Archer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

IN THE TRIBUNAL 8 In its reasons, the Tribunal set out Ms Archer's migration background, the legislative framework and correctly posed the issue as being whether it could be satisfied there was 'another reason' to revoke the cancellation decision. It observed, in making this assessment, that it must comply with Direction No. 79. It then proceeded to summarise the relevant aspects of Direction No. 79, Ms Archer's offending history and her evidence and submissions to the Tribunal. 9 From [98] onwards in its detailed decision, the Tribunal considered the various primary and other considerations identified in Direction No. 79. In doing so, in relation to the first primary consideration, 'protection of the Australian community', it observed that Ms Archer's offending was generally related to property crime and fraud which, on her own evidence, involved greater than $365,000 over one particular three year period (at [106]). The Tribunal considered that there had been a steady trend of increasing seriousness in her offending, and that the principal driver of the offending was to fund her drug addiction. It noted (at [109]) that Ms Archer had twice previously had her visa cancelled, which had been revoked on each occasion, yet she nonetheless reverted to offending shortly thereafter. It observed (at [114]-[115]) that an assessment, performed in March 2020 by WA Corrective Services, found her risk of reoffending to be 'very high'. Further, although it noted the frankness with which Ms Archer's evidence engaged with the causes of her past offending, and that she did not shy away from their seriousness, the Tribunal said (at [119]): Ms [Archer's] own insight into the precipitators of her offending is only half the equation; what is also needed is a genuine commitment not to revert. She admitted in answering questions from the [Minister's] representative that she had disengaged on several occasions from counselling. There was some evidence (for example, Exhibit A1) of some short courses she had successfully completed, but there was also other evidence of breaching orders to continue counselling. 10 On these bases, and the sentencing remarks of a magistrate to the effect that court-ordered counselling and rehabilitation had had 'little effect', the Tribunal concluded (at [121]) that there was 'a very high risk of Ms [Archer] re-offending'. 11 Accordingly, the Tribunal considered that the first primary consideration (protection of the Australian community) weighed strongly against revocation of the cancellation decision. 12 The Tribunal then turned to the second primary consideration, 'best interests of minor children in Australia affected by the decision'. The Tribunal first noted (at [123]) that none of Ms Archer's children are minors, and nor do any of her adult children have children of their own. The Tribunal did accept that the best interests of Ms Archer's 16-year-old nephew favoured revocation of the cancellation decision, but this weighed only very slightly in favour of Ms Archer, because of the limited contact between her and her nephew, and because other persons held a parental role in his life. 13 In relation to the third primary consideration, 'expectations of the Australian community', after citing a number of authorities as to the proper approach to the consideration, the Tribunal concluded as follows (at [134]-[135]): 134. Ms [Archer's] many appearances before various Courts in two States over the period from 1991 to 2020 and her convictions for numerous offences relating, particularly, to fraud and stealing, would in the Tribunal's view incline the 'prism' of community expectations against her retaining a visa. There would no doubt be a tempering because of the length of time that Ms [Archer] has resided in Australia - all of her adult life and half of her pre-adult life. However, what mitigation there might be felt in this respect would be likely, in the Tribunal's view, to be radically diminished by the fact that [Ms Archer's] visa has been twice cancelled on the basis of her offending on previous occasions, and twice restored on the basis of assurances of improved conduct. Swift resumption of offending nevertheless ensued. 135. The Tribunal's considered view is that the scope of the offending and its relentlessness would cement an expectation that Ms [Archer] would not be expected by the Australian community to continue to hold a visa to remain in Australia. 14 Direction No. 79 then required the Tribunal to have regard to the 'other considerations' which are: (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed. 15 As foreshadowed above, the Tribunal's consideration of Ms Archer's strength, nature and duration of ties to Australia ('Ties' Consideration) is impugned in this case. For completeness, the Tribunal found the remaining considerations (at (a), (c), (d) and (e) above) to weigh neutrally in the assessment. Those findings are not in dispute. 16 As to the 'Ties' Consideration, Direction No. 79 required the Tribunal to embark on the following assessments: 14.2 Strength, nature and duration of ties (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to: a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. More weight should be given to [the] time the non-citizen has spent contributing positively to the Australian community. b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely). 17 Importantly for present purposes, the Tribunal construed its task as required by Direction No. 79 as follows (at [140]-[141]): 140. The Direction requires the Tribunal to have regard to how long a person has resided in Australia, including whether he or she arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the community. 141. Regard must also be had for the strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents or people with an indefinite right to remain in Australia, including the effect on the non-citizen's immediate family of non-revocation. 18 At [142]-[146], the Tribunal proceeded to consider evidence of Ms Archer's previous employment and a letter written by her eldest child. It also noted the 'significant effect' that her repatriation to New Zealand would have on her children who, despite the disruptions they have experienced in their home life, have grown into adults who contribute positively and successfully to Australian society. The Tribunal accepted that, despite troubling events in the past, including historical court orders that restricted Ms Archer's contact with some of her children, Ms Archer had rekindled her relationship with her children and that, although they could visit her in New Zealand, it would be desirable from their perspective if she remained in Australia. 19 At [147] of its decision, the Tribunal expressed its conclusion regarding the 'Ties' Consideration. It is this paragraph which Ms Archer claims is attended by error, particularly the second sentence. The paragraph reads as follows: The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa. The weight is lessened, according to the exhortation in [Direction No. 79], because [Ms Archer] began offending relatively soon after arriving in Australia (some nine years), and because the time Ms [Archer] has spent making a positive contribution to this country is objectively outweighed by the comprehensive and long nature of her offending history. (Emphasis added.) 20 When it came time to weigh up each of the considerations set down by Direction No. 79 to arrive at an ultimate conclusion, the Tribunal noted that two of the primary considerations weighed 'relatively heavily' against Ms Archer, while one weighed 'very slightly' in her favour (at [176]). 21 It then, at [177], referred again to the 'Ties' Consideration and this paragraph provides important context to how the impugned reasoning at [147] should be construed: In regard to the other considerations, the only one that weighs other than neutrally is the one relating to strength, nature and duration of ties with Australia. The length of time Ms [Archer] has been in Australia, some 38 years, the fact that she has four Australian-born children here, and that her mother and sister and other relatives all live here, weigh relatively heavily in favour of revocation. 22 Ultimately, in weighing up the two primary considerations weighing 'relatively heavily against', with the 'Ties' Consideration and the other primary consideration which weighed 'relatively heavily' and 'very slightly' in favour of Ms Archer, the Tribunal concluded that the high risk of re-offending was determinative, despite 'the significant effect' that removal would have on Ms Archer's family. It said (at [178]-[179]): 178. What is particularly unfortunate about this case is that Ms [Archer] has had many opportunities to mend her behaviour, and two previous opportunities where the [Minister's] delegate has exercised the discretion in her favour. She has had her visa cancelled on two previous occasions, in 2016 and 2017, and has made representations, claims and assurances about future conduct which have led to the restoration of the visa. On each occasion she has relapsed into re-offending. Her visa has now been cancelled a third time and I am regrettably unconfident that she is other than a very high risk of reoffending, yet again. She did not present any coherent strategy to the Tribunal to tackle her recidivism, other than to say that she was now much happier because she had a better insight into her mental health conditions and to point to prospects of accommodation at Zonta House (at least for an interim period) and to some further courses she wishes to undertake. 179. I commend Ms [Archer] for her honesty in saying at the hearing that she 'continues to try' to overcome her drug addiction. She did not attempt to disguise this challenge. Regrettably, it is funding this drug addiction that has been inextricably linked to her offending, and to her apparently inevitable return to offending, even after sanctions of the criminal justice system, including gaol terms. The conclusion of the Tribunal, accepting that there will be a significant effect on [Ms Archer] and on her mother, stepfather and children, and wider family, is that this risk of re-offending is determinative.

GROUNDS OF REVIEW APPLICATION 23 Ms Archer contends the Tribunal made a jurisdictional error by failing to complete its statutory task in accordance with s 499 of the Act and Direction No. 79, in that it misconstrued, misunderstood and/or misapplied para 14.2(1) of Direction No. 79. As particulars of this ground, it is asserted that: (a) section 499 of the Act required the Tribunal to complete its statutory task in accordance with Direction No. 79; (b) paragraph 14.2(1) of Direction No. 79 required the Tribunal to have regard to the strength, nature and duration of an applicant's ties to Australia (the 'Ties' Consideration); (c) in considering the 'Ties' Consideration and according to it the appropriate weight, the Tribunal was required to have regard to the sub-considerations at para 14.2(1)(a) and para 14.2(1)(b); (d) by para 14.2(1)(a)(i) it is a requirement that less weight be given to the sub-consideration at para 14.2(1)(a) where a non-citizen begins offending soon after arriving in Australia, but it does not operate to diminish the weight to be accorded to para 14.2(1)(b) or, consequently , the 'Ties' Consideration as a whole; and (e) the Tribunal's decision (at [147]) said: The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa. The weight is lessened, according to the exhortation in [Direction No. 79], because [Ms Archer] began offending relatively soon after arriving in Australia (some nine years), and because the time Ms [Archer] has spent making a positive contribution to this country is objectively outweighed by the comprehensive and long nature of her offending history. 24 It is asserted that the Tribunal applied para 14.2(1)(a)(i) to diminish the weight to be accorded to the 'Ties' Consideration as a whole, rather than only the sub-consideration at para 14.2(1)(a) as required.

CONSIDERATION 25 The 'Ties' Consideration in Direction No. 79 is comprised of two distinct sub-considerations, para 14.2(1)(a) and para 14.2(1)(b). Paragraph 14.2(1)(a) required the Tribunal to have regard to how long Ms Archer had resided in Australia, giving less weight by para 14.2(1)(a)(i) to that sub-consideration if it found she began offending soon after arriving in Australia. Paragraph 14.2(1)(b) required the Tribunal to have regard to Ms Archer's ties to Australia, including the effect of non-revocation on Australian citizens and permanent residents, including Ms Archer's immediate family. 26 Essentially, the argument is that para 14.2(1)(a)(ii) does not entitle the Tribunal to diminish the weight to be accorded to para 14.2(1)(b), rather than (or in addition to) para 14.2(1)(a) as required by Direction No. 79. 27 Ms Archer contends that diminishing the weight to be accorded to para 14.2(1)(b) by reason of either of the sub-considerations in para 14.2(1)(a) has been held to be an error in at least three previous decisions of this Court. Although each of these cases concerned the correct approach to para 14.2(1) of Direction No. 79, the errors asserted differ in some respects to the present case. 28 In FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, Thawley J considered the following reasoning of the Tribunal in relation to the 'Ties' Consideration (at [55]): At T[68] to T[70], the Tribunal stated (emphasis added): 68. The applicant has lived in Australia for nearly 47 years. He arrived as a baby with his parents and has never returned to the United Kingdom. The applicant has demonstrated extensive family ties to Australia through his aunts and uncles, cousins, siblings and step-siblings, children, grandchildren, partner and step-children. He views Australia as "home". 69. However, I must place less weight on this consideration because of the limited positive contribution to the Australian community over the past 30 years. 70. I am satisfied that the applicant has strong family and social ties to Australia. I find consideration of the applicant's ties to Australia weighs strongly in his favour. 29 His Honour considered two asserted errors. The first being that the Tribunal had erred by considering itself bound to give less weight to the 'Ties' Consideration because of an absence of any positive contribution to the Australian community under para 14.2(1)(a)(ii). The second error alleged was that the Tribunal had also diminished the weight to be given to para 14.2(1)(b) by reason of para 14.2(1)(a)(ii). Only the second argument is relevant to the present case and his Honour relevantly stated as follows (at [62]): The Tribunal's use of the phrase "this consideration" at T[69] raises a question about whether the Tribunal appreciated that paragraph (a)(ii) of clause 14.2(1) only operated in relation to the matter referred to in paragraph (a) of clause 14.2. Paragraph (a) deals with length of residence. Paragraph (b) deals with strength, nature and duration of ties with lawful indefinite residents. Paragraph (a)(ii) does not operate with respect to the subject matter of paragraph (b). The Tribunal stated at T[69] that it would give less weight to "this consideration" immediately after discussing at T[68] matters relevant both to length of residence and to strength, nature and duration of ties with lawful indefinite residents. On balance, however, I consider the Tribunal did not err in this particular respect. I reach that conclusion on the basis that the Tribunal stated at T[70] that the consideration as a whole weighed strongly in the applicant's favour. It is unlikely to have reached that conclusion if it considered it was bound to give less weight to the whole of the consideration because of the applicant's limited positive contribution to Australia. (Emphasis added.) 30 Although his Honour did not consider the Tribunal had made the error in that case because its ultimate conclusion as to the 'Ties' Consideration made such an error unlikely, the reasons clearly contemplate that such an approach could be an error. 31 Ms Archer also relies on the decision in Downes v Minister for Home Affairs [2020] FCA 54; (2020) 168 ALD 498. In that case, Charlesworth J cited Thawley J's reasoning in FCFY with approval for the proposition that a decision-maker may fall into jurisdictional error if it proceeds on a misapprehension of para 14.2(1) (at [73]). Her Honour proceeded to consider whether the following statement of the Tribunal (extracted at [74]) evinced such a misapprehension of para 14.2(1): I consider that the nature of Mr Downes' connections with Australia, primarily through his connection to Australian citizens and parts of the indigenous communities in central Australia to be significant, notwithstanding that less weight is to be given to this factor where Mr Downes began offending soon after arriving in Australia, and there is only limited evidence demonstrating periods of positive contribution to the community. I consider this factor weighs in favour of revoking the visa cancellation. (Emphasis in original.) 32 In considering the Tribunal's reasoning, Charlesworth J stated (at [77]-[78]): 77 The Tribunal's reasons should be not construed in the manner contended for by the Minister. To accept that interpretation would be to strain the meaning of language. On a natural reading, and conscious of the warning not to approach the reasons of an administrative decision-maker with an eye keenly attuned to the perception of error, it is clear that the passage extracted at [74] above deals separately with two discrete topics, each in turn. At [135] to [137] the Tribunal identifies that Mr Downes has resided in Australia for a substantial length of time but (correctly) directs itself to afford less weight to that circumstance by reason of the timing of Mr Downes' criminal offending and the minimal positive contribution he otherwise had made to the Australian community. The Tribunal concludes at [137] that no favourable weight would be given to the length of time Mr Downes has resided here. That is clearly a conclusion relating to the factor specified in [14.2(a)]. 78 At [138] to [139] the Tribunal expressly changes topics. Plainly, the subject matter of those paragraphs is the same subject matter to which [14.2(b)] is directed. The Tribunal then directs itself to diminish the weight to be afforded to the duration and nature of Mr Downes' ties to family members and the community. The phrase "notwithstanding that less weight is to be given to this factor" fairly indicates that the Tribunal considered itself bound by [14.2] of Direction [No. 79] to give less weight to the discrete factor in [14.2(b)] by reason of Mr Downes' offending and his lack of positive contribution. There is no holistic approach by the Tribunal to the whole of [14.2] as the Minister contends. Rather, there is error in the construction and application of [14.2(b)]. 33 Her Honour proceeded to find the Tribunal to have committed jurisdictional error (at [81]-[83]): 81 The requirements in [14.2(a)(i)] and [14.2(a)(ii)] are clearly intended to influence the attribution of weight to one particular matter in the context of a highly evaluative task involving questions of judgment and degree. 82 As has been accepted, no such influence applies to the decision-maker's evaluation of the different matters referred to in [14.2(b)]. The error in the present case created a circumstance in which the Tribunal gave less weight to the matters referred to in [14.2(b)] than it might otherwise have given had it properly understood the limitations on its powers. The error caused the Tribunal to impermissibly confine itself in the performance of its evaluative task. The gravity of the error is sufficient to justify its classification as jurisdictional in nature. 83 Factually speaking, the case is not one in which the factors favouring non-revocation were so overwhelming that an error evaluating the weight of factors favouring revocation could have made no difference to the result. (Emphasis added.) 34 The final case on which Ms Archer relies is Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84, where Derrington J said (at [37]-[39]): 37 Having improperly characterised the residence sub-consideration as adverse to the applicant, the Tribunal further erred in characterising and undertaking the exercise required by para 14.2 of Direction No. 79. 38 As explained above, the language used in sub-para 14.2(1)(a) supports a construction that the residence sub-consideration cannot weigh adversely against revocation. Of course, less weight can be ascribed to this sub-consideration if the applicant began offending shortly after arriving in Australia, however the weight ascribed to a consideration is distinct from the character of that consideration, which, in the case of sub-para 14.2(1)(a), will remain either favourable or neutral to the revocation of the cancellation decision, save in exceptional circumstances. Likewise, as observed above, sub-para 14.2(1)(b) will remain either favourable or neutral, save in exceptional circumstances. 39 Consequently, in the circumstances of the present matter, it is an erroneous application of [Direction No. 79] to conduct a balancing exercise between the considerations described in 14.2(1)(a) and 14.2(1)(b), because they are not, and probably cannot be, opposing considerations. Rather, the "weight" to be ascribed is to sub-consideration 14.2(1)(a) as it informs the character of the consideration as a whole (being the strength, nature and duration of the applicant's ties to Australia). The decision-maker is not bound to give more or less weight to the whole consideration because para 14.2(1)(a)(i) or (ii) applies: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 (FCFY) [62], applied in Downes v Minister for Home Affairs [2020] FCA 54 [73], [78]. Weight is to be ascribed to the duration of the non-citizen's residence as a consideration independent of, and separate to, the non-citizen's family and social ties. In other words, para 14.2(1)(a)(i) does not have operative effect in relation to the entirety of para 14.2(1). For example, where an applicant has lived in Australia for many years and has significant family ties here, but began offending shortly after arriving, less weight should be given to the duration of the applicant's residency as a consideration in favour of revocation. The applicant's significant family ties will still however remain an independent consideration in favour of revocation, which will not be "counterbalanced", "reduced" or "negated" in any respect by the timing of the applicant's offending. (Emphasis added.) 35 The Tribunal's reasons in this case were extremely comprehensive. On a fair reading of the reasons as a whole, the Tribunal was undoubtedly aware that para 14.2(1) required it to consider two separate matters, those in para 14.2(1)(a) and para 14.2(1)(b). So much is apparent from its reasons at [140]-[141] (set out above at [17]). In those paragraphs, it observed that Direction No. 79 required it to have regard to how long a person had resided in Australia, which was clearly referable to para 14.2(1)(a). It then observed that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to the time the person has spent contributing positively to the community. That was clearly a reference to para 14.2(1)(a)(i) and para 14.2(1)(a)(ii). It is apparent that the Tribunal understood that these two sub-clauses related to its assessment of para 14.2(1)(a). 36 The Tribunal then stated (at [141]) that regard must also be had to the strength, nature and duration of any family or social links with Australia, including the effect of non-revocation on immediate family members. This could only be referring to para 14.2(1)(b). It is clear that the Tribunal understood, by the use of the word also, that this was a separate matter to consider. It did not in [141], make any reference to the giving of less weight to this matter on account of the visa holder offending shortly after arriving in Australia. Nor did it suggest in any way that the matters in para 14.2(1)(a)(i) and/or para 14.2(1)(a)(ii) operated upon para 14.2(1)(b). No reference was made by the Tribunal in [141] to the subject matter comprised in para 14.2(1)(a). 37 An appropriate and fair reading of [140]-[141] is that the Tribunal correctly understood the structure and content of para 14.2(1), including that para 14.2(1)(a) and para 14.2(1)(b) were separate sub-considerations and that the matters in para 14.2(1)(a)(i) and para 14.2(1)(a)(ii) related to para 14.2(1)(a), but did not involve any requirement to reduce the weight given to para 14.2(1)(b). 38 Generally speaking, the Tribunal's reasons are consistent with such an understanding that para 14.2(1)(a) and para 14.2(1)(b) were to be assessed separately. In this regard, it referred (at [142]) to evidence as to Ms Archer's employment history in Australia and, in that sense, her contribution to the Australian community. It referred to the time and age when Ms Archer came to Australia, the length of time she had lived in Australia, when she started offending and commented that her offending commenced relatively soon after arrival. Those matters are all relevant to para 14.2(1)(a). At [143]-[146], the Tribunal discussed evidence as to Ms Archer's relationship with her children and accepted that steps had been taken to rekindle that relationship, and that her removal to New Zealand would have a significant effect on her children. It also discussed Ms Archer's evidence about her relationship with other family members in Australia and, again, referred in its conclusion, to the family ties in Australia and the significant effect on those persons if she were to be removed. Those matters were clearly relevant to para 14.2(1)(b). 39 In addition to those matters, the relevant sentence of [147] must be read in the context of the reasons as a whole which includes [177] (set out above at [21]), where the Tribunal observed that in regard to other considerations, the only one that weighs other than neutrally is the 'Ties' Consideration. The length of time Ms Archer had been in Australia, some 38 years, the fact she has four Australian born children in Australia and that her mother and sister and other relatives all live here weighed relatively heavily in favour of revocation. Also at [179], the Tribunal referred to the significant effect on Ms Archer's mother, stepfather and children, and wider family if she were removed. In the first sentence of [147], the Tribunal, on a fair reading, is referring to both sub-considerations in para 14.2(1)(a) and para14.2(1)(b) weighing in favour of revocation which is confirmed by the content of [177] and [179], where it refers to the length of time she resided in Australia, a matter going to para 14.2(1)(a), as well as other factors weighing relatively heavily going to para 14.2(1)(b). 40 Reasons of the Tribunal have to be produced in some considerable volume and with some efficiency. It is entirely understandable in that circumstance that absolute precision in every sentence is difficult to achieve. It is necessary to bear this in mind and to read the reasons as a whole to discern whether there is jurisdictional error. A fair reading of [147] (set out above at [19]), approached in this way, is that the reduction of weight spoke only to para 14.2(1)(a), namely, that the weight it would otherwise have given to the duration of Ms Archer's stay in Australia, which may well have been significant given she had resided in Australia for 38 years, was lessened, because she had offended relatively shortly after arriving in Australia as required by para 14.2(1)(a)(i). Nothing in the second sentence of [147] refers to para 14.2(1)(b), or issues relating to that sub-paragraph. In my view, Ms Archer has not made out her case that the Tribunal misapplied Direction No. 79. 41 If that conclusion is wrong, I am not satisfied that jurisdictional error arises because such error was not material. 42 It is clear from the Tribunal's reasons, particularly at [177], that the 'Ties' Consideration weighed relatively heavily in Ms Archer's favour. Accordingly, this is not a case where the consideration was not dealt with, or was dealt with but found to be neutral or only slightly in her favour: FCFY (at [62]), cf Downes (at [83]). The Tribunal proceeded on the basis (at [179]) that non-revocation would have a significant effect on Ms Archer and her family members. Despite these findings, the Tribunal's view was that Ms Archer's risk of reoffending was very high. It referred to her apparently inevitable return to offending and observed that she had no coherent strategy to tackle her recidivism. The Tribunal said in its ultimate conclusion that the risk of reoffending was determinative, even accepting the significant effect on Ms Archer's family. Having regard to the fact the Tribunal gave 'relatively heavy' weight to the factors in para 14.2(1), but found that the 'determinative' issue was the 'very high' risk of reoffending, there can be no realistic possibility that the Tribunal's decision would have been different simply because it might have given a little more weight to para 14.2(1) if it had not erred in the manner alleged by Ms Archer. I am not satisfied that any error by the Tribunal if, contrary to my earlier conclusion, it did occur, was material.

CONCLUSION 43 The Tribunal approached its task correctly. In any event, the Minister's submissions on materiality are to be preferred. Despite the helpful and succinct submissions made by Mr Glenister, the application must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.