Buf15 v Minister for Immigration & Anor (No.2)

[2017] FCCA 2092

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUF15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2092

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal considered all claims made by the applicant – whether the Administrative Appeals Tribunal findings were open to it – whether the Administrative Appeals Tribunal erred in questioning the applicant about his knowledge of Shia religion – whether the Administrative Appeals Tribunal erred in its consideration of s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474,
Migration Regulations 1994 (Cth), reg.2.01.

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZLSV 2010 FCAFC 108
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: BUF15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2435 of 2015

Judgment of: Judge Emmett

Hearing date: 31 August 2017

Date of Last Submission: 31 August 2017

Delivered at: Sydney

Delivered on: 31 August 2017

REPRESENTATION

Applicant appeared in person with an Urdu interpreter

Solicitors for the Respondents: Mr Thomas Shaw (Clayton Utz)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2435 of 2015

BUF15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 10 August 2015 (“the Tribunal”).

2. The applicant claims to be a citizen of Pakistan and of Shia Islamic faith, who fears harm from Sunni extremists in Pakistan.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived in Australia on 8 May 2013 having departed legally from Pakistan on a visitor visa.

2. On 6 August 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 13 August 2014, the Delegate refused the applicant’s application for a protection visa.

4. On 4 September 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 10 August 2014, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 4 September 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act, permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)He was born in a Sunni community but he converted to Shia Islam in February 2011 after learning about the religion.

   b)The Shia elders are very happy with him and he became involved in the management of Imam Bargah Shakargarh.

   c)However, his relative and Sunni friends were not happy about his conversion.

   d)One day, Mr HM, the head of the local Sunni community met him on his way back from Imam Bargah and tried to convince him to convert back to Sunni Islam. However, he refused to do so.

   e)One day in March 2013, he was taken to Mr HM’s place by Mr HM’s group and he was tortured and beaten for five hours. They demanded that he convert back to Sunni Islam but he refused.

   f)Some of his Shia friends located him and took him to hospital. He called the police from the hospital and lodged a First Incident Report.

   g)He started to receive threatening phone calls from Mr HM’s group and they wanted to kill him, as Shias are not Muslims.

   h)Although his relatives were against him, they advised him to leave Pakistan to save his life. He is afraid that he would be killed by Mr HM’s group if he returns to Pakistan.

The Delegate’s decision

1. On 5 January 2014, the applicant attended an interview with the Delegate.

2. The Delegate did not accept that the documentary evidence provided by the applicant was genuine. Further, the Delegate did not accept that the applicant had converted to Shia Islam or that he had been physically assaulted in Pakistan.

3. On 13 August 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 4 September 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. In support of his review application, the applicant’s migration representative provided various documents and written submissions to the Tribunal.

3. On 17 June 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 22 July 2015 to give oral evidence and present arguments.

4. On 22 July 2015, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.

7. The Tribunal found the applicant was not a witness of truth.

8. The Tribunal found that the applicant had not provided a truthful account of his employment in Pakistan. The Tribunal noted that there were discrepancies in relation to the applicant’s evidence regarding his employment. The Tribunal noted the inconsistencies between the applicant’s evidence to the Tribunal and his application form. The Tribunal acknowledged that the applicant’s employment history was not directly relevant to his claims for protection. However, the Tribunal found that the applicant’s willingness to fabricate evidence in relation to his employment casts considerable doubts on his overall credibility.

9. Further, the Tribunal considered the applicant’s evidence in relation to his conversion to Shia Islam to be vague and evasive. The Tribunal noted that the applicant was unable to recall when he was converted. The Tribunal also noted that the applicant was unable to expand on his reasons for converting to Shia Islam, despite being given several opportunities to do so at the hearing. Further, the Tribunal noted that the applicant appeared to be unappreciative of the situation of Shias in Pakistan. Given the situation in Pakistan where atrocities were committed against Shia by Sunni extremists, the Tribunal found it concerning that the applicant did not consider the effect of his conversion from Sunni to Shia would have on his family. 

10. The Tribunal also found the applicant’s evidence as to his practice of his faith to be unpersuasive. The Tribunal found the applicant’s knowledge as to the differences between Shia and Sunni Islam faith to be limited. The Tribunal considered that a genuine convert to Shia, where thousands were killed for their belief, would be able to articulate in detail the religious principle of Shia Islam.

11. Further, the Tribunal noted that the applicant had little involvement in the Shia community in Australia and did not accept the applicant’s explanation for his lack of involvement. Cumulatively, the Tribunal found that the applicant had not genuinely converted to the Shia faith and was in fact a Sunni Muslim.

12. In relation to the applicant’s claims, the Tribunal noted that his oral evidence before the Tribunal was inconsistent with his written claims. The Tribunal noted the applicant’s failure to recount when he was beaten by Mr HM’s group. The Tribunal was not persuaded by the explanation the applicant gave for his failure to recount the details of his claims.

13. Having found that the applicant was not a witness of truth, the Tribunal did not accept the documents provided by the applicant in support of his claims as genuine.

14. The Tribunal also rejected the applicant’s claim that he would be harmed in Pakistan due to his religious belief. The Tribunal accepted that Shia Muslims are persecuted in Pakistan. However, in light of its findings that the applicant is a Sunni Muslim, the Tribunal did not consider that there is a real chance the applicant would be harmed in Pakistan on the basis of his religious belief.

15. Having considered the applicant’s claims, the Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Pakistan, that the applicant did not have a well-founded fear of persecution in Pakistan and for this reason the applicant was not a person to whom Australia owed protection obligations.

16. The Tribunal also considered whether the applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that anyone in Pakistan would harm him for any reason. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Pakistan, there is a real risk that the applicant would suffer significant harm.

17. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning but had the assistance of an interpreter.

2. On 15 October 2015, the applicant attended a directions hearing before a registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. On 31 December 2015, the applicant filed a transcript of the Tribunal hearing.

4. On 6 January 2016, the applicant filed an Amended Application.

5. At the commencement of today’s hearing, the applicant confirmed that he relied on the grounds contained in the Amended Application as follows:

   “1. As part of the reason for rejecting the claim the Administrative Appeal Tribunal ('the Tribunal') stated “The Tribunal considers that the applicant’s evidence as to the differences between the Shia faith and Sunni beliefs was limited The Tribunal considers that someone who had decided whilst in his late 20s, having been born and brought up as a Sunni, to convert to a religion for which many thousands had been killed, would be able to articulate in a considerably more detailed fashion the importance of a religious principles and the way in which the religion differed from his previous religion. The Tribunal considers that the evidence in relation to this issue is indicative of the fact that the applicant has not converted from the Sunni sect of Islam to the Shia sect”. (CB 159 at (23])

   The applicant has clearly demonstrated in his answer in the “Transcript of Proceedings” (‘the Transcript') page 11 at [5 -45] about his influence of Shia sect through his friends and he started going to Shia mosque which tilted his mind towards Shia faith. Although the applicant was in his late twenties but he was rational enough to think about the differences between both sects and consequently he converted. The Applicant has stated in the Transcript page 12 at [19], “When I was studying in high school and uni, so I didn't know much about Islam and I didn't go very often to the mosque, so I didn't know much about religion. And then I went to their processions, Majilis, and I was impressed and liked it, and my mind was changed and that why I changed”.

   2. As part of the reason for rejecting the claim the Tribunal stated that, “The applicant’s account of his assault in Pakistan was inconsistent with his written claims. As indicated above, in his written claims, the applicant stated that in March 2013 he was taken to [HM]'s place and tortured and tied up with ropes. He was then left alone and some of his Shia friends located him and took him to the hospital. When asked at the Tribunal hearing about this incident, the applicant could not recall when he was beaten, but thought it was about two months before he came to Australia and it was outside the Jamat where the Sunni group's meetings are held.”(CB 159 at [26])

   The applicant has mentioned about this assault at the time of hearing (Transcript page 22 at [4- 22] the, however the Tribunal did not consider this evidence as relevant. The applicant has recalled and mentioned this at line 27, “Yes, I told you before that that was a minor fight''.

   3. As part of the reason for rejecting the claim the Tribunal stated that, “The Tribunal has not accepted that the applicant will suffer serious harm in Pakistan. Similarly and for the reasons set out above, the Tribunal is also not satisfied, for the purposes of the Complimentary Protection provisions, that the applicant will suffer significant harm if he removed from Australia”.(CB 161 at [32])

   The applicant has clearly explained at the time of hearing (Transcript at page 20 at [16-50] about serious harm which he suffered in Pakistan. The applicant was admitted in hospital due to injuries which he has suffered. The Tribunal has not considered the regular attacks which people of Shia sect is facing at the hands of Sunni terrorists.”

6. Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of each of the grounds and in support of his application generally.

7. I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

Ground 1

1. In support of Ground 1, the applicant said no more than what he had told the Tribunal was true.

2. Essentially, Ground 1 takes issue with the comprehensive findings of the Tribunal to reject the applicant’s claims to have converted to Shia Islam. The Tribunal found that the applicant’s evidence of his alleged conversion to be “vague and unpersuasive”. The Tribunal put to the applicant that he appeared to know very little about the situation for Shias in Pakistan and noted the applicant’s response that he “kept an eye on things”.

3. In considering the applicant’s claim of conversion to Shia, the Tribunal acknowledged the stressful process of the hearing and that it may be difficult for an applicant to articulate particular aspects of religious beliefs. However, the Tribunal found the applicant’s evidence of conversion to be “particularly unpersuasive”.

4. The Tribunal found that the applicant’s conversion to Shia was integral to his claims and that his inability to recall when he converted indicated that this claim had been fabricated. The Tribunal noted that the applicant was given numerous opportunities in the hearing to expand on his reasons for conversion, yet his reasons for doing so remained “vague and unpersuasive”.

5. The Tribunal also found that the applicant was a well-educated man, yet did not appear to appreciate the seriousness of the situation facing Shias in Pakistan or to have any views on this issue. The Tribunal discussed with the applicant at the hearing the country information before it that revealed the huge number of attacks against Shias in various parts of Pakistan.

6. The Tribunal found that the applicant had not given genuine consideration to his conversion, nor to the effect that his conversion would have on his own safety or the safety of his family.

7. The Tribunal then summarised exchanges that it had with the applicant about his practice of Shia faith. Based on those exchanges, the Tribunal found the applicant’s knowledge of the differences between Shia and Sunni beliefs to be limited, and went on to make the findings referred to in Ground 1.

8. In its exchanges with the applicant about the Shia faith, the Tribunal did not do so as an arbiter of religious doctrine. In circumstances where the applicant claimed to be an adherent of Shia faith following his conversion, it was legitimate for the Tribunal to explore what he knew about the Shia faith in order to assess the genuineness of his claim to have converted to the Shia faith (see SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [46] – [49] per French, Lander and Besanko JJ; Minister for Immigration and Citizenship v SZLSV 2010 FCAFC 108 at [36], [38] per Keenan J).

9. In considering the truthfulness of the applicant’s claim to have converted to Shia Islam, it was open to the Tribunal to explore his knowledge of Shia religious practice, the country information in relation to the seriousness of the situation facing the Shias in Pakistan, the atrocities committed by Sunni extremist groups against Shias and to find that the applicant’s failure to consider the effect of his conversion on his own safety or the safety of his family cast doubt on the credibility of his claims to have converted to Islam.

10. The Tribunal’s findings in relation to the applicant’s claim to have converted to Shia were open to it on the evidence and material before it and for the reasons it gave. The Tribunal’s adverse credibility findings were based on rational grounds arrived at on consideration of matters that were logically probative (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

11. The adverse credibility findings did not arise from a failure to afford procedural fairness or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174).

12. Accordingly Ground 1 is not made out.

Ground 2

1. In support of Ground 2, the applicant again said that what he told the Tribunal was true. However, he accepted that he may have made a mistake in his written claims leading to a difference between his written and oral claims.

2. As disclosed in Ground 2, the Tribunal found that the applicant’s account of his assault in Pakistan given at the hearing was inconsistent with his written claims.

3. The finding referred to in Ground 2 related to an incident in March 2013 in which the applicant claimed he was detained, tied and beaten by Mr HM’s group and then taken to hospital. The inconsistency arose when the applicant told the Tribunal that after he was beaten he went to the hospital with his father; whereas, in his written claims the applicant stated that some of his Shia friends found him and took him to the hospital.

4. The Tribunal did not accept that the applicant would be unable to recall whether his father or some of his Shia friends took him to the hospital. Ultimately, the Tribunal did not accept that the applicant had been assaulted or harmed at any time due to his conversion.

5. Again those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

6. Accordingly Ground 2 is not made out.

Ground 3

1. In support of Ground 3, the applicant said no more than that he did not understand why his claim was rejected.

2. To the extent that Ground 3 appears to suggest that the Tribunal somehow erred in its consideration of whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act, such a complaint is not made out.

3. Having found that the applicant did not satisfy the Convention criteria in s.36(2)(a) of the Act, the Tribunal went on to consider whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, he was at risk of significant harm.

4. The Tribunal relied on its earlier findings that the applicant would not suffer serious harm in Pakistan in considering whether he was at risk of significant harm if removed from Australia to Pakistan. In considering whether the applicant would suffer serious harm, the Tribunal had regard to whether the applicant was at risk of arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment for any reason upon his return to Pakistan.

5. There is no error in the Tribunal referring to its previous findings of fact in considering a claim for complementary protection. The Tribunal specifically addressed the complementary protection claim by reference to the language of the Act, and by reference to its findings of fact which led the Tribunal to reject the applicant’s claims (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and [57] per Robertson J).

6. In the circumstances the Tribunals finding that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm, was open to it for the reasons it gave.

7. Accordingly, the Tribunal’s conclusion that the applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Act was not infected with jurisdictional error.

8. Accordingly Ground 3 is not made out.

9. Otherwise the applicant’s claims in the Amended Application appear more to be a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356).”

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard.

2. The Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal 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 the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. 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.

4. 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 power to interfere.

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

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 31 August 2017