FEDERAL COURT OF AUSTRALIA

XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the first respondent’s costs as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, to affirm a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the cancellation of the applicant’s permanent resident visa. The issue raised in this proceeding is whether the Tribunal correctly applied the principle that a person seeking to have revoked the mandatory cancellation of a visa on character grounds arising from a criminal conviction and sentence cannot rely upon “another reason” for that revocation that is factually inconsistent with the basis for that conviction or sentence: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 per McKerracher J at [68] and [79] and per Colvin J at [195], but cf Derrington J dissenting.

Background

2    In October 2015, the applicant was sentenced to a total of six years’ imprisonment with a non-parole period of three and a half years, following a jury trial in the District Court of New South Wales. He was eligible for parole in March 2019. About a year before his parole date, in March 2018, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth).

3    The prison sentences arose from a finding of guilt by the jury on each of three counts in an indictment charging the applicant with illegally importing substantial quantities of ephedrine and pseudoephedrine from China in 2013, contrary to s 233BAA(4) of the Customs Act 1901 (Cth). As relevant to this proceeding, the sentencing judge found that:

(1)    the applicant “in Australia was operating at a very superior level”;

(2)    “it is clear that this was a deliberate, highly organised drug importation for profit, and the [applicant] was an organiser and director of activities. He was directing the subsequent collection of the product as far as he was able to, and what was involved in Australia was a network of some sophistication”;

(3)    while the applicant “refers in some communications to a boss, or bosses, in China – no doubt there were other people involved in China – but certainly in terms of Australia there [was] no-one above him in the hierarchy”;

(4)    “He is at the top of the chain – at least here in Australia – and for that he must be punished”.

4    In October 2019, the Minister’s delegate decided not to revoke the visa cancellation decision under s 501CA of the Migration Act. The delegate’s decision was affirmed by the Tribunal in late December 2019, following a hearing earlier that month.

5    In the lead up to the Tribunal hearing in December 2019, the applicant furnished a further witness statement. The relevant paragraph of that statement concerned threats that the applicant said he had received. Such threats were not raised in the criminal trial or sentence proceeding. That paragraph was as follows:

[5]    The people organising the importation were criminals of Chinese background who had connections with other criminals in China. I knew that they could be dangerous people. When I was on bail after I was arrested they spoke to me and told me to keep quiet about who was involved, or else there would be “trouble”. I understood that to mean that they would harm me and possibly my family. For this reason I have never given any information to the police about them.

6    At the Tribunal hearing the applicant gave the following evidence relevant to the threats he said he had received (transcript verbatim):

MR GAO: That’s fine. In relation to the most recent offence, XRXL, and that is the importation of the prohibited substances, can you tell the tribunal as to how it occurred? So were you approached by someone, or did you decide that this is just a good idea?

INTERPRETER: I was approached by someone. This person was like a friend. He was also a tenant at my house.

MR GAO: When was this? Which year?

INTERPRETER: I think it’s at the year of 2013.

MR GAO: I see. And you say he was a tenant, so does that mean that you lived with this person?

INTERPRETER: Yes, he – yes, I lived with him. He stayed in my house for only a couple of months but I don’t remember who many months.

…

MR GAO: And with your friend did he offer any sort of financial reward to you in importing these substances?

INTERPRETER: At the beginning my friend asked me to help him to – to receive a parcel and he offer me money for that.

…

MR GAO: … Do you remember why you went to China then in April 2013?

…

INTERPRETER: So I went to China because the friend asked me to, they’ve arranged me – for me to meet someone in China.

…

INTERPRETER: The same friend.

MR GAO: I see, yes, that’s my question. All right. So you say you went to China because they arranged for you to go to China to meet someone and who is that person, or what does he or she do?

INTERPRETER: I don’t remember his name and I only met him once, from my impression I think that he collects all the pills for the cold and my job was to send it to Australia by post. Sorry, he collects the pills for the cold and he will send it to Australia by post and I have to confirm that he does possess those pills and – that I have to confirm that he actually has the (indistinct) to send the parcels out.

…

MR GAO: Now, about your friend, did he contact you and the several other people in connection with this importation activity, XRXL?

INTERPRETER: I don’t know if there’s anyone else involved but I was the only that he asked and I also – he also asked me to help him to find other people to receive parcels.

…

MR GAO: This friend of yours, was he still involved in this whole enterprise or did he not get involved after you have decided to find other people to assist?

INTERPRETER: I don’t know I stopped contacting him.

MR GAO: Sorry, my question was, at that time after you say that you are now finding other people to take the packages, was your friend still in the background directing you as to what to do?

INTERPRETER: Yes, yes, according to his requirements, I was acting according to his requirements.

MR GAO: So you were merely acting on instructions from your friend?

INTERPRETER: Yes.

MR GAO: And you didn’t tell the police this?

INTERPRETER: I am sorry, I didn’t.

MR GAO: Why didn’t you?

INTERPRETER: First I thought when I was caught he asked me to not to say anything and he said, if I say anything I might be caught in other troubles.

MR GAO: Sorry, XRXL, continue please?

INTERPRETER: And by then my lawyer also advised me not to say it.

…

INTERPRETER: I also mentioned it in my statement that I think if I said it then he might harm me or my family.

…

MR GAO: XRXL, the sentencing remark of the judge indicated that you were operating at a very senior level in Australia and there was no one superior than you in terms of operation in Australia. What you’re saying today appears to be suggesting that there is someone that’s operating at a much higher level than you. So is it your evidence that really you were under direction by this other person when you were committing these offences?

INTERPRETER: I wasn’t really – I wasn’t trying to find an excuse on why I got involved with this and I completely understand that my behaviour was wrong and I also understand that my role in that and – and that I was really, really receiving directions from someone else.

…

MR GAO: … and you said that while you were on bail you were contacted by your friend not to tell the police about this person, is that right?

INTERPRETER: Yes.

…

MR GAO: You say the reason why you didn’t tell the police about this threat was because you were afraid that you or your wife and your child may be harmed?

INTERPRETER: Yes. Yes, because they told me that if I tell – if I tell the police about them, about their involvement, about who they are then I would be in trouble.

MR GAO: You don’t trust the police to protect you and your family?

INTERPRETER: After I was caught I was – I wasn’t really thinking because to all my knowledge is that I all I know is if I take this offence by myself, if I don’t say anything, nothing will happen to them.

MR GAO: Even though if you tell the police there was someone directing you, that arguable will mean that you will have reduced culpability – even though if you do tell the police that you were directed by someone, you may result in you receiving a life sentence, so you never thought about that?

INTERPRETER: At that time all my thoughts are very selfish, I just – I just didn’t want to end up in gaol, I didn’t want to lose my freedom, I didn’t want to leave my family.

7    At the conclusion of the evidence from the applicant at the Tribunal hearing, the Tribunal member raised the question of further submissions from the parties as to any inconsistencies between the basis upon which the applicant was sentenced and his evidence before the Tribunal as follows:

SENIOR MEMBER: One question that I’ve been thinking about is that the – I suppose the complete version of events that we got today was slightly different to the basis on which the applicant was sentenced, in that the understanding was that there was no-one higher than him in the, I suppose, criminal hierarchy within Australia in relation to these offences. What came out was, I think, different to that.

Now, it seems to be one of the more difficult issues in this area is the extent to which I can look behind the criminal convictions that are the foundation for the cancellation and so if either of you, when the time comes, can provide me with any assistance on that question - - -

MR JONES: Yes.

SENIOR MEMBER: - - -I’d be grateful if you could.

MR JONES: Yes, certainly, Senior Member.

SENIOR MEMBER: But otherwise let’s proceed.

8    At the conclusion of the hearing, the Tribunal gave both parties leave to file simultaneous written submissions by close of business the next day on two issues, one of which was “the question of how the tribunal should approach evidence which is inconsistent with the basis on which the applicant was sentenced in relation to the conviction which underpinned the visa cancellation”.

9    The next day, further short written submissions were furnished on behalf of both the applicant and the Minister, in accordance with the leave granted. On the issue of inconsistent evidence, the submissions for the applicant were as follows (verbatim, but citations omitted):

[5]    The most recent authority dealing with this issue is the Full Federal Court case of HZCP. The majority held that the Tribunal could not entertain evidence by which the applicant sought to impugn the facts found by the sentencing judge (McKerracher J at [79]), or go behind the factual findings of the sentencing judge (Colvin J at [196]). The Tribunal is bound by this interpretation of the law.

[6]    The prohibition on “entertaining” such evidence does not mean that the Tribunal must find that the applicant has been untruthful in putting it. The Tribunal may simply treat it as inadmissible.

[7]    In this case, however, it is submitted that the evidence given in paragraphs 4 and 5 of the applicant’s second witness statement dated 4 December 2019 and repeated at the hearing did not impugn or go behind the factual findings of the sentencing judge. His Honour found as facts that:

a) “the offender in Australia was operating at very senior level”

b) “the offender was an organiser and director of activities”

c) “What was involved in Australia was a network of some sophistication”

d) “he was heavily involved as a director of operations”

e) “no doubt there were other people involved in China, but certainly in terms of Australia there [was] no-one above him in the hierarchy”

f) “[the operation] involved the co-operation of a number of people”

g) “He is at the top of the chain, at least here in Australia”

[8]    The applicant’s evidence that he was initially approached by people in Australia to take part in the operation does not contradict the Judge’s findings of his eventual superior organisational role in Australia, nor does it conflict with his evidence that he received threats from other members of the “network of some sophistication” for the purpose of not revealing their identities once the operation had been discovered. It is quite conceivable that someone involved at a lower organisation level who had not been caught could have made such threats once the hierarchy had effectively been dissolved.

[9]    It is also open to the Tribunal to surmise that the people making the threats may have been acting on behalf of the higher elements in China.

[10]    The Tribunal should find that the evidence of the threats is admissible and credible. Alternatively, the Tribunal should merely disregard it without making any finding as to its truthfulness.

10    The substance of the Minister’s further written submission to the Tribunal as to inconsistency was that the applicant had given evidence at the Tribunal hearing in relation to the circumstances that led to his conviction. His evidence was that he was directed by his friend to commit these crimes, which was contrary to the remarks of the sentencing judge that there was no one above him in the criminal hierarchy (in Australia). The balance of the Minister’s submissions on this issue addressed HZCP, submitting that the Tribunal could not accept the applicant’s evidence to the extent that it was inconsistent with the essential facts underpinning the sentence imposed. The Minister also submitted that the use that could still be made of the inconsistent evidence given by the applicant was essentially to cast doubt on his remorse.

11    The relevant passages of the Tribunal’s reasons are as follows (footnotes embedded in text where relevant, but otherwise omitted):

THE APPLICANT’S BACKGROUND – WORK, SOCIAL AND CRIMINAL HISTORY

Fact finding principles

[21]    The following represent my findings of fact. The evidence on which they are based is as cited. As it is necessary for me to form a view about the applicant’s likelihood of re-offending it has been necessary to make a number of findings about his criminal past. The trial judge who sentenced the applicant made a number of findings about the circumstances in which the applicant’s crime was committed. The applicant gave evidence about his involvement in the crime which was not entirely consistent with the findings of the primary judge. In reaching my findings on the primary facts I must apply the principle, recently clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection that ‘…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error’ [[2019] FCAFC 202 at [68]]. The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as ‘another reason’ why the original decision to cancel should be revoked [HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [195]]. Accordingly, where the applicant’s evidence is inconsistent with the essential findings of the sentencing judge, I have disregarded that evidence.

[22]    However, I do note that the applicant is entitled, to a limited extent, to seek different findings from the Tribunal in relation to the criminal convictions which did not form part the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection [[2018] FCA 1803 at [41] - [77]]. These principles are pithily summarised in the following passage of Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:

The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

[23]    Accordingly, I have taken a less restrictive approach when making findings about the Cultivation Conviction.

Applicant’s history

…

[31]    At some point before April 2013 the applicant was approached by some people, one of whom was a tenant in his house, to arrange to bring chemicals into Australia. He was asked to find other people to receive parcels. The applicant knew that it was illegal to do so and that the chemicals would be used to make drugs. In April 2013 the applicant travelled to China to make necessary arrangements including the purchase of ‘cold tablets’. The applicant has never given the police information about others involved in organising the importation due to threats after his arrest which he understood may involve harm to his family.[footnote reference to [5] of the applicant’s further statement, reproduced above]

PRIMARY CONSIDERATIONS

…

The Nature and Seriousness of the Applicant’s Conduct to Date

…

[50]    The applicant moved to Australia when he was 17 years old and he was free in the Australian community for just over 10 years. In the time in which he was in the Australian community he committed 3 criminal offences the last of which was very serious. It involved the deliberate importation into Australia of chemicals which the applicant knew would be used to manufacture illegal drugs. The applicant recruited at least one other person to assist with the commission of the offences and he was, to use the sentencing [judge’s] words ‘at the top of the chain – at least here in Australia’. The custodial sentence of 6 years reflected the seriousness of the offence.

…

The ground of review

12    The originating application contains the following sole ground of review:

The Second Respondent (“the Tribunal”) erred in finding that certain evidence that the Applicant had given could not be considered.

Particulars

(a)    The Applicant gave evidence concerning threats that he had received from criminal associates. The Tribunal did not consider at least some of that evidence because it “was not entirely consistent” with the findings of the sentencing Judge, and disregarded that evidence where it was inconsistent with those findings. The Tribunal did not specify which parts of the Applicant’s evidence were inconsistent with the sentencing Judge’s findings.

(b)    No part of the evidence given by the Applicant was inconsistent with the essential findings of the sentencing Judge.

The competing submissions

13    The following summary closely follows the text of the key parts of the written submissions for the parties, as emphasised and argued in oral submissions.

14    The applicant submits that, although not clearly stated in the Tribunal’s reasons, it is reasonable to infer that the Tribunal disregarded at least some of the applicant’s evidence of receiving threats from a person or persons in Australia. That is said to be so because of the sentencing judge’s remark about him being “at the top of the chain, at least here in Australia”: see [50] of the Tribunal’s reasons, reproduced at [11] above. The applicant accepts that the Tribunal could not entertain evidence by which the applicant sought to impugn the facts found by the sentencing judge, by reason of HZCP at [79]. However, the applicant submits that it was not “at all” inconsistent with the sentencing remarks for him to give evidence to the Tribunal to the effect that:

(1)    the “friend” referred to by him was no more than a messenger or go-between for the “boss or bosses in China”; and

(2)    the threats made therefore ultimately came from more senior people in the criminal importation organisation in China, not more senior people in Australia.

The applicant submits that in failing to consider the “highly likely possibility” that this was so, because it considered itself constrained from doing so by HZCP, the Tribunal erred and in so doing constructively failed to exercise its jurisdiction to consider the entirety of the evidence before it.

15    The Minister submits that the Tribunal did in fact consider the applicant’s evidence of threats made to him at [31] of its reasons, referring in the same paragraph to the tenant (or friend) in the applicant’s house who approached him to arrange the importation of the prohibited chemicals. The Minister characterises the Tribunal’s reference to the “tenant” as a fair summary of the applicant’s oral evidence. The Minister submits that the reason (I take it to be inferred) that the Tribunal did not go further in relying upon the applicant’s evidence before it concerning the tenant or friend, was because that evidence was inconsistent with the sentencing judge’s finding that there was no one above the applicant in the hierarchy in Australia who was involved in the prohibited importations.

16    The Minister submits that the applicant’s argument rests on a “defective premise” because the sentencing judge did not mention, and there was no evidence before the Tribunal to suggest, that the applicant was asserting that the friend/tenant was merely a messenger or go-between for the “bosses in China”. Rather, the applicant’s evidence to the Tribunal was that he was acting according to his friend’s requirements and instructions, implicitly in a subordinate role. The Minister submits that this was inconsistent with the sentencing judge’s finding that there was no such person above the applicant in the hierarchy of the drug importing organisation in Australia. Accordingly, in all the circumstances, the Minister submits, there was no error in the Tribunal’s observation at [21] that the applicant gave evidence which was not entirely consistent with the findings of the sentencing judge and could not rely upon such contrary evidence by reason of HZCP. In oral submissions the Minister goes further, submitting there was “no evidence connecting the tenant with the bosses in China such that it gave that factual proposition a permutation that made it not inconsistent with the findings of the sentencing judge”, which is arguably even more emphatic, although not a substantially different proposition.

Consideration

17    While it is a well-established sentencing principle that it is not essential that there be an identification of the precise nature of an offender’s involvement in an act of importation of prohibited imports, it is also recognised that endeavouring to do so, when the evidence permits that to happen, can be a means of advancing the objective of consistency in sentencing between co-offenders and consistency in sentencing for like offences more generally: R v Olbrich [1999] HCA 54; 199 CLR 270 at [13]-[14]. This was such a case, especially following a trial by jury. Thus the findings of the sentencing judge summarised at [3] above formed an important part of the process in deciding upon the appropriate sentences to impose on the applicant. On the authority of HZCP, it was not open to the Tribunal to make contrary findings about the applicant’s role in the criminal importation organisation in Australia, or indeed take into account evidence to that effect.

18    The applicant does not challenge the correctness of the majority finding in HZCP, because he contends that he did not seek to have any such impugning of those sentence findings take place. Instead he contends that the Tribunal went too far in the application of the HZCP proscription, and thereby fell into vitiating jurisdictional error.

19    It is necessary to consider the totality of the material about the threats that was before the Tribunal to which the Court’s attention was directed, and to endeavour to interpret and understand the Tribunal’s reasons in context. It is common ground that, following HZCP, the applicant could not impugn the sentence finding that he was the most senior person involved in the importations in Australia. The substance of the applicant’s case is that he did not do so, but that in trying to avoid that proscription, the Tribunal did not consider evidence that did not traverse this forbidden territory and therefore was required to be considered. The substance of the Minister’s response is that none of applicant’s evidence was overlooked, but that the findings the Tribunal made about threats were suitably confined so as not to clash with the essential findings made by the sentencing judge.

20    The Tribunal was not precluded by HZCP from having regard to evidence of threats being made to the applicant, because that was not material before the sentencing judge and did not, without more, represent anything that was contrary to a sentencing finding. But the Tribunal was not entitled to have regard to any aspect of those alleged threats that was inconsistent with the sentence finding that the applicant was the most senior person in Australia involved in the importations.

21    The first sentence of the Tribunal’s reasons at [21] – “The following represent my findings of fact” – unavoidably means that [31] was a part of the Tribunal’s factual findings. I reject the applicant’s submission that this was merely a recording of claims made by him. Thus the Tribunal relevantly found, by express reference to [5] of the applicant’s pre-hearing statement, that the applicant “has never given the police information about others involved in organising the importation due to threats after his arrest which he understood may involve harm to his family”. Addressed in this way, the claim of threats being made was considered, and accepted, by the Tribunal, without addressing who had made the threats, and thereby avoiding any issue as to who in the hierarchy of the criminal organisation had made the threats. The remaining question is whether the Tribunal was entitled or even required to stop short in this way.

22    The applicant’s evidence before the Tribunal was capable of being understood as being somewhat internally inconsistent unless it is read in a particular way. On a fair reading of [5] of the applicant’s further statement, reproduced above at [5], the applicant was referring to the organisers in Australia for the importation as being criminals of Chinese background, who had connections with other criminals in China. Read in that way, it was plainly contrary to the sentence finding in issue because it attributed an organisational role to people in Australia other than the applicant, thereby giving him subordinate status. In that paragraph of his statement, the applicant was describing “them” as dangerous “people”, not referring to a single person. He said that when he was on bail after he was arrested “they” spoke to him and told him to keep quiet about who was involved, or else there would be trouble. He understood that to mean that “they” would harm him and possibly his family. For that reason he had never given any information to the police about “them”.

23    By contrast, in the extracts of the applicant’s evidence before the Tribunal reproduced above, he referred to acting according to the requirements not of those organising the importation in Australia who were criminals of Chinese background, but rather according to the requirements and instructions of the tenant/friend. He was asked whether it was his evidence that he was really under the direction by this “other person” when he was committing the offences to which he said he was really receiving directions from “someone” else. The applicant in his oral submissions at the hearing suggested that the reference to “receiving directions” was the mere transmission of directions by somebody else in China who was senior in the criminal organisation to the applicant. That is certainly one way in which that could have been understood, but it was not the only way it had to be understood by the Tribunal. Indeed the further written submissions for the applicant quite properly went no further than suggesting (at [9], reproduced above) that it was “also open to the Tribunal to surmise that the people making the threats may have been acting on behalf of the higher elements in China”.

24    A little later in his evidence before the Tribunal, the applicant agreed with the proposition put to him through an interpreter that, while he was on bail, he was “contacted by your friend not to tell the police about this person”. It is difficult to know whether this was a true inconsistency with his earlier evidence summarised in the previous paragraph, or whether the inconsistency only arose from the way in which the question was put. I tend to think it was the latter because, on the following page of the transcript, he was asked whether the reason why he did not tell the police about the threat was because he was afraid that he or his wife or child may be harmed, to which he responded that if he told the police about “them” and about “their” involvement, then he would be in trouble. That may or may not be a plural use of “them” and “their”.

25    The Tribunal was entitled to assess the evidence of the applicant in a holistic way. It was open to the Tribunal to understand the overall effect of his evidence on this issue as being to convey that the tenant/friend was one of the organisers of the importation in Australia who had connections with other criminals in China and that the threat, whether conveyed by the tenant/friend, or by him and/or others among the organisers in Australia, was made in a capacity of seniority to the applicant, rather than as a mere agent or go-between for the “bosses in China”. Viewed in that way, as was open to the Tribunal, the applicant’s evidence was inconsistent with the finding of the sentencing judge as to his seniority at the Australian end of the importations. That way of reading the applicant’s evidence readily explains the way in which the Tribunal made the finding of fact at [31] that the applicant had never given police information about others involved in organising the importation due to threats made after his arrest which he understood may involve harm to his family, but made no reference to, or finding about, who had made the threats.

26    In this way, the Tribunal deftly made a finding that threats had been made and took that into account as part of the factual matrix in deciding whether or not to make a different visa cancellation revocation decision, whilst avoiding a reference and thus any inconsistent finding as to the role of the person or persons who made the threats. This inevitably did not encompass any notion of threats being made locally on behalf of more senior participants in the importations overseas. However, the latter was only required if the evidence of the applicant had to be read in that way. The Tribunal was not obliged to regard the effect of the applicant’s evidence in this way.

27    I can see nothing wrong with the approach taken by the Tribunal, especially as it took things as far as they could be in favour of the applicant in relation to the threats, without traversing the finding made by the sentencing judge that the applicant was the most senior participant in Australia. It follows that it has not been established that the Tribunal failed to have regard to any material put before it by the applicant other than material that it was entitled to regard as being precluded from consideration due to being inconsistent with an important factual finding on sentence. Even absent HZCP, it would have been open to the Tribunal to decline to reach a contrary view as to the applicant’s role to that formed by a judge imposing sentence after a jury trial and verdict.

28    The applicant has not established any jurisdictional error on the part of the Tribunal, including no failure by way of jurisdictional error to consider the relevant evidence before it that it was required to take into account, as asserted by the applicant. For completeness, I can find no more pedestrian error on this issue either.

Conclusion

29    The application must be dismissed with costs.

Associate:

Dated:    11 June 2020