Gao v Minister for Immigration - [2019] FCCA 1

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAO v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – Tribunal not satisfied that the applicant is a genuine temporary student entrant – whether the applicant was afforded a fair hearing opportunity, whether the Tribunal was biased or whether the Tribunal made factual errors which impacted upon the decision considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 361, 499

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

BKO16 v Minister for Immigration (No 2) [2018] FCA 1850

BUC15 & Ors v Minister for Immigration & Anor [2016] FCCA 1010

CSP16 v Minister for Immigration & Anor [2018] FCCA 3746

Helow v Home Secretary [2008] 1 WLR 2416

Johnson v Johnson [2000] HCA 48

McGovern and Anor v Ku-Ring-gai Council [2008] NSWCA 209

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

NADH v Minister for Immigration (2004) 214 ALR 264

Nigam v Minister for Immigration [2017] FCA 106

Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425

S14/2002 v Refugee Review Tribunal [2004] FCAFC 171

SZMUF v Minister for Immigration [2009] FCA 182

SZOAF v Minister for Immigration [2010] FCA 431

SZRMQ v Minister for Immigration [2013] FCAFC 142

SZTEX v Minister for Immigration [2014] FCA 1269

Tupkovic v Minister for Immigration [2017] FCA73

WAFK v Minister for Immigration (2003) 133 FCR 209

Applicant:

JUNCONG GAO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3015 of 2017

Judgment of:

Judge Driver

Hearing date:

28 November 2018

Date of Last Submission:

21 December 2018

Delivered at:

Sydney

Delivered on:

31 January 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J McGovern of Clayton Utz

ORDERS

The application filed on 28 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3015 of 2017

JUNCONG GAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant (Mr Gao) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a temporary student visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 21 June 2018.
Mr Gao is a Chinese national who first entered Australia in 2002.[1] On 17 May 2014, he applied for the student visa.[2] On 1 August 2014, the delegate refused to grant the student visa as the delegate was not satisfied that Mr Gao satisfied the requirements of clause 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3] The delegate was not satisfied that Mr Gao was a genuine applicant for entry and stay in Australia as a student.[4]
[1] Court Book (CB) 1; Tribunal Decision Record (DR) [25]
[2] CB 1-11
[3] CB 41-51
[4] CB 49-50
Mr Gao applied to the then Migration Review Tribunal for a review of the decision of the delegate on 15 August 2014,[5] and the Tribunal (differently constituted) affirmed the delegate's decision on 14 August 2015 (First Tribunal Decision).[6] Mr Gao appealed the First Tribunal Decision to this Court and the matter was remitted to the Tribunal for reconsideration on 7 October 2015.[7]
[5] CB 52-61
[6] CB 95-100
[7] CB 114
The matter was again listed before the Tribunal (differently constituted) on 27 July 2016.[8] Mr Gao did not appear and the Tribunal affirmed the decision of the delegate on that date (Second Tribunal Decision).[9] Mr Gao appealed the Second Tribunal Decision to this Court and the matter was remitted to the Tribunal for reconsideration on 1 March 2017.[10]
[8] CB 117-118, 120-121
[9] CB 123-129
[10] CB 130-131
The Tribunal (presently constituted) affirmed the delegate's decision on 31 August 2017.[11] It is from this decision that the current proceedings arise.
[11] CB 211-219
On 28 September 2017, Mr Gao commenced the current proceedings.

Relevant law and Tribunal's decision

At the time of the visa application, the student visa was comprised of various subclasses. Mr Gao applied for a subclass 572 visa.
The criteria for the grant of a subclass 572 visa were set out in sub-clause 572 of Schedule 2 to the Regulations. Relevantly, Mr Gao was required to satisfy the Tribunal that he was a genuine applicant for entry and stay as a student.[12]
[12] Schedule 2, Sub-clause 572.223 of the Regulations
The Tribunal identified that the issue in the present application was whether Mr Gao satisfied the “Genuine Temporary Entrant” requirement.[13] This is a consistent requirement across all relevant subclasses of Class TU student visas for which Mr Gao may have been alternatively eligible at the time of application,[14] and was a primary criterion for subclass 500 student visas at the time of the current Tribunal decision.[15]
[13] DR [21]
[14] DR [38]
[15] Schedule 2, subclause 500.212 of the Regulations
In the circumstances and based on the evidence before it, the Tribunal found that Mr Gao did not satisfy the requirements of clause 572.223 at the time of his application nor clause 570.223 at the time of the current Tribunal decision.[16] As the Tribunal was not satisfied that Mr Gao had established he was a genuine temporary student entrant, the Tribunal affirmed the delegate's decision to refuse the visa application.[17]
[16] DR [20]-[24]
[17] DR [38]-[39]

The current proceedings

These proceedings began with a show cause application filed on 28 September 2017. The application was supported by a short affidavit filed with it.
I conducted a show cause hearing on 29 June 2018. At the show cause hearing, Mr Gao was able to persuade me that, subject to the provision of additional evidence, in particular a transcript of the Tribunal hearing, he had an arguable case in relation to three issues. At that time I made the following orders:
1.Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the following issues:
a. whether the hearing opportunity afforded to the applicant was a fair one;
b. whether the Administrative Appeals Tribunal decision is vitiated by an apprehension of bias; and
c. whether the Tribunal made factual errors in its decision which impacted on the decision.
2. The applicant is to file and serve on the respondents a transcript of the Tribunal hearing verified by affidavit by 28 September 2018.
3. The matter is listed for final hearing on 28 November 2018 at 2.30pm.
4. The applicant is to file and serve on the respondents any written submissions 14 days before the hearing.
5. The first respondent is to file and serve on the applicant any further written submissions 7 days before the hearing.
6. The parties have liberty to apply for further directions or orders on five days notice.
7. Costs of today are reserved.
Mr Gao encountered difficulties in arranging for the preparation of a transcript for the Tribunal hearing, to which he deposes in an affidavit made on 8 October 2018.
For practical purposes, the problem of the absence of a transcript was overcome by the Minister consistent with his obligations as a model litigant. I received at trial the affidavit of Dylan Sherman made on 12 November 2018, to which is annexed a transcript of the Tribunal hearing. At trial, Mr Gao complained that he had had insufficient time to consider that transcript. I gave him the opportunity to file and serve post hearing submissions within two weeks.
I also received at the trial the affidavit of Justin McGovern made on 27 November 2018 concerning Mr Gao’s visa history.
I had received at the show cause hearing the court book filed on 22 December 2017.
Mr Gao asserts that the Tribunal did not afford him a fair hearing opportunity, approached the review with a closed mind and made numerous factual errors. He suggested at the trial that, in particular, lines 60, 170, 240, 265, 445, 545 and 585 of the transcript support those assertions. Mr Gao supplemented those submissions with post hearing written submissions filed on 11 December 2018. The Minister replied in further submissions filed on 21 December 2018.
The Minister responds that none of the issues identified in the show cause order, on analysis, establishes any jurisdictional error in the Tribunal decision.

Consideration

I prefer the submissions of the Minister in relation to the issues raised.

Whether the hearing opportunity to the applicant was fair

The Minister submits that the Tribunal properly discharged its obligations to conduct a review of Mr Gao’s claims de novo under Division 5 of Part 5 of the Migration Act 1958 (Cth) (Migration Act). The hearing opportunity afforded to Mr Gao was fair and no denial of procedural fairness can be established on this basis.
Provision is made in Division 5 of Part 5 of the Migration Act with respect to the Tribunal's conduct of a review. Relevantly, the Tribunal:
a)must give the applicant the opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
b)may obtain such other evidence as it considers necessary.
Pursuant to s.360(1) of the Migration Act, the Tribunal invited Mr Gao to attend a hearing to give evidence and present arguments relating to the issues in his case.[18] The invitation notified Mr Gao of the day, the time, and place at which Mr Gao would be required to appear and further notified him that the Tribunal would be assessing whether he was a genuine temporary entrant for study.[19]
[18] CB 144-146
[19] CB 144-145; s.360A of the Migration Act
On the day listed for the hearing, Mr Gao emailed the Tribunal to inform it that he was unwell, would be unable to attend, and sought an adjournment of the hearing date.[20] Having considered the evidence provided by Mr Gao, the Tribunal granted an adjournment of the hearing and invited him to a re-scheduled hearing on 21 June 2017 which he did attend with the assistance of a Cantonese interpreter and his migration agent.[21]
[20] CB 147-157
[21] CB 158-166
At the hearing, the Tribunal explored the relevant issues regarding whether or not Mr Gao genuinely intended to temporarily stay in Australia for study. Mr Gao engaged with the issues and presented his arguments in response to the Tribunal's questions.[22] The Tribunal also put certain inconsistencies to Mr Gao during the hearing,[23] and afforded him the opportunity to provide further evidence in support of his claims following the hearing which it would take into account.[24]
[22] see transcript of Tribunal hearing (transcript) filed on 12 November 2018
[23] DR [32]
[24] transcript, lines 260-280, 590-605
The Minister submits that, despite there being no meaningful particulars or evidence to support the claimed denial of procedural fairness:
a)the Tribunal’s decision record indicates that adverse information was put to Mr Gao for comment at the hearing and he responded accordingly;
b)there is no evidence before the Court to suggest that Mr Gao was not afforded a “real and meaningful” opportunity to participate in the Tribunal hearing;[25] and
c)the Tribunal plainly complied with its obligations to afford Mr Gao procedural fairness.
[25] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]; BJI16 & Ors v Minister for Immigration & Anor [2017] FCCA 2492 at [28]
I agree. Neither does the transcript of the Tribunal hearing assist Mr Gao.
Mr Gao’s submissions variously assert that he was denied a fair hearing, that the Tribunal member was biased or had a closed mind when assessing his claims, and that the Tribunal member was unreasonable in their approach to reviewing his case. However, none of these complaints are made out and no error is established on the Tribunal's part.
In his written submissions, Mr Gao has raised 37 specific lines of the transcript which he contends establish error. On the whole, these complaints merely express the applicant's displeasure with the conduct of the hearing, but they do not establish error.
Mr Gao’s submissions[26] complain that he was denied a fair hearing because he was purportedly denied the opportunity to present his case effectively. He further complains[27] that the Tribunal member was biased. These complaints cannot be sustained.
[26] at [1], [3], [4], [6], [7], [8], [9], [10], [15], [17], [20]
[27] at [2], [3], [5], [6], [11], [13], [14], [16]
The Tribunal, in its written decision, had regard to the relevant criterion applicable to Mr Gao and correctly considered the factors outlined in the Ministerial Direction made under s.499 of the Migration Act in determining whether Mr Gao satisfied the genuine temporary entrant criterion.[28] Further, the Tribunal hearing transcript demonstrates that Mr Gao was given a fair, reasonable, and meaningful opportunity to present his claims and to engage with the Tribunal's incisive questions regarding the relevant statutory criteria.
[28] DR [20]-[35]
Within the context of the Tribunal's role as an inquisitorial forum, “[r]obust and forthright testing of the [applicant's] claims by the Tribunal … does not sustain a finding of apprehended bias”.[29] Indeed, as I expounded in BUC15 & Ors v Minister for Immigration & Anor: [30]
In the particular statutory context in which the Tribunal operates, the Tribunal is entitled to test and probe an applicant’s claims; it may require the Tribunal to question and express doubts, which is entirely appropriate.
[29] SZOAF v Minister for Immigration [2010] FCA 431 at [17] per Barker J
[30] [2016] FCCA 1010 at [29] citing NADH v Minister for Immigration (2004) 214 ALR 264 at [269] per Allsop J, as he then was
The Tribunal's approach to testing Mr Gao’s evidence was orthodox and it did not exceed its jurisdiction by the manner in which it conducted the hearing.
Mr Gao variously complains that he was not permitted to put his case. However, this is not the case. A fair reading of the Tribunal transcript demonstrates that the Tribunal member was, in fact testing Mr Gao’s evidence and the matters it focused on when questioning him were probative of the relevant question before it. That is, the Tribunal member's questioning was directly relevant to the question of whether Mr Gao was a genuine temporary entrant as a student.
In particular, Mr Gao complains throughout his submissions that he was not able to explain to the Tribunal member the purported reasons he had not successfully completed any study since the time of applying for the present student visa in 2014. Mr Gao asserts the reason for this failure was his inability to enrol in further study without a student visa (otherwise described by Mr Gao as his "complex visa situation") and his mental health issues. However, Mr Gao quite clearly had the opportunity to put these matters to the Tribunal at the hearing and did so on a number of occasions.
First, at lines 95 to 120 of the transcript, Mr Gao clearly explained that he purportedly could not successfully enrol or complete his courses because of his visa status.
Secondly, at lines 148 to 163 of the transcript, Mr Gao further explained that he stopped studying because of his various mental health and medical issues.
In this regard, I find that Mr Gao was not denied a meaningful opportunity to put his case to the Tribunal. Rather, the Tribunal transcript demonstrates that Mr Gao put his case to the Tribunal and the Tribunal member engaged in a thorough assessment of the evidence which was probative of the central question before it (that is, whether Mr Gao was a genuine temporary entrant).
The Tribunal member's approach was orthodox in this respect and was dispositive of the Tribunal's role as an inquisitorial forum conducting a review of Mr Gao’s claims de novo under Division 5 of Part 5 of the Migration Act. The hearing opportunity afforded to Mr Gao was fair and no denial of procedural fairness can be established on this basis.

Whether the Tribunal decision is vitiated by an apprehension of bias

I accept the Minister’s submission that the Tribunal's decision is not tainted by any apprehension of bias.
The question of whether a decision is vitiated by an apprehension of bias is to be determined by reference to the fair-minded lay observer who is taken to be reasonable,[31] informed as to the context and balance of relevant issues in a given case,[32] and their approach is not to be confused with that of the person who has brought the complaint.[33]
[31] Johnson v Johnson [2000] HCA 48 at [12]
[32] Helow v Home Secretary [2008] 1 WLR 2416, 2422 at [23], per Lord Hope of Craighead
[33] Ibid.
In the present proceedings, there is no evidence 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 may not have brought an impartial mind to determining the application for review.[34]
[34] Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [27]-[32]
Moreover, to establish actual bias, Mr Gao must demonstrate that the Tribunal "had a closed mind to the issues raised and was not open to persuasion by the applicant's case".[35] Mr Gao has not established this state of affairs.
[35] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 and McGovern and Anor v Ku-Ring-gai Council [2008] NSWCA 209
The Tribunal had regard to the relevant criterion applicable to Mr Gao and correctly considered the factors outlined in the Ministerial Direction made under s.499 of the Migration Act in determining whether Mr Gao satisfied the genuine temporary entrant criterion.[36] Further, and as noted above, the hearing transcript demonstrates that Mr Gao was given a fair, reasonable, and meaningful opportunity to present his claims and to engage with the Tribunal's questions regarding the relevant statutory criteria.
[36] DR [20]-[35]
As I have already noted, the “[r]obust and forthright testing of the applicant's claims by the Tribunal … does not sustain a finding of apprehended bias”.[37]
[37] SZOAF op cit at [17] per Barker J
As I have also already noted, the Tribunal's approach to testing Mr Gao’s evidence was orthodox and it did not exceed its jurisdiction by the manner in which it conducted the hearing.
Having regard to the Tribunal transcript, and on a fair reading of its written reasons, the Tribunal's decision cannot be said to have been vitiated by an apprehension of bias. Such a serious allegation must be "distinctly made and clearly proven".[38] Mr Gao’s submissions fail to meet the first of these elements, let alone provide some arguable case to establish the allegation of bias. Accordingly, Mr Gao’s grievance with the Tribunal hearing process and his disagreement with the Tribunal's findings do not establish that the Tribunal member was biased in any way.[39]
[38] Jia Legeng
[39] Jia Legeng; see also CSP16 v Minister for Immigration & Anor [2018] FCCA 3746 at [92]-[94] (per Judge Nicholls)

Whether the Tribunal made factual errors which impacted on its decision

I also accept that the Tribunal did not make factual errors in its decision which impacted on the decision in a manner which caused it to fall into jurisdictional error.
The Tribunal's decision should be read holistically and should not be read over-zealously with an eye keenly attuned to the perception of error.[40] When considered through this lens, the Tribunal's decision does not reveal any factual errors that could rise to a sufficient level of materiality such as to compromise the decision's soundness and validity at law.
[40] Nigam v Minister for Immigration [2017] FCA 106 at [73]; Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]

At the show cause hearing on 29 June 2018, a number of matters were raised with respect to the Tribunal's decision and these were addressed by the parties in their post hearing submissions.
First, I find that no error is established by the Tribunal's statement at [31] of its reasons that “[A]dditionally, the applicant has spent 15 years on a student visa in Australia and studied at the tertiary level”. While this particular sentence may exhibit some unhappy phrasing, it does not reveal error.[41] This is particularly evident in the Tribunal's further consideration of the genuine temporary nature of Mr Gao’s residence in Australia at [34] of its reasons where it states (correctly) that “the applicant has been in Australia on various student and bridging visas since 2002” (emphasis added).
[41] Tupkovic v Minister for Immigration [2017] FCA 73 at [37] per Robertson J
When read fairly and as a whole, the Tribunal's reasons reveal that it properly considered the relevant matters required of it by Ministerial Direction 53 when assessing whether Mr Gao was a genuine temporary entrant for study in Australia. The Tribunal's reasons do not demonstrate that it misunderstood or misapplied these requirements (nor Mr Gao’s immigration history in Australia) and its conclusions were open on the evidence for the reasons it gave.
Secondly, Mr Gao asserted that the Tribunal decision originated from a cancellation of his student visa in 2013. I reject that contention.
Mr Gao’s last substantive student visa was granted on 18 April 2013 and was valid until 28 May 2014. The records held by the Minister's Department show that this visa was not cancelled and simply ceased on its date of expiry on 28 May 2014.
The Tribunal did not fail to have regard to the alleged cancellation of Mr Gao’s visa in 2013 because, quite simply, no such cancellation occurred. The genesis of the present application for review was Mr Gao’s application for a further student visa which he lodged on 17 May 2014 (which the delegate refused on 1 August 2014).[42] The Tribunal correctly identified this as the relevant decision under review and assessed it accordingly. No factual or legal error is established on this basis.[43]
[42] CB 1-11, 41-51
[43] DR [2]
Thirdly, with respect to the Tribunal's description and treatment of the medical evidence provided by Mr Gao, the Tribunal made no factual errors that impaired its decision.
The Minister acknowledges that there is a factual error at [28] of the Tribunal's decision which incorrectly refers to medical evidence provided by "Dr Tan" and by "Dr Pan". This evidence was provided by Mr Gao’s doctor, Dr Tang.
I find that jurisdictional error cannot be established on this basis.
This error "does not indicate that the [decision-maker] has not applied his or her mind to the facts or that the [decision-maker] does not in fact hold the view expressed in the reasons given."[44] While the decision record contains an incorrect name for Dr Tang, it is clear from the balance of [28] which evidence was being referred to (the medical certificate dated 3 August 2015),[45] and the Tribunal appropriately had regard to this material when considering Mr Gao’s academic history.
[44] WAFK v Minister for Immigration (2003) 133 FCR 209 per French J at [38]
[45] DR [28], CB 83
The error was plainly typographical, and in circumstances where the correct meaning is clearly reflected by the context of the statement and the error was not material to any of the Tribunal's findings, no error can be made out on this point.[46]
[46] S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 (2 July 2004) at [27]-[35]
Further, the terms of [26] and [28] of the Tribunal's reasons are not contradictory and, indeed, the Tribunal's treatment of the evidence provided by Dr Lun was orthodox and does not reveal any error.
At [26] of its reasons, the Tribunal observed that Mr Gao stated at the hearing "that in 2013 another factor was a great trauma he suffered when his mother passed away" and that Mr Gao acknowledged "he had not previously raised as a factor affecting his ability to study that his mother had passed, not even with his agent".[47]
[47] DR [26]
At [28] of its reasons, the Tribunal stated as follows:[48]
Furthermore, Dr Lun does not support the claim that the applicant continued to suffer from distress from the breakdown of a relationship in 2006, nor that he experienced trauma from the death of his mother in 2013. It only refers to lack of family support in Australia. The Tribunal has concerns therefore about the reliability of the information that the applicant has provided to the Tribunal and Dr Lun. It is not satisfied that the report of 20 June 2016 can be given much weight.
[48] DR [28]
The Tribunal's consideration of the evidence in these two paragraphs[49] is not contradictory and does not establish that the Tribunal erred with respect to the content and import of Dr Lun's evidence. Rather, the Tribunal's statement in [28] expresses the concerns the Tribunal had about the weight that could be afforded to Dr Lun's report if, by Mr Gao’s own admission, Dr Lun was not made aware of all the relevant factors impacting on Mr Gao’s mental health and consequent ability to study.
[49] DR [26] and [28]
In light of these concerns, the Tribunal was not satisfied that it could give much weight to the evidence provided by Dr Lun. It is well-established that the weight to be given to evidence before it is a matter for the Tribunal.[50]
[50] Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [197]; SZMUF v Minister for Immigration [2009] FCA 182 at [14]; SZTEX v Minister for Immigration [2014] FCA 1269 at [19]
The Tribunal's reasoning at [28] of its decision reveals that the Tribunal simply considered the evidence before it and determined the weight to be placed on that evidence accordingly (as it is required to do when discharging its statutory obligation to conduct a de novo review of the delegate's decision). Factual determinations of this nature were within the purview of the Tribunal and its conclusions were open on the evidence.
Additionally, the Minister notes Mr Gao’s assertion that a translation error caused the Tribunal member to conclude that he “didn't do those courses” (being a reference to courses enrolled in since 2014).
I accept that whether or not a translation error has impacted the procedural fairness afforded to Mr Gao requires an “evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair”.[51] No evidence of any asserted translation error at the hearing has been provided by Mr Gao and mere assertion by him is not sufficient.[52]
[51] SZRMQ v Minister for Immigration [2013] FCAFC 142 at [9]; BKO16 v Minister for Immigration (No 2) [2018] FCA 1850 at [27]
[52] BKO16 at [28]
Having regard to the transcript and in light of the matters discussed above, I find that nothing raised by Mr Gao in his written submissions or otherwise demonstrates that he was denied procedural fairness or that the Tribunal fell into jurisdictional error when assessing his case.

Conclusion

Mr Gao has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 31 January 2019