Refugee and Protection Officer v YL
[2017] NZHC 113
•9 February 2017
NOTE: THE CONFIDENTIALITY OF THE NAMES OR IDENTIFYING PARTICULARS OF THE RESPONDENTS AND OF THEIR CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-000536 [2017] NZHC 113
UNDER the Immigration Act 2009, section 245 and
Part 20 Subpart 2 of the High Court Rules
IN THE MATTER
of an appeal to the High Court
BETWEEN
A REFUGEE AND PROTECTION OFFICER
Applicant
AND
YL Respondents
Hearing: 19 October 2016 Appearances:
K Stephen and M Clark for Applicant
C Curtis and T Zohs for RespondentsJudgment:
9 February 2017
JUDGMENT OF FOGARTY J
This judgment was delivered by Justice Fogarty on 9 February 2017 at 12.00 pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:…………………………
Solicitors:
Crown Law, Wellington
Marshall Bird and Curtis, Auckland
A REFUGEE AND PROTECTION OFFICER v YL [2017] NZHC 113 [9 February 2017]
Introduction
[1] This is an appeal by the Crown from a decision of the Immigration and Protection Tribunal (IPT or the Tribunal) granting a Chinese family (mother and two daughters) refugee status.
[2] The whole family, father, mother and three daughters, practice Falun Gong, a Chinese spiritual practice. The family has claimed refugee status based on a fear of persecution if it returns to China, and to some extent, Singapore. The appellant (a Refugee and Protection Officer (RPO)) declined the claim for refugee status by the mother and two of the three daughters, on the basis that these respondents had protection elsewhere as permanent residents of Singapore and there was no well founded fear of persecution in Singapore. The declined claim went on appeal to the IPT, where the claim for refugee status was approved, on 17 February of this year.
[3] The appellant, RPO, was then granted leave of this Court to appeal that decision on a question of law, being “that the Tribunal did not consider the issue of good faith”.1 The appeal to this Court essentially contends lack of good faith2 on the part of the family’s initial dealings with the authorities.
[4] There is no doubt that the Immigration Act 2009, being the statute which governs these processes, provides that in determining whether to accept a claim for consideration, a refugee and protection officer may take into account whether the claim was being brought about by the claimant acting otherwise than in good faith.3
It is also common ground that that is by statute a threshold consideration.
The legislation
[5] Where a refugee and protection officer, in the process of considering whether to accept a claim for consideration, finds that the claim is being brought otherwise
1 A Refugee and Protection Officer v YL [2016] NZHC 1548.
2 See para [8].
3 Immigration Act 2009, s 134(1)(c)(i).
than in good faith, the officer is obliged by law to decline to accept for consideration such a claim. This is s 134, the relevant parts of which provide:
134 Whether to accept claim for consideration
(1) In determining whether to accept a claim for consideration, a refugee and protection officer may take into account whether,—
…
(c) 1 or more of the circumstances relating to the claim were brought about by the claimant—
(i) acting otherwise than in good faith; and
(ii) for a purpose of creating grounds for recognition under section 129.
…
(3) A refugee and protection officer must decline to accept for consideration a claim for recognition as a refugee if the officer is satisfied that 1 or more of the circumstances relating to the claim were brought about by the claimant—
(a) acting otherwise than in good faith; and
(b) for a purpose of creating grounds for recognition under section 129.
[6] There is a right of appeal to the IPT against a decision by an RPO.4
[7] Where such an appeal is brought, s 197 provides that the appeal is to be determined de novo and in the course of determination, the IPT can take into account whether or not one or more of the circumstances relating to the claim were brought about by the claimant acting otherwise than in good faith. Section 197 provides:
197Determination of appeal against decision declining to accept for consideration certain claims for recognition as refugee
(1) Where an appeal is brought under section 194(1)(b), the
Tribunal must—
(a) determine the matter de novo; and
(b) determine whether 1 or more of the circumstances relating to the claim were brought about by the claimant—
4 Section 194(1)(b).
(i) acting otherwise than in good faith; and
(ii) for a purpose of creating grounds for recognition under section 129.
The question of law
[8] Leave is required to appeal from the IPT’s decision to the High Court.
Brewer J granted the RPO leave to appeal on the following question of law:
Whether, in deciding to grant refugee status to the four appellants, the IPT failed to take into account a mandatory relevant consideration and materially misdirected itself by failing to consider whether any or all of the appellants acted otherwise than in good faith or acted in bad faith in unilaterally renouncing their Singapore residence status prior to the IPT's determination to grant them refugee status in New Zealand.
The conduct of renouncing their Singapore residence occurred after the claim for refugee status was made, and so on timing did not fall within the terms of either s 134(1)(c) and (3)(a).
[9] The issue on appeal is whether or not once the claim has been accepted for consideration, and is under consideration, the refugee and protection officer examining the claim can take notice of, and act upon, conduct of the persons seeking refugee status, which conduct was otherwise than in good faith, or in bad faith, even when such conduct occurred after the claim had been accepted for consideration.
The decision under appeal
[10] To understand that question of law, it is necessary to understand how the issues changed from when the claim was first considered by the RPO, to when the appeal was argued before the IPT, when, after oral argument, but before judgment, the IPT received evidence that the appellants had renounced their residence in Singapore so that Singapore was no longer available as an alternative to being repatriated to China. The IPT treated the renouncing of residence in Singapore in the following way:
[1] The appellants are a family comprising a mother (“the mother”), and three daughters (“the oldest daughter”, “the middle daughter” and “the youngest daughter”). They are all nationals of the People’s Republic of China (“China”), but lived, uninterrupted, in Singapore
between 1999 and 2014. They appeal against decisions of a refugee and protection officer of the Refugee Status Branch (“the RSB”) declining to recognise any of them as a refugee or protected person under the Immigration Act 2009 (“the Act”).
[2] The appellants’ claims for refugee status were made upon the basis that they are at risk of being persecuted in their country of nationality, China. The refugee and protection officer declined their applications, relying upon section 138(2) of the Immigration Act
2009 (“the Act”), which provides that:
“… a refugee and protection officer may refuse to recognise a person as a refugee or a protected person if he or she is satisfied that the person has the protection of another country or has been recognised as a refugee by another country and can be received back and protected there without risk of being returned to a country where he or she would be at risk of circumstances that would give rise to grounds for his or her recognition as a refugee or protected person in New Zealand”.
[3] The refugee and protection officer found, in effect, that the appellants had the protection of another country, namely Singapore, and that they could return to Singapore without risk of being returned to China.
[4] During the oral hearing before the Tribunal, the appeals were pursued on the basis that the appellants were at risk of being persecuted in Singapore, that they were at risk of being deported from Singapore to China and that they were at risk of being persecuted in China because they are practitioners of Falun Gong. They put forward the alternative propositions that they were either not entitled to permanent residence in Singapore, or that they were entitled to permanent residence but that they were nonetheless at risk of being deported because they are practitioners of Falun Gong. The Tribunal accordingly began to consider the outcome of the appeals on the basis that the appellants at least potentially had protection available to them in Singapore as permanent residents.
[5] On 21 January 2016, the appellants submitted further evidence to the Tribunal indicating that they have all renounced their respective rights to permanent residence in Singapore. Accordingly, the question of alternative protection no longer arises and the appeals are to be determined solely upon the basis of their prospective predicaments if they were to return to China.
[11] The underlined passage in [5] is at the heart of the appeal by the Crown (RPO). The Crown argues that the IPT should have examined whether or not the renunciation of Singaporean residence lacked good faith or was in bad faith.
[12] With reference to the introductory paragraph [1] of the decision under appeal, the RPO had declined the family’s claims for refugee status on the basis that they had permanent residence status in Singapore. The RPO did not consider credible their claim that they would be at risk of persecution in Singapore.
Although the … family may have genuinely considered their status to be that of temporary residents, it is clear from the conditions on their Re-Entry Permits that they are in fact permanent residents of Singapore.
[13] As noted in the quoted paragraphs, in the appeal from the RPO’s decision to the IPT, the family argued they were at risk of being persecuted in Singapore and of being deported from Singapore to China, and that they were at risk of being persecuted in China because they were practitioners of Falun Gong. The family put forward alternative propositions that they were either not entitled to permanent residence in Singapore, or they were entitled to permanent residence but they were nonetheless at risk of being deported because of their practice of Falun Gong. The IPT’s initial consideration took account of the protection available to the family in Singapore as permanent residents and considered their claim not to have permanent residence to be disingenuous and contradicted by clear evidence to the contrary.
[14] The oral hearing of the Tribunal was in December of 2015. Prior to the hearing, on 24 November, the Tribunal received correspondence again from Mr Gore, as barrister for the family, which included a witness statement from the father of the family. His letter introduces himself as husband of the mother, and father of the three daughters. He narrates his employment history and links it to the question of permanent residence in Singapore. He explains that in October 2014, he resigned from his job in Singapore. The reason for his decision was that the Singapore government was following the Chinese Communist Party in China to persecute what he describes as “Dafa Disciples”. Dafa Disciples practice Falun Dafa exercises and are connected with, or part of, Falun Gong. He deposed that the Singapore government has blacklisted Dafa Disciples and would, if necessary, cancel their permits and force them to leave the country. So in that context, he said the family decided to give up their good quality standard of living and work in Singapore and go to New Zealand to regain their freedom to practice Falun Dafa. However, he explained that resigning from his job in Singapore was not straightforward. His
contract with the company had as one of its terms that if he resigned, he had to give time for the company to look for a suitable candidate for the job and to train the new person for at least three months. Having taken the family to New Zealand, he then headed back to Singapore. A month after he returned to Singapore, he applied for a New Zealand visitor visa to join his family in New Zealand, but it was rejected by Immigration New Zealand. In October 2014, he submitted his resignation to the company. They allowed him to leave but the process lasted nearly five months. He ended up leaving Singapore in April 2015 to go to the USA. He has remained in the USA. To do that, he has had to cash up his retirement fund in Singapore. The consequence of that is the cancellation of his permanent residency in Singapore.
[15] Following the hearing before the IPT, but before the IPT had determined the appeals, the adjudicator of the IPT, Mr Andrew Molloy, received a letter from the family’s barrister, Mr Kerry Gore, dated 21 January 2016. It reads:
We enclose in triplicate documents confirming that the first three appellants have renounced their Permanent Residence Status in Singapore, and that the [mother] no longer has Permanent Residence Status in Singapore. It appears the latter’s Permanent Residence status had lapsed earlier and has thus been lost.
You will recall having been provided on 24 November 2015 with a witness statement from [the father], [the mother’s] husband, advising that he intended to try to obtain a long-term visa to enable him to remain in America for important reasons related to his practice of Falun Dafa. Given that this is a long term arrangement he needs substantial funds to enable him to remain in America and for this purpose needed to access his retirement funds in Singapore. Initially, [the father] thought he would only need to renounce his Singapore Permanent Residence in order to access his retirement funds in Singapore. However, when he approached the Singapore authorities later, he was informed that he and all his family members in New Zealand (i.e. wife and children) would also need to renounce their Singapore Permanent Residence.
In the light of these developments we therefore submit that the Article 1E issue is no longer of any importance. We also submit that the appellants continue to have a well-founded fear of persecution in China and that they should be granted refugee status in New Zealand at the earliest opportunity.
[16] From the bar, Ms Curtis, counsel for the family on appeal, argued that under Singaporean law the consequence of cancelling the permanent residence of the father of the family means that the wife and children also lose their permanent residence and that is the context of the advice to the Tribunal after the hearing, that none of the
family had permanent residence in Singapore. She argued that the Tribunal did not set out this narrative because it was accepted by the Tribunal. The Tribunal did not see in this narrative of events any want of good faith on the part of the family seeking refugee status.
[17] This narrative of fact is contrary to the Crown’s narrative which suggests that after the commencement of the hearing before the Tribunal, and indeed after the hearing of the evidence of the Tribunal, the party’s family acted otherwise than in good faith by cancelling their permanent residence status in Singapore in order to eliminate the option of the family being deported from New Zealand to Singapore, leaving only the unpalatable deportation of the family to China and thus strengthening their case for refugee status.
[18] The Tribunal allowed the family’s appeal, accepting the family no longer had the protection of the state of Singapore. The Tribunal rejected as now irrelevant their earlier “disingenuous” claim not to have permanent resident status in Singapore. Otherwise the IPT found:
[40] …[I]n light of subsequent evidence regarding relinquishing their resident status, such matters are no longer relevant to the assessment of their appeals.
[19] The IPT held the appeals were therefore to be determined solely on the basis
of the family’s prospective predicaments if they were to return to China.
The Crown’s argument
[20] It is an important part of the Crown’s argument that consideration of conduct otherwise in good faith, is not confined to the decision of an RPO to determine whether to accept a claim to refugee status for consideration. Crown counsel agree that there is only limited express reference to the standard of acting otherwise than in good faith in the Immigration Act. They agree that the three references to acting in good faith, set out above, are all set as threshold requirements.
[21] There is one other reference to good faith that limits the ability to bring subsequent claims for recognition as a refugee. It applies only to RPOs and not to the Tribunal. It is contained in s 140:
140 Limitation on subsequent claims
(1) A refugee and protection officer must not consider a subsequent claim for recognition as a refugee or a protected person unless the officer is satisfied –
(a) that there has been a significant change in circumstances material to the claim since the previous claim was determined; and
(b) the change in 1 or more of the circumstances was not brought about by the claimant –
(i) acting otherwise in good faith; and
(ii) for a purpose of creating grounds for recognition under any of sections 129 to 131.
…
[22] The appeals to the IPT are governed by ss 194 and 198. In particular s 194(1)(c), (d) and (e) and s 198(1) and (3) are as follows:
194Right of appeal in relation to decisions concerning refugee or protection status (other than subsequent claims)
(1) A person may appeal to the Tribunal against a decision by a refugee and protection officer –
…
(c) to decline the person’s claim to be recognised under any of sections 129, 130 and 131 as a refugee or a protected person (whether or not the refugee and protection officer recognised the person as a refugee or a protected person under the grounds set out in another of those sections, or both of those other sections):
(d) to cease to recognise the person as a refugee or a protected person under section 143:
(e) to cancel recognition of a New Zealand citizen as a refugee or a protected person under section 145.
…
198Determination of appeal against declining of claim for recognition, cancellation of recognition, or cessation of recognition
(1) Where an appeal is brought under section 194(1)(c). (d) or (e). the
Tribunal must –
(a) determine the matter de novo; and
(b) determine, in the following order:
(i) whether to recognise the person as a refugee on the ground set out in section 129; and
(ii) whether to recognise the person as a protected person on the ground set out in section 130; and
(iii) whether to recognise the person as a protected person on the ground set out in section 131; and
(c) in relation to the matters in paragraph (b)(ii) and (iii), determine whether there are serious reasons for considering that the claimant has –
(i) committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or
(ii) committed a serious non-political crime outside New
Zealand before coming to New Zealand; or
(iii) been guilty of acts contrary to the purposes and principles of the United Nations.
(3) The Tribunal may dismiss or allow the appeal, but may not refer the claim back to a refugee and protection officer for reconsideration.
[23] There is no reference to good faith as a criterion in s 198. However, it is submitted by the Crown that given that there is a threshold prohibition against considering claims for refugee status when one or more of the circumstances relating to the claim were brought about by the claimant acting otherwise and in good faith, the disabling character of such conduct has to be relevant to the situation here where the family took actions after the decision of the RPO, and after the oral hearing of their appeal by the IPT, but before the IPT brought down its decision, which actions had the consequence of losing their permanent residence status in Singapore, as an option to living in China.
[24] Mr Stephen, for the Crown, argued that the relevant statutory provisions, all cited above, have to be read against s 5 of the Interpretation Act 1999, that is, according to their purpose. He further argued that while it is Parliament’s intention that conduct otherwise than in good faith disables acceptance of a claim for consideration, and that is express and indisputable, for the statute to achieve its overall purposes, subsequent conduct, other than in good faith, intending to achieve the same end, must similarly disentitle a person to refugee status.
YL’s argument
[25] Counsel for the respondent family, Ms Curtis, argued that acting otherwise than in good faith was a threshold issue only. She had a second factual argument which was that in fact there was no lack of good faith subsequent to the application, anyway. The father has explained the predicament he was placed in following the refusal of the New Zealand authorities to allow him back into the country, forcing him to the United States (to avoid persecution) and, in turn, to forfeit his permanent residence in Singapore in order to ultimately cash up his retirement benefits in order to live in the USA. Or to put it another way, had he been allowed back into New Zealand to rejoin his wife and three children, the appeal would have been considered by the IPT on the same set of facts as evaluated by the RPO.
Discussion
[26] This is an appeal on a question of law. It is not possible for this Court on appeal to resolve the question of fact as to whether or not the father’s predicament as narrated by him is correct. That would be resolution of a question of fact. The opposing argument being that the family deliberately created the situation whereby they were no longer welcome in Singapore in order to avoid being sent back to China.
[27] The statutory consideration of good faith is expressed as a threshold issue only. The text of the statute includes the term “good faith” in three specific provisions that are limited to the refugee and protection officer’s decision whether or not to consider a claim to refugee status.
[28] But the common law, in my view, is of assistance to determining this issue. Lord Denning in his classic statement in Lazarus Estates Ltd v Beasley5 held:
No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.
[29] The reference to “no order of a Minister”, embraces all exercises of statutory powers. The principle is discussed by Sir William Wade and Professor Christopher Forsyth in their cornerstone text Administrative Law.6 The learned authors remark:7
In administrative law, which was not the context of this statement, there is only scanty material to illustrate it, although in principle it ought to be correct. The only field in which there are examples is immigration law, where it is held that leave to enter given by an immigration officer is vitiated if it has been obtained by any kind of fraud, deception or misrepresentation on the part of the immigrant.
[30] In support of this passage, the authors cite the decisions in R v Secretary of State for the Home Department, ex parte Hussain8 and R v Secretary of State for the Home Department, ex parte Choudhary,9 as well as the House of Lords decision in Zamir v Secretary of State for the Home Department.10 In all three cases, the immigrant had applied for the writ of habeas corpus following his detention pending
removal from the United Kingdom for being an illegal entrant. It was held that the courts should not interfere with the detention of the immigrant because, in each case, the right of the immigrant to be present in the United Kingdom had been obtained by either fraud or misrepresentation.
[31] The principle “Fraud unravels everything” is applicable not only to private dealings, but also to the dealings of a citizen with the state. It is always relevant at any stage in the statutory process to consider whether or not the applicants or appellants are acting otherwise than in good faith. There is and was no need for an
express statutory provision making dishonest conduct vitiating conduct.
5 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712.
6 HWR Wade & CF Forsyth Administrative Law (11th ed, Oxford University Press, 2014).
7 At 193.
8 R v Secretary of State for the Home Department, Ex parte Hussain [1978] 1 WLR 700 (CA).
9 R v Secretary of State for the Home Department, Ex parte Choudhary [1978] 1 WLR 1177 (CA).
10 Zamir v Secretary of State for the Home Department [1980] AC 930 (HL).
[32] In a minute dated 1 November 2016, I drew counsel for both parties attentions to the material set out in paragraphs [28]-[31] above. I advised:
[4] I am minded to the view that conduct demonstrating lack of good faith is always relevant to the exercise of a statutory discretion. There is no need for each statute to state the same. The reason for three specific provisions in the Immigration Act addressing the matter of good faith is in order to impose a severe statutory policy of declining a claimant’s application where the claimant is acting otherwise than in good faith. Absent the enactment of such a specific provision, the decision maker has a discretion as to the consequence of lack of good faith during the process, in any statute, including the Immigration Act.
[33] I received submissions from the Crown supporting this analysis citing additional cases of which I will mention two. In R v South Ribble BC Housing Benefit Review Board ex parte Hamilton11 the Court was considering an argument that applicants were entitled to a housing benefit despite the fact their entitlement was fraudulently obtained. The Court held it was common sense and the intention and structure of the legislation that income support must be lawfully obtained in the sense of neither by fraud nor dishonesty and that legislation should not be construed to enable a person to profit from his own fraud.12
[34] The second authority I note is the United Kingdom Supreme Court decision in Prest v Petrodel Resources Ltd13 in which Lord Sumption said:
English law … has a variety of specific principles … one of these principles is that the law defines the incidents of most legal relationships between persons (natural or artificial) on the fundamental assumption that their dealings are honest. The same legal incidents will not necessarily apply if they are not. The principle was stated in its most absolute form by Denning LJ in a famous dictum in Lazarus Estates Ltd v Beasley.
[35] The respondent’s solicitors filed a 40 page brief opposing these propositions. The core submission was that Parliament had deliberately confined the relevance of good faith and secondly, in giving the application of the statute to a statutory Tribunal without inherent jurisdiction has prevented that tribunal the ITP a statutory authority whose decisions cannot be set aside and not applying the common law
principle as derived from Lazarus.
11 R v South Ribble BC Housing Benefit Review Board Ex parte Hamilton (2001) 33 HLR 9 (CA).
12 At [26] per Scott-Baker J.
13 Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415.
[36] I do not think this is an issue of inherent jurisdiction or not. As identified in the United Kingdom it is always illegal to obtain advantage from a statute by dishonest conduct. The respondents argued that incorporating the Lazarus principle would displace s 5 of the Interpretation Act requiring all statutory provisions to be read in the light of their purpose. On the contrary, I think the proposition can be put the other way, that all statutory powers capable of exercise on threshold facts or by way of discretion presuppose that they are participants seeking the statutory benefit are being honest in their dealings with the decision maker. Of course, this is as I understand it, the position in the United Kingdom.
[37] Counsel for the respondent seemed concerned that recognising the Lazarus principle somehow makes claims by refugees vulnerable. Not so. The common law Courts whether exercising common law powers or statutory powers are always loathe to find any person dishonest in their conduct. Such a finding where the civil standard of proof on the balance of probabilities is required is stepped up to another level having regard to the significance of such a finding.
[38] The common law has never defined fraud. Conduct otherwise than in good faith is, at the very least, deceptive and in that sense dishonest. This is for the good reason that fraud is any form of dishonesty. Dealings between individuals or between an individual and the state which lacks good faith, be that by either party, comes within the principle “Fraud unravels everything”. Why? It takes only a moment’s reflection that the administration of law, whether common law or statute, whether it between dealings of private citizens, or dealings of a citizen and the state, must have integrity.
[39] Section 193 of the Act requires that every appeal be determined in accordance with the Act.14 Applying the common law, and so accepting as relevant classification of conduct as dishonest or fraud, bad faith or lacking in good faith, is consistent with the Immigration Act 2009 as it is with any statute.
[40] The question becomes in this case whether or not this family, father, mother and three daughters, have at any time in the process acted otherwise than in good
faith, in order to obtain refugee status. In that sense good or bad faith is of continuing relevancy. The issue as to the continued relevancy of good faith is decided in the Crown’s favour.
[41] The Tribunal did not examine whether this later conduct was otherwise than in good faith or actions in bad faith. As paragraph [5] of the Tribunal’s decision (set out above in paragraph [10] of this decision) records, after eliminating the option to return to Singapore, the IPT examined the issues on the predicament that the family had to return to China.
[42] The respondents argue in this case that the Tribunal obviously as a matter of fact simply accepted the renunciation of the permanent residency. They argue further that on the probabilities, this was because the Tribunal accepted the explanation of the father’s predicament and conduct in the letter the Tribunal received from the family’s barrister, Mr Kerry Gore, dated 23 January, set out
above.15 The predicament the father was in, as discussed in that letter, was directly
because of the refusal of the New Zealand authorities to allow him back into the country.
[43] I refer to the reasoning of the IPT set out in paragraph [10] above, particularly the quoted paragraph [5]. I do not know whether the underlined sentence reflects a finding of fact that the family members all renounced their respective rights to permanent residence in Singapore in good faith. I do not know whether or not the IPT was considering that it could not examine that proposition because the reference to good faith is only a threshold requirement in the statute. Accordingly, I do not know if the IPT’s decision would have been different if the IPT had appreciated that it could examine the question of good faith at any stage in the process.
[44] Accordingly, the appeal is allowed. I remit the matter to the Tribunal, with this opinion, together with the following directions. The IPT should clarify its underlined finding in the quoted paragraph [5], guided by the three “I do not know”
propositions in [43] above, and/or, if necessary, in its opinion, re-open its hearing, with the goal of either confirming its decision or substituting a different decision.16
[45] Costs are reserved.
Fogarty J
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