Cpi15 v Minister for Immigration

[2019] FCCA 672

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPI15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 672

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.36, 91R, 424A, 425, 474, 499

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610

Applicant: CPI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3299 of 2015

Judgment of: Judge Cameron

Hearing date: 11 March 2019

Date of Last Submission: 11 March 2019

Delivered at: Sydney

Delivered on: 29 March 2019

REPRESENTATION  

The Applicant appeared in person

Solicitors for the Respondents: Mr T. Hillyard of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3299 of 2015

CPI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 7 July 2012.  On 15 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity, imputed political opinion and membership of a particular social group. On 13 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“RRT”), a predecessor of the second respondent (“Tribunal”), for a review of that departmental decision.  He appeared before the RRT in October 2013 and January 2015 and before the Tribunal on 24 September 2015 and 27 October 2015.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

Claims before the Department

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  Relevant facts as summarised by the Tribunal are set out below.  

2. Before the Department, the applicant claimed that:

   a)he was a Hindu Tamil from the eastern province of Sri Lanka;

   b)in 1989 he went to Saudi Arabia because of tensions between the Indian army stationed in Sri Lanka and the Liberation Tigers of Tamil Eelam (“LTTE”).  He returned to Sri Lanka in 1994;

   c)in 1990 the Sri Lankan Army (“SLA”) confiscated his former school and a number of surrounding properties, including his home, to establish a base to combat the LTTE.  He had written to the SLA requesting the return of his property but it remained occupied;

   d)in 1998 his brother-in-law was kidnapped and killed.  He believed that the government was responsible because his family was forced to state on the death certificate that the cause of death was “accidental death in the clash between security forces and terrorists”;

   e)in 2001 he was rounded up by the SLA on suspicion of collaborating “with the terrorists”.  He was interrogated and beaten but subsequently released;

   f)in 2004 he was detained, questioned and beaten by the SLA on two further occasions because of his Tamil ethnicity.  He was also beaten and tortured numerous time on the side of the road;

   g)in April 2012 he was asked to campaign for the Tamil Peoples Liberation Tigers Party (“TMVP”).  He left Sri Lanka because he feared that the TMVP would kill or torture him because he failed to collaborate with them; and

   h)he also feared harm from the Sri Lankan government, which was closely aligned with the TMVP.  Further, the government would not assist him as they were not interested in protecting Tamils. 

Claims before the RRT

1. The applicant provided additional submissions to the RRT dated 4 September 2013 and a statutory declaration dated 6 September 2013 that raised the following additional claims:

   a)after he returned from Saudi Arabia, members of the LTTE approached him and asked him for money. He paid Rs.20,000 on that occasion;

   b)between 2001 and 2004 the LTTE had often come to his home and asked him for supplies from the grocery store where he worked. He refused to assist them;

   c)he was advised by this wife that after he left Sri Lanka SLA officers came to see her about the land and enquired about him;

   d)during a TMVP meeting in his village on 18 May 2012  he was selected with several others to assist in the election campaign.  Because he did not want to be seen to have refused to assist the TMVP, he decided to leave Sri Lanka and went into hiding; and

   e)he had since learnt through his wife and his brother that the authorities and the TMVP had come to his home on a number of occasions looking for him.

Claims before the Tribunal

1. In 2015 the applicant’s case was taken over by the Tribunal: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.  

2. The applicant appeared before the Tribunal on 24 September 2015 and 27 October 2015 at which time he made the following claims:

   a)he no longer feared harm on the basis of any links to the LTTE or on the basis of his Hindu religion;  

   b)although the TMVP had never threatened or harmed him, they were angry that he did not assist them in the 2012 elections and would target him for this reason;

   c)the issues with his land had been resolved by its return in 2013 and by the payment of compensation to his family in 2014; and  

   d)he also feared harm on the basis of his membership of a particular social group comprised of failed asylum seekers who had left Sri Lanka unlawfully and had sought asylum in a western country.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal was not satisfied as to the credibility of the following aspects of the applicant’s claims:

   a)the applicant’s evidence about his LTTE claims was vague, imprecise and lacking in detail. For example, he gave inconsistent evidence about who had received the Rs.20,000 payment (whether the LTTE or its supporters), about who had spoken to the LTTE (whether the applicant or members of his family), and about whether his family had been threatened.  The Tribunal noted that in some respects the LTTE claims were no longer relevant given that the applicant had told the Tribunal that he no longer feared harm because of any perceived link to the LTTE.  Nevertheless, the Tribunal believed that they  remained relevant to its overall assessment of the applicant’s credibility;

   b)the applicant’s evidence about being mistreated by the SLA and about when these events were said to have occurred was confusing and lacking in clarity.  For example, he told the Tribunal that he had last been harmed by the SLA in 2004 but also said that he had been caught in a general village roundup in 2005.  Further, in his statutory declaration of November 2012 the applicant claimed that he had been “taken in” by the SLA twice in 2004 but at the Tribunal hearing he said that the SLA had taken him to their camp only once (the second incident having occurred elsewhere);

   c)the applicant’s account of his land dispute with the SLA and the Sri Lankan authorities was also confusing and lacking in clarity. In this regard, at the Tribunal hearing on 27 October 2015 the applicant indicated that the land had been returned to his family in 2013, that compensation had been paid in 2014 and that there were no further outstanding issues in relation to the land.  However, the Tribunal noted that the applicant’s 8 January 2015 statutory declaration suggested that issues about the land did remain outstanding;

   d)equally confusing and lacking in clarity was the applicant’s evidence about the circumstances in which he was required to assist the TMVP:

   i)in the Tribunal’s view, the applicant’s claim, in essence, was that his assistance was considered to be of such value that he was blamed by the TMVP for its loss in the 2012 elections.  However, this claim was unsupported by the applicant’s evidence, which indicated that he did not have a political profile or any political importance in Sri Lanka; 

   ii)the applicant was slow to respond to the Tribunal’s questions about how he had been recommended to the TMVP.  The Tribunal noted that questions had to be repeated and that it had had great difficulty extracting information from him about this aspect of his claim; and

   iii)the applicant was vague about his claim to have gone into hiding, particularly in relation to where he had stayed and whether he continued to work during that period;

3. Taking these matters together, the Tribunal was not satisfied as to the credibility of the applicant’s claim to fear harm from the TMVP.  In reaching this conclusion, the Tribunal also noted that neither the applicant nor his family had been threatened or harmed by the TMVP.  Further, the applicant conceded that he had deliberately omitted this claim during his entry interview on 19 July 2012 which, in the Tribunal’s view, indicated that he had not been fearful of the TMVP at the time.

4. Based on the available country information and the evidence before it, the Tribunal did not accept that the applicant would face a real risk of harm if he returned to Sri Lanka because of his Tamil ethnicity or because he was a Tamil from the eastern province of Sri Lanka.  Although it accepted that Sri Lankan Tamils had faced questioning and harm in the past due to perceived LTTE connections, the information before the Tribunal suggested that their situation had generally eased since the end of the conflict.  Further, and in any event, based on the evidence before it the Tribunal did not accept that the applicant could be perceived to have an imputed political opinion of opposing or supporting the LTTE.

5. The Tribunal was also not satisfied that the applicant would be at risk of harm due to his illegal departure from Sri Lanka or as a returnee to Sri Lanka based on his membership of a particular social group “Tamil person who left illegally and that if he returned he would be a failed asylum seeker who sought asylum in a Western country”.  The Tribunal accepted that the applicant would be questioned upon arrival, detained, arrested and charged with offences under Sri Lanka’s Immigrants and Emigrants Act for having left unlawfully.  Moreover, the Tribunal accepted that there was a chance that the applicant could be imprisoned for several days in poor conditions.  However, it found that these were standardised procedures which applied to all returnees to Sri Lanka, regardless of their ethnicity or religion.  The Tribunal further noted that the enforcement of the Immigrants and Emigrants Act was non-discriminatory and a law of general application intended for a legitimate state purpose.  Further, and in any event, the Tribunal was not satisfied that this treatment amounted to serious or significant harm.

THE PROCEEDING IN THIS COURT

1. In his application commencing these proceedings the applicant alleged:

   1.The Tribunal erred failing to assess for complementary protection whether a “period of detention” would amount to “significant harm” (s 36(2A)) or “serious harm” (s 91R(2)) and s 5 of the Migration Act and thereby committed jurisdictional error and / or failed to consider complementary protection for consequences of illegal departure and failed to address whether the detention.  The Tribunal engaged in jurisdictional error by failing to ask itself the right questions and misconstruing the provisions when addressing AAT at [85]-[86]) whether Sri Lankan law concerning illegal departure could attract protection under the complementary protection provisions.

   Particulars

   (i)The Tribunal accepted that the Applicant would be charged for illegal departure (AAT decision 85);

   (ii)The Tribunal found that the Applicant could be detained upon return to Sri Lanka (AAT decision at 86)

   (iii)The Tribunal failed to consider the condition in the prison is likely to be poor AAT decision at 86 The Tribunal accepted that the Applicant would be held in custody pending determination of bail in poor conditions. The Tribunal failed to assess whether this constituted significant/”serious harm” pursuant to (s 91R(2)(a)-(c)) of the Act.

   (iv)Failed to address whether these constituted “serious harm” pursuant to (s 91R(2)(a)­(c)) of the Act; (s 36(2A)) or “serious harm” under s 5 of the Migration Act.  Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally).  The short term detention constitutes “significant harm” pursuant to (s 36(2A)) (a), (d) and (e)) of the Act. The short term detention constitutes “significant harm” pursuant to (s 36(2A)) (a), (d) and (e)) of the Act.

   (v)The Tribunal failed to address and/ or misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.

   (vi)For purposes of complementary protection the length of detention is immaterial.

   (vii)  did not expressly consider Directions 56.

   (vii)The Tribunal applied the incorrect test thereby committed jurisdictional error

   2.The Tribunal denied the Applicant procedural fairness and thereby breached s 425 and or/424AA of the Act when it failed to put determinative issues to the Applicant. The Tribunal committed jurisdictional error. The Tribunal misapprehended the Applicant’s claims.

   Particulars

   The Tribunal failed to put the Applicant on notice of dispositive / determinative issues – delegate did not make adverse findings about the various incidents claimed by the Applicant; the Tribunal proceeded make adverse finding without giving the Applicant chance to be heard on issues.

   (Without alteration)

Ground 1

1. As an introductory observation, it should be noted that although it referred to the Convention “serious harm” test as well as to the complementary protection “significant harm” test, the application’s first allegation concerned questions of complementary protection under s.36 of the Act which at the time of the Tribunal’s decision relevantly provided:

   36 Protection visas—criteria provided for by this Act

   …

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

   …

   (aa)a non-citizen in Australia (other than a non-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;

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

Failure to consider the consequence of prison conditions being likely to be poor

1. The Tribunal’s reasons are not as clearly articulated as might be wished but it is apparent that it did have regard to the poor conditions in Sri Lankan prisons when deciding whether those conditions presented a risk of serious or significant harm to the applicant were he to be remanded in custody, pending a grant of bail, following a return to Sri Lanka. 

2. When discussing the evidence before it, the Tribunal relevantly said:

   The Tribunal raised with the applicant relevant country information in relation to the applicant’s claims.  That information was contained in the DFAT country report for Sri Lanka dated February 2015 and in the DFAT Thematic report dated October 2014 for people with links to the LTTE. … The report also indicated that in general prison conditions in Sri Lanka are poor and do not meet international standards.

3. In the context of complementary protection considerations, the Tribunal relevantly said:

   … The Tribunal has considered the definition of significant harm contained in s.36(2A) of the Act as well as the relevant definitions contained in section 5(1) of the Act. The Tribunal has had regard to the relevant PAM3 refugee and humanitarian-complementary protection guidelines, including those dealing with prison conditions. The Tribunal has considered the applicant’s position as a Tamil person in terms of a real risk of significant harm if he is imprisoned for a short period upon his return to Sri Lanka on the basis of having left illegally and unlawfully. The Tribunal has referred elsewhere in these reasons to the country information in relation to that issue. …

4. The Tribunal then went on to consider whether the applicant’s complementary protection claims, which it must be inferred included the one arising out of Sri Lankan prison conditions, posed a real risk of significant harm to him were he to return to Sri Lanka.  That discussion was not clearly expressed but there can be little doubt that the possible consequences to the applicant of being remanded in custody in Sri Lanka were considered by the Tribunal.

Misapplication or non-application of the tests under s.36(2A)

1. Contrary to the contention in para.1(5) of the application, the Tribunal expressly had regard to each of the tests of significant harm found in s.36(2A) of the Act, as para.89 of its reasons discloses. Relevantly, it said:

   … The Tribunal in those circumstances and having regard to those issues and the evidence and relevant country information that has been discussed elsewhere in these reasons is not satisfied that there are 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 he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to( e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on the person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature, such as that would meet the definition of cruel and inhuman treatment or punishment in s.5(1) of the Act. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

1. Further, that passage does not support the contention that the Tribunal misapplied those tests.

For purposes of complementary protection the length of detention is immaterial

1. The implication of this contention was that the potential length of the applicant’s possible detention was irrelevant to whether that detention amounted to significant harm.  That is not correct.  Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610 at 629-630 [51] made so much clear, albeit in the context of the former s.91R.

Failure to consider Direction 56 expressly

1. This particular concerns Ministerial Direction 56 issued under s.499 of the Act which is relevantly to the effect that the Tribunal was to have regard to Policy Advice Manual 3 (“PAM3”) when deciding the applicant’s review. As the quotation above at [18] makes clear, the Tribunal expressly stated that it had had regard to PAM3. It was not necessary for the Tribunal to say more than it did on this topic as the relevant duty was to consider PAM3, not to refer to the provision which made that consideration necessary.

Ground 2

1. In the second ground of the application the applicant alleged that the Tribunal breached ss.424A and/or 425(1) of the Act by not putting to him matters which it considered to be material or issue but which had not been found adversely to him by the delegate. The contention is in the broadest of terms, namely that the:

   … delegate did not make adverse findings about the various incidents claimed by the Applicant; the Tribunal proceeded make adverse finding without giving the Applicant chance to be heard on issues.

2. Absent further particulars, this allegation might appear to lack meaningful substance and so be capable of being dismissed summarily on that basis.  However, a closer consideration reveals that it alleges that any and every adverse finding made by the Tribunal was based on a denial of procedural fairness.  This is an unlikely situation but must nevertheless be addressed.

3. Sections 424A and 425 of the Act relevantly provide:

   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; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)     invite the applicant to comment on or respond to it.

   …

   (3)    This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   …

   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.

   …

4. Regrettably, the Minister has not met the case which was put in this ground.  He did not adduce evidence of having sought particularisation of this allegation, which would have been of assistance one way or the other, and his written submissions were really no more helpful to the determination of this matter than the allegation itself, not engaging with it in any meaningful way and blandly stating:

   Ground Two is a contention that the Tribunal failed to comply with s.425 or 424AA of the Act by failing to put determinative issues to the applicant. The applicant does not particularise the issues which he says the Tribunal failed to put to him, nor is any obvious failure to put issues to the applicant apparent on the face of the Tribunal’s decision record.

   The Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act. To the extent that the applicant contends that the Tribunal failed to comply with s.424AA of the Act, this contention fails at a factual level. The Tribunal records at [61] that it put information to the applicant pursuant to s.424AA and did so in conformity with the requirements of s 424AA(a) and (b). The Tribunal (differently constituted) also put information for comment or response in accordance with its obligations under s.424A of the Act (being the first and second s.424A letters).

   Ground Two as pleaded does not establish error on the part of the Tribunal, nor is any such error apparent on the Tribunal’s decision. When considered against the Tribunal’s reasons, this ground is in substance an expression of disagreement with the Tribunal’s findings that invited the Court to engage in impermissible merits review.

5. Because the applicant abandoned various of his claims and allegations when before the Tribunal, the only material and determinative matters which the Tribunal found were those that concerned whether he had a well-founded fear of serious harm in Sri Lanka:

   a)because of his Tamil ethnicity;

   b)because he was from the eastern province of Sri Lanka;

   c)because of his membership of the particular social group comprised of failed Tamil asylum seekers who had left Sri Lanka illegally and had sought asylum in the west; and

   d)because he did not support the TMVP during the 2012 elections and on that basis would be perceived to have a political opinion opposed to the TMVP and the Sri Lankan government.

6. The applicant was not denied the procedural fairness implicitly guaranteed by s.425(1) of the Act in relation to the first three matters because:

   a)at the hearing the Tribunal referred to two reports from the Department of Foreign Affairs & Trade (“DFAT”), one dated 3 October 2014 and the other dated 16 February 2015 which, relevantly for the applicant’s claims, indicated that:

   i)there were no official laws or policies in Sri Lanka which discriminated on the basis of ethnic extraction or language and any discrimination in the implementation of those laws and policies occurred on a low level;

   ii)there were no official laws or policies that discriminated on the basis of political opinion, or any systemic political discrimination against any particular group other than banned organisations;

   iii)whilst many Tamils, particularly from the north and east of Sri Lanka, had expressed a fear of monitoring, harassment, arrest and detention by security forces, this trend had generally eased since the end of the conflict.  Further, this activity was largely due to LTTE members and supporters being mostly Tamil and, whilst those with real or perceived links to the LTTE could be at risk in Sri Lanka, Tamils were not at risk simply because of their ethnicity;

   iv)overall, the risk of torture or mistreatment for the great majority of returnees was low, including for those suspected of offences under Sri Lanka’s Immigrants and Emigrants Act; and

   v)returnees to Sri Lanka were treated according to standard procedures regardless of ethnic extraction and detainees were not subject to mistreatment during their processing at the airport.  Persons charged with illegally leaving Sri Lanka might be held on remand for several days in gaols where the general conditions were poor and did not meet international standards but simple passengers on people smuggling ventures had been granted bail on a personal recognisance supported by a family member’s guarantee and had not been punished with more than a fine;

   b)the DFAT reports were also provided to the applicant (by the RRT) on 15 December 2014 and 26 February 2015; and

   c)the applicant responded to the issues raised in those reports both at the hearing and prior to the hearing on 2 April 2015.

7. Further, by virtue of s.424A(3)(a), no s.424A(1) obligation attached to that information.

8. The applicant was not denied procedural fairness in relation to matter (d), his TMVP claims, because:

   a)on 15 December 2014 and 19 January 2015 the RRT wrote to him pursuant to s.424A of the Act and invited him to comment on or respond to, relevantly, information related to his TMVP claims which the RRT considered could be the reason, or a part of the reason, for affirming the decision under review. Particulars of that information included:

   i)that the applicant had indicated that he had lived at the same address between 2000 and June 2012 and had worked in the same business between 1998 and 2012, which undermined his claim to have been hiding from the authorities during the relevant period; 

   ii)at his entry interview on 19 July 2012 the applicant did not make any claims in relation to the TMVP.  The RRT indicated that if it found that the applicant had failed to mention significant claims at an early opportunity or had developed his claims over time, that could lead it to reject all his claims and find that he had fabricated them to enhance his application; and

   iii)although the applicant first made claims in relation to the TMVP in his statutory declaration of 1 November 2012, other “significant” aspects of his TMVP claims were not mentioned at the same time;

   b)the applicant responded to the s.424A letters by submitting statutory declarations dated 8 January 2015 and 4 February 2015;

   c)the issue was raised again at the Tribunal hearing pursuant to s.424AA of the Act; and

   d)the Tribunal’s concerns about the credibility of the applicant’s TMVP claims were also put to him at the hearing at [60], [61], [64], and [65] and he is recorded as having responded.

9. Having given the applicant notification of these matters pursuant to s.424A of the Act, the Tribunal had no residual procedural fairness duty in relation to them under s.425(1).

10. For those reasons the allegations of breach of ss.424A and 425 are not made out.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 29 March 2019