Abd15 v Minister for Immigration

[2015] FCCA 2899

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2899

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) ss.36, 65
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
ABD15 v Minister for Immigration and Anor [2015] FCCA 837
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant: ABD15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 593 of 2015

Judgment of: Judge Emmett

Hearing date: 27 October 2015

Date of Last Submission: 27 October 2015

Delivered at: Sydney

Delivered on: 1 December 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 593 of 2015

ABD15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 10 March 2015, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 12 February 2015 and handed down on 13 February 2015 (“the RRT”).

2. On 17 September 2015, the applicant attended a directions hearing before a Registrar of the Court.  The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support.

3. At the request of the first respondent, the matter was listed for hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the RRT’s decision, as follows:

   “1. The applicant arrived in Australia on 30 March 2013 on a Tourist (Class TR) (subclass 676) visa (Court Book “CB” 99).  The applicant absconded from her tour group and applied for a Protection (Class XA) visa on 17 April 2013 (CB 1-30; 36).  A delegate for the Minister refused to grant the applicant the visa on 23 September 2013 (CB 48-61).  However, this decision was affected by jurisdictional error and set aside.  On 13 December 2013, a second delegate for the Minister refused to grant the applicant a protection visa (CB 98-111).

   2. On 8 January 2014, the applicant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), for review of the second delegate’s decision (CB 112-116).  On 9 September 2014, the Tribunal’s decision was quashed and the applicant’s application remitted to the Tribunal for reconsideration (CB 118-119).

   3. On 12 February 2015, following a hearing on 4 February 2015 (CB 126-128), the Tribunal, differently constituted, affirmed the decision under review (CB 130-151).  The applicant made an application to the Federal Circuit Court for judicial review of the Tribunal’s decision which was summarily dismissed by Judge Street on 2 April 2015: ABD15 v Minister for Immigration and Anor [2015] FCCA 837. This matter was remitted from the Federal Court to the Federal Circuit Court for reconsideration (NSD385/2015).

   Applicant’s claims

   4. The applicant claimed to fear harm on the following bases:

   4.1 The applicant’s husband sold her house and she has nowhere to live on return to China. In 2008, the applicant was forced to sell her house to the government.

   4.2 The applicant fled China to escape her husband who has beaten and harmed her in the past and was a drunk and a gambler. The applicant’s husband also forced her to sign with the bank to pay the difference for the new property they had to buy in 2008 following the government’s forced sale of their previous house.

   4.3 The applicant practised Falun Gong in China which led to several incidents with the authorities.  The applicant’s father was a Falun Gong practitioner who opposed the “crackdown” by the government in 1999 and was detained by the authorities.  He died in detention of a brutal beating although the government claimed it was due to a heart attack.  The applicant and her mother petitioned the authorities to seek justice. In 2012, the applicant, her mother and aunt were caught practising Falun Gong in their home which led to her interrogation by the police and other police incidents.

   4.4 The applicant was dismissed from her job following her father’s death and under these circumstances she lived a life of humiliation, hardship and discrimination.

   Tribunal decision

   5. The Tribunal found the applicant was not a “credible, truthful and reliable witness” and was of the view that the applicant had “fabricated claims and concocted evidence to achieve an immigration outcome” (CB 144; at [80]). This was based on significant inconsistencies in the applicant’s evidence across her written statements to the Department, her Department interview and the two Tribunal hearings.

   6. In making the comprehensive adverse credibility findings, the Tribunal considered the applicant’s claim that she is on medication and takes sleeping pills which makes it difficult to remember details (CB 144; at [81]).  The Tribunal also considered the applicant’s claim that she has been questioned so often it has affected her psychologically which affects her memory and ability to be consistent (CB 144; at [81]).  However, the Tribunal noted that “no independent evidence” had been provided as to the applicant’s mental state and ability to give evidence and was not satisfied that it had any effect on her ability to present consistent evidence (CB 144; at [81]). 

   7. On the basis of the inconsistencies set out at [64]-[78] (CB 140-143), the Tribunal did not accept the applicant’s claim that she was a genuine Falun Gong practitioner or that she had ever practised Falun Gong in China (CB 143-144; at [79]). The Tribunal also rejected the remainder of the applicant’s claims in relation to her Falun Gong practise including that her or her family were ever detained and questioned on any occasion (CB 143-145; at [76], [79], [83], [86]).  Although the Tribunal acknowledged that the applicant displayed some knowledge of Falun Gong, the Tribunal found that this was confined to generalities that would be “easily available publicly” and that this did not overcome the Tribunal’s credibility findings (CB 145; at [85]).

   8. On the basis of the inconsistencies set out at [45]-[48] (CB 138), the Tribunal did not accept that the applicant’s husband has threatened her recently or that she fears returning to China for any of the reasons she claimed in connection with her husband (at [87]).  While the Tribunal accepted that the applicant faced difficulties with her husband in the past when they were still together (CB 138; at [44], [49]) it did not accept that she suffered any difficulties from him since they separated in 2011 (CB 138, 145; at [49], [87]). 

   9. The Tribunal did not accept, on the basis of the inconsistencies in her evidence at [37]-[41] (CB 136-137), that the applicant’s husband sold the home and she has nowhere to live on her return home to China (CB 145; at [87]). The Tribunal also did not accept any of the applicant’s claims in relation to the forced sale of her earlier home in 2008 or that she would be “of any interest to the authorities as a result of these claims” (CB 145-146; at [88]).

   10. On the basis of the inconsistencies set out at [52]-[59] (CB 139-140), the Tribunal did not accept the applicant’s claim that she was fired or made redundant because of her father’s involvement in Falun Gong or because she petitioned the authorities regarding his detention (CB 140, 146; at [60], [89]).  The Tribunal further did not accept the applicant’s claim that she does not want to return to China because she will be unable to obtain employment (CB 140, 146; at [61], [89]).

   11. It followed that the Tribunal did not accept that at the time the applicant departed China in March 2013, she held any concerns for her safety or feared being harmed for any of the reasons she claimed (CB 146; at [90]).

   12. The Tribunal accepted that the applicant took part in Falun Gong demonstrations and lectures in Australia due to photographs provided but was not satisfied that the reason for undertaking these activities has been otherwise than to strengthen her claims (at [94]).  The Tribunal found it was bound by s 91R(3) of the Migration Act 1958 (Cth) (the Act) to disregard this conduct (CB 146-147; at [94]). Accordingly, the Tribunal found that there was no real chance that the applicant will be “identified, questioned, arrested, detained or interviewed by the Chinese authorities as a Falun Gong practitioner” (CB 147; at [95]). The Tribunal therefore found that the applicant did not face a real chance of persecution for any of the reasons claimed in relation to her or her family practising Falun Gong (CB 147; at [96]).

   13. The Tribunal was not satisfied that the applicant faced a real chance of persecution for any of the other reasons claimed (CB 147-148; at [97]-[101]) and having considered her claims individually and cumulatively, the Tribunal was not satisfied on the evidence that the applicant had a well-founded fear of Convention-based persecution (CB 148; at [102]).

   14. For the reasons given above, the Tribunal did not accept that the applicant faced a real risk of significant harm (CB 148, 150; at [103], [111]-[113]).

   15. In relation to the applicant’s participation in Falun Gong activities since arriving in Australia, the Tribunal noted that s 91R(3) of the Act did not apply in the complementary protection context (CB 148; at [104]).  Based on country information (CB 149; at [106]) and the applicant’s evidence, the Tribunal was satisfied that because of the limited nature and extent of the applicant’s involvement in Falun Gong activities and events and her likely behaviour on return to China, she would not be of adverse interest to the authorities (CB 149; at [108]).  Accordingly, the Tribunal found there were no substantial grounds for believing that there was a real risk that she will suffer significant harm for these activities (CB 149; at [109]).

   16. Having considered the claims individually and cumulatively, the Tribunal did not accept that the applicant met the criterion in s 36(2)(aa) of the Act (CB 150; at [114]).  Accordingly, the Tribunal affirmed the decision under review (CB 151; at [115]-[118]).”

7. The applicant was unrepresented before the Court throughout the proceeding, although had the assistance of a Mandarin interpreter on each occasion.

8. At the outset of the hearing on 27 October 2015, I raised with the applicant the fact that I am related to the Judge of this Court who summarily dismissed the applicant’s judicial review application on 2 April 2015 (ABD15 v Minister for Immigration and Anor [2015] FCCA 837). The applicant appealed that decision and the matter was remitted to this Court by consent. I invited the applicant to say anything she wished in relation to any concerns she may have about my hearing this matter in the light of that relationship. The applicant said that she did not object to me hearing the matter and it was on that basis that I proceeded to do so.

9. The applicant confirmed that she had not filed any document in support of her application save for an affidavit, sworn by her on 30 September 2015. The affidavit annexed a copy of the transcript of the hearing before the RRT on 12 February 2015.

10. I asked the applicant what was the relevance of the transcript, to which the applicant responded that she had it prepared and filed on the understanding that she was required to do so. There was no part of the transcript to which the applicant wished to take the Court and the applicant was unable to identify any ground or complaint to which the transcript may be relevant, beyond those identified in paragraph 2 of her affidavit. The affidavit was objected to by the solicitor for the first respondent, Mr Keevers, on the grounds of relevance. The affidavit was rejected by the Court at the hearing on that basis.

11. Following the hearing on 27 October 2015 (which is dealt with in detail below from paragraph 18 of these Reasons), I made the following Orders:

    “1. The name of the second respondent be amended to the ‘Administrative Appeals Tribunal’.

    2. The proceeding before this Court, commenced by way of application filed on 10 March 2015, is dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application does not raise an arguable case for the relief claimed.

    3. The applicant pay the costs of the first respondent fixed in the amount of $3,416.

    4. No orders be made in this matter until written reasons for judgment are settled.”

12. I note that Order 4 states that no orders were to be “made” until written reasons for judgment were settled. That is a typographical error and “made” should have read “entered”. However, for the purposes of what follows, I do not believe that such an error has any impact.

13. In settling these Reasons, I formed the view that the applicant had made an oblique and unparticularised allegation of bias on the part of the RRT in Ground 3 where it was stated “I thought the officer already made the judgment before the interview.” Whilst the applicant did not identify any part of the transcript in support of that allegation, I accept that a transcript could well be relevant to support such an allegation.

14. I also formed the view that because this matter had been remitted to this Court with the consent of the first respondent, who then requested that the matter be dealt with in this Court pursuant to r.44.12 of the Rules on the basis that the grounds of the application did not disclose an arguable case for the relief claimed, it may be that no order for costs should be made against the applicant.

15. For those reasons, on 4 November 2015, I made Orders in Chambers setting aside Orders 2, 3 and 4 of the Orders made by me at the show cause hearing on 27 October 2015.

16. The matter was then listed for further directions on 12 November 2015, for the purpose of admitting the applicant’s affidavit, sworn on 30 September 2015, into evidence

17. At the directions hearing on 12 November 2015, the applicant did not appear. However, the applicant’s affidavit, sworn on 30 September 2015, was admitted into evidence without objection. The solicitor for the first respondent, Ms Given, was invited to make any submission in relation to that affidavit and the annexed transcript. Ms Given neither objected to the affidavit being admitted nor sought to make any further submission on behalf of the first respondent in relation to that affidavit.

18. At the hearing on 27 October 2015, the applicant confirmed that she relied on the grounds of her initiating application, filed on 10 March 2015, as follows:

    “1. This is my second time to attend the RRT interview. However, the inconsistencies and refusal reasons raised in the RRT decision are almost same as the previous one in RRT decision. For example, my employment history, the event that my mother, Aunt Xu and I arrested in 2012 and · my two holidays, I have provided complete and compelling explanations and appeal to Federal Circuit Court successfully. If RRT keep stating these reasons, and doubt my credibility from the start, then attending RRT interview is meaningless.

    2. In addition, my evidences regarding to sale of house are non contradiction and my explanations are reasonable. My husband and I separated in 2005. In 2011, he seldom returned home. He must had an affair outside, so 1 told officer he moved out in 2011. I could only put up with my husband, because the house we were living was under his name. If I divorced with him, I would be homeless. In September, 2012, my mother passed away and I decided to leave China. So I divorced with him in November, 2012 and applied visa for going overseas. I arrived Australia in March, 2013. Later on I was told by my daughter that the property was currently vacant unless my daughter was on holiday from school. This is why I told the officer that the property was emptied during the interview. Also, l was also told by my daughter that my husband sold the property. Once I was threaten by my husband through phone of killing me if I return home. Over all, the property was under his name, but he barely stay at home overnight, in my opinion we still remained living under the same roof until my departure from China in 2013. RRT did not clarify my evidences or investigate dutifully, and then made these false conclusion. I think RRT should be impose an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will and the justice would surely be undermined. Therefore, I find the RRT's decision is not made properly and legitimately.

    3. Since 1 was suffer insomnia and under huge pressure, I only had limited ability to provide evidences, which totally conformed to reality. RRT made use of their advantages beating about the bush continually and making meaningless logical trap in the hearing. And in the absence of a comprehensive assessment of my case, the officer directly stated that my evidence is fabricated. Facing questions and doubts, my emotion was affected severely. I refused to communicate with such non-professional officer, since no matter how I answered the question, she already made the decision. I thought the officer already made the judgment before the interview. This ignored my own situation and was against the law. According to the law, RRT should make full sense of my own situation and not require excessive evidences.

    4. RRT did not follow the law considering I might be persecuted after return to China. Based on the above reasons, my evidences were realizable and true. If I return to China, my husband would harass me and I am devout Falun Gong practitioner. I conducted Falun Gong activities in Australia. When I go back China, the possibility that I will not give up the belief of Falun Gong is very high, so I will be persecuted by Chinese government. This possibility is sufficient, but RRT did not evaluated this and thought the appeal content was not true and was insufficient to accept that I would be persecuted by Chinese government.”

    (Emphasis added. Errors in original.)

1. Each of the grounds of the application was interpreted for the applicant and the applicant was invited to say whatever she wished in support of those grounds. The applicant said that she was telling the truth but had nothing further to say.

2. In Ground 1 of her application, the applicant appears to be asserting that inconsistencies found by the RRT and the reasons for a refusal were “almost same” as the previous decision by the Refugee Review Tribunal. The applicant cited in Ground 1 an example of her employment history and various other factual assertions. Ground 1 asserts that the doubts raised by the RRT as to the credibility of the applicant are the same as those raised at her previous interview with the earlier differently constituted Refugee Review Tribunal.

3. Until the Refugee Review Tribunal makes a decision according to law, its review function is not complete.

4. The RRT decision record makes clear that the RRT understood the procedural history of this matter and identified the issues before it as follows:

   i)the credibility of the applicant;

   ii)whether the applicant had a well-founded fear of persecution in relation to China under the Refugees Convention; and,

   iii)whether the applicant met the complementary protection criteria. 

5. The RRT then identified the relevant law for consideration of the applicant’s claims in relation to the refugee criteria and the complementary protection criterion.

6. The RRT commenced its consideration of the claims and evidence before it by identifying various pieces of documentary evidence. The RRT then considered in great detail whether the applicant was a credible witness. The fact that the RRT may have made similar findings about inconsistency in the applicant’s evidence as those found by an earlier Refugee Review Tribunal does not have the consequence that the RRT had failed to consider the applicant’s claims afresh.

7. The RRT rejected comprehensively the applicant’s claims of ever having been a Falun Gong practitioner and ever to have suffered the harm that she claimed to have suffered in China for that reason. The RRT found the applicant’s claims to be fabricated and that she had concocted evidence to achieve an immigration outcome.

8. The RRT’s consideration of the applicant’s credibility is comprehensive, detailed and reasoned. In particular, the RRT noted that it had allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. The RRT also noted that it was sensitive to the various cultural differences that can impact on an applicant’s responses to questions or to being questioned.

9. The RRT further noted that it considered the applicant’s claim that she is on medication; does not sleep; takes sleeping pills; has seen a GP last year and is affected psychologically, thereby affecting her memory. The RRT noted that no independent evidence was provided as to the applicant’s mental state or as to her ability to give evidence. The RRT noted that the applicant was able to answer questions as to her background and other matters clearly and without hesitation and did not accept any of the claimed medical reasons offered by the applicant as sufficient explanation for the inconsistencies in the applicant’s evidence.

10. The RRT did not accept that at the time she departed China in March 2013, the applicant held any concerns for her safety or feared being harmed for any of the reasons claimed. The RRT considered whether the applicant had a well-founded fear of persecution and met the protection obligations under both the Refugees Convention and the complementary protection criterion and concluded that she did not.

11. A fair reading of the RRT’s decision makes clear that the RRT considered the applicant’s claims afresh.

12. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

13. The RRT’s findings would appear to be open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

14. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

15. In the circumstances, Ground 1 does not raise an arguable case for the relief sought.

16. In Ground 2, the applicant appears to assert that the RRT was required to give reasons and that the RRT decision was not made properly or legitimately. There are no further particulars to support that bare assertion and no evidence, oral or written submissions were provided in support of that assertion.

17. As stated above, the RRT’s decision record is comprehensive and detailed, comprising some 118 paragraphs in its consideration of the issues it identified before it.

18. In the circumstances, Ground 2 does not raise an arguable case for the relief sought.

19. Ground 3 appears to identify particular findings with which the applicant disagreed, in particular, the finding that her evidence was fabricated. The applicant referred to her suffering from insomnia and the pressure that she felt. As stated above, the RRT was aware of these matters and considered them in some detail. The RRT provided reasons why, ultimately, they were not sufficient to explain or address the concerns that the RRT had about the applicant’s credibility.

20. Ground 3 also asserts that the RRT should not require “excessive evidences”. Such an assertion does not by itself identify an error capable of being a jurisdictional error on the part of the RRT. Section 65 of the Migration Act 1958 (Cth) makes clear that it is for an applicant to satisfy the RRT that they meet the criteria for a protection visa. In the event that the applicant fails to do so, s.65(1)(b) of the Act mandates that the decision-maker, in this case the RRT, must refuse the protection visa application.

21. Nothing was put by the applicant by way of oral or written submission to support the allegations made in Ground 3 that the RRT had prejudged the matter prior to the interview. Whilst the applicant tendered a copy of the transcript of the RRT hearing, as stated above, no reference was made to that transcript by the applicant in support of any of her grounds for judicial review. Moreover, there is nothing on the face of the transcript to suggest that the RRT approached its task other than with a mind open to persuasion. The mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). There is nothing on the face of the RRT’s decision record to suggest that there was any bias on the part of the RRT.

22. In the circumstances, Ground 3 does not raise an arguable case for the relief sought.

23. Ground 4 makes the bare assertion that the RRT did not evaluate the risk of persecution to the applicant if she was to return to China. However, having regard to:

    ·the RRT’s comprehensive rejection of the applicant’s claims to fear persecution;

    ·its finding that any fear she expressed was not well-founded; and,

    ·its rejection of her claim to meet either the Refugee Convention criteria or the complementary protection criteria, in circumstances where the RRT considered in detail those obligations,

    the applicant’s bare assertion that the RRT did not evaluate the applicant’s claim is not made out. In light of the RRT’s comprehensive rejection of the applicant’s claims ever to have been a Falun Gong practitioner or to have suffered harm for that reason in China, there was otherwise no obligation on the RRT to consider further any risk of harm to the applicant in China, beyond its consideration of whether the applicant met the complementary criterion in s.36(2)(aa) of the Act.

24. As stated above, a fair reading of the RRT’s decision record makes clear that the RRT understood made by the applicant, explored those claims with the applicant at a hearing and put to the applicant matters of concern it had about her evidence and noted the applicant’s responses. The RRT appears to have made findings that were open to it on the evidence and material before it and for the reasons it gave and to which it applied the correct law.

25. In the circumstances, Ground 4 does not raise an arguable case for the relief sought.

26. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT capable of establishing jurisdictional error and none is apparent on the face of the decision record.

27. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 10 March 2015, should be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 1 December 2015