Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1879
•16 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1879
File number(s): SYG 2811 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (Temporary) (Class UK) visa – whether the decision of the Second Respondent was, in part, based on critical findings of fact that were arbitrary, capricious, irrational, and lacking in evident or intelligible justification – whether the Second Respondent failed to perform its statutory task to review the decision of the First Respondent – whether jurisdictional error is made out – jurisdictional error is made out – the application is upheld. Legislation: Migration Act 1958 (Cth) s 5, Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Attorney-General (NSW) v Quinn [1990] HCA 21
Fox v Percy (2003) 214 CLR 118
He v Minister for Immigration (2017) 255 FCR 41
Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303
Minister for Immigration and Citizenship v Li (2013) 297 ALR 224
Minister for Immigration and Citizenship v SZMDA [2010] HCA 16
Singh v Minister for Immigration [2021] FCA 75
Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407
Number of paragraphs: 47 Date of last submission/s: 9 August 2021 Date of hearing: 9 August 2021 Place: Parramatta Counsel for the Applicant: Mr Poynder Counsel for the Respondents: Mr Johnson ORDERS
SYG 2811 of 2017 BETWEEN: NISHAN SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
13 AUGUST 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is upheld.
3.The decision of the Second Respondent, made on 7 August 2017, to affirm the refusal of a visa to the Applicant, be quashed.
4.A writ of mandamus be directed to the Second Respondent, requiring it to reconsider the Applicant’s application for review of the First Respondent’s decision to refuse a visa, in accordance with the law.
5.The First Respondent to pay the Applicant’s costs, fixed in the amount of $7,328.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION.
The applicant is a citizen of India. The applicant first travelled to Australia in December 2013 as the holder of a student visa. The applicant was subsequently granted a Business visa. On 20 August 2016, the applicant applied for a Partner (Temporary) (Class UK) visa on the basis of his relationship with the sponsor.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 7 August 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION.
Given the grounds of judicial review, it is necessary to summarise the Tribunal decision in some detail.
After setting out the background and relevant law, the Tribunal was satisfied at paragraph 6 of its decision, that the parties were validly married as required by s 5F(2)(a) of the Migration Act 1958 (Cth) (“the Act”) to each other.
At paragraph 7 of its decision, the Tribunal acknowledged that a substantial amount of documentary evidence had been presented with the application, which sought to address the various aspects of the relationship. However, the Tribunal was of the view that such documents and evidence can be obtained, even if the relationship is not genuine. The Tribunal was mindful that various organisations can send letters to the applicant and the sponsor at the same address having not undertaken any verification as to whether the couple lived together. The fact that receipts are issued in joint names, makes no assessment of whether the parties have contributed the funds. The fact that there are photographs showing the applicant and the sponsor together, does not mean that they are committed to the relationship.
At paragraph 8 of its decision, the Tribunal noted its concerns as to the timing of the relationship. The applicant told the Tribunal that he held a Subclass 457 visa, but at the end of 2015 he could not continue with his employment because the sponsoring restaurant had financial problems. The applicant met the sponsor at the end of March 2016 and in early May 2016 they claim to have formed a committed relationship. The Tribunal noted that the relationship “developed with considerable haste”.
While accepting that the applicant’s motivations in obtaining Australian residency did not necessarily establish that the relationship was not genuine, the Tribunal formed the view that the desire to obtain the visa, was the only motivation for the applicant to enter the relationship, and there was no mutual commitment to the relationship.
The Tribunal at paragraph 11 of its decision, voiced considerable concerns that the applicant’s family did not attend the wedding. The applicant explained to the Tribunal that his father was working in Dubai and his mother was looking after the farm in India, they did not find it easy to attend the wedding and also had financial constraints. The Tribunal did not accept that evidence. The Tribunal was mindful that the applicant’s evidence was that his parents supported his the study in Australia and prior to that in England. The Tribunal was not convinced that if they are able to support the applicant’s study in foreign countries, that they could not find the means to travel to Australia to attend his wedding. If the concerns raised by the applicant about his parent’s inability to attend the wedding were significant, then the applicant and the sponsor could have been delayed the wedding to allow the parents to attend. This, in the Tribunal’s view, was an indication that the marriage was merely a means of allowing the applicant to remain in Australia.
The Tribunal noted that the applicant provided a number of documents in his primary application, including evidence of a joint bank account and various bills. The Tribunal noted that the applicant did not provide a meaningful explanation as to why he would not deposit his savings into the joint account, having made the decision to open the account to pool their resources. The applicant initially told the Tribunal that he borrowed money from friends so that they could put money into the joint account. The Tribunal formed the view that this action was with the sole intention of showing deposits into the joint account so that the applicant could present evidence of having contributed to the joint account for the benefit of his visa. At paragraph 13 of its decision, the Tribunal was also of the view that there was no purpose to the joint account. The applicant stated that the couple wanted to have a joint account because all the household payments were arranged with the joint account, but the Tribunal concluded that the sponsor must have had some arrangements in place before she met the applicant, so there was no need to open joint account for that purpose.
At paragraph 14 of its decision, the Tribunal noted that the applicant presented other evidence concerning financial arrangements. Much of that evidence was dated after the application or after the primary decision. This included a copy of his will, dated September 2016, a few days after the delegate refused to grant the visa. The Tribunal was concerned that the couple did not arrange to have wills drawn up when they were married and not when the visa application was refused. The Tribunal was of the view that the wills being drawn up within a week of the visa refusal suggest that they have been done so, for the sole purpose of providing evidence to support the applicant.
The Tribunal at paragraph 15 of its decision formed a similar review in relation to copies of superannuation documents which were provided to the Tribunal but were dated after the application was refused. The Tribunal noted that the applicant said that he thought the application for his visa would be accepted and when it was not accepted, they thought they needed more evidence. The Tribunal concluded that this confirmed that the evidence was prepared solely for the purpose of the visa application. At paragraph 16 of its decision, the Tribunal noted that there was ample evidence of the couple pooling their resources but concluded that this did not necessarily reflect the parties’ willingness to share finances.
At paragraph 17 of its decision, the Tribunal considered a lease agreement for a premise that the sponsor was living in prior to the marriage. The applicant’s evidence was that at least from his perspective, the lease arrangement which was the subject of the new evidence, was prepared for the purpose of the visa application. At paragraph 18 of its decision, the Tribunal concluded that the parties had established a joint household.
At paragraph 19 of its decision, the Tribunal considered evidence presented by way of documents, including evidence of payment of school fees, swimming lessons etcetera, which were evidence of the applicant’s involvement with the sponsor’s child. The Tribunal noted that many of these documents post-dated the primary decision. The Tribunal concluded that the documents were prepared solely for the purpose of the visa application and that the applicant had taken steps to ensure that his name appeared on such documents.
At paragraph 20 of its decision, the Tribunal questioned the applicant about the sponsor’s child. The Tribunal concluded that the applicant’s evidence was studied and memorised, as well as vague. The applicant had vague knowledge of what subjects the child studied at school. The applicant was not sure about school fees or fees swimming lessons and could recall the name of one of the teachers but not the other. The Tribunal formed the view that the applicant’s role in the child’s upbringing was limited.
At paragraph 21of its decision, the Tribunal considered statements and Statutory Declarations from friends and relatives of the couple and concluded that that the relationship was known to others. The Tribunal accepted that others believed the relationship to be genuine. Both parties claimed that they are very private and did not socialise much. The Tribunal formed the view that social recognition of the relationship was somewhat limited, but accepted that the parties plan and undertake joint social activities.
At paragraph 22 of its decision, the Tribunal considered evidence of the couple’s plans for the future. They said they wanted to buy a house and have a child but were waiting for the financial situation to improve. The Tribunal noted that the plans for the future did not appear in its view, to be particularly involved or necessarily realistic.
At paragraph 23 of its decision, the Tribunal concluded that many aspects of the evidence pointed towards a genuine and mutually committed relationship, but that much of the evidence presented was done so with the intention of supporting the applicant’s visa application. The Tribunal formed the view that the applicant’s sole motivation for entering the relationship was to obtain the visa and was not satisfied the parties have a mutual ongoing commitment to the relationship. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
GROUNDS OF JUDICIAL REVIEW.
The grounds of judicial review relied upon are contained in an Amended Initiating Application filed on 24 April 2018. They are as follows:
Ground One
The decision of the second respondent was, in part, based on critical findings of fact that were arbitrary, capricious, irrational, and lacking in evident or intelligible justification.
Particulars.
a)The second respondent found answers given at the hearing by the applicant and his sponsoring wife were almost “almost verbatim” and” practised” (at [8]) and the evidence given by the applicant was “studied and memorised” (at [20]).
b)There was no evidentiary basis for the Tribunal’s finding of fact that the answers given at the hearing by the applicant and his sponsoring wife were “almost verbatim” and “appeared practiced”, or that the evidence given by the applicant was “studied and memorised”.
c)The second respondent (at [14], [15], [16] [17] and [18]) repeatedly made an adverse inference that documentation provided by the applicant which post-dated the primary decision was prepared for the purpose of the visa application without considering or appreciating that such documentation had been given in response to a finding by the primary decision maker that the applicant had previously failed to provide sufficient evidence of the relationship.
d)The second respondent’s treatment (at [21]) of the statutory declarations provided by the applicant in support of the application was misleading and adequate, in that it considered that the statutory declaration is established no more than that the relationship between the applicant and his sponsor was known to others, but made no mention of, or finding on, the overwhelming content of the statutory declarations, which were to the effect that the relationship was a genuine and committed spousal relationship.
Ground Two
The second respondent failed to perform its statutory task to review the decision of the first respondent.
Particulars
The second respondent failed to consider or turn its mind to the possibility, which was open on the evidence that the reason for any similarity between the evidence given by the applicant (and) his sponsoring wife was because the evidence was true.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicant noted that a striking aspect of this case was the manner in which the Tribunal construed the evidence which favoured the existence of a genuine relationship between the applicant and Ms Smith. The Tribunal at paragraph 23 of its decision, recognised that there was “a substantial amount of evidence that points to the existence of a genuine relationship”, and that “broadly consistent” evidence had been given by the parties. The Tribunal also recognised that “many aspects of this case pointed to the existence of a genuine and mutually committed relationship” yet somehow found reason to dismiss all this evidence and find that the entire relationship was a fabrication by the applicant to secure permanent residency.
In relation to grounds 1(a), 1(b) and 2, it was submitted that there was no rational basis for the finding by the Tribunal at paragraph 8 of its decision that the answers given at the hearing by the applicant and Ms Smith were almost verbatim and appeared practised. The Court was taken to various pieces of evidence in the transcript. It was suggested that the evidence could not be described as “almost verbatim”.
Nor was there any rational basis for the finding at paragraph 20 of the Tribunal decision that the evidence given by the applicant about Ryan was “studied and memorised”. It was submitted that the Tribunal’s own finding at paragraph 23 of its decision that the parties’ evidence was “broadly consistent”, is far removed from “almost verbatim”. The fact that Ms Smith gave similar words as compared to her husband is consistent with a genuine spousal relationship. The failure of the Tribunal to consider this possibility gives rise to the error referred to in ground two.
In relation to ground one (c) the Tribunal found no less than five times, that the documentation provided by the applicant which post-dated the primary decision was prepared for the purpose of the visa application, suggesting that it was not therefore genuine.
It is to be recalled that, as at the time of the visa application on 15 August 2016, the parties had known each other for less than five months and only been living with each other in Atherton for just over two months. It was submitted that it was unsurprising that they did not have a long “paper trail” of evidence to show the relationship at the time of the primary decision, which was made only a month after the application. The delegate did not find that they had fabricated the relationship, rather, it was refused at the primary stage on the ground that there was insufficient evidence. It was submitted that the applicant responded in the way that would be expected; that being, gathering further evidence which supported his claim but in circumstances where it post-dated the primary decision.
It was submitted that by treating the evidence provided after the primary decision as concocted, for the sole purpose of the visa application, the Tribunal did not consider the context of the evidence. The applicant was placed in a no-win situation whereby, having been put on notice that the primary application, was rejected because the evidence was insufficient, the Tribunal then rejected additional evidence on the basis it had been prepared solely for the visa application. It was submitted that the approach was arbitrary, capricious and irrational.
In relation to ground one (d) it was submitted the only reference to the nine Statutory Declarations made by relatives and friends of the party attesting to the genuineness of the relationship was at paragraph 21 of the Tribunal decision. These were treated dismissively by the Tribunal. All that is stated as to the sworn declarations was that “the relationship is known to others and that others believe to be a genuine one”.
This finding did not deal with the evidence in detail, including that from Elise Babagello, a lifetime friend of Ms Smith and from her brother Shane. It was submitted that this case was a similar matter to that of Nishan Singh v Minister for Immigration [2021] FCA 75 (“Singh”) per Perram J, (note that matter has no relation to the current matter). In that case, there were four statutory declarations from friends as to the genuine relate nature of the relationship, in this case there are some nine. In that case, as here, the Tribunal’s treatment of the evidence of the witnesses was merely to find a significant number of the applicant’s friends and acquaintances knew his wife and considered the relationship to be genuine. It was submitted that the Tribunal failed to engage in an “active mental process involved in the giving proper, genuine and realistic consideration to the prescribed matters”: (see; He v Minister for Immigration (2017) 255 FCR 41 at [76]). In this case, the Tribunal failed to give any meaningful consideration to the evidence of the nine statutory declarations which amounts to jurisdictional error. The error is the same as found by Perram J, in Singh at [17].
THE FIRST RESPONDENT’S SUBMISSIONS.
In relation to grounds one (a) and (b) and ground two, the applicant submits that the Tribunal erred in that it lacked evidence for its findings that the applicant and Ms Smith’s evidence was “almost verbatim”, “practised” and “studied and memorised”.
First, the impugned findings were not matters of fact for which the Tribunal needed specific evidence. Rather, there simply needed to be a rational basis to the Tribunal’s conclusions. It was submitted that a fair reading of the transcript of the party’s evidence shows substantial similarity between the applicant and Ms Smith’s evidence. Necessarily, findings that a witness or witnesses of giving evidence that is rehearsed, or practised, are matters of impression for the fact finder. It was submitted the applicant in effect, invites the Court to disagree with the Tribunal’s views as to the veracity of the account given by the applicant and Ms Smith, but this is beyond the Court’s role in exercising supervisory jurisdiction: (see; Attorney-General (NSW) v Quinn [1990] HCA 21).
Second, it was a matter for the Tribunal to assess the credibility of the applicant’s assertion that he was in a genuine marital relationship with Ms Smith. That assessment was informed in part, by the Tribunal’s evaluation of the matter, expression and demeanour of the applicant and Ms Smith in giving their evidence. Any contention that it was not open to the Tribunal to form those views, must be addressed in the light of the well-established authority that refers to the advantages enjoyed by adjudicators of fact, to test the veracity of the evidence given orally by witness and by observing the witness: (see; Fox v Percy (2003) 214 CLR 118 at [41] and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62]).
Third, the applicant (quite fairly) submitted that evidence given by two witnesses that is very similar is consistent with a genuine spousal relationship, and not a reason to doubt the veracity the evidence. That proposition may be accepted, without it leading to a conclusion that the Tribunal’s impression of similar evidence having been concocted was unavailable: (see; Minister for Immigration and Citizenship v SZMDA [2010] HCA 16 at [130]-[133]). The Tribunal’s concerns with the similarity in the party’s evidence must be viewed in the context of its other more objectives concern with the visa application. These concerns include the haste and timing of the relationship, the fact that the applicant’s family did not attend the wedding, the paucity of supportive evidence provided to the Department necessitating additional information being provided to the Tribunal and the vagueness of the applicant’s evidence including when questioned about Ms Smith’s son. It was submitted that the motivation of the parties in entering into relationship is not irrelevant to the Tribunal’s evaluative task in determining whether a genuine relationship exists at the time of making its decision: (see; Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303 at [64]).
In relation to ground one (c) the applicant submitted that the Tribunal’s findings, the sum of the applicant’s evidence submitted in support of there being a genuine relationship, was prepared for the purpose of the visa application, and ignores the basis of the delegate’s decision in the context of the review.
There was nothing capricious or arbitrary about the Tribunal’s findings. First, the applicant in fact conceded that he prepared the evidence for the Tribunal as a response to the delegate’s reasons. Secondly the applicant conceded to the Tribunal that he had not provided adequate evidence to the delegate because he was not expecting his application to be refused.
It was neither an illogical nor capricious reaction by the Tribunal, to be concerned by the fact that much of the material in which the applicant relied upon to establish his relationship was of recent creation. Whilst the fact that the applicant needed to obtain evidence in support of his relationship for the purpose of the review was not, of itself, proof that his relationship with Ms Smith was not genuine, neither was it illogical for the Tribunal to form a view that a cast doubt on the genuineness of the relationship.
In relation to ground one (d), the applicant challenges the Tribunal’s consideration of the statutory declarations provided by his witnesses declaring the genuineness of his spousal relationship with Ms Smith. It is conceded that the Tribunal dealt with the witnesses’ evidence in short form. However there is no error in this of itself in that a decision-maker does not need to refer to all the evidence before it: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184).
It was submitted that what was clear however, is that the Tribunal did consider the witnesses statements and accepted that the witness held genuine beliefs about the relationship. The Tribunal nevertheless discounted the evidence by observing that the “social recognition of the relationship is somewhat limited”. This demonstrates a weighing of the evidence rather than an overlooking of the evidence: (see; Singh at [16]). The Tribunal’s role was to consider, by reference to the descriptors in r 1.1 5A of the Migration Regulations 1994 (Cth) (“the Regulations”), whether the relationship was one that, on the material before the Tribunal, met the requirements of a spousal relationship under s 5F of the Act. The Tribunal engaged in this analysis including by reference to the witness statements. The contents of the witness statements did not require the Tribunal to accept that the applicant was in a genuine relationship.
CONSIDERATION.
Consideration of spouse visa matters is a difficult undertaking. It requires an evaluative consideration by the Tribunal pursuant to s 5F of the Act as to whether or not a couple, whether the same sex or different sex, have a mutual commitment to a shared life as a married couple to the exclusion of all others and that the relationship between them, is genuine and continuing.
Relationships between couples are as infinitely varied, as people themselves. Just because the manner in which a relationship is entered into does not meet with general societal norms, does not mean that the relationship is not a committed and genuine one. Arranged marriages where the couple do not know each other in any real sense, are a well-documented and a known method for marriage in many societies. In a multicultural society such as Australia it is important to not judge all relationships via supposed western norms. The requirement is to evaluate the relationship with reference to the requirements of s 5F of the Act and the indicia in r 1.15A(2) of the Regulations.
The Tribunal was also undertaking merits review. It was thus open for the applicant to provide new material for the Tribunal to assess. There mere fact that it post-dated the delegate’s decision does not of itself make that material of lesser weight. It would be surprising if an applicant, having had their application refused, would not carefully consider the delegate’s reasons and set about providing more evidence which sought to address the concerns raised by the delegate to give to the Tribunal. Having said that, the Tribunal was entitled to evaluate the most recent evidence in the light of the proposition it had been created solely for the purpose of supporting the claim that the relationship was genuine and continuing.
Considerable care needs to be taken by a Court undertaking judicial review in considering adverse credit findings. The Court in the this case has access to the transcript of the Tribunal hearing, but has not had the advantage of seeing that evidence being given and being able to evaluate the demeanour and credit of the witness first hand. It is for this reason that in Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 at [67] McHugh J stated that, credibility findings are a matter of par excellence for the Tribunal. The Court has not had the advantage of observing the witnesses demeanour in giving their evidence.
That said, there is clear authority that credit findings are open to jurisdictional error if they are made without a logical or probative basis or are legally unreasonable: (see; ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174). The test for unreasonableness however, is stringent and will only arise in rare cases: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 224 at [30] and [113]).
The most troubling aspect of this case relates to the Tribunal’s treatment of the Statutory Declarations from no less than nine witnesses. These include both friends of the couple and close relatives of Ms Smith, including her mother and brother. Each of those Statutory Declarations attested to the genuineness of the relationship. The fact that this material was obtained after the initial refusal by the delegate does not of itself derogate from the appropriateness of the weight that should be given to it. It is of concern that the Tribunal does not appear to have turned its mind that those Statutory Declarations would not have been given lightly, and cannot be dismissed lightly. If this number of people believe the relationship to be genuine, and are prepared to provide evidence in support of it, then this goes far further than the finding of the Tribunal at paragraph 21 of its decision, that “the relationship is known to others that others believe it to be a genuine one”.
The Tribunal had already acknowledged that there was ample evidence of the couple pooling their resources. There was evidence which supported the nature of the household as being a joint one and indicated there was considerable evidence as to the social aspects of the relationship. A significant basis for the Tribunal dismissing the application appears to be concerned around adverse credit findings that the evidence of the applicant and his wife was studied and memorised, as well is vague. While acknowledging the care that must be undertaken by reviewing the courts in relation to credit findings by a Tribunal, this finding was but one aspect of the entirety of the evidence. The concern of the Tribunal in relation to the oral evidence needed to be balanced against all of the other documentary evidence, including the Statutory Declarations, which were strongly supportive of there being a committed and genuine ongoing relationship between the applicant and the sponsor. The finding by the Tribunal that the evidence of the applicant and the sponsor was almost verbatim, does not withstand close scrutiny. For example, the applicant’s and the wife’s description of her educational qualifications at page 6 of the transcript in relation to the applicant’s evidence and page 52 in relation to the wife’s evidence is anything but verbatim. The reasons for entering into a new lease are also anything but verbatim
The fact that the Tribunal appears to have placed little weight on all of the post delegate documentary evidence is also troubling. This material needed to be considered on its merits, as part of the overall evaluation as to whether not the relationship was a committed and genuine one for the purposes of the Act.
In the Court’s view, the Tribunal has failed to actively engage with the material before it, giving it proper, genuine and realistic consideration with respect to the matters that were under consideration. The lack of engagement with the Statutory Declarations, provided to show that the relationship was a committed one required far more than the simple statement at paragraph 21 of the Tribunal decision that, “the relationship is known to others”. The finding failed to grasp the detail of what was being said, the fact it was being said by a variety of people who had observed the couple over time and had no reason to provide anything but an honest assessment of what they saw and understood. Those statements went beyond the social aspects of the relationship and were supportive of a committed relationship between the applicant and his wife into the future. They were supportive of the fact that the relationship was not a sham or concocted to obtain a migration outcome for the applicant. The Court is satisfied that the overall finding was lacking in an evident and intelligible justification taking into account all the evidence that was before it. Ground one is made out.
It is not necessary therefore to make a finding in relation to ground two, however the Court does make the observation that the mere fact that evidence is consistent between parties, does not necessarily mean that it is untrue. That possibility does not appear to have been averred to by the Tribunal
CONCLUSION
The application is upheld. The court grants the orders sought in the Initiating Application.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 16 August 2021
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