Ejs18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1152

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EJS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1152  

File number(s):

SYG 2384 of 2018

Judgment of:

JUDGE GOODCHILD

Date of judgment:

8 December 2023

Catchwords:

MIGRATION LAW -   application for judicial review – decision of the Administrative Appeals Tribunal – Protection Class XA (subclass 866) visa – where the applicant claims to fear harm due to Malaysian money lenders – where applicant found not to be a credible witness – where applicant’s claims raise no jurisdictional error – no jurisdictional error established – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193

Craig v State of South Australia (1995) 184 CLR 163

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Citizenship v Li [2013] HCA 18

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [59] – [77]

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

71

Date of hearing:

18 September 2023

Place:

Sydney

Applicant: 

In Person

Solicitor for the Respondents:

Ms Teo of Australian Government Solicitor

ORDERS

SYG 2384 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EJS18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE GOODCHILD
DATE OF ORDER:	8 DECEMBER 2023

THE COURT ORDERS THAT:

1.The applicant’s application filed on 28 August 2018 be dismissed.

2.The applicant pay the first respondent’s costs in the sum of $6,000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GOODCHILD

INTRODUCTION

1. This Judgment concerns an application for judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal) made on 14 August 2018. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the ‘delegate’) to refuse to grant the applicant a Protection Class XA (subclass 866) visa (the ‘protection visa’) made on 9 March 2017.

   BACKGROUND

2. The applicant in these proceedings is a national of Malaysia who arrived in Australia on 20 October 2016 as the holder of an Electronic Travel Authority (subclass 601) visa. On 11 January 2017, the applicant applied for a Protection Class XA (subclass 866) visa.

3. On 9 March 2017, the delegate made a decision refusing to grant the applicant the protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (the ‘Act’), on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was therefore not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) of the Act.

4. On the same day, the applicant was notified of this decision via email correspondence sent to the email address listed on his protection visa application.

5. On 21 March 2017, the applicant lodged an application with the Tribunal for review of the delegate’s decision.

6. On 22 March 2017, the Tribunal acknowledged receipt of the applicant’s application via email correspondence. In that correspondence, the Tribunal invited the applicant to provide material or written arguments for the Tribunal to consider when makings its decision. The applicant did not provide any further material to the Tribunal.

7. On 19 October 2017, the Tribunal invited the applicant to a Tribunal hearing, scheduled to take place on 10 November 2017 at 9:30am (NSW time) at the Tribunal’s Sydney location.

8. On 28 October 2017, the applicant emailed the Tribunal, seeking to have the location of the hearing changed to Griffith, NSW, where the applicant was, and had been, living since his arrival in Australia.

9. The Tribunal accepted the applicant’s request and on 24 November 2017 emailed the applicant an invitation to attend a Tribunal hearing scheduled for 16 January 2018 at 9:30 am (NSW Time) at a location in Griffith, NSW.

10. On 16 January 2018, the applicant attended a hearing before the Tribunal. At the hearing, the applicant appeared via video with the assistance of a Malay speaking interpreter. The Tribunal records indicate the hearing lasted approximately 1 hour.

11. On 13 August 2018, the Tribunal affirmed the delegate’s decision.

12. By an Originating Application filed in this court on 28 August 2018, the applicant seeks judicial review of the decision of the Tribunal.

13. For the reasons that follow, the application for judicial review is dismissed.

    RELEVANT STATUTORY FRAMEWORK

14. The relevant provisions of the Act were as follows:

    36  Protection visas—criteria provided for by this Act

    (1A)  An applicant for a protection visa must satisfy:

    (a)  both of the criteria in subsections (1B) and (1C); and

    (b)  at least one of the criteria in subsection (2).

    (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

    (1C)  A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

    (a)  is a danger to Australia’s security; or

    (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

    Note:       For paragraph (b), see section 5M.

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

    (a)  a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

    …

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

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

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

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

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

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

    (2B)  However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)  it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)  the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)  the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally

    (Emphasis added)

15. Section 5H(1)(a) of the Act, provides that a person is a refugee if in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country. In the circumstances where a person is without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country, as per s 5H(1)(b) of the Act.

16. As defined by s 5J(1) of the Act, a person has a ‘well-founded fear of persecution’ if the person fears being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion (s 5J(1)(a)), there is a real chance they would be persecuted for one or more of those reasons (s 5J(1)(b)), and the real chance of persecution relates to all areas of the relevant country (s 5J(1)(c)).

17. As per s 5J(4), if a person fears persecution for one or more of the reasons mentioned in subparagraph 5J(1)  above, that reason, or reasons, must be the essential and significant reason, or reasons, for the persecution, the persecution must involve serious harm to the person, and the persecution must involve systematic and discriminatory conduct.

    TRIBUNAL’S DECISION

18. The Tribunal’s decision can be summarised as follows.

19. After setting out the criterion relevant to the visa the applicant sought at paragraphs [3] to [9] of its decision record, the Tribunal recorded the policy guidelines taken into account per Ministerial Direction No.56, made under s 499 of the Act. The relevant policy guidelines were PAM3 Refugee and humanitarian – Complementary Protection Guidelines, PAM3 Refugee and humanitarian – Refugee Law Guidelines, as well as relevant country information assessments as prepared by the Department of Foreign Affairs and Trade expressly for protection status determination.

20. The Tribunal set out the background facts and the applicant’s responses to questions asked in his visa application at paragraphs [10] to [18].

    Applicant’s protection claim

21. At paragraph [13] the applicant’s evidence, as per his written documents, is summarised in the Tribunal’s decision record as follows (errors in original):

    We live a very peaceful and harmonious life during our childhood. As time flys, we all siblings grow up and there were times when conflicts happen in family. [AB] my father’s cousin was running furnitures business in our area. The other cousin of my father, [S], just been selected as police officer in Malaysian Royal Police Staff. [HD], my father will full discretion and courtesy borrow amount of RM75,743.00 (Malaysian ringgits) from [AB] as he owns a large furniture business. Both agree on terms and conditions of payment. Unfortunately [HD] record loss in his electrical appliances business. Family conflicts arise when [AB] intention to claim his loan from his cousin. He send his goons to beat and brutally beaten my father. His police officer brother [S] also conspire with the beating. He arrive late when [HD] got beaten and they prior made police report. They also targeted me and my siblings in killing us brutally. My parents then decide to send to South Korea for 2 years in hiding. Then I receive news that my mother got sick. This even really was a saddest in my life I had to return to Malaysia. Unfortunately [S’s] goons –

    The applicant’s answer ends at this point on his application to the Tribunal. On an attached form he continues:

    Unfortunately, the police officer [S] was looking after me to resolve his old issue with me. Once again they send their gangster after me to held me in ransom so that my father paid all his brother debt fully. My life become as fugitive. I had to be underground in Kuala Lumpur Federal Territory. Then shortly few months there, I manage to escape to Australia. In order to seek protection from Australian government for my life survival and my parents and my siblings future. Here I am humbly requesting protection from [AB] and hi police officer brother [S], from their paid goons.

22. At paragraph [14] the Tribunal noted the harm the applicant had allegedly experienced in Malaysia, having been beaten and punched in the fact when trying to rescue his father from the police officer’s goons.

23. At [15] the Tribunal recorded that the applicant claimed that he feared death, being harmed and mistreated by the person from whom the funds had purportedly been loaned and also the police officer if he returned to Malaysia.

24. At paragraph [16] the Tribunal noted the applicant’s reasons for why he did not think the Malaysian authorities could, or would, protect him if he returned to Malaysia. His answer provided:

    [S], the police offer is the Royal Malaysian Police Staff. He misuses his position to abuse the law to suppress me and my family members to bow down to their demands. Most of police staff bribed heavily by [S] to follow all his wicked and evil directions.

25. At [17] the Tribunal noted that a Malaysian police report and the respective English translation were provided by the applicant in support of his application.

    Tribunal hearing

26. At paragraphs [19] to [32] the Tribunal sets out an account of the hearing, which detailed the discrepancies between the applicant’s claims in his protection visa application, compared with the answers he gave orally at the hearing on 16 January 2018.

27. The decision records that the applicant told the Tribunal that he had not filled in his protection visa application form, rather he had paid an agent to apply for the visa. He stated the agent provided the form and filled it in, and that the applicant just signed it and took it from Griffith to Sydney (at [21]). He is recorded as telling the Tribunal that he did not tell the agent who filled in his protection visa application form about the problems he faced in Malaysia (at [27]).

28. When asked at the Tribunal hearing what persecution involving serious or significant harm he faced in Malaysia, the applicant responded that he came from a very poor family, his father owed a lot of money, and he was in Australia to pay off his father’s debts and to help look after his four younger siblings who were studying (at [22]). The applicant is recorded to have also indicated that if he did not come here and pay the debts his family may be harassed by loan sharks (at [24]).

29. When questioned about the loan and how much had been borrowed, the applicant replied that he did not know too much about it but gave the figure of AUD$300,000.00 which the applicant said is approximately MR900,000.00 (at [25]). The applicant added that he had sent a total of MR50-60,000.00 to repay the loan.

30. When asked about the discrepancies between his protection visa application form and the evidence he had given the Tribunal, the applicant responded it was not true that his father had borrowed MR75,473 from his father’s cousin, AB. The applicant also stated it was not true that his father was harmed by people sent by AB or S (AB’s brother) the police officer, nor was it true that he had been beaten when he tried to rescue his father from S’s goons. The applicant also told the Tribunal that he spent two weeks in South Korea, not two years.

    The Tribunal’s adverse credibility finding

31. At paragraphs [33] to [43] the Tribunal set out its findings of fact and conclusions in respect of the applicant’s claims and evidence of fear of harm on the grounds of harassment by cruel loan sharks to whom the applicant’s father owed a large sum of money.

32. Relevantly, the Tribunal at paragraph [34] found that the applicant was not a credible witness.

33. At paragraph [35] the Tribunal noted that the ‘applicant’s testimony seemed intentionally vague and unforthcoming’ and that he ‘seemed to deliberately avoid providing details.’ The Tribunal noted that it was only when the Tribunal put to the applicant that his response did not seem to indicate he faced serious harm or significant harm that he said his family would have been harassed if he had not come to Australia to pay off his father’s debts. In doing so, the Tribunal noted that the applicant offered no detail about the nature of the harassment or who would inflict the harassment.

34. The Tribunal also stated that the applicant’s evidence generally was given in a ‘nonchalant manner’ and that it did not appear the applicant was conveying actual circumstances or genuinely held fears, rather, that he simply said whatever came to his mind at the time in response to the Tribunal’s questions.

35. At paragraph [36] the Tribunal noted the applicant ‘appeared entirely unconcerned that the agent he says he paid to complete his protection visa application had provided false information.’  The Tribunal opined that ‘the fact the applicant seems to have taken no interest in the contents of his protection visa application undermines the credibility of the evidence he gave at the hearing that his family faced harm from very cruel loan sharks if he returned to Malaysia’.

36. With regards to the police report made at a police station in the state of Perak on 7 August 2013, the Tribunal at [37] determined to give the report no weight when assessing the applicant’s credibility and his claims for the following reasons:

    (a)nothing in the alleged incident indicated that the applicant or any member of his family was harmed for any reason related to a loan or the inability to pay the loan.

    (b)the applicant’s testimony that he had no knowledge of what was in his application, that he had not looked at the application, that the claim in the application that his father had borrowed from a cousin named AB was not true, and that it was not true that AB had harmed his father.

37. With regards to the claims made in the applicant’s protection visa application, the Tribunal found at [38]:

    The applicant testified at the hearing that he was unaware of the contents of his protection visa application, the claims made in his protection visa application were not true, the application was completed by an agent who did not ask him anything, he did not look at the application, and all he did was sign the application and deliver it. I will thus not deal with the false claims made in the applicant’s protection visa application which he has resiled from.

38. Consequently, at paragraph [39] the Tribunal stated:

    In light of my finding that the applicant was not a credible witness and having given no weight to the police report I do not accept the claims the applicant presented at the Tribunal hearing. I do not accept that the applicant’s father had debts which led him to borrow RM900,000 from loan sharks in Malaysia because his father had debts or borrowed money from loan sharks. It is not inherently implausible that the applicant’s family is poor or that he came to Australia to earn money to send back to Malaysia to financially support members of his family. However, because I have found the applicant lacking in credibility, I do not accept those claims either or that the applicant has experienced problems in Australia or Malaysia which will lead him to face serious harm or significant harm in the reasonably foreseeable future in Malaysia. I thus find that there is not a real chance that if the applicant returns to Malaysia he will suffer persecution or significant harm as defined in s.36(2A) for any of the reasons he claimed at the hearing.

39. Based on these adverse credibility findings, the Tribunal did not accept that the applicant had a well-founded fear of persecution in Malaysia within the meaning of s 5J and was therefore not a refugee as defined by s 5H.

1. At paragraph [41], the Tribunal also considered whether the applicant met the requirements for the granting of a visa under the complementary protection provisions in s 36(2)(aa) of the Act, but ultimately found that he did not. This view was formed on the basis that having considered the applicant’s claims, the Tribunal was not satisfied, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm.

2. The Tribunal affirmed the delegates’ decision not to grant the applicant a protection visa.

   PROCEEDINGS IN THIS COURT

3. The applicant’s application for judicial review, filed on 28 August 2018, contains the following 3 grounds of review:

   1.The decision is effected by an error in law.

   2.The decision was made on my application without solid proof.

   3.It is requested to sent my application back to Administrative Appeals Tribunal for reconsideration.

   (As per original)

4. The applicant was afforded the opportunity to file an amended application, any affidavit evidence and written submissions prior to the hearing. The applicant filed nothing further.

5. On 18 September 2023, the applicants judicial review application proceeded to a hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Malay language was present to interpret the proceedings for the applicant.

6. Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that an unrepresented applicant (particularly one seeking protection) should be given an opportunity to explain their grounds of review or what they perceive the Tribunal “did wrong,” the Court gave the applicant an opportunity to make oral submissions and outline any concerns he had with the Tribunal’s decision.

7. To assist the applicant the Court explained to him that the possible categories of jurisdictional error for a migration decision of this sort, most commonly include, but are not limited to, the following categories:

   (a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];

   (b)where the decision-maker ignores relevant material: Craig at [198];

   (c)where the decision-maker relies on irrelevant material: Craig at [198];

   (d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207] to [208];

   (e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16] to [17]; and

   (f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26] to [28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

8. It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision to dismiss the applicant’s application: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

9. The applicant was asked if there was anything further he wished to say in respect of his application for judicial review of the Tribunal’s decision affirming the refusal of a Protection visa. The applicant’s responses, where relevant, will be included in my consideration of the facts below. The Court was satisfied that the applicant understood the proceedings and was able to properly participate in and follow the proceedings.

   CONSIDERATION

   Ground 1

   The decision is effected by an error in law

10. Ground 1 is an unparticularised assertion that the decision is effected by an “error of law”. Such an assertion and is vague and meaningless. It does not specify what the nature of the error of law is allegedly committed by the Tribunal. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 as referred to in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

11. On a review of the applicant’s application and affidavit, there is nothing contained in either document which points to any aspect of the Tribunal’s decision that may amount to an error of law.

12. The applicant’s oral submissions did not raise any allegation of jurisdictional error or any issue of the sort that this Court can address.

13. However, in its duty to assist self-represented litigants, the Court will consider for itself whether an error of law arises in the Tribunal’s decision: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [59] to [77].

14. On consideration of the decision of the Tribunal it can be seen that the Tribunal properly instructed itself as to the criteria for a protection visa contained in the Act. The Tribunal properly recorded and considered the claims and evidence of the applicant in his protection visa application and presented at the Tribunal hearing conducted in January 2018.

15. The Tribunal made credit findings adverse to the applicant. Upon my consideration of the basis for those findings I am not able to discern that such findings were not open to the Tribunal in the circumstances.

16. Further, having regard to the material contained in the Applicant’s protection visa application and the evidence given by the applicant at the hearing before the Tribunal in Griffith in January 2018 and having regard to the applicable legal principles nothing points to any aspect of the decision that may amount to an error of law.

17. Ground 1 does not disclose any jurisdictional error.

    Ground 2

    The decision was made on my application without solid proof

18. This ground contends that a decision was made “without solid proof”. Again, no further particularisation was provided. At the hearing before me I gave the applicant an opportunity to explain what he meant by this ground, and his response will be discussed below.

19. To the extent that this claim relates to an alleged failure by the Tribunal to consider, in the sense of an active intellectual engagement with the relevant aspects of the applicant’s claims including regarding the loan shark claim, that claim must be rejected.

20. From a fair reading of the Tribunal’s decision, it is apparent that the Tribunal understood the claims of the applicant that he feared harm as a consequence of his father borrowing money from a loan shark and that when his father was unable to repay the money, the loan shark threatened the applicant and his family.

21. The Tribunal at [14] understood the claim of the applicant to have experienced alleged physical harm by goons.

22. The Tribunal considered in detail the applicant’s claims to fear harm as a result of the applicant’s father’s loan shark circumstances at paragraphs [34] to [39] of its decision record.

23. Relevantly, the Tribunal found the applicant not to be a credible witness for the reasons outlined above in these reasons.

24. At paragraph [39] of its reasons, the Tribunal in considering the applicants claims, cumulatively stated that having “found the applicant lacking in credibility, I do not accept that… the applicant has experienced problems in Australia or Malaysia which will lead him to face serious harm of significant harm in the reasonably foreseeable future in Malaysia.”

25. At the hearing, I asked whether there was anything the applicant could point me to whereby he thinks the Tribunal’s decision was made without solid proof. He responded by stating that the Tribunal had never asked him for any of the documents of his case.

26. When given the opportunity to explain what documents he would have given the Tribunal, the only document he put forth in response was the police report made at a police station in the state of Perak on 7 August 2013. As above in these reason at [36], it identifies that the Tribunal had taken the police report into consideration. However, as per the reasons given by the Tribunal above, the Tribunal found the Police report to be of no assistance and gave it no weight in coming to its findings.

27. It is clear from the Tribunal’s reasons that it considered the applicant’s claims but rejected them for the reasons given. Those reasons and that conclusion were reasonably open to the Tribunal.

28. As such, ground 2 does not disclose any jurisdictional error.

    Ground 3

    It is requested to send my application back to Administrative Appeals Tribunal for reconsideration

29. In ground 3, the applicant requests the Court to remit the decision back to the Tribunal. As was explained to the applicant at the hearing before me, the Court’s power to direct the Tribunal to reconsider the matter according to law is enlivened only when the Court is satisfied that there has been a jurisdictional error in the way the Tribunal has undertaken its functions.

30. In any event, ground 3 does not identify any alleged error of law and therefore, does not disclose any jurisdictional error.

    CONCLUSION

31. For the reasons given, the Tribunal decision is not affected by any jurisdictional error.

32. I therefore order that the applicant’s application be dismissed and that the applicant pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.

Associate:

Dated:       8 December 2023