De Abreu v Minister for Immigration

[2017] FCCA 279

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE ABREU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 279

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal acted unreasonably, illogically or without intelligible justification in refusing the applicant an adjournment –  whether the Administrative Appeals Tribunal’s exercise of its discretion to refuse an adjournment was according to law – whether the Administrative Appeals Tribunal’s exercise of its discretion to refuse an adjournment was affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), reg.2.01, cl. 801.221

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: RAFAELA COSME DE ABREU

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1718 of 2015

Judgment of: Judge Emmett

Hearing date: 9 February 2017

Date of Last Submission: 9 February 2017

Delivered at: Sydney

Delivered on: 23 February 2017

REPRESENTATION

Counsel for the Applicant: Mr David Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Sparke Helmore Lawyer

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1718 of 2015

RAFAELA COSME DE ABREU

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 21 May 2015 (“the Tribunal”).

2. This matter concerns whether or not the Tribunal properly exercised its discretion in refusing the applicant an adjournment pending the outcome of another Court proceeding.

Background

1. The applicant arrived in Australia on 3 September 2009 on a prospective spouse visa.

2. On 25 May 2010, the applicant lodged an application for a Partner (Residence) (Class BS) visa with the Department of Immigration and Citizenship (“the Department”) on the basis of her relationship with her sponsor, Mr Nathan Shute (“the Sponsor”).  

3. On 26 October 2010, the applicant was granted a temporary partner (subclass 820) visa.

4. On 12 March 2014, the Delegate refused the applicant’s application for a partner (residence) visa.

5. On 6 April 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

6. On 21 May 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a partner (residence) visa.

7. On 23 June 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a partner (residence) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. At the time of the Tribunal’s decision, the applicant was required to meet the criteria set out in cl.801.221 of Schedule 2 to the Regulations, for the grant of a partner (residence) visa. Relevantly, cls.820.221(2)(b) and (c) of the Regulations required the applicant to continue being sponsored by the Sponsor, and to be the spouse of the Sponsor, as follows:

   “801.22 Criteria to be satisfied at time of decision

   801.221     

   (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

   (2) An applicant meets the requirements of this subclause if:

   …

   (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

   (i) the sponsoring partner; or

   (ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

   (c) the applicant is the spouse or de facto partner of the sponsoring partner.”

4. Clause 801.221(6) of Schedule 2 to the Regulations provides an exception in circumstances where the relationship between an applicant and a sponsor is no longer continuing, and the applicant or a dependent child has suffered ‘family violence’ committed by the sponsor. Relevantly, clauses 801.221(6)(c)(ii)(A) and (E) of Schedule 2 to the Regulations provides that the applicant meets the requirements of criteria to be satisfied at the time of the decision if the applicant has custody of a child in respect of whom the Sponsor has an obligation under a child maintenance order made under the Family Law Act 1975 (Cth), or any other formal maintenance obligation. Those clauses are in the following terms:

   “(6)  An applicant meets the requirements of this subclause if:

   …

   (c)  either or both of the following circumstances applies:

   …

   (ii)  the applicant:

   (A)  has custody or joint custody of, or access to; or

   …

   at least 1 child in respect of whom the sponsoring partner:

   …

   (E) has an obligation under a child maintenance order made under the Family Law Act 1975 , or any other formal maintenance obligation.”

5. Under s.338 of the Act, a decision to refuse to grant a partner (residence) visa is a decision which may be reviewed by the second respondent.

6. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) 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.

   360  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.”

7. Section 359AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

8. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Tribunal’s review and decision

1. On 6 April 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. In January 2015, the Department received an undated letter from the Sponsor stating that the relationship between the parties had broken down. That letter was forwarded to the Tribunal on 19 January 2015.

3. On 5 February 2015, the Tribunal wrote to the applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 27 February 2015 to give oral evidence and present arguments (“the First Hearing”).

4. On 27 February 2015, the applicant, the Sponsor and another witness attended the hearing and gave evidence.

5. On 3 March 2015, the Tribunal wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it (“the s.359A Letter”). The applicant requested, and was granted, an extension of time to respond to this letter.

6. On 2 April 2015, the applicant’s migration agent responded to the s.359A Letter and provided written submissions.

7. On 9 April 2015, the Tribunal wrote to the applicant requesting further information and evidence regarding claims made in the letter dated 2 April 2015 and information about the applicant’s child.

8. On 15 April 2015, the applicant, through her migration agent, responded to that letter and raised her intention to seek a child maintenance order from the Federal Circuit Court of Australia against the Sponsor in respect of her child, thereby enlivening reliance on cls.801.221(6)(c)(ii)(A) and (E) of Schedule 2 to the Regulations. As stated above, those clauses enable the applicant to obtain a Permanent Spouse visa, notwithstanding that the relationship with the Sponsor had ended in circumstances where the applicant has a child in respect of whom the Sponsor has an obligation under a child maintenance order made under the Family Law Act1975 (Cth), or any other formal maintenance obligation.

9. On 17 April 2015, the Tribunal again invited the applicant to appear before it on 7 May 2015 to give evidence and present arguments. At the applicant’s request, the hearing was adjourned to 14 May 2015 (“the Second Hearing”).

10. The applicant sought a further adjournment to allow for a determination of the child maintenance proceeding. That request was refused and on 21 May 2015, the Tribunal affirmed the decision under review not to grant the applicant a Partner (Residence)(Class BS) visa.    

The proceeding before this Court

1. The applicant was represented before this Court by Mr David Godwin, of counsel.

2. At the outset of the hearing, Mr Godwin confirmed that the applicant relied only on Grounds 1, 4 and 5 of the application filed on 24 June 2015. Those grounds are as follows:

   “1.    The applicant sought an adjournment from the second respondent (par 71) but it was declined by the second respondent, and in all the circumstances no reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.

   4.  The second respondent imposed a test (par 76 taken in conjunction with par 79) which was impermissible: that in connection with the said application for child maintenance, there be no lack of certainty as to an outcome favourable to the applicant, when the reality is that there can never be certainty as to the outcome when a person seeks from any court an order of that kind, or for that matter, of any kind. In the alternative the second respondent took into account an irrelevant consideration being the said lack of certainty as assessed by it, and/or exceeded its jurisdiction by assessing the prospects of an outcome favourable to the applicant in the said application for child maintenance.

   5.  Whilst the second respondent asserted (par 79) that it had taken into account the ostensible purpose of the provision in question it did not in that regard precisely identify the provision in question for the purpose of the said application for adjournment nor did it identify or discuss the purpose of same and that being so, it should be found that it misdirected itself and/or failed to exercise its jurisdiction or that it exceeded its jurisdiction in that it did not take into account a relevant consideration being the ostensible purpose of the provision in question.”

Grounds of Application

1. In Ground 1, the applicant contended that the Tribunal erred in failing to adjourn the hearing before it pending the outcome of the Family Law proceeding commenced by the applicant against the Sponsor for child maintenance in respect of the applicant’s son. The applicant’s son is not the child of the Sponsor and presently lives with and is being cared for in Brazil by his paternal grandparents.

2. Counsel for the applicant, Mr Godwin, submitted that the circumstances of the case before this Court were indistinguishable from those facing the Migration Review Tribunal (“the MRT”) in Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 (“Ortiz”). Mr Godwin submitted that the Tribunal erred when it found that “while there are some similarities between Ortiz and the circumstances of this case, the facts are distinguishable.”

3. In Ortiz the appellant had commenced parallel proceedings in the Family Court in relation to the paternity of the child of his sponsor. If the Family Court accepted that the appellant was the father of the sponsor’s child, then he would have met the relevant criteria. However, the MRT refused to adjourn the hearing to enable the Family Court to determine the issue of paternity. Had the Family Court found that the appellant was the father of the sponsor’s child then he would have met the relevant criteria.

4. Counsel for the applicant, Mr Godwin, submitted that the criteria in question was the same as in the case before this Court in that it expressly contemplated the possibility of court orders that may enable the applicant to meet the relevant criteria.

5. Mr Godwin submitted that in Ortiz, Logan J found that the MRT had unreasonably refused the adjournment and found that the visa criteria expressly contemplated the possibility of court orders. Logan J found that the parallel litigation in the Family Court was thus “intimately” connected with the visa criterion. His Honour found that the refusal of the adjournment ensured that the appellant’s review application before the MRT was doomed to fail. Further, Logan J found that there was nothing before the MRT from which it might reasonably conclude that the appellant was not prosecuting the Family Court proceeding with due diligence; and, that access to the child pursuant to the Family Court proceeding was necessary in order for the appellant to establish his paternity by way of a DNA test. Mr Godwin submitted that Logan J found that a further error of the MRT in Ortiz was that the MRT had acted illogically in not accepting that the appellant was the father of the child in question because the appellant had refused to undertake a paternity test and, that the materials before the MRT would have satisfied any reasonable tribunal of paternity.

6. Mr Godwin submitted that in the case before this Court the Tribunal  sought to distinguish Ortiz on the basis that there was no dispute that the Sponsor was not the biological father of the applicant’s son and that the son is a citizen of Brazil and is living in Brazil.

7. Mr Godwin submitted that the reason given by the Tribunal for distinguishing Ortiz related to the illogicality finding made by Logan J on the part of the MRT. Mr Godwin submitted that in the case before this Court, the Tribunal was pointing out that a reasonable tribunal did not have to accept that the Sponsor was the parent of the applicant’s child or that the applicant was entitled to maintenance from the Sponsor. Mr Godwin submitted that the Tribunal’s stated reasoning for distinguishing Ortiz did not provide a relevant distinction in relation to the first error in Ortiz which was that the MRT had unreasonably refused the adjournment.

8. Mr Godwin submitted that the Tribunal in this case was in the same position as the MRT in Ortiz and that the Tribunal’s approach could only be supported if there was probative evidence that the application for maintenance was without a proper arguable basis. Mr Godwin submitted that the Tribunal had accepted that it could not speculate on the outcome of the Family Law maintenance proceeding and that the evidence before it was to the effect that the maintenance proceeding had been properly instituted.

9. Mr Godwin submitted that the prejudice to the applicant in the adjournment not being granted was extreme because she would be denied her Subclass 801 Permanent Visa and that the failure to grant the adjournment doomed her case to failure. Mr Godwin further submitted that there was no evidence before the Tribunal that the applicant was not prosecuting the maintenance proceeding with due diligence. Mr Godwin submitted that it was unreasonable for the Tribunal not to allow the applicant time to meet the criteria by obtaining a maintenance order from the Family Court where the visa criteria referred to court orders which contemplated the existence of parallel proceedings.

10. Mr Godwin submitted the fact that there was no certainty that the Family Law proceeding for maintenance would be successful was not a proper basis to refuse applicant’s adjournment. Mr Godwin submitted that the Tribunal erred in relying on the uncertainty of the maintenance proceeding as a basis for refusing the adjournment.

11. Mr Godwin then referred to the Tribunal’s finding that the applicant’s delay in commencing the maintenance proceeding was a reason for refusing the adjournment. Mr Godwin submitted that the information and material before the Tribunal was that the applicant had first sought legal representation in relation to the Family Law proceeding on 12 March 2015 and instituted that proceeding on 2 April 2015. Mr Godwin contended that the Tribunal’s reasoning was illogical when it asserted that the applicant had not adequately explained the delay.

12. Mr Godwin submitted that the Tribunal’s reliance on the fact that the maintenance proceeding was not commenced until after the First Hearing; the delay of 2 years from when the applicant and Sponsor’s relationship ceased; and, the failure to adequately explain that delay suggested that the applicant had commenced the maintenance proceeding to support her visa application. Mr Godwin submitted that this finding was not open to the Tribunal and was made in error.

13. Mr Godwin submitted that the statutory objectives and purpose of the provision in question contemplates a court order and thus the possibility that time would be required to obtain such an order. Mr Godwin submitted that refusing the adjournment did not meet that objective or purpose of the provision and the Tribunal erred by finding that it did.

14. Mr Godwin submitted that there was no factual reason why the Tribunal needed to make a decision in May 2015 and the fact that the maintenance proceeding may take a protracted period was not sufficient to outweigh what was at stake for the applicant if she was denied a further adjournment. Mr Godwin contended that the refusal of the adjournment was disproportionate between the conduct of the review to that stage compared to what was at stake for the applicant. Therefore the Tribunal’s refusal to adjourn lacked legal reasonableness.

15. The submissions made by Mr Godwin addressed each of the Grounds of the application relied upon by the applicant, although made not specifically referrable to any particular ground.

16. Counsel for the First Respondent, Mr Smith, contended in brief first that the decision in Ortiz does not dictate the outcome of the present case; second, that the Tribunal did not act illogically when it asserted that the applicant had not adequately explained the delay in commencing the maintenance proceeding; and, third, that the Tribunal’s refusal to exercise its discretion to grant a further adjournment did not lack an intelligible justification.

1. In short, for the reasons that follow I agree with Mr Smith’s submissions.

2. The Tribunal’s decision record discloses that there was a hearing on the 27 February 2015 at which both the Sponsor and the applicant gave evidence as to whether the applicant and the Sponsor were in a genuine relationship. Following that hearing the Tribunal sent the applicant a letter in accordance with s.359A of the Act, inviting her to comment on certain information. Submissions by the applicant’s migration agent in response to that letter advised the Tribunal that the parties’ relationship had now broken down. The migration agent’s response referred to the applicant’s rights under cl.801.221(6)(c)(ii) of the Regulations and asked the Tribunal to delay making its decision until the maintenance proceeding had been finalised, in the absence of any agreement between the parties.

3. The Tribunal noted that it wrote to the migration agent on 9 April 2015 requesting information about the child referred to in the submissions, evidence that the maintenance proceeding had been initiated and further submissions about how cl.801.221(6)(c)(ii) of the Regulations may be applicable in the applicant’s case.

4. The applicant’s migration agent responded on 15 April 2015, enclosing a copy of the application lodged with the Federal Circuit Court of Australia on 2 April 2015, seeking a maintenance order for payment of $1,300 a year by the Sponsor to the applicant for the applicant’s son until the applicant’s son turns 18. The submission acknowledged that the applicant’s son is currently 8 years old, is a citizen of Brazil and lives in Brazil with his paternal grandmother. The First Court Date of the maintenance proceeding was 24 June 2015.

5. On 17 April 2015, the Tribunal wrote to the applicant and invited her to appear before it to give evidence and present arguments at a further hearing on 7 May 2015.

6. On 29 April 2015, the applicant’s migration agent provided further documents and requested a postponement of the hearing until 14 May 2015 to enable the Sponsor to be served with the Court documents. That request was granted and the Second Hearing was rescheduled for 14 May 2015.

7. The Tribunal notes that at the Second Hearing on 14 May 2015, the applicant told the Tribunal that the parties’ relationship had broken down in June 2013, although they remained living together until the applicant moved out in January 2015. The applicant confirmed that she and the Sponsor did not have any children together.

8. The Tribunal then noted that the applicant’s son is 8 years old and is living with and being cared for by his paternal grandmother in Brazil, and that the applicant is not sending any money to support her son at present. The Tribunal noted that the applicant said that the Sponsor sent money to Brazil to assist the applicant’s son on three or four occasions and has met her son on three occasions but has never lived with him in Brazil.

9. The Tribunal noted that it asked the applicant about the maintenance figure of $1,300 a year referred to in the maintenance application and noted the applicant’s response that the figure represented her son’s annual living costs in Brazil. The applicant also told the Tribunal that the Sponsor said that he has no obligation to provide for her son because he is not the child’s biological father. However, the applicant said that when the Sponsor and the applicant were in Brazil, the Sponsor had told the applicant and her son’s paternal grandmother that he would assist with expenses when the applicant moved to Australia.

10. The Tribunal noted that it asked the applicant why she had waited until after the First Hearing to initiate the maintenance proceeding and noted her response that the Sponsor had always had access to the visa application and took care of it and knew about those things.

11. The Tribunal then asked the applicant’s migration agent why it should further adjourn making its decision on the review given that there was no certainty when the litigation would be finalised. The Tribunal noted that the migration agent’s response was that the Sponsor and the applicant may reach an agreement. However, the Tribunal noted that the applicant had agreed that no order had been made and there was currently no certainty about when the matter would be determined. The Tribunal then noted that the maintenance litigation appeared to be a delay tactic and that it could be argued that the applicant’s circumstances were being manufactured to fit within the relevant criteria. Those concerns were put to the applicant’s migration agent who responded that it was a matter for the Court to determine.

12. Ultimately, the Tribunal did not consider the applicant to be a credible witness and placed little weight on her oral evidence in the absence of corroboration. The Tribunal noted that the applicant’s migration agent had acknowledged that there were no maintenance orders currently in place, that the Sponsor had not consented to orders being made for maintenance of the applicant’s son, and, that there was no certainty about when any orders may be made by the Court.

13. The Tribunal then stated that it had “carefully considered the request to further adjourn to enable the maintenance proceedings to be finalised.” In considering that request, the Tribunal noted the following evidence:

    “•  The applicant’s son is not the biological child of the sponsor;

    • He is a citizen of Brazil and has never visited or lived in Australia;

    • The applicant’s son resides with, and is financially supported by his paternal grandmother and possibly his biological father;

    • The sponsor has never lived with the applicant’s son in Brazil, although they have stayed together at a beach house on one occasion;

    • The sponsor has had sporadic contact with the applicant’s son by telephone; and

    • 'The sponsor has provided intermittent financial assistance on three or four occasions to the applicant’s son in response to a particular need, such as to purchase medication at times of illness.”

14. The Tribunal then noted that it was unable to speculate on the outcome of the maintenance proceeding but that it considered that it was far from certain that the Orders sought would be granted in the absence of the Sponsor’s consent.

15. The Tribunal then noted that it had adjourned the review on two occasions at the request of the applicant’s migration agent. The Tribunal also noted that the evidence before it indicated that the Sponsor intended to contest the maintenance proceeding, as a consequence of which the proceeding may take a protracted period to be finally determined.

16. The Tribunal then had regard to the fact that it was almost two years after the parties’ relationship broke down, and after the First Hearing, before the applicant lodged her maintenance proceeding.

17. The Tribunal then concluded as follows:

    79. After taking into account its statutory objectives, the ostensible purpose of the provision in question and the lack of certainty about when the Federal Circuit Court proceedings may be finalised, the Tribunal was not prepared to further adjourn until those proceedings could be finally heard and determined.

    80. Consequently, cl.801.221(6)(c)(ii) is not met at the time of this decision.

18. The above summary makes clear that the Tribunal considered in some detail the issues relating to whether an adjournment should be granted and weighed up the various matters before exercising its discretion to refuse a further adjournment. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”) and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) where essentially the Tribunal found that “enough is enough.” In both Li and Singh there was evidence to the effect that an adjournment would bear fruit for the applicant. That is in contrast to the present case where it was apparent that there was a considerable air of uncertainty that attended the maintenance proceeding.

19. In relation to the applicant’s contention that the Tribunal misplaced its reliance on Ortiz or that it failed to rely upon it at all, I accept the submission of counsel for the first respondent that it was indeed distinguishable. Logan J found in Ortiz that the MRT had misunderstood the nature of the parallel proceeding and that the MRT had failed to recognise the importance of the related proceeding. Mr Smith contended that the applicant’s submission that the MRT’s misconception in Ortiz was how connected the proceeding was with the criterion sought to be established, was not a correct description of the misconception. I accept Mr Smith’s submission that the misconception of the MRT found to exist by Logan J was that the MRT seemed to be labouring under the misapprehension that the parallel proceeding was all about amendments to a birth certificate. Such a misconception misstates the nature of the parallel proceeding to which Mr Ortiz was a party. Logan J found that in exercising the discretion to refuse the adjournment there was a total misunderstanding on the part of the MRT about the nature of the parallel Family Court proceeding.

20. I further accept the submission of counsel for the first respondent that decisions of other courts while they may be of relevance are not necessarily determinative. Further in Ortiz, the proceeding was some way down the track from a procedural perspective and orders had been made for the filing of evidence. Logan J accepted that the proceeding was being prosecuted in a bona fide way and with due diligence.

21. In the case before this Court there is no misconception on the part of the Tribunal as to the purpose of the maintenance proceeding and the Tribunal’s finding in relation to the applicant’s explanation for the delay was open to it on the evidence and material before it and for the reasons it gave. The Tribunal expressed doubts about the applicant’s explanation, which it was not bound to accept. The Tribunal also expressed doubt about the purpose of the commencement of the maintenance proceeding. These doubts were expressed in the context of the Tribunal’s finding that applicant was not a witness of truth. In the circumstances there is nothing illogical in the approach taken by the Tribunal in finding that the delay in commencing the maintenance proceeding had not been adequately explained.

22. In relation to the asserted error in Ground 3 that the Tribunal’s decision lacked an intelligible justification, and that the refusal to grant the adjournment was a disproportionate response, the Tribunal’s refusal to adjourn was open to it in the exercise of its discretion. The Tribunal noted that it had considered the applicant’s request carefully. It then identified with specificity the evidence that was relevant to the maintenance proceeding, the timing of the commencement of the maintenance proceeding and the statutory objectives before concluding that a further adjournment would not be granted.

23. As stated above, unlike Ortiz and Singh the Tribunal’s decision record makes clear that it did give careful consideration to the request for an adjournment and to the evidence and material before it. The Tribunal also expressed its concerns about the applicant’s credibility in explaining the delay. The Tribunal referred to relevant authorities on the exercise of discretion to refuse an adjournment in considering whether it should do so.

24. In the circumstances, there is no error in the manner in which the Tribunal exercised its discretion. It was open to the Tribunal to refuse the adjournment for the reasons that it gave and its decision to do so was not illogical, nor unreasonable, nor did it lack an intelligible justification. Further, the Tribunal’s finding that whilst there were similarities between Ortiz and the circumstances of the case before it, the facts were distinguishable.

25. Accordingly, none of the grounds of the application are made out and the Tribunal’s exercise of its discretion to refuse the adjournment is without error.

26. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

27. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

28. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 February 2017