Valencia v Minister for Immigration and Border Protection

PERRAM J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia given in a judicial review proceeding: Valencia v Minister for Immigration [2018] FCCA 939. That Court dismissed an application to review a decision of the Administrative Appeals Tribunal ('the Tribunal'). The Tribunal had decided to refuse the issue of a carer visa to the Appellant's daughter, Ms Lorna Guerrero. If granted that visa would have permitted Ms Guerrero to emigrate from the Philippines with her family (where they presently reside) to care for the Appellant, Mrs Valencia, in Australia. 2 That Mrs Valencia is in need of care is not in dispute. Although only 67 years old she has epilepsy resulting in seizures on an approximately monthly basis, diabetes, peripheral neuropathy and depression. The peripheral neuropathy is particularly debilitating and has imposed upon her extreme mobility restrictions and frequent episodes of falling. A report into Mrs Valencia's condition by an expert certified that she required 24 hour assistance with all of her personal care needs. Although she lives with her husband and he has been Mrs Valencia's primary care giver, he himself is unable to provide the level of care which his wife now requires due to his own medical difficulties. 3 In such circumstances, it is unsurprising that Mrs Valencia (and her family) have cast around for other ways in which her care needs might be met. Ms Guerrero expressed herself willing to undertake this work and, in due course, it was decided that a carer visa would be sought on her behalf. 4 An applicant for a carer visa must be sponsored by an Australian resident: reg 116.212 of the Migration Regulations 1994 (Cth) ('Migration Regulations'). Here, the sponsor was Mrs Valencia. Visas were also sought for Ms Guerrero's immediate family as members of her family unit. They stand in no different position to Ms Guerrero herself so far as the present appeal is concerned and I mention them only for completeness. 5 The formal visa sought by Ms Guerrero was an Other Family (Migrant) (Class BO) subclass 116 (carer) which I shall, in the interests of brevity, refer to as a carer visa. The criteria which an applicant must satisfy to obtain such a visa are set out in Pt 116 of Sch 2 of the Migration Regulations. The principal requirement, imposed by cl 116.211 of Sch 2, is that the applicant should be a 'carer' of the Australian resident in need of care. 6 As a matter of ordinary English that word might well be thought to be satisfied in this case. However, reg 1.15AA of the Migration Regulations has given the word 'carer' a more specific and complex meaning. For example, for the visa applicant to be a 'carer' within this definition the person requiring care must be an Australian citizen or permanent resident (or a particular kind of New Zealand citizen) and the carer must be a relative of that person: regs 1.15AA(1)(a) and (ba). There are several other detailed requirements but, with one exception, these can be passed over for now because the Tribunal was either satisfied that they had been met or otherwise thought them inapplicable on their own terms. 7 The one exception relates to the requirement in reg 1.15AA(1)(e) with which this appeal is concerned. Speaking loosely for now, this aspect of the definition of 'carer' requires that the assistance which the person requiring care needs cannot reasonably be provided by the person's Australian resident relatives or obtained from agencies who provide such services. A 'relative' is defined in reg 1.03 in a way which captures the partner or spouse of a person together with all blood relatives sharing a common great grandparent; also included are an analogous set of step-relatives. 8 At the heart of the definition of 'carer' is the concept of 'assistance' which is referred to in other subclauses of reg 1.15AA(1) and without which it does not make sense. The relevant clauses are reg 1.15AA(1)(b)(iv), (1)(d) and (1)(e) which are as follows: 1.15AA Carer (1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if: … (b) according to a certificate that meets the requirements of subregulation (2): … (iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and … (d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long‑term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and (e) the assistance cannot reasonably be: (i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or (ii) obtained from welfare, hospital, nursing or community services in Australia; and … 9 The assistance which is being discussed is, therefore, 'direct assistance' and from subcl (1)(b)(iv) it would appear that direct assistance is something for which the cared for person must have 'a need'. I take this to mean that the cared for person must require one-on-one assistance from another person in attending to the practical aspects of daily life: Le v Minister for Immigration and Border Protection [2017] FCA 1053 at [25] per Greenwood J. The effect of subcl (1)(e)(i) is that if the relatives of the person requiring care are residents and could reasonably provide this direct assistance then the visa applicant cannot be a carer. The severity with which this requirement operates may be observed: it does not ask whether the relatives will provide the direct assistance but rather only whether they reasonably could. Subclause (1)(e)(i) contemplates in its operation, therefore, that a person will not satisfy the carer requirements if there are Australian resident relatives who refuse to assist when they reasonably could: Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460 at [45]-[53] per Bromwich J. 10 If the direct assistance can reasonably be obtained from the assistance agencies and persons referred to in subcl (1)(e)(ii) the visa applicant cannot be a 'carer'. Further, the way subcl (1)(e) has been interpreted by the Courts, the analysis of what may reasonably be provided by the Australian resident relatives in subcl (1)(e)(i) or obtained from the assistance agencies in subcl (1)(e)(ii) permits of accumulation of effort between more than one relative and/or agency: Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460 at [69] per Bromwich J. Additionally, since subcl (1)(e) is cast in the negative it must be shown that the direct assistance cannot be reasonably provided or obtained. This may be difficult to demonstrate where the sponsor must undertake to provide financial assistance to the carer for two years (reg 1.20(2)(a)(ii)), i.e. the person requiring care must be able to provide financial support to the carer but not reasonably be able to obtain services such as nursing services. 11 Correspondingly, the Tribunal in coming to the opposite view is not obliged to work out a detailed analysis of a how a patchwork of familial or privately contracted care might combine to provide the required care: Nguyen v Minister for Immigration and Border Protection [2016] FCA 688 at [38]-[40] per Buchanan J. This has the effect - not immediately obvious when one first reads the subclause - of requiring the visa applicant to disprove a large range of potential scenarios involving the hypothetical assistance of the person to whom care is to be given. 12 It is upon these difficult aspects of reg 1.15AA(1)(e) that Ms Guerrero's application for a visa foundered in the Tribunal and the Court below. In order to discharge the burden cast upon the visa applicant by its various provisions, evidence was called on Mrs Valencia's behalf at the hearing in the Tribunal about the capacity of her relatives to care for her. Although there is a controversy about this (which I resolve later in these reasons) she also led some evidence about her ability to obtain assistance from assistance agencies. The Tribunal's central conclusions about this were at [22] and [23]: 22. Overall, the Tribunal accepts that due to various health concerns, family and work commitments, and distance from the review applicant, none of the review applicant's relatives in Australia can act as full-time carers for her. The Tribunal accepts that at present, the husband is the primary caregiver and that he is unable to provide the required care. The Tribunal accepts that the present arrangement is not satisfactory and that the review applicant would benefit from a female carer. However, the Tribunal is not satisfied that the review applicant's relatives in Australia, which include two children, two siblings and several nieces and nephews, are incapable of contributing to her care. The Tribunal is mindful of the reasoning in Azzi v MIMIA [2002] FCA 24 at [89]-[90] indicating that the Tribunal's inquiry is not limited to what assistance can be obtained from one relative. 23. The Tribunal questioned the review applicant about hiring professional help. She said it was expensive but there is no evidence to indicate that she has made inquiries or had approached any agency or organisation about such help. The Tribunal is mindful that the review applicant's siblings have undertaken to provide financial support to the visa applicants, which would suggest that the family is able to make some financial contribution towards hiring a carer, at least for a limited number of hours, to perform some of the tasks that cannot be performed by other relatives. The Tribunal is not satisfied that the combination of such care arrangements would be inadequate or inappropriate. (emphasis added) 13 Mrs Valencia's first argument was that the Tribunal erred in thinking it could treat as assistance within the meaning of subcl (1)(e)(ii) any assistance obtained from assistance agencies as a result of Mrs Valencia's relatives paying for it. Financial assistance by the relatives to the entities referred to in subcl (1)(e)(ii) was not direct assistance and the inquiries erected by subcl (1)(e) were concerned only with direct assistance. Mrs Valencia's second argument was that, regardless of whether financial assistance could satisfy the requirements of subcl (1)(e), the Tribunal had asked itself the wrong question in [22]. It had done so by asking whether the relatives were able to contribute to her assistance by hiring a carer. The correct question under subcl (1)(e)(ii) was whether assistance could reasonably be obtained from an assistance agency. Although an inquiry into the assistance which relatives could provide under subcl (1)(e)(i) did not encompass any consideration of whether they were willing to provide the assistance this was not so under subcl (1)(e)(ii). If the relatives were unwilling to provide the financial assistance (even if they could) then the person to be cared for would not be able to obtain the assistance under subcl (1)(e)(ii). 14 As to the first argument, the Minister submitted that the Appellant's argument could not stand in the face of the italicised sentence in [22] of the Tribunal's reasons (extracted at [12] above). It was apparent from [19], [20] and [21] of the Tribunal's reasons that it used the word 'contribute' to refer to direct assistance. Consequently, [22] was sufficient in itself to justify the Tribunal in concluding that it was not satisfied that the care could not be provided by one or more relatives. This was particularly so where the last sentence of [22] was plainly alive to the idea that the direct assistance that could be provided could be accumulated between more than one relative. 15 The Appellant in response observed the inquiry under subcl (1)(e)(i) is directed to whether all of the direct assistance can be provided by the relatives but this was not what [22] said. The Tribunal had, on this view, merely noted that the relatives could contribute to the care, not that they could provide all of the direct assistance which was needed. 16 I accept this submission. If the Tribunal at [22] is to be taken to have thought that all of the direct assistance which was needed could be provided by the relatives, then it had no need to be considering the position of assistance agencies in [23]. My reading of [22] and [23] is that the Tribunal thought that the relatives could reasonably contribute direct assistance to Mrs Valencia (i.e. in the one-on-one sense). This was not sufficient, however, for it to conclude that it was not satisfied that all of Mrs Valencia's assistance needs could be provided by the relatives. When the addition of a nurse, however, was brought into the equation it could achieve the state of negative satisfaction called for by the regulation. Nevertheless, the nurse would have to be paid for and the Tribunal was not satisfied that the relatives could not reasonably provide financial assistance to pay for the nurse. 17 It follows that I cannot agree with the Minister's submission (or the primary judge's conclusion at [38]) that [22] of the Tribunal's reasons were dispositive. Paragraph [23] of the Tribunal's reasons exists precisely because [22] is not sufficient to dispose of the issue. On the other hand, I do accept the Minister's submission that the assistance referred to in [22] of the Tribunal's reasons is direct assistance. The Tribunal found that the relatives could provide some one-on-one care but it did not find that care was sufficient, in itself, to satisfy the care needs of Mrs Valencia. That is why in [23] it embarked upon the inquiry set out in subcl (1)(e)(ii). 18 Once one arrives at that conclusion it is difficult to see how it can have been lawful to take into account the fact that the relatives could pay for the nurse. The question under subcl (1)(e)(ii) was whether assistance could reasonably be obtained from an aid agency. But by whom was this assistance to be obtained? Because it is expressed in the passive voice, subcl (1)(e)(ii) does not directly answer this question. However, it seems tolerably clear that it can only refer to the person who is to receive the assistance. Any other interpretation of subcl (e)(ii) leads to absurd results. For example, the local bowling club might well be capable of acquiring the services of a nurse for Mrs Valencia but it is hard to see why it should be regarded as falling within subcl (1)(e)(ii). Such a construction would lead to the outlandish result that as long someone - actually anyone - could pay for a nurse then assistance could be reasonably obtained from an assistance agency. Since there will always be someone who could pay, this would mean that the decision maker could never be satisfied that sufficient full-time nursing assistance could not reasonably be obtained. This logic has the consequence that no person would ever be eligible for the visa. This seems an unlikely outcome. 19 Even if the person obtaining the assistance under subcl (e)(ii) cannot be a third party, is it nevertheless possible that it might be read as encompassing the more limited subclass of third parties consisting of relatives by virtue of the reference to Australian resident relatives in subcl (1)(e)(i)? I doubt as a matter of logic that the class of third parties can plausibly be divided in this way. However, even assuming it can, the text of subcl (1)(e) is against such a reading for the topic of relatives is expressly dealt with in subcl (1)(e)(i). Although the expressio unius rule of statutory construction is to be used with some care ('a valuable servant, but a dangerous master': Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; 148 CLR 88 at 94), I think it applicable here. Justice Bromwich explained in Nguyen v Minister for Immigration and Border Protection [2016] FCA 1460 the drafting history of subcl (1)(e). That history shows that the subclause has long observed a very precise delineation between the position of relatives and assistance agencies. Allowing subcl (1)(e)(ii) to be read as if it countenanced consideration of what could be obtained from assistance agencies by the relatives of the person requiring care subverts that careful delineation. The subclause does not operate in that fashion. 20 Further, there is no apparent reason why the inquiry under subcl (1)(e)(ii) would be limited to only Australian resident relatives where foreign relatives also would be able to provide financial assistance. Such a consideration also indicates that direct assistance in subcl (1)(e)(i) is limited to one-on-one assistance and does not encompass financial assistance; if it were otherwise there would be no apparent reason for limiting direct assistance to that provided by Australian resident relatives and not foreign relatives. 21 If the question in subcl (1)(e)(ii) concerns what the person who requires assistance can reasonably obtain from services such as a nursing service then there is no particular difficulty in allowing that this permits a consideration of that person's financial means. This is because such an analysis inevitably follows from the question of what may reasonably be obtained. However, because the focus of subcl (1)(e)(ii) is on what may be obtained by the person who requires care and not other people, it provides no warrant for examining the financial position of other people who have not volunteered to provide financial assistance. It was not relevant in this case that Bill Gates could have paid for Mrs Valencia's nurse. For the same reason, what her relatives could afford was also not relevant. 22 On the other hand, I would accept that subcl (1)(e)(ii) would permit, in assessing whether assistance may reasonably be obtained from assistance agencies, an account to be taken of financial contributions which were in fact being offered by third parties including, if necessary, relatives. Such actual offers of financial contribution would then form part of an assessment of what might be reasonably be obtained. In other words, the inquiry under subcl (1)(e)(ii) would permit a consideration of the willingness of relatives to provide financial assistance for services such as nursing services. This stands in contrast to the inquiry under subcl (1)(e)(i) where the willingness of Australian resident relatives to provide direct assistance is irrelevant. 23 In this case there was no evidence that Mrs Valencia's relatives had offered financial assistance for Mrs Valencia to obtain welfare, hospital, nursing or community services. The evidence rose no higher than that they had some capacity to offer financial assistance. I deal with some of this evidence below but it was to the effect that some of the relatives were willing to offer financial assistance to support Ms Guerrero and her family during their initial stay. It was not evidence that they were willing to provide financial assistance to Mrs Valencia so that she might obtain a nurse. It may be natural to reason that if the relatives were willing to provide some financial assistance to Ms Guerrero and her family then they must reasonably be able to provide similar assistance to Mrs Valencia. That may well be so. However, the ability and willingness of the relatives to provide financial assistance in that way did not bring the matter within subcl (1)(e)(ii). 24 Consequently, the Minister's argument cannot succeed under either subcll (1)(e)(i) or (ii). If the financial contribution of the relatives to help pay for a nurse is seen through the lens of subcl (1)(e)(i) it cannot qualify as direct assistance since it is not one-on-one care. On the other hand, if it is seen through the lens of subcl (1)(e)(ii) then it cannot qualify either for the reasons I have given in the preceding paragraph. 25 Consequently, paragraphs [22]-[23] involved a misapplication of subcl (1)(e). As I have already explained, I do not agree with the primary judge that [22] was dispositive. His Honour also arrived at a different view on the construction issues at [41]-[42]: 41. It is in my view unhelpful to deconstruct the wording of regulation 1.15AA(1)(e) as Ms Valencia does. Assistance can be "provided by" a relative in a number of ways, one of which is by contributing towards, for example, a nurse. In a case such as this, where many relatives have offered assistance of this kind, it is an obvious and proper consideration for the Tribunal to have regard to. 42. Contrary to Ms Valencia's submissions, this interpretation does not cause the criterion to collapse into a financial means test. There is always the question of whether a financial contribution could be "reasonably" provided. In a case such as the present, however, where many offers of contribution have actually been made, that question does not arise. 26 With respect, I cannot accept this either. Paragraph [41] fails to come to grips with the Appellant's argument. The provision of financial assistance is not 'direct assistance' under subcl (1)(e)(i). The only way out of that thicket is to say that direct assistance may be obtained from service providers under subcl (1)(e)(ii) by a third party such as a relative but, as I have endeavoured to show above, properly construed the subclause does not say that. The inquiry is directed at what the person requiring care can (or, more precisely, cannot) reasonably obtain, not at what relatives cannot reasonably obtain. 27 Mrs Valencia's first argument therefore succeeds. 28 Since it succeeds her second argument does not arise as it proceeds on the assumption that financial assistance provided by relatives may be considered in the calculus of subcl (1)(e)(ii). Had I rejected Mrs Valencia's first argument, however, I would have accepted her second argument. Shortly, the assistance then under consideration would have been assistance under subcl (1)(e)(ii). The inquiry it mandates is into what can reasonably be obtained from the assistance agencies. If the relatives are unwilling to provide the money to pay for that assistance then the assistance will not reasonably be able to be obtained. It is not to the point that under subcl (1)(e)(i) one does not inquire into the willingness of the relatives to provide the assistance because the inquiry arises under subcl (1)(e)(ii) which has a different operation. 29 The Minister submitted that even if that were the correct question, the evidence before the Tribunal was all to the effect that the relatives were willing to provide financial assistance for the purposes of obtaining full time nursing assistance. Hence, the Tribunal would inevitably have arrived at the same conclusion even if it had applied the correct test. 30 I do not accept this argument. The evidence to which the Minister refers does not rise so high. It consisted of a number of statutory declarations from the relatives together with some oral evidence given by the Applicant. The oral evidence was as follows: Tribunal Member: So you have said that your brother and your sister and your children will provide some money to support your daughter who is coming here with her family. Interpreter (RA): Yes if I will ask for help. Tribunal Member: So do you think that your siblings, your brother and your sister and their children can also put some money together and hire a nurse for you or hire a helper for you to look after you? Interpreter (RA): I won't be able to hire a nurse but with my daughter I can live a bit longer. Tribunal Member: So why do you think you are not able to hire a helper? Review Applicant: Expensive. 31 I doubt this is coherent enough to be relied upon for any serious purpose but leaving that to one side, I do not think it inevitable that the Tribunal would have to conclude on the basis of this exchange that the relatives would be willing to provide money to help pay for a full time nurse. 32 The statutory declarations are no better. The statutory declaration of Albert Valencia will suffice to make the point. He said: I will provide financial support for the applicant, Lorna Guerrero and her family for their Initial stay or residency in Australia as appropriate. Attached is my Pay Slip as part of the Document hereof. 33 Similar evidence was given by each of Alberto Valencia, Ailene Valencia and Amelia Bongon. I do not think this evidence says much at all on the question of whether he would be willing to pay for full time nursing care for at least 2 years (as stipulated by subcl (1)(b)(iv)). Rather, the evidence appears to be directed to the undertaking prescribed by reg 1.20(2)(a)(ii) that the carer be financially supported for two years after entering Australia. Accordingly, I reject the Minister's submission that the Tribunal could not form the state of satisfaction prescribed by subcl (1)(e)(ii), namely that assistance could not be reasonably obtained from service providers. The evidence before the Tribunal would not have required it to answer the question of whether the relatives were willing to provide financial assistance in the affirmative. 34 Mrs Valencia then raised a third issue. At [23] of the Tribunal's reasons (which are set out at [12] above) it dealt briefly with the question of whether Mrs Valencia had explored getting professional help. It had asked her about this at the hearing and in its reasons referred to her evidence that such help was expensive. It then said 'there is no evidence to indicate that she has made inquiries or approached any agency organisation about such help'. Mrs Valencia contended that was incorrect and that, to the contrary, there was indeed evidence to that effect. The evidence in question consisted of a letter from St Joseph's Hospital dated 4 April 2013. The author was a social worker called Ms Angela Cummins. The relevant portion of the letter is as follows: I have referred Mrs. Valencia to community services to provide domestic assistance, lawn mowing service, personal care services, meals on wheels and in-home respite services. However, these community services will incur a cost and they will also provide a very limited and very basic amount of care and service hours which will probably be culturally inappropriate. Community services and community nursing services have become increasingly restrictive over the years in the type of care and service they provide e.g. Alberto must physically place the medication in his wife's hand for her to take- no community service will do this. Paying for private services is out of the question as personal care services commence at approx. $38 per hour. … I understand that [the visa applicant] is an experienced carer… Culturally, it is preferred by Filipinos to be cared for by family members and most are especially reluctant to have paid carers assist with personal care tasks. 35 The submission was that the letter was evidence that Mrs Valencia had made inquiries and approached agencies for help. It was therefore relevant, cogent and important evidence and it was a jurisdictional error for the Tribunal not to have considered it (citing, inter alia, the well-known statement by Robertson J to that effect in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 ('SZRKT') at 130-131 [112]). 36 The primary judge rejected this argument for two reasons. First, he thought it unlikely that the Tribunal had not taken the letter into account especially as it had been referred to earlier in the Tribunal's reasons, albeit in in a different context at [15]. Secondly, once the Tribunal had decided that Mrs Valencia's relatives could provide financial assistance to allow a carer to be retained, the contents of the letter were no longer material. The Tribunal did not have to form a view about the matters in the letter because it had already determined that the assistance could come from elsewhere and therefore Mrs Valencia's difficulties in obtaining care did not matter. 37 The effect of upholding ground 1 is that this second argument can no longer stand. However, that is not so in the case of the first argument. It is therefore necessary to address the primary judge's treatment of that issue (i.e. that the letter had in fact been taken into account). 38 There is no doubt that the Tribunal must be taken to be aware of the letter because it certainly referred to it in a sentence in [15]: The applicant submitted with her application several statements from the sponsor's family members, including the sponsor's spouse, children and siblings, outlining the reasons they cannot provide requisite support to the sponsor. There are additional medical reports which suggest that the sponsor would benefit from a full-time carer at home and that a carer was required on a 24 hour basis. A report from a social worker indicates that placing the sponsor in a nursing home or a residential care facility would not be in her best interests. Further documentary evidence was submitted to the first Tribunal, including a report indicating the sponsor may not be eligible for placement to an aged care facility due to her age. A statement from the St Joseph's Hospital indicates there are no appropriate community or government funded services that could provide the level of care required and a placement in a nursing home would not be suitable or available. There was a further statement from Home Care Service of NSW sating it was unable to progress her referral for assessment. There were other documents submitted in support of the application and the Tribunal has had regard to those. The review applicant provided to the Tribunal statements from organisations in Australia indicating she receives domestic assistance a few hours a week and help with lawn mowing. The applicant's son also provided a statement to the Tribunal indicating that due to his full-time work commitments, which include travel, he is unable to care for his mother. (emphasis added) 39 I incline to the view the primary judge was correct to conclude the Tribunal took the letter into account. However, that is not really the gravamen of Mrs Valencia's submission. Her argument explicitly invokes SZRKT at [113]: 113. … It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. 40 The argument is not that the Tribunal failed to consider the letter in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24. It is instead that it misconstrued what Mrs Valencia's actual contention to it was. She contended that she had tried to obtain to community services as the letter showed but the Tribunal thought that there was no evidence to that effect. That was not correct - the letter was evidence to that effect. Whether the Tribunal would have been satisfied with that evidence is another issue but it was not correct to say that there was no evidence. I would also therefore uphold this third argument. 41 Mrs Valencia's three arguments were reflected in grounds 1(a), 1(b) and 2 of her notice of appeal. I would uphold grounds 1(a) and 2. Ground 1(b) does not arise. Ground 3 was not pressed. Because the Minister's notice of contention relates to ground 1(b) it does not arise either. The appeal must therefore be allowed with costs. 42 The orders will be:

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