Singh v Minister for Immigration
[2006] FMCA 1901
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1901 |
| MIGRATION – Spouse visa – de facto relationship – whether the applicant spouse of nominator at the time of application to Tribunal – regulation 1.15A – applicant failed to disclose he was previously married – the applicant and the nominator did not have an exclusive relationship – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.359, 359A Migration Regulation 1994, Regulations, 1.15A, 1.15A(2), 1.15A(3). |
| Bretag v Immigration Review Tribunal (Federal Court, 1999, unreported) Reddy v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 192 |
| Applicant: | GURJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1232 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 November 2006 |
| Date of Last Submission: | 1 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. T. Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondents: | Mr. D. Jordan |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Migration Review Tribunal is joined as the second respondent in these proceedings.
The reference to the name of the first respondent is amended to read “Minister for Immigration & Multicultural Affairs”.
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1232 of 2005
| GURJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 13 May 2005 on behalf of Mr. Gurjeet Singh (“the applicant”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of a delegate of the respondent Minister made on 6 June 2003 to refuse a Partner (Temporary)(Class UK) visa, and a Partner (Residence)(Class BS) visa to the applicant.
The applicant lodged the application to stay in Australia on the grounds of his claimed (“de facto”) relationship with an Australian citizen (referred to in the visa application (see CB 15) and hereafter as “the nominator”). The applicant's application to the first respondent's Department, with two attached statutory declarations (declared by the applicant and the nominator), are reproduced at Court Book (“CB”) 1 to CB 28. The applicant’s application for review to the Tribunal is reproduced at CB 191 to CB 196, with attachments at CB 197 to CB 209, and CB 212 to CB 213.
The applicant gave evidence before the Tribunal on 5 March 2004 (as did the nominator and a witness (CB 270.2)).
The Tribunal wrote to the applicant on 18 March 2004 (CB 224 to CB 226) seeking comments on certain information available to it (pursuant to s.359A of the Migration Act 1958 (“the Act”)) and giving him the opportunity to provide further information (pursuant to s.359 on the issue of his prior marriage, separation and the “exclusive” nature of his “current de facto relationship” – CB 225.7). The applicant’s response and additional documents are at CB 228 to CB 237.
The Tribunal wrote again to the applicant on 21 January 2005 pursuant to s.359A (CB 238 to CB 240), with attachments (CB 241 to CB 259). The letter put certain information to the applicant for comment, with the relevance of such information said to be that:
“It may also lead the Tribunal to conclude that you are not a truthful witness.” (CB 239.7)
The applicant’s response is at CB 259 to CB 261.
The Tribunal set out the evidence before it in its decision record (at CB 269.5 to CB 274.3).
The Tribunal’s “Findings and Reasons” are reproduced at CB 274.5 to CB 276.1. The Tribunal relevantly:
1)Found that at the time of the visa application (the relevant time for the purposes of its review) the Partner (Temporary)(Class UK) visa contained the following subclasses:
Subclass 820 (Spouse) and Subclass 826 (Interdependency)
The Tribunal noted that the only subclass in respect of which any claims had been advanced was the subclass 820 visa (CB 274.3), and there was “no evidence” to suggest that the review applicant met the criteria for a subclass 826 visa (CB 274.3).
2)Found that the nominator had not been previously involved in a sponsorship, or nomination (CB 274.4).
3)Set out what it said was the test that must be applied in determining whether the applicant was the “spouse” of the nominator at the time of the application, and whether he continued to be the “spouse” of the nominator at the time of the decision (CB 274.5).
4)Noted that the regulation relevant to its consideration was regulation 1.15A of the Migration Regulation 1994 (“the Regulations”).
5)Having regard to the considerations for a spousal relationship as set out in regulation 1.15A, found that the evidence before it was that the main source of income for the couple was the nominator’s disability support pension, and noted a Westpac account “dated 14 December 2001” (CB 274.8).
6)Found that there was no documentary evidence to support the claims that the “nominator had been living in a de facto relationship since 5 October 2000”, despite limited documentary evidence from Centrelink, to the effect that they had been advised that the nominator had been living in a de facto relationship since 5 October 2000.
7)Despite this, accepted, given that the applicant and the nominator had supplied “consistent evidence” that had been corroborated by the nominator’s sister, and another witness before the Tribunal, that the parties did live together from 5 October 2000 onwards (CB 275.1).
8)Further accepted that the parties “do hold themselves out as a couple” (CB 275.2).
9)Noted evidence “on the file” that suggested that the review applicant had previously entered into a marriage with a “Teresa Anne Smedley” and recorded that when this was put to the applicant he denied knowledge of the marriage having taken place (CB 275.3).
10)In this regard, obtained evidence from a “senior forensic document examiner” of the “National Document Examination Unit” of the first respondent’s Department in Canberra to ascertain whether the applicant was the “same man” corresponding to the file containing the evidence of the marriage to Ms. Smedley (CB 275.4).
11)Found on the basis of the report made available to it, that the applicant was the same person as mentioned in that file, and further found that the applicant was, and continued to be, married to “Teresa Anne Smedley” (CB 275.5).
12)Found this information to be inconsistent with the applicant’s earlier statement, in a letter received by the Tribunal on 21 April 2004, in which he stated he was not in Australia in 1995 and was not in a relationship with Ms. Smedley (CB 275.6), and on this basis was not satisfied that the applicant was a “truthful witness” and “has deliberately sought to mislead the Tribunal”.
13)Further found that on this basis the relationship with the nominator is not “exclusive”, and on the basis of the nominator’s letter to the Tribunal received on 21 April 2004, that the applicant did not disclose, or discuss, the marriage with the nominator (CB 275.7).
14)Considered that such a detail is “extremely important” and it would not be “unreasonable to assume that if the review applicant did have a commitment to a shared life as a husband and wife with the nominator, he would have told her of his marriage” (CB 275.8).
15)Found that, on this basis, the applicant’s failure to disclose his marriage left the Tribunal “unsatisfied” that the applicant had a commitment to a shared life as husband and wife with the nominator “exclusive to all others” (CB 275.9).
On this basis, the Tribunal found that the applicant was not the spouse of the nominator within the meaning of regulation 1.15A and that as such, the applicant did not satisfy clause 820.211 such as to be granted a subclass 820 visa. The Tribunal further found that the applicant did not meet the criteria for a Class BS visa, as the applicant was required to hold a subclass 820 visa to be eligible for this visa.
At the hearing before the Court Mr. Jordan appeared for the respondent, and Mr. Silva appeared for the applicant. Mr. Silva was given leave to file a further amended application which states:
“Grounds
(1)The Tribunal made jurisdictional error as it (a) applied the wrong test in deciding whether the Applicant is in exclusive relationship with the nominator, and/or (b) misconceived the meaning of the phrase “to the exclusion of others…” by giving to it and unnecessarily a restricted meaning.
Particulars
In the case of a defacto relationship where one party has been previously married to another person the test of exclusive relationship is as follows:
It has two steps
(i)Is that person still married to the previous partner?
(ii)If still married to that person is he/she permanently separated from that person?
However in para 41 of its decision on page CB 275.60 the Tribunal stated:
‘The Tribunal also finds that because the review applicant is still married to Ms. Smedley, it is not satisfied that his relationship with the nominate is exclusive.’ (emphasis added)
The Tribunal's decision indicates that it decided this issue solely on the basis that the Applicant was still married to his former partner.
(2)The Tribunal made jurisdictional error as it imposed a general criterion of candour or honesty about the disclosure of the past marriage as being itself sufficient to determine the outcome in relation to ‘whether applicant did have a commitment to shared life as husband and wife with the nominate’. Thus the Tribunal failed to consider the relationship is a whole in determining that outcome.
Particulars
In para 41 the Tribunal held that:
‘The Tribunal also finds that based on the nominator’s letter to the Tribunal received by the Tribunal on 12 April 2004, the review applicant has not disclosed or discussed his marriage with the nominator. The Tribunal considers such a detail is extremely important and it would not be unreasonable to assume that if the review applicant did have a commitment to a shared life as husband and wife with the nominator, he would have told her of his marriage. The review applicant's failure to disclose his marriage to the nominator leaves the Tribunal unsatisfied that the review applicant has a commitment to a shared life as husband and wife with the nominator to the exclusion of all others.’ (emphasis added)
From the language the Tribunal used it is clear that the Tribunal decide the issue solely based on the non disclosure by the Applicant.”
I note that at the commencement of the hearing Mr. Silva also sought leave to provide an affidavit attaching a transcript of the hearing before the Tribunal. As it did not appear that the grounds put forward in the further amended application would seek to rely upon any transcript of the hearing before the Tribunal I asked Mr. Silva as to its relevance. He confirmed that the applicant would not be referring to the transcript, but I understood him to be seeking to put it before the Court now because “always these cases go to appeal” and that “its always difficult to get evidence… admitted later”. On the basis that the applicant was not seeking to rely on the transcript before this Court and was unable to provide the relevance of the transcript to the case that he was seeking to have tried in this Court, I did not admit the affidavit and the attached transcript into evidence.
The Tribunal's decision (as the Tribunal itself understood – CB 269.3) centred around whether the applicant was a spouse of the nominator, and the applicant's complaints now centre around what is said to be the Tribunal's “misunderstanding” and “misapplication” of the relevant test for determining whether such a spousal relationship existed.
The relevant test is derived from regulation 1.15A. As at the relevant time this was:
“REG 1.15A Spouse
(1) For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).”
(1A) Persons are in a married relationship if:
(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(b)the Minister is satisfied that:
(i) they have a mutual commitment to shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A)live together; or
(B)do not live separately and apart on a permanent basis.
(2) Persons are in a de facto relationship if:
(a)they:
(i) are of opposite sexes; and
(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and
(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961 ; and
(b)they are of full age, that is:
(i) if either of the persons is domiciled in Australia -- both of them have turned 18; or
(ii) if neither of the persons is domiciled in Australia -- both of them have turned 16; and
(c) the Minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A)live together; or
(B)do not live separately and apart on a permanent basis; and
(d)subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A) been living together; or
(B)not been living separately and apart on a permanent basis; and
(e) where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa - the Minister is satisfied (unless the applicant can establish compelling and compassionate circumstances for the grant of the visa) that, for the period of 12 months immediately preceding 13 June 1997:
(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them was genuine and continuing; and
(iii) they had:
(A)been living together; or
(B) not been living separately and apart on a permanent basis.
(2A) Paragraph 2 (d) does not apply if:
(a) the applicant is applying as:
(i) the spouse of a person who:
(A)is, or was, the holder of a permanent humanitarian visa; and
(B) before that permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2) (c) (i), (ii) and (iii) and of which Immigration was informed before the visa was granted; or
(ii) a member of the family unit of a person who is an applicant for a permanent humanitarian visa; or
(b)the applicant can establish compelling and compassionate circumstances for the grant of the visa.
Note permanent humanitarian visa is defined in regulation 1.03.
(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:
(ab) a Special Eligibility (Residence) (Class AO) visa; or
(ad) a Partner (Migrant) (Class BC) visa; or
(ae) a Partner (Provisional) (Class UF) visa; or
(af) a Partner (Residence) (Class BS) visa; or
(ag) a Partner (Temporary) (Class UK) visa;
the Minister must have regard to all of the circumstances of the relationship, including, in particular:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one party to the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day‑to‑day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for care and support of children, if any; and
(ii) the parties' living arrangements; and
(iii) any sharing of responsibility for housework;
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;
(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities;
(d)the nature of the persons' commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long‑term one.
(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ab), (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).
(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.”
The applicant's first ground of complaint is that the Tribunal applied the wrong test in deciding whether the applicant was in an exclusive relationship with the nominator and that the Tribunal misconceived the meaning of the phrase “the exclusion of others”. Mr. Silva submitted that the issue was that the Tribunal decided that the relationship between the applicant and the nominator was not exclusive and that the Tribunal based this on the fact that the applicant was still married to another person, and that it based it only on this. In this regard, he referred to the Tribunal's decision record at [41]:
“41.The Tribunal also finds that because the review applicant is still married to Ms Smedley, it is not satisfied that his relationship with the nominator is exclusive...” (CB 275.7)
His argument was that the Tribunal found the relationship was not exclusive based only on the fact that it found that he was still married to another person. He submitted that this was the wrong test for it to apply and that the correct test is that as arising from, and set out in, the first respondent’s “Procedures Advice Manual” – the third version (“PAM3”). Mr. Silva provided relevant extracts of this document to the Court. It would appear that this is a document provided to those in the first respondent’s Department who are engaged in decisions on visa applications. I note also the reference to this document in the Tribunal’s decision record (at CB 268.4) although of course the Tribunal and its members are not part of the Minister’s Department (the Tribunal and the appointment of its members is governed by Part 6 of the Act).
In any event, Mr. Silva specifically referred the Court to PAM3 at paragraph 44.3 which deals with the interpretation of spouse and which was referred to by the Tribunal in its decision record. This paragraph is:
“44.3As a reg. 1.15A factor
The effect of regulation 1.15A(1A)(b)(iii) and regulation 1.15A(2)(c)(iii) is that no spouse relationship exists where the parties to the (former) relationship are ‘permanently separated’ ie ‘living separately and apart on a permanent basis’.
This means for example that:
· it is possible for a party to a de facto marital relationship to satisfy regulation 1.15A requirements even though still legally married to another person ie provided they satisfy the decision maker that they are permanently separated from that other person
· if eligibility for a visa depends on an applicant not having a spouse, officers are expected to examine more closely claims that an applicant and the former spouse are permanently and genuinely separated. This is particularly so where parties to a former (de jure or de facto) marital relationship have only recently ceased living together.”
Mr. Silva sought to characterise the relevant test as having two steps, or two issues, that need to be addressed by the Tribunal. The first being as to whether the person was still married to the previous partner, and the second being that if the person was still married to the previous partner, is he or she permanently separated from that person. His complaint was that the Tribunal found that he was married, but did not go on to then consider what he described as the second step, or issue, as to whether the applicant, and in this case Ms. Smedley, were permanently separated. By this failure, said Mr. Silva, the Tribunal could not really decide the issue of “exclusive relationship”.
Mr. Silva also submitted that the Tribunal “made a credibility finding against the applicant” in not believing him when he said that he had not been married before, and that it was “in error” when it did not proceed further. While that finding dealt with the issue of whether he was married it did not deal with the issue of whether he was permanently separated (separated on a permanent basis), a question which he submitted the Tribunal was required to ask, and did not ask. The issue was, in his submission, that even if the Tribunal found as a fact that he was married, it does not mean that he was in an exclusive relationship within the meaning of the Regulations.
The second limb of his argument, as he described it, was that the Tribunal did not understand the meaning of the phrase “to the exclusion of others”. Mr. Silva’s submission was that the Tribunal was required to consider “the whole thing together”. I understood this to mean that it was required to consider all of the relevant circumstances and not just to rely on the finding that the applicant was still married. In his submission, it was “insufficient” for the Tribunal to make a finding as to whether the relationship “was exclusive”. I understood this to be a reference to the matters set out in regulation 1.15(3)(a) to (d).
He also referred the Court to CB 275, and in particular the Tribunal's paragraph 41, where it stated:
“41. The Tribunal also finds that because the review applicant is still married to Ms Smedley, it is not satisfied that his relationship with the nominator is exclusive. The Tribunal also finds that based on the nominator’s letter to the Tribunal received by the Tribunal on 21 April 2004, the review applicant has not disclosed or discussed his marriage with the nominator. The Tribunal considers that such a detail is extremely important and it would not be unreasonable to assume that if the review applicant did have a commitment to a shared life as husband and wife with the nominator, he would have told her of his marriage. The review applicant’s failure to disclose his marriage to the nominator leaves the Tribunal unsatisfied that the review applicant has a commitment to a shared life as husband and wife with the nominator to the exclusion of all others.”
Mr. Silva’s submission was that the use of the word “because” in the Tribunal's relevant finding denotes that the only reason that it was not satisfied that the applicant’s relationship with the nominator was “exclusive” was because it had found that he was still married to
Ms. Smedley. What was required, in his submission, was that at paragraph 41 of its decision record the Tribunal should have also made reference to all the other circumstances to which the Regulations required the relevant decision maker to have regard.Mr. Silva made reference, in his submissions, to Bretag v Immigration Review Tribunal (Federal Court, 1999, unreported) (“Bretag”), and in particular what O’Loughlin J. held at:
“[13] In my opinion the Tribunal erred in law. It correctly identified the test that it had to apply, that is, the “Dhillon test”, but having made that correct decision it erred in law by permitting itself to be influenced inappropriately by events that occurred subsequent to the events subsisting at the time of the application for the PEPAE.
[14] The duty of the Tribunal was to assess the personal circumstances of the applicant and her husband as they existed at the time when the application for the PEPAE was made, that is, as at 7 February 1990 in terms of the “Dhillon test” the dominant question was this:- as at 7 February 1990, can it be said that the parties had a mutual commitment to a shared life as husband and wife to the exclusion of others. It was a misconception of the limited evidence on the subject of Mr. Bretag’s state of mind to draw an inference that his relationship to the applicant was not, on that date, either genuine or continuing. Indeed, I am constrained to say that the Tribunal misconceived the meaning of the phrase “to the exclusions of others…” by giving to it an unnecessarily literal meaning. History and literature are full of examples of long lasting and happy marriages which were formed in a variety of circumstances. Marriage of convenience, marriages of necessity and even some marriages which were preceded by an element of “duress” have withstood the tests of time. The motives of a marriage partner are nonetheless genuine and continuing even though his or her predilections may have led, in different circumstances, to another preferred path (or partner).”
What I understood from Mr. Silva’s submission, and his reliance on this case, was that after the Tribunal, in the case before me, had stated the “correct principle” it allowed itself to be influenced “by the single issue of the applicant still being married to his former partner”. Further, that the Tribunal misconstrued the words “to the exclusion of others” and gave it “too strict an interpretation”. That is, it did not take into account the range of factors that it was required to take into account, but relied solely on the one finding that the applicant was married.
The applicant's second ground of complaint is that the Tribunal was in error in imposing a general criterion of “candour or honesty” about the disclosure of the past marriage as being itself sufficient to determine the outcome in relation to the question as to whether the applicant did have a commitment to a shared life as husband and wife with the nominator. Mr. Silva submitted that the Tribunal, as the decision maker, in determining the nature of this commitment, is required to have regard to all of the circumstances of the relationship, and in addition, those matters set out at sub-regulation 1.15A(3)(d)(i) to (iv). His argument was that, again, when the Tribunal came to make its “ultimate finding” at paragraph 41, it did not consider the issues that support this commitment as required by 1.15(3)(d). His argument was that the Tribunal relied solely on the single issue of the applicant's marriage as being determinative of the nature of this commitment.
Mr. Silva referred the Court to Reddy v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 192 (“Reddy”), a matter before Tamberlin J., on appeal from this Court. Mr. Silva referred in particular to paragraphs [17]-[21] of his Honour's Judgement and especially highlighted the following:
“[17] … Her Honour concluded [with reference to the same matter at first instance] that the findings about the nominator’s lack of candour and violence were to be understood in the context of reg 1.15A and the obligation it imposes to have regard to all the circumstances of the relationship… In her Honour’s view, the Tribunal did not “impose” a general criterion of candour or absolute honesty about past relationships as being of itself sufficient to determine the outcome of the application adversely to the appellant in the present case.”
[18] …Throughout the Tribunal’s reasons, language is used to indicate that the decision-maker did not treat evidence as to lack of frankness and concealment as requiring a finding that the nominator lacked a mutual commitment…
[20] The conclusion that the violence and lack of candour were not each treated as being conclusive in their own right is reinforced by the detailed further references to financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the extent of the commitment of the parties. These references indicate that the Tribunal was concerned to reach conclusions on balance and looked to the likelihood that the nominator was using the appellant for financial gain during the relationship.
[21] The reasoning overall discloses a balancing of considerations although some are clearly considered more weighty than others. It cannot be said that the reasons do not take into account positive considerations in respect of the question whether there was a mutual commitment. In particular, there are some findings which tend to support the nominator’s commitment such as the period of joint residence and the existence of joint bank accounts.”
Even though in Reddy the Court found that the Tribunal had acted according to the appropriate approach indicated by the Court, Mr. Silva sought to distinguish the present case from the circumstances in Reddy by saying, in the case before the Court now, that the Tribunal acted in a “different” manner. He put forward a number of factors which he said distinguished what happened in the case before the Court now. First, that the language used by the Tribunal at paragraph 41 (CB 275.7) of its decision record indicates that it was the applicant's failure to disclose his prior marriage which resulted in the Tribunal not being satisfied that the relationship of the nominator was exclusive. Second, that at paragraph 41 (irrespective that it may have been addressed elsewhere) the Tribunal did not refer to the other relevant factors, as was the case in Reddy. His submission was that the Tribunal did not engage in the “balancing exercise” that it was required to engage in, and this amounts to jurisdictional error. Mr. Silva sought to emphasise that what is required on the part of the Tribunal is that it “weigh everything”. That is, that it balance those factors which could be said to be positive to the applicant with those that may be negative to the applicant in its analysis, prior to reaching its “ultimate” finding.
In a matter relevant to both of the applicant’s grounds Mr. Jordan submitted that Mr. Silva was in error in seeking to “divide the test” in subregulation 1.15A(2)(c)(i) into two different portions. Mr. Silva’s interpretation of what was required of the Tribunal in considering what is set out in (2)(c)(i) was that the Tribunal was required to firstly consider whether the relevant parties had a mutual commitment to a shared life, and then secondly, whether this was to the exclusion of all others. Mr. Jordan's submission was that to divide the requirement in (2)(c)(i) into separate components, being the “exclusive relationship” and the “mutual commitment”, is not an accurate reflection of the requirement posed by those words. He emphasised that the words “a mutual commitment to a shared life as husband and wife” cannot be read in isolation from the remaining words “to the exclusion of all others”. His submission was that what is at (2)(c)(i) poses one question, and that the words “mutual commitment” must be seen as being to “a shared life as husband and wife to the exclusion of all others”. Mr. Jordan's submission was that having dissected the words of the relevant part of the Regulations, Mr. Silva's two grounds put forward on behalf of the applicant rely on this “dissection”, to base the grounds of complaint. That in ground one the focus is on the question of exclusive relationship, and that in ground two the focus is on dealing in isolation with the question of commitment to shared life as husband and wife.
I agree with Mr. Jordan's submission in this regard. First, for his interpretation of the relevant test set out in subregulation 1.15A(2)(c)(i), Mr. Silva relied on what is set out in the Minister’s PAM3 at paragraph 44.3. What is set out in that document does not have the force of law and in Mr. Jordan's submission, with which I agree, “cannot override the Regulations”.
Further, in my view, notwithstanding that the Tribunal makes reference to PAM3 as “policy immediately relevant to this review” (see CB 268.4), it is not clear as to what standing such “policy” has to the Tribunal's consideration. In particular given the difference in standing between the Tribunal and the Minister’s “officers” to whom the document is aimed (see extract at [13] above: “officers are expected…”). The relevant statutory scheme for the conduct of the review of migration decisions (other than protection visa decisions) is set out at Part 5 of the Act. Notwithstanding that the Tribunal may, for purposes of the review, exercise all the powers and discretions conferred by the Act on the person who made the initial decision (s.349(1)), and notwithstanding that if the Tribunal varies, or sets aside the decision, such a decision is taken to be a decision of the Minister (s.349(3), the members are plainly not officers).
Given that this is not a review of an assessment made pursuant to s.93 of the Act, I cannot see that there is any express requirement on the Tribunal to apply the Minister’s policy as expressed in the PAM beyond where those statements of policy are translated into relevant legislation, and more particularly relevant to this case, into relevant regulations. The scheme of the Act provides for the Principal Member of the Tribunal, and not the Minister, to give directions, amongst other things, in relation to the conduct of reviews (s.353A(1)). Even then those directions are said to be required to be consistent with the Act, or the Regulations. There is no reference to the Minister's policy, or to the Minister’s policy guidelines, or the application of the Minister's guidelines, as may be expressed in the PAM, and as to how it may apply to the Tribunal’s exercise of its function. Nor is there anything before me to show that in the circumstances of this case the Principal Member has made any directions relevant to the issue now before Court in this regard.
But what needs to be emphasised is that even if the Minister's policy document was said to be “relevant”, it cannot “alter” what is set out in the Regulations. Even further, nor do I see that what is set out at paragraph 44.3 of the PAM3, is designed to do what Mr. Silva says it does, that is, to establish the nature of the test that is embodied in sub-regulation 1.15A(2)(c)(i). What this part of the PAM3 purports to do is to provide guidance to the “officers” in applying, in certain circumstances, the test set out in the Regulations. It does not in my view purport to be a reflection, or restatement, or interpretation, of the test as it applies to the Tribunal’s decision (clearly the reference to “officers” is a reference to employees of the Minister's Department not a reference to Tribunal members who are appointed by the Governor General as members of the Tribunal (see Part 6 of the Act, and in particular s.396)). There is no reference in this Part of the Act to a Tribunal member as holding an “office”. (As an aside it may be that the Minister's advisers may need to review her PAM3, to the extent that it refers to “employees” of her Department as “officers”, as relevant legislation for some time has referred to persons employed in such Departments as “employees” rather than “officers”. See: The Public Service Act 1999 (Cth) (“the 1999 Act”) repealed the provisions of the Public Service Act 1922 – which referred to staff employed in the Commonwealth Public Service as “officers”, or with reference at least initially, to temporary staff as “employees”. The 1999 Act, does not refer to “officers”, but to Australian Public Service “employees”).
But even putting aside all this, I cannot see that what is set out at paragraph 44.3 of the PAM3 “explains” the Regulations, and in particular subregulation 1.15A(2)(c)(i) in the way that Mr. Silva suggests. Nor can I see that it invests this part of the Regulation with a meaning such that there are the two tests (or two parts, or limbs, of the test) that Mr. Silva asserts are required to be addressed by the Tribunal. First, in this regard, paragraph 44.3 seeks to explain the affect of 1.15A(1A)(b)(iii) and 1.15A(2)(c)(iii), and not 1.15A(2)(c)(i). Second, and plainly, this “advice” (Procedures Advice Manual) is focused on giving examples to further the understanding of what is set out in those parts of the Regulations by way of a reference to certain circumstances. That is, that one circumstance is that if an applicant is able to satisfy the relevant decision maker that they are permanently separated from a person to whom they are legally married then it would be possible for such a person to be in a de facto relationship with another person. The second example is that in situations where the visa eligibility is dependent on the applicant not having a spouse, in those circumstances, “officers are expected” to conduct a closer examination of claims that an applicant and former spouse are permanently and genuinely separated.
In all, I agree with Mr. Jordan that the guidance provided in this part of the PAM3 is not of itself a disentitlement to a new de facto relationship. I agree that it does not of itself create an additional finding, or test, that must be applied in all cases. In my view the appropriate test that the Tribunal is required to apply is derived from the relevant regulation. While policy documents of course can provide some better understanding of regulations (at least to the extent that it may be said to reflect what the Minister intended that the Regulations were to mean) in this case, in my view, the language used in the PAM3 (“for example”) clearly intends that the document is to further “officers” understanding of the Regulations which may be applied in particular circumstances, not the creation of an additional, or new, test. Certainly not to the extent that such “guidance” goes beyond (in terms of the relevant test) what is set out in the Regulations.
I am further persuaded by Mr. Jordan's characterisation of this situation, that is, that 1.15A(2)(c)(i) contains one test, and not two, from the construction of regulation 1.15A itself. In a regulation riddled with paragraphs, subparagraphs, clauses, and subclauses, the requirement that the “Minister is satisfied” that the parties (that is, the applicant and the nominator) have a mutual commitment to a shared life as husband and wife to the exclusion of all others (1.15A(2)(c)(i)) is amongst a number of other subclauses presented as one subclause. Had it been intended that mutual commitment to a shared life as husband and wife, and that it was to the exclusion of all others, were to be two tests, or two limbs of the same test, or two separate parts of a test, then it would be expected that any two aspects would have been presented in separate subclauses. In my view, this part of the Regulations does not posit a test that a couple must have a mutual commitment to a shared life, and that the decision maker must be separately satisfied that it is to the exclusion of all others, even though the decision maker reached a level of satisfaction that a mutual commitment to a shared life as husband and wife exists. In my view, it is an integral component of that mutual commitment that it must exclude all others, that is, the shared life must exclude all others for the mutual commitment to be established. The decision maker must be satisfied as to its whole, not separately as to its parts.
The issue then is whether, as against the relevant test set out in the Regulations, the Tribunal turned its mind to those matters required by the Regulations. The Tribunal's “Findings and Reasons” are set out in the Court Book at CB 274.4 to CB 275.10. With reference to the paragraph numbers set out by the Tribunal, the Tribunal’s analysis was:
1)At paragraph 35:
The relevant subclass of visa applied for was a spouse visa (Subclass 820 (Partner Visa)).
2)At paragraph 36:
The nominator had not previously been involved in any nomination.
3)At paragraph 37:
That it had to consider whether the applicant was the spouse of the nominator, and in this regard referred to regulation 1.15A which contained the test for determining this question. As there was nothing before the Tribunal to show that the parties were married, then the Tribunal properly identified the test for a “de facto” relationship to be established. The Tribunal made reference to the matters set out at 1.15A(2)(a), (b), (c) and (d), and noted further that in forming an opinion as to whether two persons are in a de facto relationship that consideration must be given to the matters set out at 1.15A(3)(a), (b), (c) and (d).
4)At paragraph 38:
It found, with regard to the relevant considerations, that the evidence before it included the source of income, the nature of the household, the social aspects of the relationship and the nature of the commitment to each other. While it expressed some doubt, the Tribunal found, on the basis of “consistent evidence” from both parties, that it accepted that the parties, that is, the applicant and nominator lived together from 5 October 2000 onwards, and that they held themselves out to third parties as a couple.
5)At paragraph 39:
It began consideration of the issue set out at 1.15A(2)(c)(i), that is, the issue of mutual commitment to a shared life as husband and wife to the exclusion of all others, and noted the evidence given by the applicant and the nominator and also looked at evidence suggesting that the applicant had previously entered into a marriage with an Ms. Smedley.
6)At paragraph 40:
It found, on the evidence before it, that the applicant had previously entered into a marriage and was still married to Ms. Smedley, and that this was inconsistent with the applicant's statements put to the Tribunal in writing that he had never entered into a relationship with Ms. Smedley. Based on this it found that the applicant was not a truthful witness and had deliberately sought to mislead the Tribunal.
7)At paragraph 41:
It “also” found that it was not satisfied that the relationship with the nominator now was “exclusive” based on the nominator's own evidence, the letter to the Tribunal. The Tribunal found that the applicant had not disclosed, or discussed, his previous marriage with the nominator. In the Tribunal's view this detail was “extremely important” and took the view that “it would not be unreasonable to assume that if the review applicant did have a commitment to a shared life as husband and wife with the nominator he would have told her of his marriage”. It was the applicant's failure, to disclose the marriage to the nominator, that left the Tribunal unsatisfied that the applicant had a commitment to a shared life as husband and wife with the nominator to the exclusion of all others. That is, that the Tribunal, as the relevant decision maker, was not satisfied as to the matter set out at 1.15A(2)(c)(i).
8)At paragraph 42:
It found therefore that at the relevant time, the applicant was not the spouse of the nominator within the meaning of regulation 1.15A, and therefore the applicant did not satisfy clause 820.211, and could not therefore be granted the visa for which he had applied. It also found that it followed that the applicant did not meet the criteria for the Class BS visa, which is dependent on the applicant being the holder of a subclass 820 visa.
9)Paragraph 42:
The Tribunal found that in light of these findings it had no alternative but to affirm the decisions under review.
Mr. Jordan’s submission was that this analysis when read (as it is required to be read) as a whole, and when applied to the relevant requirements of regulation 1.15A does not reveal jurisdictional error on the part of the Tribunal. In this regard Mr. Jordan also made submissions on what he described as the nature of the scheme presented by regulation 1.15A. I agree with his submissions in this regard.
Relevantly, to establish that a de facto relationship exists for the purposes of satisfying the relevant requirements of the visas applied for, the Tribunal must make findings in relation to those matters set out at 1.15A(2). Given the applicant had not applied for a visa referred to in 1.15A(2)(e), that meant that the Tribunal was required to make findings of fact in relation to all the matters (given that each of (a), (b), (c) and (d) are conjunctive) set out at 1.15A(2)(a), (b), (c) and (d). In relation to 1.15A(2)(c) and (2)(d) the findings require a level of satisfaction to be attained by the relevant decision maker.
I also agree with Mr. Jordan that the matters set out at 1.15A(3)(a), (b), (c) and (d) not set out particular requirements which must be satisfied. What subregulation (3) does is, that in determining whether the essential criteria in (2) have been met or not, the decision maker is required to have regard to all of the circumstances set out (3)(a), (b), (c) and (d). The relevance of this issue will become plain below. In particular, in relation to the applicant’s complaint that the Tribunal did not properly “balance” the matters that it was required by the Regulations to so consider.
That the Tribunal understood what it was required to do by the “scheme” of this legislation, is, in my view shown by what is set out at paragraph 11 of its decision record (CB 269.3). The Tribunal, having already established for itself (see paragraph 10, CB 268.10) that the definition of spouse in the Regulations included a de facto spouse, set out in paragraph 11 that regulation 1.15A contained the relevant test in determining whether two persons are in a de facto relationship. It noted that 1.15A(3) set out “mandatory considerations”, and directed itself that in forming an opinion as to whether a de facto relationship existed it must take into account the considerations set out in 1.15A(3), and it specifically noted all those considerations.
In its analysis, as set out above, the Tribunal reminded itself of the requirement to mandatorily consider the matters set out in 1.15A(3) (paragraph 37, CB 274.7). In my view, plainly, when at paragraph 38 it commenced its analysis as against the matters against which it needed to make findings, that is, the matters set out in 1.15A(2), what follows there and subsequently, reveals that it did take into account those matters set out at 1.15A(3).
Turning therefore to each of the applicant's complaints as put forward by Mr. Silva. First, I do not agree with Mr. Silva's characterisation of 1.15A(2)(c)(i) requiring two tests, or two limbs, in relation to the issue of a mutual commitment to a share life as husband and wife to the exclusion of all others. As set out above, I have agreed with Mr. Jordan's submission as to what the test requires.
Second, to the extent that the applicant asserts that the Tribunal based its finding exclusively on the fact that he was still married to another person, I do not agree with Mr. Silva's submission in this regard. To the extent that such a complaint seeks to assert that this was the “only” factor that the Tribunal considered, in the sense that it did not consider those matters that it was mandatorily required to consider, as set out in 1.15A(3), then plainly the Tribunal's analysis, presented in its “Findings and Reasons” in its decision record, reveals that this is not the case.
To the extent however that this complaint focuses on what is set out at 1.15A(2)(c)(i), and that the Tribunal's decision “indicates” that it decided the issue “solely” on the basis that the applicant was still married to his former partner, then I also reject this complaint. The applicant, in this regard, has sought to focus on paragraph 41 of the Tribunal's decision record (CB 275.7) and asserts that the Tribunal's decision was based “solely” on the basis that it found that he was still married. In my view, plainly, that assertion is not correct.
The Tribunal’s finding in the first sentence of paragraph 41 of its “Findings and Reasons” clearly needs to be read and understood, as is required, in context, and in a holistic way. That the Tribunal made a finding that the applicant was still married is clear. That this finding occurred in context of other findings preceding it relevant to other factors set out in 1.15A(2), with regard to the matters set out in 1.15A(3), is also clear. In my view, the Tribunal’s finding in that first sentence (in paragraph 41) that it was not satisfied that the applicant’s relationship with the nominator “is exclusive” needs to be read in the context of what preceded it and of what follows. What follows as relevant in the Tribunal’s analysis was the “fact” that the applicant had not disclosed, or discussed, this marriage with the nominator. The Tribunal's consideration of the extreme importance of this omission by the applicant led it to its finding at the end of paragraph 41, which reflects the language, and the test of satisfaction required pursuant to 1.15A(2)(c)(i).
In my view the plain meaning, in context, of the finding set out in the first sentence of paragraph 41, and the consequent lack of satisfaction, posits that because of the existence of a prior marriage the relationship could not, at tat point, be described as “exclusive”. But this needs to be read with what follows. This was plainly not the sole reason that the Tribunal could not be satisfied as to the relevant test in 1.15A(2)(c)(i). In the Tribunal's own words it considered that the detail of the applicant's omitting to tell the nominator of his previous marriage led it to be unsatisfied as to the matter set out at 1.15A(2)(c)(i). That a previous marriage is relevant to the consideration of the exclusivity (“exclusion”) of the claimed relationship is, in my view plain. But having, or not having, an exclusive relationship is not the test as expressed in 1.15A(2)(c)(i). The test is a mutual commitment to a shared life as husband and wife that excludes all others. That is, that the commitment, which must be mutual, excludes all others. Having found the possibility of the inclusion of another (that is, not the exclusion of another) the Tribunal, in my view, properly then as part of the same analysis considered the aspect of a mutual commitment to a shared life in this circumstance. It plainly found that if the applicant did have such a commitment he would have told the nominator of this prior marriage, and that his failure to disclose the marriage to the nominator left it unsatisfied as to the matter set out in 1.15A(2)(c)(i).
To the extent that Mr. Silva relied on Bretag, he referred the Court to that case because he said it stood as authority for the proposition that when the Tribunal deals with a “spouse visa” that it should not “interpret things too strictly”. I understood Mr. Silva to mean that when the Tribunal came to look at the circumstances before it, it should not have relied on one issue, that is, that the applicant was married, and should have looked at the “whole of the relationship” between the applicant and the nominator, and that the Tribunal had been “influenced inappropriately” (see Bretag at [13]) by the fact of the applicant’s marriage to Ms. Smedley).
Mr. Jordan's submission was that Bretag does not traverse the issues before the Court now. With reference to [13] in Bretag, the error of the Tribunal that was identified was that that Tribunal took into account and was “influenced inappropriately” “by events that occurred subsequent to the events subsisting at the time of the application for the [what was then the relevant] permanent entry permit”. (I should just note that being a case in 1991, Bretag was concerned with a statutory regime different to the one existing now and dealt with the concept of entry permits, not a concept relevant in the context before the Court today). But in any event, the flaw in that Tribunal's consideration was that it took into account an irrelevant consideration, being events that occurred after the operative date in determining the exact nature of the relevant relationship. This is not analogous to the circumstances of the case before me. The Tribunal did not take into account an irrelevant consideration, nor is that the applicant’s complaint.
For the reasons set out above I do not accept that the Tribunal in case before me was influenced by the single issue of the applicant's marriage to Ms. Smedley, although it was plainly relevant to the test that the Tribunal was required to address (that is, what is set out at 1.15A(2)(c)(i)). In all therefore ground one in all its iterations is not made out.
The applicant’s second ground of complaint in particular relies on what Mr. Silva described as the Tribunal's imposition of a general criterion of candour, or honesty, about the disclosure of the marriage, and that the Tribunal was in error in relying on the finding that arose from this imposition, that is, that the applicant had not disclosed this to the nominator. The Tribunal, therefore, failed to consider the relationship “as a whole” at it was required to do by the Regulations, and in particular 1.15A(3). Mr. Silva emphasised that the Tribunal is required to “weigh everything” and is also required to “balance the positive and negative” and that by what is set out at paragraph 41 of its decision record the Tribunal did not do so when it came to consider the matter arising from 1.15A(2)(c)(i).
With the reference to Reddy, Mr. Silva, in particular, drew the Court’s attention to parts of paragraphs [17] to [21] of that Judgement (see paragraph [22] above). Mr. Jordan's submission was that the matter of Reddy is relevant to the case before me now, but that it supports the respondent’s case. He submitted that there was no relevant distinction that could be made and that in particular what is described in paragraphs [18] and [21] of the Judgement in Reddy is applicable in the case before the Court now.
In this regard I note, from Reddy:
“[18] On a fair and reasonable reading of the decision below, as required by Wu Shan Liang, I am not persuaded that the Tribunal gave determinative force to the evidence relating to either the non-disclosure or the post-application violence. I am satisfied that the decision-maker had regard to the relevant circumstances and applied the prescribed matters to the circumstances of this particular case. Throughout the Tribunal’s reasons, language is used to indicate that the decision-maker did not treat evidence as to lack of frankness and concealment as requiring a finding that the nominator lacked a mutual commitment. Obviously the decision-maker regarded this positive act of concealment on behalf of the nominator as an important issue which should be given considerable weight. The observations relating to disclosure, when fairly read, are, in my view, simply an indication that, in the normal course, one would expect candour and lack of active concealment where a commitment had been made by a party to a shared life. The language used by the decision-maker is consistent, when read in context, with such an approach. This general observation is then applied to the circumstances of the nominator and the visa appellant in the present case…
[21] The reasoning overall discloses a balancing of considerations although some are clearly considered more weighty than others. It cannot be said that the reasons do not take into account positive considerations in respect of the question whether there was a mutual commitment. In particular, there are some findings which tend to support the nominator’s commitment such as the period of joint residence and the existence of joint bank accounts.”
I accept Mr. Jordan's submission that when the whole of the Tribunal's reasons are read fairly, and with what was said in Reddy, and further with what the relevant regulation requires in mind, the Tribunal did not misunderstand its obligation to take into account all of the circumstances of the relationship. It cannot be said to have failed to have “balanced” all the relevant factors simply because it gave greater weight to one factor over the other. I accept Mr. Jordan's submission that there is no requirement in the Regulations, or otherwise, for the Tribunal to give all of the relevant factors “equal weight”. Subregulation 1.15A(3) requires that the decision maker must have regard to the circumstances of the relationship including those matters set out at (3)(a), (b), (c) and (d). Plainly, the Tribunal did this as particularly shown in its analysis at paragraphs 37 and 38 (CB 274) of its decision record. As the Court said in Reddy at [21]:
“The reasoning overall discloses a balancing of considerations although some are considered more weighty than others”.
I understood “balancing of considerations”, particularly as it applies in context to 1.15A(3), as being that proper regard must be had to all of the circumstances of the relationship and in particular those matters set out at 1.15A(3)(a), (b), (c) and (d). The Tribunal has had such regard. It does not need to keep repeating its relevant considerations as was (inferentially) submitted by Mr. Silva. With this in mind and with what is set out above at [32]-[34] of this Judgement, regarding the “scheme” of this regulation I do not agree with Mr. Silva's submission that the Tribunal has failed to have regard to these issues simply because it did not repeat its analysis containing these issues at paragraph 41 of its decision record. It clearly did have regard to these matters, some of which it accepted as being positive in the applicant's favour (for example it accepted that the parties did live together from 5 October 2000, and that they held themselves out to third parties as a couple).
But what the Tribunal could not be satisfied about was the matter set out at 1.15A(2)(c)(i). The reason for this was that having found that the applicant was still married to Ms. Smedley, giving rise to the issue that the mutual commitment to a shared life as husband and wife may not be to the exclusion of all others, the Tribunal found it extremely important that if the applicant did have such a commitment that he would have told the nominator of his previous relationship. It was his failure to do so that left the Tribunal, in all the circumstances, unsatisfied that the matter set out in (2)(c)(i) was met. In my view, this was a finding, on what was before it, that was open to the Tribunal to make. As the Court also said at [24] in Reddy:
“The existence of the required commitment is a question of fact and degree for the Tribunal, having regard to the circumstances and history of the particular relationship between the nominator and the appellant.”
As in the case of Reddy, in the case before me, it was open to the Tribunal to consider and give weight to the fact that (while it was violent conduct in the case in Reddy) the applicant’s failure to tell the nominator of his prior relationship, in circumstances where the disclosure of such a detail was extremely important, went to the issue of whether the required commitment existed to the degree of satisfaction asserted by the Tribunal. It was open to the Tribunal to give weight to this fact in finding that there was no mutual commitment to a shared life at least on the part of the applicant. Further, with reference to what was said in Reddy (at [17]), I cannot see that the Tribunal in the case before me “imposed” a general criterion of candour, or absolute, honesty about the past relationship as being, of itself, sufficient to determine the outcome of the application adversely to the appellant. That it gave it weight is obviously quite clear. It plainly said it was “extremely important”. But this does not reveal jurisdictional error of itself and when read in context.
In all therefore, I cannot see that the Tribunal applied the wrong test in the way submitted by Mr. Silva, or that it misunderstood the relevant issue set out in 1.15A(2)(c)(i). Nor can I see, on a plain reading of the Tribunal's decision record, that it failed to consider the circumstances of the relationship as a whole in determining the outcome of the question posited in 1.15A(2)(c)(i) as to whether the applicant and the nominator had a mutual commitment to a shared life as husband and wife to the exclusion of all others. Nor that it imposed a restrictive general criterion of candour and honesty on the issue of the disclosure of the past marriage in the sense that it failed to have proper regard to the matters set out in regulation 1.15A. In my view, the Tribunal's decision record reveals that the Tribunal well understood the task that was before it. It understood the relevant tests to be applied in determining the issue of whether the applicant and the nominator were persons in a de facto relationship and had regard to all of the circumstances of the relationship including those matters set out at 1.15A(3)(a), (b), (c) and (d). In all therefore, I cannot see jurisdictional error in what the Tribunal has done. This application is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 22 December 2006
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