Aw v Minister for Immigration

[2009] FMCA 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AW v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 566

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether sub-clause 845.218 of the Migration Regulations 1994 (Cth) is ambiguous – whether the decision-maker must consider and take into account the context in which offending conduct occurred – whether accommodation of illegal non-citizens is a “business activity” – whether the Migration Review Tribunal erred in its construction of “history of involvement”.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474; pt.8 div.2
Migration Regulations 1994 (Cth), sch.2; sub-cl.845.218; 892.214

Lee v Minister for Immigration [2008] FMCA 1523
Chi Man Cheng [2002] MRTA 7103

Applicant: KIAN HUA HENRY AW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 120 of 2009

Judgment of: Emmett FM

Hearing date: 27 May 2009

Date of last submission: 27 May 2009

Delivered at: Sydney

Delivered on: 17 June 2009

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Counsel for the Respondent: Ms K. Morgan

Solicitors for the Respondent: Mr G. Conomos, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 120 of 2009

KIAN HUA HENRY AW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 23 December 2008 and handed down on 24 December 2008.

2. The issue in this case turns on the construction of a mandatory criterion in respect of an application made by the applicant for business skills (permanent) visa.

3. The applicant is a citizen of Singapore and arrived in Australia on 24 October 1999 (“the Applicant”).

4. On 15 July 2004, the Applicant lodged an application for a business skills (permanent) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act. The Applicant was represented by a registered migration agent in his application for a business skills visa.

5. On 19 June 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a business skills (permanent) visa.

6. On 6 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

7. On 23 December 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

8. On 19 January 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

The Tribunal’s decision

1. The Tribunal’s decision is accurately summarised by counsel for the First Respondent, Ms Morgan, in her written submissions as follows:

   “To obtain a subclass 845 visa, the criteria that the applicant needed to satisfy at the ‘time of application’ included cls 845.214 and 845.218 of Sch 2 to the Migration Regulations.

   …

   Clause 845.218 provided:

   Neither the applicant nor his or her spouse (if any) has a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia.

   In addition, cl 845.221 required the applicant to continue to satisfy several of the time-of-application criteria including cl 845.218. 

   10. As to cl 845.218, the Tribunal had before it evidence that, in June 2004 (ie, shortly before his visa application was lodged), the applicant’s business had been found to be employing several ‘illegal entrants’, who were accommodated at the business’s premises and paid in cash with no tax being paid.[1]  This was not disputed by the applicant, but he made a written statement to the Tribunal seeking to explain the circumstances in which this occurred.[2]  Essentially his position was that he initially had a very limited knowledge of Australian immigration law; the workers who did not have visas were very valuable to the business and had become friends; and those workers had asked to stay at the business’s premises.

   [1] CB 227; see also CB 1-2 and Supplementary Court Book (SCB) 1-2

   [2] Further Supplementary Court Book (FSCB) 1-2.  (This statement was apparently lodged as an annexure to the statutory declaration which appears at CB 129, and again as an annexure to written submissions which appear at CB 180; it is reproduced in part by the Tribunal at CB 228-229)

   The Tribunal concluded that:

   (a) following the decision of Smith FM in Lee v Minister for Immigration and Citizenship,[3] the expression ‘business activities’ could include ‘the manner in which a business is conducted for profit, as well as the profit-making activities themselves’;[4]

   (b) also as a result of that case, the activities relevant to the criterion included business activities ‘in the qualifying periods identified in the other criteria’ – ie, right up to the time of application;[5]

   (c) accordingly, the employment of unlawful non-citizens that had been discovered in June 2004 was relevant to whether the applicant met the criterion as at July 2004;

   (d) the applicant did not dispute the Department’s account of what occurred (including accommodating the ‘illegal non-citizens’, payment in cash and without tax file numbers[7]); he had been responsible for selection and supervision of staff[8]; and he had continued the arrangement (including payment in cash) despite being aware that a significant part of the business’s workforce comprised unlawful non-citizens;[9]

   (e) despite the applicant’s explanation that those persons were good workers and had become his friends, these were activities that ‘do not comply with the standards, ethics, and community expectations in the course of conducting a legitimate business in Australia’ (referring to Smith FM in Lee)[10]; and

   (f) the activities in question involved the employment of six persons ‘for some time’, and thus demonstrated a ‘history’ of involvement in business activities that were not generally acceptable[11].

   These findings led to the conclusion that the applicant did not satisfy cl 845.218.[12]

   The Tribunal also considered cl 845.221 and in this connection noted evidence about a further site visit, in early 2005, which found two unlawful non-citizens working for the business but that the later visit in 2006 did not locate any unlawful non-citizens[13].  The Tribunal found that the applicant also had a ‘history’ of involvement in unacceptable business practices at the time of its decision and thus failed to meet cl 845.221.[14] (These findings were strictly unnecessary once the primary finding was made that cl 845.218 was not satisfied.)”

   [3] (2008) 221 FLR 416 (currently on appeal).

   [4] CB 230.5.

   [5] CB 230.8.

   [7] CB 231.3.

   [8] CB 231.5.

   [9] CB 231.5.

   [10] CB 231.7.

   [11] CB 231.9.

   [12] CB 231.10.

   [13] CB 232.2.

   [14] CB 232.6.

The proceeding before this Court

1. The Applicant was represented before this Court by Mr Zipser, of counsel.

2. At the commencement of the hearing, by consent, the Applicant was given leave to rely upon an amended application filed on 18 May 2009. Counsel for the Applicant confirmed that the grounds of the amended application relied upon are as follows:

   “1. Pursuant to clause 845.218 in schedule 2 of the Migration Regulations, a criterion for grant of a subclass 845 visa is that “neither the applicant nor the applicant’s spouse (if any) has a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia”. In order for a decision-maker to determine whether an applicant has a “history of involvement in business… activities of a nature that is not generally acceptable in Australia”, the decision-maker must consider the entire history of the applicant’s involvement in business activities in Australia and any offending conduct in the context of the entire history. The Migration Review Tribunal (“the MRT”) did not adopt this approach, giving rise to jurisdictional error.

   2. Where a decision-maker is considering whether certain conduct gives rise to “a history of involvement in business… activities of a nature that is not generally acceptable in Australia”, the decision-maker must consider and take into account the context in which the conduct occurred. The MRT failed to take this approach, giving rise to jurisdictional error.

   3. The MRT found that “the applicant knowingly employed and accommodated illegal non-citizens” and found that “these business activities do not comply with the standards, ethics and community expectations in the course of conducting a legitimate business in Australia”. There was no evidence before the MRT on which it could find that the accommodation of illegal non-citizens was a business activity which did not comply with the standards, ethics and community expectations in the course of conducting a legitimate business in Australia. In the circumstances, the MRT fell into jurisdictional error.

   4. “Business activities” within the meaning of clause 845.218 does not include the manner in which the business is conducted. The MRT fell into jurisdictional error in finding otherwise.

   5. The MRT erred in its construction of “history of involvement”.

   6. The MRT’s finding “that the applicant had involvement in business activities of a nature that is not generally acceptable in Australia” involves an erroneous construction of clause 845.218.”

Ground 1

1. In support of Ground 1, counsel for the Applicant submitted that sub-cl.845.218 in schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) required the Tribunal, as the relevant decision-maker, to consider the entire history of the Applicant’s involvement in business activities in Australia and any offending conduct in the context of that entire history. Counsel for the Applicant submitted that, in failing to adopt such an approach, the Tribunal fell into jurisdictional error.

2. Sub-clause 845.218 in schedule 2 of the Regulations is as follows:

   “845.218      Neither the applicant nor his or her spouse (if any) has a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia.”

3. In support of Ground 1, counsel for the Applicant submitted that sub-cl.845.218 is ambiguous in that it is not clear whether the words, “of a nature that is not generally acceptable in Australia”, is descriptive of the history of the Applicant’s involvement in business activities or is descriptive only of the business activities.

4. Counsel for the Applicant also submitted that sub-cl.845.218 should be construed to require consideration of the context in which the offending conduct occurred, including the Applicant’s state of mind. Counsel for the Applicant further submitted that, if the phrase “not generally acceptable in Australia” qualifies the nature of “a history of involvement in business or investment activities”, then such a construction would allow the Tribunal, as the relevant decision-maker, to consider the context in which conduct occurred in the course of considering the nature of the history of involvement.

5. Counsel for the Applicant submitted that it would be “perverse or unfair” if an applicant’s application must be refused merely because an applicant had, over a period of time, engaged in one act or event which is “not generally acceptable in Australia”. Counsel for the Applicant submitted that the fact that the decision-maker does not have discretion is a fact in favour of an interpretation of sub-cl.845.218 which is not perverse or unfair.

6. In Lee v Minister for Immigration [2008] FMCA 1523 (“Lee”), Smith FM considered the meaning of sub-cl.892.214 of schedule 2 of the Regulations which required as follows:

   “Neither the applicant nor his or her spouse (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.” [Emphasis added]

7. The wording is not identical to the clause the subject of this proceeding. However, it was common ground, and I accept, that the approach taken by Smith FM in terms of the task of the decision-maker is appropriate in the case before this Court.

8. In Lee, Smith FM stated at [13]-[14] as follows:

   “A decision-maker faced with evidence suggesting questionable business activities associated with an applicant is required to identify the ‘business activities’, characterise their ‘nature’, and assess whether this is ‘not generally acceptable in Australia’. The decision-maker must also address whether the evidence shows ‘a history of involvement’ by the applicant in the activities.

   Grammatically, the test in cl.892.214 of ‘not generally acceptable in Australia’ relates to the ‘nature’ of one or more ‘business activities’ in which the primary applicant has a ‘history’ of ‘involvement’. It does not attach directly to the ‘history’ of such ‘involvement’. It would therefore be an error for a decision-maker to ask whether a ‘history of involvement’ was ‘not generally acceptable in Australia’, rather than whether the nature of relevant business activities in which he was involved had that character.” [Emphasis added]

9. In the circumstances, sub-cl.845.218 is not ambiguous in the way contended for by counsel for the Applicant. The phrase “not generally acceptable in Australia” relates to and is descriptive of the nature of the business activities engaged in by an applicant, rather than the applicant’s “history of involvement”. Once the nature of the business activities has been identified and found to be of a nature not generally acceptable in Australia, the decision-maker must consider whether there has been a history of involvement by the applicant in respect of those business activities. Once the decision-maker is satisfied that such business activities are of a nature not generally acceptable in Australia and that there has been a history of involvement in such business activities, then sub-cl.845.218 is not satisfied.

10. Counsel for the Applicant conceded that “business activities” includes the manner in which those activities may be conducted and therefore is capable of including the offending conduct of the Applicant in employing illegal non-citizens.

11. The Tribunal’s finding in respect of the Applicant’s conduct is as follows:

    “Employment of illegal non-citizens

    The Department’s site visit on 25 June 2004 located 6 illegal non-citizens out of 15 persons present. The tribunal finds that a significant proportion of the workforce was comprised of illegal non-citizens.

    The officers observed that the illegal non-citizens were accommodated on the factory premises and the officers discovered a female sleeping in those quarters. The officers observed that the illegal non-citizens were apparently paid in cash and did not have Tax File Numbers. The applicant has not disputed the Department’s observations.

    The applicant claims that the 6 workers were employed, accommodated, and their passports secured – before he became aware the 6 workers had no permission to work. He claims that after becoming aware of their illegal status they begged him to keep the arrangements and he agreed; he was unable to find replacements and ‘slowly the busy production line and workload were once again took away the priority, until it was too late to do anything…’ The applicant agrees that after the 6 workers were detained he arranged their airfares back to Malaysia.

    The Tribunal finds that the applicant was responsible for selection and supervision of staff. He was aware that a significant part of the business workforce comprised illegal non-citizens but he nonetheless continued their employment in cash and continued the arrangements whereby they were accommodated in the factory.

    …of a nature that is not generally acceptable

    The applicant knowingly employed and accommodated illegal non-citizens. He claims he did so as they were good workers and had become his friends: he did so out of kindness. Nonetheless, the Tribunal considers that these business activities do not comply with the standards, ethics, and community expectations in the course of conducting a legitimate business in Australia (as per Smith FM in Lee). The Tribunal therefore finds that the applicant has had involvement in business activities of a nature that is not generally acceptable in Australia.

    …history of involvement

    The applicant’s account shows that the workers were employed for some time and were only discovered because of the Departmental site visit shortly before the application was lodged. The employment of illegal non-citizens discovered during a site visit on 25 June 2004 occurred in the period of 12 months preceding the making of the application. These questionable business activities were not an isolated incident, but rather involved 6 persons over some period, and in light of the applicant’s evidence would have continued but for the site visit. The Tribunal therefore finds that for the purposes of clause 845.218 which must be satisfied at the time of application, these activities demonstrate a history of involvement in business activities of a nature that is not generally acceptable in Australia.” [Emphasis added]

12. However, counsel for the Applicant submitted that sub-cl.845.218 also requires the Tribunal to consider the Applicant’s involvement in the business activities. Counsel for the Applicant submitted that without the obligation to consider the history of an applicant’s involvement in business activities, an unfair consequence could occur where, for example, an applicant ran a legal business in an exemplary manner for some significant period of time save for one breach. Mr Zipser gave the example of an applicant who employs one hundred employees, one of whom turns out to be an illegal non-citizen. Counsel for the Applicant submitted that it would be an unfair result if that conduct was capable of satisfying sub-cl.845.218, particularly if an applicant was unaware of the status of the one employee. For that reason, Mr Zipser contends that knowledge must be a requirement of any conduct that is not “generally acceptable in Australia”.

13. Counsel for the First Respondent, Ms Morgan, submitted that the sort of conduct contemplated by sub-cl.845.218 was conduct of a repetitive nature rather than a single isolated incident. Ms Morgan gave the example of a business conducted in an otherwise exemplary manner save for a single isolated breach of an occupation and safety requirement. Ms Morgan submitted that, where there was no “history” of such conduct, then sub-cl.845.218 would be satisfied.

14. The Tribunal noted that the Applicant did not dispute that illegal non-citizens were employed and accommodated on the factory premises, paid in cash and did not have tax file numbers. A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the Applicant’s explanation in respect of those matters. However, the Tribunal found that the Applicant had knowingly employed illegal non-citizens, paid them in cash and continued arrangements whereby they were accommodated in the factory for some time.

15. Thus, the Tribunal identified the offending conduct, found that it was of a nature not generally acceptable in Australia and then found that the Applicant had a history of involvement in the offending conduct. The Tribunal found that in knowingly employing and accommodating illegal non-citizens, the Applicant had engaged in business activities that did not comply with the standards, ethics and community expectations in the course of conducting a legitimate business in Australia. Accordingly, the Tribunal found the Applicant had a history of involvement in business activities of a nature that is not generally acceptable in Australia. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

1. The Tribunal specifically found that the offending business activities conducted by the Applicant were not an isolated incident but involved six people over some period of time.

2. Further, the Tribunal found that, in the light of the Applicant’s evidence, such conduct would have continued but for the site visit undertaken by the Department on 25 June 2004 at which the offending conduct was identified. The Tribunal also found that, following a further site visit in early 2005, the employment of two more illegal non-citizens was discovered. The Tribunal found that the employment of those two further illegal non-citizens was not an isolated incident, but rather involved two persons over a period of time. Again, the Tribunal found that, in light of the Applicant’s evidence, such conduct would have continued but for the site visit. Moreover, the employment of the further two illegal non-citizens occurred despite the site visit on 25 June 2004. In particular, the Tribunal noted that the Applicant had employed a person whom the Applicant knew had been previously detained, had changed his name and passport to avoid detection and had re-entered Australia. In the circumstances, the Tribunal found that these activities demonstrated a history of involvement in business activities of a nature that is not generally acceptable in Australia.

3. Again, these findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

4. The Court does not have to determine whether an isolated incident is sufficient, or knowledge a necessary element, because in this case the Tribunal found that there was a repetitive history of knowing involvement by the Applicant in the offending conduct. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

5. Counsel for the Applicant also submitted that the Tribunal’s finding that “the applicant has had involvement in business activities of a nature that is not generally acceptable in Australia” incorrectly separated the word “involvement” from the phrase “history of involvement”. Counsel for the Applicant submitted that a proper construction did not allow for such a separation. Counsel for the Applicant submitted that the Tribunal focused only on whether there was an involvement in business activities of a nature not generally acceptable in Australia rather than whether or not there was a history of involvement in business activities of a nature that is not generally acceptable in Australia. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal not only considered the business activities of the Applicant but also was satisfied that those activities demonstrated a history of involvement in business activities of a nature that is not generally accepted in Australia. In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal did consider the history of the Applicant’s involvement in business activities and his explanation for the offending conduct and considered the offending conduct in the context of the history provided by the Applicant.

6. A fair reading of the Tribunal’s approach as reflected in its decision record makes clear that the Tribunal approached its task correctly:

   i)by identifying the offending conduct;

   ii)finding that the offending conduct was in respect of business activities that were of a nature not generally acceptable in Australia; and

   iii)then finding that the Applicant had a history of involvement in respect of such business activities.

7. As stated above, those findings were open to it on the evidence and material before it and for the reasons it gave.

8. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 appears to allege that the decision-maker must consider and take into account the context in which the conduct occurred and that the Tribunal failed to do so.

2. In support of Ground 2, counsel for the Applicant acknowledged that, having found that the Applicant knowingly employed and accommodated illegal non-citizens, the Tribunal noted the Applicant’s evidence that they were good workers and had become friends and that he employed and accommodated them out of kindness. However, the Applicant submitted that the Tribunal went on to state “nonetheless” the Tribunal considered that those business activities were of a nature not generally acceptable in Australia. Counsel for the Applicant contended that by the use of the word “nonetheless”, the Tribunal was confining its consideration to the nature of the business activities and that any explanation or excuse would not have been relevant in determining whether or not the conduct was generally acceptable in Australia.

3. In light of the findings made by the Tribunal that the business activities were of a nature not generally acceptable in Australia and that the Applicant had a history of knowing involvement in such business activities it must follow that the section must not be satisfied. The Tribunal used the word “nonetheless” after having made its relevant findings. In the light of its findings, sub-cl.845.218 could not have been satisfied. Once the Tribunal found that the business activities or the offending conduct did not comply with the standards and ethics and community expectations in the course of conducting a legitimate business and that the Applicant had a history of involvement in such conduct, the mandatory criterion of sub-cl.845.218 is not satisfied.

4. Otherwise, the allegation in Ground 2 is largely dealt with in Ground 1 above.

5. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 appears to allege that there was no evidence before the Tribunal upon which it could find that the accommodation of illegal non-citizens was a business activity of a nature that was not generally acceptable in Australia.

2. Counsel for the Applicant submitted that accommodation of an illegal non-citizen is not a business activity in the sense contemplated by sub-cl.845.218.

3. However, counsel for the Applicant acknowledged that Ground 3 and his submissions in support of Ground 3 were predicated on the Tribunal’s finding “the applicant knowingly employed and accommodated illegal non-citizens.” Counsel for the Applicant acknowledged that if “employed and accommodated” were not to be read separately then his argument in Ground 3 falls away.

4. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was regarding the employment and accommodation of illegal non-citizens on the factory premises as part of the manner in which the business activities were conducted. Certainly, there was evidence before the Tribunal to that affect. In that context, the Tribunal’s description of the employment and accommodation of illegal non-citizens as being the “business activities” that are not of a nature that are generally acceptable in Australia was open to the Tribunal on the evidence and material before it and for the reasons it gave.

5. Even if read as separate offending conduct, in the context of the reasons, it is apparent that the offending conduct in relation to the accommodation was the accommodation of illegal non-citizen employees on the factory premises knowingly employed by the Applicant in illegal circumstances. In my view, in the context, the accommodation of the illegal non-citizens by the Applicant in those circumstances was capable of being part of the business activities of a nature generally not acceptable in Australia.

6. Accordingly, Ground 3 is not made out.

Ground 4

1. Ground 4 was not pressed by counsel for the Applicant. Counsel for the Applicant conceded that business activities were capable of including the manner in which the business is conducted and accepted the correctness of Smith FM’s finding in Lee to that effect.

Ground 5

1. Ground 5 alleges that the Tribunal erred in considering that an isolated incident was capable of satisfying the requirement of “history of involvement”.

2. I understand the Applicant’s submission in support of Ground 5 to cavil with the Tribunal’s finding that the further employment of two illegal non-citizens discovered during the site visit in early 2005 was considered by the Tribunal in the light of whether or not that conduct was an isolated incident, when there was no evidence before the Tribunal to suggest that the conduct was more than an isolated incident.

3. A fair reading of the Tribunal’s decision record does not support the Applicant’s submission. The Tribunal specifically found that the employment of those further two illegal non-citizens was not an isolated incident. That finding was open to the Tribunal on the evidence and material before it, in circumstances where the Applicant’s further employment of the two illegal non-citizens had occurred despite the site visit on 25 June 2004 by the Department, which discovered that there were six illegal non-citizens employed at that time by the Applicant.

4. Counsel for the Applicant submitted that the phrase “history of involvement” indicated a degree of repetition of conduct or a degree of involvement of significance. In support of that submission, Mr Zipser referred to Chi Man Cheng [2002] MRTA 7103 where a different Refugee Review Tribunal determined, in relation to a different visa category, that “history of involvement” meant “a systematic course of conduct rather than an isolated event or events”. However, the Tribunal found that that number was “a significant proportion of the workforce”. In the circumstances, the Tribunal interpreted the term “a history of involvement” as an involvement that is something more than an isolated incident.

5. Further, the Tribunal noted that the employment of the two further persons was “over a period”, albeit unspecified, and found that such conduct would have continued but for the site visit in early 2005. Those findings by the Tribunal were open to it on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that it was the degree of repetition of conduct that led the Tribunal to be satisfied that there was a “history of involvement” in the business activity of the Applicant in employing two further illegal non-citizens and that conduct was not of a nature generally acceptable in Australia.

6. Otherwise, the allegation in Ground 5 is largely dealt with in Ground 1 above.

7. Accordingly Ground 5 is not made out.

Ground 6

1. Counsel for the Applicant withdrew reliance on Ground 6 of the amended application.

Conclusion

1. In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the evidence of the Applicant and made findings that were open to it on the evidence and material before it and for the reasons it gave. The Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  17 June 2009

[6] CB 230.9.