Ranaraja v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 804

(a) Advanced Diploma of Leadership and Management (approved);

(b) Diploma of Leadership and Management (studying);

(c) Commercial Pilot Licence with Multi Engine Instrument Rating (finished);

(d) Commercial Pilot Licence with Multi Engine Instrument Rating (finished);

(e) Commercial Pilot Licence with Multi Engine Instrument Rating (cancelled);

(f) Commercial Pilot Licence with Multi Engine Instrument Rating (finished); and

(g) Commercial Pilot Licence with Multi Engine Instrument Rating (finished).

1. On 8 June 2017, the applicant applied for review of the delegate's decision by the Tribunal (CB 37-38). In that review application, the applicant again provided the details of his representative so that the Tribunal could contact him in relation to the applicant's review application (CB 38).
2. On 7 August 2018, the Tribunal invited the applicant (through his representative) to provide information in support of his review application by completing a Request for Student Visa Information questionnaire (the "questionnaire") (CB 47-55). The applicant was given until 21 August 2018 to provide that information (CB 49).
3. On 21 August 2018, the applicant wrote to the Tribunal to request an extension of time (until 31 August 2018) to provide that information (CB 56-59). The applicant had, however, provided some documents to the Tribunal, including the completed questionnaire (CB 61-71). In that completed questionnaire, the applicant "consent[ed] to the Tribunal deciding the review without a hearing" (CB 61).
4. That same day (being on 21 August 2018), the Tribunal confirmed receipt of the completed questionnaire and advised the applicant's representative that the applicant could submit further evidence (should he wish to do so) by 31 August 2018 (CB 74-75).
5. On or about 22 August 2018, the applicant provided a statement addressing the "genuine temporary entrant criteria" and other supporting documentation to the Tribunal (CB 76-94).
6. On 15 October 2018, the Tribunal affirmed the delegate's decision refusing to grant the applicant the visa (CB 98-103).
7. On 7 November 2018, the applicant sought judicial review of the Tribunal's decision in the then Federal Circuit Court of Australia (the "FCCA").

1. The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicant must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal's decision in some detail.
2. The Tribunal's decision is six pages long and spans 34 paragraphs (CB 98-103).
3. The Tribunal began by explaining that the applicant had applied for the visa on 23 February 2017 and that the visa was refused by a delegate of the Minister on 25 May 2017 because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily. The Tribunal confirmed that the applicant had provided a copy of the delegate's decision with his application and that it contained relevant extracts of the applicant's academic, immigration and visa history (at [1]-[5]).
4. The Tribunal noted that the applicant was assisted in relation to his review by his representative and explained that the applicant had "consented to the Tribunal deciding the review without a hearing" (at [6]-[7]).
5. The Tribunal outlined the relevant legislative provisions applicable in this matter and acknowledged that, in considering whether the applicant satisfied cl 500.212 in Schedule 2 of the Regulations, it was required to have regard to Ministerial Direction No. 69 (the "Direction") made under s 499 of the Act, including assessing the applicant against a number of specified factors in that Direction. The Tribunal also acknowledged that the list of specified factors should not be used as a checklist and were only intended as a guide to decision makers when considering an applicant's circumstances as a whole (at [10]-[12]).
6. The Tribunal then detailed the applicant's evidence provided to the Tribunal (at [14]-[15]).
7. The Tribunal considered the applicant's circumstances in his home country and noted that the applicant had advised that he came from a well-established, professional family, that his sister was a medical student and that he owned property in Sri Lanka. He did not advise of any community links to Sri Lanka or any business interests or holdings of commercial enterprises. The Tribunal explained that, despite the presence of family in Sri Lanka, the applicant rarely visited them and there was no evidence of personal ties excluding his family. The Tribunal found that it was "unable to conclude the applicant's personal ties serve[d] as a significant incentive to return to Sri Lanka" (at [17]-[20]).
8. The Tribunal then considered the applicant's potential circumstances in Australia and noted that the applicant had completed a set of courses leading to a vocational qualification as a private pilot and found that he had vocational skills that would "offer the option of employment in Australia and most likely his home country". The Tribunal also found that the applicant was "a skilled worker in a field that required technical competence" and, on that basis, he "would be able to obtain employment in [that] field in Australia". The Tribunal had regard to the applicant's community and sporting interests in Australia and noted he had "described himself as a successful sportsman who had acted as a coach, mentor and trainer to younger people. The Tribunal found that the applicant had "established a well ordered and well-structured life in Australia" and his ties to Australia presented a strong incentive for him to remain here. The Tribunal was of the view that the applicant was using the student visa program to circumvent the intention of the migration program and maintain an ongoing residence in Australia (at [21]-[24]).
9. The Tribunal also considered the value of the applicant's proposed courses to his future and found that the study in Leadership and Management did not relate his study to a commercial enterprise, commercial position or commercial interest or to a position in a family company. The Tribunal found that the applicant's statement that he wanted to be a manager or leader in the future to be "general" and "vague" and noted that while the applicant's statement (provided to the Tribunal) had described some attributes of leadership and management, it did not specify how those attributes were pertinent to his future career. The Tribunal also explained that the applicant had not provided any evidence as to how the proposed course would assist with remuneration and career prospects in his future career and found that the applicant had failed to establish that any such prospects existed (on the basis of the combined previous and current study choices) (at [25]-[27]).
10. The Tribunal then turned to the applicant's immigration history and found that his study and visa history indicated that he had enrolled in the "Advanced Diploma for the purpose of securing a further student visa rather than due to a genuine interest in study and overall academic progress" (at [28]-[29]).
11. The Tribunal found that those factors indicated that the applicant intended on using the student visa program to maintain an ongoing residence in Australia and that he did not intend on staying in Australia temporarily. Accordingly, the Tribunal found that the applicant did not meet cl 500.212(a) in Schedule 2 of the Regulations (at [30]-[32]).
12. The Tribunal ultimately affirmed the delegate's decision refusing to grant the applicant the visa (at [33]-[34]).

1. The application for judicial review filed by the applicant on 7 November 2018 contains five grounds of review, as follows (without alteration):
   1. The Minister and the Tribunal conclude that the applicant's ties in his home country are not enough for him to go back to Sri Lanka.

Particulars:

The Minister and the Tribunal give little significance that the applicant owns property in Sri Lanka. Moreover, they see that his family ties in Sri Lanka are not enough a reason for me to go home, which is very arguable given that all my immediate family lives in Sri Lanka.

1. The Tribunal believes that the applicant will remain in Australia due to his circumstances in the country.

Particulars:

The applicant's participation in the community, for one, as a coach to young people is done out of his passion as a sportsman. It is inequitable that the applicant's well-ordered living in Australia as a student is used against him. The applicant's circumstances in Australia are not strong incentives for him to remain in the country.

1. The Minister and the Tribunal has not given due regards to the Applicant's choice of course, value of the course towards his academic needs and his career goal.

Particulars:

The legislation allows a degree of flexibility such as allowance "for reasonable changes to career or study pathways" and recommends a holistic approach of each applicant in assessing the genuine stay for study criteria given a wide range of variations that may apply from case to case.

1. The Minister and the Tribunal erred in applying 'Ministerial Direction No. 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications' towards the assessment of GTE (Genuine Temporary Entrant) requirements for this application.

Particulars:

A holistic approach was not used. Instead they carried out the assessment with a biased focus based on a general checklist prepared to help the case officer determine the GTE requirements.

1. The Minister and the Tribunal failed to afford procedural fairness and natural justice.

Particulars:

Particulars of grounds 1, 2, 3 and 4.

1. The applicant also filed an affidavit in support of that judicial review application (affirmed and filed on 7 November 2018). That affidavit annexed a copy of the delegate's decision and associated notification letter, as well as a copy of the Tribunal's decision. The affidavit also stated that the applicant "intend[ed] to obtain legal representation as soon as possible" and that he "may amend the application further".
2. On 24 August 2020, procedural orders were made by Registrar Carlton of the then FCCA giving the applicant an opportunity to file an amended application, any supplementary court book and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
3. On the morning of the hearing, Mr Anthony Gardner ("Mr Gardner") from Mills Oakley emailed the Court advising that his office had spoken with the applicant that morning and that the applicant had requested copies of the CB and Minister's written submissions be provided to him by email. Mr Gardner also provided copies of the correspondence sent to the applicant in that regard.
4. The applicant appeared before this Court (by video link on 5 February 2025) without legal representation but with the assistance of a Sinhalese interpreter. Mr Gardner appeared on behalf of the Minister at that hearing (also by video link). The Court asked the applicant to confirm that he had received copies of the Court Book and the Minister's written submissions.
5. The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 7 November 2018 (the affidavit being taken as read and in evidence at the hearing on 5 February 2025), a Court Book numbering 106 pages (marked as Exhibit 1 at the hearing of this matter), written submissions filed on behalf of the Minister on 14 January 2025 and correspondence from Mr Gardner to the Court (referenced above, with attachments and marked as Exhibit 2 at the hearing).
6. Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal "did wrong". This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
7. To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:

(a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 ("Craig") at 198;

(b) where the decision-maker ignores relevant material: Craig at 198;

(c) where the decision-maker relies on irrelevant material: Craig at 198;

(d) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 at [207]- [208];

(e) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 ("SZRUI") at [2]; and

(f) where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [26]- [28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44].

1. It was also explained that this Court cannot review the merits of the Tribunal's decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
2. Against this background, the applicant told the Court that he could not remember what he had put in his visa application but his "application was perfect", he was a genuine student and then, "out of nowhere", his application was refused. The applicant also seemed to suggest that he was not sure how the box was ticked to indicate he did not want a hearing and that he had not received anything from the Tribunal or his agent. When asked by the Court if he thought that "the other box should have been ticked", he agreed, however, he also confirmed that he had provided some submissions and other documents to the Tribunal in support of his review application.
3. The applicant's comments, to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be addressed by the Court below.

1. Grounds one, three, four and five (or their particulars) reference the Minister (in addition to the Tribunal). To the extent that the applicant has any concerns with the conduct of, or decision made by, the Minister (or his delegate), this Court has no jurisdiction in relation to the delegate's decision: ss 476(2) and (4) of the Act. That decision is a primary decision (within the meaning of s 476(2)(a) of the Act). As such, it is not subject to judicial review by this Court: ss 476(2) and (4) of the Act.
2. The Court will thus only consider the concerns raised by the applicant insofar as they relate to the Tribunal's decision.

1. As outlined above, ground one provided as follows:
   1. The Minister and the Tribunal conclude that the applicant's ties in his home country are not enough for him to go back to Sri Lanka.

Particulars:

The Minister and the Tribunal give little significance that the applicant owns property in Sri Lanka. Moreover, they see that his family ties in Sri Lanka are not enough a reason for me to go home, which is very arguable given that all my immediate family lives in Sri Lanka.

1. By ground one, the applicant raised concerns with the Tribunal's findings in relation to his circumstances in his home country. In particular, the applicant claimed that the Tribunal "g[a]ve little significance [to the fact] that the applicant owns property in Sri Lanka" and did not see that his family ties in Sri Lanka were enough of a reason for the applicant to return to Sri Lanka.
2. The Tribunal's findings in this regard were as follows (emphasis added):
   1. The applicant advised he came from a well-established professional family in Sri Lanka. His only sister is a medical student. He owns property in Sri Lanka. He did not pass any information that the property is not well run or administered. He did not offer any complaints or assertions that it might be the subject of illegal activity or mis-use. He did not advise of any community links to Sri Lanka. He did not advise of any business interests in his home country. He did not advise of holdings in commercial enterprises in his home country.
   2. Despite the presence of family in his home country he rarely visits them. There is no evidence of personal ties of Sri Lanka excluding family.
   3. The Tribunal is unable to conclude the applicant's personal ties to his home country serve as a significant incentive to return to Sri Lanka
3. As can be seen from the passages above, the Tribunal specifically referenced the fact that the applicant owned property in Sri Lanka but noted that the applicant had not provided any information that the property was not well run or administered or that it might be the subject of illegal activity or misuse.
4. The Tribunal also expressly stated that the applicant's family was present in his home country but found that the applicant "rarely visit[ed] them" and that there was no evidence of any other personal ties (excluding family).
5. Ultimately, the Tribunal stated that it was "unable to conclude [that] the applicant's personal ties to his home country [would] serve as a significant incentive to return to Sri Lanka".
6. To the extent that the applicant takes issue with the weight that the Tribunal gave to those factors (being the applicant's ownership of property and the applicant's family members living in his home country), it is well established that the Tribunal is entitled to accept, reject or give such weight to the evidence submitted as it deems appropriate in the circumstances: Lee v Minister for Immigration and Multicultural Affairs [2005] FCA 464 at [27]. Further, the degree of weight to be given to the evidence is a factual question for the decision maker alone: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 at [197] per Gummow and Hayne JJ.
7. No jurisdictional error arises in relation to ground one.

1. Ground two stated:
   1. The Tribunal believes that the applicant will remain in Australia due to his circumstances in the country.

Particulars:

The applicant's participation in the community, for one, as a coach to young people is done out of his passion as a sportsman. It is inequitable that the applicant's well-ordered living in Australia as a student is used against him. The applicant's circumstances in Australia are not strong incentives for him to remain in the country.

1. By ground two, the applicant raised concerns with the Tribunal's findings in relation to his potential circumstances in Australia. Relevantly, the applicant raised concerns that the Tribunal had used the applicant's "well-ordered living in Australia" against him.
2. The Tribunal's findings in this regard were as follows (emphasis added):
   1. He advised of extensive community and sporting interests in Australia. He described himself as a successful sportsman who had acted as coach, mentor and trainer to younger people. He is an active participant in his local community. The applicant has only rarely worked in Australia and then for only a short period of time. Presumably he has savings or receives remittances from his wealthy family in Sri Lanka.
   2. The Tribunal is of the view the applicant has established a well ordered and well-structured life in Australia. That life involves work, study, leisure and community. The Tribunal is of the view the applicant's ties to Australia present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa program to circumvent the intent of the migration program and the student visa is being used to maintain ongoing residence.
3. As can be seen from the passages above, the Tribunal had regard to the applicant's evidence regarding his sporting interests and activities and his community engagement. The Tribunal did not make any adverse findings or use the applicant's "well ordered living in Australia as a student against him". The Tribunal simply found that applicant's life in Australia as a whole (including work, study, leisure and community) presented a strong incentive for the applicant to stay in Australia.
4. The Court otherwise considers that the applicant's complaint here rises no higher than disagreement with the Tribunal's decision. Disagreement, no matter how strongly felt, does not amount to jurisdictional error.
5. No jurisdictional error arises in relation to ground two.

1. Ground three provided as follows:
   1. The Minister and the Tribunal has not given due regards to the Applicant's choice of course, value of the course towards his academic needs and his career goal.

Particulars:

The legislation allows a degree of flexibility such as allowance "for reasonable changes to career or study pathways" and recommends a holistic approach of each applicant in assessing the genuine stay for study criteria given a wide range of variations that may apply from case to case.

1. The applicant here appeared to take issue with the Tribunal's findings in relation to his course choice and the value of his proposed course of study to his career goals.
2. The Tribunal's findings in this regard were as follows (emphasis added):
   1. The applicant completed the course of Commercial Pilot Licence with Multi Engine Instrument Rating. He now seeks to pursue study in Leadership and Management. The applicant did not relate his study to a commercial enterprise, a commercial position or any existing commercial interests. He did not relate his study in Leadership and Management to a position in a family company. He stated he wanted to be a manger or leader in the future. His statement was general. It was vague. It described some attributes of leadership and management. it did not specify how these attributes were pertinent to any future career of the applicant.
   2. In terms of the value of the courses to his future, including remuneration and career prospects in his country he has not provided any details as to how the proposed course will assist in a future career and employment. Whilst the Tribunal notes the applicant indicated he would try and find the best available option in the same field in his home country, he failed to establish that any such prospects exist on the basis of combined previous and current study choices.
3. As can be seen from the passages above, the Tribunal clearly had regard to the applicant's initial study path relating to obtaining his Commercial Pilot Licence and noted that the applicant was then seeking to complete studies in leadership and management. The Tribunal did not make any adverse findings in relation to the change in study course or make any statements indicating that the applicant could not, or should not, change study course. However, the Tribunal found the applicant's explanation as to why he had changed his study course to be general and vague, noting, in particular, that the applicant was not able to specify how any of the attributes of the new course of study would be applicable to any future career.
4. The Court also considers that the applicant's complaint here rises no higher than as expressing disagreement with the Tribunal's decision. As outlined above (in relation to ground two), disagreement does not amount to jurisdictional error.
5. No jurisdictional error arises in relation to ground three.

1. Ground four stated:
   1. The Minister and the Tribunal erred in applying 'Ministerial Direction No. 69 - Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications' towards the assessment of GTE (Genuine Temporary Entrant) requirements for this application.

Particulars:

A holistic approach was not used. Instead they carried out the assessment with a biased focus based on a general checklist prepared to help the case officer determine the GTE requirements.

1. By ground four, the applicant suggested that the Tribunal's decision was affected by bias.
2. It is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove an allegation for bias, it is for the applicant to establish that:

(a) the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or

(b) the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant's case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].

1. There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicant to provide additional information in relation to his review application (CB 47-55), granted the applicant an extension of time within which to provide that information (CB 74-75) and considered the evidence provided to it.
2. Having considered the evidence before it against the factors contained in the Direction (as it was required to do), the Tribunal ultimately determined that the applicant was not a genuine temporary entrant and affirmed the delegate's decision refusing to grant the applicant the visa.
3. The Court is satisfied that the Tribunal was not biased in its review of this matter and no jurisdictional error arises in relation to ground four.

1. Ground five provided:
   1. The Minister and the Tribunal failed to afford procedural fairness and natural justice.

Particulars:

Particulars of grounds 1, 2, 3 and 4.

1. By ground five, the applicant suggested that the Tribunal failed to comply with its procedural fairness obligations. The Court disagrees for the reasons that follow.
2. As previously explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243 (and other similar matters), Division 5 of Part 5 of the Act (as was in force at the time the Tribunal's decision was made on 15 October 2018) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
3. The Court has considered whether the Tribunal complied with the relevant requirements in this matter and notes as follows:

(a) the Tribunal invited the applicant to provide information to it (pursuant to s 359(2) of the Act) (CB 47-55). The applicant provided a response to the Tribunal (CB 57-71 & 76-94) and the Tribunal had regard to that information (as it was required to do);

(b) the applicant consented to the Tribunal deciding his review application without a hearing (CB 61) and the Tribunal was thus not required to invite the applicant to appear at a hearing before it: s 360(2)(b) of the Act;

(c) the dispositive issue before the Tribunal (being whether the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 in Schedule 2 of the Regulations) was the same as the issue before the delegate - and which led to the refusal of the applicant's visa. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and

(d) as outlined above in relation to ground four, there was nothing in the evidence before the Court to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.

1. The Court is satisfied that the Tribunal afforded the applicant procedural fairness.
2. No jurisdictional error arises in relation to ground five.

1. As outlined above, the applicant filed an affidavit with his judicial review application (on 7 November 2018). In that affidavit, the applicant stated that he "intend[ed] to obtain legal representation as soon as possible" and that he "may amend the application further".
2. The Court notes that the applicant did not amend his application and did not raise this as an issue at the hearing before this Court (on 5 February 2025) or otherwise suggest that he was still attempting to obtain legal representation. The Court also notes that there is no right to legal representation in migration proceedings: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [51] and SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4].
3. No jurisdictional error arises in this regard.

1. As outlined above, when the applicant appeared before this Court, he suggested that he was not sure how the box was ticked to indicate he did not want a hearing and that he had not received anything from the Tribunal or his agent. However, the applicant also confirmed that he had provided some submissions and other documents to the Tribunal in support of his review application.
2. The Court notes that the following selection was made in the completed questionnaire (CB 61):

1. That questionnaire was signed and dated by the applicant (CB 71). The applicant also provided a signed statement to the Tribunal (CB 76-78). The Court notes that the signatures on each of those documents appears to be the same (and appear to match the signatures included in the applicant's judicial review application and affidavit filed in this Court on 7 November 2018).
2. There is no evidence before the Court to suggest that the applicant did not complete the questionnaire form (or was otherwise not aware of the contents of the completed questionnaire form) as outlined above.
3. In circumstances where the applicant consented to the Tribunal deciding the review without a hearing, the Tribunal was not required to invite him to appear before it and was legislatively empowered to make a decision on the information before it (and did so).
4. No jurisdictional error arises in this regard.

1. The application for judicial review and supporting affidavit (filed by the applicant on 7 November 2018) and the applicant's oral submissions before this Court have failed to identify any jurisdictional error on the part of the Tribunal.
2. The Court is otherwise unable to identify any jurisdictional error.
3. The application is, accordingly, dismissed.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.