CSJ15 v Minister for Immigration
[2017] FCCA 781
•5 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSJ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 781 |
| Catchwords: MIGRATION – Application for protection visa – held that no jurisdictional error arises on the grounds prosecuted by the Applicant – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A(1), 424A(3)(a), pt. 7, div.4 |
| Cases cited: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 |
| Applicant: | CSJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2788 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 16 February 2017 |
| Date of Last Submission: | 16 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 5 May 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr Hornsby of Sparke Helmore Lawyers |
ORDERS
The application for judicial review filed 16 December 2015 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2788 of 2015
| CSJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
This is an application for the judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 25 November 2015, affirming a decision of a delegate of the First Respondent (“the Minister”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).
The Applicant is a citizen of Sri Lanka who arrived in Australia as an Irregular Maritime Arrival on 22 July 2012 and participated in an entry interview on 27 September 2012 (CB 7-24).
On 12 December 2012, the Applicant applied for the visa and on 9 September 2013, the Applicant attended an interview with the Department of Immigration and Border Protection (“the Department”) (CB 128).
In a decision dated 14 October 2013, a delegate of the Minister refused to grant the Applicant the visa (CB 123-144).
On 16 October 2013, the Applicant, through his appointed migration agent, applied to the Tribunal for review of the delegate’s decision (CB 145-150).
On 12 December 2013, the Applicant’s migration agent provided written submissions to the Tribunal (CB 155-209).
On 1 September 2015, the Tribunal wrote to the Applicant, through his migration agent, inviting him to appear at a hearing before it scheduled for 21 September 2015 (CB 213-216).
On 21 September 2015, the Applicant appeared at a hearing before the Tribunal with the assistance of an interpreter in the Tamil and English languages and his appointed migration agent (CB 222-224).
Before turning to the Applicant’s claims to be owed protection obligations, and the Tribunal decision, it is appropriate to set out the history of proceedings before this Court. The matter was first listed for final hearing on 19 August 2016. On that date the Applicant was self-represented and assisted by an interpreter in the Tamil and English languages.
The Court’s obligation to afford procedural fairness to litigants (specifically, self-represented litigants in a high-volume caseload jurisdiction, such as migration), in circumstances where an applicant claims to fear persecution if returned to his country of origin, has been considered by the Federal Court: see SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [60]; MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [72] and MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] and [35].
In Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [53]-[54], the Full Court said the following:
53. The pressure of high volume decision making, such as that undertaken by the FCC in the migration jurisdiction, should be recognised. Essential tools in managing high volumes of cases include the show cause process in Part 44 of the FCC Rules, and the power outside that process, in s 17A of the FCC Act, summarily to dismiss a judicial review application. The existence and utilisation of those processes do not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process. Insisting to an unrepresented applicant that she or he identify a “jurisdictional error” is a pointless, and unfair, exercise. Further, the processes in s 17A and Part 44 do not remove the obligation to give parties, whether represented or unrepresented, some reasonable time to regularise their materials and present their arguments.
54 . It is no fault of an individual litigant in a migration judicial review that there are thousands of other migration cases, nor that there are insufficient resources to provide all impecunious applicants with legal representation. Much is at stake for an individual litigant in the migration jurisdiction in the sense of fundamental rights, including her or his liberty in Australia by reason of the mandatory detention regime in the Act. High volumes of cases should if anything give rise to extra caution to ensure no injustices are being done because of judicial workload pressures.
As is my usual practice when applicants appear self-represented migration matters, I explained to the Applicant in this matter that the Court’s function on judicial review was not to decide whether or not he ought to be granted the visa, but whether the Tribunal had made a legal mistake. I explained to him that, if he was successful in his case, his matter would be referred back to another Tribunal for reconsideration and that, if he was not successful, his application would be dismissed and he would be required to pay the costs incurred by the Minister in this case.
It seems to me that, given that the Applicant was self-represented, was unable to read or speak in the English language, and on the material before the Court, had achieved a limited educational level, it was most unlikely that he had prepared his grounds of review, let alone understood them. The grounds of review specified in his application are as follows:
1. The Decision of the Administrative Appeals Tribunal (Refugee Division) is affected by jurisdictional error.
Particulars
a. The Tribunal failed to properly consider an aspect of the applicant’s claims, namely the risk of persecution arising from him having sought asylum in Australia.
b. The Tribunal did not consider, properly or at all, the distinct integer of the Applicant’s claims that he feared persecution on the Convention grounds of actual or imputed political opinion based on his support of the LTTE.
c. The Tribunal fell into jurisdictional error by failing to ask itself the correct question in law, whether, and to give proper, genuine and realistic consideration to the merits of the case presented by the applicant that, he had a well-founded fear of persecution involving serious harm.
d. The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka and the state of the prison conditions in Sri Lanka, whereupon the government has been unwilling to address the abominable conditions, which in turn has the likelihood of intentionally inflicting physical and mental pain which can be regarded as cruel and inhuman.
2. The decision of the Refugee Review Tribunal is affected by error in that there was a denial of procedural fairness.
Particulars
a. The tribunal has failed to provide to the applicant for his consideration and comment those aspects of country information which related to pro Government (non state) paramilitary groups. The applicant says he would be at a heightened risk, given he would be a returned asylum seeker and it could be imputed that he was returning with cash.
b. The tribunal did not put to the applicant for comment all adverse “country information” regarding the situation for failed asylum seeker/returnee Tamils in Sri Lanka, the non requirement that Tamils register in Colombo, that simply being a Tamil from the north or east was no longer enough to put someone at risk & the poor conditions and lack of resources in Sri Lankan prisons. That in fairness to the applicant he should have been provided in written form, so that the applicant and his representative would have had a reasonable period of time to digest such information and then make submissions in response.
c. The tribunal did not put to the applicant for comment adverse “country information” regarding the improved situation for Tamils in Sri Lanka.
I took the Applicant to his application, and asked him whether he had prepared these grounds of judicial review or had been assisted by someone else. He informed me that the grounds of review had been prepared by a lawyer. I asked the interpreter to interpret the grounds of review, following which I asked the Applicant whether he understood what they meant. He said he did not. I asked whether he wanted to rely on those grounds of review, and he responded that he did not.
I then asked him to explain to the Court why he believed the Tribunal decision was wrong. It was apparent from his submissions that he believed that the interpretation at the Tribunal hearing was deficient. He told me that he believed that there were mistakes in the interpretation. It is immediately apparent that the issue of inadequate interpretation did not form part of his grounds of judicial review. He informed me that his lawyer had told him to obtain a voice recording and get a translator to ensure that everything was correct. He said that he had obtained a transcript of the audio recording of the Tribunal hearing and had recently given the CD to an interpreter to see if the interpretation was correct. He says that he had been told by his lawyers that they would only represent him if he first made available fees for the work they would perform. He said that at the time, he did not have the money but now he was in the process of obtaining the funds.
I asked him if he was seeking an adjournment of the hearing. I explained that if I granted an adjournment, the Minister may seek costs in relation to today’s hearing. He said that he understood. The Minister opposed an adjournment. I decided to grant the adjournment on the basis that the Applicant may have a ground of judicial review not previously identified, and that he should be given the opportunity to pursue this ground. The Minister sought costs in the amount of $1,200. Orders were made adjourning the hearing to 16 December 2016, providing for the Applicant to file and serve any amended application, any further material and requiring the Applicant to pay the First Respondent’s costs in the fixed amount of $1,200. The hearing was subsequently administratively re-listed to 16 February 2017.
The Applicant did not file any further material, and at the adjourned hearing he continued to represent himself, with the assistance of an interpreter in the Tamil and English languages. He indicated to the Court that he did not have any complaints about the interpretation at the Tribunal hearing. I explained, once again, the function of the Court on judicial review. I confirmed with him that he had not prepared the grounds of review specified in his application for judicial review and that he did not understand what they meant. I proceeded on the basis that, in these circumstances, he did not intend to rely on these grounds.
I asked him what was wrong with the Tribunal decision. The Applicant informed the Court that his lawyers had highlighted parts of his statutory declaration attached to his application for the visa (CB
101-105), as well as the Tribunal decision record (CB 239-254). He said that he wanted to refer to these. It seemed to me that the Applicant believed that, by merely referring to these highlighted extracts from his statutory declaration and the Tribunal’s decision record, the Court would be able to discern what he believed was wrong with the Tribunal’s decision. The Applicant referred to many extracts from the Tribunal’s decision record.
On each occasion, after the Applicant had referred to what he said were highlighted passages from his statutory declaration and the Tribunal decision record, I asked him why he relied on these extracts for his argument that the Tribunal decision was wrong. This process took some time. Having gone through this lengthy process (which involved the interpreter first interpreting the highlighted passage to the Applicant, the interpreter then informing the Court what was the highlighted passage and its location in the court book, and the Applicant then making submissions about why this revealed the Tribunal decision was wrong), it was apparent that the Applicant was, in reality, asking the Court to engage in a merits review, generally. I shall deal with this point later. However, I am satisfied that the Applicant was afforded every opportunity to participate in the proceedings and to explain his case to the Court.
The Applicant’s Claims
The Applicant’s claims were articulated in his statutory declaration dated 11 December 2012, which accompanied his visa application (CB 101-105), and in written submissions provided by his migration agent to the Tribunal, dated 12 December 2013 (CB 157-209).
The Applicant claimed to be from Cheddikulam in the Vavuniya district, and to fear harm in Sri Lanka from the authorities because of:
a)past incidents of harm and his adverse profile with the Sri Lankan authorities;
b)his Tamil ethnicity;
c)his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”);
d)his membership of particular social groups, namely “failed Tamil asylum seekers returned to Sri Lanka” and “young Tamil males from northern Sri Lanka”; and
e)his illegal departure from Sri Lanka.
The Applicant claimed that he was targeted by the Sri Lankan Army (“SLA”) on multiple occasions between 2004 and 2010. Notably, he claimed that (CB 159):
a)he lived in a former LTTE-controlled area which was surrounded by SLA camps;
b)he was often questioned, detained and assaulted by the SLA when walking past the SLA camp, which was located between his father’s farm and his village;
c)he went to live with his aunt in another village due to the problems he had with the SLA, until 2007;
d)sometime after, he was rounded up and beaten after a woman was shot in his village;
e)on return to his village in 2010, he was beaten at a SLA camp and was questioned regarding his whereabouts for the previous four years; and
f)immediately after the incident with the SLA in 2010, he travelled to Thailand on a passport in his own name, before travelling to Malaysia and Indonesia.
Tribunal Decision
Whilst the Tribunal found the Applicant to be “generally credible, consistent and plausible on certain aspects of his claims” (which it accepted), it found that certain aspects of his claims regarding the events in 2010 were not credible, and had been fabricated to strengthen his claims for protection (CB 246 at [64]).
The Tribunal accepted that the Applicant was a Tamil from Vavuniya, that he had been harassed, beaten and detained by the SLA between 2004 and 2006 during the civil war, and that he went to live with his aunt in Nelukulam for periods to escape the harassment. The Tribunal accepted the Applicant was rounded up and beaten because he was a Tamil male, and therefore suspected of LTTE association. However, the Tribunal found that the Applicant appeared to have been subjected to treatment that was common to most Tamil males living in the North during the time of the civil conflict in Sri Lanka. It further found that the authorities did not consider him to be of any significant interest or that he was associated with the LTTE, given that he was only detained for short periods prior to being released (CB 246-247 at [65]-[69]).
The Tribunal accepted that the Applicant returned to his home village in 2010 and began working at a government-owned shopping centre in Cheddikulam. As it was soon after the civil war ended, in May 2009, the Tribunal was willing to accept that shortly after returning, the Applicant was asked to attend an SLA camp, where he was beaten and questioned about his whereabouts during the previous years (CB
247-248 at [70]-[71]). However, it did not accept that he had been “dobbed in” by someone, or that he was suspected of LTTE involvement. The Tribunal did not accept that the SLA forcibly visited the Applicant’s home on the same night that he was originally questioned, that he was told to report to the SLA or that the Applicant was forced to sign a paper by the authorities, confirming his support for the LTTE (CB 248-249 at [72]-[75]).
Although the Tribunal accepted that the SLA may have visited his home after he left for Thailand, it did not accept that this was in the context of the Applicant being wanted for further questioning, or that his family was told that he must report to the SLA when he returns to Sri Lanka. Given the Tribunal did not accept that the SLA had forcibly entered the Applicant’s home in 2010, it also did not accept that the Applicant left his village the same night due to his fear of the SLA. It also found that the issue of the Applicant’s whereabouts was resolved without further questioning and would have been easy to confirm with his aunt. In light of the vague language used in the letter from the Applicant’s father, the Tribunal gave it little weight as corroborating the Applicant’s claims (CB 249 at [76]-[78]).
The Tribunal found, on the basis of the Applicant’s own evidence, that neither he, nor his family, were involved with the LTTE. It relied on country information to conclude that the SLA would not have released him as claimed, had he been suspected of association with the LTTE. The Tribunal also did not accept that the Applicant’s past incidents would lead to a real chance of serious harm or a real risk of significant harm (CB 249-250 at [79]-[83]).
The Tribunal did not accept the Applicant’s claim that people are not allowed to leave his village, or must leave their identity cards behind when they do, although it accepted that some monitoring of movement may continue to occur. It found that, based on country information, such monitoring is easing and, given the passage of time since the end of the conflict, the chance that the Applicant would be rounded up or detained, as he was between 2004 to 2006, is remote. The Tribunal accepted that some level of discrimination towards Tamils may continue, but did not accept that any such discrimination on the basis of his Tamil ethnicity amounted to serious or significant harm (CB
250-251 at [84]). The Tribunal did not accept, given the Applicant’s profile, that he would be of adverse interest to the authorities on his return to Sri Lanka. The Tribunal rejected the Applicant’s claims to fear harm on the basis of his physical appearance and religion, which it noted were not drawn out significantly at the hearing. Having regard to the available country information, the Tribunal concluded that the Applicant did not face a real chance of serious harm or a real risk of significant harm as a result of being a “young Tamil man from the North of Sri Lanka”, or specifically from Vavuniya or a formerly LTTE controlled area, as a Hindu, or due to his actual or imputed political opinion arising from his accepted profile (CB 250 at [85]-[88]).
In relation to the Applicant’s claims to fear harm as a failed asylum seeker or returnee from a western country, the Tribunal relied on independent country information to conclude that, in the absence of a profile of interest to the Sri Lankan authorities, the standard questioning and procedures that the Applicant would face on return to Sri Lanka did not amount to serious harm or significant harm. The Tribunal accepted that the Applicant had been beaten during questioning in 2010 by the Sri Lankan authorities. However, it found that as the incident occurred within a year or so after the end of the civil war and, taking into account the types of profiles of interest to the authorities and the passage of time since the end of the civil war, the risk that the Applicant will be beaten, or face other serious or significant harm while being questioned by authorities, is remote. The Tribunal also found that the Applicant had departed Sri Lanka on a validly issued passport, via the airport, and thus the issue of illegal departure did not arise (CB 251-253 at [89]-[98]).
Upon consideration of the Applicant’s claims, cumulatively and individually, the Tribunal did not accept that the Applicant faced a real chance of serious harm capable of amounting to persecution and was not satisfied that he had a well-founded fear of persecution. The Tribunal also considered whether the Applicant satisfied the complementary protection criterion, but was not satisfied that there were substantial grounds for believing that the Applicant faced a real risk of significant harm (CB 253 at [99]-[103]).
Judicial Review
As noted earlier, the Applicant proceeded to make submissions in support of his judicial review by reference to extracts, which he said had been highlighted by his lawyers, from his statutory declaration attached to his visa application and from the decision record of the Tribunal.
I will first turn to the Applicant’s statutory declaration, dated 11 December 2012. The extracts that the Applicant relied on were in reference to an incident, in 2007, when he returned home from his aunt’s house. The Applicant said that (at CB 103):
There were Sinhalese people living near our village, and the LTTE went there and shot some of the army personnel there. They caused a big mess. Fighting started again. The LTTE dumped the jeep they used in the attack near our village. The army then came to my home and pulled me out of my house, along with other people they rounded up, questioned us on the street and bashed me. Due to this incident my parents sent me to my aunty’s house again.
In reference to an incident in 2010 when he returned home from his aunt’s house, the Applicant said (at CB 103):
The authorities stopped me on the street and started to ask me where I have been all this time and to show them my ID. They detained me, took me to the army camp and interrogated me and bashed me.
…
On the same night, the authorities came to my house to ask for me.
When asked about the connection between these extracts and his argument that the Tribunal decision was wrong, the Applicant said that he told the Tribunal about these incidents and the Tribunal did not take his evidence about these matters into consideration.
In relation to the incident in 2007 referred to in the extract from the Applicant’s statutory declaration, the Tribunal stated (CB 247 at [68]):
… The tribunal is willing to accept as plausible that one or two incidents related to the LTTE occurred while the applicant was at home during that time period and that this led to the rounding up of many Tamil men in his village, including the applicant. It is willing to accept that the applicant was beaten during one or both of these roundups. The tribunal does not accept that the applicant was rounded up due to any particular interest in him apart from the fact that he was Tamil male and thus suspected of LTTE association. It notes that, according to his evidence, he and others in the roundup were released by senior SLA officers.
It is evident from this extract from the Tribunal’s decision record that the Tribunal considered the Applicant’s claim in relation to the incidents in 2007, however, found that they did not occur as a result of any particular interest by the Sri Lankan authorities in the Applicant, noting that the Applicant’s evidence was that he and the others in the roundup were released by senior SLA officers.
The Tribunal dealt with the Applicant’s claim about incidents that occurred in 2010 when he returned to his home village, as follows (CB 247-248 at [71]-[72]):
71. The applicant has claimed that 10-15 days after returning to his home town, he was asked to attend an SLA camp during which time he was beaten and questioned about his whereabouts for the previous four years. Given evidence of continued monitoring of Tamils in the North after the war ended in May 2009 and noting that this incident would have occurred only approximately a year or so after the war, the tribunal is willing to accept as plausible that this incident occurred. It accepts that the applicant may have been questioned about where he had been for the last four years, why he was working near Menik Farm and asked if he had provided support for the LTTE. Again, given that the war had only concluded fairly recently, the tribunal is willing to accept that the applicant was beaten during this questioning. It further accepts that the applicant was released after his parents came to the camp. It is willing to accept that the applicant may have been told that he needed to report if or when called for an inquiry to a larger SLA camp.
72. The fact that the applicant was, on his evidence, not detained for long and released into the care of his parents indicates that the authorities did not consider him to be of any significant adverse interest. The tribunal finds on the evidence before it that he was asked to attend the camp and questioned because the SLA may have been suspicious about his absence from the village for four years and wanted further information. The applicant stated that he had to inform the SLA that he had returned to his village. It is not implausible that it took the SLA a couple of weeks to question him about his absence. The tribunal does not accept as plausible that the applicant was dobbed in by someone as there appears to have been nothing to dob him in about. He does not claim to have had any LTTE involvement during those four years or at any other time, nor does he claim anyone in his family was involved in the LTTE. Furthermore, while the applicant may have been questioned about his work near Menik Farm IDP camp, where Tamils from former
LTTE-areas were housed, the tribunal does not accept on the evidence before it that this would have been a reason for the applicant to be suspected or detained for LTTE involvement. His evidence is that he worked in a government-owned shopping centre.
It is clear from the reasoning adopted by the Tribunal that it was prepared to accept the Applicant’s claim that he was rounded up and beaten in 2010, 10 or 15 days after he returned home, because of the proximity of that time to the end of the civil war. However, the Tribunal did not accept the totality of the Applicant’s claims regarding the incident in 2010.
The Applicant appears to proceed on the basis that the Tribunal accepted his claims of harm in 2010 on an unqualified basis. It is true that the Tribunal said in its decision record that it found the Applicant to be “generally credible, consistent and plausible on certain aspects of his claims and has accepted those claims”. However, it also stated that “certain aspects of the applicant’s claims in relation to events in 2010 are not credible and have been fabricated to strengthen his claims” (CB 246 at [64]).
The Tribunal rejected his claim that he had been dobbed in, and expressed “concerns about the credibility of the applicant’s claim that SLA officers came to his home that same night to take him away” (CB 248 at [73]). The Tribunal reasoned that it was unclear why the authorities, having released the Applicant on that day, would return and that there was nothing in his profile to suggest that the authorities would have considered such action necessary. It further found, based on country information, that it was implausible that if the Applicant was of adverse interest to the authorities, such that they needed to enter his house in order to detain him, they would have then left and allowed him to report the next morning simply because his neighbours were upset (CB 248 at [73]).
I am satisfied that the Tribunal did consider the claims made by the Applicant in his statutory declaration in relation to the incidents in 2010.
I will not turn to the Applicant’s references to various extracts from the Tribunal’s decision record. I shall deal with them in the order presented by the Applicant to the Court.
Paragraph 71, CB 248
The Applicant relied on the Tribunal’s statement at [71] (extracted in full at [36] above) that the Tribunal was prepared to accept as plausible his claims that in 2010, around 10 to 15 days after he returned to his home village, he was beaten and questioned about his whereabouts for the previous four years.
The Applicant said that, since 2010, he had been living in other countries and he will have the same problems when he returns. I understand his submission to be that, the claim to have suffered serious harm from the SLA, which the Tribunal accepted, occurred in 2010 when the civil war was over. He argued that, there is no reason why these incidents will not reoccur if he returns to Sri Lanka. The Applicant said that he told this to the Tribunal, and that the Tribunal failed to take this assertion into consideration.
I have considered the nature of the jurisdictional error that the Applicant asserts in his submission. It seems to me that the Applicant was arguing that, given the Tribunal’s finding that he suffered serious harm in 2010, after the civil war ended, its later finding that there was no real chance that he would suffer serious or significant harm if returned to Sri Lanka, was unreasonable or illogical.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (“SZUXN”) at [44], Wigney J observed:
44 . The primary judge’s analysis of the principles relating to legal unreasonableness was limited to extracting a number of paragraphs from the judgment of this Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. In Singh, the Court analysed and elaborated on the reasoning in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 concerning legal unreasonableness. Importantly the Court drew attention to the two different contexts in which the concept of legal unreasonableness is employed. The first is a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision making process. The second is outcome focused: a conclusion reached by a supervising court that the outcome of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law. Both Li and Singh concerned the exercise of statutory discretions that were found to be legally unreasonable in the outcome sense.
It is not clear to me which concept of legal unreasonableness applies to the Applicant’s submissions. Consequently, I will consider both.
It seems to me that the Applicant’s submissions misunderstand the basis upon which the Tribunal accepted the incident of harm in 2010, shortly after he returned to his village. It was the fact that the incident was proximate to the time of the civil war, which led the Tribunal to accept that this incident had occurred. His submission relies on an assumption that, notwithstanding the end of the civil war, the Tribunal nevertheless accepted his claims of harm in 2010. However, the Tribunal’s reasoning makes it clear that the Tribunal did not see the claimed harm as being independent of the civil war, but harm that the Applicant suffered as part of the aftermath of the civil war.
Furthermore, the Tribunal went on to find that the authorities did not consider him to be of significant interest, as they released him after a short period of detention into the care of his parents. The Tribunal further found that he was questioned because of the SLA’s suspicions regarding his four-year absence, and not because he was suspected of LTTE involvement. In my opinion, the Applicant’s claim (that the Tribunal failed to consider the fact that the 2010 incident occurred after the war had ended, and therefore, its later finding that there was no real chance that he would suffer serious or significant harm if returned to Sri Lanka, is unreasonable, illogical or irrational), is based on a misunderstanding of the Tribunal’s reasoning and findings.
In SZUXN, Wigney J said in respect of the first type of unreasonableness (at [49]):
49. There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power.
I am not satisfied that the Tribunal employed irrational or illogical reasoning, or made irrational findings of fact that were not based on probative material. The Tribunal accepted aspects of the Applicant’s claimed harm in 2010, given its proximity to the end of the civil war. However, it found that this was as a result of the authorities’ suspicions because of his absence from his village for four years, and not because of any suspicion of LTTE involvement. This finding was supported by the undisputed evidence that the Applicant was released into the care of his parents after a short period of time. The Tribunal rejected the Applicant’s claim that the authorities returned to his home on the same day that he was released, as implausible and contrary to country information. Having found that the Applicant was not of adverse interest to the Sri Lankan authorities whilst he was in Sri Lanka, and, having regard to country information, that he did not have an adverse profile because of any activities after he left Sri Lanka, the Tribunal was satisfied that there was no real chance that the Applicant will suffer serious or harm on return to Sri Lanka.
In addition, I am not satisfied that the outcome of the Tribunal decision was arbitrary or capricious. For the reasons set out above at [48] and [50], I am not able to conclude that the outcome was arbitrary, capricious or outside the range of possible, acceptable outcomes. The Tribunal considered the facts and evidence in relation to the claimed incidents of harm in 2010, in detail, and concluded, on the basis of its findings of fact, that the Applicant had not satisfied the criteria for the grant of a protection visa.
Accordingly, I find that no jurisdictional error arises on this basis.
Paragraph 72, CB 248
The Applicant relied on the Tribunal’s finding at [72] (extracted in full at [36] above) that:
…[t]he tribunal finds on the evidence before it that he was asked to attend the camp and questioned because the SLA may have been suspicious about his absence from the village for four years and wanted further information.
In relation to this extract, the Applicant’s submission was the same as that made regarding paragraph [71] of the Tribunal’s decision record. His submission was that this event happened in 2010, after the civil war has ended, when the LTTE was no longer there. The Applicant reasoned that, as these things happened when the ward had ended, they will happen when he returns to Sri Lanka. He argued that the Tribunal failed to consider his claim.
I have already addressed this argument above, at [47], [48], [50] and [51]. For the same reasons, I find that no jurisdictional error arises on this point.
Paragraph 74, CB 248
The Applicant relied on the following extract from [74] of the decision record:
Having regard to the concerns outlined above the tribunal does not accept that the SLA visited the applicant’s home on the same night he was questioned at the SLA camp in order to take him for further questioning. The tribunal also does not accept that the applicant was told to report to the SLA camp the following morning after his relatives/neighbours caused a commotion. The tribunal further does not accept that the applicant was told that he had to accept he was supporting the LTTE and had a [sic] sign a paper to that effect given its concerns the applicant is seeking to strengthen his claims of the SLA’s interest in him in 2010 and his failure to mention this claim before.
The Applicant’s submission was that, given that the Tribunal accepted that he was detained by the SLA on the day in question in 2010, its rejection of his claim that the SLA visited his home on the same day as his release from detention and that he was told report to the SLA camp, and its rejection of his claim that he signed the paper in question, was for an ulterior motive; that is to say, so that the Tribunal could prove that if he returned to Sri Lanka, he would not be detained again.
I reject that submission. The Tribunal’s reasoning in rejecting the Applicant’s claim that, following a short period of detention, the SLA visited his home on the same day that he was released, is cogent and open to it. The Tribunal’s reasoning is set out at [73] of the Tribunal’s decision record and can be summarised as follows: there was nothing about the Applicant’s profile that would cause the SLA to decide to come to his home and act in a dramatic fashion in order to take the Applicant in for further questioning, in circumstances where he had been released that same day, and told that he may need to report to an SLA camp. Having regard to country information, it found that it was implausible that, if the Applicant was of adverse interest to the SLA (such that the SLA needed to enter his house forcefully to detain him), they would have left merely because his relatives or neighbours were upset, because the SLA caused some noise.
I now turn to the Applicant’s claim that he was forced to sign a paper to the effect that he was supporting the LTTE. The Tribunal, having acknowledged that the Applicant may have suffered memory issues because of injuries to his head, did not accept the Applicant’s failure to mention that he was made to sign a paper confirming LTTE support, was a result of any memory or functionality problem. This reasoning and finding was open to the Tribunal.
Accordingly I find that no jurisdictional error arises on this ground.
Paragraph 76, CB 249
The Applicant relied on [76] of the Tribunal’s decision record:
Accordingly, while the tribunal accepts that the SLA may have visited the applicant’s home at some stage after the applicant’s departure from Sri Lanka and been informed that he is overseas in the course of general monitoring of the Tamil population in the applicant’s home area (as discussed further below), the tribunal does not accept that this was in the context of the applicant being wanted and not reporting for further questioning in 2010 or that the applicant’s family were told that he has to report to the SLA camp when he returns.
The Applicant’s complaint in relation to this paragraph appears to be that the Tribunal found that the Sri Lankan authorities did not “come for him”, however it accepted that the authorities were monitoring Tamils. As the Applicant is a Tamil, they will monitor him if he returns to Sri Lanka.
The first thing to say about this submission is that the Tribunal accepted that the SLA may have visited the Applicant’s home at some stage after his departure (CB 249 at [76]). The Tribunal found that this would have occurred in the context of the general monitoring of the Tamil population, and not because he was wanted for failed to report for further questioning in 2010, nor because his family were told that he had to report to the SLA camp when he returns.
As to the circumstances of the monitoring of Tamils in Sri Lanka, the Tribunal later said that, “…it accepts that some monitoring of movement may continue to occur although the country information noted above indicates that this is easing” (CB 250 at [84]). Relevantly, the Tribunal went on to say (CB 251 at [84]):
… The ease of such monitoring and further passage of time since the end of conflict leads the tribunal to find that the chance the applicant would be rounded up or detained as he was between 2004-2006 is remote. The tribunal is willing to accept, however, that some level of discrimination towards Tamils, such as greater scrutiny at checkpoints, may continue to exist. The evidence before the tribunal does not suggest, and the tribunal does not accept, that any such discrimination amounts to serious harm as set out in s 91R(2) or to significant harm as set out in s 36(2A) of the Act.
The Applicant’s submissions overlook the findings of the Tribunal, based on country information, that the process of monitoring Tamils has improved and, in light of the passage of time since the claimed incidents of harm, the Tribunal found that the likelihood that he would be rounded up and detained, to be remote. That is, it was not simply a question of whether the Applicant will be monitored, but whether there is a real chance that that monitoring would result in the Applicant suffering serious or significant harm. The Tribunal found there was not a real chance.
Accordingly, I find no jurisdictional error arises on this point.
Paragraph 77, CB 249
The Applicant relied on the following extract from [77] of the Tribunal’s decision record:
…the tribunal further does not accept that the applicant left his village that same night due to fear from the SLA and is not willing to accept that he departed from his village and Sri Lanka as quickly as he has claimed. Given that the tribunal is of the view that the applicant has not been truthful about various aspects of what occurred in 2010, the tribunal finds that the issue of his whereabouts from 2006-2010 was resolved and that no further questioning was necessary.
The Applicant’s submission was that, the Tribunal accepted that he had a problem with the SLA between 2006 and 2010, and that because of those problems, he departed from Sri Lanka quickly. Therefore, the Applicant submits that the Tribunal should have given him protection. The difficulty with this submission is that, this is not what the Tribunal found. It is clear from the preceding paragraphs and [77] that the Tribunal accepted that the Applicant had “problems” with the Sri Lankan Army in 2006, and accepted that he was rounded up and detained in 2010 after a four year absence. However the Tribunal found that the Applicant had not been truthful about some of his claims regarding the 2010 incident, and clearly did not accept that he departed his village and Sri Lanka as quickly as he claimed.
Unfortunately, this submission of the Applicant both misunderstands the Tribunal’s findings and, in reality, seeks that the Court engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 41 ALD 1 at 23.
Accordingly, I find that no jurisdictional error arises on this point.
Paragraph 79, CB 249
The Applicant relied on the following extract from [79] of the Tribunal’s decision record:
Having considered independent country information before it including information provided by the applicant, the tribunal is of the view that this information indicates that Sri Lankan authorities no longer consider that being a Tamil, a Tamil male or even a Tamil male from formally LTTE-controlled areas gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with the pro-LTTE opinion.
The Applicant submitted that the Tribunal was wrong because it did not consider what he had told it about the circumstances in Sri Lanka, but took into account all the information provided by the country. He argued that the information provided by the country is always going to be wrong because they will not accept anyone going overseas. This submission misconceived the concept of “country information” used at [79] of the Tribunal’s decision record. The country information relied on by the Tribunal is information provided by independent sources, such as the United Nations Human Commission of Rights (“UNHCR”), the UK Home Office and the Australian Department of Foreign Affairs and Trade (“DFAT”). It is not information provided by Sri Lanka.
When I pointed out this error in the Applicant’s understanding of the reference to “country information”, the Applicant then submitted that the UNHCR had reported that during the civil war that many Tamil people had died, and now it is reporting that there are no problems in Sri Lanka. He questioned which report should be believed. He then added that the UNHCR is not going to look after him if he is returned to Sri Lanka. This latter point is of course irrelevant, and a somewhat unnecessary attack on the UNHCR.
The Applicant’s submissions regarding the Tribunal’s treatment of country information is in fact a complaint about the weight given by the Tribunal to various sources of independent country information. This is not something that would give rise to jurisdictional error.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], the Full Court stated:
11. … By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
Accordingly, I find that no jurisdictional error arises on this ground.
Paragraph 81, CB 250
The Applicant relied on the following extract from [81] of the Tribunal’s decision record:
… As set out above, the tribunal accepts that the applicant faced roundups, interrogations and short periods of detention during the civil war, during which he was physically assaulted.
The Applicant submitted that the Tribunal decision was wrong because it accepted that he had these problems, but decided he was not owed protection obligations by Australia.
This submission overlooks the reasoning of the Tribunal which follows in that same paragraph (at [81]):
… For reasons already discussed, the tribunal does not accept that these incidents occurred because the authorities had a particular adverse interest in the applicant, other than the general adverse treatment and suspicion of Tamils in the North during the civil conflict.
The Tribunal then went on to ask (at [81]):
…whether the applicant would face a real chance or risk of harm as a result of the events in 2010, namely the questioning of him by the SLA about his whereabouts shortly after his return to his home village and his four years living outside of his village.
The Tribunal reasoned and made findings as follows (at [82]):
As noted in the previous section, the tribunal has not accepted that authorities came to the applicant’s home at night to take him for further questioning, that he left his village in Sri Lanka as quickly as he has claimed or that there continue [sic] to be any concerns about his whereabouts from 2006-2010. Given these findings, the tribunal does not accept that there is a real chance that the applicant will face serious or significant harm because he was wanted for questioning and never returned, he has a suspicious record of absence from his home village or because he disobeyed an army directive.
In these paragraphs, the Tribunal sets out cogent reasoning for its conclusion that the Applicant was not owed protection obligations, notwithstanding his experience of serious harm during the civil war and in 2010. Reading the Tribunal decision record as a whole, it is clear that the Tribunal, whilst accepting that the Applicant had suffered incidents of serious harm in the past, found that this was not because the Applicant had a particular adverse profile and was of interest to the Sri Lankan authorities. It is clear that the Tribunal had formed the view (which it was entitled to do) that the Applicant had experienced serious harm because he was caught up, as a Tamil male, during and in the immediate aftermath of the civil war. The Tribunal went on to consider country information regarding the risk of harm to failed asylum seekers and found that, given the Applicant’s lack of adverse profile, the Applicant would only be subject to standard questioning on return to Sri Lanka, and would not be detained or interrogated on arrival in Sri Lanka. Accordingly, the Tribunal was not satisfied that the Applicant would suffer serious or significant harm as a failed asylum seeker, returning to Sri Lanka.
The Applicant’s complaint was, in reality, a complaint about the reasoning of the Tribunal and the outcome of the Tribunal decision. As I have already stated, the Tribunal’s reasoning was cogent and its findings were open to it.
Accordingly, I find that no jurisdictional error arises on this ground.
Paragraph 82, CB 250
The Applicant relied on the following extract from [82] of the Tribunal’s decision record:
… Given these findings, the tribunal does not accept that there is a real chance that the applicant will face serious or significant harm because he was wanted for questioning and never returned, he has a suspicious record of absence from his home village or because he disobeyed an army directive.
The Applicant submitted that the Tribunal decision is wrong because he has been away from his village and when he returns, these problems will start again. This submission is simply a reiteration of his claim that he will be harmed when he returns to his village because of the serious harm he had suffered in the past. The Applicant is attacking a conclusion of the Tribunal, which follows on from earlier findings made in the same paragraph (see the extract above at [80]) and in preceding paragraphs (see [74], [76] and [77] of the Tribunal decision record). I find that the Tribunal’s findings were open to it, and that the Tribunal engaged in cogent reasoning in making these findings. The Applicant simply disagreed with the Tribunal’s conclusion about the chance or risk of serious harm or significant harm upon his return to Sri Lanka. This disagreement does not give rise to jurisdictional error.
Accordingly, I find that no jurisdictional error arises on this ground
Paragraph 84, CB 251
The Applicant relied on the following extract from [84] of the Tribunal decision record:
… The ease of such monitoring and further passage of time since the end of the conflict leads the tribunal to find that the chance the applicant would be rounded up or detained, as he was between 2004-2006 is remote. The tribunal is willing to accept, however, that some level of discrimination towards Tamils, such as greater scrutiny checkpoints, may continue to exist. The evidence before the tribunal does not suggest, and the tribunal does not accept, that any such discrimination amounts to serious harm as set out in s 91R(2) or to significant harm as set out in s 36(2A) of the Act.
The Applicant submitted that in Sri Lanka he does not have the freedom to worship, the freedom to speak his language or the freedom to live in any country. He submitted that he could not even live with his own family, and had been forced to move from one country to another, and that he is very fearful about going back to his country. He further argued that “they” (presumably DFAT) are only told that the monitoring has been reduced, but do not say that it has completely stopped.
In making these submissions, the Applicant is clearly revisiting his evidence and complaining about the merits of the Tribunal decision. Accordingly, I find that no jurisdictional error arises on this ground.
Paragraph 55, CB 245
The Applicant relied on the following extract from [55] of the Tribunal’s decision record:
The tribunal advised that the vast majority of the country information indicates that the situation had changed since the end of the war and that the vast majority of information indicated that being Tamil, a young Tamil man or a Tamil from the North with a formerly strong LTTE presence or under former LTTE control was no longer sufficient to impute you with LTTE support or give rise to a real chance/risk of serious or significant harm…
The Applicant submitted that the Tribunal decision is wrong because it said that there is no problem for a person, merely because he comes from an LTTE controlled area. He argued that problems will arise because he is of the Tamil ethnicity, and that the authorities are more worried about “the next generation of the next Tamil race” (T 19.35).
The Applicant’s focus on this paragraph, in support of his argument that the Tribunal decision was wrong, is misguided. In that paragraph, the Tribunal is simply reciting the matters that he informed the Applicant of during the Tribunal hearing. As a matter of procedural fairness, the Tribunal informed the Applicant of the country information before the Tribunal. In this paragraph, the Tribunal was neither considering the Applicant’s evidence, nor making findings of fact, nor engaging in reasoning which led to its decision on review.
Accordingly, I find that no jurisdictional error arises on this ground.
Paragraph 61, CB 246
The Applicant relied on [61] of the Tribunal’s decision record:
The tribunal advised the applicant that it accepted that torture continues to occur in Sri Lanka but that on the information before it, it appeared to occur to Tamils with certain profiles that may not be his. It noted that many Tamils have been displaced during the war, both inside Sri Lanka and externally but the evidence did not indicate that this was a cause for suspicion or gave rise to a real chance/risk of serious or significant harm.
The Applicant submitted that the Tribunal decision was wrong because he did not claim that the torture would happen to his family, but would happen to himself, and that the Tribunal acknowledged that torture happens to certain Tamils, which may include himself. There are two difficulties with this submission. The first is that, in this paragraph, the Tribunal is simply informing the Applicant about the information it has. The second is that, as becomes apparent later in the decision when the Tribunal turns to consider the evidence and make findings of fact, the Tribunal found that the Applicant did not have the adverse profile that would attract the interest of the Sri Lankan authorities and consequential serious harm arising out of detention and interrogation.
Accordingly, I find no jurisdictional error arises out of this ground.
Paragraph 68, CB 247
The Applicant relied on the following extract from [68] of the Tribunal’s decision record:
… Despite this confusion, the tribunal is willing to accept as plausible that one or two incidents related to the LTTE occurred while the applicant was at home during that time period and that this led to the rounding up of many Tamil men in his village, including the applicant. It is willing to accept that the applicant was beaten during one or both of these roundups. The tribunal does not accept that the applicant was rounded up due to any particular interest in him apart from the fact that he was a Tamil male and thus suspected of LTTE association. It notes that, according to his evidence, he and others in the roundup were released by senior SLA officers.
The Applicant submitted that the Tribunal decision was wrong because it accepted that they tortured him, and that there was no reason for the torture. Therefore, if he is returned to Sri Lanka he will be tortured for no reason.
The Applicant’s submissions misunderstand what is said in the extract from [68] of the Tribunal decision record. In that extract, the Tribunal is referring to incidents in 2006 or 2007, during the civil war. The plain meaning of that extract is that the Applicant was rounded up (and tortured) because he was a Tamil male, and not because he was suspected of LTTE association. When regard is had to the Tribunal’s later consideration of the claimed incident in 2010, it is apparent that the Tribunal accepts the Applicant’s claim of serious harm in the past, because it accepted that, in the context of the civil war, Tamil males were routinely rounded up, treated suspiciously and subjected to serious harm. It is also apparent that the Tribunal found that after the immediate aftermath of the civil war, unless a Tamil male had a particular profile, they would no longer be of adverse interest to the authorities and at risk of serious harm. These findings were based on independent country information. Having found that the Applicant did not have an adverse profile that would attract the interest of the Sri Lankan authorities, the Tribunal concluded that there was not a real chance or risk that the Applicant would suffer serious or significant harm if he returned to Sri Lanka.
Accordingly, I find that no jurisdictional error arises out of this ground
Grounds specified in the Application for judicial review
The Applicant informed the Court that he had not personally prepared the written grounds for judicial review and he did not understand their meaning. Out of abundance of caution, I will address these grounds (set out in full at [14] above), many of which have been already dealt with in the course of addressing the Applicant’s oral submissions.
Ground 1 – the decision of the Tribunal is affected by jurisdictional error
Ground 1(a) contends that, “[t]he Tribunal failed to properly consider an aspect of the Applicant’s claims, namely the risk of persecution from him having sought asylum in Australia”. I am satisfied that the Tribunal gave detailed consideration to the Applicant’s claim to face harm for reason of being a failed asylum seeker/returnee from a western country (CB 251-253 at [89]-[98]). However, having regard to independent country information and the fact that the Applicant did not have an adverse profile that would attract the interests of the Sri Lankan authorities, the Tribunal did not accept that he faced a real chance or risk of serious or significant harm, having sought asylum in Australia.
Ground 1(b) contends that the Tribunal did not consider the Applicant’s claim that he feared persecution on the grounds of actual or imputed political opinion based on his support of the LTTE. It is clear from the decision record that the Tribunal considered this claim (CB
249-251 at [79]-[88]). The Tribunal simply did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm due to an actual/imputed political opinion in support of the LTTE. The Tribunal had earlier rejected certain aspects of the Applicant’s claims in relation to an incident in 2010, it rejected his claim that the authorities came to his home at night to take him for further questioning, that he left his village in Sri Lanka quickly and that there would be any concern by authorities about his whereabouts during the period from 2006 to 2010. The Tribunal did not accept that the Applicant would face serious or significant harm because he was wanted for questioning by the authorities and had never returned, nor because he had a suspicious record of absence from his home village, nor because he disobeyed an army directives (CB 250 at [82]).
Ground 1(c) contends that the Tribunal fell into error by “failing to ask itself the correct question in law” and failing to “give proper, genuine and realistic consideration to the merits of the case”. The Applicant has not, and could not, particularise the correct questions in law that the Tribunal was required to ask itself. I am satisfied, having regard to the decision record as a whole, that the Tribunal did not fail to ask itself the correct questions in law. Furthermore, as is apparent from my consideration of the multiple extracts relied upon by the Applicant in his oral submissions, I am satisfied that the Tribunal considered in detail the Applicant’s evidence in relation to the merits of his case.
Ground 1(d) contends that the Tribunal did not properly consider the complementary protection criterion, especially in relation to the investigation he claims that he would be subjected to upon return to Sri Lanka, and the state of prison conditions in Sri Lanka. In considering the complementary protection provisions, the Tribunal relied on its earlier reasoning. I am satisfied that in doing so, the Tribunal properly considered the complementary protection provisions in the preceding paragraphs because in making conclusions, the Tribunal referred to the “risk of significant harm” (CB 250-253 at [82], [85], [87] and [95]). The Tribunal found that the Applicant would, in the absence of an adverse profile, only be subjected to standard questioning, and not subject to detention or interrogation (CB 252 at [94]).
I find that ground one, as specified in the application for judicial review, does not give rise to jurisdictional error.
Ground 2 – the decision the Tribunal is affected by a denial of procedural fairness
Ground 2 contends, generally, that the Tribunal failed to put various pieces of country information to the Applicant which related to
pro-government (non-state) paramilitary groups (ground 2(a)), failed asylum seekers (ground 2(b)), and the improved situation for Tamils in Sri Lanka (ground 2(c)) (extracted in full at [14] above). Contrary to the Applicant’s assertion, the Tribunal was not required to put adverse country information to him for comment (in writing or otherwise) pursuant to s.424A(1) of the Migration Act 1958 (Cth) (“the Act”), given that it was excluded from the operation of that section by s.424A(3)(a) of the Act. Furthermore, it is clear from the decision record that the Tribunal discussed the relevant country information with the Applicant at the hearing (CB 245-246 at [54]-[61]).
I am further satisfied that no breach of the procedural fairness obligations in div.4 of pt.7 of the Act is apparent on the part of the Tribunal.
I find that ground two, as specified in the application for judicial review, does not give rise to jurisdictional error.
Conclusion
For the reasons set out in this judgement, Orders will be made dismissing the application for judicial review and requiring the Applicant to pay the First Respondent’s costs in a fixed amount.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 5 May 2017
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