Ghasemi v NSW Department of Corrective Services

Ghasemi v NSW Department of Corrective Services - [2019] NSWSC 207 - NSWSC 2019 case summary — Zoe

[4]

Crimes (Administration of Sentences) Act 1999 (NSW)

Section 2A includes the following in the list of objects of the Act: (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community.
Section 3(1) defines "serious offender" by reference to a number of categories. It was common ground that the plaintiff did not fall into any of these categories and was not a serious offender.
Section 6 of the Act relevantly provides for work to be performed by inmates in various settings as follows: 6 Work performed by inmates (1) The governor of a correctional centre may make an order directing any convicted inmate in the correctional centre to carry out such work as the governor considers suitable. (2) The governor may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for Corrective Services NSW or a public or local authority: (a) within the correctional centre in which the inmate is imprisoned, or (b) within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or (c) outside the correctional complex in which the inmate is imprisoned.
The Act provides, in Part 9, for SORC to be constituted: s 195(1). The Chairperson may constitute Divisions of SORC, to which he or she may delegate any of SORC's functions: s 196. Section 197 provides for the functions of SORC. Section 197(1) provides that SORC has "such functions as are conferred on it by or under this or any other Act or law."
While many of the specific functions conferred on SORC by s 197(2) relate to serious offenders, its functions do not pertain only to serious offenders and include: "to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders": s 197(2)(f).
Section 271(1) provides that "[t]he Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act."
Regulation 311 of Crimes (Administration of Sentences) Regulation 2014 (CAS Regulation) relevantly provides: 311 Additional functions of Review Council (1) For the purposes of section 197 of the Act, the functions of the Review Council include the provision, at the request of the Commissioner, of reports, advice and recommendations to the Commissioner with respect to: (a) the management of serious offenders, and (b) the probability that a serious offender: (i) who is serving an existing life sentence, and (ii) who has applied for a local leave permit, will be fit to be released on parole at the time the Council expects to advise the Parole Authority about release on parole (assuming the serious offender satisfactorily completes a pre-release development program to which the application relates of at least 12 months or other relevant period), and (c) the designation of inmates as high security, extreme high security, extreme high risk restricted and national security interest inmates (including the revocation or variation of a designation), and (d) the management of high security, extreme high security, extreme high risk restricted and national security interest inmates (including the periodic review of that management), and (e) other matters specified by the Commissioner. [Emphasis added.]
Division 1 of the CAS Regulation provides for the classification and designation of inmates. It relevantly provides: 11 Classification of inmates (1) As soon as practicable after an inmate is first received into a correctional centre, the Commissioner is to determine the inmate's classification in accordance with this Division. (2) An inmate's classification under clause 12, 13 or 14 is to be reviewed at least once every 12 months and at the other times the Commissioner determines. 12 Classification of male inmates (1) Each male inmate is to be classified in one of the following categories for the purposes of security: … Category C1, being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner. Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner. Category C3, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised. (2) Subject to clause 17, the Commissioner may at any time vary or revoke a classification under this clause. … 19 Information to be considered for classification purposes For the purposes of making a decision with respect to a person's classification under this Division, consideration must be given to: (a) any advice received from the NSW Police Force or from any other public authority (whether of this or any other State or Territory or of the Commonwealth) established for law enforcement, security or anti-terrorist purposes, and (b) whether or not the inmate is likely to be removed from Australia.

[10]

Chapter 21: External Leave Programs for Inmates Subject to Being Removed or Deported

Chapter 21 provides for External Leave Programs for Inmates Subject to Being Removed or Deported. It relevantly provides: "21.1.4. Unlawful Non-Citizens 'Unlawful Non-Citizen' refers to an inmate who did not have a valid visa at the time of his or her incarceration. DIBP [Department of Immigration and Border Protection] will issue these inmates with a visa to cover the period they are in custody. In most cases unlawful non-citizens will be removed from Australia either directly from a correctional centre or after being taken into immigration detention when released from CSNSW custody, but some may be eligible to apply for a visa. Unlawful Non-Citizens are included in the Public Interest Criteria for the purposes of considering an inmate's consideration for participation in an unescorted External Leave Program. The Classification and Case Management Review Coordinator must refer all unlawful non-citizen inmates to the Pre-Release Leave Committee (PRLC) for determination for progression to C3/CAT1. . . . 21.1.5. Lawful non-citizens Lawful non-citizen refers to an inmate who had a valid visa (eg A Special Category Visa if a citizen of New Zealand) at the time of his or her incarceration. The visa of a lawful non-citizen can be cancelled under section 501 of the Migration Act 1958."
The basis on which a lawful non-citizen's visa may be cancelled is provided for as follows: "21.1.5.2. Cancellation after consideration of circumstances A lawful non-citizen's visa may be cancelled if the inmate does not pass the character test as defined by section 501 of the Act. In these cases DIBP will issue the inmate with a Notice of Intention to Consider Cancellation (NOICC). The visa holder then has a prescribed time in which to respond to that notice. If a decision is made by DIBP to cancel the visa, the person will be notified that their visa has been cancelled. This notice must be in writing. The effect of the cancellation is immediate. If a person was in the community at the time of cancellation, they would be visited by DIBP officers and taken into a detention centre. If they are in a correctional centre they would be granted a form of temporary visa, eg a bridging visa, to enable incarceration in NSW until they are released and upon release taken to a detention centre."
The implications for inmates who are not Australian citizens are relevantly provided for as follows: "21.1.6. Progression to C3/CAT1: Careful consideration must be applied with respect to any inmate who is not an Australian citizen when being considered for classification progression to C3/CAT1 having regard to the potential for additional incentives to escape when facing uncertainty about being removed or deported. 1. Inmates who have submitted an appeal against a deportation or removal order issued by DIBP may not participate in external leave programs while the appeal is pending. 2. When the nationality and/or visa status of an inmate is unclear, he or she is not to be considered for C3/CAT1 until written confirmation is obtained from DIBP. Unlawful Non-Citizens (including temporary visa holders) - When it is proposed that an inmate who is an unlawful non-citizen (but who has been issued with a visa to cover the period they are in custody) participate in an Unescorted External Leave Program, the Commissioner must give approval for progression to C3/CAT1 through the PRLC for inmates NOT designated as serious offenders and through SORC for designated serious offenders. The issuing of a Section 6(2) ON/OFF order is at the discretion of the General Manager (MOS if delegated by General Manager)."

[11]

Compendium of Offender Behaviour Change Programs in New South Wales

The Compendium of Offender Behaviour Change Programs in New South Wales dated June 2016 contains, as its name indicates, "the approved list of offender behaviour change programs within Corrective Services NSW that directly or indirectly seek to reduce re-offending." The EQUIPS Foundation Program is among the programs available. The Compendium relevantly provides, in relation to this program: "The general offender program - EQUIPS Foundation - is available to all offenders, regardless of offence type. While the program is not offence-type specific it does aim to reduce re-offending by addressing criminogenic needs for general offence types therefore all offenders can benefit from it. It specifically caters for the needs of offenders who do not meet the criteria for violent, sexual or addiction interventions. . . . EQUIPS Foundation is a general therapeutic program available to all offenders assessed as medium to high-risk of re-offending regardless of their offence type. The program consists of the following treatment modules . . ."
The eligibility and suitability criteria for this program are: "Eligibility Criteria LSIR: Offenders who are assessed as medium to high risk of recidivism as measured by the Level of Service Inventory-Revised (LSIR) (calculated risk score). Those who have a current offence resulting in a period of supervision or incarceration. Time left to serve: Those who have sufficient time remaining in their total sentence/order to complete the program. . . . Suitability Note that even if an offender meets the eligibility criteria, a suitability assessment is still required on a case by case basis as certain factors may find the offender unsuitable. Offenders in custody who are eligible require a Pre-Program Suitability Interview (PPSI) to ascertain their suitability. Community Corrections Officers are responsible for assessing the suitability of offenders under their supervision in the community. This should be undertaken as part of the normal case planning process with consideration of the offenders' risks/needs and the schedule of programs at their location."

[16]

The second application for reclassification as C3

On 8 January 2018 the plaintiff wrote to the Commissioner outlining his plans to become legally qualified. The letter concluded: ". . . A prisoner whom [sic] takes the initiative to better improve him-self [sic] should be assisted in this regard. I would, therefore, respectfully prevail upon you, Commissioner, to assist me in this regard. One would have thought that furthering a prisoners [sic] academic abilities and future prospects of employment was/is the touchstone of the executive arm of justice. Justice must not simply be applied equally, but be seen to be applied equally."
On 12 January 2018 the plaintiff applied for reclassification to C3. His application was supported by a five-page written submission.
On 9 February 2018 the Commissioner wrote to the plaintiff relevantly as follows: "With regard to your classification, you may apply to management at Parklea for C3 classification and access to pre-release leave programs. However, as you are currently subject to a visa cancellation by the Commonwealth any such application would need to be considered by the Pre-Release Leave Committee (PRLC) of the Serious Offenders Review Council. The PRLC would make a recommendation for my consideration. The application would be considered in accordance with legislation and Corrective Services NSW policies. You should note your immigration status would form an important part of the Committee's consideration."
The plaintiff's application was supplemented by further written submissions and documents provided on 8 March 2018. He informed the Case Management Team (CMT), the PRLC and the Commissioner that he wanted to complete a Bachelor of Laws degree in order to obtain employment on his release and had secured a place to study remotely with the University of New England which he had deferred until second term. He also annexed a letter of offer from a law firm, Sydney Criminal Defence Lawyers, as an Administrative Assistant.
On 13 March 2018 the author of a document entitled "Review of Classification", who was accepted to be part of the CMT, recommended "progression to C3". The matter was then referred to the PRLC on 16 April 2018 pursuant to section 21.1.6(3) of CCOPM. The PRLC recommended against progression to C3 and said: "Although Correctional Centre Management supports progression in classification and inmate receives positive reports, the PRLC recommends that, prior to consideration of progression, the inmate be assessed for eligibility to undertake EQUIPS Foundation and complete this program if eligible."
The recommendation was expressed as follows: "1) [The plaintiff's] current C2 (Section 6.2 ON complex/property) security classification remain unchanged. 2) [The plaintiff] may re-apply after being assessed for eligibility to undertake the EQUIPS Foundation Program and found to be ineligible. 3) If found eligible for EQUIPS Foundation, [the plaintiff] may re-apply after successful completion of the program."
On 1 June 2018 the Commissioner refused to reclassify the plaintiff and approved the PRLC's recommendation (the Commissioner's decision) and added, above his signature in the box headed "Comments of Commissioner": "Please note that this inmate has no resettlement needs in Australia!"
On 4 July 2017 the plaintiff signed a document confirming that he had been advised that he met the eligibility criteria for the EQUIPS Foundation program but that he did not wish to participate. He ticked the box stating that he had been informed that his decision may affect his parole and progression while in custody. The plaintiff gave the following reason for his decision: "[A]s I am appealing the premise of my convictions, at this stage, it would be unsuitable and inappropriate to part take [sic], as I believe disclosure of the alleged elements of the offences of which I stand convicted may hinder and in fact [compromise] my ongoing legal proceeding, that is appeal against conviction. On any view, the nominated course has no basis of [sic] proven methods in reducing recidivism."
He had given a similar response in an earlier form on 19 October 2017.

[22]

The Commissioner's decision was allegedly ultra vires (ground 2)

The plaintiff contended that the Commissioner's decision was ultra vires because he was dealt with as if he were a serious offender when he did not fall into that category. As referred to above, it was common ground that the plaintiff was not a serious offender. However, the words of s 197(2)(f) which provide that SORC is "to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders" indicate that SORC can perform functions prescribed by the regulations in relation to the management of all offenders, being serious offenders and other (that is, non-serious) offenders. The plaintiff's reliance on the maxim ejusdem generis (general matters are constrained by specific matters) is misplaced. There is no list in s 197(2)(f). There is merely a description of the universal set of offenders: those who are serious offenders and those who are not. In these circumstances, there is no basis for reading down "other offenders" in s 197(2)(f).
CAS Regulation 311(1)(e) contemplates that the Commissioner will request reports, advice and recommendations from SORC (and its sub-committees) on any matter specified by the Commissioner. It follows that the Commissioner was entitled to request that SORC consider the plaintiff's application and make a recommendation to him and that SORC was obliged to fulfil its function to provide such a recommendation. The Chairperson was entitled to delegate this function to the PRLC, as is reflected in the extracts from the CCOPM set out above. I assume that this occurred in the present case, there being no suggestion to the contrary and no challenge to the delegation. The plaintiff submitted that CAS regulation 311(1)(e) was ultra vires the regulation-making power conferred by s 271(1) because it purports to apply to the plaintiff when he is not a serious offender. I reject this submission. A regulation constitutes "any other Act or law" for the purposes of s 197(1). As referred to above, the functions conferred on SORC are not limited to those relating to serious offenders.
Pursuant to CAS regulation 12(2), it was for the Commissioner to make the decision whether to vary the plaintiff's classification. The record (referred to above) indicates that the Commissioner made the decision himself not to vary the plaintiff's classification on the recommendation of the PRLC. In these circumstances, the plaintiff has not established that the Commissioner's decision was ultra vires.

[23]

Alleged real or apprehended bias (ground 3)

The plaintiff submitted that the Commissioner's note that the plaintiff had no resettlement needs, together with the time taken to make the decision established real or apprehended bias. The plaintiff contended, in his written submissions: "It is evident that the mere fact that the applicant is not a naturalised Australian, but a New Zealand national, awaiting removal from Australia at the determination [sic] of his sentence or otherwise, weighed heavily in the decision-making process of the Commissioner not to progress the applicant through to C3 when exercising his statutory duties in the decision-making process."
The plaintiff argued that the Commissioner's note indicated that the Commissioner intended to absolve himself from any responsibility towards the plaintiff. The plaintiff also relied on the object in s 2A(d) set out above in support of the submission that his reintegration into the general community would be served by his reclassification as C3.
The plaintiff also sought to draw an analogy between his situation and that of a "transferred prisoner" under the International Transfer of Prisoners (New South Wales) Act 1997 (NSW). The plaintiff contended that CAS regulation 19 ought be read so as to confine the matter to be considered in (b) to security issues, that being the evident concern of (a).
The Commissioner was obliged to take into account, in making the decision whether to vary the plaintiff's classification, whether or not the inmate was likely to be removed from Australia: CAS regulation 19; see also Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41 (Mason J); [1986] HCA 40. There is nothing in that regulation which indicates that the consideration in (b) is to be confined to the parameters of the consideration in (a). Accordingly, although the Commissioner was obliged to take into account that the plaintiff was likely to be removed from Australia, as he was an unlawful non-citizen, it was for the Commissioner to determine how he would take that into account and what weight he would give to it: Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]-[7] (Gleeson CJ). The matter in CAS regulation 19(b) was relevant on at least two bases: first, it is possible that there would be a heightened level of risk that the plaintiff would abscond in Australia in preference to being deported to New Zealand; and, secondly, that when the plaintiff was released to parole he would not be at liberty in the community but would be required to go to a detention centre to be deported. The Commissioner's note indicated that he specifically considered the second consequence of the plaintiff's status as an unlawful non-citizen.
The plaintiff cannot establish bias, whether actual or apprehended, by reference to a factor which the Commissioner was obliged, by law, to take into account. The alleged analogy between the present situation and the International Transfer of Prisoners (New South Wales) Act is inapposite. Not only are the statutory provisions different but also the purpose of the International Transfer of Prisoners (New South Wales) Act is to create a degree of parity between prisoners sentenced in Australia and those sentenced in New Zealand upon transfer. By contrast, the Commissioner is obliged by CAS Regulation 19(b) to consider the immigration status of a prisoner when deciding whether to reclassify the prisoner.
In support of the bias ground, the plaintiff contended that the Commissioner was discriminating against him because he was not an Australian citizen and that, to the extent that this treatment was authorised by CAS Regulation 19(b), it was a discriminatory law. This argument must be rejected. As Gaudron and McHugh JJ said in Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478; [1990] HCA 1: "A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support that distinction."
In the present case, CAS regulation 19(b) not only authorises, but also requires, the Commissioner to take into account whether or not the inmate (the plaintiff) is likely to be removed from Australia. There is no "overriding law" which decrees that matter to be irrelevant and is, accordingly, not discriminatory.
The plaintiff also relied, in support of the bias ground, on the status report dated 7 March 2018 in which his AOD score was recorded as 5. For the reasons given above, this score is irrelevant to the plaintiff's challenge to the Commissioner's decision as the PRLC was not privy to it.
The plaintiff contended that the delay between his application for reclassification and the decision demonstrated bias. The evidence showed that the minute from the PRLC to the Commissioner was dated 29 May 2018 and the Commissioner's decision was made on 1 June 2018. The Commissioner was entitled to have the PRLC consider the application and make a recommendation to him. In any event, the evidence does not establish any particular delay on the part of the PRLC in considering the application and formulating its recommendation. In these circumstances the allegation of bias is not made out.
The plaintiff also contended that the Commissioner was guilty of "post-decision" bias in appending the note to his decision. The note indicates that the Commissioner had turned his mind to a relevant consideration (CAS regulation 19(b)) and had addressed the plaintiff's situation specifically. I do not regard the reference to lack of settlement needs as indicating any actual or apprehended bias. Accordingly this ground has not been made out.

[24]

Alleged inflexible application of policy (ground 4)

A decision-maker is entitled to develop criteria for the exercise of a discretionary statutory power and to take account of a policy in doing so: Drake v Minister for Immigration (1979) 24 ALR 577. However, the decision-maker is not entitled to abdicate its function of making a decision by merely deciding in conformity with the relevant policy without regard to the actual facts of the case: Green v Daniels (1977) 51 ALJR 463. The principles were summarised by Bowen CJ and Deane J in Drake v Minister for Immigration in the following passage at 590-591: "It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interest of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions."
The balancing of consistency and the circumstances of the individual case was pre-eminently a matter for the Commissioner. In Clark v Commissioner for Corrective Services [2016] NSWCA 186, at [31] Basten JA emphasised: "the importance for the good order of the prison in not having arbitrary arrangements, pursuant to which some prisoners may be perceived to receive preferential treatment. That is, within the custodial setting, rules of general application can properly be applied with limited scope to take account of individual circumstances."
Emmett AJA (Simpson JA agreeing) said at [85]: "Statutes governing discipline and control of prisoners in gaol should not be construed as if they were intended to confer fixed legal rights upon prisoners. That is not to say that judicial review is unavailable, rather that the relevant legislation is indicative of parliament's intention that those responsible for the maintenance of prison administration and management should be given a broad discretion commensurate with the nature of the task and the balancing of potentially conflicting considerations."
There is no prohibition on the reclassification of a person such as the plaintiff to C3 in the policy documents extracted above. All that is required by the Commissioner is that the matter be considered by the PRLC and that a recommendation be made to him. The standard covering minute provides for him to approve or not approve the recommendation. In the present case, the Commissioner accepted the PRLC's recommendation that the plaintiff be required to complete the EQUIPS Foundation Program, if eligible, before further consideration would be given to his reclassification.
The plaintiff contended that he ought not to have been required to undertake the EQUIPS Foundation Program before his reclassification was considered. He submitted that it was premature to require him to do so in circumstances where his suitability for the program had not yet been determined. He argued that he ought to have been excluded from participating in the program because he was seeking to appeal against his conviction. He referred to other programs, such as the Violent Offender Treatment Program, from which prisoners who are contesting their convictions are excluded.
I do not discern either from the PRLC's recommendation or the Commissioner's decision any inflexible application of policy. It was open to the Commissioner to have the plaintiff's eligibility for the program determined before his suitability. Once the plaintiff refused to participate in the program identified, he could not fulfil the condition in the Commissioner's decision. The nature of his reasons for not being prepared to participate does not absolve him from the requirement to comply with the condition or establish any legal error on the part of the Commissioner for imposing the condition. It was open to the Commissioner to require that the plaintiff's eligibility for the program be determined as a condition of his reclassification being considered further.
Further, the analogy between the EQUIPS Foundation Program and the Violent Offender Therapeutic Program (VOTP) is inapt. The VOTP specifically provides, under the heading "Exclusion criteria": "Violent offenders appealing against their conviction will not be suitable for VOTP."
There is no equivalent exclusion in relation to the EQUIPS Foundation Program. Accordingly, the fact that the plaintiff is seeking to appeal against his conviction does not exclude him from participating in this program.
The condition imposed by the Commissioner in his decision appears to have been tailored to the plaintiff's actual circumstances, including the type of offences which he had committed. The present case may be distinguished from Davison v Commissioner for Corrective Services [2011] NSWSC 699, where McCallum J set aside a decision of the Commissioner where the delegate had not accepted SORC's recommendation in circumstances where there was no express indication of why the recommendation had not been accepted. Her Honour inferred that the decision had been made on the basis of an inflexible rule or policy that sex offenders could not be reclassified until they had completed treatment programs.

[25]

Alleged taking into account irrelevant considerations (ground 5) and failing to take into account relevant considerations (ground 6)

It is an error of law for a decision-maker to take into account considerations that he or she is bound not to take into account or to fail to take into account matters that he or she is bound to take into account. However, where a statute has conferred a discretion which is in terms unconfined it is for the decision matter to decide what matters may be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend at 40-41.
The plaintiff alleged that the Commissioner had taken into account the following considerations which he contended were legally irrelevant: 1. that the plaintiff had no resettlement needs in Australia; 2. that the plaintiff has not completed the EQUIPS Foundation course; and 3. that the plaintiff is not a serious offender.
As to (3), it can be put aside. It was open to the Commissioner to obtain a recommendation from the PRLC regarding the plaintiff notwithstanding that he was not a serious offender.
As to (1), the matter fell within the parameters of CAS regulation 19(b) and therefore was legally relevant.
As to (2), the risk profile of a prisoner is rationally relevant to whether the prisoner ought be reclassified to a category of lower security (from C2 to C3). The stated purpose of the EQUIPS Foundation program was to "aim to reduce re-offending by addressing criminogenic needs for general offence types therefore all offenders can benefit from it" (see extract above). This was a matter which the Commissioner was not prohibited from taking into account and, as the decision-maker, was entitled to take into account.
It is not clear from the plaintiff's submissions which matters he alleges the Commissioner was obliged, and failed, to take into account. It was a matter for the Commissioner to decide what to take into account, as long as the plaintiff's submissions were considered. The weight to be given to any particular matter was pre-eminently one for the Commissioner.
Neither ground 5 nor ground 6 has been made out.

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Judgment (34 paragraphs)

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Legislation Cited (4)

Cases Cited (18)

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