FAC17 v Minister for Immigration
[2018] FCCA 3250
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAC17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3250 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Malaysian citizen – allegations of harassment by loan sharks – allegation interpreter before the Administrative Appeals Tribunal not professional – allegation that Administrative Appeals Tribunal member’s attitude was not good – allegation that Administrative Appeals Tribunal decision made orally and hastily – allegation that case not treated seriously – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 430D, 474, 476 |
| Cases cited: AJF16 v Minister for Immigration & Anor [2018] FCCA 149 SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 SZRUI v Minister for Immigration & Citizenship [2013] FCAFC 80 |
| Applicant: | FAC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 618 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 28 March 2018 |
| Date of Last Submission: | 28 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 618 of 2017
| FAC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 15 November 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal”), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal provided a written record of decision on 24 November 2017 (“Tribunal Decision”) confirming an oral decision delivered on 17 October 2017 (“Oral Tribunal Decision”), affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Protection (subclass 866) visa (“Protection Visa”) to the applicant.
The Tribunal Decision appears in the Court Book (“CB”) at CB 204-209.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Malaysian citizen, arrived in Australia on 17 September 2014 as the holder of a Visitor (Subclass 601) visa (“Visitor Visa”) and upon expiry of the Visitor Visa on 18 December 2014 he became an unlawful non-citizen: CB 116;
b)on 1 July 2015 the applicant applied for the Protection Visa making the following claims:
i)in early April 2014, the applicant and his business partner (“Other Partner”) learnt another Malay business partner (“Borrowing Partner”) had borrowed MYR 100,000 from an Ah Long (an illegal money lender in Malaysia) in their company’s name: CB 54;
ii)the Borrowing Partner had not repaid the debt and taking into account the extremely high interest, the amount owed became significantly higher, the Borrowing Partner fled the company and the Ah Longs and their associates began targeting the applicant and the Other Partner for the unpaid amounts, which lead the applicant to flee Malaysia: CB 54-55;
iii)if forced to return to Malaysia, the applicant fears he will face harm at the hands of the Ah Longs and their associates, as he and the Other Partner were continually threatened by the Ah Longs, including on one occasion being physically attacked by the Ah Longs: CB 55;
iv)the applicant and the Other Partner contacted the police after being physically attacked, but when the police arrived they had a private discussion with the Ah Longs and then left the scene, doing nothing to protect the applicant and the Other Partner: CB 55-56;
v)the police in Malaysia are known to be corrupt: CB 55; and
vi)in about June 2014 the applicant relocated to Johor to avoid harm from the Ah Longs, but was located by the Ah Longs in Johor, and if forced to return to Malaysia he fears he will face harm and mistreatment at the hands of the Ah Longs for the unpaid debt accrued by the Borrowing Partner: CB 56;
c)on 1 July 2016 the applicant attended an interview with the Delegate and on 18 July 2016 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 112-125;
d)on 3 August 2016 the applicant applied for review before the Tribunal and was invited to attend a hearing on 19 September 2017: CB 127-128 and CB 149-150;
e)the applicant attended the hearing on 19 September 2017 (“First Tribunal Hearing”) and the matter was adjourned to 17 October 2017: CB 175-177;
f)at hearing on 17 October 2017 (“Second Tribunal Hearing”) the Tribunal delivered the Oral Tribunal Decision affirming the Delegate’s Decision not to grant the applicant a Protection Visa: CB 186-188 and the applicant was notified he had 14 days to request a written statement of decision: CB 193;
g)on 15 November 2017 the applicant applied for judicial review in this Court and on the same date requested the Tribunal produce the written record of decision: CB 198; and
h)on 24 November 2017 the Tribunal Decision was provided to the applicant: CB 205.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)referred to the criteria for a Protection Visa being that set out in s.36 of the Migration Act: CB 206;
b)noted that the Tribunal had taken into account policy guidelines and country information as required by Ministerial Direction No.56: CB 206;
c)set out briefly legal principles regarding questions of credit and weight before making any adverse assessment: CB 206;
d)noted the applicant appeared before the Tribunal in the First Tribunal Hearing, and again in the Second Tribunal Hearing, to give evidence and present arguments, and that he was not represented by a registered migration agent: CB 206;
e)stated that at the First Tribunal Hearing it:
i)explained to the applicant documents the Tribunal had in its possession;
ii)asked if there was any information in the documents that should be changed, to which the applicant responded in the negative;
iii)further asked if the applicant wanted to add anything to his claims for protection, to which he again responded in the negative; and
iv)asked if the applicant was happy for the Tribunal to proceed on the basis of the above information, and the applicant responded in the negative again, but when the applicant was read a summary of his claims for protection from the Delegate’s Decision he agreed it was fair and accurate: CB 206;
f)referred to the commencement of the Second Tribunal Hearing where the Tribunal said at CB 206 that it:
i)reminded the applicant of his answers to the questions previously asked by the Tribunal;
ii)noted that the applicant made no further submissions to the Tribunal before the Second Tribunal Hearing;
iii)again read the summary of claims from the Delegate’s Decision, and the applicant again agreed that it was a fair and accurate summary of his claims; and
iv)summarised those claims as follows:
a. You and a friend entered into a business partnership with a Malay person in Kuala Lumpur in either 2010 or 2012.
b. You and your friend took 50 per cent of the business between you in equal shares, and the Malay person took 50 per cent and controlled the business' finances.
c. This Malay person disappeared in around March 2014. This person stole form you and your other business partner, and stopped meeting his obligations under a debt arrangement with an Ah Long.
d. He formed this debt contract with the Ah Long on behalf of the business without your knowledge, somewhere before March 2014.
e. This business partner is a person whose name you are unable to recall with any certainty, and the debt was either in the amount of 50,000 or 100,000 Malaysian ringgit.
f. The Ah Long criminal gang came to your factory and wrecked it, in around April 2014. According to you they beat you and your remaining business partner, demanding repayment of the debt.
g. You have a continuing fear of harm from Ah Longs and their criminal associates, as they have tracked you within Malaysia, and they appear to have influence with police.
h. They tracked you, for example, for the remaining two months that you stayed living and working in Kuala Lumpur after the beating.
i. You moved home to your parents' house in Johor in June 2014, but the Ah Longs tracked you down there.
j. You are unable to tell the Tribunal the address of the business that was wrecked by the Ah Longs in Kuala Lumpur.
k. You have also made varying claims about being under threat from a hit man if you return to Malaysia.
l. You do not have faith in the Royal Malaysian Police due to their failure you act when you approached them in April 2014, and you are concerned generally about the level of corruption within the Malaysia police.
m. You fear harm anywhere in Malaysia because the Ah Longs appear to have networks of influence throughout the country.
CB 207 (transcribed verbatim);
g)noted country information that loan sharking is illegal in Malaysia, and that there are many reports of loan sharks harming, harassing, and threatening the family of debtors: CB 207;
h)noted there is evidence of corruption in the Malaysian criminal justice system, but that there is a reasonably professional police force, appropriate criminal law and an impartial judicial system: CB 207;
i)indicated that it had asked the applicant why the Ah Longs had not harmed or threatened the applicant’s family, and said that the applicant’s evidence was vague on this point, and the applicant commented they harassed and threatened the applicant himself, but that his family in Malaysia was “well”: CB 207;
j)expressed doubts about much of the evidence the applicant provided to the Tribunal as it was in various parts vague, undetailed, and illogical, such as when the Borrowing Partner took money from the business and disappeared, having kept the finances of the business hidden for a number of years, and the applicant did not report the matter to police : CB 207;
k)said that it had pointed out to the applicant that it found it illogical that he would have no knowledge of the business affairs of the business or that the applicant did not know with certainty the name of the Borrowing Partner with whom he had been in business with as a senior business partner, and given the vague and illogical responses of either starting the business in 2010 or 2012, and not knowing the identity of a person whom he had been in business with for between two or four years, the inconsistent evidence suggested that a business arrangement did not actually exist: CB 207;
l)found it illogical that the applicant would suggest that an attack that involved beatings and wrecking his business would not have been investigated by the Malaysian police, and having received a beating that the applicant then remained in Kuala Lumpur for two more months before travelling home to Johor, and that despite claiming to have been tracked down to his parents' house in Johor by the Ah Longs, and having had his car “smashed up” and his life threatened, he made no further reports to police: CB 208;
m)indicated it had asked why the applicant did not report his immigration status when the Visitor Visa expired in 2014, and noted that his response was that he did not know what to do. The Tribunal found this answer vague and illogical, and “more importantly” found that the applicant provided no evidence to suggest that anyone had prevented him from seeking assistance from either a migration agent, a travel agent, a lawyer, the authorities or the Department, and it would be reasonable to expect a person with an uncertain immigration status and genuine fears of returning to their home country would have sought help from at least one of these sources at the first available opportunity: CB 208;
n)found that, because of the vague, undetailed, and illogical evidence provided by the applicant, it did not accept his claims were true, particularly as his written claims are brief and are not consistent with evidence at the First and Second Tribunal Hearings in key areas including:
i)the dates of forming a business;
ii)how loan repayments had been made prior to the disappearance of the Borrowing Partner;
iii)the location of the business; and
iv)how the applicant could be in business with someone for between two and four years and not see business accounts, or not know the name of the Borrowing Partner (being the major shareholder and managing partner of the business) with certainty,
and on that basis did not accept that the applicant had taken loans from loan sharks, or that loans were taken out from Ah Longs by the Borrowing Partner: CB 208;
o)noted that at both the First and Second Tribunal Hearings the applicant was unable to explain key inconsistencies in the evidence, and despite the Tribunal explaining its concerns with the inconsistencies, the applicant was still unable to explain them satisfactorily, nor had he explained why, contrary to country information raised by the Tribunal showing that harming family is a common tactic of loan sharks in Malaysia, the Ah Longs did not harm his family, and consequently held that the applicant was not threatened at his place of work or home town by loan sharks or anyone working for loan sharks. Cumulatively, the Tribunal found the vague, undetailed, and illogical evidence about the circumstances surrounding the applicant’s departure from Malaysia meant that those aspects of his claims also lacked credibility: CB 208;
p)did not accept that the applicant provided a reasonable explanation for the delay in seeking assistance to address his situation after the initial three month Visitor Visa expired, and given credibility concerns and the vague, undetailed, and illogical evidence provided, did not accept that he owed any money to an Ah Long or anyone else in Malaysia, or that the business he was a partner in owes money to an Ah Long or anyone else in Malaysia, and therefore did not accept that if the applicant were returned to Malaysia he would face any chance of being seriously harmed because of the debt, of for any other reason, by Ah Longs, their associates, or anyone else: CB 208;
q)noted that on all the evidence, including country information, if the applicant was returned to Malaysia there was only a remote or far-fetched chance he would be harmed by Ah Longs, by their criminal associates, or anyone else, because of his being a debtor to a loan shark or a reputed debtor to loan shark or Ah Long, or anything related to this, thus there is not real chance that he will be seriously harmed for his claimed debts to a loan shark, an Ah Long, or for any other reason, on return to Malaysia now or in the reasonably foreseeable future: CB 208-209;
r)noting the findings it had already detailed earlier in the Tribunal Decision, and referring to the “real risk” criterion under the complementary protection regime being the same standard as that of the “real chance” criterion, was not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk that he would suffer significant harm, and taking his claims at their highest, they remain vague, undetailed, and illogical, and they do not establish any of his claims: CB 209; and
s)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 209.
Judicial Review Application
The grounds of the applicant’s Judicial Review Application are as follows:
1. First of all, the interpreter is not very professional, so I think the Administrative Appeals Tribunal did not follow the procedure properly or with the case, which means that it is thoughtless to finalize the case. I could not agree this.
2. Secondly, the officer's attitude is not good. He was not impatient to interview me. Because I am not in good body condition when the interview in progress, lots of memories flashback. Then he was a little angry. Then he told me the decision is refusal. They just made the decision in rush. They failed to consider all of the reason before make the decision, which is very irresponsible. So I think it is very unfair to me and I want my case has been reviewed thoughtfully.
3. The officer did not do their job responsibly. The interview only lasted around 15 minutes and gave me the oral decision, not even a documented record. They could not been bothered by the their job at all. So they treat the case not seriously at all.
In support of the applicant’s Judicial Review Application an affidavit was filed by the applicant annexing the Record of Decision he was emailed by the Tribunal (“Record of Tribunal Decision”) stating the Tribunal delivered an oral decision affirming the Delegate’s Decision not to grant the applicant a Protection Visa (that is, the Oral Tribunal Decision), and inviting the applicant to request within 14 days a written record of the Oral Tribunal Decision.
A Registrar of this Court, by orders dated 15 December 2017, afforded the applicant an opportunity to provide an amended Judicial Review Application, any further supporting affidavits and a written outline of submissions prior to the matter being heard on 28 March 2018 (“Registrar’s Orders”). The applicant did not avail himself of the opportunity provided by the Registrar’s Orders.
At hearing, the applicant with the assistance of an interpreter, made oral submissions in support of the grounds of his Judicial Review Application, but said no more than that he was not able to gather the evidence to make his case because he was out of Malaysia.
The Minister relied on filed written submissions, the gist of which was also put orally at hearing.
Consideration
The requirement for jurisdictional error
A decision by the Tribunal may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error may constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, as may unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The Tribunal’s decision-making process must conform with the statutory requirements under the Migration Act, the effect of which were recently summarised in SZQPY v Minister for Immigration & Border Protection [2018] FCA 359 (“SZQPY”) at [27] per Colvin J:
… in order to conform to the statutory requirements, in making factual findings for the purpose of its decision upon an application for a review of a refusal of an application for a protection visa, the Tribunal:
(a) is not bound by technicalities or rules of evidence;
(b) undertakes an inquisitorial task of administrative decision making which is to be distinguished from judicial decision making in an adversarial context;
(c) must decide the facts based upon probative material;
(d) may rely upon material that would not be admissible in adversarial court proceedings and may use that material in a manner that would not conform to the requirements of the laws of evidence;
(e) need not reason from that material in the way a court would reason;
(f) must reason in the manner that would be expected of an experienced legal practitioner or a person selected as a member of the Tribunal by reason of their special knowledge or skills;
(g) must give reasons that are to be available in writing;
(h) must describe in its reasons the findings on any material questions of fact;
(i) must refer in its reasons to the evidence or other material which provided the basis for those findings, in the subjective view of the Tribunal; and
(j) must reason rationally based on probative material and logical grounds.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 (“Carrascalao”) at [48] per Griffiths, White and Bromwich JJ.
Finally, it is well accepted that this Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No particularisation
The applicant’s grounds disclose no easily recognisable ground of jurisdictional error.
The Minister has claimed the grounds of the Judicial Review Application are bereft of particulars, and that where the grounds are not properly particularised an application can be dismissed for that reason: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J.
As is now seemingly well accepted, a failure to particularise an originating application in migration judicial review proceedings means that the grounds cannot succeed: AYE16 v Minister for Immigration & Anor [2017] FCCA 1424 at [20] per Judge Lucev, affirmed in AYE16v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW at [35] per Gilmour J; Kumar v Minister for Immigration & Anor [2018] FCCA 678 at [25] per Judge Wilson.
Extending appropriate latitude to a litigant in person, the Judicial Review Application does, in the Court’s view, set out discernible grounds of jurisdictional error, and although they are not particularised in the usual way, there is sufficient in them to warrant consideration of each ground by the Court, in the process of which the Court must remain alert to the possibility of jurisdictional error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J.
Inadequate interpretation – ground 1
The applicant’s first ground of review raises an issue with the adequacy of the interpretation at the First and Second Tribunal Hearings.
Errors in interpretation:
a)may give rise to a denial of procedural fairness, specifically in cases involving error where justice may not be seen to be done: WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131 at [29] per Ryan J; SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 (“SZRMQ”) at [5]-[9] per Allsop CJ; and
b)do not assist the Tribunal in assessing credibility and may lead to adverse credibility findings: Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [49] per Kenny J, which can be “fatal” to an application for review before the Tribunal: Perera at [47] per Kenny J.
In SZRMQ at [5], [7] and [24]-[25] per Allsop CJ the Federal Court observed as follows:
5. Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case.
7. Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate…
24. The content of procedural fairness in relation to the standard of interpreting requires an evaluation of the fairness of the process… fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done.
25. The preferable way of expressing the matter is that, irrespective of the lack of proved causal connection between the misinterpretation and the reasons, the misinterpretation may be of such character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard.
Similar views were expressed in SZRMQ at [67]-[69] and [72] per Robertson J.
In Perera at [45] per Kenny J the Federal Court said:
The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision
In SZRMQ at [22] per Allsop CJ Perera was referred to and explained as follows:
Perera at 22-23 [38]-[41] referred to the interpretation being sufficiently incompetent that the applicant was prevented from giving his evidence. In Perera at 23-24 [45]-[46] it was clear, however, that Kenny J was referring to matters of significance involving important issues, not to a complete incapacity to interpret.
An applicant need not prove a complete incapacity to interpret, and a significant misinterpretation will suffice: SZRMQ at [67]-[69] per Robertson J.
By virtue of the Registrar’s Orders the applicant had an opportunity to file evidence relevant to the Judicial Review Application, but did not do so. Without a re-interpreted transcript of the First and Second Tribunal Hearings there is no evidence before the Court to determine if the applicant’s claim of inadequate interpretation has any foundation. In the absence of any evidence, such as a re-interpreted transcript of the First and Second Tribunal Hearings which could establish any deficiency in the standard of interpretation, this ground cannot succeed: MZART v Minister for Immigration & Anor [2017] FCCA 63 at [29] to [31] per Judge Jones: AJF16 v Minister for Immigration & Anor [2018] FCCA 149 at [26] per Judge Lucev. Without a transcript or a re-interpreted transcript of the Frist and Second Tribunal Hearings, and in any event, there is no evidence of the alleged failure to “follow the procedure properly” in relation to the allegation that the interpreter was “not very professional”. Furthermore, there is nothing on the face of the Tribunal Decision which suggests that there were any inadequacies in relation to the standard of interpretation. There is, therefore, no evidence that the standard of interpretation at the First or Second Tribunal Hearings:
a)was inadequate, or at the very least, so inadequate that the applicant was effectively prevented from giving evidence; or
b)caused errors which were material to conclusions reached in the Tribunal Decision adverse to the applicant.
In all of the above circumstances, ground 1 is not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 2
It is difficult to discern the basis of the applicant’s complaint in respect of ground 2, though it seems it could arguably be:
a)a complaint in respect of the Tribunal’s demeanour towards the applicant, although the complaint does not seem to go so far as being a distinctly made and clearly proven allegation of bias;
b)a statement that the applicant was “not in good body condition when the interview in progress”, perhaps suggesting that the Tribunal was unreasonable in not adjourning the First and Second Tribunal Hearings; and
c)a suggestion that the Tribunal “failed to consider” the Tribunal Decision properly.
Demeanour and possible bias
The Tribunal is entitled to vigorously test evidence where an applicant’s credibility is in issue, and occasional displays of impatience and irritation or occasional sarcasm or rudeness do not of themselves establish disqualifying bias: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex parte H”) at [30]-[31] per Gleeson CJ, Gaudron and Gummow JJ; SZRUI v Minister for Immigration & Citizenship [2013] FCAFC 80 at [91] per Robertson J. There is no distinct and clear proof of any matter constituting bias by the Tribunal: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) at [69] per Gleeson CJ and Gummow J and [127] per Kirby J, nor is there anything in the record of the Tribunal proceedings in the materials before the Court:
a)indicating that the Tribunal member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Jia Legeng CLR at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The mere making of an oral decision such as the Oral Tribunal Decision does not indicate bias, as the Federal Court in SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280 at [39] per Sackville J observed:
39 The appellant’s principal complaint about the RRT’s consideration of his claims was that it had made a decision first and had tailored its reasons to fit the decision. This complaint, however, misunderstands the significance of an oral decision handed down at the conclusion of a hearing. As the Magistrate pointed out, it is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed. There are obvious reasons why such a course is desirable. Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision. Sometimes ex tempore or oral decisions are necessary to enable the decision maker to cope with a very heavy workload. The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an applicant.
In the absence of any cogent evidence as to the Tribunal’s demeanour, this aspect of ground 2 cannot be made out, and does not establish jurisdictional error in the Tribunal Decision.
Unreasonable failure to adjourn
An unreasonable failure to adjourn a Tribunal hearing may constitute jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”), such as where the administrative decision-maker’s decision is arbitrary or capricious or abandons common sense: Li at [26]-[28] and [31] per French CJ, or where, although there was no particular error in reasoning which can be identified, the decision lacks an evident and intelligible justification when all things are considered: Li at [47], [63], [67]-[68] and [76] per Hayne, Kiefel and Bell JJ.
The relevant principles in relation to unreasonableness as explained by the High Court in Li and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”) were summarised by the Federal Court in Pandey at [41] per Wigney J as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In this case there is no evident underlying jurisdictional error giving rise to legal unreasonableness, and insofar as ground 2 might suggest unreasonableness by reason of a failure to adjourn it appears that it is a case of unreasonableness to be inferred where the decision appears to be arbitrary, capricious, without common sense or to be plainly unjust: Li at [28] per French CJ and [110] per Gageler J; Singh at [44] per Allsop CJ, Robertson and Mortimer JJ.
There is nothing in the Tribunal record or the Tribunal Decision which suggests that there was any complaint at or about the times of the First or Second Tribunal Hearings, or the four week adjournment between them, which might suggest that the applicant was unfit or unwell to such an extent that he was not able to participate properly in a hearing before the Tribunal. The applicant has not led any evidence, notwithstanding the capacity to do so pursuant to the Registrar’s Orders, either personally, or from a medical expert, which might suggest that the applicant was unfit or unwell to an extent that he was not properly able to participate in either the First or Second Tribunal Hearings. In short, there is no evidence that the applicant was “not in good body condition when the interview in progress”.
In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553; (2003) 198 ALR 293; (2003) 75 ALD 151 (“SCAR”) the Full Court of the Federal Court found that the Refugee Review Tribunal (“RRT”) had committed jurisdictional error in failing to give the visa applicant a fair hearing in circumstances where, unbeknown to the RRT, the visa applicant had become severely distressed after hearing of his father's death a few days before the RRT hearing, had sought medical treatment in the days between hearing of his father’s death and attending the RRT hearing and was, in the view of his treating psychologist at the time, in no condition to handle the RRT hearing, because he was totally unable to think clearly, and was quite unprepared as he did not even know what day it was and he had no support during the RRT hearing: SCAR at [12]-[13] per Gray, Cooper and Selway JJ. The Full Court of the Federal Court went on to observe in SCAR at [14] per Gray, Cooper and Selway JJ as follows:
14 The evidence put before the primary judge suggested that a possible explanation of why the respondent’s evidence to the Tribunal had been ‘vague’ and ‘confused’ was because of his distress at the news of his father’s death and because of the medical treatment, including drugs, that he had received in respect of that distress. Clearly if the Tribunal had been aware of the respondent’s distress it may have proceeded differently. At the very least it may not have made the credibility findings it did make in light of the alternative explanation for the inadequacy of that evidence.
The Full Court of the Federal Court in SCAR went on to observe that the facts relevant to the issue of whether or not there was a jurisdictional error by the RRT had been determined by the primary judge and were as follows:
a)the visa applicant was not in a fit state to represent himself before the RRT;
b)the RRT did not know that the visa applicant was not in a fit state to represent himself; and
c)there was nothing before it that should have alerted the RRT to the visa applicant’s condition: SCAR at [25] per Gray, Cooper and Selway JJ.
In SCAR the Full Court of the Federal Court went on to find that s.425 of the Migration Act imposed a statutory obligation to issue an invitation to an applicant to attend a hearing, in that case before the RRT, and that the invitation provided an opportunity to an applicant to attend an oral hearing for the purpose of giving evidence and presenting argument, and must not be a hollow shell or an empty gesture: SCAR at [33] per Gray, Cooper and Selway JJ. Compliance with s.425 of the Migration Act was said to be a necessary condition and element of a fair hearing by the RRT and a precondition to the valid exercise of its jurisdiction, and a failure to comply with those requirements under s.425 of the Migration Act involved jurisdictional error: SCAR at [36] and [38] per Gray, Cooper and Selway JJ. The Full Court of the Federal Court went on in SCAR to find that through no fault of its own the RRT did not comply with s.425 of the Migration Act because it did not extend a meaningful invitation to the visa applicant, and the visa applicant did not receive a fair hearing as required by s.425 of the Migration Act in the factual circumstances as set out at [23]-[24] above, with the result that the Tribunal made a jurisdictional error and its decision was invalid: SCAR at [41]-[42] per Gray, Cooper and Selway JJ.
In Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 (“SZNVW”) the Full Court of the Federal Court was dealing with circumstances where a visa applicant had claimed to be suffering from procrastination and other psychological impairments when he gave evidence at an RRT hearing, but the RRT rejected his evidence, and the question arose as to whether the RRT fell into jurisdictional error by not complying with s.425 of the Migration Act: SZNVW at [3], [5] and [16] per Keane CJ. In SZNVW the following observations were made at [18]-[20] per Keane CJ:
18 In SCAR the Tribunal was oblivious of the facts which established that the applicant did not have a full and fair opportunity to present his case. The reasons of the Tribunal in the present case show that the respondent did, in fact, seek to rely upon his psychological problems first to explain his delay in applying for a visa, and then as a possible explanation for what might otherwise be thought to be unsatisfactory aspects of his evidence. Accordingly, this is not a case where the Tribunal was oblivious to the problem said to vitiate its jurisdiction.
19 More importantly, evidence that the respondent’s psychological difficulties might explain an unconvincing performance during the hearing before the Tribunal is hardly apt to establish his unfitness to “give evidence and present arguments.” It may be accepted that the Tribunal might have taken a different view of the credibility of the respondent’s account of his circumstances in Pakistan if the further evidence relating to the respondent’s psychological deficits and their impact on his ability to give persuasive evidence had been placed before the Tribunal. But the absence of that further evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the respondent’s ability to “give evidence and present arguments relating to the issues arising in relation to the decision under review”.
20 In my respectful opinion, s 425 of the Act did not require the Tribunal to press the respondent to call further evidence of his psychological problems or to expand his arguments relating to the ramifications of his problems for any aspect of the case he sought to present. Nothing in this Court’s decision in SCAR supports the contrary view, and in the recent decision of Gilmour J in SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, especially at [20] – [25], the contention that an applicant’s psychological difficulties were such as to deprive him of the “meaningful opportunity” required by s 425 of the Act was rejected, correctly in my respectful opinion, on the footing that the applicant’s condition was not shown to be such as to deny him the capacity to give an account of his experiences, to present argument in support of his claims, to understand and to respond to questions put to him.
In SZNVW it was said that although it might be possible to say that a different view as to the visa applicant’s credibility might have been taken had more information been made available to the Tribunal as to the visa applicant’s psychological problems, that fell short of demonstrating that the visa applicant was denied a real and meaningful opportunity to give evidence and present arguments, or that that opportunity was impaired: SZNVW at [34] per Keane CJ, and that it was not the role of RRT to ensure that all possible lines of argument which might be available to an applicant in any given case were pursued to an applicant’s best advantage: SZNVW at [35] per Keane CJ. Emmett J agreed with the reasons of Keane CJ: SZNVW at [49] per Emmett J. Perram J distinguished the circumstances of SZNVW by reason of the fact that in SCAR the visa applicant was found not to be fit to represent himself whereas no such finding was made in SZNVW: SZNVW at [74] per Perram J. Perram J went on to observe that levels of so-called disability gave rise to issues of degree and practical judgment when assessing an applicant’s fitness to be involved and engaged in a hearing before an administrative decision-maker: SZNVW at [85]-[86] per Perram J.
It is relevant to observe that prior to both the First and Second Tribunal Hearings the Tribunal sent, on each occasion, at least one SMS reminder of the hearing time and date to a mobile telephone number provided by the applicant: CB 139-140. Further, on 9 October 2017 the applicant contacted an officer at the Tribunal to confirm the hearing date and time (which was confirmed), and told the Tribunal officer concerned that he would be attending the Tribunal Hearing on his own and not bringing any witnesses: CB 139.
On 8 October 2017 the applicant confirmed to the Tribunal that he would be attending the Second Tribunal Hearing and provided a new mobile telephone contact number: CB 185.
The Court notes that there is nothing in the exchanges between the applicant and the Tribunal between the First and Second Tribunal Hearings which would indicate that:
a)the applicant was unwell or unfit to any extent, let alone to such an extent as to prevent his proper participation in the First Tribunal Hearing; and
b)there was any illness or unfitness on the part of the applicant which would affect his participation in the second Tribunal Hearing.
In the present case:
a)the Tribunal was not aware, and not made aware, of any medical condition or medical treatment that the applicant had or was having (if indeed the applicant did have a medical condition and was having medical treatment);
b)no request was made before either the First or Second Tribunal Hearing to adjourn either of those hearings on the basis that the applicant was unwell or unfit, nor was there any approach to the Tribunal in the four week break between the First and Second Tribunal Hearings which might suggest that the applicant was unwell or unfit to the extent that he was not able to properly participate in the Second Tribunal Hearing;
c)the applicant has submitted no evidence of what occurred before the Tribunal, by way of a transcript or otherwise, from which it might be found that a request was made at the either the First or Second Tribunal Hearings for an adjournment on the basis that the applicant was unwell or unfit and unable to properly participate in the hearing;
d)there is no evidence of any medical condition, or any medical treatment, which was said to have the effect of rendering the applicant unfit to participate in either the First or Second Tribunal Hearings, and no evidence was led by the applicant, either personally or from any expert on his behalf, to demonstrate that he was not fit to participate in the First or Second Tribunal Hearings; and
e)there was, therefore, no evidence sufficient to warrant the Tribunal even considering an adjournment of the First or Second Tribunal Hearings, much less granting one in circumstances where it was not requested.
In the circumstances the First and Second Tribunal Hearings represented a real and meaningful opportunity for the applicant to give evidence and present arguments to the Tribunal, and the Tribunal in so doing, complied with the requirements of s.425 of the Migration Act. It follows that there was no unreasonable failure to adjourn the First or Second Tribunal Hearings, and this aspect of ground 2 cannot be made out, and does not establish jurisdictional error in the Tribunal Decision.
Failure to consider relevant matters
The failure to consider claims made or any relevant integers of an applicant’s claims will generally constitute jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop CJ.
In Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding prerogative relief in circumstances where there had been a failure by the RRT to respond to a substantial and clearly articulated argument relying upon established facts, and that failure was held to be a failure to accord natural justice and also a constructive failure to exercise jurisdiction: Dranichnikov at [24]-[25] and [32] per Gummow and Callinan JJ.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ the Full Court of the Federal Court said as follows:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Tribunal must have engaged in an active intellectual process directed at the claims and criteria for assessment of those claims: Carrascalao at [45]-[46] per Griffiths, White and Bromwich JJ.
A reading of the Tribunal Decision shows that the Tribunal carefully set out and established its understanding of the applicant’s claims: CB 206-209 (and see particularly the summary at CB 207). The Tribunal considered each of the claims made by the applicant in turn: CB 207-209. The Tribunal analysed those claims in a context where it had also considered the applicant’s credibility, and found his credibility to be wanting, and for that reason many of the applicant’s claims were disbelieved or doubted. The making of factual findings and the assessment of credibility were matters for the Tribunal: WAEE at [46] per French, Sackville and Hely JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J, provided that an adverse credibility finding must be one which is still reasonably open to the Tribunal: CQG15 v Minister for Immigration & Border Protection & Anor [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 at [83] per Griffiths, Perry and Bromwich JJ. Having regard to the observations made by the Tribunal with respect to the applicant’s evidence: see, in particular, at [4(i)-(o)] above, credibility findings of the kind made by the Tribunal were open to be made.
The Tribunal did engage in an active intellectual process directed to the claims and criteria for assessment of those claims, and in so doing did not depart from the statutory requirements under the Migration Act: Carrascalao at [45]-[46] per Griffiths, White and Bromwich JJ; SZQPY at [27] per Colvin J, and, in the circumstances, the Court is unable to discern any jurisdictional error by reason of a failure to consider relevant matters in the Tribunal Decision.
The Court, in the absence of particulars, cannot otherwise identify what claim, or component integer of a claim, related to the visa criteria in s.36(2) of the Migration Act, it is that the applicant purports to suggest that the Tribunal failed to consider.
Conclusion – ground 2
In all of the above circumstances, ground 2 has not been made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
In the absence of particulars it is difficult to discern the basis of the applicant’s complaint in ground 3, but doing the best it can the Court considers that the applicant may be submitting that:
a)the Tribunal failed to properly consider its decision; and
b)in particular, that the failure to properly consider arose from the speed with which the Oral Tribunal Decision was made.
Failure to properly consider
Any allegation that the Tribunal failed to properly consider these matters, for whatever reason, must fail for the same reasons as are set out in relation to the alleged failure to consider relevant matters for the purposes of ground 2: see [43]-[49] above.
Oral reasons for decision
Insofar as there is an allegation that there was a failure to properly consider the applicant’s case by reason of the speed with which the Oral Tribunal Decision was delivered, and the fact that there was a failure to provide a documented record of the Oral Tribunal Decision at the time, that argument must also fail.
The Tribunal is empowered pursuant to s.430D of the Migration Act to make a decision on the day and at the time of the hearing, and that decision is expressly permitted to be given orally. There is, therefore, no error in a Tribunal giving oral, rather than written, reasons for its decision. The length of any oral decision given by the Tribunal cannot of itself constitute a jurisdictional error: any jurisdictional error which arises must arise for the reasons set out at [10]-[13] above. A Tribunal decision which deals with and determines all aspects of an applicant’s claim, as here, is not one affected by jurisdictional error merely because it is a short decision, or one delivered shortly after a Tribunal hearing finishes. Indeed, the giving of oral reasons for decision by the Tribunal is commonplace at the conclusion of Tribunal hearings.
In this case the assertion in ground 3 that the hearing lasted for “around 15 minutes” is patently incorrect. The First Tribunal Hearing went from 10.00am to 10.15am, a total of 15 minutes: CB 165 and 169. There was then a Second Tribunal Hearing which lasted from 1.42pm to 3.05pm: CB 186 and 188, a total of 1 hour and 23 minutes. The Oral Tribunal Decision was not given immediately, but following an adjournment which lasted for 31 minutes, which took from 3.36pm to 4.03pm: CB 188. The total hearing time over both the First and Second Tribunal Hearings was therefore (exclusive of the time given to deliver the Oral Tribunal Decision) 1 hour and 38 minutes.
A reading of the Tribunal Decision, which reflects the reasons given in the Oral Tribunal Decision, shows that the Tribunal took care to set out the applicant’s claims in some detail, and then to deal with each of those claims. There is no basis for asserting that there was a failure to properly consider this matter by reason of the reasons given in the Oral Tribunal Decision, or the Tribunal Decision.
The fact that a documented record of the Oral Tribunal Decision was not immediately available is contemplated by the provisions of the Migration Act which allow for an applicant to request a written statement of a decision by a Tribunal within 14 days of the delivery of oral reasons: Migration Act, s.430D(4) and (5) (and see in this case CB 193-194). In this case, the applicant did not request a written statement of decision within 14 days, and it would appear that the only reason the Oral Tribunal Decision was reduced to writing in the form of the Tribunal Decision was because of the Judicial Review Application being made: CB 198. In any event, there is no basis for a finding of jurisdictional error because of a lack of a documented record. Ultimately, however, the documented record in this case, the Tribunal Decision, reflects the Oral Tribunal Decision as made at the conclusion of the Second Tribunal Hearing, and is a documented record in a form contemplated by the provisions of the Migration Act following the delivery of oral reasons for decision.
In all of the above circumstances, ground 3 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Grounds generally – disagreement and impermissible merits review
The applicant’s grounds otherwise simply read as disagreement with the Tribunal Decision. It is well established that mere disagreement with the outcome of the Tribunal’s Decision or a finding of fact by the Tribunal is insufficient to establish jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J; Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J.
Conclusion and orders
The Court has concluded that none of the grounds of the Judicial Review Application have been made out, and therefore no jurisdictional error by reason of those grounds has been established. Further, the Court having remained alert to the possibility of jurisdictional error in the Tribunal Decision: MZAIB at [100] and [112] per Mortimer J, has concluded that there is no jurisdictional error otherwise apparent in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 16 November 2018
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