Tran v Minister for Immigration

[2016] FCCA 2723

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2723

Catchwords:
MIGRATION – Spouse visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Tribunal’s decision affected by jurisdictional error by reason that it failed to consider mandatory matters – remittal.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.5F, 474

Migration Regulations 1994, reg.1.15A, cl.801.221 of sch.2

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Islam v Cash (2015) 148 ALD 132

First Applicant: STEFFANY TRAN

Second Applicant: DINH TAN VU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1550 of 2014

Judgment of: Judge Cameron

Hearing date: 7 September 2016

Date of Last Submission: 7 September 2016

Delivered at: Sydney

Delivered on: 7 September 2016

REPRESENTATION

Counsel for the Applicants: Mr N. Poynder

Solicitors for the Applicants: Selective Lawyers

Solicitors for the Respondents: Mr A. Keevers of Sparke Helmore

ORDERS

1. Steffany Tran be removed as a party to the proceeding.

2. The Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in the proceeding.

3. A writ of certiorari issue bringing into this Court to be quashed the decision of the Migration Review Tribunal dated 6 May 2014.

4. A writ of mandamus issue directing the Administrative Appeals Tribunal, as successor of the Migration Review Tribunal, to determine according to law the second applicant’s application made to the Migration Review Tribunal on 12 September 2012.

5. The first respondent pay the second applicant’s costs of the proceeding fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2014

STEFFANY TRAN

First Applicant

DINH TAN VU

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The second applicant, Mr Vu, is a citizen of Vietnam who arrived in Australia on 7 January 2008 as the holder of student visa which was due to expire on 31 August 2010. On 15 July 2010 Mr Vu applied for a combined Partner (Temporary) (Class UK) subclass 820 and Partner (Residence) (Class BS) subclass 801 visa. Mr Vu’s application was sponsored by his wife, Steffany Tran, who is an Australian citizen. On 3 September 2012 a delegate of the first respondent (“Minister”) refused Mr Vu’s application for a subclass 801 visa on the basis that he did not satisfy cl.801.221 of sch.2 to the Migration Regulations 1994 (“Regulations”) because he and his sponsor did not meet the definition of “spouse” found in s.5F of the Migration Act 1958 (“Act”). Mr Vu then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of the delegate’s decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. At the commencement of the hearing of this application, Ms Tran, who had been the first applicant, was removed as a party because her joinder had been mistaken and unnecessary.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

Relevant legislation

1. An applicant for a partner visa is required to satisfy a two stage process: he or she must first be granted a provisional visa, being a Partner (Temporary) (Class UK) subclass 820 visa, in order to be considered for the grant of a permanent visa, being a Partner (Residence) (Class BS) subclass 801 visa.  Mr Vu was granted a subclass 820 visa on 22 June 2011.

2. The criteria for the grant of a subclass 801 visa are found in pt.801 of sch.2 to the Regulations. One of the criteria which Mr Vu had to satisfy at the time a decision was made on his application was cl.801.221. At the time the delegate and the Tribunal made their decisions cl.801.221 relevantly provided:

   (1)The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

   (2)     An applicant meets the requirements of this subclause if:

   (a)the applicant is the holder of a Subclass 820 visa; and

   (b)the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

   (i)     the sponsoring partner; or

   (ii)     the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

   (c)the applicant is the spouse or de facto partner of the sponsoring partner; and

   (d)subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

3. The term “spouse” is defined in s.5F of the Act which provides:

   5F     Spouse

   (1)For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

   (2)For the purposes of subsection (1), persons are in a married relationship if:

   (a)they are married to each other under a marriage that is valid for the purposes of this Act; and

   (b)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

   (c)the relationship between them is genuine and continuing; and

   (d)     they:

   (i)     live together; or

   (ii)     do not live separately and apart on a permanent basis.

   (3)The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

4. Regulation 1.15A sets out the matters a decision-maker must consider when determining whether the conditions for a spousal relationship set out in s.5F are met. At all relevant times reg.1.15A provided:

   1.15ASpouse

   (1)For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

   (2)     If the Minister is considering an application for:

   ….

   (c) a Partner (Residence) (Class BS) visa; or

   (d)     a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)     The matters for subregulation (2) are:

   (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 person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)     the nature of the household, including:

   (i)     any joint responsibility for the care and support of children; and

   (ii)     the living arrangements of the persons; and

   (iii)   any sharing of the responsibility for housework; and

   (c) the social aspects of the relationship, including:

   (i)     whether the persons represent themselves to other people as being married to each other; and

   (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; and

   (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)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Background facts

Visa application

1. In his application Mr Vu stated that he met Ms Tran in March 2010 and that their relationship commenced two weeks after they met.  He stated that they married on 22 May 2010.  Ms Tran repeated those details in her sponsorship form.

2. In support of his application Mr Vu provided:

   a)statements of him and Ms Tran dated 14 July 2010 in which they both declared that they had met through a mutual friend and that their relationship was supported by their respective families;

   b)their marriage certificate showing that they had married on 22 May 2010;

   c)an invoice and receipt for their wedding party and a receipt for their wedding rings;

   d)a bank statement for the period 29 April 2010 to 24 May 2010 for a joint account they held with St George Bank.  The statement showed that two deposits and one withdrawal had been made in the statement’s period; and

   e)a statutory declaration dated 12 July 2010 from Mr Vu’s aunt confirming the genuineness of his relationship with Ms Tran.

3. Following a request for further information made by the Minister’s department (“Department”), on 19 August 2010 Mr Vu’s representatives provided the following additional documents:

   a)an undated statement in which Mr Vu stated that since his arrival in Australia he had lived with his sister and her family at an address in Joseph Street, Cabramatta (“Joseph Street address”) and that Ms Tran had moved in with them after their marriage;

   b)a statement dated 17 August 2010 from Mr Vu’s sister stating that Mr Vu and Ms Tran shared a room in her home and paid $120 in rent a week;

   c)copies of Mr Vu and Ms Tran’s driver’s licences which recorded their address as the Joseph Street address; and

   d)a Centrelink statement addressed to Ms Tran at the Joseph Street address.

4. On 22 June 2011 Mr Vu was granted a subclass 820 visa and was advised that he was eligible to be considered for the grant of a subclass 801 visa.  Mr Vu was advised that the Department would contact him concerning any outstanding information when considering whether to grant him a subclass 801 visa.

5. On 29 April 2012 the Department wrote to Mr Vu seeking further information for its consideration concerning whether he should be granted a subclass 801 visa.  In response, on 29 June 2012 Mr Vu’s representatives provided:

   a)separate statements dated 29 May 2012 in which Mr Vu and Ms Tran both stated that they had lived together for more than two years.  They stated that they combined their finances to pay for everyday expenses, were saving money to purchase a house and for holidays, socialised as a couple and shared housework tasks, including cooking, cleaning and going shopping together;

   b)July 2012 statements from Mr Vu’s aunt and a friend attesting to the genuineness of Mr Vu and Ms Tran’s relationship;

   c)a St George Bank statement for the period 28 December 2010 to 27 March 2011 for a second joint account held by Mr Vu and Ms Tran.  The statement showed no transactions apart from an account service fee debited on three occasions;

   d)a St George Bank statement for the period 23 April 2012 to 30 April 2012 for a third account held by Mr Vu and Ms Tran.  The savings part of the account showed an opening and closing balance of nil;

   e)a National Australia Bank (“NAB”) statement for a personal account in Ms Tran’s name for the period 22 October 2011 to 23 April 2012;

   f)a NAB statement for a savings account in Ms Tran’s name for the period 22 October 2011 to 23 April 2012 showing numerous transactions, including transfers on 5 December 2011 for “ben xmas shirts”, on 23 December 2011 for “ben beer”, on 10 January 2012 for “ben brett”, on 20 March 2012 for “Brothel Money” and on 23 March 2012 for “Bendickhead”;

   g)a statement for a credit card Ms Tran held with the Westpac Banking Corporation;

   h)Centrelink documents addressed to Ms Tran at the Joseph Street address; and

   i)four photographs of Mr Vu and Ms Tran together with friends.

6. As noted, on 3 September 2012 the delegate refused Mr Vu’s application for a subclass 801 visa on the basis that he and Ms Tran did not meet the definition of “spouse” in s.5F of the Act and accordingly he did not meet the requirements of cl.801.221 of sch.2 to the Regulations.

Tribunal proceedings

1. On 12 September 2012 Mr Vu sought a review of the delegate’s decision with the Tribunal.  Under cover of a letter dated 25 February 2014 Mr Vu’s representatives provided to the Tribunal:

   a)numerous photographs of Mr Vu and Ms Tran at outings and with friends;

   b)an invoice issued to Mr Vu and Ms Tran by a travel agency;

   c)a statement for the period 1 August 2013 to 31 August 2013 for Mr Vu and Ms Tran’s third joint account with St George Bank.  The statement showed numerous withdrawals on an almost daily basis, one cash deposit, one tax deposit and four deposits from one source (occurring on a weekly basis);

   d)a letter dated 29 August 2013 from St George Bank to Mr Vu and Ms Tran advising them that their application for a residential home loan had been approved;

   e)an invoice dated 6 August 2013 issued to Mr Vu and Ms Tran for a holding deposit paid on a property in Hinchinbrook;

   f)a copy of a contract for the sale of land at an address in Hughes Street, Cabramatta (“Hughes Street address”) between the named vendor and Mr Vu and Ms Tran as purchasers, bearing an Office of State Revenue stamp indicating that stamp duty of $11,217.50 had been paid;

   g)receipts and invoices dated August 2013 issued to Mr Vu for the purchase of the Hughes Street property;

   h)a letter from St George Bank dated 3 October 2013 addressed to Mr Vu advising him that the interest rate on his home loan had been converted to a fixed interest rate; and

   i)a water bill addressed to Mr Vu and Ms Tran at the Hughes Street address.

2. Mr Vu appeared before the Tribunal on 20 March 2014 and gave the following evidence:

   a)after he met Ms Tran in March 2010 he ceased his studies because he did not like his course;

   b)after their first meeting, he and Ms Tran saw each other every three to four days for a total of about six times before he asked her to marry him in April 2010;

   c)both he and Ms Tran worked.  Her pay was deposited into her own separate account;

   d)he and Ms Tran purchased a property together in August 2013 and moved into it in October 2013.  They received part of the deposit money from his aunt and the rest came from their savings.  They had kept the money in cash at home and in their bank accounts;

   e)the references to “Ben” in Ms Tran’s bank statement were references to her best friend.  Ms Tran had given money to Ben to attend a brothel and also bought him shirts;

   f)he and Ms Tran had travelled to Thailand with Ben and another friend but he had returned to Australia after four or five days, leaving Ms Tran, Ben and the other friend in Thailand; and

   g)Ms Tran had also been on holidays to Fiji and Bali with Ben.  He had paid for her to go and had not minded because she had been stressed and had needed the holidays.

3. Ms Tran was also present at the Tribunal hearing.  She confirmed that she and Ben were good friends and had travelled together to Fiji and Bali and to Thailand with Mr Vu.  Ms Tran said she did not know what the reference to “Brothel Money” in her bank statement related to and said she had never been to a brothel.

4. On 4 April 2014 the Tribunal wrote to Mr Vu inviting him to comment on:

   a)an allegation which had been received by the Department to the effect that his and Ms Tran’s relationship was contrived, that Ms Tran had married him for financial gain, that Ms Tran had holidayed in Thailand with her fiancé and that Ms Tran had used some of the funds she had received from him to purchase property, have breast implants and take various holidays;

   b)information in the Department’s records and from Ms Tran which indicated that she had travelled with Ben to Bali in December 2011, to Fiji in January 2012 and to Thailand in July 2013 and that he (Mr Vu) had only joined them for the trip to Thailand and had returned to Australia earlier than they had;

   c)the inconsistency in his and Ms Tran’s evidence in relation to the “brothel money”; and

   d)the fact that he had lodged his partner visa application six weeks before the expiry of his student visa.

5. In response, on 24 April 2014 Mr Vu’s representatives provided to the Tribunal statutory declarations made on 24 April 2014 by Mr Vu, Ms Tran and a Benjamin Scott.  In his statutory declaration Mr Vu claimed:

   a)the allegation that his relationship with Ms Tran was contrived was untrue.  It was also untrue that he had paid her to marry him;

   b)the only property Ms Tran held was the one which they had purchased together;

   c)he and Ms Tran had travelled to Thailand so she could receive breast implants because they were cheaper there.  Ms Tran had been required to stay in Thailand for a post-operation check-up but he had been unable to stay because of work commitments;

   d)Bali and Fiji were cheap destinations and they did not stay there for a long period;

   e)Ben was one of his and Ms Tran’s closest friends and they had been lending him money for some time but they did not ask what he spent it on.  Ms Tran had given money to Ben to attend a brothel but that event had occurred a long time ago; and

   f)he and Ms Tran had been in love and had known that they would get married so they had married and lodged a spouse visa before the expiry of his student visa.

6. Ms Tran’s statutory declaration repeated the claims made by Mr Vu.  She also declared that she did not recall lending Ben money to attend a brothel.  Ms Tran declared that Ben was one of her and Mr Vu’s best friends and that she would not have lent him money to attend a brothel if she had been dating him. 

7. In his statutory declaration Mr Scott declared that he was good friends with Mr Vu and Ms Tran and denied that he was in a relationship with Ms Tran.  Mr Scott declared that Mr Vu and Ms Tran had lent him money on many occasions.  He declared that Mr Vu and Ms Tran were in a genuine and continuing relationship and that he was also in a committed relationship with his girlfriend.

The Tribunal’s decision and reasons

1. The Tribunal accepted that Mr Vu and Ms Tran were validly married on 22 May 2010. However, on the totality of the evidence before it, the Tribunal was not satisfied that at the time it made its decision Mr Vu and Ms Tran had a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that their relationship was genuine and continuing. It concluded that they were not in a spousal relationship and therefore found that Mr Vu did not meet cl.801.221(2)(c) for the grant of a subclass 801 visa.

2. In reaching its conclusion the Tribunal considered the evidence Mr Vu had provided in relation to the financial aspects of his relationship with Ms Tran.  In that regard:

   a)the Tribunal noted that the bank statements for their joint account which Mr Vu had provided to the Department showed minimal or no transactions whereas an NAB account in Ms Tran’s name showed numerous transactions.  It found that those documents did not demonstrate a financial commitment to the relationship;

   b)the Tribunal also found that the documentation Mr Vu had provided to it, at a time when he claimed he had been in a relationship with Ms Tran for four years, remained limited.  It noted that there was only one letter from St George Bank dated in August 2013 addressed to Mr Vu and Ms Tran relating to the approval of a home loan whereas a later loan letter was addressed to Mr Vu only and the August 2013 bank statement for their joint account did not show any withdrawals for mortgage payments or evidence of joint savings; and

   c)despite the lack of a certificate of title or evidence of mortgage repayments, the Tribunal was prepared to accept that Mr Vu and Ms Tran had purchased property together which they jointly owned.  However, it was not satisfied that the evidence supported Mr Vu’s claims that he and Ms Tran had saved money together for the purchase of the property and found that the only evidence that they had made any purchases together was their holiday to Thailand.  The Tribunal noted Mr Vu’s evidence at its hearing that he and Ms Tran preferred to keep their finances separate and accepted that it was not necessary for a couple to combine their financial resources in order to demonstrate that they had a committed relationship.  Nevertheless, the Tribunal found that there remained a dearth of evidence to support Mr Vu’s claims that he and Ms Tran had saved money together or combined their financial resources in anything more than an extremely limited manner.  The Tribunal was not satisfied that the evidence demonstrated that Mr Vu and Ms Tran had made joint purchases, pooled their day to day finances or shared household expenses and was concerned that the evidence provided had been contrived in order to give the appearance of shared finances.

1. In relation to the household and social aspects of Mr Vu and Ms Tran’s relationship, the Tribunal accepted that the evidence of their residence at the same address, the statutory declarations attesting to the genuineness of their relationship, the numerous photographs of them together and their purchase of a property together supported the claim that they had been in a spousal relationship.  However, it found that there was other evidence which was problematic and raised concerns about the genuineness of the relationship.  In that regard:

   a)the Tribunal found that Ms Tran’s travel with Ben so soon after her relationship with Mr Vu purportedly commenced raised concerns about her relationships with Ben and Mr Vu.  In the Tribunal’s view, it was unlikely that a young couple who had only been married for a short time and had not been overseas together would consider it appropriate for one of them to travel overseas with a person of the same [recte: opposite] sex.  While accepting that Ms Tran had had medical appointments in Thailand and that Mr Vu might have had work commitments which required him to return to Australia earlier that she, the Tribunal found that Ms Tran’s overseas travel alone with Ben on two previous occasions raised concerns about the nature of her relationship with him and concerns that Mr Vu had accompanied them on the trip to Thailand in an attempt to fabricate evidence of his relationship with Ms Tran;

   b)the Tribunal also found that Ms Tran’s bank statement which indicated that she had bought gifts for Ben and given him money raised further questions about her relationship with Ben.  It noted that, at its hearing, Mr Vu said that Ms Tran had given money to Ben to attend a brothel whereas Ms Tran said that she did not know about any “brothel money”.  It found that if Ms Tran had given money to Ben to go to a brothel she would have recalled doing so.  The Tribunal concluded that Mr Vu’s evidence on this issue was manufactured in response to questions put to him at its hearing.  It therefore did not accept that Ms Tran had given Ben money to go to a brothel; and

   c)the Tribunal found that the extremely short duration of Mr Vu and Ms Tran’s relationship prior to their decision to marry, and their marriage shortly before Mr Vu’s student visa was due to expire, raised further doubts about their relationship.  It noted that on their evidence Mr Vu and Ms Tran had met each other on six or seven separate occasions before deciding to marry.  The Tribunal concluded that the short duration of their relationship before marriage, combined with the other circumstances of their relationship, indicated that they had contrived their relationship so that Mr Vu could obtain a visa to remain in Australia.

2. In light of its findings, the Tribunal found the allegation that Mr Vu and Ms Tran’s relationship was contrived probative and reliable.  It found that the documents and photographs Mr Vu had provided as evidence of his relationship with Ms Tran were capable of being obtained even if they were not in a genuine and committed relationship.  It also did not accept that Mr Vu’s purchase of a property or the other documentation he had provided was sufficient to overcome the highly problematic nature of the other evidence before it.

Proceedings in this Court

1. In the application commencing these proceedings Mr Vu alleged:

   The Tribunal failed to consider matters made legally relevant by Migration Regulation 1.15A(3)(b)(ii) and 1.15A(3)(b)(iii).

2. In summary, Mr Vu submitted that the Tribunal failed to consider his and Ms Tran’s living arrangements and whether they had shared responsibility for housework.  He submitted that the Tribunal had done no more than refer to evidence on these issues which had been before it, without engaging in the intellectual exercise necessary to amount to the sort of consideration required by law.  In that regard, he cited what Flick J had said in Islam v Cash (2015) 148 ALD 132 at 135 [14].

3. For his part, the Minister argued that the Tribunal had engaged in a balancing exercise insofar as the evidence was concerned and that the nature of that exercise implied that the Tribunal had taken into account the evidence concerning living arrangements and household tasks, even though it had not articulated that consideration expressly.  It was submitted that the Tribunal’s recitation of the evidence on these questions which had been provided by Mr Vu, and Ms Tran, indicated that the Tribunal had not overlooked it and its statements that it had “considered the evidence in relation to the nature of the household and the social aspects of the relationship” and had “considered the totality of the evidence” were evidence that it had taken the questioned matters into account. 

4. The matters which reg.1.15A(3) sets out are mandatory considerations to which the Tribunal must have regard. Reaching a decision without considering those matters is an act in excess of jurisdiction because the Tribunal’s jurisdiction to make a decision on the sort of visa in question in this case does not arise until the conditions precedent to its existence, which include consideration of the matters in reg.1.15A(3), have been satisfied.

5. I am persuaded that in this case the Tribunal has acted in excess of jurisdiction.  Undoubtedly, there was a body of evidence before the Tribunal which reasonably gave it cause to question Mr Vu and Ms Tran’s relationship.  However, there was also a body of evidence which indicated the existence of such a relationship. 

6. An important issue to consider when deciding which characterisation of events to accept was whether Mr Vu and Ms Tran actually lived together and, if they did, how they lived together. The centrality of such considerations is underlined by the fact that reg.1.15A(3) makes them matters which must be considered before the Tribunal’s jurisdiction is engaged.

7. The Tribunal rejected the genuineness of Mr Vu and Ms Tran’s relationship without addressing those issues expressly.  If they had been less important, then perhaps failure to advert to them expressly might not be characterised as failure to consider them.  They could have been subsumed in findings of greater generality, for example.  However, when a question vital to the existence of the Tribunal’s jurisdiction to decide an issue is not expressly addressed, one must suspect that it has been overlooked. 

8. That is the conclusion I have reached in this case.  I believe that the Tribunal was distracted, most particularly by the possibility of infidelity by Ms Tran, and rejected the genuineness of her and Mr Vu’s relationship without testing the concerns aroused by her holiday history and payments to the friend Ben against her and Mr Vu’s domestic circumstances in respect of which there were no express findings. 

Conclusion

1. For these reasons I conclude that the Tribunal’s decision is affected by jurisdictional error.  It will be set aside and the matter remitted to the Tribunal to be determined according to law.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 24 October 2016