FEDERAL COURT OF AUSTRALIA Ugochukwu v Minister for Immigration & Multicultural Affairs [2000] FCA 1602 MIGRATION – review of decision of Migration Review Tribunal – Tourist (Long Stay) visa – whether visa applicant's expressed intention "only to visit Australia" genuine – to whom and for what purpose visa applicant must express intention "only to visit Australia" –time at which genuineness of intention to be determined – whether visa applicant had present intention to leave Australia at end of proposed visa period – whether evidentiary material before Tribunal permitting it to make finding of particular fact – whether evidentiary material before Tribunal too stale to be relied upon – whether finding by Tribunal as to visa applicant's state of mind at time of decision supported by probative material and logical grounds. WORDS & PHRASES – "intention … only to visit Australia". Migration Regulations 1994 (Cth), par 686.221(2)(c) of Sch 2 Migration Act 1958 (Cth), ss 476(1)(b), 476(1)(c), 476(1)(e), 476(1)(g), 499(1) Policy Direction No. 1 of 1996, cl 8 British Launderers' Research Association v Borough of Hendon Rating Authority [1949] 1 KB 434 discussed Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 discussed Buck v Bavone (1976) 135 CLR 110 referred to Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 referred to BARBARA CHIOMA UGOCHUKWU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 368 of 2000 KATZ J 9 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 368 of 2000 BETWEEN: BARBARA CHIOMA UGOCHUKWU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 9 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 368 of 2000 BETWEEN: BARBARA CHIOMA UGOCHUKWU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 9 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Migration Review Tribunal ("the Tribunal"). By its decision, the Tribunal affirmed a decision which had earlier been made by a delegate of the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been one to refuse an application which had been made in Lagos, Nigeria for a Tourist (Long Stay) visa. That application had been for a visa which would permit its holder to stay in Australia for a period of six months after entry. 2 The applicant for that visa had been Mr Chukwunonso Njoku, a Nigerian national and resident. However, the applicant before the Court is not Mr Njoku. Instead, the applicant before the Court is (as the applicant before the Tribunal was) Ms Barbara Chioma Ugochukwu. Ms Ugochukwu is Mr Njoku's sister. No question arises in the present proceeding as to Ms Ugochukwu's standing, either before this Court or before the Tribunal. 3 In its statement of findings and reasons, the Tribunal stated that Ms Ugochukwu was an Australian citizen, but she herself had stated in her application for review of the delegate's decision that she was an Australian permanent resident (as opposed, I infer, to an Australian citizen). I am not sure which of those two statements was correct. Perhaps both of them were, given that there was obviously a difference in time between the making of the two of them. In any event, resolution of the apparent inconsistency between the two statements is unnecessary for present purposes. 4 Criteria for the grant of a Tourist (Long Stay) visa are set out in that Part of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations") headed "Subclass 686 Tourist (Long Stay)". Among the criteria required to be satisfied at time of decision by an applicant for a Tourist (Long Stay) visa is the criterion set out in par 686.221(2)(c) of Sch 2 to the Regulations, namely, that "the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine". 5 Paragraph 686.221(2)(c) of Sch 2 to the Regulations obviously contemplates that an applicant for a Tourist (Long Stay) visa will have expressed, at some time before the time of the Minister's decision, an intention only to visit Australia. No doubt, what the paragraph contemplates is the Minister's consideration, at the time of decision, of the genuineness of an earlier expression of such intention to the Minister himself or herself for the purpose of the visa application, rather than the Minister's consideration, at the time of decision, of the genuineness of an earlier expression of such intention either to any other person or for any other purpose. 6 In his application to the Minister for a Tourist (Long Stay) visa, as well as applying for permission to enter Australia and then stay for a period of six months, Mr Njoku did express, as the form of application required him to do, a "genuine" "intention to visit Australia". That form did not require an expression by him of an intention "only" to visit Australia, but, on the construction which I give to par 686.221(2)(c) of Sch 2 to the Regulations (see the next paragraph of these reasons), the omission of the word "only" from Mr Njoku's expression of intention to visit Australia was irrelevant. 7 Given that par 686.221(2)(c) of Sch 2 to the Regulations requires the applicant to satisfy the Minister, at the time of decision, that the expressed intention of the applicant only to visit Australia "is" (not "was") genuine, the Minister's inquiry is into the present genuineness of the applicant's earlier expression of intention to the Minister; it is not into the genuineness of that expression of intention when made. In substance, what par 686.221(2)(c) of Sch 2 to the Regulations contemplates is an inquiry by the Minister into the question whether the applicant has a present intention, at the time of the Minister's decision on the visa application, only to visit Australia. I construe that inquiry by the Minister as being one into the question whether the applicant, at the time of the Minister's decision on the visa application, has a present intention to leave Australia at the end of the period for which the applicant has sought permission to stay in Australia. Unless the applicant satisfies the Minister that the applicant has that present intention, then the Minister must refuse the visa application. 8 According to the Tribunal's statement of findings and reasons in the present matter, it was only the fact that it (standing, of course, in the shoes of the Minister for the purpose of conducting its review of the delegate's decision) was not satisfied, at the time of its decision, that Mr Njoku had a present intention only to visit Australia which led it to affirm the delegate's decision. 9 In deciding whether it was satisfied, at the time of its decision, that Mr Njoku had a present intention only to visit Australia, the Tribunal relied on Policy Direction No. 1 of 1996 ("the Direction"), given by the Minister pursuant to subs 499(1) of the Migration Act 1958 (Cth) ("the Act"). Clause 8 of the Direction listed in an inclusive way certain matters which it described as "[r]elevant considerations in testing whether the applicant intends a genuine visit". The listed matters were: "(a) the level of personal, financial, employment and other commitments which may induce the applicant to return to his or her country of usual residence; (b) circumstances which may induce the applicant not to return to his or her country of usual residence, including · military service commitments · unemployment · economic situation · civil disruption, including war or political upheaval, or · circumstances causing severe disruption to the supply of goods and services, or to employment; (c) the credibility of the applicant in terms of character and conduct; (d) the purpose of the applicant's visit, the duration of stay proposed and any other plans which the applicant has made for the visit, relative to the applicant's personal responsibilities and the financial means and earnings and the level of support assistance available to the applicant from any person or persons nominated by the applicant; (e) information disclosed in the application or otherwise obtained which indicates a reasonable likelihood that the applicant will not abide by visa conditions; (f) the history of compliance with or breach of immigration law by the applicant; (g) the history of dealings with the department of any person or persons in Australia or usually resident in Australia who supports or support the visit of the applicant, where that person or those persons has or have been involved in: i. serious breach of immigration law; ii. serious default in immigration assurances or undertakings; or iii. sponsoring, nominating or supporting visa applications by a person or persons, other than the applicant, who had overstayed or otherwise breached a condition of their visa." 10 In its statement of findings and reasons, the Tribunal discussed, by reference to all seven of the listed matters which I have just set out, whether it was satisfied that Mr Njoku's present intention, at the time of its decision, was only to visit Australia. It is, however, only necessary for me to refer for present purposes to the Tribunal's discussion of matters (a) and (b). 11 So far as concerned matter (a), namely, "the level of personal, financial, employment and other commitments which may induce the applicant to return to his or her country of usual residence", the commitments of Mr Njoku's on which the Tribunal specifically focused in its statement of findings and reasons were his familial, educational and employment commitments in Nigeria. 12 As to Mr Njoku's familial commitments in Nigeria, the Tribunal found that Mr Njoku's parents and siblings (other than Ms Ugochukwu) resided in Nigeria and that their presence there provided an inducement for Mr Njoku to return to Nigeria. It then added, "The degree of inducement this provides is however regarded as less strong than if he had been married, and had children". 13 As to Mr Njoku's educational commitments in Nigeria, there was evidence before the Tribunal from Ms Ugochukwu: first, that Mr Njoku was undertaking a course towards a second undergraduate degree; and, secondly, that Mr Njoku would have no problem in deferring his studies in that course for six months while he was in Australia. That evidence led the Tribunal to conclude as follows regarding Mr Njoku's educational commitments in Nigeria: "Given that this is said to be his second undergraduate degree, and he is able to take a break of such duration, the Tribunal does not find that these study plans can be regarded as a strong inducement for the visa applicant to return to Nigeria." 14 As to Mr Njoku's employment commitments in Nigeria, there was documentary evidence before the Tribunal that, at the time of its decision, Mr Njoku had been employed for the previous seven months as a sales manager in a trading concern on what was said to be a "part-time basis", although it was also said in the same documentary evidence that he worked for eight hours a day, Monday to Friday. According to Ms Ugochukwu's evidence before the Tribunal, those two statements, apparently inconsistent with one another, were to be reconciled by understanding "part-time" as having been intended to mean "casual", although, as the Tribunal pointed out in its statement of findings and reasons, that attempted reconciliation seemed to have its own difficulties, since the documentary evidence also stated that Mr Njoku would be given leave of absence if he obtained permission to visit Australia and was expected to return to his "duty post" at the end of such leave. In any event, Ms Ugochukwu later contradicted that evidence of hers, informing the Tribunal that Mr Njoku had confirmed to her that his employment was on a "permanent part time" basis and that he was studying "full time". 15 The Tribunal's conclusion with respect to the evidence which I have just summarised was as follows: "The Tribunal notes that there appears to be some confusion concerning the visa applicant's employment, his study history and how he is combining his work and study. This has not been completely clarified by the most recent submission provided by the review applicant. The Tribunal regards employment of eight hours a day from Monday to Friday as full rather than part time employment, and does not find it plausible that it is possible to combine this with full time study. In any case, the Tribunal finds that, even at the most positive interpretation, the visa applicant's combined employment and study circumstances do not constitute a significant incentive to return to Nigeria." 16 So far as concerned matter (b), namely, "circumstances which may induce the applicant not to return to his or her country of residence, including · military service commitments · unemployment · economic situation · civil disruption, including war or political upheaval, or · circumstances causing severe disruption to the supply of goods and services, or to employment", the Tribunal stated, among other things, "The general economic situation and standard of living in Australia is higher than in Nigeria. The visa applicant would be better remunerated in Australia, regardless of the work he was engaged in. His employment prospects would no doubt be greater in Australia than in his home country." 17 The Tribunal also focused, concerning matter (b), on circumstances arising out of the relationship between Mr Njoku and Ms Ugochukwu. Earlier in its statement of findings and reasons the Tribunal had stated, "The Tribunal accepts that one reason for the [proposed] visit is family reunion. The Tribunal also finds that the most pressing reason for the [proposed] visit is to provide assistance to the review applicant in caring for her three children. This need is likely to be ongoing throughout this and the following academic years." (The reference to "academic years" was made because Ms Ugochkwu had told the Tribunal that she had (recently, I infer) started a course of tertiary study.) Then, when dealing with matter (b), the Tribunal stated, "The presence of his sister and her family in Australia, and her likely ongoing need for assistance, is regarded as an incentive for the visa applicant not to return to Nigeria at the end of a visit." 18 It was after discussing, by reference to all seven listed of the matters which I have set out in [9] above, whether it was satisfied that Mr Njoku's present intention was only to visit Australia, that the Tribunal expressed the conclusion in its statement of findings and reasons that it was not so satisfied and therefore affirmed the delegate's decision. 19 I turn now to the challenge made before me in the present case to the Tribunal's decision. 20 It is not uncommon, in a proceeding brought under Pt 8 of the Act, as the present one is, for an applicant to seek to persuade the Court to engage in merits review under the guise of seeking to persuade it to engage in review for legality. However, the present proceeding was noteworthy for the lack of effort expended by Ms Ugochukwu in seeking to disguise her merits arguments as judicial review ones. Most of her arguments were, without any apparent awareness of their inappropriateness, put baldly as merits arguments, as though this Court were simply standing in the shoes of the Tribunal in the same way that the Tribunal had stood in the shoes of the Minister. For that purpose, I had my attention drawn to various of the matters set out in cl 8 of the Direction, was then directed to some of such evidentiary material as there had been before the Tribunal bearing on those matters and was then invited in effect to conclude that the correct or preferable decision on Mr Njoku's visa application in the light of that evidentiary material was that the visa application should be granted. Obviously, that invitation is one which I will reject. 21 There were, however, two submissions made by Ms Ugochukwu in her case as ultimately presented before me which could be said to have fallen generally into the category of submissions of a judicial review nature and with which it will therefore be necessary for me to deal in some detail. 22 One of Ms Ugochukwu's two submissions of that type related to the Tribunal's conclusion regarding the comparative general economic situations and standards of living in Nigeria and Australia (see [16] above). She submitted before me that the Tribunal had had before it no evidentiary material regarding Nigeria which would have permitted it to make findings of fact about that country's general economic situation and standard of living so as to engage in the comparison with Australia in those respects which it had done. (Although the submission did not condescend to such detail, I assume that it was being made on the basis that the absence of such evidentiary material meant that the ground of judicially-reviewable error set out in par 476(1)(g) of the Act had been enlivened.) 23 That submission was a surprising one to me, because there had been a deal of evidentiary material before the Tribunal regarding Nigeria's general economic situation and standard of living, all of it supplied to the Tribunal, so far I can tell, by Ms Ugochukwu herself. 24 Nigerian economic statistics before the Tribunal had shown an average annual income per household in 1992-93 of US$760 and a per capita gross national product in 1996 of US$240. An article before the Tribunal from the Reuters News Service, dated 28 June 1999, had referred to "increasing poverty" in Nigeria, "where living standards have declined sharply during years of military mismanagement and corruption". An article before the Tribunal from the Inter Press Service, dated 30 October 1999, had reported Mr Sylvester Ejiofor, General Secretary of the Amalgamated Union of Public Corporations, Civil Service, Technical and Recreational Employees, as having said that "Nigeria's unemployment figure, estimated 30 million, is growing at an annual rate of 3.5 percent". (According to the same article, Nigeria's total population was 110 million.) Finally, an article before the Tribunal from the 29 November 1999 issue of West Africa had referred to the current government's having "inherited an economy rendered defunct by two decades of poor economic management and flagrant looting of the treasury", a situation which was said to be "gradually changing", although "the slow response of the economy" was said to be only one of a number of problems facing the country, such problems including the violent agitation of minority ethnic groups, both in the Niger Delta and in the South West, and a worsening crime situation in Lagos. 25 When confronted during the hearing before me with at least some of the evidentiary material before the Tribunal to which I have just referred, Ms Ugochukwu's alternative submission was that such evidentiary material was too stale to have been relied on by the Tribunal in making its decision. 26 I reject Ms Ugochukwu's submission that the Tribunal had had before it no evidentiary material regarding Nigeria which would have permitted it to make findings of fact about that country's general economic situation and standard of living so as to engage in the comparison with Australia in those respects which it did; I reject also her alternative submission that, although there was such evidentiary material, it was too stale to have been relied on by the Tribunal. 27 As to the first of those submissions, it was plainly wrong, as the evidentiary material referred to in [24] above demonstrates; as to the second of them, it is at least curious that Ms Ugochukwu should now be complaining about the staleness of evidentiary material which she herself appears to have placed before the Tribunal; in any event, given that the Tribunal's decision was made on 22 March 2000, none of the three articles to which I have referred in [24] above was as much as one year old at the date of that decision, an age which, given their subject matter, I would not regard by any means as depriving them of the status of evidentiary material on which the Tribunal could lawfully rely. (I do not mean to imply by what I have just said that the economic statistics to which I have referred in [24] above were necessarily of an age which I would regard as depriving them of the status of evidentiary material on which the Tribunal could lawfully rely; when considered in light of the three articles, one might well infer that the situation had only worsened from that shown by the economic statistics when they had been gathered.) 28 In those circumstances, it is unnecessary for me to trouble myself in these reasons with the intricacies of the operation of the ground of judicially-reviewable error set out in par 476(1)(g) of the Act. 29 I turn now to the other of Ms Ugochukwu's two submissions which could be said to have fallen generally into the category of submissions of a judicial review nature. 30 She began that submission by taking me to the reasons for judgment of Denning LJ (as his Lordship then was), with which reasons Bucknill LJ and Jenkins J agreed, in British Launderers' Research Association v Borough of Hendon Rating Authority [1949] 1 KB 434 at 471-72. 31 Section 1 of the Scientific Societies Act 1843 (UK) exempted from rateability a society "instituted for purposes of science … exclusively" and among the questions raised in the British Launderers' Research Association case was whether the Association was a society which had been so instituted. Denning LJ, having (at 470-71) laid down what he described as "rules" for determining whether a society was instituted for scientific purposes, then applied those rules to conclude (at 471) that the Association had not been so instituted. His Lordship then continued (citation omitted), "Mr Rowe [for the Association] says, however, that quarter sessions came to a conclusion of fact in his favour with which the Divisional Court should not have interfered. On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony or facts proved by the production of a thing itself, such as original documents. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If, and in so far as, those conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact: and the only questions of law which can arise on them are whether there was a proper direction in point of law; and whether the conclusion is one which could reasonably be drawn from the primary facts. If, and in so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness, determination by a trained lawyer … the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of first instance. Applying these principles to the case stated [by quarter sessions], the primary facts are stated…. The question is whether the association was instituted for the purposes of science exclusively. That is [ ] a conclusion of law to be drawn from the primary facts, particularly, but not exclusively, from the memorandum and articles of association, and involves questions of interpretation of those documents and of the Act. The Divisional Court were able, and indeed bound, to form their own opinion as to the proper conclusion to be drawn from those primary facts, and I find myself in entire agreement with them." 32 It was Ms Ugochukwu's case before me that the state of her brother's mind at the time of the Tribunal's decision was a conclusion from primary facts which was itself a conclusion of fact. In accordance with Denning LJ's approach in the British Launderers' Research Association case, a question of law therefore arose as to whether the Tribunal's conclusion as to Mr Njoku's state of mind was one "which could reasonably [have] be[en] drawn from the primary facts". In her submission, I should answer that question in the negative and consequently hold that the Tribunal had erred in law. (Into which particular permissible ground of judicial review set out in 476 of the Act such error fell was not explained.) 33 I cannot forbear from remarking on the quaintness of Ms Ugochukwu's reliance before me, in support of the particular submission of hers which I am now discussing, on a single case, decided in another country over fifty years ago, enunciating principles of appellate review by way of case stated, especially when there exists a vast body of case law more specifically related to the statutory grounds of judicial review under provisions like Pt 8 of the Act, which body of case law is not only Australian (obviously), but recent as well. 34 However, it appears to me to be convenient to discuss Ms Ugochukwu's submission, in the first instance at least, not by reference to any recent judicial discussion focusing on the statutory grounds of judicial review under provisions like Pt 8 of the Act, but rather to discuss it by reference to a recent judicial discussion focusing on the grounds of judicial review at common law and, in particular, by reference to the reasons for judgment of Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. 35 In Eshetu, Gummow J discussed a situation materially identical to the present one, namely, one in which a visa was not to be granted under the migration legislation to an applicant therefor unless the Minister was satisfied that the applicant had met a certain criterion, which criterion depended (in part, at least) on the applicant's state of mind. He pointed out (at 651, [131]) that, "A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker…." Earlier in his reasons (at 651, [130]), he had referred to earlier High Court authority pointing out that the purpose of the introduction into a criterion of elements of opinion or belief by the decision-maker was to prevent litigation on questions of jurisdictional fact. After the passage from his reasons which I have just quoted, he then referred (at 652-53, [133]-[134]) to other earlier High Court authority establishing that where the existence of a particular opinion is made a condition of the exercise of a power, then the legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable decision-maker. That earlier High Court authority had also, "… emphasise[d] that the question for the court is not whether it would have formed the opinion in question but whether the repository of the power could have formed the opinion reasonably and [had emphasised further] that an allegation of unreasonableness in the formation of that opinion may often prove to be no more than an impermissible attack upon the merits of the decision…." 36 Gummow J later quoted (at 654, [136]) a passage from the reasons for judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-19 and then said of it (at 654, [137]): "This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way." Later (at 656-57, [145]-[147]; footnotes omitted), Gummow J continued, "Where the issue whether a statutory power was enlivened turns upon the … question of whether the requisite satisfaction of the decision-maker was arrived at reasonably, … I would prefer the scrutiny of the written statement provided under s 430 [of the Act in the case of the Refugee Review Tribunal or s 368 of the Act in the case of the Migration Review Tribunal] by a criterion of 'reasonableness review'. This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds. … The fact-finding and reasoning of the Tribunal are discussed in the judgment of the Chief Justice and McHugh J. They show that its decision was not based on findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds. That other decision-makers may have reached a different view, and have done so reasonably, is not to the point." Finally, I draw attention to the fact that it appears to me that Gummow J was saying (at 658-59, [154]) that the same approach which he had identified as being appropriate in cases of review at common law of a decision to refuse to grant a visa because of an absence of satisfaction that the applicant therefor had met some legislative criterion was also appropriate in cases of review by this Court under Pt 8 of the Act, with the relevant grounds of review being those in pars 476(1)(b), (c), (e) and (g) of the Act. 37 Gummow J's analysis in Eshetu to which I have referred above was obiter. Later, in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, Gleeson CJ and Gummow, Kirby and Hayne JJ (at 150, [34]) referred to that analysis approvingly, although again in obiter. In spite of its obiter character, I consider that I should adopt the analysis of Gummow J in Eshetu for the purpose of the present case. That analysis demonstrates that, to the extent to which the reasons for judgment of Denning LJ in the British Launderers' Research Association case may have any present relevance, they are not to be understood as sanctioning my asking myself whether I would have reached the same decision as the Tribunal did regarding Mr Njoku's state of mind or as sanctioning my asking myself whether a differently constituted Tribunal could reasonably have reached a different conclusion than the Tribunal as presently constituted did. Instead, I am to approach the question of the reasonableness of the Tribunal's finding of fact about Mr Njoku's state of mind at the time of its decision by asking myself whether that finding was or was not supported by some probative material and logical grounds. 38 To that question, there appears to me to be only one possible answer, namely, that the finding was supported by some probative material and logical grounds. The Tribunal considered various matters from which an inference as to Mr Njoku's state of mind at the time of its decision could logically be drawn (see [11]-[17] above) and some of those matters (see [16]-[17] above) were material probative of the finding which it reached. 39 In the circumstances, Ms Ugochukwu's application for review of the Tribunal's decision must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 9 November 2000 Counsel for the Applicant: I Asuzu Counsel for the Respondent: D Godwin Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 September 2000 Date of Judgment: 9 November 2000