FEDERAL COURT OF AUSTRALIA Mohammed v Minister for Immigration and Border Protection [2018] FCA 887 Appeal from: Mohammed v Minister for Immigration [2017] FCCA 1919 File number: VID 869 of 2017 Judge: MIDDLETON J Date of judgment: 18 June 2018 Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 Mohammed v Minister for Immigration [2017] FCCA 1919 Date of hearing: 1 March 2018 Date of last submissions: 3 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 27 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr A Aleksov Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 869 of 2017 BETWEEN: WASEEM MOHAMMED Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE OF ORDER: 18 JUNE 2018 THE COURT ORDERS THAT: 1. The Appeal be dismissed. 2. The Appellant pay to the First Respondent the costs of and in connection with the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MIDDLETON J: INTRODUCTION 1 This is an appeal from a decision of the Federal Circuit Court (the 'FCC'), published as Mohammed v Minister for Immigration [2017] FCCA 1919. The FCC dismissed a challenge to a decision of the Administrative Appeals Tribunal (the 'Tribunal'), which had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the 'Minister') to cancel the appellant's student visa. 2 It is convenient to set out the background to the matter addressed by the judge below: [3] The applicant completed his English course, however, he did not complete his studies in the Diploma of Computing or Bachelor of IT, and ceasing instead shortly after he had arrived on 2 July 2013. On 15 July 2013, he then enrolled in a Certificate IV in Accounting at the Australian Learning, Teaching and Education Centre, completing that course in July 2014. In September 2014, he then enrolled in a Certificate III and a Certificate IV in Commercial Cooking at the Australian Institute of Technical Training. [4] Not surprisingly, by this point the Department was concerned that a visa, which had been granted to undertake a Bachelor of Information Technology, was being utilised to undertake Certificate III and Certificate IV courses in Commercial Cookery. On 24 October 2014, the Department sent a Notice of Intention to Consider Cancellation ("NOICC") to the applicant by email, which advised him that, according to the computer records, he was no longer enrolled in the Bachelor's degree and nor enrolled in any course of study specified by the relevant instrument under the Migration Regulations 1994 (see reg.1.40A). [5] In November 2014, the applicant's migration agent responded providing the Certificates of Enrolment for the Certificate IV and Certificate III courses and a further enrolment certificate at the Holmes Institute for a Bachelor of Business course that was to start on 5 November 2014. [6] In January 2017, a delegate of the Minister cancelled the applicant's visa on the basis that he had not complied with the condition of the visa. The applicant appointed a new migration agent thereafter who provided submissions and supporting documents to the Tribunal. [7] The applicant appeared before the Tribunal and gave evidence, however, the Tribunal ultimately concluded that it would affirm the decision of the delegate. The Tribunal was satisfied that the grounds for cancellation of the visa existed, noting: 13. The evidence before the Tribunal shows that from July 2013 until November 2014, the applicant was no longer enrolled in a bachelor's degree or a master's degree and he was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A. The evidence before the Tribunal shows that in July 2013 the applicant ceased to be enrolled in a bachelor's degree or master's degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and that she was not enrolled until November 2014. At the hearing and in written submissions, the applicant acknowledged he had been in breach. [8] The Tribunal then went on to consider whether or not to exercise the discretion as to whether or not to cancel the visa. The Tribunal recounted the applicant's circumstances at some length at paras.16 to 25 of the decision, looking at his study history, his family background and his circumstances, career goals and plans. The Tribunal ultimately determined, having regard to all of his circumstances, that it was appropriate to cancel the visa. 3 As is apparent from this background, the appellant enjoyed a subclass 573 student visa. Condition 8516 applied to this visa, relevantly requiring that the appellant maintain enrolment in an eligible higher degree course. The appellant did not comply with condition 8516, changing from a Bachelor course in computing to eventually enrolling in Cookery classes, which engaged the power under s 116(1)(b) of the Migration Act 1958 (Cth) (the 'Act'). 4 The key issue before the Tribunal was whether the discretion not to cancel the visa should be exercised favourably to the appellant. In that respect, the appellant told the Tribunal that he had struggled with his initial Bachelor course, that he was not advised (or poorly advised) in relation to the effect of his change of courses, and that his family were struggling to support his studies financially owing to his mother's ill-health. 5 The Tribunal considered each of these factors in turn, and also considered whether cancellation of the visa would cause any hardship to the appellant. The Tribunal did not accept that the appellant's family's financial situation was a contributing factor to his ceasing studies, and did not accept that the appellant was naive in being the recipient of poor advice, finding instead that he had never been a genuine student. In light of the lack of any real hardship caused by the cancellation of his visa, the Tribunal decided to affirm the decision under review. 6 The judge below reviewed the materials before the Tribunal, and was unable to detect any jurisdictional error affecting the decision, reasoning as follows: [11] There is no dispute on the material that the applicant had ceased his enrolment in the courses that he had enrolled in to obtain the visa, nor is there any dispute that the courses that he enrolled in thereafter, at least until such time as he enrolled in the Bachelor of Business course at the Holmes Institute, were not courses that fall within the definitions for courses of the type for which he was granted the visa. As a result, the discretion to cancel the visa arose under the Act. I see no basis for judicial review of the finding that the discretion arose for the visa to be cancelled. [12] I turn, then, to consider whether the applicant has established a ground for judicial review with respect to the cancellation consideration by the Tribunal. The Tribunal in this case appears to have considered the breadth of the applicant's circumstances, looking not only at his educational history, but his family circumstances, his circumstances in Australia, and his conduct with respect to the Department and any potential hardship that he may suffer. To this extent, the considerations the Tribunal has undertaken are analogous to the matters set out in Direction 53 of the Ministerial Directions. [13] The applicant does not identify any facts or circumstances that were significant or relevant and not taken into account by the Tribunal. In the circumstances, I am not persuaded that the applicant has established a ground for judicial review of the Tribunal. Rather, it seems that the applicant wishes to have a merits review undertaken, or, in substance, a general discretion exercised to grant him a visa. [14] It is open to him to apply to the Minister for a general discretion to be exercised if that is appropriate, however, that is entirely a matter for the Minister. 7 The appellant filed a notice of appeal dated 7 August 2017, in which he sets out several alleged errors affecting the decision of the FCC. Although lengthy, it is convenient to set these out in full: Back Ground of the case: Applicant has made an application on 29 September 2015 to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 September 2015 to affirm a decision of a delegate of the minister to cancel my (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the Visa) which was SVP and NON SVP regulations imposed where I have lot of issues by taking the E-Coe once I am exited from first education Provider "Deakin University". Judicial Review application has been dismissed. And also I have found that there is jurisdictional error in the Delegates decision as Section 69 of the Migration Act 1958 (Cth) (Migration Act) do not provide some limitations to assess student genuine intention, it seems to me delegate has been given high powers to delegate. Similarly SVP and non SVP provision were in effect at that time was more uncomfortable for overseas students in Australia. There is no proper guidelines for student to understand the theses regulations and the conditions imposed such 8516 with visa. It does not otherwise operate to affect the rights or obligations created or conferred by the Migration Act and the Migration Regulations. Therefore, having hope that Federal Court of Australia justice would understand this situation, I am bringing the FCCA Decision to FCA for leave to appeal. Grounds of Appeal: According to the proceeding at Federal Circuit court I will bring some issues in to Federal court attention, they are followed below: 1. There is no difference in terminology, the Tribunal in the present case concluded (without alteration), The Tribunal is bound by the reasoning of the majority of the Full decision of delegate which states that Condition 8516 is one to which the concept of substantial compliance has no logical view. Either the condition is satisfied or it is not. Delegate and Tribunal saying that 573.231 or 573.223(1A) and I no longer meet the criteria for the grant of my subclass 573. But at the time of the Tribunal decision there was no SVP & non SVP regulations in effect. For these reasons, as there is a relevant certification before the Tribunal from the education provider for the purposes of Condition 8516, and there is sufficient evidence from my side. Still tribunal finds that the applicant did not comply with Condition 8516 and applicant not meeting the criterion of 573.231 or 573.223(1A) means there is clear procedural fairness in taking the decision. The Tribunal has no discretion to take into account the reasons that the applicant (I) did not comply with Condition 8516. The Tribunal is unable to consider whether the applicant (I) complied substantially with the condition. The Tribunal finds that the applicant did not comply with condition 8516 of his previously held student visa. As the applicant's education provider has certified the applicant should not change the courses for the purposes of Condition 8516, as such the applicant does not satisfy cl. 573.231 or 573.223(1A). 2. In this particular case, there may be room for dispute as to whether a s.116 is properly exercised or not by delegate. If not, tribunal has responsibility to correct the delegate decision. It wasn't happened in this case. In this case, however, there is no doubt that tribunal erred in finding the erroring delegates decision. 3. In paragraph 18 of AAT decision, tribunal has found me in breach of condition 8516 for a substantial period of time from July 2013 until November 2014, here Tribunal has misconstrued the 8516 condition. During this period, I have been studying and holding the E-Coe. Also when I was in Deakin University I have been studying the Diploma of level and Holding the Bachelor's Degree I was satisfied the 8516 and when I have exited the Deakin and was studying Diploma level course and holding the Bachelors E-Coe from Holmes is not considered and showed as a Breach. Here tribunal implication has big uncertainty. The decision of the delegate to cancel my visa was legally unreasonable and likewise tribunal member afforms to cancel the visa legally unreasonable. 4. In 19th Paragraph of AAT decision says that there is no evidence that I have not complied other visa conditions. It is showing that AAT is not conflating the delegate decision. Here, tribunal has mentioned "extenuating circumstances", my situation as an overseas student to get an admission for Bachelors E-Coe was very hard as every education provider was refusing the admission because of SVP & Non-SVP. When NOICC was issued SVP and Non-SVP were abolished and there was convenient situation for education providers to issue the admission for bachelors that is the reason I have been issued E-Coe from Holmes Institute. There is no facilitation to get the admission for Bachelors by legislation is to be considered as beyond my control. All education providers hands were tightened during my breach period. This information has not been come in to the discussion at tribunal hearing. That is the reason I found that tribunal and delegate failed to have regard to relevant considerations, being claims made by the Applicant(I) as to why the delegate should exercise the discretion not to cancel the visa. The delegate and tribunal member thereby constructively failed to exercise jurisdiction, denied the Applicant procedural fairness or failed to carry out his statutory task. 5. JUDGE RIETHMULLER discussed the constraints upon the scope of his review of the Delegates decision which arose from s 476.It will be necessary to return to that subject in more detail below. For the present, it suffices to say that JUDGE RIETHMULLER weren't allowed by respondent (SPARKE HELMORE) to take the proper view of Judicial Review grounds. It is an argument that the applicant was genuine and was studying in Australia and has intention to study bachelors, it wasn't raised at FCCA hearing. There is no question raised whether procedure at Migration agent communication properly went or not or applicant was victim or not. Other argument has not been discussed as applicant had applied study rights immigration has denied twice, respondent says applicant should not apply. It is not a proper answer also there is no information in the court book. Therefore these arguments are to be looked by justice of Federal court Australia. In case of Justice find jurisdictional error in the decision of delegate or tribunal this matter should have sent it back to Administrative appeal tribunal. 6. According to Judge JUDGE RIETHMULLER has not understood in regarding the Ground in applicant view, the applicant wasn't notified by Australian education provider or Immigration or agent that applicant is breaching the condition of 573. That was the first time applicant has received an e-mial from the delegate and cancelled by delegate. Applicant has not had any control of his situations as he is young and totally relied on his parents advice also migration agent wrongful guidelines which became very bad in Australia to provide reasons to immigration and further to Federal Circuit court, lost the merit review at Administrative appeal Tribunal has made him ineligible to get an opportunity to study in Australia. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by him, the provision of false and misleading evidence and manifest error. Federal Court has power to re-open the original appeal pursuant to either a common law power or pursuant to statute. Federal circuit court has court hasn't even looked at applicant claims in broadly for applicant credible. And also he has exceptional circumstance beyond his control, reasons he has submitted and also documents can be submitted to the Federal Court of Australia at later stage. 8 Although somewhat difficult to comprehend because of their discursive nature, I now address each of the essential grounds raised by the appellant in this appeal. 9 In relation to ground 1, the Minister submitted that the reference to 'substantial compliance' does not assist the appellant, and that no part of the Tribunal's decision purports to rely on any such notion. The Minister also noted that it is unclear what the appellant meant by asserting that "SVP & non SVP regulations" were not in effect, nor what was meant by "relevant certification". The Minister further submitted that it was also unclear what was meant by the reference to his education provider having certified that he should not change courses for the purpose of condition 8516. 10 I have reviewed ground 1 and the relevant aspects of the reasons of the judge are below. In my view, this ground does not establish any legal error by the judge below, nor any basis for the assertion that the appellant was denied procedural fairness. The starting point is that the appellant did not comply with condition 8516. That being the case, the cancellation of the visa was at the discretion of the Minister. The matters referred to by the appellant do not alter that circumstance. Accordingly, I reject this ground of appeal. 11 In relation to ground 2, the Minister submitted that the appellant sought only to cavil with the merits of the Tribunal's decision. In my view, the substance of ground 2, through its references to 'properly exercised' and 'correct the delegate decision', is directed at how the Minister's delegate exercised the broad discretion conferred by s 116 of the Act. There is no allegation in this ground of an error of law or fact by the judge below. Accordingly, I reject this ground of appeal. 12 In relation to ground 3, the Minister submitted that the appellant failed to identify how the Tribunal erred in its finding of facts. In particular, the Minister observed that the appellant did not dispute that upon his release from the Bachelor's course at Deakin, he was not again enrolled in a qualifying course until the Bachelor's course at Holmes. Those factual findings formed the basis on which the Tribunal found that the appellant failed to satisfy condition 8516 and, according to the Minister, no error has been shown by the appellant in respect of that conclusion. 13 I have reviewed ground 3. As the judge below found, the history of educational enrolment demonstrates unambiguously that a discretion to cancel the visa arose under the Act. I do not accept that it has been demonstrated that the decision of the delegate of the Minister was 'legally unreasonable' in the circumstances of the present case and the nature of the discretion at issue. Accordingly, I reject this ground of appeal. 14 In relation to ground 4, the appellant seeks only to cavil with the merits of the Tribunal's decision. I have reviewed ground 4 and I reiterate that, once it was apparent that the appellant failed to satisfy condition 8516, a discretion arose under s 116 of the Act to cancel the visa. While some conditions and parameters are placed on the exercise of such discretion under the Act, the discretion conferred is broad and no relevant conditions or parameters are engaged in the present case. The primary judge found as much in [13] referred to above. 15 That being so, the matters referred to by the appellant in ground 4 do not form a basis for finding any error by the judge below. Accordingly, I reject this ground of appeal. 16 In relation to grounds 5 and 6, the Minister submitted that it is unclear how the matters listed therein could assist the appellant since they do not allege any appellable error by the FCC nor any jurisdictional error by the Tribunal. To the extent that appellant asserts that he was not notified that he was in breach of "condition 573" (presumably, cl 573 of Sch 2 to the Migration Regulations 1994 (Cth), requiring compliance with condition 8516), there is no legal obligation to that effect. 17 I have reviewed grounds 5 and 6, as well as the other matters referred to by the appellant thereafter. My conclusions in relation to ground 4 apply equally to grounds 5 and 6 as well as these other matters referred thereafter. Accordingly, I reject those grounds of appeal. 18 After hearing the parties on 1 March 2018, the appellant was given the opportunity to make further written submissions. Nothing in those submissions advanced the appellant's case beyond the above matters discussed. They fail to accept that there was a failure to comply with condition 8516, and in these circumstances the Minister had a discretion and the FCC made findings upholding the exercise of discretion. They also fail to show that the discretion to be exercised under the Act miscarried. 19 However, the Court was concerned that there may be one matter upon which the appellant may have had a proper ground of appeal. On 19 March 2018, the Court sent the following email to the parties (omitting formal parts): His Honour has considered the parties' post-hearing submissions. His Honour invites submissions by the Minister in respect of the following considerations by 4:00pm 9 April 2018. The following are only tentative observations upon looking at the Court file in the appeal. The Tribunal would have been under a duty to undertake a review of the merits of the delegate's decision, and to take into account all relevant materials in arriving at its determination (Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [26]). Where there is an applicable government policy pertaining to the exercise of discretion, the Tribunal is required to take such a policy into account as a relevant factor in its consideration of the matter before it (Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at 29-31; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-1). Additionally, it is possible, in certain limited circumstances, that a power is exercised in an improper manner where there is an unreasonable failure to ascertain relevant facts which the decision-maker knew to be readily available to it (Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563). In that regard, it is also noted that the AAT "may inform itself on any matter in such manner as it thinks appropriate" under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), and relatedly, that the "the steps the tribunal was bound to take in order to afford procedural fairness are not necessarily to be identified with the steps that should be taken by a court deciding a matter by adversarial procedures" (Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 87 ALD 512 at [24]-[25]). Present proceedings In his submissions of 8 March 2018 , the appellant states: "[i]t seemed to me that the Tribunal addressed only the elements of clause 573.221 of the regulations. Of that clause, the Tribunal seemed to have focused on whether I have studied Bachelors in Australia on 573 visa or not but. The Tribunal did not undertook no further analysis on SVP or my circumstances beyond my control. Same thing happened at Federal Circuit court as well." The appellant makes mention elsewhere of: (i) being "hit by SVP regulations"; (ii) an assertion that the "Tribunal failed to take into account that I have enrolled in Certificate III in commercial cookery and Certificate IV in Commercial cookery and also have enrolment in Bachelors of Business from Holmes which is meets the definition defined in cl. 573.221 and specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and in force at the time the application was made"; and (iii) an apparent belief that he was not in fact non- compliant. The appellant thus claims on appeal that the Tribunal erred in failing to consider the relevance of his enrolment in the abovementioned certificates and the associated issues regarding the validity or otherwise of SVP-designated courses in ascertaining compliance with the applicable regulations. The appellant claims that the judge below made the same error. Proceedings before the Federal Circuit Court The judge below found (at [13]) that: "The applicant does not identify any facts or circumstances that were significant or relevant and not taken into account by the Tribunal". However, there was an absence of any mention in the Tribunal's determination of an apparent governmental policy that applied prima facie to the appellant's circumstances (see further below). Grounds 5 and 6 of the appellant's Grounds of Application for judicial review by the Federal Circuit Court state: 5. There is Judicial Error in exercising s.116 in regarding s.53 Ministerial Direction is explained in Annexure A 6. MRT Decision has jurisdiction error as they did not even looking in to my submissions at the hearing. In Annexure A, the appellant refers to his understanding that in respect of the two abovementioned certificates, "[b]oth education providers are SVP providers", and "[m]y argument is my education provider (AITT) clearly showing that they are under the SVP", and "[i]n my situation, member was so tricky, one hand tribunal talk about present situation whether I am following the criterion or not. I am meeting the criterion of present as I have e-coe with education providers who under SVP. But all of sudden tribunal talks about the Genuine Temporary Criterion". Whilst difficult to follow, thrust of the appellant's contention in this regard appeared to be that the Tribunal failed to consider his submissions at the hearing regarding the role of the status or eligibility of the education providers of the abovementioned certificate courses as relevant to his compliance with the regulations and the proper exercise of discretion by the decision-maker. Proceedings before the Tribunal In relation to the status or eligibility of the education providers of the abovementioned certificate courses as relevant to the proper exercise of discretion by the decision-maker in this case, one matter in the material before the Tribunal and the original decision-maker was an alleged email from the Department stating: We are keen to provide as much certainty to affected students as possible. With this in mind and following consideration of the information provided by students and other stakeholders, we have decided that will not take any further action against students who meet the following characteristics: • Transferred from a SVP eligible subclass 573 course to a non-SVP eligible 573 course prior to the launch of the 14 January 2014 education campaign (e.g. from a bachelor degree course at a university to a bachelor degree course at a non-university provider); and • Continue to meet all other requirements and conditions of their visa We will write to students who meet these characteristics on an individual basis to advise that they will not be subject to cancellation as a result of their course transfer. The significant point seems to be this. The Tribunal found (at [13]) that the appellant ceased to be enrolled in a bachelor's degree of the type specified for Subclass 573 in July 2013, and that he enrolled in the abovementioned Certificate IV in July 2013 and continued to be so enrolled at the time the alleged email was sent. On that basis, the apparent policy reflected in the email was prima facie applicable to the appellant's circumstances. The Tribunal makes no mention of this apparent policy in its determination, despite the principle set out above that the Tribunal is required to take into account an applicable government policy relating to the exercise of discretion as a plainly relevant factor in its consideration of the matter before it. 20 The Minister responded in relation to the potential application of the departmental policy to the appellant. Based upon the Minister's response, it is evident that the appellant's circumstances do not fit within the policy not to cancel visas which applies where a person who arrived in Australia on a student visa for the purpose of undertaking an "SVP eligible subclass 573 course" but transferred to a "non-SVP eligible 573 course". 21 The Minister accepted the statement of principle derived from Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 ('Gray'), that applicable government policy can be a relevant consideration for the Tribunal. 22 However, upon an examination of the appellant's enrolment history (to be found at Appeal Book 95) it reveals that he transferred out of an SVP eligible subclass 573 course and into courses that were not a non-SVP eligible 573 course (at vocational level, being the accounting and cookery courses). That is, the appellant changed from a higher education sector course (a 573 course) to a vocational education sector course (what might have been a "subclass 572 course"). 23 Therefore, the concern of the Tribunal as expressed in its email to the parties on 19 March 2018 does not arise. The appellant could not have taken any benefit from the policy in relation to SVP and non-SVP transfers, as the policy was not engaged in the circumstances of his situation. The policy could not be said to be a "relevant" policy, which negates the application of the principles enunciated in Gray's case to the appellant's circumstances. 24 I do not otherwise need to rehearse all that was written by the appellant in reply to the submissions of the Minister in response to the email dated 19 March 2018 from the Court, which go into the same area of discourse as previously submitted to the FCC and to this Court in earlier written submissions. 25 Nevertheless, I mention two matters. It does appear that the appellant argues that he was in receipt of a certificate of enrolment (E-Coe) as at 2016 at Holmes Institute, rather than 2014 (as found by the Tribunal at [12]). There seems to be a confusion in the appellant's understanding of his certificate of enrolment, which was obtained in 2014 for a course to begin in 2016. The Tribunal was aware of this certificate of enrolment (see [12]), and there is no basis on which legal error can be inferred. 26 Secondly, this Court cannot take up the invitation of the appellant to generally "look into matters", as it has plainly no jurisdiction to do so. To the extent that the appellant alleges that he was not in breach of condition 8516, that submission is untenable in light of the accepted facts as set out by the Tribunal. Insofar as the appellant alleges that lawyers misguided the FCC judge, there is no evidence to support this allegation and it cannot be accepted. 27 Accordingly, for the above reasons the appeal should be dismissed. I know of no basis to depart from the ordinary rule that costs should follow the event. In these circumstances I will also order that the appellant pay to the Minister the costs of and in connection with the appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 18 June 2018