The tribunal observed that Mr Lee, Mr Chan and Ms Meas did not have direct knowledge of the parties' relationship in February 2001 and observed that the visa applicant did not dispute the statutory declaration from Mr Lee, placing his knowledge of the visa applicant's circumstances from August 2001 rather than February 2001. The tribunal noted that no supporting statements had been provided to it by the nominator's children and noted that it was not possible for the tribunal to substantiate whether the photographs the nominator claimed were taken in 2001 were in fact taken in that year and, if so, during which month of that year they were taken. The remaining photographs of the parties were taken in a variety of social settings during 2002 and 2003 and therefore the tribunal gave them less weight in considering the social aspects of the parties' relationship from February 2001 to February 2002.
On balance, and having regard to all of the evidence before it, the tribunal found that while some aspects of the couple's relationship indicated that there was a relationship between them in February 2001 the tribunal was not persuaded that the social aspects of the spousal relationship were particularly strong. The tribunal concluded that the evidence before it indicated that in the period between February 2001 and February 2002 the parties' relationship was an emerging one with some, but not all, of the elements of a de facto relationship. The tribunal accepted that from early 2002 the parties' relationship had progressed to a stage where it reflected the elements of a de facto relationship to a much higher degree. In relation to the parties' commitment to each other the tribunal was not satisfied the relationship had developed to the point of a commitment to a long‑term relationship as at February 2001, nor was the tribunal satisfied that the relationship was a genuine and continuing spousal relationship at that time. Given the totality of the evidence before it the tribunal was not satisfied that the relationship between the parties was genuine and continuing from February 2001, as claimed by the couple.
The tribunal then turned to a consideration of whether there were compelling and compassionate circumstances for the grant of the visa. The tribunal noted that the explanatory memorandum for the relevant provision gave one illustration of a compelling and compassionate circumstance, being the existence of a dependent child of the relationship. In this case there are no dependent children from the relationship. The tribunal then went on to consider whether any other compelling or compassionate reasons for the grant of the visa had been established. The tribunal noted that the compelling and compassionate circumstances must involve more than the basic prerequisites for the grant of the visa (Minister for Immigration and Multicultural v Dunne [1999] FCA 204). The tribunal also noted that in Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 O'Loughlin J considered that the words "compelling or compassionate"
call for the occurrence of an event or events that are far‑reaching and most heavily persuasive. Incidental matters are not to be taken into account, except where it is appropriate to have regard to their totality.
The tribunal further noted that in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 the Federal Court also considered the meaning of the term "compelling reasons" in relation to another provision of the Regulations in respect of Schedule 3 criteria. The Federal Court held that the issue of whether there were compelling reasons needed to be considered at the time of the visa application. The tribunal also referred to the Macquarie Dictionary definition and the Oxford English Dictionary definition of "compelling" and noted that for the circumstances to be both compelling and compassionate they had to go beyond a genuine marital relationship. The tribunal noted that the visa applicant submitted that the strength of his relationship with the nominator and their desire to have children constituted compelling and compassionate circumstances for the grant of the visa. Evidence had been submitted to the tribunal that in late 2002 the parties embarked on infertility treatment to fulfil their desire to have children. The tribunal noted that the circumstances of the infertility treatment were not in existence at the time of application, being February 2002.
The tribunal accepted that the nominator would miss the visa applicant and that the parties may be distressed by a separation but did not find that to be a compelling reason, such that the tribunal ought to conclude that the visa should be granted.
Consideration
The applicant submitted that the tribunal had denied him an opportunity to put his case by not taking into account the delegate's record of interview and thus had denied the applicant natural justice.
I reject this submission. This court is not here reviewing the decision of the delegate but rather, that of the tribunal. The hearing before the tribunal was a hearing de novo. Nothing is identified by the applicant which leads the court to conclude that the applicant was denied an opportunity to put his case. No adverse material was relied upon by the tribunal which was not put to the applicant. The tribunal raised various aspects of the interview between the delegate and the applicant and nominator and canvassed all of the issues in the case with each of them. The applicant has not specified anything that the tribunal assumed in the context of the interview with the delegate, nor how any such assumption may have impacted on the decision of the tribunal. None of the findings of the tribunal are expressed to be based on anything said by the applicant and/or nominator to the delegate, even if the applicant had specified what particular information it was that the tribunal failed to put to the applicant.
The applicant argues that the commencement by the applicant and nominator on the IVF program should had led the tribunal to conclude that compelling and compassionate circumstances existed as at the time of the application, which was February 2002. The applicant contends the tribunal failed to consider the impact separation would have on a couple undergoing infertility treatment and, further, that the tribunal failed to consider the relatively elderly age of the nominator. The only evidence before the tribunal was that the applicant and nominator had an appointment with Professor David Healy on 11 September 2002, that the parties proceeded to attend that appointment and completed a registration form for Monash IVF, Clayton. No further objective evidence was before the tribunal as to the parties' engagement in IVF procedures. The tribunal accepted the parties desired a baby but noted that as at February 2002, and as a matter determined by the tribunal of fact and degree, there was nothing which characterised the circumstances in which the applicant and nominator found themselves as anything more than or as outside of those matters which went to a normal marital relationship. As a matter of fact and degree the tribunal determined that there were not reasons which went beyond the basic prerequisite criteria which it was entitled to find. I find on the material before it that was a conclusion available to the tribunal and a question for the tribunal to resolve (SAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 345).
Otherwise the arguments of the applicant go to a merits review. The tribunal was not obliged to accept the evidence advanced by or on behalf of the applicant. The applicant himself gave inconsistent evidence, saying in his initial application form that his relationship with the nominator did not begin until 5 April 2001 and that he did not separate from his wife until 11 November 2001. Both he and the nominator gave different periods of time for which Centrelink was advised of the status of their relationship. There was no objection and independent evidence that the parties commenced a de facto relationship in February 2001 which subsisted until February 2002.
The tribunal did not fail to take into account the integers of the claim as put before it by the applicant. It considered the evidence before it and weighed it in the balance. The tribunal was required to answer whether the parties were in a de facto relationship as at 25 February 2001 and ongoing for a 12 month period. The tribunal did answer that, concluding that the parties had not been in a de facto relationship during the totality of that 12 month period. The tribunal considered whether the parties had joint assets and liabilities, whether they had pooled financial resources, shared household expenses and whether one party had assumed any financial obligations in respect of the other. The applicant was able to put forward such information as he desired and it was not for the tribunal to make out his case for him in that context. The tribunal, in any event, looked at the entirety of the evidence concerning the parties' financial circumstances and concluded that it was not satisfied that the financial aspects of the relationship existed from February 2001. The tribunal noted there were inconsistencies in the parties' own evidence as to when they commenced to live together, but noted that notwithstanding those inconsistencies the tribunal was prepared to proceed on the basis that the parties commenced a joint household in February 2001, as distinct from a de facto relationship. The tribunal then went on to consider those matters required to be considered by it pursuant to the Regulations and found that the mandatory nature of the Regulations were not satisfied. There was evidence before the tribunal to support the tribunal's findings.
It cannot be said that the determination of the tribunal was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at para 38). It is noted the inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.
Accordingly the application will be dismissed with a consequent costs order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 9 February 2005
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