Pham v Minister for Immigration - [2015] FCCA 2374

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAM v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2374

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – whether Tribunal misconstrued meaning of “compelling reasons” in relevant regulation – whether Tribunal erred in relying on Explanatory Statement – whether Tribunal erred in failing to give applicant more time to file medical evidence – criticisms not made out – application dismissed.

Legislation:

Migration Regulations 1994, cl.820.211(2)(d)

Migration Act 1958

Re Barbara June Bretag v Immigration Review Tribunal and Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 582

Applicant:

HUU LE PHAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REIVEW TRIBUNAL

File Number:

MLG 764 of 2014

Judgment of:

Judge Burchardt

Hearing date:

16 June 2015

Date of Last Submission:

16 June 2015

Delivered at:

Melbourne

Delivered on:

11 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Clothier Anderson Immigration Lawyers

Counsel for the First Respondent:

Mr Mosely

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 764 of 2014

HUU LE PHAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

By an amended application filed 13 March 2015, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“Tribunal”) dated 1 April 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Partner (Temporary) (Class UK) visa.
The amended application contains two grounds of application. The first is that the Tribunal’s decision was affected by the Tribunal asking itself the wrong question insofar as it applied “a test for the expression compelling reasons, including it to mean strongly compassionate”, thus imposing an impermissible gloss on the expression “compelling reasons”. The second ground asserts jurisdictional error in that the Tribunal failed to adjourn the application pending a medical report upon the applicant’s spouse.
In summary, and for the reasons that follow, I do not think that the Tribunal fell into error as alleged, and it follows that the application must be dismissed.

Some Uncontroversial Background

What follows is a paraphrase of some assertions in the applicant’s written submissions filed 13 March 2015 that are not, in my view, controversial. The visa applicant is from Vietnam. He first came to Australia on 21 March 2009 on a student visa, which was cancelled on 24 February 2011. He remained in Australia, however, thereafter. He met his wife, Ms Nguyen, in late August 2012. She had come to Australia on a contributory parent visa to care for her son, Toan, born 24 May 2003, who suffers from Central Precocious Puberty (CPP).

Ms Nguyen was divorced from Toan’s father, who was living in Melbourne with Toan and his parents but died unexpectedly, which led to the grant of the visa to Ms Nguyen to come to Australia to care for her son.
The applicant and Ms Nguyen met in August 2012 and, in December of that year, decided to commence a relationship. They married on

9 February 2013, and the applicant filed his application for a spouse visa on 3 March 2013 with his wife as the sponsor. He was assisted by a migration agent.
A delegate of the first respondent found that the reasons put forward by the applicant and his agent were not sufficient to amount to compelling reasons within the meaning of the Migration Regulations 1994 (“Regulations”). The decision was reviewed before the Tribunal, and it was the unfavourable decision of the Tribunal that has given rise to this application.

Materials Before the Tribunal

In circumstances where, and particularly in relation to Ground 2, the nature of the applicant’s claims are of some significance, it is appropriate to look at the materials in the Court Book (“CB”) that were before the Tribunal.
At CB21, there is set out the Statutory Declaration of Ms Nguyen, the applicant’s wife and sponsor. She deposed that she had previously been married to Toan’s father and had divorced from the father on

28 September 2004. The ex-husband went to Australia and re-married and had one daughter, and in 2010, the ex-husband sponsored Toan to Australia. Following Toan’s arrival in Australia in 2010, Toan sponsored Ms Nguyen to come to Australia as a “Contributory Parent Visa”, but most tragically, the ex-husband died the night before

Ms Nguyen arrived in Australia on 22 August 2012. Ms Nguyen deposed:
“I have since been looking after my son who is currently suffering a medical condition. My husband, PHAM Huu Le is looking after my son during the day while I am working full-time.”
At CB67, there is a Statutory Declaration by a friend of the applicant’s which goes to the nature of the relationship between the applicant and his wife. There are further such Statutory Declarations from other friends at CB70-73 and CB76. In the circumstances of the application before this court, those Statutory Declarations are of no moment.
At CB78, there is a Statutory Declaration from Ms Nguyen’s

ex-husband’s sister, a person referred to elsewhere as “Aunty Hong”. Aunty Hong deposed that she is the sister of the deceased and that

in the past, she used to accompany Toan to the Royal Children’s Hospital with his late father for regular check-ups. She deposed:
“Until last year, after their marriage, Mr PHAM became our permanent driver taking us to the hospital for regular check-ups. Sometimes Toan’s mother came with us as well.
Because I could speak English, I often went inside the consulting room to see the doctor whilst Mr PHAM stayed outside the waiting area.
As I have just given birth to my child, I could not accompany Toan to the Hospital any longer due to my own family commitments.
Mr PHAM will be from now on taking care of my nephew Toan and he will be attending the Hospital with Toan on a regular basis.”
It should be noted that the Statutory Declarations to which I have earlier referred, going to the nature of the relationship between the applicant and his wife, are not irrelevant in the sense that they may touch upon the hardship that the wife, Ms Nguyen, would feel if the father returned to Vietnam, but they have achieved no significance in the submissions advanced in this case.
At CB79-81, a written submission on behalf of the applicant by his migration agent is set out. At CB79, the submission asserts:
“As the sponsor does not have any close family members in Australia, when she first met Mr Pham, she became completely attached to him. Since, they have been inseparable, they appreciate their love and they start to respect, love and care for each other more and more every day. Particularly, given that the sponsor’s son has been suffering a rare medical condition, growth disorder that every month Mr Pham has to take the sponsor’s son to the Royal Children’s hospital for injection and to their family doctor for regular check-up. … The sponsor indeed needs Mr Pham to be with her and to assist her caring for her son because as a holder of a contributory parent visa, the sponsor is currently not entitled to receive any Centrelink benefits; she therefore needs to work to support herself and her son.”
The written submission observes that both the applicant and the sponsor are sharing accommodation with the sponsor’s son’s grandparents and attest to the nature of the commitment between the parties.
At CB82-83, there is a report from Dr Michele O’Connell from The Royal Children’s Hospital Melbourne which confirms that Toan has CPP and will require medication to turn off the signals of puberty until the age of 12 or 13 years. Toan was born on 24 May 2003, so presumably this treatment will come to an end relatively shortly.
The report goes on to note that family supports are very important, and that Toan attends the clinic approximately every 10 weeks and would be supported by the applicant in so doing.
At CB84 Ms Nicola Watt, Senior Social Worker at The Royal Children’s Hospital gives hearsay evidence that Toan is cared for by the applicant.
The delegate’s decision is at CB90-94. The delegate did not accept that Toan’s condition could not be coped with even if the applicant was not present to assist. In assessing the difficulties that would obtain between the applicant and his wife in the event that he returns to Vietnam to make an offshore application for a spouse visa, the delegate did not accept that in the particular circumstances this would give rise to sufficient emotional hardship to meet the criterion of compelling circumstances.
Following a Tribunal hearing on 7 March 2014, to which I shall return, the applicant’s migration agent forwarded a post-hearing submission which is set out at CB119-122. For present purposes it should be noted that the submission states on CB119-120 that:
“2.    After the hearing on 7 March 2014, the sponsor has been severely distressed due to some of their inconsistent answers regarding the visits to the Royal Children’s Hospital.
3.    The applicant advised the sponsor is now suffering nervous breakdown. She is unable to speak; she can only communicate by writing down on the piece of paper. This has happened to the sponsor once in 2012 when she’s learned of her ex-husband’s death upon her arrival in Australia.
4.    On Saturday 15 March 2014, the sponsor was taken to see her family doctor who then referred her to Werribee Hospital immediately. According to the applicant, the sponsor is now seeing the psychologist. The family will provide evidence of the sponsor’s mental condition this week.
5.    The sponsor stated reason for the inconsistencies in her answers at the hearing was because of her extreme anxieties. What she wanted to demonstrate on the date of hearing was that the applicant is her main support providing full-time care for Toan while she is working. Because she came to Australia on a Contributory Parent visa category, the sponsor is not entitled to any government welfare assistant, she must keep her job.
6.    The grandparents could no longer care for the sponsor’s son because they are not well themselves. The child’s grandfather suffers from hypertension and heart problems whereas his grandmother suffers from diabetes. Attached is the medical evidence of the child’s grandparents who are themselves seeking medical attention.
7.    Apart from the sponsor who can drive in the family, however she cannot take time-off work due to concerns of losing her job, the applicant therefore has been the main person driving the child and his aunt (“Hong”) to medical appointments.
8.    The aunt now is unable to accompany Toan to hospital check-ups because she has just given birth to her child. Toan has no one to care for him but the applicant.
9.    The sponsor said she felt extremely nervous at the hearing. She worried she would be assessed as an uncaring and irresponsible parent; therefore she stated she has been with the child on most of the visits. In reality, it was the applicant who drove the child and his aunt to the Royal Children’s Hospital.”
At CB124-128 there are medical records relating to the paternal grandparent with whom Toan lives, and at CB129-146, there are photographs of the parties.
At CB147-149, there is a further letter from the applicant’s migration agent together at CB149 with a letter from Ms Watt, the Senior Social Worker at The Royal Children’s Hospital Melbourne. The letter from the migration agent relevantly states:
“The sponsor could not be able to provide any detailed medical evidence at present because the doctor advised it would take a few more weeks to diagnose her symptoms prior to writing an accurate report about her medical condition.
We would like request the Tribunal to take into consideration the level of commitment of the applicant and sponsor given to each other, the emotional support that the applicant has provided and would continue to provide to the sponsor to overcome her current psychological problems.”
The submission further noted that the applicant had been found unfit to work from 16 March 2014 until the date of the letter, 24 March 2014. The letter from Ms Watt merely repeats matters iterated in her earlier letter.
The medical certificate and material of CB150-154 do not take the matter further.

The decision of the Tribunal

The Tribunal set out the application for review at CB158 and the introductory remarks are, in my view, unexceptionable. The Tribunal went on at CB158 to posit the question which was, as everyone agreed, the central one before it, namely whether the applicant met the Schedule 3 criteria or whether those criteria should be waived.
It is common cause that the applicant does not satisfy criteria 3001 and it is further common cause that the issue was whether there were compelling reasons for not applying those criteria (see cl.820.211(2)(d) of the Regulations).
When considering what is meant by compelling reasons, the Tribunal recorded at paragraphs 14-20 (CB159-160):
“14. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
15. The expression ‘compelling reasons’ is not defined for these purposes. However, it is clear from the Explanatory Statement to Statutory Rule No,75 of 1996, that it was intended to apply where there were ‘strongly compassionate’ reasons such as where there are Australian – citizen children from the relationship; or where the parties are already in a long-standing relationship.
16. The Schedule 3 criteria are ‘time of application’ criteria.

In this respect, the Tribunal is precluded from considering compelling reasons or circumstances that arose or occurred after the date of application. Notwithstanding this, when assessing such matters, the Tribunal may have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence

of facts that existed at the time of the application. In the context of a time of application criterion such as whether there are compelling reasons for not applying Schedule 3 criteria, the Tribunal would only apply these principles if the events

or circumstances relied upon gave further weight to

a compelling circumstance that was already in existence at the time of application.
17. The Tribunal notes that in Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204, the Federal Court considered the meaning of the concept of “compelling reasons” in another provision of the Regulations. The Court considered that “compelling reasons” must involve something in addition to the basic pre-requisite criteria for the grant of the visa. In other words, the compelling reasons must go beyond whether or not the applicant and the sponsor are in a genuine spousal relationship.
18. However, the term “compelling” was not further defined.

In relation to the words “compelling or compassionate”,

in Thongpraphai v The Minister for Immigration

& Multicultural Affairs [2000] FCA 1590 (10 November 2000) O’Loughlin J considered that
There is little doubt that both words 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.
19. In the case of Paduano v Minister for Immigration

& Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211 the Federal Court held that the ordinary meaning of “compelling” is “forceful” and that forceful reasons may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.
20. What amounts to compelling reasons in each case is

a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all the circumstances of the case.”
I note that the Tribunal recorded paragraph 21 (CB160):
“At hearing, Mr Pham said that the Schedule 3 criteria should be waived because he has found that life in Australia is good, and that he is married and supporting his wife to raise her child who has a medical condition.”
The Tribunal then recorded the evidence, including what was given at the hearing, including the extent to which the applicant was involved with taking Toan to hospital. The Tribunal noted at paragraphs 29-30 (CB161):
“29. Post hearing, Mr Pham’s representative lodged

a submission which said that Ms Nguyen’s inconsistent evidence was a result of extreme anxiety, as she wanted to demonstrate that Mr Pham is her main support, providing full-time care

of Toan while she is working. It was also stated that Ms Nguyen was concerned that she would be assessed as an uncaring and irresponsible parent, therefore she said that she has been with Toan on most of the clinic visits.
30. The Tribunal is mindful that Ms Nguyen may have been anxious due to the environment of a hearing and the significance of the outcome. However, Mr Pham’s representative has confirmed that Ms Nguyen gave untruthful evidence for the purpose of convincing the Tribunal that Mr Pham provides full time care for Toan. The Tribunal considers that this casts doubt on her overall credibility.”
The Tribunal went on to find, in effect, that Aunty Hong would continue to accompany Toan on his visits to clinics and did not accept that Toan’s medical care would be compromised if Mr Pham was required to depart Australia (paragraph 34 CB162).
The Tribunal went on to find that both the applicant and Ms Nguyen had understated the role that Toan’s grandparents played in his life and that they would be well enough to continue to contribute to his care in the absence of the applicant (paragraph 39 CB163).
The Tribunal noted at paragraphs 42-43:
“42. The Tribunal invited Mr Pham to submit additional evidence of Toan’s medical condition and any other relevant information. Post hearing, Mr Pham’s representative sought an extension for submission of the information, stating that the stress of the hearing has taken its toll on the sponsor who has been referred to hospital for treatment. It was further stated that Ms Nguyen experienced a similar stress reaction when she learned of her former husband’s death, and a medical referral dated 25 August 2012 was submitted in support of this claim.
43. The Tribunal agreed to an extension of time for submission of additional information. The submission lodged post hearing by Mr Pham’s representative states that the sponsor is suffering mental breakdown, is unable to speak and only communicates by writing. The submission further states that this happened once before when Ms Nguyen learned of her ex-husband’s death in 2012.”
The Tribunal noted the material from the applicant’s representative submitted in the proceeding and concluded at paragraphs 47-48 (CB164-165):
“47. On the basis of this evidence, the Tribunal acknowledges that Ms Nguyen has a history of experiencing significant stress reactions to negative events, and that she has been distressed since the hearing when she became aware that Mr Pham may need to depart Australia to apply for the visa. The representative states that Ms Nguyen’s doctor advised that it would take a few more weeks to diagnose her symptoms prior to writing an accurate report about her medical condition. The Tribunal finds that there is very little to be gained waiting for further medical evidence however, as the Tribunal is precluded from considering compelling reasons or circumstances that arose or occurred after the date of application. As stated previously, the Tribunal may have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of application. In the context of a time of application criterion such as whether there are compelling reasons for not applying Schedule 3 criteria, the Tribunal would only apply these principles if the events or circumstances relied upon gave further weight to a compelling circumstance that was already in existence at the time of application. On the evidence available, the Tribunal is not satisfied that Ms Nguyen was, at the time of application, experiencing a psychological or physical illness which would warrant the waiver of the Schedule 3 criteria.
48. The Tribunal accepts that Ms Nguyen has been under considerable pressure as a single mother working to support her son and his grandparents. The evidence before the Tribunal indicates that Ms Nguyen has felt less stressed having Mr Pham in the household, particularly in relation to his ability to provide the family with transport. Both parties emphasise the need for Mr Pham to obtain the visa so that he can work and relieve the financial pressure on the family. The Tribunal does not accept, however, that Ms Nguyen’s stated need for Mr Pham to be able to strengthen the family’s financial circumstances is, in itself,

a compelling reason to waive the criteria.”

The Tribunal went on to find the parties overall not to be credible witnesses (paragraph 50 CB165) and concluded, putting the matter shortly and somewhat broadly, that the departure of Mr Pham overseas did not give rise to an outcome that could be described as compelling reasons within the meaning of the Regulations to waive the criteria.

The grounds of the amended application

“1.    The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal asked itself the wrong question, or misunderstood or misapplied the statutory criteria found in clause 820(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994.
Particulars
(a)     The Tribunal incorrectly applied a test for the expression compelling reasons, including it to mean strongly compassionate;
(b)     The Tribunal erred in not confining itself to the natural and ordinary meaning of the word compelling;
(c) The Tribunal erred in having recourse to the meaning given to compelling reasons as described in the Explanatory Statement to the provision;
(d)     In relying on extrinsic material, the Tribunal erred in imposing an impermissible gloss on the expression compelling reasons, over and above that required.”

In both written and oral submissions, the applicant essentially submitted that the early reference in the Tribunal’s decision to the Explanatory Statement showed that it did not apply the correct test.
It was submitted that although the Tribunal referred to authority as to the meaning of ‘compelling’, the Tribunal had never indicated whether it was relying upon the definition in the Explanatory Statement (strong and compassionate) or that contained in the three cases to which the Tribunal referred. It was also submitted that the reference to the Explanatory Statement was wholly inappropriate in any event, given that the text of the legislation was not unclear.
It was further submitted that the Regulations clearly showed that the phrases ‘compelling’ and ‘strongly compassionate’, did not have the same meanings as was exemplified by their use in a disjunctive way in various circumstances in the Regulations themselves.
The first respondent’s submissions both orally and in writing submitted, essentially, that when construed properly the Tribunal did not fall into the errors asserted. Primarily, it was submitted that the reference to the Explanatory Statement was simply giving an example.
I accept that in circumstances such as these it is a matter of looking at the Tribunal’s decision fairly and as a whole to see if the Tribunal applied the correct test. It is, perhaps, unfortunate that there was reference to the Explanatory Statement, given that there is authority of the Federal Court as to what is meant by ‘compelling reasons’. Nonetheless, when looked at as a whole, in my view, it is clear the Tribunal did not equate the phrase ‘compelling’ with ‘strong and compassionate’. Further – although it is a matter perhaps of no moment - I also accept that in some circumstances ‘strong and compassionate reasons’ might constitute ‘compelling circumstances’.
In the ultimate, the Tribunal expressly noted authority as to the meaning of ‘compelling’. The Tribunal assessed each of the individual components asserted by the applicant as giving rise to compelling circumstances. At paragraphs 53-54 (CB165) the Tribunal concluded:
“53. Having considered all the issues raised above, the Tribunal is not satisfied that these matters separately and cumulatively are compelling reasons to not apply the Schedule 3 criteria.
The Tribunal accepts that the parties will understandably
be unhappy about being apart while Mr Pham applies for the visa offshore, however the Tribunal does not consider that the sponsor or her son will suffer significant psychological and material hardship if Mr Pham departs the country to apply for the visa.
54. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria.”
Looking at the reasons as a whole, while I accept the applicant’s submission that if the Tribunal had applied the test indicated by the Explanatory Statement it would have fallen into jurisdictional error,

I think a fair reading of it suggests that that is not what occurred. Accordingly, this ground is not made out.

Ground 2

“2.    The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal asked itself the wrong question, or misunderstood or misapplied the statutory criteria found in clause 820(2)(d)(ii) of Schedule 2 of the Migration Regulations 1994.
Particulars
(a)     The Tribunal had before it evidence that
the applicant’s spouse was, as a result of stress following
the Tribunal hearing, effectively catatonic;
(b)     The Tribunal also had before it evidence that a similar situation had arisen some six months before the date of the visa application;
(c) The applicant’s migration agent sought an extension
of time in which to obtain a report from a specialist as to the wife’s condition;
(d)     The Tribunal declined the applicant’s request on the basis that “there would be very little gained waiting for further medical evidence” because the Tribunal was precluded from taking it into account;
(e) The Tribunal erred in concluding that it was estopped from considering the report on the basis that it could only do so if it gave further weight to a compelling reason which already existed as at the time of application.”

The gravamen of the submissions made about this matter is set out in paragraph 27 of the applicant’s written submissions as follows.
“The Tribunal misapplied this test in two ways. First,
by requiring the compelling reason to already exist. If it existed, there would be no need to inquire further. Subclause 820(2)(d)(ii) would be satisfied. To require a compelling reason to already exist gives Bretag no work to do. It is submitted that the proposed medical report was capable of providing a logical connection between the sponsor’s prior psychological difficulties (said to have been diagnosed in August 2012) and those occurring around the time of the Tribunal hearing
((7 March 2014), from which it could be inferred that such facts existed at the time of application (8 March 2013)). If that were the case, it would have been open to conclude from those facts that there was a compelling reason at the time of application.
In refusing to grant an extension of time, the Tribunal foreclosed this opportunity.”
Both parties made relatively extensive submissions about the observations of Re Barbara June Bretag v Immigration Review Tribunal and Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 582; in which O’Loughlin J said at [12]:
“It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with a relationship between

Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes

of testing the claimed relationship between the applicant and

Mr Bretag as at that date and as at the date of application for the PEPAE – 7 February 1990. But the evidence of the subsequent history is only relevant so long as it “tends logically to show the existence or non-existence of facts relevant to the issue to be determined”.”
The difficulty I have with the applicant’s submissions is that the Tribunal was never requested to take the medical report as proving the matter suggested in the written submissions filed. The medical evidence was clearly put forward on the footing that it would explain the circumstances in which the applicant’s spouse, Ms Nguyen, gave confused and confusing evidence to the Tribunal. No submission was ever articulated or even hinted at that because there had been a medical condition in 2012, which was repeated in 2014, it followed that there was such condition at the time of application in 2013. In my view, the Tribunal cannot be said to have fallen into error in failing to consider a claim simply not articulated with sufficient clarity to require determination.
Furthermore, the Tribunal itself articulated the test set out by O’Loughlin J and was clearly cognisant of it. This gave the Tribunal

a discretion to admit further evidence, which it declined to exercise.
The reality is that the medical evidence before the Tribunal at the time of the hearing went so far as to support an assertion, as the Tribunal indeed found at paragraph 47, that Ms Nguyen had a history of experiencing significant stress reactions to negative events.
The filing of the application in 2013 was not, on any reasonable view of the matter, a negative event for her, rather a positive one.
Even if the Tribunal did fall into error in unreasonably restricting its approach to the possible evidence of Ms Nguyen’s condition in 2014, the fact is that this did not go to a claim articulated on behalf of either her or the applicant, and, in my view, it follows that the Tribunal did not fall into jurisdictional error in failing to allow an extension of time so as to receive it.

Conclusion

In these circumstances, the applicant’s grounds of application not being made out, it follows that the application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 11 September 2015