Cno16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 58
•9 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CNO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 58
File number(s): MLG 1930 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 9 February 2022 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of Sri Lanka – Subclass 866 Class XA Protection visa – whether denial of procedural fairness – whether wrong legal test – disclosure certificate – whether jurisdictional error. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s.8(2)
Migration Act 1958 (Cth), Div 4, Pt 7, ss.36(2), 424A, 425, 425A, 438, 476Cases cited: AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688
AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FHX20 v Minister for Immigration, Citizenship, Migrant Services [2021] FedCFamC2G 202
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 31 January 2022 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Mr C Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1930 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNO16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
9 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The originating application filed 8 September 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Before the Court is an application for judicial review filed by the applicant, CNO16,
on 8 September 2016 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). CNO16 is a citizen of Sri Lanka. The Judicial Review Application is made in respect of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) handed down on 18 July 2016 that affirmed the decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), made on 17 December 2014 to refuse to grant CNO16 a Protection Class XA Subclass 866 visa (“Protection Visa”).
BACKGROUND
The background to this matter prior to the Tribunal Decision is as follows:
(a)on 14 June 2013 CNO16 made a Protection Visa application: CB 1-35;
(b)the primary claim made by CNO16 was that he had been an active supporter of the United National Party (“UNP”) in Sri Lanka from 2009 until sometime before he left for Australia in early 2013: CB 18 and 63-66;
(c)on 19 September 2014 CNO16 was invited to an interview with the Delegate regarding his Protection Visa application: CB 87-90;
(d)on 22 September 2014 CNO16 attended an interview with the Delegate: CB 116 at [8];
(e)on 17 December 2014 the Delegate’s Decision was to refuse CNO16’s Protection Visa application: CB 107-128;
(f)on 29 December 2014 CNO16 applied to the Tribunal for review of the Delegate’s Decision: CB 130-136;
(g)
on 10 May 2016 the Tribunal invited CNO16 to attend a hearing before the Tribunal on 7 July 2016 (“Tribunal Hearing Invitation” and “Tribunal Hearing” respectively):
CB 141-144;
(h)on 5 July 2016 CNO16 provided submissions and supporting documents to the Tribunal: CB 150-168;
(i)on 7 July 2016 CNO16 attended the Tribunal Hearing, with the assistance of his lawyer and a Sinhalese interpreter: CB 170;
(j)the Tribunal Hearing went for over three hours: CB 170-172; and
(k)at the Tribunal Hearing CNO16 stated that he:
(i)no longer had any interest in the UNP: CB 186, Tribunal Decision at [34];
(ii)
had no intention at all to do anything in relation to politics on return to
Sri Lanka: CB 186, Tribunal Decision at [34]; and
(iii)has no fear on return to Sri Lanka due to having left the country illegally or by reason of being a failed asylum seeker: CB 186, Tribunal Decision at [37].
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)
accepted that CNO16 was a genuine supporter of the UNP in 2009-2010:
CB 187,Tribunal Decision at [47];
(b)found some of CNO16’s responses to its questions, and the explanations provided at the Tribunal Hearing, regarding his imputed political opinion to be vague, not credible and unconvincing and inconsistent: CB 188, Tribunal Decision at [50]-[52];
(c)
found, in light of the country information which the Tribunal discussed with CNO16 at the Tribunal Hearing and which was included in the Delegate’s Decision, that CNO16’s claims were implausible: CB 188, Tribunal Decision at [52], CB 190, Tribunal Decision at [61], CB 191, Tribunal Decision at [62], CB 191-192, Tribunal Decision at [65],
CB 193, Tribunal Decision at [67], CB 193-194, Tribunal Decision at [71], CB 194-195, Tribunal Decision at [74], CB 195, Tribunal Decision at [75], CB 196,
Tribunal Decision at [77], CB 197-198, Tribunal Decision at [78]-[80], CB 198, Tribunal Decision at [81], CB 200, Tribunal Decision at [88], CB 202-203,
Tribunal Decision at [90]-[91], CB 203, Tribunal Decision at [93]-[94] and CB 205, Tribunal Decision at [104]-[105];
(d)found that CNO16 was a low-level political activist, and noted that he was not a member of the UNP, and that “on his own evidence he has no formal status of any kind in the party”: CB 189 Tribunal Decision at [56];
(e)on the basis of the evidence and country information before it found CNO16 did not face a real chance of serious harm arising from his political opinion, noting also his express intention not to participate in politics and the six years that had passed since his involvement in politics: CB 187-198, Tribunal Decision at [46]-[82];
(f)found that CNO16 would not face a real risk of significant harm arising from his political opinion: CB 198, Tribunal Decision at [83];
(g)noting that CNO16’s family in Sri Lanka were well-resourced with property and other financial assets, and that CNO16 would have access to the emotional and economic support of his family, found that CNO16 did not face a real chance of serious harm on account of being “financially lost”: CB 198-199, Tribunal Decision at [84];
(h)accepted that as CNO16 had been away from Sri Lanka for a long time it would take him some time to re-establish, and that he may experience some emotional hardship due to leaving Australia, but was not satisfied that this would threaten his capacity to subsist, or that it otherwise amounted to serious harm: CB 198-199, Tribunal Decision at [84];
(i)found on the basis of the emotional and economic support that CNO16 could expect to receive from his family in Sri Lanka that the need to re-establish himself would not constitute significant harm as defined: CB 198-199, Tribunal Decision at [84];
(j)noted that CNO16 had once claimed to be Buddhist, and had now made claims in relation to his commitment to a Christian church, and that in this regard, the Tribunal found, on the basis of country information and the failure to put forward any claims in relation to proselytising or unethical conversions, that there was not a real chance of him suffering serious harm or a real risk of significant harm: CB 199-200, Tribunal Decision at [85];
(k)
in relation to CNO16 being a returnee to Sri Lanka from the West, and a failed asylum seeker, noted that although he was provided with an opportunity to do so, CNO16 did not raise this claim at the Tribunal Hearing: CB Tribunal Decision 200 at [87],
but the Tribunal nevertheless considered this claim, and accepted that CNO16 would be questioned at the airport on arrival in Sri Lanka, but found that he would not be detained or otherwise targeted for harm due to being a failed asylum seeker,
for his political opinion or for being a returnee from the West, and that on the basis of CNO16’s profile and country information he would not suffer serious or significant harm on these bases, noting in particular that CNO16 is Sinhalese with no adverse profile: CB 200-205, Tribunal Decision at [87]-[103];
(l)in relation to CNO16’s illegal departure from Sri Lanka and having regard to country information, accepted that CNO16 would be questioned at the airport in Sri Lanka in accordance with standard procedures, and that he may be detained for up to a few days, and would likely have to pay a fine, but that these procedures were part of a law of general application, and was not satisfied that CNO16 would face any serious or significant harm from the imposition of any fine, or that the process of being charged and possibly convicted amounted to significant harm: CB 205-206, Tribunal Decision at [104]-[110];
(m)having regard to his background and circumstances, found only a remote chance that CNO16 would spend more than a very short period of time in custody pending bail and a remote chance that he would be subjected to harm by the Sri Lankan authorities during any brief period of remand, and was not satisfied that he would face any more than a remote chance of serious harm in this context: CB 206, Tribunal Decision at
[111]-[112];(n)did not accept that the Sri Lankan authorities would intentionally seek to harm CNO16 by placing him in poor prison conditions, and found that the risk that CNO16 would be subjected to torture or any other form of significant harm was remote and that any treatment CNO16 would face on return to Sri Lanka would not amount to significant harm, and therefore found that CNO16 would not face a real risk of significant harm while detained on remand: CB 207, Tribunal Decision at [115]-[117];
(o)
having regard to the evidence before it found that CNO16 did not have a real chance of serious harm or a real risk of significant harm due to his illegal departure from
Sri Lanka, taken alone or in combination with his other circumstances: CB 207, Tribunal Decision at [118];
(p)
having regard to all the circumstances and its anterior findings, both individually and cumulatively, found that CNO16 did not have a real chance of serious harm in Sri Lanka from his limited low level political activity, his actual or imputed political opinion,
his status as a failed asylum seeker or returnee from the West, or his illegal departure from Sri Lanka: CB 207-208, Tribunal Decision at [119];
(q)concluded that CNO16 did not satisfy the refugee criterion in s 36(2)(a) of the Migration Act: CB 208, Tribunal Decision at [121]; and
(r)
having regard to CNO16’s circumstances and its earlier findings, also found that CNO16 did not have a real risk of suffering significant harm on return to Sri Lanka, and concluded that he did not satisfy the complementary protection criterion in
s 36(2)(aa) of the Migration Act: CB 208, Tribunal Decision at [120] and [122].
JUDICIAL REVIEW APPLICATION
Litigation history
The Judicial Review Application was filed in the Melbourne Registry of this Court on
8 September 2016. On 1 March 2017 a Registrar of this Court (then styled the Federal Circuit Court of Australia but which continues in existence from 1 September 2021 as this Court: Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), s 8(2)) made orders (“Registrar’s Orders”) including an order that the matter being listed for final hearing more than two years later on 7 August 2019 before Judge Wilson. An order was also made at this time providing for CNO16 to file any amended Judicial Review Application, affidavits and written submissions 28 days before final hearing. On 1 May 2019 the parties were sent a Notice of Adjournment from Judge Wilson’s Chambers advising the matter had been adjourned sine die following the appointment of Judge Wilson to the Family Court of Australia. On 11 March 2020 a Senior Legal Case Manager with the Federal Court of Australia forwarded to the parties a Notice of Listing for hearing on 27 May 2020. On 19 May 2020 the parties were sent a Notice of Delisting advising that due to the Covid-19 pandemic the matter had been delisted and would be relisted for hearing on a date to be advised. On 25 June 2020 the parties were sent a Notice of Listing for hearing on 27 October 2020 before Judge Mercuri (as Her Honour then was). On 22 September 2020 the Chambers of Judge Mercuri sent to the parties a Notice of Adjournment vacating the hearing on 27 October 2020 and adjourning the matter to a date to be fixed.
Because of the notorious delays in bringing migration matters filed in the Melbourne Registry of this Court to hearing before a Judge of the Court in Melbourne (as to which see, for example, Chief Judge Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1550; Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556; AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688the matter was reallocated to the Perth Registry of the Court in June 2021 and on 17 June 2021 a Notice of Listing was sent to the parties from the Chambers of the Court’s National Migration Law Judge, Judge Kendall, listing the matter for hearing on 31 January 2022 by video link before the Court as presently constituted.
At a directions hearing on 23 July 2021 the Court made orders permitting CNO16 to file and serve, amongst other things, any amended Judicial Review Application and written submissions (“Court’s Orders”). The matter was heard in Perth on 31 January 2022 with CNO16 appearing by telephone with the assistance of an interpreter and the Minister’s Counsel appearing by video link, both from Victoria.
CNO16 did not file any amended Judicial Review Application or written submissions prior to the 31 January 2022 hearing.
Grounds
The Judicial Review Application contains the following two grounds:
1. The Administrative Appeals Tribunal did not afford me procedural fairness
2. The Administrative Appeals Tribunal applied the wrong legal test.
The Minister’s written submissions raised a further possible jurisdictional error, namely, whether a failure by the Tribunal to disclose the existence of a certificate issued under s 438 of the Migration Act (“438 Certificate”) was a jurisdictional error.
CNO16’s Submissions
Although CNO16 did not file written submissions in accordance with the Registrar’s Orders or the Court’s Orders, the Court, having first explained the nature of, and requirement for,
the establishment of jurisdictional error in the Tribunal Decision, and that the Court’s role was not that of a merits reviewer, gave CNO16 an opportunity at hearing to make oral submissions. CNO16 did not make any submissions (even when specifically invited to do so) specifically concerning the jurisdictional errors alleged in the two grounds of review in the judicial review application or in relation to the 438 Certificate, but rather submitted that:
(a)the government of Sri Lanka had changed since 2016;
(b)he was not permitted to vote in the Sri Lankan elections in 2019; and
(c)his human rights would be violated in Sri Lanka,
and otherwise made generalised submissions concerning the circumstances he had faced,
or would face, in Sri Lanka.Minister’s Submissions
The Minister’s written and oral submissions can be summarised as follows:
(a)
as to ground one, the Tribunal complied with its procedural fairness obligations,
and there was no further information the Tribunal was required to put to CNO16;
(b)
as to ground two, it was not particularised and ought to be dismissed on that basis,
while otherwise the Tribunal applied relevant legal tests and made findings that were open to it on the evidence; and
(c)that the Tribunal’s failure to disclose the existence of the 438 Certificate was an error, but because it was not material to the outcome of the Tribunal’s determination it was not a jurisdictional error.
Consideration
Ground one
In relation to ground one the Court observes that:
(a)the Tribunal Hearing Invitation invited CNO16 to attend the Tribunal Hearing: CB 141-144;
(b)the Tribunal Hearing Invitation complied with ss 425 and 425A of the Migration Act;
(c)CNO16 attended the Tribunal Hearing with the assistance of an interpreter and his representative (who was a lawyer and registered migration agent): CB 170-172;
(d)CNO16 provided submissions to the Tribunal before, at and after the Tribunal Hearing: CB 184 Tribunal Decision at [30]-[31];
(e)CNO16’s submissions were considered by the Tribunal: see, for example, CB 183-184, Tribunal Decision at [26]-[31]; and
(f)from the Delegate’s Decision at CB 117 at [9], CNO16 was on notice that the credibility of his claims may be a determinative issue on review by the Tribunal: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515.
In the above circumstances, no breach of s 425 of the Migration Act is apparent, and the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act.
The Court also observes that:
(a)there was no information the Tribunal was required to put to CNO16 pursuant to s 424A of the Migration Act; and
(b)in reaching its decision, the Tribunal relied on:
(i)country information,
(ii)written information provided by CNO16 to the Department; and
(iii)CNO16’s oral evidence to the Tribunal,
all of which fell within the exceptions in s 424A(3)(a), (ba) and (b) of the Migration Act. It follows that no breach of s 424A of the Migration Act is apparent.
In the above circumstances, the Court has concluded that ground one does not establish any jurisdictional error in the Tribunal Decision.
Ground two
Ground two provides no particulars as to how the Tribunal is said to have applied the wrong legal test.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for a self-represented applicant to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a review ground: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams.
The Court heard oral submissions from CNO16 but he did not address, identify or particularise any “wrong legal test” in the Tribunal Decision.
The failure to particularise the written ground renders it meaningless, and this provides a sufficient basis for ground two to be dismissed. Otherwise, the Tribunal:
(a)set out the relevant tests in relation to the refugee and complementary protection criteria: CB 179-181, Tribunal Decision at [7]-[18], and applied them to CNO16’s claims;
(b)considered all the information before it, including:
(i)CNO16’s claims: CB 182-183, Tribunal Decision at [25];
(ii)the evidence provided in support of CNO16’s claims: see CB 183-184, Tribunal Decision at [26]-[31], CB 188-189, Tribunal Decision at [53]-[55]; and
(iii)relevant country information: see, for example, CB 194-195, Tribunal Decision at [74]; CB 196, Tribunal Decision at [77]; CB 199-200, Tribunal Decision at [85]; CB 200-202, Tribunal Decision at [88]-[89]; and CB 206, Tribunal Decision at [113],
and made comprehensive findings that CNO16 did not satisfy s 36(2)(a) or (aa) of the Migration Act, which findings were open to it on the evidence.
In all the above circumstances it cannot be said that the Tribunal applied the wrong legal test in the Tribunal Decision. The Court has therefore concluded that ground two does not establish any jurisdictional error in the Tribunal Decision.
438 Certificate
The Minister conceded, quite properly, that the Tribunal’s failure to disclose the existence of the 438 Certificate constituted a jurisdictional error: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 71 AAR 169; (2016) 343 ALR 97 at [40], [52] and [56]-[58] per Kenny, Perram and Mortimer JJ.
In the Tribunal Decision the Tribunal made no reference to and placed no reliance on the 438 Certificate. It can therefore be inferred that the Tribunal paid no regard to the 438 Certificate, or its associated information: Minister for Immigration and Border Protection v SZMTA
[2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599 (“SZMTA”) at [47] per Bell, Gageler and Keane JJ. The Court notes that the documents the subject of the 438 Certificate, which are before the Court:see the affidavit of Samantha Moxey affirmed 14 May 2020 at [2]-[4], were not adverse to CNO16 and merely confirmed his identity which the Tribunal had otherwise accepted: CB 187, Tribunal Decision at [44]. It therefore follows that the Tribunal’s failure to disclose the existence of the 438 Certificate, or the information covered by it, gave rise to no
“realistic possibility that the Tribunal's decision could have been different if the …
[438 Certificate and the information it covered] had been disclosed so as to allow the applicant [CNO16] a full opportunity to make submissions” and could have had no bearing on any determination made in the Tribunal Decision: SZMTA at [49] per Bell, Gageler and Keane JJ, and particularly so in circumstances where the onus was on CNO16 to prove that it would have made a material difference, and CNO16 did not do so: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2]-[4] per
Kiefel CJ, Gageler, Keane and Gleeson JJ (affirming SZMTA).
In the above circumstances the Court has therefore concluded that the Tribunal’s failure to disclose the 438 Certificate does not establish any jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
As the Federal Court observed in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev) in circumstances where a party is self-represented the Court must endeavour to remain alert to the possibility of jurisdictional error being made by the Tribunal. The oral submissions made by CNO16: see [9] above, do not go to the question of jurisdictional error, but rather seek merits review of the Tribunal Decision, which is not permissible on an application for judicial review under s 476 of the Migration Act: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is otherwise nothing in this relatively straight-forward matter which would indicate that any jurisdictional error was made by the Tribunal.
CONCLUSION AND ORDERS
In conclusion, the Court finds that there is no jurisdictional error established by the two grounds in the Judicial Review Application or the 438 Certificate issue raised by the Minister,
and nor is any jurisdictional error otherwise apparent in the Tribunal Decision.
It follows that the Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 9 February 2022
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