[blml] Any redress or rub of the green [SEC=UNOFFICIAL]

[richard.hills at immi.gov.au]

Herman De Wael asserted:

>>...the lawbook says we should rule MI if the
>>explanation does not conform to the CC, the
>>lawbook is silent about the reverse.

Herman De Wael again asserted:

>Isn't that true?
>The footnote says that the TD should rule MI
>rather than misbid in the absence of evidence,
>OK?
>
>So, in all cases where a CC is present, there
>are only 2 possibilities: either the spoken
>explanation conforms to the CC, or it doesn't

Richard Hills begs to differ:

More possibilities than two.  For example, both
the CC and the spoken explanation could be
wrong in different ways.

Herman De Wael again asserted:

>(of course the explanation does not conform to
>the hand, or we would not be having a ruling
>to make).

Richard Hills begs to differ:

No ruling?  A De Wael School explanation which
conforms to partner's hand could still be the
infraction of misexplanation, if the explainer
has illegally customised their explanation to
conform with partner's misbid, rather than to
describe mutual partnership agreement.

Herman De Wael again asserted:

>Now, if the explanation does not fit the CC,
>there is surely no evidence present to make
>believe that the explanation was correct after
>all, was there?
>
>That is what I meant by "we should rule MI if
>the explanation does not conform to the CC".

Richard Hills begs to differ:

We have had this debate before.  In my opinion,
verbal evidence is evidence.  Self-serving
contemporaneous verbal evidence may usually
have less weight than pre-existing written
evidence in the scales of justice, but it does
not have _zero_ weight.  And, in some cases, a
TD may rightly judge that self-serving verbal
evidence does indeed outweigh pre-existing
written evidence in the scales of justice.

On the other hand, the De Wael School chooses
to interpret "the Director is to presume
Mistaken Explanation, rather than Mistaken Bid,
in the absence of evidence to the contrary" as
meaning "in the absence of _written_ evidence
to the contrary", which is consistent with the
overall De Wael School preference that it is
more correct to explain partner's cards than it
is to explain mutual partnership agreements.


Best wishes

Richard James Hills, amicus curiae
National Training Branch, DIAC
02 6223 9052

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