ALU15 v Minister for Immigration
[2015] FCCA 1912
•9 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALU15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1912 |
| Catchwords: MIGRATION – Protection (Class XA) visa – where applicant relied upon a document relating to his arrest and detention – whether tribunal misdescribed the document – whether misdescription material – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.46A(1) |
| Minister for Immigration v SZIAI [2009] HCA 39 |
| Applicant: | ALU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUANL) |
| File Number: | BRG 314 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 July 2015 |
| Date of Last Submission: | 9 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 9 July 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Tempest |
| Solicitors for the Applicant: | Sirus Migration |
| Solicitor for the First Respondent: | Ms Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 15 April, 2015 be dismissed.
The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 314 of 2015
| ALU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUANL) |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
By his application filed on 15 April, 2015 the applicant seeks judicial review of a decision of a refugee review tribunal that was made on 12 March, 2015. That decision affirmed a decision of a delegate of the first respondent made in September, 2013 to refuse to grant to the applicant a Protection (Class XA) visa.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
When the proceedings first came before the Court on 18 May, 2015 directions were made for each of the parties to file written submissions. Both the applicant and the first respondent have filed written submissions. For clarity, at the commencement of this hearing, I confirmed with the applicant’s representative that his written submissions are contained in the document filed on 15 June, 2015 and headed “Statement of Reasons”.
I also confirmed that the document filed 15 June, 2015 (in the form of an application in a case) contained in the grounds of review upon which the applicant intended to rely at this hearing. Those grounds differed markedly from the grounds that were set out in his original application filed on 15 April, 2015. It is the latter application upon which the applicant now moves the Court, not the former. The grounds set out in the former application have been abandoned.
Background
The applicant is a citizen of Sri Lanka, He is of Tamil ethnicity and the Hindu religion. He arrived in Australia on 20 June, 2012 by boat without valid travel documents, although he did have photocopies of his Sri Lankan passport, birth certificate and driver’s licence to support his claims of identity and his claims of Sri Lankan citizenship.
Because the applicant was an irregular maritime arrival, it was necessary for the first respondent to “lift the bar” presented by s.46A(l) of the Migration Act 1958 (Cth). The first respondent did so and permitted the applicant to make a Protection visa application. The application was made on 13 November, 2012.
The applicant was provided legal representation to prepare his application for the visa and he prepared or had prepared for him, on his instructions no doubt, a written statement. In that statement he expressed his fears as follows:
28. I fear that I will arrested, kidnapped and killed if I return to Sri Lanka because I am a Tamil and have a case pending in Sri Lanka for suspicion of involvement with the LTTE. My situation now is worse than when I was in Sri Lanka because I no longer have the money to bribe the local police and because the authorities will come to know that I left the country illegally and sought asylum in another country. They can do whatever they want to me because I am Tamil.
The basis of the applicant’s fears was also set out in his written statement. In particular, he claimed that in February, 2008 a man stayed at a boarding house that he owned or managed. The applicant did not register with the police that the man was staying with him (as he apparently was required to do). The man was arrested by the police in April, 2008. At the time of the man’s arrest the police searched the man’s room and found material that the applicant descried as “LTTE materials”.
Consequently, the applicant said, he was taken “by the police to Kotahena Police station for enquiry”. He claimed that he was held there for 14 days. He was accused of being a LTTE supporter because he had allowed the man arrested by the police to stay at his boarding house. During that period, he says that he was severely beaten each day. He has an ongoing injury from his treatment. Each day he claims, the police would ask him to identify people. His brother asked the police to take the applicant before a court, but they refused saying that the applicant was arrested under “the Anti Terrorism Act” and would not be bought before a court. He claimed that he was released when his brother brought “an important person to ask about me”. After his release, he says that he was in hospital for two days.
Further, after his release, he claimed that the police made demands of him and his brother and asked him for money and liquor. He was required to go to the police station to identify people detained there from time to time and at the request of the police. He says that the police threatened him with a false case of being an LTTE supporter if he did not cooperate.
The applicant says that he was able to leave Sri Lanka to work in Dubai in 2008. The organisation for which he worked was able to bribe officials so that he could leave the country. While he was away, he claimed, the police continued to harass his brother. He returned to Sri Lanka so as to ease the attention on his brother, which was affecting his brother’s marriage. When he returned, his brother and his wife moved to another area in Sri Lanka.
The applicant returned from Dubai in December, 2009. He told the police of his return and asked them to leave his brother alone. He claimed that the police continued to threaten him and demand bribes and favours.
He left again in September, 2011 with a plan to travel to Europe via Malaysia “for a safe life”. His plan did not come to fruition and he returned to Sri Lanka in December, 2011.
The applicant claimed that in December, 2011 he sold a car to a Tamil man rather that a Muslim person that wanted to buy the vehicle. The vehicle is described as a three wheeler in the material. He claimed that the police went to his house and questioned his mother and slapped her. He was taken to the police station and held for one day. He claimed that a senior officer came and said that “I was still a pending case there”. The police threatened to kill him and throw his body where it could not be found if he sold cars to Tamils again without letting them know.
He claimed that he was threatened many times after that incident and fled the country by boat in June, 2012.
He claimed that after he fled the country, his family continued to be harassed by the police. Singhalese people said to his sister that he was a member of the LTTE and that their entire family were supporting the LTTE. He claimed that his parents and his sisters moved away from that area to a Tamil area.
He claimed that the police also went to his father’s shop and said that they knew that he had fled and that they would catch him when he got back. They asked his father for a bribe. They also asked his brother about his whereabouts.
The applicant also said in his written statement that during his first interview after arriving in Australia he was asked if he had any documents about his arrest in 2008. He says that he asked his family to see if they could get evidence of his arrest. He said that his mother arranged for another person, to go to the local police station and ask for documents about his arrest in 2008, but the police gave him nothing.
He says that he suggested that the person should tell the police that the applicant wanted to apply for a passport and to ask for a police clearance. They are the words of the applicant’s statement. The applicant’s friend did that and he was referred to the police headquarters. The applicant’s friend subsequently received a letter from the police in the mail.
The applicant was interviewed by a delegate of the first respondent on 16 April, 2013. On 20 September that year, the delegate refused to grant the Protection visa applied for by the applicant. The delegate was not satisfied that the applicant was charged with terrorism in 2008 or that he was of interest to the authorities in terms of links to the LTTE. He was released without any condition, court hearings or charge following his supposed arrest in 2008.
On 27 September, 2013 the applicant, with legal assistance, applied for the first respondent’s decision to be reviewed by a refugee review tribunal.
On 24 December, 2014 the applicant was invited to attend a hearing before a tribunal on 6 March, 2015. The invitation pointed out that whilst the tribunal had considered the material before it, it was unable to make a favourable decision on that information alone. The applicant was requested to provide any new information he wished the tribunal to consider.
The applicant and his representative appeared before the tribunal at a hearing on 6 March, 2015. The applicant’s legal representative provided a written submission to the tribunal following that hearing. That submission is provided on or about 11 March, 2015.
On 13 March, 2015 the tribunal notified the applicant, through his agent, that it had determined to affirm the decision under review.
The tribunal gave written reasons for its decision. At paragraph 21 of the tribunal’s reasons, it summarises its findings about the applicant’s claims as follows:
21. The tribunal discussed its credibility concerns throughout the hearing with the applicant. The tribunal was mindful to MRT-RRT guidance on assessment of credibility. However having heard the evidence and his explanations the tribunal finds he has exaggerated and fabricated his claims as discussed below. In summary, the applicant’s claims lacked credibility, were inconsistent , vague and hesitant and he provided a non-genuine police clearance document.
Thereafter in its reasons the tribunal discussed and made findings about each of the claims made by the applicant. It is not suggested in these proceedings that the tribunal did not understand the claims being made by the applicant or that it did not deal with any of the particular claims made by him.
The tribunal did not accept that the applicant was arrested, detained and beaten for 14 days in 2008. The tribunal rejected the applicant’s claims that he had forgotten to register his boarder and that the one person he forgot to register happened to be a LTTE member. The tribunal found that curious. It determined that the applicant’s claims about that lacked credibility. Further, the tribunal did not accept that a LTTE affiliated person would choose to live in the applicant’s property, which according to the evidence, was next door to the police station. The tribunal considered that the applicant’s account of his detention was cursory and lacked detail or description of what happened over the 14 days of his detention.
The tribunal found that the document that the tribunal referred to as the police clearance certificate that had been provided to it by the applicant, or at his request, was not a genuine document. There were several reasons given by the tribunal for that finding. Those reasons included:
a)that there were errors in the document (identified by the tribunal) which went beyond mere typographical errors. Spelling and capitalisation are some examples;
b)the form of the document;
c)the assertion in the document that the applicant was still wanted by the police, which seemed to the tribunal to be inconsistent with the applicant’s own evidence that prior to his final departure from Sri Lanka:
i)he drank and socialised with the police regularly and lived next door to the police station;
ii)he continued to manage two rental properties and buy and sell three wheeler vehicles;
iii)the applicant was able to travel in and out of Sri Lanka via the airport with his own passport on four occasions.
The tribunal recorded in its reasons:
30. The tribunal is of the view that the police and authorities were well aware of where he lived and if interested in him could have contacted him. He had had two passports issued, visas issued to Dubai and Malaysia and travelled in and out Sri Lanka four times. Country information is that there are stop and watch lists at the airport for LTTE suspects, criminals and anyone wanted by police, intelligence or CID. If he were on any of those lists he would have been stopped.
And then later at:
32. The applicant has not been in hiding and has continued to have work and live in the same area. In fact, on his evidence even when he came back from Dubai, he told the police and brought them some alcohol and drank with them. On his evidence he regularly socialised and drank with them. If he was of interest to them, they had regular access and would have arrested him at any time, but did not.
33. The tribunal does not accept that if he did not drink with them or bribe them with alcohol that he would have been arrested or accused of LTTE. The tribunal does not accept he was fearful of them. If he were, it does not make sense that he would engage socially with them or remain managing a rental property next door to the police station. Further, given their regular socialising, it is not credible that the police would then accuse of him of being LTTE, as it would reflect poorly on them given he lived next door to the police station and that they had· continued socialise with him.
34. At the end of the hearing, the applicant said it was the Kotenaha police station he had problems with and not the one in his area. However, the tribunal considers the applicant was making up his story and added this as an afterthought in response to tribunal concerns that he could socialise with police but still be “wanted”. Further, the tribunal confirmed with him that the police station where he was supposed to register his guests in 2008 was next door to the, rental property.
35. In addition, country information is that at the end of the conflict many thousands of LTTE, suspects were rounded up, arrested, detained and sent to rehabilitation camps. The fact that the applicant was not so detained suggests he was not suspected LTTE. The fact that he and his family could continue with their businesses also suggests they were not of interest to authorities. The tribunal does not accept he (or his family) was accused or will be accused of being LTTE.
The tribunal did not accept that the applicant was questioned about the vehicle he sold in 2011 and found his evidence in that regard vague and inconsistent with his statement.
The tribunal considered the country information set out by it in its reasons. It did not accept that because the applicant was Tamil, or a young single male Tamil, or because he lived next door to and associated or drank with police that he was, or would be, perceived or accused of being an LTTE supporter or having LTTE links.
The tribunal also considered country information in relation to the treatment of returned failed asylum seekers and did not accept that the applicant would face a real chance of serious harm if he returned to Sri Lanka.
The tribunal did accept that the applicant would be charged for his illegal departure under a Sri Lankan law and that he would be bailed and fined up to 50,000 rupees. However, it did not accept that the applicant faced a real chance of torture, interrogation or mistreatment upon arrival or during any questioning process to establish his identity and bail. The tribunal did not consider that the applicant was at risk of being detained under the Prevention of Terrorism Act (Sri Lanka). Nor did the tribunal consider that the applicant faced a real chance of serious harm from other Sinhala prisoners given that he would be in remand for a short period of time. The tribunal did not consider that what was likely to be a short period of time in detention upon his return would amount to serious harm for the purposes of the Migration Act.
The tribunal found the Sri Lanka departure laws are laws of general applicant and therefore the enforcement of those laws did not constitute persecution. The tribunal assessed the applicant’s eligibility for complementary protection and it considered that there was no real risk of significant harm to him.
Grounds of review
The applicant’s current grounds of review, as I have already indicated, are set out in his application in a case filed 15 June, 2015. There are 6 grounds of review.
The applicant’s current grounds of review are set out in the application in a case as follows:
Grounds of application
Decisions of the tribunal are privative clause decisions and therefore reviewable by the Federal Circuit Court under s 476 (l) of the Migration Act. Members of the tribunal are also officers of the Commonwealth for the purposes of s 75(v) of the Commonwealth Constitution and therefore amenable to the constitutional writs.
1. The tribunal identified a wrong issue:
Particulars:
The tribunal mistakenly identified the copy of the Police statement as a “Police Clearance Certificate” and determined that the “Police Clearance Certificate” is not a genuine document. In fact the alleged “Police Clearance Certificate” does not exist therefore the tribunal identified a wrong issue.
2. The tribunal reached a mistaken conclusion:
Particulars:
Based on the alleged “Police Clearance Certificate” and information relating to the requirement for the police clearance clearance in Sri Lanka, the tribunal concluded that the alleged “Police Clearance Certificate” is not a genuine document. This conclusion is erroneous because the “Police Clearance Certificate” does not exist.
3. Taking into account irrelevant considerations:
Particulars:
The tribunal made its finding taking into account of the alleged “Police Clearance Certificate” that is non-existent, thus the irrelevant considerations were taken.
4. The tribunal Ignored Relevant Material:
Particulars:
The police statement is a crucial piece of evidence to show that the Applicant was arrested by the police under suspicion of being a terrorist during 16/04/2008 to 30/04/2008. This evidence is central to the Applicant’s claim that he was persecuted by the police for being a LTTE supporter. The tribunal failed to consider the relevance of this document to the Applicant’s claim prior to the conclusion that the document is not genuine.
5. Failure to initiate an inquiry:
Particulars:
The tribunal did not initiate an inquiry as to the genuineness of the police statement as the tribunal applied the requirement for the application of the “Police Clearance Certificate” to the police statement. The tribunal failed to initiate an inquiry as to the genuineness of the police statement.
The tribunal based its findings heavily on the alleged “Police Clearance Certificate”; the accumulative effect of the above grounds is that the tribunal made the erroneous findings that the Applicant was not persecuted by the police and did not have the LTTE link and will not be persecuted if he is to return to Sri Lanka.
Had the tribunal considered the relevance of the police statement and taken into account of the weight of the evidence to support the Applicant’s claim, the existing findings would be reversed.
6. Failure to initiate an inquiry:
Particulars:
The tribunal was instructed by the applicant that he had in Sri Lanka, bills of his hospital stay for the period following his detention and sustaining of injuries from the torture and assault inflicted upon him by the authorities.
The tribunal had actual knowledge of the bills but failed to initiate an inquiry to obtain the bills.
The tribunal failed to consider the relevance of the hospital bills to the Applicant’s claim.
Had the tribunal considered the relevance of the hospital bills and taken into account of the weight of the evidence to support the Applicant’ s claim, the existing findings would be reversed.
The arguments made by the applicant in the written submissions delivered on his behalf by his lawyers do not expand upon the grounds of review in any fulsome way.
First, they argue that:
29. …the tribunal has identified the wrong issue by identifying the document of page 44 of the Green Book as being a “Police Clearance Certificate”. A police clearance certificate contains a heading “Police Clearance Certificate” and is addressed to the agency requesting it. A police clearance certificate contains a watermark stamp. An application form is completed and a fee paid to obtain a “Police Clearance Certificate”. We have submitted for the Court’s ease of understanding, a copy of a “Police Clearance Certificate” obtained by an individual unrelated to this matter. The “Police Clearance Certificate” was required for migration purposes and accepted by the Department of Immigration and Citizenship as a genuine docurnent.
30. The document provided to the Department of Immigration and Citizenship and relied upon by the Refugee Review tribunal at page 44 of the Green Book was sought by the applicant to establish his detention with the Police in Kotahena. The document was obtained by a relative in Colombo and was provided by the Colombo Police Headquarters as per the request.
31. The applicant instructs that he did not identify the document to the tribunal or to the Delegate of the Department of Immigration and Citizenship as it being a “Police Clearance Certificate”.
32. The tribunal mistakenly identified the copy of police statement as a “Police Clearance Certificate” and determined that the Police Clearance Certificate” is not a genuine document. In fact the alleged “Police Clearance Certificate’ does not exist therefore the tribunal identified a wrong issue. The tribunal took into account irrelevant considerations. We respectfully submit to the Court that had the tribunal treated the document under its true existence namely a police report of arrest and detention, the tribunal may very well have established that the applicant had in 2008 been suspected of having links to the LTTE. Such a conclusion then may have very well led to a favourable decision of the application for review.
Secondly, they argue that:
33. Instead the tribunal reached a mistaken conclusion and rejected the applicant’s claims of being suspected LTTE and did not accept the applicant was of adverse interest to the authorities so therefore is not within a risk profile. The tribunal based its findings heavily on the alleged “Police Clearance Certificate.” Had the tribunal considered the relevance of the police statement and taken into account of the weight of the evidence to support the Applicant’s claim, the existing findings would have been reversed.
Thirdly, the applicant argues that:
34. … The tribunal was advised by the applicant at paragraph 26 of the decision that he had hospital bills in relation to his stay with the injuries sustained while tortured and assaulted in prison. Thus the tribunal had actual knowledge of the bills, yet failed to request them.
Fourthly, they argue that:
35. The tribunal’s failure to request the bills led the tribunal to mistakenly conclude that the applicant did not stay in hospital as a result of injuries sustained while tortured and assaulted in prison.
Fifthly, they argue that:
36. The tribunal reached a mistaken conclusion and found that the applicant would not be at risk of harm upon returning to Sri Lanka. That he would be subjected to a fine for departing illegally and possible detention.
Sixthly, they argue that:
37. The tribunal acknowledged that persons of interest who have associations with the LTTE (real or perceived) have reportedly suffered torture and abuse from the authorities upon returning to Sri Lanka. Had the tribunal conducted the inquiry into requesting the hospital bills, the tribunal would have quite likely determined that the applicant may fall into the category of persons of interest and be at risk of serious or significant harm upon return to Sri Lanka.
The last three points or arguments appear to be connected.
The applicant’s argument concerning the “police clearance certificate” seems to be centred upon the tribunal’s use of that phrase to describe the document produced by the applicant to the tribunal to corroborate his claim that he was arrested and detained by the police in 2008.
The document produced by the applicant in fact corroborates his claims. It provides that he was arrested and detained on suspicion of terrorism, that he was released on a certain date and that he is still wanted in Sri Lanka.
The applicant’s own evidence describes the documents that he sought to obtain from the police as a police clearance. That is his written statement. Later, orally to the tribunal it was described as a police certificate. I accept that at no point in any of the evidence before the tribunal was it referred to as a police clearance certificate.
The material that the applicant seeks to place before me now to demonstrate what it is that a police clearance certificate is and how one obtains one is clearly inadmissible. I pay no attention to it at all because it was not placed before the tribunal in any way, shape or form. It is inappropriate for this Court to have that evidence.
In my view, nothing turns on the description applied to the relevant document by the tribunal. Whether the tribunal described it as a police clearance or a police certificate or a police clearance certificate is neither here nor there. What the tribunal has done is to determine that that document is not reliable and it has determined that it is not reliable for a number of reasons.
First, insofar as the applicant’s case before me is based on the notion that the tribunal has misapprehended the nature of the document because of the way the tribunal has described it, that was a description as I have sought to indicate in the evidence that in one way or another was applied to the document by the applicant or his advisors themselves. Admittedly, not the entire description, police clearance certificate, but certainly combinations and permeations of those words.
In his visa application statement, the applicant claimed that he had asked his mother to arrange for another person to go to the local police and ask for documents about his 2008 arrest. When they would not provide them he arranged for his friend to get a police clearance. A document was produced in response. The applicant said that “his friend obtained his police certificate”. The applicant’s evidence was that a police clearance had been applied for and a document.
Secondly, the tribunal’s reasons reveal that the tribunal properly understood the purport and contents of the document. The tribunal understood that the document was being produced in an effort to corroborate the applicant’s claims that he had been arrested and detained in 2008. The tribunal’s analysis of the content of the document informed, at least in part, the tribunal’s finding that the document was not genuine.
As the first respondent points out, if there has been a misdescription of the title or description of the document by the tribunal, in any event, that misdescription is an error of fact. The relevant fact is not a jurisdictional fact and therefore is not amenable to judicial review on an application such as this.
As to the tribunal’s analysis and determination of the content of the document, the tribunal’s reasons reveal that the tribunal carefully assessed the content of the document against the applicant’s other claims. That the tribunal determined the document was unreliable having regard to the other evidence given by the applicant is unremarkable and is simply a demonstration of the fact finding function of the tribunal.
In Minister for Immigration v SZIAI [2009] HCA 39 the High Court set out the limited circumstances in which a tribunal might be obliged to make its own inquiry about a particular matter or matters. According to the High Court, it is only where there was a failure to make an “obvious inquiry of a critical fact, the existence of which is easily ascertained” could an argument be made that a jurisdictional error may have occurred: at [24]. When one reads the amended application and the grounds of review set out in it, one might be forgiven for thinking that the assertion that there had been a failure by the tribunal to make an obvious enquiry of a critical fact related to the tribunal’s failure it is said, to request copies of the relevant hospital documents. But in oral argument before me, the applicant suggests that the tribunal was in fact under some obligation to make an enquiry about the police certificate or the police clearance certificate or the document that was produced by the applicant in answer to a request for some evidence to support his detention in 2008. I do not understand the argument. I do not understand the enquiries that are now said the tribunal ought to have made. An enquiry about a police certificate of itself says nothing.
The document was a document produced by the applicant. The tribunal was entitled to make of that document what it wished. That was its function – to determine whether the document was reliable and if so what weight might be placed on it having regard to the issues the tribunal needed to determine. But beyond that, it is difficult to see what enquiries the tribunal might have been required to make in respect of the document. None were clearly or sufficiently articulated in argument to elaborate the point any further. To the extent that the applicant’s case before me rests upon the notion that the tribunal has made a jurisdictional error because it has misdescribed the police certificate or the police clearance or the police clearance certificate, whatever it might be described, but the document at page 44 of the Court Book, the applicant’s case must fail.
The tribunal assessed the document as I have indicated and made findings about it as it was entitled to do. That it has misdescribed it did not, in my view, affect the tribunal’s assessment of the genuineness or authenticity of the document. Nor does the misdescription, if there be one by the tribunal of the document, amount to a jurisdictional error because at best that was an error of fact on the part of the tribunal.
Finally, to the extent that the applicant argues that the tribunal ought to have requested from the applicant copies of bills or accounts for his hospital stay for the period following his detention and the sustaining of injuries from the torture and assault inflicted upon him by, he says, the authorities, in my view the tribunal was not obliged to ask for those documents. Rather, if the applicant wished to provide them to the tribunal he was at liberty to do so. He was represented, he had made representations upon his initial visa application, he had made representations when the matter was before the tribunal and had attended the hearing and his representatives had made further written submissions following the hearing. The applicant was provided with ample opportunity to place before the tribunal whatever it was that he wished the tribunal to have. That the tribunal did not ask to see particular documents that the applicant asserted that he had is no failing on the part of the tribunal. It is ultimately for the tribunal to arrive at a certain level of satisfaction having regard to the material placed before it. In this particular case, having regard to the material placed before it, the tribunal was unable to reach the level of satisfaction that was required.
In all of those circumstances, I am not satisfied that the tribunal is infected by jurisdictional error. The application must be dismissed.
RECORDED: NOT TRANSCRIBED
Ordinarily in proceedings under the Migration Act, costs follow the event. Costs should follow the event unless there are special circumstances demonstrating that another order for costs or no order for costs is appropriate. Impecuniosity does not amount to special circumstances. In those circumstances, I order the applicant to pay the first respondents costs of and incidental to the application fixed in the sum of $5,800.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 15 July 2015
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