CND16 v Minister for Immigration
[2017] FCCA 708
•3 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CND16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 708 |
| Catchwords: PRACTICE & PROCEDURE – Application for adjournment – whether an adjournment would be in the interests of the administration of justice – adjournment application refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 438, 476 |
| Cases cited: BKH15 & Ors v Minister for Immigration & Anor [2016] FCCA 546 |
| First Applicant: | CND16 |
| Second Applicant: | CNE16 |
| Third Applicant: | CNF16 |
| Fourth Applicant: | CNG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2419 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 10 April 2017 |
| Date of Last Submission: | 10 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2419 of 2016
| CND16 |
First Applicant
| CNE16 |
Second Applicant
| CNF16 |
Third Applicant
| CNG16 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 August 2016 affirming a decision of the delegate not to grant the applicants protection visas. The first and second applicants are husband and wife and the third and fourth applicants are their children who have joined the application as members of the family unit.
All four applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The applicants are Catholic Sinhalese. On 24 November 2013, the first applicant and the second applicant and the third and fourth applicants entered Australia as the holders of FA 600 visas, which expired on 24 December 2013. On the day those visas expired, being 24 December 2013, an application for protection was lodged. That application for protection, on page 16 of the Court book, identified that the visas had been issued on 27 August 2013.
The application for protection identified that the applicants remained in Italy until October 2013 found on page 17 of the Court book. The application identified that the first applicant spoke, read, and could write Sinhalese, Italian, and English. Annexed to the application was the first applicant’s statement, which was in English and comprised 104 paragraphs and was signed by the first applicant. That statement was made without an interpreter.
Also provided to the Department was a statutory declaration dated 9 January 2014 in English signed by the first applicant, comprising 153 paragraphs. On 28 August 2014, a delegate refused the grant of protection visas to the applicants.
The Previous Tribunal Decision
On 21 September 2014, the applicants lodged an application for review.
On 26 June 2015, a differently-constituted Tribunal affirmed the decision of the delegate following which, on 7 April 2016, a Judge of this Court issued writs quashing that decision and remitting the matter to the Tribunal for further assessment.
The Current Tribunal Decision
The current Tribunal on 29 June 2016 invited the applicants to attend a hearing on 21 July 2016. The applicants appeared on that date to give evidence and present arguments and were assisted by their migration agent who is a legal practitioner.
The applicants were given a further period of time to provide further information on or before 4 August 2016. The applicants’ migration agent provided further information to the Tribunal on 12 August 2016, as well as providing further information on 15 August 2016.
The applicants’ claims
The Tribunal identified the applicants’ background and set out the relevant law in an Attachment A to its reasons. The current Tribunal summarised the applicants’ claims, in paragraph 13 by incorporating the content of paragraph 4 from the earlier Tribunal’s reasons, and having checked the same against the source from which it was derived. It is apparent from the current Tribunal’s reasons that it independently checked that summary.
Relevantly, those claims were as follows:
·The applicant is Sri Lankan, as are her husband and children; however, all are Permanent Resident Holders for Italy. The applicant and her children have both lived between Italy and Sri Lanka, and her husband has lived and worked most of his adult life in Italy. They own houses in both Sri Lanka and Italy. Two of the applicant's three sisters and one of her brothers currently live in Italy. The husband has a sister who is a Permanent Resident in Australia;
·In 1991 the applicant travelled to Italy with her brother, leaving her parents and younger sister at home. The applicant's other brother and sisters had already settled in Italy. The applicant met her husband in Italy, and they returned to Sri Lanka on 31 August 1994 and became engaged, and were married in [a] church on 25 January 1997. The applicant's husband was not concerned regarding threats in returning to Sri Lanka because the JVP armed movement had been crushed. The applicant and her husband had two children, purchased property, and were living a happy life in Italy. However the applicant continued to worry about her parents;
·In 2004 the applicant returned to Sri Lanka with her two children to care for her mother. This arrangement continued on and off for the applicant's mother's benefit, including during the final stages of the war against the Liberation of Tamil Tigers of Eelam (LTTE). The LTTE were finally defeated in May 2009. The applicant's mother was diagnosed with bowel cancer, and the applicant continued to care for her after this time;
·The first Parliamentary election was held in Sri Lanka after the end of the Civil War on 8 April 2010, and this is when the applicant's difficulties started. The Parliamentary candidate representing Puttalum district was Mr [X], and he visited the applicant's house with a group of UPFA supporters in February 2010. The applicant's childhood friend, [Y], was the leader of the group of supporters. [Y] invited the applicant to become involved and, although the applicant was not interested in politics, she felt obliged to her friend and agreed to become involved in a limited manner (due to her ongoing caring commitments);
·On 27 February 2010 the applicant was campaigning with [Y] for Mr [X], (although the latter was not present). When the applicant was being driven home with [Y] by a person named Jayanath, two cars stopped them on the road and the applicant heard gunshots. The applicant feared for her life but was spared. The cars then sped away and the applicant realised Jayanath, who was in the front seat, had been shot dead. The applicant and [Y] screamed and within seconds people came to help them. Within half an hour the police arrived and took the applicant and [Y] for questioning, and they were interviewed separately. The applicant was very nervous and had to sign a document regarding what she had seen. The applicant has been criticised by her husband, her parents and her siblings for becoming involved in Mr [X]'s campaign when she had no genuine interest in politics;
·The police believe the shooting was politically motivated, and although no one was apprehended, many people believe it is the work of the United National Front (UNF), who [were] the main opposition in coalition with the former United National Party (UNP). Mr [X] was victorious in being elected, and [Y] was rewarded with a well-paid job;
·The applicant's mother continued to have ongoing health problems, and as a result, the applicant lived in Sri Lanka from the end of 2004 until 2011. In April 2012 the applicant returned to Italy for her husband's birthday, almost 4 years since the last visit, then returned to Sri Lanka. The applicant's husband was under a lot of financial pressure. In addition the applicant's husband's father became ill, and her husband returned to Sri Lanka to care for, and live with, his father, (rather than the applicant);
·On 21 August 2012 the applicant had just returned from bringing her children home from school when four policemen entered her house and asked her to go with them in relation to the previous murder that she witnessed during the 2010 Parliamentary election. The police told the applicant that they had a suspect and wanted her to come to the station. The applicant told the police that it was a dark night and she did not see anyone and could not identify anyone. The applicant and her mother both resisted the applicant attending the police station, but the police insisted and she therefore attended;
·The applicant was taken to the Nattandiya Police Station in Marawila, and after some time [Mr X] entered the room with two police officers. [Mr X] stated he knew who had killed Jayanath and wanted the applicant to appear as a witness. They showed the applicant a photo of another MP from the United National Front, Palitha Bandara. The applicant refused to appear and said that she could not identify the people in the shooting. The applicant felt that they were trying to frame Palitha Bandara;
·The applicant was then told that they had a witness statement from her friend [Y], but that they could not convict him without the applicant's statement. The applicant continued to refuse and was then threatened. The applicant's family were at the police station, and when the applicant told her husband of the threats made against her, he immediately advised her to go to Italy. The applicant was loath to leave her mother, but with her parents urging, she scheduled her travel to Italy for 3 September 2012;
·On 26 August 2012, three men broke into the applicant's house at approximately 11 pm and threatened the applicant and her family with death. The applicant's children were pulled from her arms and she was threatened with a pistol. The applicant was blindfolded and then driven in a vehicle for approximately 2 hours. Once she was released from the vehicle and the blindfold was removed uniformed policemen entered the room and said they were doing a criminal investigation and asked the applicant to cooperate. The applicant was assured she would be released unharmed if she provided truthful assistance. The applicant was again questioned in relation to her witnessing the murder, and repeated information given in her initial statement. The applicant was then given a written statement stating that she had seen that Palitha Bandara was behind the murder. The applicant initially refused to sign the statement, but due to being physical beaten and threats made against her life, the applicant signed the document. The applicant was then blindfolded and returned to a street near where she lived. The applicant was advised not to report her treatment;
·The applicant's family were happy when she was released, and they all departed Sri Lanka on 3 September 2012 as planned. The applicant believes she was very lucky to escape a life threatening situation and continue her life in another country. While the applicant was in Italy her mother fully recovered from her illnesses and was then free of cancer. The applicant was happy, but her only concern was for the safety of her parents. The applicant encouraged her parents to come to Italy, but they had no interest in doing so;
·The applicant believed that a case could not be built against Palitha Bandara without her, and her parents were confident they would not be targeted. The applicant was advised that she should not travel to Sri Lanka even if she no longer felt under stress because politics, law enforcement is absolutely corrupt from the top to the bottom and she could not predict what would be done to her if she returned;
·Italy is a very good country and has good political, social and judicial systems. It protects Human Rights and is open to millions of asylum seekers worldwide. The applicant never dreamt of leaving Italy, but then their lives were threatened by the mafia called Camorra;
·On 7 July 2013 the applicant received a threatening phone call from an unknown person who identified himself as from Camorra. The caller advised the applicant that he was aware of her roots and that she should return to where she came from. The applicant believed it may have been someone from their own community who knew her background and shouted at him that she would call the police and hung up the phone. The applicant then told her husband about the call. A few minutes later the phone rang again and when the applicant answered she realised it was the same person. The applicant then handed the phone to her husband, who then made threats to the caller, believing he was a member of their own community. Believing they did not have enough evidence to go to the police, the applicants continued with their lives as normal;
·On 9 July 2013 two men in black masks approached the applicant's house at about 11am, they claimed to be the police but when the applicant opened the door they pushed her inside and shut the door. The applicant was threatened with a gun, and one of the men said he had made the telephone calls two days earlier. The applicant knows that the mafia are very dangerous in Italy and that they will not hesitate to kill anyone. The person then threatened the applicant by saying she should return to Sri Lanka and assist the police in their investigation or she would be killed. The applicant was also told not to report the incident to the police in Italy, and her life was threatened;
·The applicant assured them that she would leave Italy and do as they had asked, and asked for time to prepare. The applicant was given three months, and agreed to leave Italy within three months for the sake of her own and her family's safety;
·The applicant advised her husband what had happened and he suggested they go to the police, but the applicant resisted this. The applicants knew they needed to do something or they would be killed, and her husband suggested they move to Australia where his sister is a citizen and they could live safely. The applicant's husband spoke to his sister, who assured them she would do anything to protect them. The applicants considered entering Australia under Humanitarian grounds, but were concerned about assumed implausibility of their story. Knowing they had to act within three months they decided to enter Australia as Tourists and then apply for Protection at a later date. At the end of August 2013 their visas were granted;
·The applicants decided not to sell their house in Italy so as not to raise the suspicions of the Camorra. The applicants also decided to travel via Sri Lanka so that the Camorra would not know the whereabouts of their next destination [after leaving Italy];
·The applicant realised that there was some risk in entering Sri Lanka, but were certain that they could be safe temporarily. The applicants entered Sri Lanka on 2 October 2013. They stayed with a friend of the applicant's husband. The applicants departed Sri Lanka on 24 November 2013 without coming to the notice of the Sri Lanka authorities. They then had one month to prepare and submit their protection visa application, and they submitted and incomplete statement on 24 December 2013.
Consideration of claims and evidence
Inconsistent evidence
The Tribunal also referred to a submission made to the earlier Tribunal and referred to issues raised by the earlier Tribunal in respect of contradictory evidence between the applicants’ statutory declaration and oral evidence during that earlier hearing.
The Tribunal made reference to the fact that when those contradictions or conflicts in evidence were raised, the first applicant said that her sister-in-law had prepared her documents and that she had not read her statutory declaration and did not know what it contained. The first applicant alleged that she only had a basic understanding of English and alleged that her mental state was unstable and that that may have influenced the inconsistencies in her evidence.
The Tribunal made reference to the applicants’ evidence and the post-hearing submissions and that the Tribunal had been unable to form a favourable view on the material before the Tribunal and accordingly invited the applicants to attend a hearing. The Tribunal summarised the applicant’s evidence from the submissions as well as what occurred when the current Tribunal raised any credibility concerns with the applicant in the course of the hearing.
The current Tribunal referred to the first applicant’s whole case, stemming from her purportedly having witnessed the murder of an activist on 27 February 2010 by an assassin who she says she was unable to identify and who she evidently did not identify in the purported 27 February 2010 police information book report, a copy of which was provided to the previous Tribunal. The current Tribunal made reference to the purported newspaper article recording that the applicant and her fellow witness were unable to identify the person because they were covered head to toe in black mask and clothing.
The Tribunal referred to the crux of the applicant’s case being her claim to the effect that she was put under pressure from her local MP to accuse an opposition politician somehow of committing the murder. The evidence in support of this was identified by the Tribunal as being the first applicant’s oral and written evidence and her husband’s claim recounting what the first applicant told him as well as the purported newspaper articles about the shooting of the person and a purported report by the applicant in the police information book, a summons to appear that was submitted only days after the applicant had told the previously constituted Tribunal that she was unaware of there ever having been any relevant court matter, and two purported warrants for arrest of the applicant for failing to appear in court, which she submitted to the previously constituted Tribunal days after telling the Tribunal she was unaware of any relevant court case in the matter.
The current Tribunal also referred to the applicant’s categorical denial that there were ever any arrest warrants issued in her name, contradicting the material she submitted to the previously constituted Tribunal as evidence of two arrest warrants in her name. The applicant claimed, albeit without the help of the two warrants, which the applicant informed the current Tribunal did not exist, that the relevant MP had co-opted the Sri Lankan Police into forcing her, under threat of death, to provide, exaggerate, or falsify her evidence in order to implicate the other Member of Parliament in the killing of the relevant person.
The first applicant claimed that the relevant MP had somehow directly or indirectly engaged the Camorra in Italy to intervene on his behalf to force the applicant to return to Sri Lanka and comply with his demand that she give evidence or face serious harm. The Tribunal took into account the first applicant’s explanation for the inconsistencies being due to errors made by her sister-in-law preparing the first applicant’s statements, but having considered the evidence in the matter in its entirety, gave little weight to that suggestion.
The Tribunal gave more weight to the applicant’s ability to read and write and speak in English and also the fact that there are many problems in her evidence that can in no way be attributed to the involvement of her sister-in-law, such as her own contradiction of the existence of two purported arrest warrants that she herself submitted to the previously-constituted Tribunal.
The purported warrants
The current Tribunal found that it could not rely on the genuineness of the purported warrants. The Tribunal found the applicant’s evidence about the status of the warrants was deeply confused and did not accept that the warrants were ever executed in relation to her. The current Tribunal was not satisfied that the applicant faces or ever faced arrest in the matter for not giving evidence in respect of the relevant person’s alleged shooting. The current Tribunal found the applicant was not truthful about having been placed under pressure by the MP or anyone else to present fabricated or tailored evidence in a court of law in Sri Lanka.
The Tribunal found the production of the false arrest warrant documents support the finding that the applicant was not a witness of truth. The Tribunal, though noting some difficulty, was prepared to accept that the first applicant was in a car with the relevant person on 27 February 2010 at the time and place described in the evidence in the case and that she witnessed his being shot to death by an unidentified person covered head to toe in black.
The current Tribunal referred to the evidence that the first applicant provided at the summons, which by its existence, suggested that someone must have been charged but that the first applicant claims the MP tried to coach her about what to tell the court even though she told the previously constituted Tribunal she was not even aware of a court case ever having commenced. The current Tribunal also referred to the first applicant having alleged that she was in police custody on 21 August 2012, the day the police and the relevant MP wanted her to appear in court as their witness, yet made no attempt to present her there and instead purportedly let her go.
The current Tribunal found the two arrest warrants to be false. The current Tribunal did not accept there was ever a court trial in the matter of the shooting of the relevant person, which means there was no trial for the MP and the police to try and force the first applicant to attend, let alone to give evidence as instructed by the MP.
On fleeing Sri Lanka
The current Tribunal found that the applicant had given contrary evidence in relation to her immediate circumstances under which she was supposed to have fled to Italy. The current Tribunal did not accept that the first applicant left Sri Lanka on 3 September 2012 due to fear of being harmed at her resistance to giving evidence against the other MP.
The current Tribunal did not accept that the shooting of the relevant person ever led to any effort at all on the MP’s part to get the first applicant to give evidence that he wanted her to give. The current Tribunal did not accept, on the evidence, that the particular MP and the first applicant ever met after the killing of the relevant person and did not accept the evidence that the first applicant left Sri Lanka secretly in September 2012.
Findings in relation to the refugee criterion
The current Tribunal was not satisfied that the applicants are persons with respect to whom Australia has protection obligations.
The current Tribunal found that the applicants’ claims of Convention-related persecution were not well-founded. The current Tribunal found the applicants are not refugees. The current Tribunal found that the applicants do not satisfy the criteria under s.36(2)(a) of the Act.
Findings in relation to complementary protection criterion
The current Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there is a real risk that they will suffer significant harm.
The current Tribunal found that the applicants were not persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Before this Court
Grounds of the application
The grounds of the current application are as follows:
1. The Tribunal's decision was affected by apprehended bias.
Particulars
a. The Tribunal referring to evidence simply cut out and pasted the former Tribunal's decision rather than considering the evidence by perusing a properly prepared transcript of the evidence given to the former Tribunal.
b. The Tribunal drew a distinction between warrants and summonses where, in lay terms, none existed.
c. The Tribunal referred to, in its findings, issues not raised by the Applicant.
d. The Tribunal made a finding adverse to the Applicant based on a question in the application form indicating that the Applicant could read, write and speak English where the form did not indicate the level of ability.
The Applicant required an interpreter at both Tribunal hearings.
2. The Tribunal failed to carry out its duty to review.
Particulars
a.(i) The Applicant claimed that her oppressor tried to force her to give falsified evidence.
(ii) The Tribunal only considered whether the factual evidence that could be given would be sought by her oppressor.
b. The Tribunal only considered whether the lack of schooling in Sri Lanka of the Third and Fourth Applicants could lead to persecution without considering whether it could lead to significant harm.
3. The Tribunal's decision was irrational and/or illogical.
Particulars
a. The Tribunal sought to apply logical western reasoning to an international criminal organisation.
b.(i) The Tribunal found that simply because the Applicant had plans in place to depart Sri Lanka she couldn't be said to be leaving for a fear of any harm.
(ii) It may have simply been fortuitous that the plans were in place.
(iii) It does not necessarily mean that the Applicant was not fleeing Sri Lanka due to a fear of harm.
(iv) The Tribunal's finding that the Applicant's return to Sri Lanka was 'registered' does not necessarily mean that bribes were not paid to obtain the 'registration' and evade notice on her return.
c. There was no reason to assume that the Applicants would take any interest in the trial of [Mr X].
d.(i) It is not logical to find that there was no case in court because her oppressors did not try to present the Applicant in Court
(ii) The Applicant refused to give contrived evidence. It was, therefore, logical that she was not presented to the Court.
e.(i) The Applicant's didn't need to apply for protection in Italy because they had a right to reside there.
(ii) The Tribunal's adverse finding because protection was not applied for is, therefore, illogical.
4. The Applicants were denied procedural fairness.
Particulars
a. The Tribunals findings at paragraph 91 about the actions of Mr. [X] is based on speculation and guesswork and not reasonable probative evidence.
Consideration of Grounds
Ground One
In relation to Ground 1, Mr Turner, solicitor for the applicant, took the Court to paragraphs of the current Tribunal’s reasons, which incorporated an indented summary of the applicant’s claims and part of the concerns raised in relation to the applicant’s contradictions by the earlier Tribunal. The current Tribunal clearly considered and properly identified the information taken into account from the earlier Tribunal. It was open to the current Tribunal to accept the summary used and to set out the same.
The Court does not accept that there was a scissor and pasting exercise undertaken by the current Tribunal. On a fair reading of the current Tribunal’s decision, there has been a real and genuine intellectual engagement with the applicant’s claims and the adverse findings made by the current Tribunal were open on the material before it and cannot be said to lack any intelligible justification.
Further, it is apparent that the current Tribunal complied with its statutory obligations in the conduct of the hearing and that the applicants had a real and meaningful opportunity to present evidence and arguments and did so. The suggestion of an allegation of apprehended bias on the basis of the reference to the earlier Tribunal’s summary is without substance. The suggestion that there was a basis for finding bias because of the reference to the warrants and summons is equally without substance.
It is apparent that the current Tribunal correctly understood the evidence that was before it in relation to the warrants and the summons and correctly identified the first applicant’s evidence in respect of those different documents.
In relation to an alleged issue not raised by the applicant, Mr Turner submitted that the Tribunal had taken into account in respect of the applicants’ delay in leaving Italy, a movement record that had been the subject of the basis upon which jurisdictional error had been found by the earlier Court in BKH15 & Ors v Minister for Immigration & Anor [2016] FCCA 546.
Mr Turner submitted that the facts found by the Tribunal could only have come from the movement record. The Court raised with Mr Turner whether in that regard such a finding could be made in the absence of a transcript.
Mr Turner sought an adjournment in order to obtain the transcript of the first Tribunal hearing and the current Tribunal hearing. The application for an adjournment was opposed by Mr Smith.
It is fair to say that the applicants’ submissions and grounds did not clearly identify any s.424A issue in respect of the movement record. However, even accepting it at its highest that such an issue was raised, I accept Mr Smith’s submission that the findings made by the Tribunal were open on the information as identified in the application, to which I have earlier referred. I do not accept that the Tribunal’s reasons in relation to the delay in the applicants’ departure, having obtained the visa in Italy, was information derived from the movement record. I do not accept that the current Tribunal made any error of the kind identified in BKH15.
Accordingly, there was no proper basis to grant an adjournment as the transcript would not assist in establishing the alleged jurisdictional error. The Court is satisfied that an adjournment is not warranted in the interests of the administration of justice.
Further, I reject the submission that there were findings made by the current Tribunal in respect of issues not raised. Mr Turner also sought to agitate the rejection by the Tribunal of the applicant’s explanation of her sister-in-law for the first applicant’s inconsistencies. That is clearly a matter open to the Tribunal. No allegation of bias is made out. The summary from the previous Tribunal and/or the adverse findings by the current Tribunal are not conduct by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by Ground 1.
Ground Two
Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal that were open. It was open to the Tribunal to reason in relation to the applicant’s inability to identify the killer as a relevant credit issue in respect of her explanation in respect of her evidence. Further, in relation to the education of the third and fourth applicants it is apparent that was a matter referred to by the Tribunal both in relation to the consideration of the issue of whether the applicants were refugees through paragraph 107 as well as the incorporation through paragraph 110 and the adverse findings in respect of complementary protection. No jurisdictional error is made out by Ground 2.
Ground Three
In relation to Ground 3, Mr Turner submitted that the Tribunal had, in substance, approached the fact-finding in relation to the applicants’ evidence and the conduct of the criminal organisation through flawed western eyes. There is no substance in this submission and it is in reality an invitation to this Court to engage in impermissible merits review. There was no failure by the Tribunal to carry out its duty to review the decision of the delegate.
Mr Turner also sought to attack the reasoning of the current Tribunal in paragraphs 96 to 98 as well as raising issues in respect of the reasoning of the Tribunal in paragraphs 92 to 94. None of the matters raised by Mr Turner identified any irrational or illogical reasoning by the Tribunal. The adverse findings were open to the Tribunal. No jurisdictional error is made out by Ground 3.
Ground Four
In relation to Ground 4, reference is made to part of the Tribunal’s reasoning in paragraph 91. The Tribunal’s reasons are to be read as a whole. Paragraph 91 was not a finding on its own but was part of the reasoning in which the Tribunal legitimately and properly identified a concern in respect of the applicant’s credibility. There was no denial of procedural fairness as alleged by ground 4. The application fails to make out any jurisdictional error.
The Court notes that Mr Turner was aware of the certificate issued under s.438(1)(a) on 9 March 2016 in the present case. No alleged jurisdictional error was raised in this regard. On the evidence before the Court the subject matter of the certificate could not possibly have impacted on the reasoning of the Tribunal in the review and Mr Turner was correct in there being no jurisdictional error in this regard.
Conclusion
The application is dismissed.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 3 May 2017