Korovata v Minister for Immigration and Multicultural Affairs

emmett j 1 The applicant is a national of Fiji. He entered Australia on 2 February 1994 on a Cultural/Social (Temporary) (Class TE) visa, subclass 421, which was granted to him so that he could participate in the Coca Cola World Sevens Tournament. Thereafter he periodically lodged applications for visas for further stays as a temporary resident. In each case the class of visa sought was subclass 421. On 12 October 1998 the applicant applied for a further subclass 421 visa. On 1 July 1999, a delegate of the respondent ("the Minister") decided to refuse to grant the visa. On 28 July 1999, the applicant lodged an application for review of that decision by the Migration Review Tribunal ("the Tribunal"). On 22 June 2001 the Tribunal affirmed the decision not to grant a visa applied. On 20 July 2001 the applicant applied to this Court for an order of review of the decision of the Tribunal. 2 The amended application for review essentially discloses two complaints. Those complaints are based on several grounds in s 476(1) of the Migration Act 1958 (Cth) ("the Act"). One complaint, based on s 476(1)(a), asserts that procedures that were required by the Act to be observed in connection with the making of the decision by the Tribunal were not observed. The other complaint is an assertion that the Tribunal required the applicant to demonstrate that he was playing rugby for a sponsoring club. The second matter is said to give rise to an error of law, such as to attract s 476(1)(e) and to constitute having regard to an irrelevant consideration, so as to attract s 476(1)(b) (the Tribunal did not have jurisdiction to make the decision) and s 476(1)(c) (the decision was not authorised by the Act or the Regulations). 3 I shall deal first with the ground based on s 476(1)(a). That involves an examination of the steps taken in relation to the application. On a date in October 1998, which the Tribunal took to be 12 October 1998, the applicant submitted an application for a temporary residence visa (non-business), being a Cultural/Social (Temporary) (Class TE) visa. Item 1205 of Schedule 1 of the Mirgration Regulations 1994 provides for sub-classes of Class TE. The relevant subclass in this application is 421 (Sport). That is the subclass in respect of which the applicant wished to be considered. 4 At about the same time as the application was lodged, a Form 55 entitled 'Sponsorship for temporary residence in Australia (non-business)', was also lodged with the Department of Immigration and Multicultural Affairs ("the Department"). On 1 July 1999 a letter from a delegate of the Minister addressed to the applicant informed the applicant that a decision had been taken on that date to refuse to grant the visa for which he applied. 5 On 28 July 1999, as I have said, the applicant lodged an application form for review to the Tribunal. In Section 1 of Part A of the form, under the heading "Address for the Service of Documents" the following appeared in the printed form: "If you wish to have all the documents sent to an address other than the residential address advised above for the first listed review applicant please indicate the address you would like to have all Tribunal documents sent". There were then spaces for the name of an organisation, a post office box number, a suburb or town, a State and a postcode. Those boxes were respectively completed as follows: · "Yanco Wamoon Rugby League Football Club", · "PO Box 423" · "Leeton", · "NSW", · "2705". 6 A box for "Applicant 1" was completed with the name of the applicant. In Section 1 of Part B under the heading: "Applicant 1", after particulars of the name and date of birth of the applicant, provision was made for a residential address. That was completed as: "2 Coral Street, Leeton". There were boxes for a day time phone number and a night-time phone number. There was no entry in either of those boxes. In Section 3 of Part B under the heading "Details of person(s) affected by visa decision(s)" the same details were supplied. In the box "Day time phone number" "02-6953-5407" appeared. 7 Section 6 of Part A contained the following in response to the question: "Why do you think the decision that you are seeking to have reviewed was incorrect?" "I applied for my visa on 12.10.98 and have only now had my application refused. Because I have not heard anything previous I committed myself to the Yanco-Wamoon Rugby League Club (YWRLFC) for 1999 season. Now with only three months of the season remaining I am being asked to leave the country. If I do this I will not fulfil my application the YWRLFC and will miss out on the financial benefits of my contract and also would feel that I had morally let this club down. I am requesting that my visa be re-considered and that it be granted until 30.10.99 so that I can fulfil all my obligations to YWRLFC. I have been involved with this club for a number of years now and would believe I should be granted this opportunity." 8 By letter of 30 July 1999 sent from the Sydney office of the Tribunal, the Tribunal acknowledged the applicant's application for review "of a Migration decision" that had been received on 28 July 1999. The letter went on to say as follows: "I would appreciate it if you could also forward any documents or written arguments you wish the Tribunal to consider and which you have not already given to the Tribunal or the Department. Any such material should be at this office no later than 21 days from the date of this letter. At the end of that period the Tribunal will either make a favourable decision based on the documentary material or ask you if you wish to attend the meeting or a hearing to discuss your application." That letter was addressed to the applicant at the address for service contained in his application for review. 9 On 27 October 2000 the Canberra office of the Tribunal wrote to the applicant, again addressed to the address for service, saying: "Your application for review of a decision made under the Migration Act 1958 has been transferred to the Canberra Registry for further processing." 10 Nothing further happened relevantly until on 6 April 2001 when the Canberra office of the Tribunal again wrote to the applicant. On this occasion the letter was addressed to the applicant at 2 Coral Street, Leeton, NSW 2705. The letter relevantly said as follows: "Invitation to hearing: I am writing in relation to your application for review of a decision in respect of a migration decision to refuse your sports visa application. You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case. … The Tribunal has set down a hearing for: Date: Monday, 4 June 2001. Time: 2.30pm. As the Member is located in Brisbane and because you are in a remote location, this will be a telephone hearing. Please advise which telephone number you wish to be contacted on. Please confirm whether you wish to appear before the Tribunal by completing and returning and attached form within 14 days of the date of this letter. … If you fail to appear before the Tribunal at the scheduled time the Tribunal has the discretion to make a decision on the review without taking any further action to allow you to appear before it. If you cannot attend the hearing you should advise the Tribunal as soon as possible of the reasons and the Tribunal will consider whether the hearing should be rescheduled. Please do not hesitate to telephone me if you have any questions. You can contact me for the price of a local call by telephoning 1300 361 969. Alternatively, you can call me direct on the telephone number given below and reverse the charges." A Canberra telephone number was set out under the signature of a Deputy Registrar of the Tribunal. 11 The applicant did not receive the letter of 6 April 2001 from the Tribunal. The applicant had left 2 Coral Street, Leeton in December 2000 and moved to 126A Cobbie Hill Road, Leeton, NSW. He remained at the Cobbie Hill Road address until July 2001. 12 The rugby league club referred to in the application kept the applicant informed of the progress of his review. The Tribunal sent letters relating to its review to the rugby league club's address. I draw the inference that they were received by the applicant. Neither the applicant nor the rugby league club received the letter dated 6 April 2001. 13 Curiously, the Tribunal sent its refusal decision to the rugby league club by letter of 8 June 2001, addressed to the applicant care of the address for service. The Tribunal said: "I am writing to advise you that the Tribunal has made a decision on your case. The Tribunal is now required to invite you and the Secretary of the Department of Immigration and Multicultural Affairs to the formal handing down of the decision. The decision will be handed down by a Tribunal officer authorised by the Principal Member at the following time: Time: 9.30 on 22 June 2001. Place: Level 1, Colombia House, 101 Northbourne Avenue, Canberra." 14 By letter 22 June 2001, also addressed to the applicant at the address for service contained in his application to the Tribunal, the Tribunal said as follows: "Please find enclosed a copy of the Tribunal's decision on your application for review. A copy of the decision has also been provided to the Department of Immigration and Multicultural Affairs. If you disagree with the Tribunal's decision you may have appeal rights including under Part 8 of the Migration Act which deals with the review of decisions by the Federal Court. If you wish to find out more about your appeal rights you should seek advice from a registered migration agent, a solicitor, a legal service or community organisation." 15 According to the Tribunal's reasons, the Tribunal's letter of 6 April 2000 was returned unclaimed. At 2.23pm on 4 June 2000 an officer of "Team Wattle" at the ACT Registry of the Tribunal telephoned the applicant on telephone number 02 6953-5407 and was told by an operator that the call could not be connected. 16 It is curious, and it may be that curiosity is the only significance, that all the correspondence from the Tribunal to the applicant were addressed to the address for service given in his application to the Tribunal, except for the letter notifying him of the proposed hearing. Having observed that the letter of 6 April 2001, which the Tribunal said had been "sent to his last known address", had been returned unclaimed and that the Tribunal had telephoned the number given by the applicant in his application for review, the Tribunal resolved to proceed to make a decision pursuant to s 360B of the Act. There is no s 360B in the Act. It may well be that by referring to s 360B the Tribunal had in mind s 362B, which provides that where an applicant is invited to appear before the Tribunal and does not appear on the day, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. 17 The address to which the letter of 6 April 2001 was sent was not the last known address of the applicant, he having specified an address for service in his application, which the Tribunal chose to ignore at that point. The telephone number in question was not set out in the application to the Tribunal as the review applicant's day time phone number, but it was contained on the form. All of these matters, which may properly be the subject of criticism of the administrative process of the Commonwealth, may not have ultimate relevance. The question that does have relevance relates to the terms of the letter of 6 April 2001. 18 The complaint of the applicant is that the Tribunal did not comply with the procedures required to be observed by s 360 and s 360A of the Act. Section 360(1) provides as follows: "The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." Sections 360A(1) and 360A(2) provide: "If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the day and place at which, the applicant is scheduled to appear. (2) … the notice must be given to the applicant by one of the methods specified in s 379A. At the relevant time s 379A relevantly provided: (1) A document specified in subsection (3) is taken to be duly given to an applicant for review if: (a) the document is sent (physically, electronically or otherwise) to: (i) the last address for service provided by the applicant in connection with his or her application for review; or (ii) the last residential address provided by the applicant in connection with his or her application for review; and (b) the Tribunal has a receipt or other evidence indicating the date of dispatch. (3) The documents specified for the purposes of subsections (1) and (2) are: … (c) a notice under s 360A… … (5) A document posted in accordance with paragraph (1)(a) must bear correct prepaid postage and if the document is posted to an overseas address the postage must be at the full airmail rate." It is common ground that the requirements of s 379A(1)(b) and s 379A(5) were satisfied. 19 The first contention on behalf of the applicant is that s 379A(1)(a) was not complied with. The applicant contends that s 379A(1)(a)(i) should be construed as meaning that that requirement would be satisfied only if the document is sent either to the last address for service, or if there is no last address for service, to the last residential address provided. That is to say the applicant contends that pars (i) and (ii) of 379A(1)(a) are not true alternatives and that there will be service in accordance with that provision by sending to the last residential address only if there is no last address for service provided. 20 I do not consider that that is the correct construction to be given to the provision. In the absence of any internal indication as to how the choice is to be made between the provisions, the regulation has to be given effect to in accordance with its terms. It may be that a gloss can be implied in that the choice should be made in good faith - see Rodwell v Minister for Immigration, Local Government & Ethnic Affairs (1992) 28 ALD 195 at 197. 21 At the time when the decision was made to dispatch the letter of 6 April 2001 to the applicant, there was no reason for the Tribunal to doubt that he was still living at 2 Coral Street, Leeton. If the letter of 6 April 2001 was a notice and invitation that satisfied the requirements of s 360(1) and s 360A(1), I consider that it must be taken to have been duly given to the applicant pursuant to s 379A(1). 22 However, the applicant also contends that the letter does not satisfy the requirements of s 360 and s 360A. Section 360(1) requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments. Under s 360A the Tribunal must give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. The letter of 6 April 2001 specifies a day and time at which it was said the Tribunal had set down a hearing. It does not purport to give the applicant notice of any particulars in relation to which the applicant is scheduled to appear. It does not say that the applicant is scheduled to appear at a particular time. More significantly, it does not specify a place at which the applicant is scheduled to appear. Rather, the letter simply says "This will be a telephone hearing." 23 The Minister points to s 366(1) and says that in circumstances where that section applies there is no need for notice of a place to be given at which an applicant is scheduled to appear. The reasoning is that because an appearance might be allowed by telephone, there is no place at which anybody is scheduled to appear. That, in my opinion, is a misconception of the way in which these provisions operate. Section 360(1) imposes an obligation on the Tribunal to invite the applicant to appear before it. The Tribunal conducts a hearing a particular place. It conducts that hearing at the place where the Member of the Tribunal is situated. 24 In this case it seems that the Member who was going to hear and determine the application was located at some unspecified place in Brisbane. So much is to be gleaned from the letter written by the Canberra office of the Tribunal. I do not consider that s 366 authorises the Tribunal to limit an applicant's right to appear to a right to appear by telephone and nothing more. 25 Section 366(1) provides: "For the purposes of the review of a decision the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person to be by: (a) telephone; or (b) closed circuit television, or (c) any other means of communication." That provision does not, in my opinion, authorise the Tribunal to require that an appearance be by telephone. It is a discretionary power conferred upon the Tribunal to permit aa applicant to appear by telephone if the applicant wishes to do so. However, it is not, in my view, a power that overrides the requirements of s 360 and s 360A. 26 The right is to appear before the Tribunal wherever the Tribunal chooses to sit. It appears that this Tribunal Member decided to sit in Brisbane. The applicant was entitled to be given notice of the place at which he was scheduled to appear. It may well be that it would have been convenient for the applicant, had he been informed of that place and known where the hearing was to take place, to ask the Tribunal to exercise its discretion under s 366(1) to allow his appearance in Brisbane to be by telephone. The applicant, however, was not given that opportunity. 27 I do not consider that the letter of 6 April 2001 satisfied the mandatory requirement of s 360A, that the applicant be given notice of the place at which the applicant was scheduled to appear. The Tribunal did not observe procedures that were required by the Act to be observed in connection with the notice of the decision. 28 However, the Minister says that, even if that be so, there would be no utility in setting the Tribunal's decision aside and remitting the matter to the Tribunal for decision according to law. That contention is based first, on an apparent determination by the Minister's delegate who refused the applicant's application for a visa, that the applicant's sponsor did not satisfy the requirements for a sponsorship of a subclass 421 (Sport) visa holder and second, that that is not a matter that was the subject of review by the Tribunal. 29 That contention requires an examination of those parts of the regulations that deal with visas within the relevant class. Item 421 in Schedule 2 of the Regulations deals with the requirements for the grant of subclass 421 sports visa. Paragraph 421.2 deals with Primary Criteria. Clause 421.21 deals with criteria to be satisfied at the time of application. The only relevant criterion was that contained in cl 421.211(a)(i)(B). That criterion is that if the application is made in the migration zone, the applicant must be the holder of a Cultural/Social (Temporary) (Class TE) visa. As I have indicated, the application in question was made while the applicant was in the migration zone and the applicant was already the holder of a class 421 visa. 30 Clause 421.22 specifies the criteria to be satisfied at the time of decision. Clause 421.221 provides that if an application is made outside Australia or if the application is made in the migration zone and the applicant does not hold a subclass 421 visa, the applicant must satisfy the criteria in cl 421.222 to 421.229. Clause 421.221 therefore does not apply to the applicant. However, cl 421.230 provides as follows: "If the application is made in the migration zone and the applicant was at the time of application the holder of a subclass 421 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a subclass 421 visa." That appears, somewhat inelegantly, to refer back to the requirements of cl 421.221. This proceeding has been conducted on the basis that that is so and that it is necessary to determine whether the applicant satisfies any of the criteria in cl 421.222 to 421.229. 31 The only provision upon which reliance is based is cl 421.222(4). Under that subclause the applicant meets the requirements of the provision if, relevantly: (a) the applicant seeks to enter Australia under an arrangement with an organisation in Australia to: (i) be a player, coach or instructor in relation to an Australian team or organisation; or (ii) participate in a training program; and (b) the applicant is sponsored by … an organisation in Australia; and (c) the applicant establishes: … (ii) that the sponsor has a good financial and professional status in Australia …" 32 In order to consider the operation of this provision, it is necessary to say something further about the process of the applicant's application to the Department. As I have said, the original application was accompanied by a Form 55 entitled 'Sponsorship for temporary residence in Australia (non-business)'. The sponsor specified in that form was "Yanco Wamoon RLFC". Towards the end of the form appears the following, signed on behalf of that rugby league club by its secretary: "I/We accept responsibility for: · all financial obligations to the Commonwealth incurred by the nominee arising out of the nominee's stay in Australia, and · compliance by the nominee with all relevant legislation and awards in relation to any employment entered into by the nominee in Australia, · unless the Minister otherwise decides compliance by the nominee with the conditions under which the nominee was allowed to enter Australia." 33 On 1 July 1999, the day on which the delegate wrote to the applicant indicating that the decision had been made to refuse his visa, the same delegate wrote to the secretary of the rugby league club, referring to applications by the applicant and by another player, and saying as follows: "I refer to the sponsorships lodged by your club for the above nominees as holders of a subclass 421 Sport visa. Your applications have been assessed and a decision has been made to refuse the sponsorship. The reasons for refusal are outlined in the attached decision records." 34 Attached to the letter was a record of decision dated 30 June 1999. The record included the following under the heading "Assessment of the Sponsorship Application": "On 12 October 1998 Yanco Wamoon Rugby League Football Club lodged sponsorships for temporary residence in Australia for Pio Nakubuwai and Iowani Korovata as the holder of a subclass 421 Sport visa. … Where a sports organisation seeks to sponsor an applicant, the club will need to demonstrate that the primary purpose of the visit is to play sport and that the sponsoring organisation has the financial capacity to fully support the player. It is possible for the player to be employed provided that the work is not the main source of income and is incidental to the primary purpose of stay in Australia. … The agreements between the club and the players specify a sign-on fee of $10,000 subject to the player playing 10 first grade matches with a match fee of $500 per match played. No evidence has been received from the Yanco Wamoon Rugby League Football Club that the club has the financial capacity to fulfil these agreements. … The sponsor has not demonstrated that they are in a financial position to fulfil their sponsorship obligations or that the primary purpose of the visit is to play sport. The confirmation of the employment that the appellants are undertaking does not indicate that the employment is incidental to the sporting activity. The sponsor therefore does not satisfy the requirements for the sponsorship of a subclass 421 Sport visa holder." 35 By her decision, the delegate purported to "refuse the sponsorship applications lodged by Yanco Wamoon Rugby League Football Club" and declare that "the sponsor has not demonstrated that they meet the requirements for sponsorship of a subclass 421 visa holder". 36 The only requirements for a subclass 421 sport visa holder are those to which I have already referred, being the requirement of subcl 421.222(4)(c)(ii) that the sponsor has good financial and professional status in Australia. The Minister, however, contends that the purported decision of 30 June 1999 relating to the rugby league club was made pursuant to r 1.20, which is in Division 1.4 of Part 1 of the Regulations. 37 Regulation 1.20 relevantly provides as follows: (1) For the purposes of these Regulations, sponsor, in relation to an applicant for a visa, means a person who undertakes the obligations of a sponsor in relation to the applicant… … (2) The obligations of a sponsor in relation to an applicant for a visa are the following: … (b) if the application is for a temporary visa … the sponsor accepts responsibility for: 1) all financial obligations to the Commonwealth incurred by the applicant arising out of the applicant's stay in Australia; and 2) compliance by the applicant with all relevant legislation and awards in relation to any employment entered into by the applicant in Australia; and 3) unless the Minister otherwise decides, compliance by the applicant with the conditions under which the applicant was allowed to enter Australia… … (3) A person who has been approved by the Minister as the sponsor of an applicant for a visa must enter into the sponsorship by completing the relevant approved form and give it to the Minister not later than a reasonable period after the Minister approves the person as a sponsor." 38 The Minister says that the decision of 30 June 1999 was in some way related to r 1.20(3). He says that the submission of a Form 55 was to be taken in some way to be an application for approval by the Minister and that a decision in relation to such approval is a separate decision from that relating to the refusal of a visa, and is not subject to review by the Tribunal. Accordingly, so it is said, if this matter were remitted to the Tribunal, the Tribunal must come to the same conclusion as that to which it has already come, namely that it must refuse the visa because the rugby league club has not been approved by the Minister as a sponsor. 39 That argument, it seems to me, ignores the terms of cl 421.2.2.2(4). There is no requirement that an applicant be sponsored by an organisation in Australia approved by the Minister. The only requirement is that the applicant is sponsored and that the sponsor has good financial and professional status in Australia. Regulation 1.20 has work to do in relation to subclass 421. That is to say, an applicant will not be sponsored by an organisation for the purposes of subcl 4B unless that organisation has undertaken the obligations of a sponsor in relation to that applicant as provided for in r 1.20(2)(b). 40 As I have already indicated, the rugby league club has given that undertaking. Accordingly, the applicant, as at the time of the current application for a subclass 421 visa, was sponsored by an organisation in Australia. Whether the applicant established that the sponsor has good financial and professional status in Australia is a different matter. Of course, the applicant took no steps to do so before the Tribunal because he was unaware of the hearing before the Tribunal. I have no way of determining whether the Tribunal would have been satisfied that the applicant had established that the rugby league club had good financial and professional status in Australia. That would be a matter for the Tribunal to consider on the merits. 41 The Minister, however, as I have said, relies on r 1.20(3) as imposing a further requirement. No criteria are laid down in r 1.20 for the approval by the Minister of an applicant. There are, however, subclasses provided for in the Regulations in respect of which approval of a sponsor is required by the Minister. 42 An example is subclass 138, which is described as "Skilled - Australian-sponsored". Clause 138.211 provides that one of the criteria to be satisfied at the time of application is that the applicant has one of specified relationships to a person, referred to as "the sponsor", who has turned 18 and is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Clause 138.212 provides that the applicant must "be sponsored by the sponsor". Clause 138.221 then provides that the sponsorship referred to in cl 138.212 must be approved by the Minister and that the approval is still in force. 43 The Minister was unable to refer to any specific provision relating to the approval of a sponsorship for the purposes of cl 138.221. That, of course, is a matter to which r 1.20 might apply. Be that as it may, that indicates only that there would be work for r 1.20(3) to do. I consider that r 1.20(3) does not apply in relation to subclass 421. There would be no need, if a sponsor was approved by the Minister, for an applicant to establish that the sponsor had good financial and professional status in Australia. The only criteria to which the Minister could point by reference to which the Minister could give an approval under r 1.20(3) was the requirement of subcl 4(c)(ii). If r 1.20(3) operated in the way contended for by the Minister, subcl 4(c)(ii) would be otiose. 44 I consider that the criteria for subclass 421 do not include a requirement that a sponsor be approved by the Minister, as is referred to in r 1.20(3). As I have said, it is a matter for the decision maker to consider whether or not subcl 4(c)(ii) has been satisfied. They are the only relevant criteria. It follows, in my opinion, that there would be utility in referring this matter back to the Tribunal for further consideration, after compliance with the procedures required to be complied with by the Act. 45 The applicant alleges that even if the ground in s 476(1)(a) were not made out, there are other grounds that would justify setting aside the decision. The reasons given by the Tribunal for its decision include the following: "10. At the time the visa application was lodged, Class TE contained the following subclasses: … Subclass 421 (Sport) … The only subclass in respect of which any claims have been advanced is subclass 421. There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses, nor was it submitted by him or on his behalf that he did. 11. Since the application for review was lodged in July 1999 the Tribunal has not received any further communication by or on behalf of visa applicant. 12. As little information has been received from the visa applicant or on his behalf since the refusal of the visa, the Tribunal is not aware that the visa applicant is still playing football for his sponsoring club or for any other club here. 13. Given that nothing more has been received in this matter from the visa applicant the Tribunal is unable to find on balance that he satisfies the criteria for the visa applied for. Consequently the visa sought is to be refused in the circumstances." The contention advanced on behalf of the applicant is that the Tribunal made an error of law, exceeded its jurisdiction or made a decision that was not authorised, because it took into account an irrelevant consideration, namely the fact that it was not satisfied as to whether or not the visa applicant was still playing football for his sponsoring club or for any other club. 46 I do not interpret the preceding extract as an introduction by the Tribunal of an additional criterion. I consider that the material constitutes an observation made by the Tribunal as to the state of its knowledge. Under cl 421.230 the onus rested on the applicant to satisfy the Tribunal that there was no reason to believe that he did not continue to satisfy the primary criteria for the grant of a Subclass 421 visa. 47 In the light of the material before the Tribunal it was open to the Tribunal to reach that conclusion. I do not consider that these grounds are made out. I have not dealt with them in any great detail having regard to the conclusion that I have reached in relation to ground 476(1)(a). 48 It follows, in my opinion, that the decision of the Tribunal should be set aside and that the matter should be remitted to the Tribunal for decision according to law and in accordance with the requirements of the Act. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.