SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 516
•9 May 2022
FEDERAL COURT OF AUSTRALIA
SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 516
Appeal from: SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 35 File number: NSD 211 of 2020 Judgment of: JACKSON J Date of judgment: 9 May 2022 Catchwords: MIGRATION - appeal from judicial review of decision not to waive condition on visa - finding that no failure to consider relevant circumstances - circumstances as raised in application for waiver were considered - appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Migration Act 1958 (Cth) ss 41, 91X
Migration Regulations 1994 (Cth) reg 2.05, Schedules 2, 8
Cases cited: ECE21 v Minister for Home Affairs [2021] FCA 1447
Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 40 Date of hearing: 27 April 2022 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Ms A Carr Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
NSD 211 of 2020 BETWEEN: SZVGE
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
9 MAY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), and on the ground in s 37AG(1)(a), the name of the appellant is not to be published in connection with this proceeding and she must continue to be referred to as 'SZVGE'.
2.The appeal is dismissed.
3.The appellant must pay the respondent's costs of the appeal, to be assessed on a lump sum basis.
4.By 4.00 pm on 23 May 2022, the appellant and the respondent must file any agreed proposed minute of orders fixing a lump sum in relation to the respondent's costs of the application.
5.In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the respondent's costs is referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKSON J:
This is an appeal from a decision of the Federal Circuit Court of Australia (as it then was). The decision was handed down on 25 February 2020 and the notice of appeal was filed soon afterwards, however the hearing of the appeal has been delayed significantly due to the COVID-19 pandemic.
It is necessary to deal with a preliminary matter first. The appeal relates to the decision of a delegate of the respondent (Minister) not to waive a condition attaching to a visitor (Subclass 600) visa (Visitor Visa) held by the appellant. In the Federal Circuit Court the appellant was assigned a pseudonym, apparently because the decision of the primary judge referred to circumstances concerning an application for a protection visa that the appellant had made, including a previous Federal Circuit Court case. I am not satisfied that this makes the present appeal a proceeding that relates to the appellant in her capacity as a person who applied for protection visa, so that an obligation not to publish the appellant's name arises under s 91X of the Migration Act 1958 (Cth): see ECE21 v Minister for Home Affairs [2021] FCA 1447 at [7]. Nevertheless, the registry of this Court assigned the same pseudonym to her when this appeal was commenced.
At the hearing of the appeal, the appellant indicated that she wished to remain anonymous and the Minister submitted that it was appropriate to continue the use of the pseudonym. I am satisfied that it is appropriate to continue to use the pseudonym, because if the appellant's true name is used in these reasons, it will be a simple matter to link that name to the circumstances of her protection visa application via the Federal Circuit Court decision from which she appeals. Also, it will be necessary to describe some of those circumstances in this decision. It would be inimical to the interests of justice if persons were deterred from bringing appeals if they have a soundly based fear that the anonymity of their protection visa applications may be lost because of the appeal. For that reason, I consider that it is necessary to prevent prejudice to the proper administration of justice to make a limited suppression order continuing the use of the pseudonym in place of the appellant's name under s 37AF(1)(a) and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).
For the following reasons the appeal will be dismissed.
Factual background and statutory framework
The appellant is a citizen of Israel. She came to Australia under the visitor visa on 13 December 2013. The visa expired on 13 March 2014. She applied for a protection visa but was unsuccessful, and has since remained in Australia under a bridging visa.
The application in the Federal Circuit Court was for judicial review of a decision of the delegate not to waive a condition on the visitor visa known as condition 8503. The terms of that condition provide that the holder of the visa 'will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia': Migration Regulations 1994 (Cth) Schedule 8.
While there is no reason to think that condition 8503 did not apply to the appellant's Visitor Visa, it is not entirely clear from the materials exactly how it came to apply. In broad terms, the condition may be mandatorily imposed under s 41(1) of the Migration Act and reg 2.05(1) of the Migration Regulations, or may be imposed at the discretion of the Minister under s 41(3) and reg 2.05(2). It is not necessary to determine which of these applied here. The outcome is that under the applicable clause in Division 600.6 of Schedule 2 to the Migration Regulations, condition 8503 applied to the appellant's visitor visa.
Section 41(2A) of the Migration Act provides:
The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
Condition 8503 is a condition of the kind described in s 41(2)(a).
Regulation 2.05(4) of the Migration Regulations prescribes circumstances for the purpose of s 41(2A) as follows:
For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a)since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i)over which the person had no control; and
(ii)that resulted in a major change to the person's circumstances; and
(b)if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c)if the person asks the Minister to waive the condition, the request is in writing.
The Minister submitted, and I accept, that paragraph (b) of reg 2.05(4) has no relevance, and it is clear that the waiver application I am about to mention was in writing and so satisfied reg 2.05(4)(c). The appeal concerns reg 2.05(4)(a).
On 30 November 2018, the appellant applied for a waiver of condition 8503. The application referred to the fact that she had married in Australia and indicated that she wished to apply for a partner visa if the condition was waived. The application form had spaces for the appellant to give details that reflected the requirements of reg 2.05(4)(a). In relation to the requirement of a major change in circumstances, she referred to her husband, and the fact that they were married in December 2017 (in fact, their marriage certificate says they were married on 20 October 2018), and had lived together since then. She referred to the fact that her husband was in Australia under a temporary work visa as a chef at a restaurant. She said 'We wish to be together as husband and wife and he is supporting me totally and we are trying to start a family'.
In relation to the question of whether the appellant had no control over those circumstances, she said in the form that she had already had one miscarriage and was very depressed. She said that her mother and siblings left Australia and 'they are suffering'. She said she did not wish to depart Australia without her husband and that their relationship was genuine and ongoing, and said that 'departure will prejudice both my husband and I'.
As to why the appellant's circumstances were compassionate and compelling, her application form said:
Our circumstances are compelling and compassionate because I have serious problem to return to Israel and I am unable to return anywhere else. My husband is working full-time he cannot depart Australia and have leave to be with me. We both have commitments and financial commitments to be met. I wish to lodge an application in Australia.
The delegate's decision record was dated 19 December 2018. She found that the circumstances prescribed in reg 2.05(4) had not been met, so that the waiver request was refused. The delegate acknowledged that the appellant and her husband were married on 20 October 2018 but said that this was a choice and so not a circumstance outside the appellant's control. The delegate acknowledged, however, that the appellant said that she had a miscarriage and was very depressed and accepted that this was outside the appellant's control.
The delegate also acknowledged that the circumstances were 'compassionate'. But she found that they were not 'compelling'. As to the meaning of that term, the decision record said:
The term 'compelling' is not defined in the migration legislation. It is therefore given its ordinary meaning. 'Compelling' means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision‑maker to make a decision to waive the condition.
The decision record then referred, in terms, to each of the circumstances set out by the appellant in her application form. That included the statement about her mother and siblings and their suffering, her wish not to depart Australia without her husband, and her statement 'that she has a serious problem to return to Israel and cannot return anywhere else'. The delegate observed that 'this statement is general and does not demonstrate that the client [appellant] would have problems upon her return to Israel'.
The decision record also referred to the support of the appellant's husband, that they were trying to start a family, and to the miscarriage and the fact that the appellant was very depressed. It said:
While I acknowledge that a period of separation may affect the client and her husbands [sic] decision to start a family, I do not find this sufficiently forceful to waive the condition. I have also considered that it is open to the client to seek treatment in her home country for depression if this is required.
The decision record then referred to supporting evidence of the appellant's relationship with her husband. The delegate made no suggestion that the relationship and marriage were other than genuine. It then said:
I acknowledge that the client's departure from Australia may result in separation from her husband. However the client entered into the relationship knowing that she had no entitlement to remain permanently in Australia. I accept that any separation may cause a level of emotional and financial stress, however I have also considered that there is an offshore visa pathway available to the client, and that any separation may only be temporary. Having considered the circumstances entirely I do not find that they are sufficiently forceful to waive the condition. Therefore, I do not find the circumstances compelling.
Hence the delegate found that the circumstances did not meet the criteria in reg 2.05(4), and so the request for a waiver was refused.
The Federal Circuit Court proceeding
The appellant was self-represented at the hearing in the Federal Circuit Court. She proceeded on the basis of an amended application for judicial review of the delegate's decision, on the following grounds (all errors in original):
1.The Delegate of the Minister failed to apply the law and waive the No further stay condition 8503 while she had before her compelling circumstances which is outside my control such as depression and a miscarriage.
2.The Delegate failed to take into consideration my fear of harm to return to Israel and the extensive evidence of co-habitation and the fact that I cannot return anywhere else, especially I have no right to enter Lebanon as the holder of Israeli passport.
3.The Delegate failed to look at my refugee application which was refused not on the basis that I do not have a well founded of harm but on the basis that I hold Israeli passport and I was born in Lebanon. The Delegate failed to see my compelling circumstances especially my inability to return to either Israel or Lebanon.
4.Contrary to the Delegate's findings I have problem to return to Israel.
5.The Delegate failed to take into account that any separation from my husband will harm me as well as my husband and is sufficiently forceful and harmful.
6.The Delegate failed also to act upon the financial, emotional and physical commitment and any separation will cause prejudice to me and to my husband and the lodgement of an application offshore is not possible because of the reasons outlined in my request to have 8503 condition waived, in particular, the ability to lead a safe life either in Lebanon or Israel and the inability of my husband to join me in either Israel or Lebanon (Lebanon a country which I cannot enter) and Israel, a country my husband cannot enter.
7.I believe that the decision of the Delegate is affected by error of law as it misinterpreted the definition of compelling and misapplied the law by failing to recognise my compelling circumstances.
The primary judge summarised the background, the statutory framework and the delegate's decision. He then referred to the appellant's contentions that the delegate failed to take into account her migration history, in particular her protection visa application. His Honour summarised that history and the contentions as follows (SZVGE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 35 (PJ) at [25]):
The applicant was born in Lebanon and was taken to Israel as a child by her father, who was a member of the South Lebanon Army. Although she has Israeli citizenship, she does not wish to return there because of perceived discrimination against Muslims. Her husband is a citizen of Lebanon and cannot enter Israel. The applicant contends that she and her husband are on the horns of a dilemma which was not properly considered by the delegate. She, as the daughter of a South Lebanon Army officer, cannot go to Lebanon and her husband cannot go to Israel. The only prospect of them being able to continue to live together is to live in Australia.
For procedural reasons the primary judge focussed first on ground 3, which he interpreted as alleging jurisdictional error because the delegate failed to make an obvious inquiry about a critical fact, namely the previous protection visa application. His Honour did not uphold the ground. In his view, the delegate did consider the only information potentially relevant to the protection visa application, namely the appellant's statement, in the application form, that she would have a serious problem if she were to return to Israel and that she cannot return anywhere else. His Honour considered that this claim was not centrally relevant because the appellant had failed to provide any supporting information. He found that the delegate was correct to describe the claim as general. He noted that the application for a protection visa was not mentioned in any information that the appellant gave to the delegate. The bare fact of the application having been made was mentioned in an intra-Departmental submission to the delegate, however.
At PJ [33]‑[34] the primary judge concluded (footnotes removed):
The existence of the protection visa application was not an obvious inquiry about a critical fact, the existence of which could easily be ascertained so as to constitute a failure to review. The applicant's submission was that she had a 'serious problem to return to Israel and [she was] unable to return anywhere else'. In the absence of any particulars to this general claim, no critical fact was raised which could have been easily ascertained. Given the general nature of the claim, the applicant may have been referring to matters outside those advanced in her previous application for a protection visa and, therefore, the delegate would have been conducting a 'roving inquiry' or 'something akin to a judicial inquiry'.
It was incumbent on the applicant to present her claims and evidence in support of her Request. There was no obligation on the delegate to advance the Request on behalf of the applicant. It is possible that, if the applicant had explained the detail of her and her husband's dilemma to the delegate, it might have affected the outcome. Unfortunately for her, she did not do so. As the delegate's decision was a valid one, only the Minister can change it.
The primary judge went on to deal with each of the other grounds of review. As will be seen, grounds 2 and 5 are the only grounds of review that are (arguably) addressed by the grounds of appeal. In relation to ground 2, his Honour concluded that in fact the delegate did give adequate consideration to the appellant's reluctance to return to Israel, given the very general way in which that was expressed in the application. In relation to ground 5, his Honour concluded that the delegate did consider the effect of separating the appellant from her husband and acknowledged that it may cause emotional and financial stress, but she also found that the appellant had entered into the relationship with her husband knowing that she had no entitlement to remain permanently in Australia, and also considered that the appellant would have the ability to apply for a visa offshore so that any separation may only be temporary.
The contention in ground 7 was addressed in the Minister's submissions on appeal although, as will be seen, it was not raised in the grounds of appeal. This ground of review contended that the delegate misinterpreted and misapplied the definition of 'compelling' in reg 2.05(4). Of that the primary judge said (at [46], footnotes omitted):
There is no basis for the applicant's contention that the delegate misapplied 'compelling circumstances'. The delegate considered the meaning of 'compelling' and noted it was not defined in the legislation and was to be given its ordinary meaning. The delegate found 'compelling' meant 'forceful or driving'. The delegate was correct to construe 'compelling circumstances' to mean circumstances which force or drive the decision maker to decide whether or not the jurisdictional fact exists for the exercise of discretion. The delegate understood that the word 'compelling' was used in the context of regulation 2.05(4) in its ordinary sense and had to be considered in light of the facts of the case presented to her. Further, the question of whether something is 'compelling' involves a level of judgment by the individual decision-maker and that judgment is entrusted to the delegate pursuant to the Migration Act. It is not a matter for the Court.
The appellant's case on appeal
The appellant has been self-represented throughout this appeal. The grounds in the notice of appeal are as follows:
1.I mentioned in the Court Book that I am depressed and had one miscarriage and that my circumstances are compelling and have serious problem to return to Israel and unable to depart Australia and that the Delegate failed to look at my refugee application which was refused not on the basis that I do not have a well founded fear of harm but on the basis that I hold Israeli passport and I was born in Lebanon. The Delegate failed to see my compelling circumstances especially my inability to either Israel or Lebanon.
2.His Honour failed to see that the Delegate of the Minister failed to understand that my circumstances are sufficiently forceful contrary to the finding made.
3.I hope that the Federal Court of Australia will look at my circumstances as compelling and not only compassionate.
The appellant sent written submissions to my Chambers, which I have taken into account. The submissions say that her protection visa application made in 2014 was deemed to be invalid because she has dual citizenship of Lebanon and Israel. They refer to a history of judicial review applications in the Federal Circuit Court in relation to that decision, leading up to a judgment dismissing an application for judicial review on 24 November 2017. But the submissions did not explain how that history was relevant to the appeal.
For the most part, the appellant's written submissions focussed instead on what they said were two major changes in circumstances since the time the Visitor Visa was granted, being the COVID-19 pandemic, which commenced at the end of 2019, and the grant of permanent residence status to the appellant's husband in September 2021. The submissions also referred to, and attached evidence of, IVF treatment the appellant has been receiving, which evidence dated from 2019 and 2022. Other documents relevant to the appellant's claims were provided to the Court along with her submissions. The submissions also referred to the current employment situation of the appellant's husband and said that it would affect his employer negatively if the appellant were to leave Australia. The submissions also said that if the appellant is forced to return to Israel, her husband will not be able to come with her because he does not have an Israeli passport.
It is apparent from the summary of the primary judge's reasons given above that none of the matters described in the preceding paragraph were raised with his Honour, apart from the last one. In any event, all of the other matters concern things that have happened since the date of the waiver decision that was the subject of the judicial review application, namely 19 December 2018. The appellant, being self-represented, mostly seeks merits review of that decision which was beyond the power of the primary judge to give, let alone the power of this Court on appeal from the primary judge's decision. Also, it is no criticism of the self-represented appellant that she appears not to understand that the power of the primary judge to grant judicial review could only have been exercised by reference to the circumstances as they stood at the time of the waiver decision that was under review: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [28]. The question before the primary judge was, essentially, whether the delegate had made an error that should be characterised as one which the legislature intended to have the effect of invalidating the exercise of the power: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [29] (Kiefel CJ, Gageler, Keane and Gleeson JJ). That question is to be answered as at the time of exercise of the power: Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at [77] (Mortimer J) (a point not affected by the High Court's discussion of Parker in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430). So in this case, events after the date of the delegate's decision cannot be relevant.
The Minister accordingly objected to most of the documents the appellant sought to rely on as attachments to her submissions. There is no need to make a formal evidentiary ruling as the appellant did not tender them as evidence (and would have faced difficulties in doing so on an appeal). It is enough to say that for the reasons just given, the documents provided by the appellant, including her written submissions, were not relevant to the judicial review task of the primary judge, let alone to the task of this Court on appeal.
Regrettably, the appellant was unable to advance her position further in the oral submissions she made to this court. Those submissions referred again to the 'dilemma' that the appellant and her husband faced, as described by the primary judge. They amounted to a plea to the Court to give her 'another chance'. But the task of this Court is not to consider on the merits whether condition 8503 on the appellant's visa should have been waived in the circumstances at the time, let alone whether it should be waived now. The task of this Court is to determine whether the primary judge fell into error. Nor was the task before the primary judge to determine whether the condition should have been waived. It was to determine whether the delegate fell into an invalidating error of the kind described above.
Consideration
However, notwithstanding the limitations of the appellant's submissions, it is appropriate to examine the grounds of appeal advanced by the appellant to see whether they contend for any error in the decision of the delegate that might be amenable to judicial review. That is because, bearing in mind that she is a self-represented litigant, it may then be reasonable to read the grounds as implicitly identifying error on the part of the primary judge in failing to find that the delegate erred in that way. It must be kept in mind, however, that ultimately the task of this Court is to correct any error by the primary judge.
Approaching ground of appeal 1 in that way, it can be construed to assert that the delegate erred by failing to consider the circumstances that the appellant is depressed, has had a miscarriage, that she will have a serious problem if she returns to Israel, and is unable to leave Australia. It also contends that the delegate erred in failing to look at the appellant's protection visa application and to have regard to the fact that it was refused, not because she was found not to have a well-founded fear of harm, but because she holds dual Israeli and Lebanese citizenship. The reference to the appellant's 'inability to [return to] either Israel or Lebanon' can be construed as a reference to the dilemma described by the primary judge. It is possible to understand this ground, by extension, as a contention that the primary judge erred in failing to find that the delegate had erred by failing to consider those matters.
It is therefore possible to extract contentions from ground 1 which, if correct, could require the appeal to be allowed. It is harder to do so with ground 2. That ground seems to seek merits review, by asserting that the primary judge should have held that the circumstances before the delegate were 'sufficiently forceful' so as to permit waiver of the condition, so that the delegate erred. Ground 3 also appears to exhort this Court to engage in impermissible merits review. Grounds 2 and 3 must, therefore, be dismissed at the outset.
Returning to the contentions I have extracted from ground 1, the first is that the delegate erred in failing to consider the circumstances relied on by the appellant and that the primary judge erred in failing to make a finding to that effect. That contention is plainly wrong. The decision record of the delegate, as summarised above, engaged with each of the matters the appellant put in her waiver application. The delegate said that she had considered all of these matters, and the decision record affords no basis to think that, in fact, she did not. There is no reason to think that the delegate failed to engage intellectually with the matters put in the waiver application. The primary judge reached the same conclusion, in effect, in the way he dealt with and dismissed grounds of review 2 and 5. His Honour was correct to do so.
The second contention in ground of appeal 1 is that the delegate erred in failing to look at the appellant's protection visa application, and the primary judge erred in failing to make a finding to that effect. As has been said, his Honour considered that ground of review in his judgment and concluded that the delegate had no obligation to look at the protection visa application because no critical fact had been raised, the existence of which could be easily ascertained. In formulating the question that way, his Honour relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25], where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that 'a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review', and so 'could give rise to jurisdictional error by constructive failure to exercise jurisdiction'.
SZIAI concerned the duty of review of the then Refugee Review Tribunal. By analogy, perhaps, if the delegate here had failed to make an obvious inquiry of the kind their Honours describe, that could be a constructive failure by the delegate to engage in her task of deciding whether to grant a waiver. But the primary judge was correct to hold that, in this case, the delegate did not commit a jurisdictional error of that kind. In circumstances where all the appellant put in her waiver application was that she had a 'serious problem to return to Israel' and was unable to return anywhere else, nothing had been brought to the delegate's attention that required her to look into the protection visa application. Even if it was significant to the waiver application that the protection visa application was refused because of the appellant's dual Israeli and Lebanese citizenship, that was not something that appeared to the delegate on the face of the materials before her. In the present circumstances, the delegate was under no obligation to look into matters that the appellant put before the Federal Circuit Court and has put before this Court but, unfortunately for her, did not put before the delegate.
Both of the contentions I have identified as to error on the part of the primary judge therefore fail, and ground of appeal 1 must also be dismissed.
The submissions made by the Minister essentially proceeded on the basis that the grounds of appeal made no cogent contention as to error on the part of the primary judge (or on the part of the delegate). The Minister's submissions therefore addressed the correctness of the primary judgment in a general way. Some of those submissions are encompassed (and accepted) in the way that I have approached ground of appeal 1.
There is one submission in particular by the Minister that has not been addressed in that way. It is that there was no error in the delegate's understanding and application of the requirement in reg 2.05(4)(a) that circumstances have developed since the grant of the visa that are 'compassionate and compelling'. Addressing it that way, in the course of general submissions about the correctness of the primary judge's decision, was not a concession that the correctness of the delegate's understanding and application of reg 2.05(4)(a) was raised by the grounds of appeal, and on the analysis of those grounds given above, it was not. In light of that, and in the absence of full submissions from both parties, I do not consider it necessary or appropriate to comment on the proper construction of the regulation in these reasons, beyond noting, with respect, that no error in the treatment of the issue is apparent on the face of the primary judgment.
Conclusion
The appeal is dismissed, with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate:
Dated: 9 May 2022
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