Wang v Minister for Immigration
[2016] FCCA 2149
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2149 |
| Catchwords: MIGRATION – Business skills visa – direct and continuous involvement in the management of a business – allegation of bias of Tribunal – Wednesbury unreasonableness – no procedural unfairness or jurisdictional error – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.353, 420 Migration Regulations 1994 (Cth) |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| First Applicant: | MIN WANG |
| Second Applicant: | LIQIANG SUN |
| Third Applicant: | HAOTING SUN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1486 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 13 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Levingston. |
| Solicitors for the Applicant: | Christopher Levingston & Associates. |
| Counsel for the Respondents: | Ms M Stone. |
| Solicitors for the Respondents: | DLA Piper. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The application filed in this proceeding on 1 June 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1486 of 2015
| MIN WANG |
First Applicant
| LIQIANG SUN |
Second Applicant
| HAOTING SUN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant is a female citizen of China aged 45 years, having been born on 14 November 1970.
The second applicant is a male citizen of China aged 47 years, having been born on 29 July 1969, and is the husband of the first applicant.
The third applicant is the daughter of the first and second applicants, aged 17 years, having been born on 21 April 1999.
On 18 March 2014 all applicants applied for a Business Skills (Residence) (Class DF) visa (Business visa).
They seek in this proceeding, by constitutional writs, to have quashed and remitted for determination according to law, a decision of the Second Respondent, the Administrative Appeals Tribunal (at time of the decision the Migration Review Tribunal) (Tribunal) dated 6 May 2015 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 17 July 2014 refusing to grant them a Business visa.
Background
The Subclass in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which was applicable to the Business visa application was Subclass 890. Under Subclass 890 the primary criteria had to be satisfied by at least one member of the family unit and in this case the primary applicant was the first applicant (hereafter the Applicant) and the second and third applicants were the secondary applicants as members of the Applicant’s family unit, and their Business visa applications were dependent on the Applicant satisfying the primary criteria under Subclass 890.
At the hearing in this Court Mr Levingston appeared for the applicants and Ms Stone appeared for the First Respondent.
It was agreed by Mr Levingston that paragraphs 3 to 6 of the First Respondent’s Outline of Written Submissions correctly and sufficiently stated the applicable and relevant criteria to be considered in this proceeding, and those paragraphs were as follows:
3.A criterion for grant of the Business visa, to be satisfied at the time of application, was clause 890.211(1) of Schedule 2 of the Migration Regulations 1994 (Cth), which required as follows:
The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
4.Pursuant to clause 890.221, the applicant needed to continue to satisfy this criterion at the time of decision.
5.'Main business' is defined in regulation 1.11 of the Regulations as follows:
(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a) the applicant has, or has had, an ownership interest in the business; and
(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business[emphasis added]; and
(c) the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse or de facto partner, in the business is or was:
(i) if the business is operated by a publicly listed company--at least 10% of the total value of the business; or
(ii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is at least AUD400 000;
at least 30% of the total value of the business; or
(iii) if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is less than AUD400 000;
at least 51% of the total value of the business; and
(d) the business is a qualifying business.
6.The definition of 'ownership interest' is that found in section 134(10) of the Migration Act 1958 (Cth), and 'qualifying business' is defined in regulation 1.03. These definitions are not relevant in the present case.
The Applicant’s Business visa application rested on her ownership in a company named Minz Investment (Aust.) Pty Ltd (Minz) and there was never any doubt about this. The Applicant has always held 100% of the shares in Minz.
The decision of both the Delegate and the Tribunal turned on whether or not the Applicant satisfied the definition of “main business” in reg.1.11(1)(b) of the Regulations and this involved, in particular, the involvement and prominence of one Mr Jiaming Ren (who had been the original founding director of Minz upon its incorporation on 17 June 2011) and his businesses in the business activity of the Applicant and Minz.
Accordingly, the criterion that the Applicant had to meet to the satisfaction of the Minister was that for at least 2 years immediately before 18 March 2014 she had an ownership interest in Minz and she had with respect to its business “maintained direct and continuous involvement in [the] management of the business from day to day and in making decisions affecting the overall direction and performance of the business”.
Decision of Delegate
A Delegate of the Minister, in her Decision Record of 17 July 2014, found that she was not satisfied that the Applicant had met cl.890.211 of Sch.2 to the Regulations. After having made a number of factual findings which will be referred to below, she did not accept that the Applicant was meaningfully involved in the continuous management of Minz over the relevant two year period. In particular the Delegate was not satisfied that the Applicant had conducted the business of Minz independently from Mr Ren’s travel service and luxury coach business and that the prominence of Mr Ren in the operations of Minz restricted the Applicant’s autonomy to effectively make decisions affecting the overall direction and performance of Minz.
In the result, the Delegate found that the Applicant as primary applicant had failed to meet the primary criteria, and that meant that her husband and daughter as secondary visa applicants did not meet cl.890.321(b) of Sch.2 to the Regulations at the time of decision and she refused the Business visa application by the applicants.
Decision of the Tribunal
The applicants applied to the Tribunal for review of the Delegate’s decision on 23 July 2014 and the Applicant attended a hearing before the Tribunal on 16 March 2015 and subsequently made further comments and provided further evidence in writing after the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages and the applicants were represented by their registered migration agent, Mr Shi, who attended the Tribunal hearing with the Applicant. The second applicant also attended but was not sworn and did not play any role.
The transcript of the Tribunal hearing was tendered in evidence in this Court by the Applicant and its relevance will be considered below.
In the result, the Tribunal was also not satisfied that the Applicant had been involved in making decisions affecting the overall direction and performance of the business operated by Minz during the two period from 18 March 2012 to 17 March 2014. It found that she had not had direct and continuous involvement in making decisions affecting the overall direction and performance of the business and that therefore the business did not meet the definition requirement of reg.1.11 of the Regulations so as to be considered a main business in respect of herself. That meant that the Applicant did not satisfy the requirements of cl.890.211(1) of Sch.2 to the Regulations.
The Tribunal commenced the substantive part of its Decision Record of 6 May 2015 by identifying in paragraph 9 that the issue of concern was whether the Applicant had maintained direct and continuous involvement in the day-to-day management of Minz and in making decisions affecting the overall direction and performance of the business for the two years immediately before the Business visa application was lodged on 17 March 2014.
The Tribunal found that the only business operated by Minz was the business known as Minz Coach & Tour which owned two commercial vehicles used for passenger transport in Sydney and one passenger vehicle.
The Decision Record of the Tribunal then referred to a large body of documentation which had been submitted in connection with the establishment of Minz and its only business activity. It accepted that this evidence established that the Applicant had been the only shareholder, secretary and Director of Minz from 22 September 2011, although at incorporation on 17 June 2011 Mr Ren had been the original founding director.
At paragraph 18 of the Decision Record the Tribunal recited certain findings of the Delegate which at the hearing in this Court Mr Levingston agreed could be accepted by me as factually correct for the purposes of this proceeding. Paragraph 18 was as follows:
18. The delegate pointed to the following issues which were dealt with in the decision record provided by the review applicant’s to the tribunal:
-A Certificate of Accreditation issued by New South Wales Transport on 19 June 2012 and accompanying letter indicate that Mr Ren is the Designated Manager/Director of Minz for the prosper of accreditation in accordance with the Passenger Transport Act 1990. The delegate notes that this appears to have been issued in a period when Mr Ren was neither a Director or employee of Minz;
-Initial lease documents for the business premises were executed by Mr Ren, although Ms Wang’s name was signed on different pages;
-The documents provided to the department regarding rentals did not refer to Ms Wang but did refer to Mr Ren for periods when he was neither an employee nor Director of Minz;
-The employees did not make reference to drivers employed by Minz, however meeting summaries at which Ms Wang was present indicated repeated references to drivers;
-A Bus and Coach Operators Liability Questionnaire signed by Ms Wang indicated that no contractors or labour hire was used in the operation of Minz. This raised questions as to how the business could operate a coach and tour service without drivers;
-Tax invoices for insurance renewal for 2012 and 2013 referred to Mr Ren and made no reference to Ms Wang;
-Contracts for the supply of two Mercedes Benz buses were signed by Mr Ren. An invoice for the refit of these vehicles made reference to JJ Travel Service [i.e. a business of Mr Ren’s], rather than Minz;
-Minz and JJ Travel Service shared identical addresses and contact information in records before the department;
-Two tax invoices submitted for Minz provide a different address that [sic] other documents and include reference to provision of services in Melbourne which did not appear to be a part of the services offered by Minz;
-Booking and itinerary information provided to the department regarding the operation of Minz made no reference to Ms Wang and contained a reference to a website which was not operative;
-Vodaphone tax invoices from 2012 and 2013 submitted by Ms Wang were addressed to a premises which appeared to be the registered offices of the company operated by Mr Ren.
In the result the Tribunal’s core findings are found at paragraphs 41 to 43 of its Decision Record, which were as follows:
41. Having considered all of the available material the tribunal is not satisfied that Ms Wang has the required involvement in making decisions affecting the overall direction and performance of Minz. The tribunal accepts that she is familiar with the business operations and that she had some involvement in paperwork associated with the operation of the business trading as Minz Coach & Tour, but does not believe she has ever had any involvement in making decisions affecting the overall direction and performance of the business. The tribunal is conscious that the relevant definition does not require that she have total responsibility for making decisions affecting the overall direction and performance but only an involvement in those matters. Having considered the available material the tribunal is not satisfied that she had any relevant involvement in such decisions.
42.In the tribunal’s view the business activity attributed to Minz arises directly from an arrangement with Mr Ren by the visa applicant and her husband in an attempt to secure visas. The tribunal does not accept the evidence that Ms Wang acts as General Manager of this company and has involvement in making relevant decisions. In the tribunal’s view decision-making affecting the overall direction and performance of Minz is taken by Mr Ren with no reliance on input from Ms Wang.
43.In the tribunal’s view the available material demonstrates clearly that this is an attempt to found a visa application on a business which was established and controlled by Mr Ren from the outset, and that this remains the case. Minz has only ever established a physical presence at offices co-located with JJ Travel Service. They share telephone numbers on the business cards of Ms Wang and Mr Ren and the tribunal is of the view that the operations of Minz grew out of the activities of Mr Ren at JJ Travel Service. Giving it the appearance of being established by and controlled by Ms Wang is simply a screen in the tribunal’s view to support this application.
The Tribunal then went on further to say that it had considered the Applicant’s explanation that all times Mr Ren had been acting on her behalf and on behalf of Minz but did not accept this to be the case, either in 2011 or up to the current time. The Tribunal expressed the view that from the outset Mr Ren had been making decisions without recourse to the Applicant and that this had continued into the present time. Whilst the Tribunal accepted that the Applicant did attend the office premises of Minz and was familiar with paperwork associated with the payroll, taxation and general business operations of Minz, overall those matters did not satisfy the Tribunal that she had the requisite involvement in making decisions affecting the overall direction and performance of Minz. The available material indicated rather that the position she purported to occupy through her formal attachment to the business of Minz masked an arrangement of the business operations of that company which did not involve her in the required decision-making.
The Tribunal affirmed the decision under review to refuse the Applicant a Business visa and refused Business visas to the second and third applicants as secondary applicant family members because at the time of application they did not satisfy cl.890.311.
Proceeding in this Court
The Grounds of application for review in this court are:
1.The Respondent fell into jurisdictional error by failing to give a proper and genuine consideration to the evidence before it contrary to the provisions of section 353(1) and (2) of the Migration Act 1958.
Particulars
(a) It was not reasonably open to the Tribunal to find that the Applicant in the application (Visa subclass 890) was not, at the time of application and subsequently, performing the functions of the company in order to evidence satisfaction of the Requirements of regulation 1.11(1)(b) in the face of a finding to the effect that she attends the business daily to attend to the Company's business (paragraph 20) and that she was in addition the only shareholder, Director and Secretary of the 'Main Business' (paragraph 39) and was thus not a person who “ever had any involvement in making decisions affecting the overall direction and performance of the business" (paragraph 41). Such a finding was “wedensbury" unreasonable having regard to the totality of the evidence.
(b) There was no probative evidence of any “arrangement” between the Applicant and Mr Ren to in effect mislead DIBP and the Tribunal “in an attempt to secure visas” (paragraph 42 and 43) and the Tribunal's “view” and the failure to put that “view” to the Applicant constituted a traversal of the obligations under section 353 of the Act
and the procedural requirements incorporated in section 359A of the Migration Act 1958.I note that the last, struck-out clause of (b) to the Particulars above was withdrawn by Mr Levingston both in the Applicants’ Written Submissions and subsequently at the hearing.
Further, Mr Levingston disavowed any reliance on:
a)Actual bias of the Tribunal member;
b)Any suggestion of procedural unfairness or apprehension of bias, by reason of the type of conduct considered by the High Court in Re Refugee Review Tribunal [2001] 179 ALR 425 or the Full Court of the Federal Court of Australia in SZRUI v Minister for Immigration [2013] FCAFC 80, such as constant interruptions of the Applicant’s evidence by the Tribunal member, or constant challenges to her truthfulness, moralising speeches, incredulous eye-rolling, sarcasm, mocking or rudeness or other such vices. It was accepted by Mr Levingston that the Tribunal member in this respect had conducted himself in a polite, courteous and professional way.
Nevertheless, Mr Levingston contended at the hearing in amplification and support of the Applicants’ Written Submissions that:
a)The Tribunal member was fixated on a case theory to which he was locked in and for which he had a closed mind and could not be persuaded to another view and this dictated the conduct of the Tribunal hearing and tainted its independence and gave rise to a significant erosion of the requirement that the proceeding be “fair” and “just” as contemplated by s.353(1) of the Migration Act 1958 (Cth) (the Act);
b)The Tribunal decision was infected by Wednesbury unreasonableness and legal capriciousness, having regard to the totality of the evidence before the Tribunal.
At the relevant time s.353 of the Act provided as follows:
353 Tribunal’s way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
Consideration
It is clearly established that provisions such as s.353 of the Act are facultative and not restrictive, and do not themselves impose obligations enforceable by administrative law remedies. As French CJ said of s.420 of the Act, an analogue of s.353, in Minister of Immigration v Li (2013) 249 CLR 332 at 343 ([12]):
… Nevertheless, it was the broad facultative language of s 420 that supported the conclusion that it did not give rise to grounds for judicial review based on a failure to comply with its exhortations…
See also generally Minister for Immigration v Eshetu (1999) 197 CLR 611.
Turning now to the issue of bias, actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative tribunal, such as the Tribunal, may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 per Gaudron and Gummow JJ; Minister for Immigration v Li & Anor (supra) at 357 ([48]).
Actual bias has been disavowed by Mr Levingston but is still closely related to his first submission, summarized in paragraph 27(a) above, because actual bias is usually grounded in a form of pre-judgment. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 532 ([72]) as follows:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
A finding of actual bias is a grave matter: Sun v Minister for Immigration (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 ([97]):
97.The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.
The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427 at 437-438 ([33]).
On the other hand, the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345. It is an objective test not requiring an assessment of the state of mind of the judge, as is necessary on an enquiry about actual bias: Michael Wilson & Partners v Nicholls & Ors (supra) at 437 ([32]).
In my opinion there is no basis for any claim by the Applicant that she has suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.
First, the Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration [2002] FCA 668 ([38]).
Second, neither the Tribunal Decision Record nor the transcript of the Tribunal hearing lend any support to the Applicant’s contention that the Tribunal member adopted a case theory from the outset from which he was not prepared to depart or that he assumed or prejudged any matter or aspect of the Applicant’s case and claims in support of the Business visa application.
The transcript of the Tribunal hearing which I have read and considered indicates first that the Tribunal member, Mr Jonathon Duignan, did indeed conduct himself professionally and with courtesy and respect towards the Applicant and those present on her behalf.
After welcoming the Applicant and having her sworn, Mr Duignan welcomed the interpreter and then addressed to him the following introduction for translation to the Applicant:
MR DUIGAN: All right, Welcome to the proceeding, sir, and welcome also to Mr Shi today. All right. I think as you understand you have applied for a permanent visa to remain in Australia, and that was refused by the Department of Immigration. The Department of Immigration appeared to be concerned about whether you had the required interest in a business for the two years before you applied. As so the period I’m meant to consider your involvement in the business or is for two years before you made this visa application. So that will be the period from 18 March 2012 until 17 March 2014.
And part of the requirement is that any business you’re relying on, you have maintained involvement in that business for at least that two-year period. And it must have involved direct and continuous involvement in the management of the business from day-to-day and also in making decisions affecting the overall direction and performance of the business. I’ve read information that was provided to the Department of Immigration, and also information that you and your advisors have provided since then to the Tribunal. And as I understand it, you’re relying on a business operated through the company known as Minz…
Having regard to the findings of the Delegate, summarized in paragraphs 12 and 13 above, this introduction by Mr Duignan was unexceptionable and to be expected. After all, Mr Duignan was reviewing the decision of the Delegate (a copy of which had been forwarded by the Applicant to the Tribunal with the application for review lodged on 23 July 2014) under a statutory duty to do so and the Applicant’s claims had been rejected by the Delegate and were accordingly in issue before the Tribunal in the review: SZTJG v Minister for Immigration [2015] FCA 1085 ([22]) per Rares J agreeing with the Court below. Further, nothing in Mr Duignan’s introduction indicates pre-judgment or devotion to some form of case theory.
Mr Duignan then proceeded to ask questions about the Applicant’s involvement in the business of Minz and also the involvement of Mr Ren and his business, JJ Travel Service. All of his questioning was conducted in a courteous and, on the face of the transcript, a reasonable and moderate fashion. His questioning appears pertinent and relevant to the issues he had to consider. After the hearing (which took some 3 hours) had proceeded for some time Mr Duignan offered a 15 minute break which was then taken. Towards the end of the hearing Mr Duignan indicated that he had asked all the things that he wanted to raise and he enquired whether there was anything else that the Applicant wanted to raise and thought important, which had not yet been discussed. The Applicant responded through the interpreter and then Mr Duignan invited Mr Shi to raise any other areas of evidence which he thought should be covered and Mr Shi did so.
Then some further questions were asked by Mr Duignan of the Applicant on a topic raised by and at the request of Mr Shi. Mr Shi then made some further submissions. I note at this point that neither the Applicant nor Mr Shi complained to Mr Duignan of his conduct at the hearing.
The Tribunal hearing ended with the following exchange:
MR DUIGAN: All right. Well, the process now is I need to think about everything we’ve talked about and all of the material that has been provided about your case. I need to think about whether I believe you had the relevant involvement in the business for the two-year period or at least two years before the application. But unless there’s anything more you want to raise now, we could finish the hearing.
THE INTERPRETER: Can I ask you if there’s any negative views about me?
MR DUIGAN: The things that were of concern, I have discussed with you, and I then need to make my mind up about those things, but I don’t do that immediately. The purpose of today was to hear what you had to say about your case.
THE INTERPRETER: Okay. Thank you.
MR DUIGAN: There’s no need to thank me. This is what I – this is my job, but I do thank you for your evidence. I know sometimes these can be difficult things to talk about.
In my view, neither the Tribunal Decision Record nor the transcript of the Tribunal hearing support any suggestion that the Tribunal member was in any affected by actual bias, or that there could be any apprehension of bias in connection with him or his decision.
That leaves the issue of whether or not the Tribunal’s decision was infected by Wednesbury unreasonableness. Mr Levingston said all he reasonably could in support of this ground, but in my view the ground merely constitutes an impermissible attack on the merits of the Tribunal’s decision to affirm the Delegate’s decision.
I consider that it was open to the Tribunal to engage in the process of reasoning in which it did engage on the body of evidence and material before it and to make the finding it came to on that material. In this respect the following passage from the judgment of Crennan and Bell JJ in Minister for Immigration v SZMDS [2010] 240 CLR 611 at 649-650 ([135]) is applicable to the decision of the Tribunal under review:
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was.
In my view, legal unreasonableness cannot be inferred from the Tribunal decision in the sense that it was arbitrary, capricious, without common sense, plainly unjust or without an evident, transparent or intelligible justification.
In my view no breach of procedural fairness, bias of any sort or jurisdictional error has been established and the application should be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 23 August 2016
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