Okoye v Minister for Immigration

[2017] FCCA 2767

FEDERAL CIRCUIT COURT OF AUSTRALIA

OKOYE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2767

Catchwords:
MIGRATION – Visa – Child (Migrant) Visa – where visa applications made with respect to four children of the applicant – whether finding that certain visa applicants did not meet prescribed criteria unreasonable – whether Tribunal fell into error by reason of misunderstanding evidence – whether failure to conduct review – duty of Tribunal to make enquiry – whether denial of procedural fairness – application allowed with respect to one visa applicant and otherwise dismissed.

Legislation:

Migration Act 1958 (Cth), ss.348 & 348(1), 359A & 476(1)

Migration Regulations 1994 (Cth), cls.101.213(1)(c) & 101.221(2)(b) of Sch.2

Cases cited:

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

Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] 144 FCR 1

Applicant: MIKE OKOYE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 243 of 2016

Judgment of: Judge Heffernan

Hearing date: 9 May 2017

Date of Last Submission: 27 September 2017

Delivered at: Adelaide

Delivered on: 24 November 2017

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr O'Leary

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. Grounds one, two, three and four of the Amended Application filed 28 April 2017 are dismissed.

2. With respect to the decision of the second respondent affirming the decision of the delegate of the first respondent not to grant a Child (Migrant) (Class AH) Visa to Cajetan Ikechukwu Okoye there be an order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 30 June 2016.

3. With respect to the decision of the second respondent affirming the decision of a delegate of the first respondent not to grant a Child (Migrant) (Class AH) Visa to Cajetan Ikechukwu Okoye there be an order in the nature of a writ of certiorari issue directing the second respondent to hear and determine the application for review according to law.

4. The applicant do pay the costs of the first respondent in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 243 of 2016

MIKE OKOYE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’) dated 30 June 2016. That decision affirmed an earlier decision of a delegate of the Minister not to grant Child (Migrant) (Class AH) Visas to the children of the applicant, Cajetan Ikechukwu Okoye (‘Cajetan’), Maureen Chioma Okoye (‘Maureen’), Maria-Tha Ezinne Okoye (‘Maria-Tha’) and Arister Damian Egosikeya Okoye (‘Arister’). Those children presently live in Nigeria and are aged between 18 and 24 years.

2. On 26 April 2017, I gave the applicant leave to amend his application.  That Amended Application raises five grounds as follows:

   “1.The decision of the Administrative Appeals Tribunal (the Tribunal) was affected by jurisdictional error in that the decision of the Tribunal was unreasonable and/or alternatively the Tribunal failed to take into account relevant material and/or alternatively the Tribunal made an error of law in that it failed to properly take into account the participation in Nigeria’s National Youth Service Corps (NYSC) in determining whether visa applicants Maureen Chioma Okoye and Maria-Tha Ezinne Okoye had undertaken a full-time course of study at an educational institution within a reasonable time after completing the equivalent of year 12 in the Australian school system pursuant to the Migration Regulations 1994 (Cth) Schedule 2 Clause 101.21391)(c).

   2.The decision of the Tribunal was affected by jurisdiction error in that the decision of the Tribunal was unreasonable and/or alternatively it incorrectly took into account relevant material in that it incorrectly decided that the visa applicant Maureen Chioma Okoye was paid by the NYSC whereas Maureen Chioma Okoye in fact paid money to NYSC for materials and her uniform on 10 February 2016.

   3.The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to conduct a proper review pursuant to section 348 of the Migration Act 1958 (Cth) in that it failed to obtain or seek to obtain proper evidence about the NYSC and how it operates in Nigeria .

   4.The decision of the Tribunal was affected by jurisdictional error in that the applicant was not afforded procedural fairness in that he did not have an opportunity to present all of the relevant evidence to the Tribunal.

   Particulars

   The Applicant was awaiting DNA evidence from DNA Diagnostics Center (DDC) which he intended to present to the Tribunal. He intended to submit further evidence to the Tribunal supporting his claim that visa applicant Arister Damian Egosikeye Okoye was enrolled in full time study with Creative Mind Computer Institute and visa applicant Cajetan Ikechukwu Okove was undertaking a full-time apprenticeship with lKYE DON Generator Engineering (the further enrolment evidence) along with the DNA evidence when it became available from DDC. The Applicant was unaware that DDC sent its report directly to the First Respondent on or about 24 June 2016. The Tribunal made its decision about 4 days later on 30 June 2016, before the Applicant was able to send the further enrolment evidence to the Tribunal.

   5.The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to take into account relevant material in that it failed to take into account Ministerial Direction PAM 3 in determining whether visa applicant Cajetan was undertaking a full-time course of study at an educational institution pursuant to Schedule 2 Clauses 101.213(1)(c) and l01.221 to the Regulations.”

   (The above is repeated verbatim and any errors of spelling and grammar have been retained from the original)

3. The applicant filed written submissions and at the hearing of the application supplemented those with brief oral submissions to which I will refer later.  He relies on the materials in the Court Book, together with an affidavit sworn by him on 4 August 2016, which annexes a copy of the Decision Record of the Tribunal, but otherwise adds nothing of substance to the application.  On 9 May 2017, I gave the applicant leave to file a further affidavit setting out a list of materials he says he provided to the Tribunal and which he claims were not included in the Court Book.  I will refer to that later in these reasons.

Background

1. Relevant aspects of the background to this application were helpfully summarised in the written submissions filed by the first respondent and I paraphrase them below.

2. The applicant is an Australian citizen and arrived in Australia in 2008.  It is accepted by the first respondent that the applicant is the biological father of the four visa applicants.

3. The applicant made separate child applications for Child (Class AH) Child (Subclass 101) Visa for each of the four children.  The children are resident in Nigeria.  All four of those applications were refused by a delegate for the Minister on 18 June 2015.  As a result, the applicant made an application to the Tribunal with respect to each of the visa applicants on 25 August 2015.

4. The applicant was invited to attend a hearing before the Tribunal to give evidence and present argument.  That hearing occurred on 2 February 2016.  The applicant was given leave to provide further information to the Tribunal in writing by 16 February 2016.

5. The applicant provided further information to the Tribunal on 15 February, 19 February and 10 June 2016.  On 27 June 2016, DNA information was provided directly to the Tribunal from the DNA Diagnostics Centre to confirm that Mr Okoye was the biological father of each of the visa applicants.  The Tribunal then proceeded to make its decision on 30 June 2016.  That decision affirmed the delegate’s decision with respect to each of the visa applicants. 

6. The Tribunal found, not surprisingly given the DNA evidence, that Mr Okoye was the biological father of the visa applicants. It found, correctly in my view, that the visa applicants had to satisfy the prescribed criteria in relation to a subclass 101 (Child) visa. The Tribunal also found, once again correctly, that each of the visa applicants had to satisfy other prescribed criteria, namely cl.101.213(1)(c) of the Migration Regulations 1994 (Cth) (‘Regulations’) and that it was necessary for each of the applicants to satisfy the prescribed criteria at the time of decision.

7. The Tribunal made separate findings with respect to each of the visa applicants. For the purpose of these reasons, it is necessary only to deal with three of the applicants. This is because the first respondent accepts that the Tribunal fell into jurisdictional error with respect to Cajetan. The first respondent concedes, and I accept, that the second respondent breached s.359A of the Act because it failed to put to the review applicant evidence from a third party witness to the effect that Cajetan was not studying.[1]  As a result, the review applicant was not given an opportunity to comment on that material.  That information was clearly relied on by the Tribunal as the reason, or part of the reason, for affirming the decision under review with respect to him.[2]

   [1] Court Book (‘CB’) p 362 at [29] & [31].

   [2]     CB p 363 at [32]-[33].

8. I am satisfied that the Tribunal fell into jurisdictional error with respect to the visa applicant, Cajetan.  For that reason, it is unnecessary for the Court to consider ground five of this application.

9. With respect to the visa applications of Maureen and Maria-Tha, the Tribunal found that they had completed their university education by the time of the hearing and were undertaking national service for the National Youth Services Corps (‘NYSC’).  The Tribunal found that service with the NYSC was remunerated and accepted Mr Okoye’s submission that Maureen and Maria-Tha were paid an amount in the vicinity of $100 per month.  For that reason, the Tribunal found that service with the NYSC was “full time work for remuneration”, although it accepted that the remuneration that flowed from service was minimal and that Mr Okoye was still required to assist them financially.  The Tribunal considered Mr Okoye’s submission that service with the NYSC was mandatory after the completion of university education.  Nonetheless, it found that Maureen and Maria-Tha did not meet the requirement to be in relevant full time study.

10. The Tribunal noted that Mr Okoye was provided with an opportunity after the hearing to make further submissions in relation to this aspect of the review.[3]  The Tribunal made a finding with respect to both of these visa applicants in the following terms:

    “I am not satisfied that at the time of this decision, since completing the equivalent of year 12 in the Australian school system, Maureen and Maria-Tha have been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. This means they do not meet by cl.101.213(c) at the time of this decision (sic) and therefore do not meet cl.101.213 of Schedule 2 of the Regulations. As a result the decision in relation to Maureen and Maria-Tha is affirmed.”

    [3] CB p 361 at [18].

11. With respect to the visa applicant, Arister, who is the youngest of the visa applicants, the Tribunal considered documents provided by Mr Okoye, namely a copy of a Diploma in Computer Studies, dated 5 June 2015, a receipt for Victory Tutorial Centre for GCE classes, and a Joint Admissions and Matriculation Board Registration for Matriculations Examinations printed on 15 January 2016.  That final document was provided after the hearing and was a registration document confirming registration to sit an examination.  The Tribunal noted that that document listed Arister’s preferences for university education but it did not establish that he was studying at an educational institution either at the time the certificate was issued, or at the time of the decision.  The Tribunal also noted evidence given by Mr Okoye that Arister had undertaken a university entrance examination but that he had not been successful and had to repeat it.  It also considered an email sent by Mr Okoye on 10 June 2016, after the hearing.  In that email Mr Okoye asserted that Arister was doing a computer engineering course in Lagos.  However, the Tribunal noted that the email did not state where Arister was undertaking this course, or provide any evidence as to his enrolment.  The Tribunal noted that this was in contrast to information provided in the same email with respect to Maureen and Maria-Tha’s NYSC placements which specified the name and location of the schools they were attending and what they were doing for the purpose of the placements.[4]

    [4] CB p 363 at [39].

12. The Tribunal noted that “Mr Okoye was aware that evidence to establish the study being undertaken by each of the applicants was essential for this matter”.[5] In the absence of any documentation supporting the assertion that Arister was undertaking a computer engineering course, the Tribunal was not satisfied he was undertaking a full time course of study at an educational institution leading to the award of a professional trade or vocational qualification. As a result, it found that Arister did not meet cl.101.213(1)(c) and cl.101.221(2)(b) of Schedule 2 of the Regulations, and for that reason it affirmed the decision of the delegate in relation to him.

    [5] CB p 363 at [40].

Submissions of applicant

1. I will summarise both the written and oral submissions made by the applicant, Mr Okoye.

Ground one

1. With respect to ground one, the applicant submitted that the decision of the Tribunal with respect to Maureen and Maria-Tha was unreasonable because there was evidence from both himself and his son, Augustus, to the effect that the NYSC was a mandatory requirement for all students completing university study before they could go on to undertake post graduate studies or employment.  The applicant submitted that this was a significant difference between the education system in Australia and that in Nigeria.  He submitted that the requirement to undertake such a placement was mandated by Nigerian legislation and that the types of undertakings that a participant may be deployed in included hospitals, farming and teaching.  He submitted that failure to participate in the NYSC was an offence and that at the completion of a year of service, each participant was issued with a certificate which had to be produced to any prospective employer.

2. Given the participation in the NYSC was mandatory and it was not possible for either Maureen or Maria-Tha to obtain employment or undertake further studies without having completed it, it was unreasonable and unjust for the Tribunal to hold that their participation in the NYSC was full time work for remuneration, and that as a consequence they were not undertaking a relevant full time course of study.  He submitted that they were not working in the relevant sense because any remuneration they were given was only intended to cover their costs.  The money they were given was not payment.  In his submission, the NYSC was an ongoing “study procedure”.

3. He further submitted that the Tribunal had failed to take into account relevant material, namely the evidence as to the mandatory nature of the participation of Maureen and Maria-Tha in the NYSC, and that the Tribunal had failed to take into account Ministerial policy PAM-3 which provides that a break in studies due to compulsory military service may be considered reasonable provided the applicant resumes full time studies as soon as possible.  The NYSC, he submitted, was analogous to military service in that it was mandatory and prescribed by legislation.

4. The applicant submitted that the Tribunal had made an error of law in finding that Maureen and Maria-Tha did not meet the requirement of cl.101.213(1)(c). In his submission, the NYSC should have been regarded by the Tribunal as part of a full time course of study at a relevant educational institution for the purposes of that clause.

Ground two

1. Ground two is expressed in terms of unreasonableness on the part of the Tribunal in making a finding that evidence of a particular payment was from the NYSC to Maureen, whereas in fact it was a payment from her to the NYSC.  The second strand to this argument is couched in terms of a mistake of fact on the part of the Tribunal in that it misconstrued the nature of relevant material. 

Ground three

1. As to ground three, the applicant submits that the Tribunal failed to conduct a proper hearing by failing to carry out its obligation pursuant to s.348(1), in other words, a constructive failure to exercise jurisdiction. He submits that the Tribunal based its decision regarding both Maureen and Marie-Tha on incorrect information about the NYSC and that “a simple internet search would have demonstrated to the Tribunal the mandatory nature of the NYSC” to that extent, this ground clearly raises a consideration of whether or not the Tribunal fell into jurisdictional error by failing to make an enquiry.

Ground four

1. Finally, with respect to ground four, the applicant submitted that the Tribunal failed to afford him procedural fairness.  The context of this ground is that an issue identified by the Tribunal was that it was necessary for him to establish that he was the biological father of all four visa applicants.  Mr Okoye submits that on 2 February 2016, the hearing was adjourned with him having leave to provide DNA evidence from the DNA Diagnostics Centre confirming this matter.  As it turns out, the DNA evidence was forwarded directly to the Tribunal.  The applicant submits that this occurred without his knowledge and that the Tribunal made its decision three days after having received that information.  As a result of not having been put on notice by the Tribunal of the receipt of that information, the applicant says that he lost the opportunity to provide further evidence supporting his contention that the visa applicant, Arister, was enrolled in full time study with a particular institute at the time of both the visa application and the decision of the Tribunal was undertaking a full time apprenticeship with an engineering firm.  As a result of the failure to inform him, the applicant says that he was “given no opportunity to submit his further evidence to the Tribunal to support his claim that Arister was enrolled in full time study at the time of his visa application and the decision of the Tribunal, or that he was undertaking a full time apprenticeship at both the time of the visa application and the Tribunal’s decision.”  This, he submitted, was a jurisdictional error by way of a denial of procedural fairness.

Submissions of the first respondent

1. As I have already noted, the first respondent concedes the application in so far as it relates to the visa applicant, Cajetan.

Ground one

1. With respect to ground one, the first respondent submits that the decision reached by the Tribunal was open on relevant evidence placed before it and was accordingly within the discretion conferred on it by the Migration Act and the Regulations. As far as the submission that the Tribunal failed to take into account relevant material is concerned, the first respondent submitted that such an error would only give rise to a jurisdictional error where it could be inferred that the Tribunal did not consider an applicant’s claim. In this case, it was submitted that the Tribunal’s reasons made it clear that it did have regard to all information provided to it with respect to the NYSC. It was submitted that a proper reading of the Decision Record disclosed that the Tribunal carefully evaluated the NYSC information before it in light of the relevant prescribed criteria cl.101.213(1)(c). Mr O’Leary submitted that it was clear that the Tribunal focused its attention to the question of whether or not the applicants were engaged in full time study and that this demonstrated that the Tribunal properly directed its enquiry as to whether or not each applicant met the relevant criteria. Given that the Tribunal found that the visa applicants were not engaged in full time study, the outcome with respect to both Maureen and Maria-Tha was inevitable because they could not satisfy the prescribed criteria and thus their applications could not succeed. For that reason, the minutiae of aspects of their service with the NYSC was not relevant. The first respondent submitted that the Tribunal’s finding that Maureen and Maria-Tha were not engaged in full time study was clearly open to it on the information presented. It submits that the decision was neither unreasonable in the relevant sense or otherwise tainted by jurisdictional error.

Ground two

1. With respect to ground two, the first respondent submitted that the information which the applicant asserts was misunderstood by the Tribunal was not determinative of the application. The Tribunal considered that payment for service with the NYSC was relevant to determining whether or not the applicant could satisfy cl.101.213(1)(c) and this was a separate consideration as to whether or not the applicant was engaged in full time work. Further, the first respondent submitted that the Tribunal found that the visa applicant, Maureen, had ceased studying at University and that this was a critical finding. Even if a factual error had been made with respect to the receipt referred to by the applicant, this would not give rise to jurisdictional error because the receipt is simply a non-determinative consideration and for that reason the conclusion of the Tribunal was not materially affected by the nature of the receipt. It submitted that the finding was open on the evidence and not unreasonable.

Ground three

1. As to ground three, the first respondent submitted that the submission asserting a breach of s.348 on the basis of a duty to enquire was fundamentally flawed. This is because the duty imposed on the Tribunal is a duty of review and not to make enquiries. Mr O’Leary conceded that it is possible for a Tribunal to constructively fail to exercise jurisdiction if it failed to make an obvious enquiry about a critical fact the existence of which could be easily ascertained, a principle that is well established by the authorities. However, it was submitted that this was not a case in which such an enquiry was required. The Tribunal determined whether or not the two visa applicants were engaged in full time study by reference to the material placed before it and concluded that they were not. The applicant’s submission before the Tribunal was not that the NYSC satisfied the prescribed criteria because it was relevant full time study but rather that service with the NYSC precluded them from being engaged in full time study. For that reason, no obvious or critical fact that might have been ascertained by an enquiry into the precise operation of the NYSC would change that fact for the purposes of cl.101.213(1)(c).

Ground four

1. The first respondent submits with respect to ground four that the applicant had ample opportunity after the hearing to provide further information to the Tribunal.  It submits that the Tribunal’s reasons demonstrate that Mr Okoye was “specifically asked during the hearing to provide documents to show Arister was studying”.[6] The applicant did provide a document as to the matriculation board registration for matriculation examinations, but as the Tribunal noted, that was evidence only of registration to sit an exam and did not establish that Arister was studying at an educational institution. That information was provided by the applicant on 19 February 2016. Notwithstanding the Tribunal having given Mr Okoye until 16 February 2016 in which to provide further information in writing, it received and considered further information from him on 10 June 2016 by way of an email. That email did not attach any further supporting documentation. Further, the applicant did not make any application to adjourn or post-pone the determination of the application in order to provide specific evidence with respect to Arister. The applicant had been clearly made aware of critical issues that the Tribunal was required to consider. The first respondent submits that ultimately the record spoke for itself and the Tribunal’s reasons indicate that there was an ongoing failure by the applicant to provide further documentary evidence to support a positive finding under cl.101.213(1)(c) with respect to Arister.

   [6] CB p 163 at [37].

Consideration

1. During the course of submissions, Mr Okoye raised concern that the Court Book might not have contained all relevant documents provided by him to the Tribunal about the NYSC.  For that reason, I gave him permission to file a further affidavit to give him an opportunity to identify if there were documents that he had provided which were relevant to this application and which had not been included in the Court Book.  His affidavit of 16 May 2017 confirms that he was not able to identify any further documents that he had provided and which had not been included in the Court Book.

2. For that reason, I have proceeded on the basis that all relevant material provided by him to the Tribunal has been put before me. 

3. A reading of the Decision Record of the Tribunal shows that it did consider and evaluate the significance of the participation of Maureen and Maria-Tha in the NYSC.[7] It considered the information with respect to the NYSC in the course of determining whether the two visa applicants were able to meet the relevant prescribed criteria, cl.101.213(1)(c). In my view, the decision reached by the Tribunal that the two visa applicants were not engaged in a relevant full time course of study as required by cl.101.213(1)(c) was open to it on the basis of the evidence before it. It is not determinative to this application that a different decision maker might have reached a different conclusion. It is well established that legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making.[8]  In the Minister for Immigration & Citizenship v Li, French CJ had this to say:

   “The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence …”[9]

   [7]     CB pp 360-361.

   [8]     Minister for Immigration & Citizenship v Li (2013) 249 CLR 332.

   [9] Op cit at [30].

4. I am satisfied that the Tribunal did consider the evidence and arguments put to it in relation to the significance and implications of Maureen and Maria-Tha’s involvement with the NYSC. I am satisfied that the finding that the two visa applicants were not engaged in full time study was open to the Tribunal. For that reason the findings that they could not satisfy cl.101.213(1)(c) was open to it.

5. I dismiss ground one.

6. With respect to ground two, I accept the submission of the first respondent that whether the Tribunal had misinterpreted the nature of the receipt as asserted by Mr Okoye was not ultimately determinative. It is worth noting in any event the applicant’s evidence with respect to the NYSC acknowledged that there was a form of payment made to the two visa applicants as a result of their participation in the NYSC. Ultimately, this ground fails because of the determination of the Tribunal that the relevant applicant could not satisfy cl.101.213(1)(c) in that she was not engaged in a relevant course of full time study. I am not satisfied that the finding by the Tribunal with respect to Maureen was unreasonable in the relevant legal sense and to the extent that it was mistaken as to the significance of the receipt, such mistake was not determinative of its findings. As explained by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2)[10], “Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome …”.  I am satisfied that that observation is opposite here.

   [10] [2004] 144 FCR 1 at [63].

7. I dismiss ground two.

8. With respect to ground three.  I accept the submission of the first respondent that the duty imposed on the Tribunal under s.348 as a duty to review and not to make enquiries.[11]  It is well established that “a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by a constructive failure to exercise jurisdiction”.[12]

   [11]    Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at [25].

   [12]    Op cit SZIAI at [25].

9. It was for the applicant to put before the Tribunal evidence and arguments for the purpose of the review.  The Tribunal clearly considered the information put before it by the applicant.  I am not satisfied that it failed to make an obvious enquiry about a critical fact the existence of which could have been easily ascertained.  It was not part of the argument presented by the applicant that participation in the NYSC amounted to full time study.  It was not necessary for the Tribunal to conduct its own enquiries as to the minutiae of the way in which the NYSC operated. 

10. I dismiss ground three.

11. Finally, I am not satisfied that the applicant has demonstrated that he was denied procedural fairness by the Tribunal in the manner in which it conducted the hearing, or in its failure to provide him with an opportunity to provide further material.  Such opportunity was afforded to him by the Tribunal and he took the opportunity to provide further information which he asserted was relevant.  In my view, the applicant had ample opportunity to present his evidence and arguments and the fact that the Tribunal did not put him on notice of having received the DNA evidence did not prevent him from providing any further information up to the point at which the Tribunal made its decision if he chose to do so.  The fact of the matter is that the review process had ended with the applicant being given leave to provide further information by a specified date.  The applicant did not seek an adjournment and did not seek to re-open the hearing.  The Tribunal withheld making its decision until after it had received the relevant DNA evidence which was some months after the hearing had closed.

12. I dismiss ground four.

13. I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 24 November 2017

CORRECTIONS

1. Paragraph 10, line 7 – delete “Cajetan” insert “the review applicant”

2. Paragraph 10, line 7 – delete “he” insert “Cajetan”

3. Paragraph 10, line 8 – delete “Cajetan” insert “the review applicant”