CCP16 v Minister for Immigration
[2018] FCCA 1864
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCP16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1864 |
| Catchwords: MIGRATION – Application for review of the Administrative Appeals Tribunal decision – whether the Tribunal failed to deal with the full integers of a claim – whether the Tribunal applied the incorrect test – whether the Tribunal was legally unreasonable – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 91R, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 |
| First Applicant: | CCP16 |
| Second Applicant | CCQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2055 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 June 2018 |
| Date of Last Submission: | 5 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | McArdle Legal |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application made on 1 August 2016, amended on 29 November 2016 and further amended on 5 June 2018, is dismissed.
The first applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2055 of 2016
| CCP16 |
First Applicant
| CCQ16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 1 August 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 29 November 2016 and further amended on 5 June 2018, seeking review of the decision of the Administrative Appeals Tribunal ("the Tribunal") made on 30 June 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book – "CB", “RE1").
Background
The applicants are citizens of Tonga (CB 2 and CB 17). The first applicant is the second applicant’s mother. The second applicant was born in October 2006 (CB 17). The applicants last arrived in Australia on 5 March 2009 as holders of visitor visas (CB 3 and CB 18). Both applicants applied for protection visas on 1 July 2014 (CB 1 to CB 71).
The first applicant claimed to fear harm in Tonga for essentially three reasons. One, she feared harm from a “male cousin” who had threatened her as a result of a property dispute (CB 7). She said the police would not protect her (CB 140). Two, she feared harm from "men" who would sexually harass her, because she was a single mother, in a traditional society (CB 7). Three, she would not be able to work on return to Tonga, as she would need to look after her son, and would therefore face economic harm (CB 140).
The second applicant feared physical abuse, and it was claimed on his behalf that he would be harmed by other children at school because he was "illegitimate" (CB 23 and CB 262.4).
The applicants were represented by a migration agent who submitted a number of documents in support of the protection visa applications. The first applicant was interviewed by the delegate on 10 November 2014 (CB 124 to CB 137). The applications were refused by the delegate on 4 December 2014 (see CB 188 to CB 229).
The applicants applied for review of the delegate’s decision to the Tribunal on 11 December 2014 (CB 231 to CB 238). They were represented by the same registered migration agent (CB 237). The first applicant and her representative attended a hearing before the Tribunal on 20 April 2016 (CB 325 to CB 326). After the hearing, on 29 April 2016, the applicants’ representative provided further documentation to the Tribunal (CB 342 to CB 363).
The Tribunal's decision was made on 30 June 2016 (CB 370 to CB 392). The Tribunal accepted that there had been a family dispute about property and that the first applicant (and her brother) had received threats from a cousin and his mother ([107] at CB 386). Further, that the cousin physically threatened her with a knife in 2007 ([107] at CB 386). The Tribunal also accepted that the cousin had a history of committing violent acts ([107] at CB 386).
The Tribunal accepted that single mothers with illegitimate children in Tonga are a “particularly vulnerable group within Tongan society” ([109] at CB 386).
However, in considering the first applicant's personal circumstances, and her evidence, the Tribunal found that it was not satisfied that there was a “real chance or risk” that she would be “raped or sexually or physically assaulted” in any way ([112] at CB 387).
The Tribunal also found that the risk of harm was even further reduced by policy initiatives and legislative reform introduced by the Tongan government ([112] at CB 387).
The Tribunal was not satisfied that the first applicant would face harm from her cousin if she were to return to Tonga. The Tribunal found that the first applicant had continued to live in Tonga for a period after the claimed 2007 attack from her cousin, without any further incident. Further, that she had voluntarily returned to Tonga from overseas after the attack ([119] at CB 388).
On the evidence before it, the Tribunal noted that the police, or military, had been “generally responsive” to requests for assistance made by the first applicant and her family. Further, that the cousin had been jailed following an attack on his mother ([119] – [120] at CB 388).
The Tribunal was not satisfied that the first applicant would be “solely reliant on her employment income”, or that her family (noting she had close relatives in Australia) would be unable to support her. It noted that her relatives had supported her after the birth of her second child in Tonga [that child remained in Tonga] ([126] at CB 389).
The Tribunal therefore found that neither applicant was at risk of economic hardship amounting to serious or significant harm ([129] at CB 389).
Some of the documents submitted by the applicants’ representative were put in support of the claim, that emerged before the Tribunal, that the first applicant suffered from psychological harm and other mental health issues.
The Tribunal accepted the psychological and psychiatric evidence put before it in this regard, and that the first applicant’s mental health may suffer on her return to Tonga due to her change in circumstances. However, the Tribunal held that this did not amount to serious or significant harm as those terms were defined in the Act ([130] at CB 389 to [137] at CB 390).
The Tribunal was prepared to accept that the second applicant’s “illegitimacy” may lead him to experience some low level harassment on return to Tonga. However, it did not accept he would face serious or significant harm for this reason, or that he would be denied employment or face rape in the future because of this ([138] – [141] at CB 391).
The grounds of the further amended application are in the following terms:
“[1] The Tribunal has failed to ask the correct question. The Tribunal failed to deal with the full integers of the applicant’s claim.
Particulars
[By misdirecting itself on the legislative test for significant harm as predicated by section 36(2)(aa) of the Migration Act 1958 (Cth) at paragraphs [115]-[116] of the decision, the Tribunal failed to deal with the full integers of the Applicant’s claim and hence complete the task of jurisdiction embarked upon.]
The Tribunal failed to apply the reasoning of Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 by failing to have regard to the willingness and ability of the state to provide protection for the Applicant in circumstances where the Applicant’s protection was found to be a consequence of assistance by family members.
[2] The Tribunal has applied the incorrect test at law.
Particulars
[The Tribunal failed to direct itself to the correct test pursuant to section 36(2)(aa) of the Migration Act 1958, explicitly failing to have regard to the Applicant’s mental state and personal circumstances in assessing the real chance the Applicant would face significant harm under section 36(2)(aa) of the Migration Act 1958 (Cth) at paragraph [115]-[116] of the decision.]
By holding at [113] and [116] that the ‘risk of experiencing sexual harassment of the kind she described in her oral evidence’ does not constitute ‘persecution or significant harm’, the Tribunal has applied the incorrect test at law.
[[3] The Tribunal has breached section 425 of the Migration Act.
Particulars
By failing to provide the Applicant with an opportunity to make submissions regarding psychiatric and psychological reports by the Dr Naidoo and Dr Milch, the Tribunal breached section 425 of the Migration Act 1958 (Cth).]
[4] [“New” ground three] The Tribunal, in dealing with the psychiatric reports, has made a decision that was legally unreasonable.
Particulars
(a) By simultaneously accepting the diagnosis and rejecting the recommendation contained in the psychiatric report from Dr Prem Naidoo, the Tribunal has failed to apply the reasoning of his Honour Logan J in SZSFS v Minister for Immigration [2015] FCA 543.
(b) By using reflections in the report from the child psychiatrist Dr Anthony Milch – directed the Second Applicant – that were adverse to the interests of the First Applicant, the Tribunal has made a decision that was legally unreasonable.”
Both parties were represented by counsel at the final hearing of this matter.
The applicants’ counsel explained that the applicants were not pressing ground three of the further amended application. Later in the hearing, the applicants’ counsel clarified that the applicants also did not press each of the particulars at grounds one and two that referred to s.36(2)(aa) of the Act.
Ground one of the further amended application asserts that the Tribunal “failed to ask the correct question” and “failed to deal with the full integers of the [first] applicant’s claim”.
The remaining particular to the ground explains that the Tribunal failed to consider the ability of the Tongan state to provide protection. This is said to have occurred in the context of the Tribunal’s finding that the first applicant was able to access assistance from family members (with reference to Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 (“S152/2003”)).
In both written and oral submissions, the applicants traversed the various claims to fear harm advanced by the applicants, and in particular, the harm feared in relation to the first applicant’s cousin, a non-state actor.
In essence, the applicants’ argument, drawing from S152/2003, particularly at [21], was that the first applicant feared harm from a
non-state agent and the Tribunal failed to consider the willingness and ability of the Tongan state to discharge its obligation to provide protection to the applicants.
As a preliminary point, it is to be noted that the applications for the protection visas were made on 1 July 2014. That is, the applications were made prior to 16 December 2014. The definition of "refugee" for the purposes of the Act was amended by the insertion of s.5H of the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Act No 135 of 2014), which became operational on 17 April 2015 and related to applications made after 16 December 2014.
In short therefore, the consideration of the matter of state protection, had it been necessary (see below), would have been made in the context of the Refugees Convention.
However, in the current case, the applicants’ submissions did not satisfactorily explain the impact on their arguments of the Tribunal’s finding that the applicants did not have a well-founded fear of persecution for any of the reasons they had advanced.
In their submissions on ground one, the applicants did not seek to impugn the Tribunal’s findings that informed that conclusion. In any event, those findings were reasonably open to the Tribunal on what was before it.
In this light, there was no need for the Tribunal to consider the matter of state protection. If there is no well-founded fear, then there can be no necessity to call on the state to provide protection (see SZQKC v Minister for Immigration and Citizenship [2012] FCA 249; (2012) 206 FCR 253 and SZQGU v Minister for Immigration and Citizenship [2012] FCA 340).
That is sufficient to dispose of the applicants’ ground one. However, the Minister also submitted that, in any event, the Tribunal did consider the relevance of the question of state protection in relation to the first applicant's claims of a fear of harm because she was a single mother who feared sexual harassment ([112] at CB 387).
However, the Tribunal specifically made clear in the following paragraphs of its decision record that, in relation to this claim, the availability of state protection was not the basis for its consideration on this claim.
The Tribunal accepted that the first applicant may face “being insulted, called names, looked down upon or experiencing low-level discrimination" ([113] at CB 387). However, the Tribunal found that this did not meet the definition of “serious harm” in s.91R(2) of the Act ([113] – [114] at CB 387). The Tribunal found similarly in relation to the complementary protection criterion ([115] at CB 387 to [116] at CB 387 to CB 388). These findings were also reasonably open to the Tribunal to make on what was before it.
I note that neither the applicants’ grounds, nor submissions made on their behalf, sought to challenge these findings (however, see ground two below). In all, ground one is not made out.
Ground two asserts that the Tribunal failed to apply the correct test at law. Ultimately, the remaining particular pressed in relation to ground two directs attention to [113] (at CB 387) and [116] (at CB 387 to CB 388) of the Tribunal's decision record.
The applicants’ written submissions appeared to explain ground two as being that the Tribunal failed to apply the correct test because it failed to find that "criminal acts involving sexual harassment" constituted serious or significant harm ([26] of the applicants’ written submissions).
In oral submissions before the Court, the applicants did not advance this proposition.
In submissions before the Court, the complaint appeared to be an expression of dissatisfaction with the Tribunal’s findings that the claims involving sexual harassment did not constitute serious or significant harm, particularly in circumstances where the Tribunal accepted some of the first applicant’s claims in this regard.
First, there is nothing in the Tribunal’s decision record to indicate that the Tribunal misunderstood the relevant test (see, in particular, [5] at CB 371, [9] at CB 372 and [114] – [115] at CB 387).
Second, the Tribunal's analysis at the impugned paragraphs of its decision record ([113] at CB 387 to [116] at CB 387 to CB 388), when read in context, do not reveal any misapplication of the relevant test. I note that the Tribunal's analysis is nuanced as it, as the applicants otherwise submitted, accepted some of the first applicant’s claims in this regard. For example, the Tribunal accepted that the first applicant’s position as a single mother made her more vulnerable to sexual assault in Tonga ([112] at CB 387).
However, the Tribunal considered this in light of other country information before it which indicated that not all single mothers in Tonga faced a real chance of sexual assault. In this light, the Tribunal was satisfied that “the [first] applicant’s supportive family network has in the past, and would in the future, significantly reduce the chance or risk of this [sexual assault] occurring" ([112] at CB 387).
This illustrates, and supports, the Minister’s submission that ground two fails because the Tribunal's judgement as to whether particular conduct amounts to serious harm is a question of fact and degree (Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [49] and [51]). The Tribunal's analysis in this regard was probative of the evidence and information before it. Its findings were reasonably open to it and intelligibly explained. Ground two is not made out.
Ground four (or “new” ground three) asserts that the Tribunal's decision was legally unreasonable. The ground directed attention to “psychiatric reports”. The reports referred to by the applicants’ submissions now are as follows. One, a psychological report by Dr P Naidoo (the “earlier” report) dated 25 January 2013, regarding the first applicant (CB 142 to CB 146). Two, a psychiatric report by Dr P Naidoo dated 22 April 2016 (the “later” report), also in relation to the first applicant, which "confirmed" the earlier report (CB 343 to CB 345). Three, a report from Dr A Milch dated 25 May 2016 concerning the second applicant (CB 356 to CB 362).
In written submissions, the assertion of error was explained as being that it was legally unreasonable for the Tribunal to accept the diagnosis in the reports by Dr Naidoo, but reject the recommendations made in the same reports. Further, the Tribunal's decision was unreasonable because it relied on the findings in the report by Dr Milch to "rebut" the "findings" made by the first applicant’s psychiatrist (Dr Naidoo), in circumstances where this report was "limited" to the child (the second applicant).
The applicants sought to rely on SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 (“SZSFS”) to argue that legal error, as found in that case, applied also in the circumstances of this case. In the current case, the Tribunal accepted that the first applicant had a chronic major depressive disorder and mental health issues as diagnosed by Dr Naidoo, but rejected Dr Naidoo’s recommendations that the first applicant should continue her treatment, and if she were returned to Tonga would be unable to do so, which would result in harm to her.
The Minister submitted, with reference to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42], that the issue of unreasonableness is "invariably fact dependent". The applicants did not dispute this. In fact, their submissions make that very point (see the applicants’ written submissions at [37] and the reference there to Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1).
That directs attention to the facts before the Tribunal, and the Tribunal’s reasoning on those facts.
The Tribunal accepted that first applicant had experienced mental health issues including a chronic major depressive disorder and the symptoms of post-traumatic stress disorder ([130] at CB 389 to CB 390).
However, the Tribunal found "some contradiction" in the evidence as it related to the first applicant’s "current mental state" ([130] at CB 389 to CB 390).
It is to be noted that the psychiatric reports outlined above at [43] were not the only psychological or psychiatric evidence before the Tribunal. The applicants had also provided evidence from a Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) doctor (see the STARTTS report of 26 November 2015 at CB 314 to CB 316), and a letter from Professor Lee dated 24 March 2016 (CB 285 to CB 297). Both of these documents were provided by the applicants’ migration agent to the Tribunal.
The Tribunal identified that while Dr Naidoo in her later report of 22 April 2016 (confirming her earlier report of 25 January 2013) expressed the view that the first applicant’s symptomology had “worsened”, the reports from STARTTS and Dr Milch indicated some improvement in the first applicant’s condition ([130] at CB 389 to CB 390).
The Tribunal gave reasons for assigning "relatively greater weight" to the reports of Dr Milch and the STARTTS report, than those of Dr Naidoo. The Tribunal explained this with reference to the first applicant’s own oral evidence at the hearing that "indicated some improvement in her condition" ([130] at CB 389 to CB 390).
Further, that the report from Dr Milch did not identify any "current abnormalities on mental state examination", and noted that the first applicant had ceased attending psychological treatment, and had not been prescribed medication ([130] at CB 389 to CB 390).
The Tribunal also found that the reports from STARTTS and Dr Milch "indicated that the [first] applicant had developed effective coping strategies managing her problems herself". Again, the Tribunal found these reports were consistent with the first applicant’s own evidence ([130] at CB 389 to CB 390).
It was in this context that the Tribunal found that it accepted that there might be some slight deterioration in the first applicant’s mental state on her return to Tonga ([131] at CB 390).
However, the Tribunal reasoned that that “of itself” did not amount to persecution or significant harm. The Tribunal explained this with reference to its understanding of those concepts. This finding was reasonably open to it on what was before it.
Dr Naidoo’s recommendation, which the applicants now say the Tribunal did not accept, is set out in the report under the heading of “opinion”. The recommendation arising from that opinion is (CB 345.3):
“Again I would repeat my statement in my previous report that I think that a return to Tonga would be, given her vulnerability, extremely damaging to her in terms of her psychological and psychiatric functioning. I believe it would be unconscionable especially when one considers the consequent flow-on psychological trauma that would affect her child.”
The Tribunal did focus on the likelihood of what would occur if the first applicant were to return to Tonga. As set out above, the Tribunal did consider the first applicant’s “mental state if forced to return to Tonga". ([131] at CB 390).
The Tribunal accepted that there may be a "significant deterioration" in the first applicant’s mental state ([131] at CB 390). This was based on all of the psychological and psychiatric reports before the Tribunal, including Dr Naidoo’s reports.
The Tribunal did not reject Dr Naidoo’s recommendation. To the extent that the applicants’ ground implies that it did, that must be rejected.
What followed the Tribunal’s finding at [131] and [132] to [137] (at CB 390) of its decision record, is the Tribunal's examination of all of the evidence before it relating to the first applicant’s mental health issues (and the second applicant’s mental health issues at [137]). It must be emphasised, given the applicants’ submissions, that the Tribunal’s focus, properly, was whether, on the facts as found, in relation to these mental health issues, the applicants would satisfy either of the criteria at s.36(2) of the Act for the grant of the protection visas.
The Tribunal's analysis at paragraphs [134] – [137] (at CB 390) is clear. The Tribunal found, based on the evidence before it, that:
“[134] The evidence before the Tribunal, however, indicates that the major events contributing to the applicant’s mental health issues occurred during her childhood or following the birth of her daughter. Despite these circumstances, the applicant has subsequently been able to find employment and maintain employment in Tonga. The applicant has not personally complained of any past stigma, discrimination, harassment or violence attributable to her mental health issues in her evidence to the Department or Tribunal.
[135] The evidence also suggests that in the course of her psychological treatment and as a result of having been assisted to process her traumatic memories, the applicant’s symptoms have significantly reduced or abated. The applicant has developed positive coping strategies and is not currently receiving treatment including medication in Australia. In these circumstances, the Tribunal is not satisfied that even allowing for a deterioration in her mental health, there is real chance or risk of the applicant suffering social stigma, discrimination, harassment, violence or lack of employment to a level constituting serious or significant harm as a consequence of any mental illness. Nor is the Tribunal satisfied that there is a real chance or risk of the second applicant suffering serious or significant harm as a consequence of his mother’s mental illness.
[136] The Tribunal is prepared to accept that mental health services may be less readily available in Tonga than in Australia. However, noting that the applicant is not currently availing herself of any mental health services in Australia, and has not in the past sought such services in Tonga, the Tribunal is not satisfied that this circumstance involves persecution or significant harm.
[137] The Tribunal has also considered the opinions expressed by Dr Milch in relation to the second applicant, notably that his developmental progress is likely to be compromised and he may be more vulnerable to future depression should he return to Tonga. However, the Tribunal is also not satisfied that these circumstances involve any conduct, act or omission by another party amounting to persecution or significant harm.”
I do not accept that the Tribunal’s reasoning was unreasonable in the requisite sense. There is nothing to indicate that the Tribunal's decision was arbitrary or capricious.
The applicants sought to criticise the Tribunal's reliance, in part, on the report from Dr Milch. That report is at Court Book pages 356 to 362. It was submitted to the Tribunal by the applicants’ migration agent for the purposes of the review.
The complaint now is that the Tribunal's decision was unreasonable in this regard because it used the "reflections" in Dr Milch's report about the second applicant, to find “adversely” to the first applicant.
In submissions before the Court, the applicants submitted that Dr Milch was a child psychiatrist. The inference was that it was not open to the Tribunal to have regard to his report because his expertise was “limited” to child psychiatry and not to an adult such as the first applicant.
As the Minister submitted, Dr Milch also presented himself as an "adult psychiatrist" (see CB 356.1).
In any event, the applicants’ argument appears to be that it was not reasonably open to the Tribunal to "use" this report “adversely” to the first applicant, because it was submitted to the Tribunal in relation to, and is primarily about, the second applicant.
As noted above, Dr Milch’s report was submitted to the Tribunal by the applicants’ migration agent (see CB 355). While the report is said to be "the psychiatrist report for Master [second applicant]," the covering letter submitting the report specifically asked the Tribunal to "read [the report] in context with the other reports before the Tribunal, in particular that of Professor Lee and Dr Nadoo (sic)" (CB 355.4).
Further, there is nothing in the covering letter from the migration agent seeking to limit the Tribunal’s consideration of the report to the second applicant. In fact, the other reports to which the covering letter refers relate specifically to the first applicant.
The first applicant attended with her son at an interview with Dr Milch (CB 356.4). Dr Milch "perused" the reports of Dr Naidoo of 25 January 2013 and 22 April 2016, and the letter from Professor Lee.
It is clear from what emerges in the report that the first applicant gave information about herself to Dr Milch (see for example, [5] and [6] at CB 357). The second applicant’s situation, according to Dr Milch, was affected by the "psychosocial stressors" on the first applicant. Dr Milch gave an opinion concerning not only the second applicant, but also the first applicant (see for example, "…[s]hould [the second applicant] and his mother experience significant mental health problems…”) ([17] at CB 359).
Ultimately, the applicants, through their migration agent, put a psychiatric report before the Tribunal in support of their claims to fear harm. There is nothing in the circumstances of this case, or the law, to say that the Tribunal was prevented from having regard to the entirety of the report. If anything, a failure to have regard to a claim that may have arisen from the report in relation to the first applicant, may well have been the basis for a ground of review.
Nor are the circumstances of this case similar to the circumstances in SZSFS, the case on which the applicants now rely. In that case, the Tribunal accepted most of the evidence from psychiatric reports. What the Court found was unreasonable was that notwithstanding this, the Tribunal found adversely to the applicant’s credit without considering the effect of the applicant’s psychological condition and how it may be relevant to the question of his credibility. That is not the situation in this case.
In all, the Tribunal accepted the diagnosis given by the psychiatric reports in relation to the first applicant. However, it gave an intelligible justification for giving "relatively greater weight" to some of the content in the reports of Dr Milch and the STARTTS doctor, than the opinion of Dr Naidoo.
There was nothing unreasonable, capricious or arbitrary about the Tribunal's analysis and its findings on the psychiatric evidence. The Tribunal explained cogently, why it assigned weight to the evidence before it in the way that it did. Its findings were all reasonably open to it. Ground four (or “new” ground three), is not made out.
Conclusion
The grounds of the further amended application, as pressed, do not reveal jurisdictional error on the part of the Tribunal. It is therefore appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 12 July 2018
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