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

Ground 1 19 Proposed Ground 1 is advanced by the Applicant on the premise that following the decision of the High Court in Makasa the law is properly to be understood as having made it impermissable for the Tribunal to have had regard to such of the Applicant's criminal history as had been taken into account by the delegate of the Minister in 2014 in making a decision at that time not to refuse the Applicant a visa on character grounds pursuant to to s 501(1) of the Migration Act. 20 That submission is developed in Mr Dour's written submissions at [31]-[41] as follows: 31. The Applicant was given a 'warning' about his conduct in 2014. As such, a decision was made under s 501(1) of the Act by a delegate of the First Respondent not to refuse to grant a visa based on the Applicant's character as at that time (the s 501(1) decision). 32. The s 501(1) decision would fall, it is submitted, within what the High Court described as the 'second stage' of analysis of s 501, having regard to the Applicant's criminal history between 2006 and 2014 and the natural meaning of a 'warning', after having determined the first stage of a reasonable suspicion that the visa holder does not pass the character test. 33. The consequence of the s 501(1) decision, it is submitted, is that for the purposes of s 501 of the Act the exercise of power has been spent in respect of the Applicant's previous criminal history between 2006 and 2014 and is subject to the Minister making a decision under s 501A. It is submitted that those facts cannot be subject to a re-exercise of power in assessing whether to cancel or revoke a cancellation of a visa under s 501CA of the Act. The High Court held that s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, similarly 501A must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of s 501(1) of the Act by way of s 501CA of the Act. 34. Derrington J had occasion to consider the effect of Makasa on subsequent facts taken into account by a decision maker in Zyambo. His Honour interpreted Makasa such that new matters, taken with some or all of prior circumstances, could give rise to a new foundation for the exercise of power, but the Minister may not rely on precisely the same circumstances on the second occasion. 35. However, Burley J declined to follow Zyambo in the case XLJR. Burley J held that regard was required to be had to the underlying policy and purpose of the different sections of the Act and that the power conferred by s 501(3A) cannot be re-exercised in respect of a conviction after a decision has been made to exercise the power by reference to that same conviction. The decision is subject to a notice of appeal. 36. Middleton J decided not to express a view as to which of Zyambo or XJLR was to be preferred as it was unnecessary for his Honour to deal with the issue in the case of PYDZ. 37. It is submitted that the approach of Burley J should be preferred. Considerations of policy and purpose are even stronger where a power was exercised in favour of an applicant not to refuse a visa having regard to his previous criminal conduct but then subsequently be able to rely on those matters to decided not to revoke the cancellation of that visa. Whatever might be the motive behind the 'warning', as a matter of the law the consequence of the exercise of discretion under s 501(1) is to spend the power in respect of consideration of matters underlying its exercise. 38. Further, Zyambo was a case where the prior circumstances where used as a basis for cancellation but in each case that cancellation was revoked (not by the Tribunal). That is very different to a positive decision not to refuse the visa pursuant to s 501(1) having regard to the merits weighing against the exercise of discretion to refuse the visa. 39. As was stated by Dowsett J in Minister for Immigration and Multicultural and Indigenous Affairs v Watson: "Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so." 40. The Court in Watson held that the Minister does not have power to revoke a decision under s 501(1) of the Act. The Tribunal cannot do indirectly what the Minister cannot do directly. Thus the Tribunal cannot take into account factors which did not cause the exercise of discretion to refuse to grant the visa as a basis for subsequently cancelling a visa. 41. The Tribunal's decision is manifest with consideration of the Applicant's criminal history between 2006 and 2014. This is apparent in its summary of the Applicant's offences (CB964 [48]) and in assessing the Applicant's likelihood of reoffending having regard to the protection of the Australian community. The Tribunal has therefore committed an error of law in asking itself the wrong question and that error is material. (footnotes omitted) 21 I did not take the Minister to contest that if the Applicant's submissions as to the effect of the High Court's decision in Makasa were sound the Tribunal had erred by having regard to the Applicant's earlier convictions in its overall assessment of whether or not 'another reason' justified the revocation of his visa cancellation. The detailed analysis engaged in by the Tribunal regarding the Applicant's circumstances plainly took into account not only the Applicant's offending conduct since 2014, but also that which he had engaged in prior to that time. That, for example, is illustrated at [49(d)] and is explicitly reflected in the conclusions expressed by the Tribunal at [142]. 22 If the Tribunal was in error in those regards I accept that the error was material. It bore on the extent of his criminality as the Tribunal was entitled to take into account. Such an error would plainly go to jurisdiction. 23 However in oral submissions the Court drew Mr Dour's attention to the circumstance that nothing stated in terms in Makasa appeared to require the conclusion the Applicant contended for. In terms Makasa precludes only the Minister deciding to re-exercise a discretion his delegate or the Tribunal has earlier exercised in a visa holder's favour where there has been no material change in those circumstances as would re-enliven the power. What the plurality of the High Court had stated at [48] and [49] appeared to the Court not to preclude a decision maker having regard to all of the relevant circumstances if following a new sentence of imprisonment or some other intervening factor as the High Court refers to at [48] has since occurred and has triggered the potential exercise of a subsequent discretionary decision. 24 Those passages are as follows: 48. Turning then to the scheme of the Act and the AAT Act, it is important at the outset to recognise that nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test. A new sentence of imprisonment amounting by operation of s 501(7)(c), or contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a) is an example. A new conviction providing a reasonable basis for making a revised assessment of the visa holder's "character" − his or her "enduring moral qualities"[22] − under s 501(6)(c) is another example. Section 501(6)(c) was not argued to be engaged in this appeal. 49. To the extent that the scheme of the Act and the AAT Act exhibit an intention contrary to the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act, absent subsequent events or further information providing a different factual basis for the formation of a reasonable suspicion that a visa holder does not pass the character test, such an intention emerges by reference to two principal considerations. One is narrower in its ambit and arises from the generic operation of the AAT Act; the other is broader in its ambit and specific to the relationship between s 501(2) and s 501A of the Act. (emphasis added) 25 Mr Dour properly conceded that at the first stage, that is whether the Applicant's visa was be been open to be revoked, the position was not analogous to that which had applied in Makasa. Mr Dour accepted that in the present case the cancellation of the Applicant's visa had been brought about pursuant to s 501(3A) of the Migration Act having regard to new circumstances and entirely independent of the Applicant's previous offending as had been taken into account by the Minister's delegate in 2014. However Mr Dour submitted Makasa was not to be narrowly applied. It was underpinned by rule of law principles which, properly understood, meant it had been an error of law for the Tribunal to have taken any of the Applicant's pre-2014 offending into account notwithstanding his visa had been open to have been revoked at stage 1 by reason of the Applicant's further offending. 26 Mr Dour submitted that while Makasa might permit the power of revocation to be engaged if new facts emerged the rule of law principles it stood for nonetheless had required the Tribunal to place no weight upon any earlier offending in responding to the Applicant's representations regarding the revocation of his visa cancellation. 27 The Court observed that that proposition appeared to be contrary to the terms of Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No 79), the validity of which had not been challenged by the Applicant. Direction No 79 had required that a decision-maker treat as a primary consideration the protection of the Australian community. On any ordinary reading giving appropriate weight to that factor would require the Tribunal to have regard to the whole history of the Applicant assessed in the round and not to ignore his earlier offending. 28 Mr Dour accepted that the earlier decision made by a delegate of the Minister to grant the Applicant a visa could not plausibly be argued to have wiped clean the slate of all sins which at that time had been regarded as insufficient to require it to be refused pursuant to s 501(1) of the Migration Act. Mr Dour acknowledged that to adopt such an absolute approach would reduce to inconsequence a warning of the kind that had been given to the Applicant in 2014. 29 Mr Dour accordingly accepted that offences that had been committed prior to an earlier favourable determination could considered provided that consideration was limited to evaluating the Applicant's character as had been assessed at that earlier time. However Mr Dour found some difficulty in identifying a criteria of judicial review whereby certain criminal conduct might be available to be taken into account by the Tribunal but other conduct not. 30 Acknowledging those difficulties Mr Dour submitted in the alternative, that the underlying principle to be distilled from Makasa was that a person who had had the benefit of an earlier decision in their favour notwithstanding their offending was not to be left with a Sword of Damocles hanging over their head. 31 But accepting that to be arguable, any such broader principle could have no application in the facts of this case. The Applicant's unfortunate circumstances as resulted in the revocation of his visa did not come about because the Tribunal came to a different discretionary decision on the same facts as might be understood as having compelled the Applicant to have to live with the prospect of such a threat hanging over his head. 32 Instead his unfortunate circumstances were entirely the product of his own subsequent conduct. He had failed to heed the warning he was given in 2014. It was his subsequent serious criminal offending, conviction and imprisonment that triggered his visa being revoked. That had had nothing to do with his earlier offending. Had he conducted himself differently there would have been no risk of his visa being cancelled. 33 For the above reasons on the impressionistic basis appropriate for that task I am unpersuaded that proposed Ground 1 has merit or any reasonable prospect of success. 34 In stating that conclusion I have perhaps given inadequate attention to the submissions advanced by Mr Barrington on behalf of the Minister. Lest it be concluded that that involves disrespect record that I accept the submissions the Minister advanced as below: 31. Secondly, unlike in Makasa (and Zyambo and XJLR), in the present case there were subsequent events which provided a different factual basis upon which to form a reasonable suspicion that the Applicant did not pass the character test. The "Notice of visa cancellation under s 501(3A) of the Migration Act 1958" identifies that the 2019 convictions were the reason the Applicant had a "substantial criminal record" and so did not pass the character test. The Tribunal similarly relied upon the 2019 convictions in forming its state of satisfaction that the Applicant did not pass the character test. 32. Accordingly, neither s 501(3A) cancellation decision or any of its preconditions in s 501(3A)(a) or (b), nor the s 501CA(4) non-revocation decision were made on the same factual basis as the s 501(1) decision in 2014. The differences of opinions expressed on this topic by Derrington J in Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Burley J in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (XJLR) do not arise in this case. (footnotes omitted) 35 I also accept, if not obvious from what I have already stated, that I am satisfied that what the Minister submits at [33] also correctly represents the law: 33. Thirdly, to the extent the Applicant's submissions suggest that the Tribunal was prohibited from considering prior convictions the subject of an earlier s 501(1) decision, at all, the submission should be rejected. Nothing in Makasa provides support for a proposition that Tribunal is unable to consider prior convictions in the exercise of the second-stage of the decision-making process - namely, the discretion to cancel. Instead, there is a clear indication that the Tribunal is able to consider earlier matters (taken with new matters) even if they have been subjected to earlier decisions. 33.1. The Court noted that the second-stage of the decision-making process involves the decision-maker exercising a discretion "in compliance with applicable directions given under s 499". The relevant direction was Direction 79 (CB 151), which requires the decision-maker to consider, among other things, "the nature and seriousness of the non-citizen's criminal offending or other conduct to date", including the "frequency of the non-citizen's offending and whether there is any trend of increasing seriousness". These considerations, as well as a proper consideration of the risk to the Australian community should an applicant re-offend, require a consideration of the whole of an applicant's criminal history and other conduct. By noting that a decision-maker is required to comply with a s 499 direction, the High Court did not cast any doubt upon a decision-maker's ability to consider prior pursuant to that direction. 33.2. The Court's statement at [48] of Makasa, the Court refers to a "new sentence of imprisonment … contributing to the operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a)" (emphasis added). The reference to "contributing" suggests that it is permissible for a decision-maker, in determining whether the visa holder fails the character test, to rely, in part, on facts that arose prior to the earlier s 501(2) decision not to cancel. 33.3. To a similar effect, Derrington J in Zyambo considered that Makasa did not say that "new matters, taken with some or all of those prior circumstances, cannot give rise to a new foundation for the exercise of power", but only that "the Minister may not rely on precisely the same circumstances on the second occasion". 33.4. The facts of Makasa are themselves instructive. The Minister took Mr Makasa's later 2017 convictions as well as his earlier 2009 convictions into account in exercising the discretion. The High Court, however, at no stage suggested that this too was an error, and that the Minister was prohibited from considering the 2009 convictions at all, even in the exercise of discretion. (footnotes omitted) 36 The fundamental difficulty I apprehend with the submissions Mr Dour advances is that in the end they have no sound footing in any of the jurisprudence I have been referred to. There is nothing in the reasoning of the High Court in Makasa that would confine the exercise of the Tribunal's discretion as the Applicant advances. 37 Indeed the contrary is the import of what the plurality states at [57]: 57. The Minister or a delegate can re-exercise the power conferred by s 501(2) to cancel the visa if subsequent events or further information provide a different factual basis for the Minister or a delegate to form a reasonable suspicion that a visa holder does not pass the character test at the first stage of the requisite two-stage decision-making process. But neither the Minister nor the delegate can rely on subsequent events or further information simply to re-exercise the discretion to cancel the visa at the second stage of the decision-making process. 38 Accordingly notwithstanding Mr Dour's thoughtful and appreciated submissions I reject there is any proper basis to grant leave out of time to permit the Applicant to advance proposed ground 1. 39 I turn to proposed ground 2.

Ground 2 40 Mr Dour's written submissions in respect of the merits of proposed ground 2 are as follows: 42. Although this ground of review may be described in different ways the essence is that the Tribunal considered the Applicant's risk of reoffending. In so doing, the Tribunal considered 'protective factors', which included the effect of the Applicant's relationship with his wife. In that context the Tribunal turned to a matter it found to be 'of significant concern,' being a letter procured by the Applicant's wife from one Mr Culibrk regarding the effect of stable work (CB979 [75]), and it is alleged that the Tribunal committed an error in placing undue weight on this letter. 43. The letter was not procured by the Applicant. The Applicant's evidence was that he was not close with Mr Culibrk (CB980 [78]) and when asked how his wife might have contacted or acquired Mr Culibrk's telephone number he answered with "I cant answer, I do not know" and "No idea" (CB979 [79]). The Applicant's legal representative conceded that she considered the letter to be legitimate but should have omitted it from the evidence (CB981 [79]). 44. Whilst the Tribunal made some enquiries about the authenticity of the letter, the Tribunal did not adjourn the hearing to give the Applicant a proper opportunity to address the substance of the Tribunal's concern that the letter was not authentic or the consequences of the Applicant's legal representative putting into evidence a statement procured by his wife in an uncertain way. At no point did the Applicant seek to defend the authenticity of the letter or how it came into being. 45. The Tribunal, however, within the context of assessing the risk of the Applicant reoffending, including in respect of a criminal record noted to include dishonesty offences (CB964 [48(a)]), placed material weight on the letter as being of 'significant concern' in the assessment of that primary consideration, and continued to place material weight on the 'bogus letter' in relation to other aspects of its decision (CB986 [93]; CB986 [112]; CB993 [117]; CB 995 [127]). It was unreasonable and/or illogical for the Tribunal to rely on and place the weight that it did on the Culibrk letter in assessing the Applicant's risk to the Australian community, having regard to the Applicant's past history of dishonesty offences, in circumstances where despite questioning from the Tribunal the Applicant remained truthful as to his knowledge of the provenance of the letter. 41 It is convenient to set out the Tribunal's reasoning as bears on that question: 73. The highest the evidence gets about Mr Rascovici's future rehabilitative plans, is very general claims about engaging with programs upon release. It remains unclear, despite Mr Rascovici's explanations, as to how he has gained his purported awareness about the triggers causing him to relapse into drug addiction. In response to Ms Souvlakis' submission that as a result of the 'signs of rehabilitation' shown by Mr Rascovici, the focus should be on 'providing the support required to allow for a smooth integration back to the community,' the Tribunal respectfully disagrees. He has not shown persuasive signs of rehabilitative progress and pursuant to cl 13.1.2(1)(b) of the Direction, decisions should not be delayed for rehabilitative courses to be undertaken. 74. The protective factors referred to in the evidence as potentially reducing Mr Rascovici's risk of recidivism include reunion with his wife and children, living with his mother-in-law, guaranteed prospects of work, and rehabilitative plans. It is of note that the proposed resumption of the relationship with his wife follows Mr Rascovici's attempts to blame her at his 2017 and 2019 sentencing hearings as a significant cause of his addictions and recidivism. There is no evidence to corroborate Mrs Rascovici's rehabilitative claims after release from what she claims was an 11th term of imprisonment in April 2018. The Tribunal considers that a resumption of domestic living arrangements between Mr and Mrs Rascovici would return the applicant to the same contextual circumstances existing during much of his offending. Far from this relationship being a claimed protective factor, the Tribunal considers it a risk factor accentuating the risk of Mr Rascovici resuming his addictions and crimes. Similarly, the other protective factors Mr Rascovici relies upon have previously been present but did not curtail his offending. He has not taken advantage of past rehabilitative opportunities. The availability of support from his church and the interests of his children and wife's parents have been insufficient motivation to change his ways. The fulltime work he claims to have undertaken between 2009 and 2012 was followed by a resumption of drug use and offending. That history reduces the force of his current reliance on similar protective factors. 75. Of significant concern is what the Tribunal considers is a bogus offer of work presented to the Tribunal in a statement purportedly written by a Mr Dean Culibrk. The offer of 'secure employment in this statement was presented as 'key factor in Mr Rascovici's ability to live a law-abiding life. The Tribunal agrees that a confirmed offer of fulltime work is a potentially significant protective factor. The Tribunal expressed an intention to call Mr Culibrk on the telephone number provided in his statement and asked if there was any objection. Mr Orchard did not object, but Ms Souvlakis said her client's instructions were that Mr Culibrk 'did not want to give evidence during the hearing ... [and]. .. wanted to limit his contribution to the statement provided.' Those instructions appeared inconsistent with paragraph 3 of Mr Culibrk's statement, in which it states: 'I can be contacted on [mobile telephone number redacted] if you would like to confirm any of the information I have stated above.' These instructions also appeared inconsistent with Mr Rascovici's subsequent evidence that he was unaware Mr Culibrk would even be submitting a statement on his behalf, that it was his wife who procured the statement without his knowledge, and he had not communicated with Mr Culibrk since last working for him in 2016. 76. The Tribunal decided to call Mr Culibrk while the hearing was in progress. Several call attempts went unanswered and apart from a single 'beep' there was no greeting to identify the phone owner and allow a message to be left. The following exchange then occurred between the Tribunal and Ms Souvlakis: ENIOR MEMBER NIKOLIC: Ms Souvlakis, what are the circumstances in which that statement was provided? MS SOUVLAKIS: The statement was provided typed 'from the outset, and although we requested the witness sign it and send it to us, this did not happen within the prescribed timeframe and for that reason the unsigned statement was provided to the Tribunal SENIOR MEMBER NIKOLIC: Who provided you with that statement? MS SOUVLAKIS: Ms Liliana Rascovici SENIOR MEMBER NIKOLIC: Have you had any contact at all with the witness? MS SOUVLAKIS: No, not direct contact 77. The Tribunal adjourned to enable Ms Souvlakis to take instructions about the availability of Mr Culibrk. During the adjournment, the Tribunal undertook an online search for Mr Culibrk's claimed company name (Dexcon Pty Ltd) and found an entry on the ABN Lookup site for that business name. The registered individual sole trader for that business was a Mr Dejan Culibrk. The Tribunal noted from the linked ASIC Connect website that this business name was cancelled on 4 July 2019. The Tribunal also noted a number of open source media reports regarding a court appearance in July 2019 by a 33-year old carpenter of the same name. 78. On resumption, the Tribunal was advised by Ms Souvlakis that Mr Culibrk was now available to give evidence. Multiple attempts to contact him by telephone, however, were again unsuccessful. The Tribunal advised the parties of its enquiries during the adjournment and recalled Mr and Mrs Rascovici to put this material to them. Mr Rascovici said Mr Culibrk's real first name was Dejan. When the Tribunal asked Mrs Rascovici if the business located by the Tribunal might be the person and business who had provided her with the statement, she said 'yes I think its him.' Mr and Mrs Rascovici claimed to be unaware of the current status of Mr Culibrk's company, or about any offending by a person of the same name. Mrs Rascovici thought Dejan Culibrk was 'roughly 35 years of age but stated: 'I do not know him that well .. I know his wife, but not that much ... we are not close.' When the Tribunal asked Mrs Rascovici to confirm the phone number she had for Mr Culibrk, she claimed to have written it on a piece of paper, but no longer knew where it was. She claimed Mr Culibrk had given her the statement a week or two ago. 79. Mr Rascovici said he had last spoken to Mr Dejan Culibrk in 2016, which is when he last worked for him. When asked about the circumstances of Mr Culibrk's purported job offer, Mr Rascovici said he was unaware the statement containing the job offer would be lodged. When asked why his wife would contact his former employer without his knowledge, Mr Rascovici responded 'I can't answer, I do not know.' When asked how his wife might have acquired Mr Culibrk's telephone number, Mr Rascovici responded 'No idea.' The following exchange occurred between the Tribunal and Ms Souvlakis, in response to the Tribunal's question about how Mr Culibrk's statement was provided without the apparent knowledge of her client: MS SOUVLAKIS: .. .I had a discussion with the applicant's wife and she assured me that she had discussed this with the applicant. She mentioned to me that there was an employment offer from a previous employer of Cristian's and that that employer would be providing a statement. That statement was provided to my office about an hour before the deadline and in retrospect it should potentially have been omitted from the evidence. But at that point in time it appeared to me to be a legitimate statement so it was submitted for that reason. … SENIOR MEMBER NIKOLIC: Well it appears to me that without any reference to your client and without his knowledge a statement has somehow found its way to just before closing statements in a Tribunal hearing. I don't need to explain to you how unsatisfactory something like that is. 80. The Tribunal does not accept that Mr Culibrk's statement contains a bona fide offer of 'secure employment...at any date in the near future,' or that it constitutes a 'key factor relevant to Mr Rascovici's risk of reoffending as he claims. That is because the company named in Mr Culibrk's letter had its business name cancelled in July 2019 and Mr Culibrk was uncontactable on the telephone number provided in the letter. The Tribunal has serious concerns about the way this letter was presented by Mrs Liliana Rascovici, through Ms Souvlakis, as purportedly reliable evidence in this matter. (footnotes omitted) 42 I am satisfied that the supposed merit of proposed ground 2 can be dealt with quite summarily. In my view there is nothing to the Applicant's complaint that the Tribunal placed significant weight on the bogus letter in respect of any findings regarding the Applicant's credit and honesty. The Tribunal's conclusion at [80] in terms is confined to it explaining why, in the circumstances applying, it had rejected that the Applicant had a bona fide offer of secure employment which would be available at any time in the future, and rejected that that offer was available to be relied upon as a key factor relevant to the Applicant's risk of reoffending in the future. 43 Its reasons include nothing that suggests that the Tribunal concluded to the effect that the Applicant was responsible for the production of that bogus document. To the contrary the Tribunal expressly accepted that the bogus letter had been provided by his wife to the Applicant's then representative for inclusion in his statement of facts, issues and contentions (SOFIC). It was her credit not his which the Tribunal reflected upon in that regard. The Tribunal's findings regarding the Applicant's wife's want of credit are not the subject of a proposed ground of appeal. In any event her credit as a witness was clearly a live issue in the proceedings before the Tribunal. Mr Dour does not submit that the conduct of the Tribunal had involved any breach of the rules of procedural fairness. That concession is appropriate having regard to the fact that both the Applicant and his wife were present in the Tribunal when the bogus nature of that letter was being explored and there is no suggestion that either was denied the opportunity to make submissions relevant to the findings the Tribunal might make. 44 I am unpersuaded that proposed ground 2 has merit or any reasonable prospects of success.

Conclusion 45 Having regard to the want of merits of the grounds proposed to be advanced by the Applicant I refuse leave to appeal out of time. The Minister is entitled to an order for his costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.