Eyq17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 105

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105

File number:

MLG 2432 of 2017

Judgment of:

JUDGE FORBES

Date of judgment:

16 February 2024

Catchwords:

MIGRATION – protection visa – judicial review of a decision of the Administrative Appeals Tribunal – where applicant claims to fear tribal revenge killing – whether Tribunal had a duty to make inquiries – whether information about deaths of family members would have been probative of applicant’s claims – whether tribunal failed to make an inquiry into a critical fact – whether inquiry was an obvious one to make – where applicant and representative had not made inquiries – where applicant had not requested delegate or Tribunal to make inquiries – relevant principles discussed – no jurisdictional error found

Legislation:

Migration Act 1958 (Cth) s 36, 65, 424, 425

Cases cited:

Abebe v The Commonwealth (1999) CLR 510

Akers v Minister for Immigration and Ethnic Affairs [1988] FCA 459

Li v Minister for Immigration and Multicultural Affairs [1997] FCA 289

Minister for Immigration and Citizenship v Le (2007) 164 FCR 151

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1

Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Re Rowlands and Commissioner for Superannuation (1988) 16 ALD 589

STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251

SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470

Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258

Division:

Division 2 General Federal Law

Number of paragraphs:

66

Date of hearing:

27 March 2023

Place:

Melbourne

Counsel for the Applicant:

Ms Daye Gang

Solicitor for the Applicant:

Visatec Legal

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2432 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EYQ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	16 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs. 

2.The Applicant’s amended application for judicial review filed on 14 March 2023 be dismissed.

3.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at the day of hearing.

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 FORBES

INTRODUCTION

1. By an amended application dated 14 March 2023 the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) dated 10 October 2017. The decision of the Tribunal affirmed a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) (Subclass 866) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The amended application for judicial review advanced a single ground of jurisdictional error. The applicant contends that the Tribunal failed to make an inquiry about a critical fact, the existence of which is easily ascertained[1]. The critical fact which the applicant alleges the Tribunal should have inquired into was the circumstances of the deaths of the applicant’s wife, son and cousin.

   [1] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ

3. The applicant contended that the circumstances of the deaths of these family members was critically important to the question of whether he faced a real risk of significant harm or a real chance of persecution if returned to Port Moresby in Papua New Guinea.

4. For the reasons set out in this judgment, I am not persuaded that the decision of the Tribunal is affected by jurisdictional error. Accordingly, I have determined that the application should be dismissed, and that the applicant should pay the Minister’s costs.

   BACKGROUND

5. The following background is derived from the materials in the Court Book and the detailed outlines of submission filed by the parties prior to the hearing. Unless otherwise stated, the following matters are common ground.

6. The applicant is a citizen of Papua New Guinea (PNG). He first arrived in Australia on 30 December 2007 as the holder of a Tourist (Class TR) (Subclass 676) visa which expired on 30 January 2008. After the expiration of his Tourist visa, the applicant remained in Australia as an unlawful non-citizen.

7. On 21 October 2013, the applicant applied for the protection visa. In support of his application, the applicant provided the Department with a copy of his passport, a statutory declaration declared on 6 August 2014 and a copy of Medical Certificates of Death for the applicant’s wife and son[2]. He was assisted by the Refugee and Immigration Legal Centre in Fitzroy in making his application.

   [2] Court Book (CB) 6-57

8. In his statutory declaration[3], the applicant claims that his father, who was killed in 1977, his wife, who was killed in 1999 and his son, who was killed in 2006, all died as a result of tribal conflict. The applicant claims that his cousin was also killed in 2010 at the Port Moresby Airport by persons unknown. The applicant’s father had been killed in his home village in Enga Province, before the applicant fled to Port Moresby in 1980. His wife, son and cousin all died in or around Port Moresby.

   [3] CB 69-73

9. The applicant’s late father had been a tribal chief of the Kaekin tribe in Enga province. The applicant had been identified as his successor and therefore an enemy of rival tribes.

10. The applicant expressed a fear that his family members had been killed as part of a history of tribal revenge killings and that those responsible would continue to pursue him. He fears that if he were to return to PNG, there is a high risk that he would be targeted and killed or seriously injured by the enemy tribes.

11. On 13 January 2015, the Minister invited the applicant to attend an interview with the delegate scheduled for 13 February 2015[4]. That day the applicant’s representative provided the delegate with a written submission which put forward country information in support of the applicant’s claims[5].

    [4] CB 75

    [5] CB 79-93

12. On 27 March 2015, the applicant’s representative provided post-interview submissions[6].

    [6] CB 97-131

13. On 29 May 2015 the delegate refused the application[7]. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under section 36 of the Act and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

    [7] CB 133

    Administrative Appeals Tribunal

14. On 12 June 2015, the applicant applied to the Tribunal for merits review of the delegate’s decision[8].

    [8] CB 162-163

15. The Tribunal invited the applicant to attend a hearing and present arguments in accordance with s 425 of the Act[9].

    [9] CB 169

16. On 24 March 2017, the applicant’s representative provided the Tribunal with submissions, a further statutory declaration from the applicant dated 23 March 2017 and a supporting letter from the secretary-treasurer, Rochester Christian Fellowship, dated 13 March 2017[10].

    [10] CB 192-215

17. On 30 March 2017, the applicant attended the Tribunal hearing with the assistance of his representative and a Pidgin interpreter. At the hearing the applicant availed himself of the opportunity to give evidence and present his arguments.

18. On 10 October 2017, the Tribunal affirmed the delegate’s decision.

19. In its decision record, the Tribunal concluded that there is no real chance that the applicant would face persecution for a Convention reason if he returned to Port Moresby now or in the reasonably foreseeable future[11].

    [11] CB 234 at [50]

20. The Tribunal accepted that the applicant belonged to the Kaekin tribe and that his father had been killed by enemy tribesman in 1977[12]. However, given that the applicant left Enga in 1980 and lived in Port Moresby for 27 years before he moved to Australia, the Tribunal found that there was no real chance that the applicant would be seriously harmed by tribal enemies upon return to PNG, in circumstances where the applicant was never harmed or threatened by tribal enemies whilst residing in Port Moresby[13]. The Tribunal did not accept that the applicant’s “enemies” were looking for him and rejected his claim that he had been living in hiding[14].

    [12] CB 223 at [27]

    [13] CB 223-224 at [28-30]

    [14] CB 224 at [30]

21. Although the Tribunal accepted that the applicant was considered a suitable replacement as a tribal leader, it found that the applicant left Enga province in 1980 and had never returned. The Tribunal found that nothing had happened to the applicant in the 27 years since he left the village and that the risk the applicant would be harmed in Port Moresby because his father was a tribal leader was remote. The Tribunal concluded that the applicant would not return to his village in PNG and did not accept that the applicant faced a real chance of harm in the form of being rejected by people in his village[15].

    [15] CB 231 at [37]

22. The Tribunal was presented with evidence which proved the death of his family members. He provided the death certificates of his wife and son issued by the Port Moresby General Hospital which confirmed that the wife had died of “blood loss due to stab wound” on 28 September 2009 and that the son had died of a “multiple incisional wound” on 27 June 2006.

23. The Tribunal did not accept that the applicant’s wife and son were killed by the applicant’s tribal enemies because the applicant was a target of ongoing tribal violence and/or revenge. Instead, based on the high crime rates in Port Moresby, the Tribunal concluded that it was plausible that the applicant’s wife and son were killed for criminal reasons, as opposed to personal reasons related to the applicant[16]. The Tribunal also considered criminality to be the more probable cause of his cousin’s death at the airport, due to his involvement in gold trading. The Tribunal concluded that the applicant’s submission that his cousin’s murder may have been related to the applicant’s tribal enemies was pure speculation[17].

    [16] CB 229 at [33]

    [17] CB 230 at [35]

24. The Tribunal found that the fact that the applicant remained living in his house in Port Moresby for eight years after his wife was murdered indicates that the applicant did not consider that his wife’s attacker was a member of his enemy tribe, trying to reach him[18].

    [18] CB 230 at [33]

25. At [34], the Tribunal observed that if the applicant genuinely suspected that tribal enemies were behind the murder of his wife and son, the applicant would have made arrangements to leave PNG sooner and applied for protection immediately on arrival in Australia.

26. In respect of the applicant’s claim to fear harm because Port Moresby is lawless and there are high crime rates, the Tribunal found that the applicant was not entitled to refugee status on the basis of fearing serious harm as a result of a random criminal act or a criminal act perpetrated for a non-Convention reason[19].

    [19] CB 226 at [47]

    Application for judicial review

27. On 13 November 2017, the applicant applied to this Court for judicial review of the Tribunal’s decision and initially identified four grounds for review. The applicant also filed an affidavit on 13 November 2017 in support of his application for review, which annexed a copy of the Tribunal’s decision and reasons.

28. On 24 July 2018 a Registrar of this Court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions. The Minister was directed to file and serve a Court Book in electronic and hard copy format and was afforded an opportunity to file and serve written submissions.

29. On 14 March 2023, shortly before the hearing, the applicant filed an amended application. The amended application for review contained a single ground, as follows:

    Ground 1: The Tribunal constructively failed to exercise its jurisdiction by failing to complete an implied duty to inquire.

    (a)The circumstances of the deaths of the Applicant’s wife, son, and cousin was critically important to the question whether the Applicant faced a real risk of significant harm.

    (b)A duty to inquire into the existence of any further information about the deaths of the Applicant’s wife, son, and cousin arose because it was an obvious inquiry about a critical fact, the existence of which is easily ascertained.

    (c)In failing to complete that duty to inquire, in the circumstances, the Tribunal constructively failed to exercise its jurisdiction.

30. An outline of submissions was filed by the applicant on 14 March 2023. The Minister filed a Court Book on 8 August 2018 and an outline of submissions on 21 March 2023, in accordance with Court orders.

    FINAL HEARING

31. The matter came before me for hearing on 27 March 2023. Ms Gang of counsel appeared for the applicant and the Minister was represented by Mr Cunynghame. The parties’ representatives relied upon their written submissions and developed them orally at the hearing.

32. The single ground of review and the issue to be determined in this case is whether the Tribunal constructively failed to exercise jurisdiction by not discharging its implied duty to inquire. Specifically, the applicant submits that the relevant inquiry to be made by the Tribunal was whether the Port Moresby Hospital which issued the death certificates in respect of the applicant’s deceased wife and son had any information which might inform a critical fact, namely of the context of their killings which, in turn, might inform the question of whether they were the victims of tribal reprisals.

    Applicant

33. The applicant submits that the Tribunal failed to make an obvious inquiry about a critical fact where the making of the inquiry was not onerous.

34. The applicant submits that a relevant material fact before the Tribunal is that three members of his family had fallen victim to homicide in Port Moresby in 11 years, which is suggestive of a pattern or common factor, even accepting that Port Moresby is a high crime society. These deaths had occurred against a background of the applicant having fled Enga province to avoid reprisals after his father had been killed in tribal conflict in 1977.

35. The applicant submits that a critical fact to be determined by the Tribunal was whether any or all of the killings of his wife, son and cousin were motivated for reasons that would grant the applicant refugee or complementary protection status; namely whether the murders occurred because of the applicant’s identity as a member of the Kaekin tribe.

36. Counsel for the applicant submitted that information held by the hospital might reveal something about these deaths which could have been relevant to the Tribunal’s consideration of his claims. The applicant submits that in circumstances where it is common ground that both the wife and son were victims of homicide, there is a realistic possibility that the hospital may have possessed information in the nature of expert opinion, observation or information of some other kind which might reveal the circumstances of their deaths, including the possibility that they were related to tribal retribution, being information might lend weight to the applicant’s claim to fear harm because of the risk of ongoing revenge killings. The applicant says that even if the hospital itself does not hold any records of formal investigations, an inquiry of the hospital might “have turned up a statement from pathologists or coroners about the circumstances of the declarations of death, or opened pathways to inquiries with Papua New Guinean police who may have conducted their investigations”[20].

    [20] Applicant’s Outline of Submission at [11]

37. It was submitted that the implied obligation to inquire is not conditional on the applicant first establishing or the Tribunal being satisfied that relevant information in fact exists. Rather, the duty to inquire stands alone and is separate from the broader decision-making function of the Tribunal which follows, depending on whether information does or does not exist.

38. The applicant submits that the Tribunal has inquisitorial powers and that its function on review is essentially inquisitorial. While the applicant acknowledges that the Tribunal’s task is to review, rather than inquire, the Applicant submits that the implied duty to inquire is an integral element of the review function and if not discharged will result in jurisdictional error. The applicant submits that the scheme of the legislation facilitates the making of enquiries by the Tribunal.

39. Furthermore, the applicant submitted that the inquiry to be made in this case is one which naturally fell to be made on the state of the evidence before the Tribunal. It was submitted that an inquiry could have “yielded a useful result”[21] relevant to a fact in issue.

    [21] SZIAI

40. As to the inquiry being an obvious one, the applicant said that there was precious little evidence about the circumstances of the killings. Counsel submitted that the mere fact of three killings in one family gives rise to the obvious question “what is going on here”? Where the Tribunal is faced with an evidentiary lacuna and can only speculate about the circumstances of the killings, an inquiry directed to the hospital should be seen as all the more obvious.

41. Counsel for the applicant made a particular point of emphasising that the making of an inquiry would not have been onerous for the Tribunal. She submitted that a letter or phone call could easily have been made to the hospital, the contact details of which could be easily ascertained with a Google search. She submitted that relative to enquiries which had been made by the Tribunal in made in a number of other cases[22], the task of contacting the hospital in Port Moresby was relatively straightforward.

    [22] E.g. Akers v Minister for Immigration and Ethnic Affairs [1988] FCA 459; Li v Minister for Immigration and Multicultural Affairs [1997] FCA 289; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 (Yang); Re Rowlands and Commissioner for Superannuation (1988) 16 ALD 589 (Re Rowlands); and SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470

42. Applicant submits that issues of privacy in relation to information held by the hospital is irrelevant and a distraction. The critical inquiry to be made was whether the hospital had or did not have information. Issues relating to the accessibility of that information and privacy rights did not go to the question of whether the Tribunal discharged its implied duty to inquire.

43. Applicant’s counsel openly conceded that that neither the applicant nor his legal representatives had made any inquiries of the hospital themselves nor did they make any request to the Tribunal for such enquiries to be made. However, the applicant submits that these are irrelevant facts and do not bear on the question whether the inquiry was so obvious that it should have been made.

1. While accepting that it is not for the Tribunal to make the applicant’s case for him, it is submitted that where an obvious inquiry can be made in relation to a critical fact the failure to make that inquiry falls at the feet of the Tribunal and constitutes a constructive failure to exercise jurisdiction.

   Minister

2. Mr Cunynghame on behalf of the Minister relied on his written submissions and traversed relevant parts of the Court Book to show how the applicant’s claims had been advanced from the time he first applied for the protection visa.

3. In his application for the visa, the applicant recorded the death of his wife and son and included copies of their death certificates[23]. Mr Cunynghame stated, correctly, that nowhere on the face of those death certificates will one find contact details for the hospital which issued them. Referring to the applicant’s statutory declaration sent to the Department[24], counsel for the Minister noted that the applicant was not able to identify the reason for the deaths, as opposed to the cause of death.

   [23] CB 45-46

   [24] CB 63

4. The Minister directed the Court to the various submissions which had been made to the Department by the applicant’s representatives both prior to and subsequent to the applicant’s interview. The Court was also taken to the submissions provided to the Tribunal by the applicant’s representatives. Counsel for the Minister pointed out that the applicant was represented throughout by persons with extensive experience in refugee matters. However, nowhere in any of the communications, submissions or statutory declarations was it suggested that enquiries should be made of the Port Moresby Hospital - a fact not contested by the applicant.

5. The Tribunal accepted the death certificates provided by the applicant and the information contained in the death certificates[25]. The applicant’s evidence to the Tribunal was that he did not actually know who killed his wife or son, nor did the police who investigated the matters but failed to arrest anyone.

   [25] CB 244 at [32]

6. Referring to the authorities cited by the applicant as examples of where inquiries have been made, the Minister submitted that those cases involved the Tribunal ascertaining relatively simple matters such as country information comparing education systems[26], a search of a government database[27] or a request for information from a previous employer. Here, however, the Minister says that an inquiry directed to the Port Moresby Hospital was neither obvious nor would it be straightforward. There were no contact details for the Hospital contained on the death certificates. Furthermore, there is an added complexity of requesting information or medical records of people who are no longer available to provide their consent to such an inquiry and would conceivably raise privacy issues.

   [26] Yang

   [27] Re Rowlands

7. The Minister submits that it was not for the Tribunal, having accepted that the applicant’s wife and son had died, to go behind the information and embark on its own inquiries about the circumstances of their deaths. The Minister says that the Tribunal should not be criticised for not having made inquiries it was not asked to make when there is no evidence at all that those inquiries would have yielded a result which would have benefited the applicant.

   Relevant principles

8. The Tribunal operates in an inquisitorial, rather than adversarial, fashion[28] and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision[29].

   [28] SZIAI at [18]

   [29] Migration Act 1958 (Cth) s 424

9. However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims, the legislation does not impose on the Tribunal a general duty to make inquiries[30] in addition to the information provided to it by the applicant.

   [30] Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1 (SZGUR) at [1], [20] and Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 (SGLB) at [43]

10. It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant’s case[31].

    [31] STKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 251 at [25]; Abebe v The Commonwealth (1999) 197 CLR 510 (Abebe) at [187]

11. However, in Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60], Kenny J observed (citations omitted):

    “[…] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her.  These authorities stretch back over the life of the Tribunal[…] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.”

12. The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are “a confined category of case”[32].

    [32] SGLB at [25]

13. As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (SZIAI) at [25] that:

    “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.  It is not necessary to explore these questions of principle in this case[…]” (emphasis added)

14. Further, in SZIAI Heydon J observed at [52]:

    “The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.”

    Consideration

15. The Minister submitted, and I accept, that mere speculation about what additional information, if any, the Hospital (or by extension the Papua New Guinean Police) may have been able to provide, does not form a sufficient basis for concluding that inquiries made of the Hospital could have made a difference or yielded a useful result.

16. The critical question is why family members were killed and by whom, not how. In support of his application the applicant gave evidence that he never found out who killed his wife, son and cousin. Implicit in that statement is that he made some effort to find an answer to that question but was unsuccessful. The applicant has not put on any evidence about what he has done to answer that question and no evidence which would lead the Tribunal to the obvious conclusion that the Hospital has information which is probative.

17. If the further inquiries that the applicant says the Tribunal ought to have made were as critical to the application as the applicant says, it was open to the applicant to have made those inquiries himself. It was for the applicant to advance the evidence and arguments he wished in support of the application[33] - it was not for the Tribunal to do it for him[34].

    [33] Abebe at [187] (Gummow and Hayne JJ)

    [34] SZIAI at [52]

18. The failure of the applicant to present any evidence about the reason for the deaths in the family (as opposed to the cause) and the failure to make any inquiries himself or to request the Tribunal to make inquiries is instructive on the question of whether the inquiry was an “obvious” one to have been made. One would have thought that if the inquiry was so obvious and easy, the applicant and his representatives might have thought about making it. I do not accept the applicant’s submission that the Tribunal was better placed to do so because of its “institutional gravitas” as an executive organ of a sovereign government.

19. It is not to the point that the Tribunal’s function is inquisitorial or that the Tribunal has power to make inquiries. Nor is it to the point that the inquiry might be relatively easy or inexpensive (or so the applicant submits). It is not for the Tribunal to chase down every speculative theory advanced by an applicant. It does not fall to the Tribunal to fill a lacuna in the applicant’s evidence by embarking on an investigation which the applicant never asked of it.

20. There are no rare and exceptional circumstances present in the current case which cause the Tribunal’s failure to make enquiries of the Port Moresby Hospital to give rise to jurisdictional error.

    DISPOSITION

21. For the reasons set out above, the decision of the Tribunal is not affected by jurisdictional error.

22. Accordingly, the application will be dismissed.

23. It is appropriate that the applicant pay the Minister’s costs which in default of agreement shall be in accordance with the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

Associate:

Dated:       16 February 2024