AVW16 v Minister for Immigration
[2018] FCCA 932
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVW16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 932 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Decision Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the Applicant’s fear of harm in China for religious reasons – Administrative Appeals Tribunal did not believe Applicant and made adverse credibility findings – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 476 |
| Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 |
| Applicant: | AVW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 878 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 26 April 2017 |
| Date of Last Submission: | 28 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr L. Dennis |
| Solicitors for the Respondents: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 14 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 878 of 2016
| AVW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a female citizen of China aged 60 years, having been born on 11 April 1958.
By Application filed in this Court on 14 April 2016 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 September 2014 refusing to grant to her a Protection (Class XA) visa (Protection visa).
Background
The Applicant arrived in Australia on 13 April 2005 as the holder of a Tourist (Class TR) (Subclass 676) visa (Tourist visa) which expired on 25 April 2005. She then applied on 28 April 2005 for a Protection visa (2005 Protection visa application), which was refused by an earlier Delegate (earlier Delegate) of the Minister on 7 July 2005. On 8 August 2005 she sought a merits review of the refusal, which was ultimately affirmed by the then Refugee Review Tribunal (RRT) on 27 October 2005. The Applicant’s Bridging visa Class C associated with the 2005 Protection visa application ceased on 26 December 2005 and at that time she became an unlawful non-citizen, and remained so for more than eight years.
The Applicant married an Australian citizen on 17 January 2014 and on 11 February 2014 voluntarily approached the Department of the Minister and obtained a Bridging visa Class E on departure grounds, which was valid until 11 March 2014 and which was subject to Condition 8503, generally known as the “no further stay” condition. She contemporaneously made a request to have Condition 8503 waived, in order to lodge a Partner visa application but this request was refused on 25 February 2014.
Following the introduction of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) and the decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235, which found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds, the Applicant on 10 March 2014 again applied for a Protection visa and at that time became the holder of a new Bridging visa Class E in association with this second Protection visa application, the subject of this proceeding.
Claims for Protection
In an attachment to her Protection visa application dated 28 February 2014 the Applicant made the following factual claims:
a)She was born in the Henan Province in China and is a qualified as a nurse in China.
b)She was married in China and on 6 February 1994 gave birth to twin sons. However she divorced from her husband in 2004 because she and her husband had different faiths and she had to choose between her faith in Falun Dafa (also known as Falun Gong) and her husband.
c)She joined Falun Dafa social group activities in 1990 and in 1992, on account of her nursing skill, she converted a number of patients to the Falun Dafa faith. However the Chinese Government is against her faith and started to persuade her husband and her “to keep away” from Falun Dafa and began to pressure her. She was persecuted physically and mentally and her nursing qualification was cancelled.
d)She married in Australia on 17 January 2014 and she cherishes this second marriage but her husband could not protect her from persecution from the Chinese Government if she returned to China, where she would be in danger.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended an interview with the Delegate on 16 September 2014 with the assistance of an interpreter in the English and Mandarin languages.
In the result the Delegate did not accept that the Applicant was a genuine Falun Gong practitioner or that she was a credible witness. She found that the Applicant had engaged in some Falun Gong activities in Australia for the sole purpose of strengthening her claim to be a refugee.
The Delegate was particularly concerned with inconsistencies in the versions of events given by the Applicant since 2005. In her 2005 Protection visa application the Applicant had claimed to have become a Falun Gong practitioner in 1998, not 1990 and that she had gone to Beijing many times to contact other Falun Gong practitioners in order to organise meetings and demonstrations in Beijing. She had further claimed that in 2004 she had been reported to Chinese authorities for promoting Falun Gong to a patient and the police came to the hospital where she worked and took her away for questioning and she was detained at the police station for 10 days and tortured. She had then decided to come to Australia to seek protection.
However, when the Applicant sought merits review of the earlier Delegate’s decision from the RRT her version of events changed. The claims to protection before the RRT were rather as set out in a Statutory Declaration sworn by the Applicant on 22 September 2005 which was sent to the RRT under cover of a submission from the Applicant’s second migration agent dated 23 September 2005. In that Statutory Declaration the Applicant claimed that her purpose in coming to Australia was to escape persecution by the Chinese authorities due to her political opinions and activities because the Applicant had found out in November 2004 that anaesthetic was being mixed with the drinking water that was being administered to Falun Gong practitioners at the Pingdingshan Railway Hospital in Henan Province. The Applicant sympathised with these Falun Gong practitioners and secretly changed their drinking water as supplied by the hospital and gave them tap water instead. At the hearing before the RRT, when asked if she was a Falun Gong practitioner, she replied that she was not and that she did not believe in Falun Gong but believed in Buddhism and Western medicine.
Further, the Delegate found that the Applicant’s ability to leave China legally in April 2005 to come to Australia on a Tourist visa indicated that, contrary to her claims, she was not a person of interest to the Chinese authorities at that time. The fact that after her arrival in Australia she was granted valid Chinese passports by the Chinese Consulate-General in Sydney in June 2005 and again in January 2013 indicated that she then was of no adverse interest to the Chinese authorities.
I note that the Delegate only had jurisdiction to consider the Protection visa application under the complementary protection criterion: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the Applicant’s Protection visa application on both the Refugees Convention criterion and the complementary protection criterion but was not satisfied that Australia had protection obligations to the Applicant under either criteria and she refused to grant a Protection visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal on 17 October 2014 for merits review of the Delegate’s decision.
On 8 March 2016 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal was of the view that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion under s.36(2)(aa) of the Act and not the Refugee Convention criterion under s.36(2)(a). This view was subsequently confirmed as correct in SZVCH at [44] per Kenny, Siopis and Besanko JJ and [113]-[114] per Mortimer J.
The Tribunal did not accept that the Applicant was a credible or truthful witness and found that there were significant inconsistencies between her claims as made respectively to the earlier Delegate and to the RRT for the 2005 Protection visa application and to the Tribunal in the present application.
At [20] of its Decision Record the Tribunal recorded that the Applicant had told it that she was seeking protection in Australia on the basis that she was a Falun Dafa / Falun Gong practitioner who feared harm for that reason if she returned to China. The Tribunal had then reminded her that she had previously sought protection on the basis of an actual or imputed political opinion of being opposed to Chinese Government policy in relation to Falun Gong practitioners. However she said that she had no other claims for protection but for being a Falun Gong practitioner.
At [22] – [24] the Tribunal recorded its discussion with the Applicant at the hearing of inconsistencies in the nature of her claims to protection. At [22] it noted that she had initially claimed in her 2005 Protection visa application to have become a Falun Gong practitioner in 1998 and that she had gone to Beijing many times to speak with other practitioners and to arrange demonstrations and had been detained by police and taken away for questioning for 10 days and mistreated as a result. These claims were contrasted at [23] with the Applicant’s claims to the RRT made in her Statutory Declaration of 22 September 2005 that she had come to Australia to escape persecution due to her political opinions and activities arising out of her discovery of the administration of anaesthetic in drinking water by hospital officials and her statement at the hearing before the RRT that she was not a Falun Gong practitioner but had helped Falun Gong people by her activities at the hospital and that she had never been arrested.
At [24] the Tribunal recorded that it raised with the Applicant the fact that she currently claimed to have become a Falun Gong practitioner in 1990, not 1998 as she had claimed in 2005, and that she currently did not make the claims that she had made to the earlier Delegate and the RRT in 2005, as well as the inconsistencies in her claim since 2005 to date. The Tribunal went on to note:
The Applicant was very vague in attempting to explain to the Tribunal the variations about her claims as to when she first started practising Falun Gong and about her claims in relation to her involvement more generally with the practice. The Tribunal raised its significant concerns about the variations and inconsistencies in relation to the applicant’s first protection Visa application and to the claims made in front of the RRT and her current claims for protection. The applicant told the Tribunal that all her claims that she had made throughout the protection Visa process were correct… [and] she could not remember telling the RRT that she was not a Falun Gong practitioner. She sought to explain the inconsistencies over the totality of her claims.
(emphasis added)
At [25] – [26] of its Decision Record the Tribunal recorded that at the hearing it had significant difficulties in obtaining details from the Applicant about her claims and that on a number of issues the Applicant was vague and evasive in dealing with the Tribunal’s questions.
At [31] the Tribunal noted that the Applicant told the Tribunal she had not had any difficulties in leaving China to come to Australia and in obtaining a Chinese passport. The Tribunal also noted that the Applicant had renewed her Chinese passport in Australia in June 2005 and in January 2013, but she in turn claimed, without providing any details, of effectively paying a bribe to get her Chinese passport renewed in Australia, which claim at [44] of its Decision Record the Tribunal rejected.
At [36] of its Decision Record the Tribunal referred to country information in DFAT reports of March 2015 which indicated that Falun Gong practitioners were generally able to practise privately in their own homes relatively free from interference by the Chinese authorities, but that practitioners who are already known to authorities or who had overtly engaged in behaviour of a particular type would likely find it very difficult to obtain a passport to leave China.
At [42] of its Decision Record the Tribunal recorded that it “… found the applicant to be both vague and evasive on occasions in relation to Tribunal questions and on other occasions the Tribunal did not believe that the applicant engaged with Tribunal questions”.
At [43] of its Decision Record the Tribunal recorded that it did not accept that the Applicant was a credible or truthful witness.
In the result, at [44] of its Decision Record the Tribunal recorded that it did not accept that the Applicant had difficulties in China with authorities due to any Falun Gong related activity because of the Applicant’s “overall vague and inconsistent evidence and including her varying claims as to when she became involved in Falun Gong” and accordingly it affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant in her Application are as follows:
1. I am scared to return back to China, because there really exists the persecution targeted towards the Falun Gong practitioners in China. If I returned back to China, I would certainly be monitored by the staff from the Chinese governmental department. I could even be arrested and detained without any freedom or human rights in China.
2. DIBP and AAT refused me saying the information provided was different from the former application. As to the former application of protection, at that time I let one agency help me for the visa application. I was not familiar with the process and did not know that the agency provided misleading information regarding my visa application.
3. DIBP and AAT did not consider the damage that Chinese government gave me mentally and physically. They even questioned me whether 1 am a genuine Falun Gong practitioner regardless of the evidence I provided.
4. I hope the Federal Circuit Court of Australia could consider my situation and the risk I go back to China and do justice for me.
I note that at the hearing the Applicant sought to tender and rely upon a four paragraph statement of a Mr Yong Xiang Li of Kogarah in New South Wales who said that he was an organiser of Falun Dafa practice sites in New South Wales. The statement is unsigned and undated but clearly came into existence after the commencement of this proceeding because it bears the file number of this proceeding. It was clearly not before the Tribunal and I rejected the tender of the document, but had it marked MFI-1.
Consideration
Grounds 1 and 4
These Grounds fail because they seek to invoke a merits review of the findings of the Tribunal which is not available in this Court. Ground 1 merely reiterates the claims made by the Applicant before the Tribunal and does not assert a proper ground for a finding that the Tribunal’s decision is affected by jurisdictional error. Ground 4 similarly seeks impermissible merits review.
Accordingly, Grounds 1 and 4 are not made out.
Ground 2
This Ground appears to attack and challenge the Tribunal’s reliance on inconsistencies between the Applicant’s:
a)claims made in her 2005 Protection visa application, which the earlier Delegate rejected on 7 July 2015: see [10] above;
b)claims made to the RRT on the merits review of the earlier Delegate’s decision in both her Statutory Declaration sworn on 22 September 2005 and at the RRT hearing when the Applicant said that she was not a Falun Gong practitioner: see [11] above; and
c)claims made in her current Protection visa application;
in circumstances where the Applicant appears to blame her first migration agent for providing “misleading information” in her 2005 Protection visa application prior to the merits review in the RRT.
In this connection it is clear that as a general rule it is entirely legitimate for a Tribunal, in assessing the credibility of an applicant, to consider that applicant’s claims and evidence as made earlier in either a Protection visa application or supporting statements and oral evidence to a Delegate or an earlier Tribunal: see Bromberg J in AOM15 v Minister for Immigration [2015] FCA 1285 at [45]. Previous inconsistent statements and internal contradictions in evidence have always been regarded in our legal system as relevant and admissible to the process of assessing a person’s credibility.
In my view this Ground also fails. The Tribunal clearly identified for the Applicant at the hearing the various inconsistencies in her claims: see [20] – [24] and [38] – [39] of its Decision Record. The Applicant responded that all of her claims as she had made them through the Protection visa application process were correct: see [24] of the Decision Record extracted at [20] above. At [38] of its Decision Record the Tribunal then recorded that the Applicant had asked for additional time to comment or respond in relation to inconsistencies in her claims. The Tribunal granted additional time of one week and on 14 March 2016 received from the Applicant’s registered migration agent documentation, but this was simply documentation which had already previously been provided to the Tribunal. I reject the Applicant’s complaint that at the hearing she was given insufficient additional time. The Tribunal had invited her to the hearing by letter dated 15 January 2016 and she had available the services of a registered migration agent to advise her and who sent the further documentation on her behalf to the Tribunal on 14 March 2016. No jurisdictional error is established by the Tribunal granting no more additional time than a period of one week.
At [23] of its Decision Record the Tribunal noted that in considering the 2005 Protection visa application the RRT had accepted that the Applicant’s first migration agent, who had prepared her 2005 Protection visa application, had not correctly represented the Applicant’s claims. This was a reference to the Decision Record of the RRT of 27 October 2005 which in this connection had stated as follows:
Inconsistent claims
The [RRT] has considered the significance of the major differences which are evident between the Applicant’s protection visa application and her later claims….
The Applicant told the [RRT] at the hearing that she had explained her story to her first migration agent who had written it out in English but did not translate it back for her in Mandarin. She claims she signed the application and the attached statement without knowing what was in them, and that the agent in effect presented her case as if she were one of his normal Falun Gong clients, without analysing it…
The Tribunal notes according to information available on the website of the Migration Agents Registration Authority, the Authority took action on 10 October 2005 to bar the Applicant’s first agent from practising for five years because she had breached the code of conduct including by lodging substantially identical protection claims which were false or contrived and fabricated, and was not a fit and proper person to provide immigration assistance. On the basis of this information the Tribunal is prepared to accept the Applicant’s explanations for the inconsistencies between her protection visa application and her later claims and accepts that these inconsistencies do not undermine her credibility. The Tribunal has not taken into account the claims in the Applicant’s primary application in considering her case. The Tribunal accepts that the Applicant’s claims are accurately set out in her statement of 22 September 2005 and in her subsequent evidence at the hearing.
Nevertheless, the Tribunal was not bound or constrained by the prior RRT decision to entirely discount for any purposes the Applicant’s claims as first made in the 2005 Protection visa application. In Witharana v Minister for Immigration [1998] FCA 1696 Wilcox J said:
I do not think it was an error of law for the member hearing the present case to fail to refer to the other decision. Section 430 of the Migration Act 1958 requires that the Tribunal set out its findings on material questions of fact and identify of the material upon which those findings are based. The Act does not require the Tribunal to refer to all the material to which it is referred before, during or immediately after a hearing. I think the member hearing the present case was entitled to take the view that the decision given by his colleague in the earlier case was irrelevant to the task he had to perform. The member had to make up his own mind on the basis of the material before him. It would have been quite improper for him to be influenced by the finding of a colleague in relation to a factual matter that depended upon different evidence. This is just as true where the earlier finding was in favour of granting a visa as it would be if the earlier claim for refugee status had been rejected.
To similar effect, Selway J in SGBB v Minister for Immigration (2003) 199 ALR 364 [32] said as follows:
[32]In fact under the Act the tribunal is required to act independently. See WADZ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 118; BC200202693 at [9]–[10]. It is not bound, whether on questions of law or fact, by its own previous decisions. It is responsible always for determining the actual case before it on the law and facts as they are at the time of decision. It would be preferable if that did not result in inconsistent decisions, but if it does then that is what the Act clearly permits, save only for jurisdictional error. As Brennan J famously remarked in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; 93 ALR 1 at 25; 33 IPR 263 at 285–6: “the court has no jurisdiction simply to cure administrative injustice or error.” It is not enough to identify apparent unfairness. It is fundamental to identify a jurisdictional error.
Further, the Applicant had in any event, as recorded at [24] of the Decision Record, told the Tribunal that all the claims which had been made throughout the Protection visa application process were correct (see [19] above). At [42] the Tribunal further recorded as follows:
[42]The applicant told the Tribunal that all her claims throughout her Protection visa application process (in terms of her first application and her second application and before the RRT) were all true. In essence she implied that there were no inconsistencies in relation to any of her claims. She did tell the Tribunal after the Tribunal raised its concerns that any inconsistencies happened a long time ago and what was important was what she was claiming now.
(emphasis added)
In my view the Applicant’s assertion and confirmation that all of her claims throughout her Protection visa application process were all true justified the Tribunal taking into account the first claims made by the Applicant in her 2005 Protection visa application and comparing them with later claims in assessing her credibility.
In any event, even if against the view I have taken the Tribunal, in assessing the Applicant’s credibility, was not entitled to take into account those claims as first made in the 2005 Protection visa application, but was bound to disregard such evidence, there was a body of other probative evidence of sufficient cumulative weight to support the Tribunal’s rejection of her claims to protection. The existence of that probative evidence denies the existence of jurisdictional error based on the grounds of illogicality or irrationality: see Bromberg J in MZYWL v Minister for Immigration [2013] FCA 895.
Finally, I note that the Applicant did not allege or tender any evidence which had a tendency to prove that her first migration agent was guilty of fraud against her and the Tribunal in connection with the 2005 Protection visa application in such a way that it affected the Tribunal’s decision making process. There is simply no evidence to that effect. There has been no identification by the Applicant of the identity of the first agent or the nature and scope of the “misleading information” which he is alleged to have provided, or in what circumstances. The provision of “misleading information” in itself does not necessarily lead to a finding of fraud. The RRT in its decision of 27 October 2005 did not make a finding of fraud against the Applicant’s first migration agent, notwithstanding that in the circumstances as stated by it and extracted at [34] above it was prepared not to take into account the claims in the 2005 Protection visa application as originally made, but to take the Applicant’s claims as accurately made in her Statutory Declaration of 22 September 2005. There is a heavy burden of proving fraud on an Applicant who seeks to set aside a Tribunal decision by reason of the fraud of a third party: Allsopp CJ in SZRUR v Minister for Immigration (2013) 216 FCR 445 at 455 [51].
Accordingly, in my view Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground also appears in invoke impermissible merits review. Insofar as it asserts in the first sentence that the Tribunal did not consider the Applicant’s claim to physical and mental damage from the Chinese Government, it is not correct. At [15] of its Decision Record the Tribunal expressly referred to the attachment dated 28 February 2014 to her Protection visa application (see [6] above) and summarised the claims there made, including the Applicant’s claim that she had been persecuted physically and mentally in China and had come to Australia to seek protection in 2005.
Insofar as the second sentence of Ground 3 is to be taken as a complaint about the Tribunal questioning the Applicant about her knowledge of Falun Gong practices and whether or not she was a genuine Falun Gong practitioner, it again fails. The Tribunal in fact recorded its acceptance at [46] of its Decision Record:
[46] …that the applicant displayed a good knowledge at the hearing of Falun Gong practices but as indicated believes that the applicant is engaged in the practices for the purpose of strengthening her protection Visa application”.
Further, whilst the Tribunal cannot act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, there was no impediment to the Tribunal testing and evaluating the Applicant’s claim to be a Falun Gong practitioner. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:
[24] The manner in which the Refugee Review Tribunal set out to test the Applicant’s claim to be a Christian was a function entrusted to it. There was no impediment to the Tribunal testing the claim being advanced. An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church. The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief. In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.
In my view Ground 3 does not establish that the decision of the Tribunal is affected by jurisdictional error.
I finally note that insofar as Grounds 2 and 3 attack the decision of the Delegate, such decision was a primary decision which this Court does not have jurisdiction to review by reason of s.476(2)(a) and s.476(4) of the Act. Further, it is well established that if the Tribunal’s decision is not flawed then it cures defect or irregularity in the relevant decision of the Delegate: see Barker J in AYE16 v Minister for Immigration [2018] FCA 108 at [35].
Disposition
In my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application is to be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 19 April 2018
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