PHANPROM v Minister for Immigration - [2006] FMCA 1040

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHANPROM v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1040

MIGRATION – Migration Review Tribunal - student visa – whether visa application invalid – failure of primary visa holder to disclose applicant as de facto partner on visa application.

Migration Act 1958, ss.31, 31(1), 45, 46(2), 46(4)(a), 47, 359A

Public Service Association of South Australia v Federated Clerks Union of Australia (South Australian Branch) & Anor (1991) 102 ALR 161
Hockey v Yelland & Ors (1984) 56 ALR 215
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Applicant:

PULITA PHANPROM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1299 of 2005

Judgment of:

McInnis FM

Hearing date:

1 March 2006

Delivered at:

Melbourne

Delivered on:

27 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr M.W. Gerkens

Solicitors for the Applicant:

FCG Legal Pty Ltd

Counsel for the Respondents:

Ms G. Costello

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1299 of 2005

PULITA PHANPROM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an amended application filed 16 January 2006, the Applicant seeks judicial review of a decision dated 20 September 2005 whereby the Migration Review Tribunal (the Tribunal) set aside a decision of a delegate and substituted a decision that a visa application of the Applicant was invalid.
The application before the Tribunal arose from an application by her for a student (temporary) (class TU) subclass 573 visa on 10 December 2004. The application for the student visa was made on the basis of the Applicant's de facto relationship with Mr Nan Li (Mr Li), a national of the People's Republic of China who held a student visa. The delegate had refused to grant a visa to the Applicant in a decision dated 19 January 2005.

Background

The chronology of events is not disputed. The Applicant entered Australia on 3 August 2003 on a subclass 570 visa which had been granted on 28 July 2003. In September 2003, the Applicant commenced a de facto relationship with Mr Nan Li (Mr Li). On 4 September 2003, the Applicant was granted a second subclass 570 visa permitting her to continue her English studies at Holmesglen TAFE.
The Applicant returned to Thailand on 8 February 2004. In Thailand she applied for a subclass 570 visa which was granted on 28 April 2004 and valid until 12 December 2004. The Applicant re-entered Australia on 5 May 2004. The Applicant did not disclose the relationship with Mr Li in her application for the subclass 570 visa.
Mr Li entered Australia on 16 July 2003, having been granted a subclass 573 visa on 13 June 2003. He departed Australia in February 2004 and re-entered on 9 March 2004 and was granted a subclass 573 visa on 29 March 2004 which was valid until 20 December 2004. At the time of the Tribunal decision, Mr Li was studying a Bachelor of Commerce course at Deakin University. When Mr Li made his application for a further 573 visa on 29 March 2004, he completed a Form 157P, "Application for a student visa with permission to work," but did not cite the Applicant as being a member of his family unit.
A delegate of the First Respondent, by a decision dated 19 January 2005, refused to grant the visa and on 16 February 2005 the Applicant applied to the Tribunal for review of the delegate's decision.
The Tribunal, by letter dated 23 January 2005, pursuant to s.359A of the Migration Act 1958 (Cth) (the Migration Act), invited the Applicant to comment specifically on the fact that Mr Li had not included the Applicant in his application for the March 2004 visa (Court Book pages 164-165). The Tribunal conducted a hearing on 15 June 2005. The Applicant, Mr Li and friends of the couple, Ms Yang Lei and Mr Varin Khali Kaew, gave oral evidence. The Applicant was represented by a migration agent.

The decision

The Tribunal set out in summary form the evidence and claims made by the Applicant. It noted that the Applicant claimed that she and Mr Li commenced living together in September 2003, having first met at what is described as a "home-stay" residence. A relationship developed when the Applicant moved out to share a house in Chadstone where the parties allegedly commenced to cohabit as spouses "about two years ago".
The Tribunal recites further details concerning the relationship between the Applicant and Mr Li, including shared activities and the opening of a joint back account and other financial details. The Tribunal noted the Applicant visited Thailand after her course had ended in 2004 for three months though remained in contact with Mr Li by telephone, SMS and correspondence. Financial assistance was provided by Mr Li to the Applicant. The Tribunal noted that the Applicant claimed that in part the reason for travelling to Thailand was to see a "migraine specialist". Reference was made to facilities for medical treatment in Australia, though the Applicant referred to seeking specialist treatment from a doctor in Thailand who she claimed specialised "in migraine".
The Tribunal refers to asking the Applicant why she has not told the Department of the relationship with Mr Li in her application for a student visa in 2004, to which the Applicant responded that she was “unaware of the legal status of de facto relationships, she considered herself as sort of engaged, and did know you could be spouses without having been married.” (Court Book page 180)
The Tribunal then recited the plans of the Applicant to marry Mr Li and the support received from his family.
Significantly, the Tribunal notes that after the hearing it obtained a copy of Mr Li's application for his subclass 573 visa, referred to earlier in this judgment, where the Applicant was not declared as a member of Mr Li's family unit.
The Tribunal referred to relevant extracts from the Migration Act and Regulations which shall be referred to in this judgment. In referring to the relevant provisions, the Tribunal then referred to the delegate's decision as follows:
28. It appears that the delegate’s decision incorrectly identified the date of the grant of Mr Li’s current subclass 573 visa as 13 June 2003. This is a very important error in this case, as this was in fact the date of the grant of his previous visa, which preceded the relationship. Mr Li was required to inform the Department of the change to his family unit pursuant to Subregulation 2.07AF(4) at that time, which he did not do. His current subclass 573 visa was in fact granted on 29 April 2004, but the application for the visa did not disclose the visa applicant as a member of his family unit.”
The Tribunal then went on to note that the Applicant's evidence, corroborated by Mr Li and witnesses, confirmed that the relationship existed "prior to Mr Li's application for his current subclass 573 visa which was granted on 29 April 2004". After dealing with submissions made on behalf of the Applicant by the then migration agent, the Tribunal ultimately concluded as follows:
37.    The Tribunal notes that Form 157P requires the details of family unit members to be included in that application, and it is unfortunate that the form did not prompt Mr Li to include details of the visa applicant. However, on the Tribunal’s interpretation of Item 1222(3)(e) of Schedule 1 to the Regulations it appears that the visa applicant’s visa application is invalid. The visa applicant and Mr Li have given evidence as to why they did not disclose the relationship, and while the omission may have been due to a misunderstanding, the Tribunal regards the obligation to provide details of family unit members as absolute.
38.    Given the findings made above, the Tribunal has no alternative but to set aside the delegate’s decision and substitute a decision that the visa application is invalid.
DECISION
39.    The Tribunal sets aside the delegate’s decision and substitutes a decision that the visa application is invalid.”
It will be noted that the Tribunal has refused the grant of the visa but did so after setting aside the delegate's decision and substituting its own decision that the visa application is invalid.

Relevant legislation

Migration Act

Section 31 of the Migration Act provides that there are prescribed classes of visas and the regulations may prescribe criteria for a visa of a specified class.
Subsection 46(2) of the Migration Act provides that:
“(2)Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.”
Subsection 46(4)(a) of the Migration Act provides:
“(4)Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
…”

Regulations

Regulation 2.01 states that for the purpose of s.31 of the Migration Act, the prescribed visas are "such classes (other than those created by the Act) as are set out in the respective items in Schedule 1" of the Regulations.
It is common ground that the relevant class of visa in the present application is prescribed in item 1222 of Schedule 1 to the Regulations; namely, a student (temporary) (class TU) visa.
Regulation 2.07 of the regulations relevantly states:
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.”
Reference has been made to a "note" at the beginning of Schedule 1 to the Regulations which provides:
“This schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out this schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47.”
Item 1222(3)(e) of Schedule 1 of the Regulations, which appears under the heading "1222. Student (temporary) (class TU)," provides:
“A person claiming to be a member of the family unit of the primary applicant must be included by the primary applicant in the application or the information under subregulation 2.07AF (3) or (4), except if the applicant became such a member of the family unit after the decision to grant the Student (Temporary) (Class TU) visa to the primary applicant was made.” (Emphasis added)

The applicant's submissions

The Applicant submitted that in this instance the Tribunal found there was no jurisdiction to entertain the application on the basis of Item 1222(3)(e) of Schedule 1 of the Regulations. It was noted the Tribunal interpreted the item to mean that there are only two ways of complying with the requirements and if there is a failure to comply, the Applicant is invalid. The two methods for compliance outlined by the Tribunal were for the principal Applicant, Mr Li, either to have included the Applicant in his principal application or information under Regulation 2.07AF(3) or (4).
It was submitted that if the legislature intended to provide that a person claiming to be a member of the family unit of the primary Applicant needed to be included in applications or information other than that specified under subregulation 2.07AF(3) or (4), then those applications or information should have been included with those that are specified under the relevant subregulations. It was argued that because Mr Li's initial visa application was made on Form 157P and that that form is not an application or information specified under subregulation 2.07AF(3) or (4), then the Applicant's visa application was valid and she did comply with Item 1222(3)(e) of Schedule 1 of the Regulations.
The Applicant submitted that the Tribunal had erred in its interpretation of the legislation when it stated in its decision the following:
“31. The Migration Agent has submitted that item 1222 does not apply as the application was not made on a 157A, 157A (Internet) or 157G form, and that Item 1222 solely applies to the forms specifically mentioned in subregulation 2.07AF(3).
32. The Tribunal does not accept that this interpretation of the legislation is correct. To limit the requirement of disclosure solely to applications under subregulations 2/07AF(3) or (4) would mean that there are only 4 forms on which an applicant had to disclose members of the family unit and that there was no requirement to disclose family members on an application made on other forms.
33. The Tribunal is of the view that disclosure of a member of a family unit as required under Item 1222(3)(e) applies to all student visa applications. The Tribunal interprets Item 1222 as requiring the disclosure of a member of a family unit in the application or the information under subregulation 2.07AF(3) or (4). This indicates that all student visa applicants must (as part of Schedule 1 criteria) include all family unit members in their application OR all student visa applicants must include all family unit members in the information under subregulation 2.07AF(3) or (4). Sub regulation 2.07AF(3) does not apply (as per the agent’s submission) as Mr Li’s application was on a Form 157P and sub regulation 2.07AF(4) does not apply to the facts in this case.”
Apart from referring to the extract of the Tribunal's decision set out above, reference was also made to paragraph 37 or the Tribunal's decision as follows:
“37. The Tribunal notes that Form 157P requires the details of family unit members to be included in that application, and it is unfortunate that the form did not prompt Mr Li to include details of the visa applicant. However, on the Tribunal’s interpretation of Item 1222(3)(e) of Schedule 1 to the Regulations it appears that the visa applicant’s visa application is invalid. The visa applicant and Mr Li have given evidence as to why they did not disclose the relationship, and while the omission may have been due to a misunderstanding, the Tribunal regards the obligation to provide details of family unit members as absolute.”
It was submitted that the fact that the Applicant's details were not included in Mr Li's application was an irrelevant consideration and therefore a jurisdictional error, particularly in light of the Tribunal's conclusion on the basis of its finding that the Applicant thereby failed to comply with Item 1222(3)(e) of Schedule 1 of the Regulations. It was argued that that item has no application to the Applicant's circumstances and the Tribunal had committed a jurisdictional error when considering the issue as it is irrelevant to the question of whether or not the Applicant has or has not complied with Schedule 1, Item 1222(3)(e) of the Regulations.
As I understood the submissions of the Applicant, it was submitted that the interpretation of the relevant item by the Tribunal was incorrect as it should not be interpreted in isolation and it was submitted that it is clear from Item 1222(1) that subclass 573 applications can be made on a number of forms, including 157A or 157E or the Internet version of those forms or 157P, which is the form used in the present case, or the Internet version of that form. It was submitted that Mr Li was entitled to use Form 157P and did so pursuant to Regulation 1222(1). As indicated earlier, Form 157P, it was submitted, is not an application or information specified under Regulation 2.07AF(3) or (4).
It was submitted that Regulation 2.07AF does not refer in any way to Applicants for a subclass 573 visa who have used Form 157P for the purpose of making their application.
It was further submitted that if principal Applicants, no matter what form number is used, are required to include family members in the principal application, then it was submitted that there would not be any need for particular form numbers to be specifically referred to in Regulation 2.07AF(3) which, it is noted, refers to Forms 157A, 157A (Internet), 157E or 157G. Reference was made to Item 1222(3)(e) which contains the words, "the information under subregulation 2.07AF(3) or (4)".
It was argued this is reflected in Regulation 2.07AF itself where subregulation (3) refers to applications made on Forms 157A, 157A (Internet) or 157E or 157G. It was argued that the reference to an application in Item 1222(3)(e) is a reference to an application made on one of the specified forms in Regulation 2.07AF. The argument, it was submitted, is strengthened by reference to Regulation 2.07AF(4) which refers to information including "the relationship between the person and the primary Applicant". Hence, it was submitted, there is a logical extension of Item 1222(3)(e) to interpret the words in that provision of "the application or the information under subregulation 2.07AF(3) or (4)" as being an application in terms of Regulation 2.07AF(3) and information in terms of Regulation 2.07AF(4).
Reliance was placed upon the High Court decision in Public Service Association of South Australia v Federated Clerks Union of Australia (South Australian Branch) & Anor (1991) 102 ALR 161 at 181 where Dawson and Gaudron JJ relevantly state:
“Privative clauses such as s 95 of the Act are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. See, for example, Clancy v Butchers’ Shop Employes Union (1904) 1 CLR 181, per O’Connor J at 204; and Hockey v Yelland (1984) 56 ALR 215; 157 CLR 124, per Gibbs CJ at 130, and per Wilson J at 142. See also Anisminic, per Lord Reid at 170. Thus, a clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relied by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction.”
It was submitted that there are strong analogies between the issues raised before the High Court in that case and the present case and where there is an alternate logical construction of the words used, in the circumstances that should be the one employed having regard to the fact that the other construction involves a rejection of jurisdiction.
Reference was also made to the High Court decision of Hockey v Yelland & Ors (1984) 56 ALR 215 and the judgment of Gibbs CJ at 219 where His Honour stated:
“It was correctly conceded that the provisions of s 14c(11) do not oust the jurisdiction of the Supreme Court to issue writs of certiorari. It is a well recognized principle that the subject’s right of recourse to the courts is not to be taken away except by clear words. If the sub-section had provided that the determination should not be ‘quashed pr called in question’ it would have been effective to oust certiorari for errors of law not going to jurisdiction (South East Asia Fire Bricks v Non-Metallic Products [1981] AC 363; Houssein v Department of Industrial Relations and Technology (1982) 38 ALR 577; 56 ALJR 217), but although that formula is by no means unfamiliar to the Queensland legislature, it is not used in s 14c(11). …”
It was submitted in the present case, as in the decision of the High Court in Hockey v Yelland, there are not clear enough words to take away the Applicant's right to recourse. It was further submitted that the legislation is paramount and that any reference sought to be made by the Second Respondent to Procedures Advice Manuals (PAM3) should be overridden by the legislation.

First respondent's submissions

The First Respondent submitted the Applicant's submissions should fail. It was submitted -
that the meaning of item 1222(3)(e) is clear and unambiguous and required that Mr Li must have included the Applicant in the March 2004 visa application or else the Applicant's visa application would be invalid.
It was further submitted that the Applicant's suggested interpretation of Item 1222(3)(e) "narrows the meaning of 'application' to 'application to which 2.07AF(3) or (4) applies". It was submitted that that approach -
reads into item 1222(3)(e) a limitation not present in the words contained in the item and is inconsistent with the purpose of the act and regulations.
The Tribunal's conclusion concerning the effect of Item 1222(3)(e), it was submitted, is "consistent with the language of the provision".
The First Respondent submitted that the Tribunal's interpretation is bolstered by a reference to the intention of this part of the Regulations, and reference was made by the First Respondent, as indeed by the Tribunal (Court Book pages 182-183), to PAM3 which states in relation to Item 1222(3)(e) that:
“All family unit members must be declared in the student's application regardless of whether they intend to accompany the student to Australia. Family members who are not declared cannot subsequently join the student, unless they provide evidence (eg marriage or birth certificates) to establish that they became a family member after the student's visa was granted.”
The First Respondent also referred to the website of the First Respondent's Department which makes reference to the requirement that family units must be declared on a student visa application in similar terms to PAM3.
It was submitted the Tribunal's interpretation of the relevant provision is consistent with the language and purpose of the Act and Regulations (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 per McHugh, Gummow, Kirby and Hayne JJ).
The decision of the Tribunal was reasonably open to it according to the First Respondent's submission and was free of jurisdictional error. The First Respondent further submitted that there is nothing in Item 1222(3)(e) to limit this application in the manner advanced for and on behalf of the Applicant or to restrict it so that it applied only to the forms used, which have been referred to in subregulation 2.07AF(3) or (4). The item is headed "Student (temporary) (class TU) visa" and it is not limited to a subset of type of application where the only forms used are those set out in Regulation 2.07AF(3) or (4). It was submitted that Item 1222(3)(e) relates to all visa applications that are visa applications for student (temporary) (class TU) visas. Some support for that argument was advanced by reference to the exception in that item which provides -
except if the Applicant became such a member of the family unit after the decision to grant the student (temporary) (class TU) visa to the primary Applicant was made.
The use of that subclause, it was submitted, demonstrates the item relates to all visa applications for student (temporary) (class TU) visas. It was submitted that the Tribunal's interpretation was correct in that it accurately interpreted the relevant provisions and held the application was invalid. That finding was within the Tribunal's jurisdiction.
It was noted that s.31(1) of the Migration Act refers to prescribed classes of visas and s.31(3) enables Regulations to prescribe criteria for a visa or a visa of a specified class. Section 45 provides that:
Subject to this act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.
Reference was made to s.46 of the Migration Act, which is entitled "Valid visa application," which relevantly provides in subs.46(2) the following:
“(2)Subject to subsection (2A), an application for a visa is valid if:
(a)it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b)under the regulations, the application is taken to have been validly made.”
The First Respondent referred the court to s.47 of the Migration Act which provides:
“(1)The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
Relying upon s.47 of the Migration Act, the First Respondent submitted that the Minister is not required to consider visas which are not validly made. Counsel then referred to Regulation 2.03 of the Regulations, which provides for a primary criteria set out in the relevant part of Schedule 2 for the grant of a particular class visa, and subregulation 2.07, which relevantly provides the following:
“(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
(b)the visa application charge (if any) payable in relation to an application;
(c)other matters relating to the application.”
The First Respondent referred to the "note" at the beginning of Schedule 1 to the Regulations which states:
This schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out this schedule is not valid and will not be considered: see the act, ss 45, 46 and 47.
It was submitted the note is consistent with the submissions being made by the First Respondent.
The First Respondent submitted that subregulation 2.07AF is irrelevant in this application. The court should note that the heading above that subregulation states clearly, "Certain applications for student (temporary) (class TU) visas." It was submitted that the subregulation is about "certain applications" namely, a subset of class TU student temporary visa applications it is not about all of the applications.
It was submitted that there is nothing in subregulation 2.07AF "which indicates that it applies to applications made on Form 157P". It was further submitted that subregulation 2.07AF(3) and (4) are irrelevant as they do not apply to the Applicant's application or her spouse's application because those forms were not used. It is also irrelevant according to the First Respondent's submissions because this is not a situation where the spouse relationship started after the Applicants had been completed.
During the course of submissions, counsel for the First Respondent rightly conceded that the Applicant may be prejudiced if her application is held to be invalid simply on the basis that Mr Li has failed to disclose the relationship with the Applicant on his own application. It was submitted that although this may appear harsh, it "makes sense that people who apply as spouses must rely on matters in the primary application". It is not a matter for the court to pursue the matter any further according to the First Respondent's submissions.
Ultimately, the court, in considering the Tribunal's decision, needs to consider whether the words "application or information" refer to two separate matters or whether the words are conflated so that a finding is made that what they mean are that the person only needs to be included in the student visa application if the application is made on the forms referred to in subregulation 2.07AF(3) or (4). It was submitted by the second respondent that it is not appropriate to ignore the words "the application or" and to conflate the provisions would be to effectively rewrite the provision, which is impermissible.

Reasoning

In my view, the proper reading of the relevant regulations leads me to a conclusion that there is no basis upon which the words used can be conflated. The Tribunal's interpretation of the relevant provisions appears to be correct. It is hardly surprising that the visa Applicant in this application should depend upon her de facto partner accurately completing the appropriate visa application on Form 157P and complying with the requirement that included in that application must be a reference to all family unit members.
I do not accept the submission of the Applicant that Item 1222(3)(e) only applies where the relevant student visa application was submitted on Forms 157A, 157E or 157G. A proper interpretation of Item 1222(3)(e) does not permit conflation of the words "the Applicant or the information". To do so would be to unduly provide a narrow interpretation of the meaning of "application" by confining it to applications to which regulation 2.07AF(3) or (4) apply. I accept, as submitted by the First Respondent, that that interpretation is inconsistent with the purpose of the Act and the Regulations.
The intent and purpose of the regulation under consideration that is, Item 1222(3)(e) is usefully and appropriately, in my view, found in PAM3, referred to earlier in this judgment, in the submissions of the First Respondent. It is not necessary to use that explanation, however, to interpret the meaning of the relevant item as its meaning, in my view, does require clarification or assistance from PAM3. The meaning is clear, and I am satisfied that it is inappropriate and a misinterpretation to conflate the words "application or the information under subregulation 2.07AF(3) or (4)", as the meaning of "the application" should apply to applications made for the relevant visa. It should not be limited to the forms used in one subregulation; namely, subregulation 2.07AF(3) or (4). If that had been the intent and purpose of Item 1222(3)(e), then clearly the draftsmen would have no need to refer to the words "in the application" and could have simply referred specifically to those forms used pursuant to subregulation 2.07AF(3) or (4).
I accept, as submitted by the First Respondent, the Tribunal's interpretation of the relevant provision is consistent with the language and purpose of the Act and Regulations and that accordingly the application should be dismissed. I am satisfied there is no jurisdictional error and the decision of the Tribunal was open to it and free of jurisdictional error.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 27 July 2006