AUG16 v Minister for Immigration
[2017] FCCA 2755
•11 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUG16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2755 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka on various bases – applicant not believed – whether the Tribunal erred in applying the relocation test or whether it made a finding unsupported by evidence considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 375A, 438, 477 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 AVO15 v Minister for Immigration [2017] FCA 566 BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 BEG15 v Minister for Immigration [2017] FCAFC 198 |
| Applicant: | AUG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 822 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 13 October 2017, 10 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
ORDERS
The application as amended on 19 October 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 822 of 2016
| AUG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 February 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Hindu Tamil citizen of Sri Lanka born in 1992. He departed Sri Lanka by boat on 30 May 2012 and arrived in Australia on Christmas Island on 20 June 2012.[1] He participated in an Irregular Maritime Arrival Entry Interview on 10 August 2012.[2]
[1] Court Book (CB) 31
[2] CB 2
The applicant applied, with the assistance of a migration agent, for a visa on 29 October 2012.[3] The delegate refused to grant the visa on 7 March 2013.[4] A previously constituted Refugee Review Tribunal (first Tribunal) affirmed that decision on 16 June 2014.[5] The applicant successfully sought review of that decision in this Court, with the matter being remitted by me on 26 June 2015.[6]
[3] CB 17
[4] CB 126
[5] CB 186
[6] CB 203
The applicant appeared before the Tribunal on 8 September 2015, accompanied by a registered migration agent.[7] The hearing was conducted with the assistance of a Tamil interpreter. On 9 February 2016, the Tribunal affirmed the decision under review.[8]
[7] CB 217
[8] CB 231
Applicant’s claims
The applicant fears harm for the following reasons:
a)he is a Tamil male;
b)his links to Sri Lanka’s north and east, former strongholds of the Liberation Tigers of Tamil Eelam (LTTE);
c)his father’s profile as a Tamil male who continued to reside in Trincomalee during the war;
d)his links to a United National Party (UNP) candidate;
e)he departed Sri Lanka illegally;
f)he sought asylum in Australia; and
g)his imputed LTTE links as a result of the above.
The applicant’s main claims in his protection visa were as follows:
a)involvement of his father with the LTTE: the applicant claimed that his father was detained for questioning about possible LTTE links in 1992. After his release, the applicant’s father moved to Trincomalee, but returned to Negombo to visit from time to time. His father’s movements attracted the attention of the Criminal Investigations Department (CID) which led to further scrutiny and questions. In 2007 his father left to work in Saudi Arabia. The applicant claimed that he would be persecuted in Sri Lanka due to his father’s links with the LTTE;
b)support for UNP candidate in local elections: in 2011, the applicant supported his local candidate from the UNP, which was the main opposition party. The applicant claimed that due to his support for this candidate, the CID and others threatened him and came searching for him. He went into hiding before deciding to flee Sri Lanka; and
c)departure from Sri Lanka illegally and having sought asylum in Australia: the applicant also claimed that he would be imputed with having links to the LTTE and would be persecuted on his return to Sri Lanka due to having left Sri Lanka illegally and as a failed asylum seeker.
Tribunal decision
The Tribunal found that the applicant was “a very unreliable witness in this matter”.[9] The Tribunal’s findings in respect of the applicant’s claims were as follows:
a)the Tribunal did not accept that the applicant’s father had “any kind of negative political profile with the authorities, whether or not he was briefly interrogated in 1992 (some quarter of a century ago at an early stage of a long-since ended civil war)”, based on the father’s travel on a Sri Lankan passport during and since the war. It followed that the Tribunal did not accept that the authorities or anyone else considered there was a link between the applicant and the LTTE based on his father’s activities;[10]
b)the Tribunal accepted that the applicant supported the local UNP candidate in 2011 but gave this little weight. It gave more weight to the changed political circumstances in which the UNP was now in government. The Tribunal did not accept that the applicant’s support for the UNP caused political opponents or the authorities to link the applicant with the LTTE, and found that the applicant’s claims of harassment on this basis were “inconsistent and entirely unreliable”. The Tribunal did not accept that the applicant’s brother was in hiding and it gave no weight to a letter dated 19 May 2015, purportedly of a “police officer in charge” in “Negombo”, which the applicant produced after the hearing;[11]
c)the Tribunal accepted that returnees to Sri Lanka were subjected to questioning in relation to their identity and possible breaches of immigration laws upon arrival, but found that this was a result of a law of general application. The Tribunal was not satisfied that the conditions faced while being questioned at the airport or in remand would rise to a level of serious harm instanced by s.91R(2)(a) of the Migration Act 1958 (Cth) (Migration Act). Further, any consequence of a breach of the Sri Lankan Immigrants and Emigrants Act 1949, as a person who left Sri Lanka illegally or as a failed asylum seeker, would be as a result of the non-discriminatory application of the legislation and would result in no more onerous penalty than a monetary fine. The applicant’s status as a failed asylum seeker would not give rise to imputations, separately or cumulatively, that he supported the LTTE so as to give rise to a real chance of persecution in Sri Lanka;[12] and
d)the Tribunal, having given weight to UNHCR observations and the unremarkable circumstances of the applicant’s family in Sri Lanka, also concluded:[13]
[h]aving considered all of the evidence before me, including all of the factors that the applicant asserts as distinguishing himself from other members of his family, I am not satisfied that the applicant faces a real chance of persecution in Sri Lanka in the reasonably foreseeable future for separate or cumulative reasons of being a male adult Hindu Tamil with links to the North or East.
[9] CB 252, [72]
[10] CB 252, [73]-[74]
[11] CB 252, [75]
[12] CB 252-253, [76]-[82]
[13] CB 253, [83]
The Tribunal therefore did not accept that the applicant was a person to whom Australia owed protection obligations for the purposes of s.36(2)(a).
The Tribunal also found that s.36(2)(aa) did not give rise to protection obligations in the present case. The applicant’s claims either failed due to credibility reasons, or failed to satisfy the “real risk” test due to cumulative factors.[14]
[14] CB 255, [93]
The current proceedings
These proceedings began with a show cause application lodged on 4 April 2016. The applicant filed an amended application on 3 October 2017 on which he relied at the commencement at the trial of this matter on 13 October 2017. It was pointed out to the solicitor for the applicant at that time that, although the original application had not been filed within the time period prescribed in s.477(1) of the Migration Act and that the applicant therefore required an extension of time, no extension of time had been sought in the original or amended application. This provided an obstacle to the Court dealing with the matter under s.477(2).
I adjourned the hearing and provided the applicant the opportunity to file a further amended application within seven days with an accompanying affidavit relating to the extension of time issue.
A further amended application was filed on 19 October 2017 which sought an extension of time and raised the following grounds of review:
Ground 1
The AAT committed jurisdictional error by incorrectly applying the relocation test.
a. At [46] the AAT member stated “I am not satisfied on the evidence before me that the applicant would be unable to move safely and practicably to a different neighbourhood in or near Negombo if he felt uncomfortable in a particular address. On the evidence before me, I have given this particular claim little weight.”
b. It appears the AAT at [46] was referring to the “relocation principle”. Instead of applying the “reasonable test” when applying the relocation principle the AAT applied a different test, a test founded of “safety and practicably” within the same area the Applicant resides (i.e. Negombo).
c. The AAT did not consider the Applicant's responses, when he was asked why he could not relocate to a different “neighbourhood”. The Applicant stated at [46] that he had to register with the police if he was to relocate.
d. The Applicant claimed to have faced serious harm in the place he resided (i.e. Negombo).
e. The AAT failed to consider if it was reasonable for the Applicant to relocate outside of the Negombo area.
Ground 2
The AAT committed jurisdictional error by making a finding unsupported by evidence.
(a) At [48] the AAT member put the applicant on notice regarding his concern that his father was actually not of interest to the Sri Lankan authorities.
(b) The AAT member came to this conclusion on the basis of his father ‘being allowed to travel in and out of Sir Lanka on a valid, evidently never-cancelled passport.
(c) At no stage of the protection visa application process did the applicant state that [his] father had a legal, valid passport.
(d) The AAT is consistent in stating the applicant's father travelled on a valid passport when this is no evidence to support such a statement.
(e) The above is in the context of the AAT itself noting that document fraud in Sri Lanka is prevalent. The country information relied on by the AA T principally refers to identity documents fraud, clearly including passports, see for example [Appeal Book page 250 paragraph 62].
I granted the extension of time pursuant to s.477(2) of the Migration Act at the resumed hearing on 10 November 2017. This was on the basis of the evidence provided by Sudarshan Tambimuttu in his affidavit made on 19 October 2017. The Minister did not oppose an extension of time being granted.
For the purposes of the substantive hearing, I have before me as evidence the court book filed on 30 May 2016, the affidavit of Renee Quinn made on 10 November 2017, to which is annexed a transcript of the interview conducted by the delegate on 11 January 2013, and the affidavit of Andrew Lyall Keevers made on 6 October 2017 in relation to documents purportedly covered by a certificate issued under s.438 of the Migration Act.[15]
[15] Reproduced at CB 204
The applicant and the Minister filed written submissions prior to the trial of this matter and made oral submissions through their solicitors at the hearings conducted on 13 October and 10 November 2017.
Consideration
Ground 1 – did the Tribunal err in relation to a relocation finding?
There is an insuperable difficulty with this ground in that the Tribunal did not find that the applicant faced a real chance of serious harm or a real risk of significant harm in any part of Sri Lanka. Accordingly, no relocation finding was called for. This was pointed out at the initial hearing on 13 October 2017.
In the light of that, while this ground was never withdrawn, the applicant made no further submissions in relation to it beyond those contained in his written submissions.
I accept the Minister’s submissions in relation to Ground 1.
The applicant contends that the Tribunal misapplied the legal test with respect to the viability of internal relocation by applying a test of whether the applicant would be able to relocate to a different neighbourhood in or near Negombo “safely and practicably”. The applicant’s contention appears to be that the Tribunal erred in doing so, and instead ought to have considered whether it was reasonable, in the sense of being practicable, for the applicant to relocate.
The Tribunal recorded[16] that the applicant’s claim to fear harm, by reference to his Sinhalese neighbours in Negombo, was not premised solely upon the fact that the applicant was of Tamil ethnicity. Rather, the applicant’s claims to fear harm, and his claimed inability to internally relocate, were premised upon him being subject to harassment from the CID for reason of his imputed political opinion in support of the LTTE and his involvement with the UNP. The Tribunal correctly considered these aspects of the applicant’s claims to be “essential integers in the negative profile he [had] attracted or would attract”.[17]
[16] CB 248, [47]
[17] CB 248, [46]-[47]
The Tribunal addressed these claims[18] and found that the applicant’s father did not have any political profile in support of the LTTE, and it followed that neither did the applicant. The Tribunal accepted that the applicant had supported the UNP in 2011, but rejected his claim that this support caused political opponents or the authorities to suspect that the applicant had links to the LTTE or would be of interest to anyone. The Tribunal considered that the applicant’s evidence in respect of the forms and level of harassment that he had experienced since 2012 was “inconsistent and entirely unreliable” and on this basis gave no weight to the applicant’s claim that a politically opposed neighbour might harm him at some stage in the future.[19]
[18] CB 252, [72]-[75]
[19] CB 252, [75]
The Tribunal having rejected these claims, all that remained was the animosity displayed towards the applicant by his Sinhalese neighbours who “felt” that the applicant had no right to reside in Negombo.[20] Critically, the applicant conceded at the Tribunal hearing that he was nevertheless permitted to reside in Negombo by his neighbours (notwithstanding the remainder of his claims, which were rejected).
[20] CB 249, [52]
The Tribunal’s finding impugned by the applicant[21] must be read in the context of the whole decision. Contrary to the applicant’s contention, the Tribunal made no relocation finding. As it did not accept that the applicant’s fear of harm was well-founded, there was no need to consider whether it was reasonable for the applicant to relocate within Sri Lanka.[22]
[21] CB 248, [46]
[22] SZATV v Minister for Immigration [2007] HCA 40; (2014) 233 CLR 18 at [19]-[22]
The Tribunal’s reasoning discloses no finding of fact that the applicant held a well-founded fear of suffering serious harm. Rather, the impugned passage reflects the Tribunal’s reasoning and thought processes in response to the evidence given by the applicant at the hearing as to why he feared harm. It was ultimately unnecessary for the Tribunal to make a final finding on the viability of internal relocation, as the factual premise upon which the applicant claimed to fear harm was rejected by the Tribunal.[23]
[23] ApplicantWAEE v Minister for Immigration [2003] FCAFC 184 at [47]; (2003) 75 ALD 630, 641
I reject Ground 1.
Ground 2 – no evidence
The applicant contends by Ground 2 that the Tribunal’s finding[24] that the applicant’s father had travelled on a valid passport was affected by jurisdictional error as there was no evidence upon which the Tribunal could make such a finding. It follows, in the applicant’s submission, that the Tribunal’s finding that the applicant’s father (and, accordingly, the applicant) had not been imputed with a pro-LTTE opinion, because the father was able to travel freely to and from Sri Lanka, was also affected by error. In the alternative, the applicant contends[25] that it was not open to the Tribunal to infer that the applicant’s father had travelled on a validly issued passport.
[24] CB 248, [48]
[25] at [19] of his written submissions
In support of this ground, the solicitor for the applicant took me through the transcript of the delegate’s hearing and the court book in order to support the proposition that the applicant had never asserted or accepted that his father travelled on a valid Sri Lankan passport issued in his own name and there was no evidence supporting a conclusion by the Tribunal that he did.
The transcript reveals that, while the applicant told the delegate that his father undertook several journeys out of Sri Lanka on a passport, he did not specify whether it was a valid passport issued in his father’s own name.
It is also true that, in a submission to the first Tribunal lodged by his representative, the applicant asserted:[26]
[26] CB 173
On his father’s passport he says:
But I say that I was very young when this took place. I did not say at the interview that my father had a legal passport. I never saw his passport, I don’t know if he bribed the officers at the airport or if he had a false passport. I just said he would need a passport to leave from the airport.
It is plain from the first Tribunal’s decision at [9]-[10][27] that it did not accept that submission. The evidence available to support the first Tribunal’s conclusion would have included what the applicant told the first Tribunal at the hearing conducted by it. I have no transcript of that hearing.
[27] CB 188
Neither is there any transcript of the hearing conducted by the second Tribunal, which is the subject of the current proceedings. The Tribunal at [34][28] maintained the view of the applicant’s claims before the delegate that was taken by the delegate. The Tribunal also summarised the evidence given to the first Tribunal. Importantly, this included the applicant’s assertion that he did not know how his father had entered and left Sri Lanka over a 20 year period.[29]
[28] CB 241
[29] See CB 244
Ultimately, the Tribunal dealt with the applicant’s claims in relation to his father in the following way:[30]
The applicant appeared to tell me his father had returned once again to Sri Lanka but did not return to Trincomalee. However, he may have been referring only to the 2009 visit. More importantly, I put him on notice regarding my concern about the claims about his father being of interest to the Sri Lankan authorities, in view of his being allowed to travel in and out of Sri Lanka on a valid, evidently never-cancelled passport. In response, the applicant said he is not close to his father and does not know how he was able to move so freely. He then speculated that his father might have bribed someone at some stage, but he did not support this seemingly bald speculation with any evidence. I put to him that the new government appeared to have drawn a line between itself and the previous government’s arguably political exploitation of LTTE links and remnant LTTE threats. In reply, the applicant said he had no contact with his father. He said that not everyone has difficulty leaving Sri Lanka.
I asked the applicant to tell me what evidence there is that his family is being harassed in relation to his father’s imputed political profile, and he said the authorities are still searching for him. He said this is why his brother is hiding in a seminary. I put to him that he described his brother to me as having gone to the seminary – a seminary that is still nearby in Negombo – to study for the priesthood, a commitment to Catholic life that did not appear to be merely about hiding from visiting police officers. The applicant then changed his evidence: he said his brother is merely being sheltered by a priest, and not studying for the priesthood.
The applicant gave me evidence that appeared similar to what he said initially in his protection visa application but inconsistent with evidence he provided subsequently: he said that the authorities came to his house looking for him he was not there. Also he told me they started coming to his house in November 2011, whereas he told the delegate they first interrogated him at home in October 2011.
I asked the applicant why the authorities did not start pursuing him sooner, since the search for LTTE-linked persons preceded the end of the war in 2009 and moved into a kind of clean up or clear out operation as soon as the war ended, with the arresting and/or processing of individuals into rehabilitation camps. In reply, the applicant said the authorities did not seem to put his profile together until after he had assisted the local Negombo UNP candidate, I put to him that it did not sound like the authorities regarded his family as having any close link to the LTTE, and he said he did not know why the authorities waited until 2011.
The applicant said the Sinhalese in his neighbourhood said his family had to go and live in Trincomalee because his father lives there. I put to him that on his evidence he had been formally permitted (all his life it seems) to reside in Negombo and he said this was correct, whereas his Sinhalese neighbours felt he has no right to do so.
At one stage in the hearing, the applicant said the authorities might have let his father go in order to trace him. Essentially he seemed to say this might be why his father was allowed to leave Sri Lanka altogether. On the evidence before me, I find this mere bald speculation, and quite far-fetched. I give it no weight.
[30] CB 248-249, [48]-[53]
As I pointed out during oral argument on 10 November 2017, there were two chains of reasoning available to the Tribunal. One was that the applicant’s claims relating to his father were true and that an inference was available that his father must have undertaken travel in and out of Sri Lanka by some irregular means. However, the applicant never asserted that, or to the extent he did assert it, there was no evidence in support of it. It was a matter of pure speculation.
The other chain of reasoning available to the Tribunal was that the applicant’s father travelled in and out of Sri Lanka by regular means, which cast doubt upon the applicant’s claims concerning his father. That was the chain of reasoning followed by the Tribunal which was, in my view, open to the Tribunal in circumstances where the available evidence apparently did not establish one way or the other how the applicant’s father travelled. The Tribunal makes clear at [48] that the Tribunal raised with the applicant, at its hearing, the second chain of reasoning. As already noted, there is no transcript of the present Tribunal’s hearing (or that conducted by the first Tribunal) and, in the circumstances, I cannot conclude that there was no evidence to support the Tribunal’s finding concerning the applicant’s father’s travel.
I otherwise agree with the Minister’s submissions on this ground.
First, it is incorrect to assert, as the applicant has done, that there was “no evidence” before the Tribunal to suggest that the applicant’s father was in possession of a valid passport. The delegate recorded[31] that the applicant “indicated that his father migrated to Saudi Arabia, lawfully, on a passport in his own identity in 2007.” That the applicant later questioned that statement in a written submission to the first Tribunal[32] does not displace the fact that there was some evidence before the Tribunal that the applicant’s father held a legitimate passport.
[31] CB 138, cf [29] above
[32] CB 173
In order to succeed on a “no evidence” argument, the applicant is required to demonstrate that there was no evidence at all before the Tribunal upon which its finding was based.[33] The evidence given by the applicant to the delegate is sufficient to displace a “no evidence” argument. Further, in the absence of a transcript of the hearings before the Tribunal this ground cannot succeed.
[33] see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356
Secondly, and contrary to the applicant’s contention, it was open to the Tribunal to find that the applicant’s father did possess a legitimate passport. Significantly, there was no evidence before the Tribunal, nor any positive assertion made by the applicant, that the applicant’s father’s passport was fraudulently obtained. The high water mark of the applicant’s evidence in this regard appeared in his submission to the first Tribunal, also extracted at [30] above:[34]
I did not say at the interview that my father had a legal passport. I never saw his passport, I don’t know if he bribed the officers at the airport or if he had a false passport, I just said he would need a passport to leave from the airport.
(emphasis added)
[34] CB 173
The applicant’s evidence, taken at its highest, was that it was possible that his father had departed Sri Lanka on a fraudulent passport. The Tribunal was not obliged to accept that this was the case.[35] In the absence of evidence to the contrary, it could not be said that the Tribunal’s factual finding that the applicant’s father was in possession of a genuine passport was a matter outside jurisdiction.
[35] cf Randhawa v Minister for Immigration (1994) 52 FCR 437, 451
I reject Ground 2.
Additional issue – s.438 certificate
Although the applicant was on notice of the certificate issue, no ground of review was raised in relation to it in the further amended application and no submissions were made in relation to it on behalf of the applicant. Neither was the matter further addressed in oral submissions at the trial.
Having perused the affidavit of Mr Keevers and the documents attached to it, I accept the Minister’s written submissions in relation to the certificate issue.
On 9 July 2015, an officer of the Minister’s Department issued a certificate purportedly pursuant to s.438(1)(a) of the Migration Act.[36] The Federal Court has considered the issue of such certificates in the matters of MZAFZ v Minister for Immigration[37] and Minister for Immigration v Singh.[38] In both cases, the Court held that a failure by the Tribunal to reveal to an applicant the existence of a non-disclosure certificate (issued pursuant to ss.375A and 438 in Singh and MZAFZ, respectively) and the further failure to afford the applicant in those cases the opportunity to make submissions as to the validity of the non-disclosure certificates, resulted in a breach of procedural fairness.
[36] CB 204
[37] [2016] FCA 1081
[38] [2016] FCAFC 183
However, in BEG15 v Minister for Immigration & Anor,[39] Judge Smith distinguished MZAFZ and Singh in circumstances where the applicant already knew the information covered by the certificate (with one exception), the Tribunal’s decision record did not suggest that the Tribunal had “acted on” the certificate and in any event, disclosure of the certificate could not have made any difference to the Tribunal’s task.[40] The Full Federal Court has recently dismissed an appeal from Judge Smith’s decision.[41]
[39] [2016] FCCA 2778
[40] BEG15 at [63]-[68]
[41] BEG15 v Minister for Immigration [2017] FCAFC 198. See also Minister for Immigration v CQZ15 [2017] FCAFC 194 and Minister for Immigration v BJN16 [2017] FCAFC 197, which cite with approval AVO15 v Minister for Immigration [2017] FCA 566, discussed at [46] below
The approach by Judge Smith was endorsed by the Federal Court in AVO15. In that case, Barker J had regard to the documents covered by a non-disclosure certificate, finding that the documents were of no relevance, or only of “passing contextual” relevance to the Tribunal’s decision.[42] His Honour held[43] that to the extent that there may have been “some technical breach of the disclosure obligations arising under the Act”, the applicant had not lost any opportunity to advance his case as a result of this and had demonstrated neither detriment or practical injustice to himself (citing Minister for Immigration v WZARH[44]).
[42] at [87]-[89]
[43] at [91]
[44] (2015) 246 CLR 326 at [57]
Such is the case in the present matter. The document covered by the s.438 certificate is before the Court.[45] It is apparent from that document that it concerned nothing more than the basis on which the Minister withdrew from the previous proceeding before this Court and, in any event, was not “adverse to the applicant, relevant, or significant to the decision to be made”.[46] There was no detriment or practical injustice suffered by the applicant arising from the failure by the Tribunal to disclose the existence of the s.438 certificate. Likewise, there is no basis to infer that the Tribunal acted in some impermissible way on the certificate.[47]
[45] See the exhibit to the affidavit of Andrew Keevers, affirmed 6 October 2017
[46] BEG15 at [64]
[47] BEG15 at [65]
It follows that the errors identified in MZAFZ and Singh do not arise here.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 December 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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