Li v Minister for Immigration

[2016] FCCA 1531

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1531

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in the exercise of its discretion under s.362B of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal erred in the exercise of its discretion under s.363(1)(b) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal acted reasonably in failing to adjourn the hearing and to proceed to make a decision on the application for review without taking any further step to enable the applicant to appear before it to give evidence and present arguments – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 353, 357A, 362B, 363, 474
Migration Regulations 1994 (Cth), Sch.2 – cl.602.212

Cases Cited:
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 42
Minister for Immigration and Citizenship v Li (2012) 202 FCR 387
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Applicant: GEJIANG LI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1428 of 2015

Judgment of: Judge Emmett

Hearing date: 22 June 2016

Date of Last Submission: 22 June 2016

Delivered at: Sydney

Delivered on: 22 June 2016

REPRESENTATION

Solicitor for the Applicant: Mr Siwei Hu
(WB Legal)

Counsel for the Respondents: Mr Greg Johnson

Solicitors for the Respondents: Sparke Helmore Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1428 of 2015

GEJIANG LI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 27 April 2015 and handed down on 28 April 2015 (“the Tribunal”).

2. The applicant arrived in Australia on 24 March 2014 on a tourist visa and originally planned to stay for three months in Australia. 

3. Sadly her sister was diagnosed with leukaemia during her period of stay.

4. Because of her sister’s cancer, on 12 August 2014, the applicant lodged an application for a medical treatment visa for the purposes of donating her bone marrow to her sister. This was the first medical treatment visa application made by the applicant.

5. On 11 September 2014, the applicant was notified that her first medical treatment visa had been granted for a period of four months until 11 January 2015. 

6. On 9 January 2015, the applicant lodged an application for a second medical treatment visa seeking a further stay to care for her sister and in the event that her sister may need a further transplant (“the Medical Treatment Visa”).

7. On 13 January 2015, the applicant’s application for the Medical Treatment Visa was refused by a delegate of the first respondent (“the Delegate”). The Delegate found that the medical evidence in support of the application demonstrated that the transplant had been undertaken in late 2014.The Delegate noted that the medical documentation in support did not detail any requirement for the applicant to remain in Australia. Therefore, the Delegate found that there was no reason for the applicant to remain in Australia. In the circumstances, the Delegate found that the applicant did not meet cl.602.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

8. For the grant of the Medical Treatment Visa, the applicant was required to satisfy the subclauses of cl.602.212 of the Regulations. The only subclause relevant to the applicant was cl.602.212(3)(a), which stated as follows:

   “602.212

   Organ donor

   (3) all of the following requirements are met:

   (a) the applicant seeks to donate an organ for transplant in Australia…”

9. On 3 February 2015, the applicant lodged an application with the Tribunal for review of the Delegate’s decision and provided the contact details of her representative, Mr Wang.

10. On 4 February 2015, the Tribunal wrote to the applicant acknowledging receipt of her application for review of the Delegate’s decision. That letter made clear to the applicant that she must tell the Tribunal immediately if she changed her contact details. The letter also reminded the applicant of the importance of keeping any representative informed of her current contact details. The letter further informed the applicant that if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. No documents were provided by the applicant or her representative in response to that letter.  

11. On 20 March 2015, the Tribunal wrote to the applicant and her representative, informing that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising from her case. The letter also informed the applicant that she should advise the Tribunal as soon as possible if she was unable to attend the scheduled hearing. The letter further informed the applicant that the hearing would only be adjourned for a good reason. 

12. The letter further stated that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. 

13. The letter requested the applicant to send any additional documents or information upon which she may wish to rely by 20 April 2015.  The letter invited the applicant to attend a hearing on 27 April 2015. 

14. There was no response to that hearing invitation, either from the applicant or the applicant’s representative. 

15. On 27 April 2015, the Tribunal decided to proceed to make its decision without taking any further action to allow or enable the applicant to appear before it. 

16. In the course of exercising its discretion under s.362B of the Migration Act 1958 (Cth) (“the Act”) or s.363(1)(b) of the Act, the Tribunal noted that the applicant had previously been granted a medical treatment visa for the purpose of donating her bone marrow to her sister. The Tribunal also noted that the applicant now sought a further medical treatment visa. The Tribunal noted that the evidence before it indicated that the relevant procedure had been undertaken in 2014.

17. Relevantly, s.362B of the Act states as follows:

    “362B  Failure of applicant to appear before Tribunal

    Scope

    (1)  This section applies if the applicant:

    (a) is invited under section 360 to appear before the Tribunal; but

    (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

    Tribunal may make a decision on the review or dismiss proceedings

    (1A)  The Tribunal may:

    (a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

    (b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

    …

    (2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”

18. Additionally, s.363(1)(b) of the Act is as follows:

    “363  Power of the Tribunal etc.

    (1) For the purpose of the review of a decision, the Tribunal may:

    …

    (b) adjourn the review from time to time.”

19. The Tribunal noted that the most recent medical assessment in respect of the applicant’s sister was dated 11 November 2014, and that it referred to the bone marrow transplantation procedure having been completed. The Tribunal also noted that in that assessment, the doctor had estimated that the applicant’s sister may be able return to work in mid-February 2015.

20. The Tribunal noted that the applicant’s sister was a permanent Australian resident who had continuing medical treatment needs.

21. However, the Tribunal found that there was nothing in the various reports which had been provided to the Tribunal to indicate that the applicant was required to remain in Australia for her sister’s treatment needs. The Tribunal noted that all the medical evidence indicated that the applicant’s bone marrow donation had occurred in September 2014. The applicant does not suggest otherwise.

22. The Tribunal then went on to note that the applicant had been advised that it could not make a favourable decision on the available material and that a hearing was scheduled to provide an opportunity for the applicant to present further evidence and arguments. The Tribunal noted that the applicant did not attend the hearing and did not otherwise contact the Tribunal to explain her non-attendance, or seek a further opportunity to attend. The Tribunal noted that, in its view, it was appropriate to make a decision on the review application because the applicant had been given the opportunity to present further evidence and arguments regarding the review application, but had chosen not to do so. 

23. It is that exercise of the Tribunal’s discretion that the applicant challenges this morning as being affected by jurisdictional error. The applicant’s complaints are that the Tribunal’s discretion was not exercised reasonably and that it lacked a transparent or intelligible justification.  

24. In support of the application before the Court this morning, the applicant’s solicitor, Mr Hu, read an affidavit of the applicant affirmed on 18 August 2015. The affidavit purported to explain why the applicant did not attend the hearing. The affidavit makes clear that the applicant was aware of the hearing scheduled on 27 April 2015, but that she was living with her sister in Wagga Wagga and that her sister was too fatigued to drive her to Sydney. In the affidavit, the applicant deposes that her sister started driving her to Sydney to attend the hearing, but that after 30 minutes, her sister was too tired to continue. 

25. The applicant made no attempt to telephone the Tribunal. Nor did the applicant attempt to contact her representative to request him to contact the Tribunal for an adjournment. In her affidavit, the applicant deposes that she told her representative on 1 May 2015 that she had been “too emotionally upset to contact him or anyone else”. However, there is no evidence before this Court to suggest that the applicant or her representative informed the Tribunal of any such reason. I am prepared to accept that the applicant has been enduring an emotionally upsetting time. Nevertheless, that is not a satisfactory explanation as to why she made no attempt prior to the hearing to contact the Tribunal to advise of her distress, or for any other reason. 

26. The affidavit refers to a conversation that the applicant had on 15 April 2015 with her sister’s doctor to the effect that her sister may have a relapse, and that it would be desirable for the applicant to stay in Australia to offer support to her sister. Again, unfortunately, that conversation did not prompt the applicant either to contact her representative or the Tribunal about the upcoming hearing, and of which she was aware.

27. In her affidavit, the applicant also deposes that she changed her mobile number at the beginning of March 2015, and did not provide her new mobile number either to the Tribunal or to her representative. 

28. The Tribunal was not provided with any further information or material either by the applicant or her representative in support of her review application. The Tribunal noted that there was no evidence before it that the applicant was seeking any form of medical treatment herself, or that she was seeking to make any further donation of an organ such that the requirements at cls.602.212(2) or (3) of Schedule 2 to the Regulations would be met. The Tribunal noted that while the visa application form referred to the need for a bone marrow transplant and the applicant sought a visa for a further 12 months, the medical evidence before it indicated that the bone marrow transplant had occurred. The Tribunal noted that there was no evidence suggesting that the applicant’s sister had any relevant needs at the time, or arrangements for treatment, which required the applicant’s presence.

29. The Tribunal noted that the medical material indicated that the applicant could provide useful support to her sister. However, the Tribunal noted that this consideration was only relevant to the grant of a visa in accordance with cl.602.212(4) of Schedule 2 to the Regulations, which required that the person needing the support be the holder of a relevant temporary visa. In this case, the available material indicated that the applicant’s sister was an Australian permanent citizen. The Tribunal also considered the other criteria referred to in cl.602.212 of Schedule 2 to the Regulations and concluded that the applicant did not meet any of the relevant criteria.

30. The Tribunal noted that, in order to be granted the Medical Treatment Visa, the applicant had to satisfy at least one of the criteria in cl.612.202 of Schedule 2 to the Regulations. The Tribunal found that the applicant did not meet the essential prescribed criteria for the Medical Treatment Visa. Accordingly, pursuant to s.65(2) of the Act, the Tribunal found that the applicant’s visa must be refused and the Delegate’s decision affirmed.

31. The Tribunal’s reasons make clear that at the time its decision, the most recent medical assessment before it was more than six months old, being dated 11 November 2014. Indeed, in that assessment, the doctor stated that there was an expectation that the applicant’s sister may return to work in early or mid-February 2015. 

32. There was no evidence before the Tribunal at all to suggest that that expectation had not been met. Further, there was no evidence before the Tribunal to suggest that the applicant was living with her sister in Wagga Wagga and was dependent on her sister to drive her to Sydney to attend the hearing. Indeed, the evidence before the Tribunal in the form of a letter dated 11 August 2014 from the applicant’s sister stated that the applicant was currently living in Sydney.

33. Mr Hu confirmed that the applicant relied on Ground 1 and Ground 2 of the Amended Application filed on 18 August 2015. Those grounds are as follows:

    “1. The Migration Review Tribunal (MRT) unreasonably failed to adjourn its proceedings and to exercise its discretion under Section 363(1)(b) of the Migration Act 1958 (Cth).

    Particulars

    a. At all material times, the Applicant was represented by Migrant Agent, William Wang.

    b. On 12 August 2014, the Applicant lodged an Application for a Medical Treatment (Visitor) (Class UB) Visa (“First Medical Treatment Visa”) for purposes of donating her bone marrow to her sister, who was diagnosed with acute myeloid leukaemia.

    c. On 11 September 2014, the Applicant was notified of grant of the First Medical Treatment Visa for a period of four months until 11 January2015 (“Visa Expiry Date”).

    d. On 9 January 2015, prior to the Visa Expiry Date, the Applicant lodged an Application for a Medical Treatment (Visitor) (Class UB) Visa (“Second Medical Treatment Visa”) seeking further stay to donate her bone marrow to her sister, in case her sister's medical condition deteriorates and suffers from organ rejection.

    e. On 13 January 2015, the Applicant was notified of refusal of the Second Medical Treatment Visa. As per Decision Record, one of the basis for the First Respondent's refusal was that the “medical evidence presented with this application shows that the transplant was undertaken in late 2014. The medical documentation simply outlines the future treatment for the applicant's sister and does not detail any requirements for the applicant to remain in Australia. From the information provided, it can be seen that the treatment was completed in 2014 and the applicant is no longer required to remain in Australia. Therefore, the applicant does not meet 602.212(3)”.

    f. On 3 February 2015, the Applicant lodged an Application for a review with the Second Respondent, requesting that a Mandarin interpreter would need to be present at the hearing with the Second Respondent (“MRT hearing”).

    g. On 4 February 2015, the Second Respondent sent a letter by email to William Wang acknowledging receipt of Application for a review.

    h. On 20 March 2015, the Second Respondent sent to a letter by email to William Wang inviting the Applicant to appear before the Second Respondent on 27 April 2015 at 8.30am at Level 11, 83 Clarence Street, Sydney NSW 2000. The Second Respondent also requested that any additional information needs to be provided by 20 April 2015.

    i. Between 20 March 2015 and 27 April 2015:

    i. The Applicant could not be contacted by William Wang after various attempts to contact by phone. Telephone communication was the only viable method of contact as the Applicant does not have an email.

    ii. The Applicant's sister could not be contacted by William Wang after various attempts to contact by phone. Telephone communication was the only viable method of contact as the Applicant's sister has not regularly checked her email since admission to the Royal Prince Alfred Hospital in April 2014.

    iii. The Applicant changed her mobile number from [number omitted] to [number omitted], without advising William Wang and the Second Respondent.

    iv. The Applicant was unable to request for an extension of time on compelling an [sic] compassionate grounds to appear before the Second Respondent since she was:

    1. Accompanying her sister to visit Dr. Liane Khoo of the Royal Prince Alfred Hospital, Sydney, and Dr. Bruce and Dr. Solomon of St George Family Medical Centre, Wagga Wagga;

    2. Undertaking full time care for her sister at her place of residence at [address omitted] as her sister has no partner, other relatives close friends or colleagues to take care of her 24 hours a day. The Applicant was responsible for:

    a. Cleaning

    b. Cooking

    c. Shopping

    d. Laundry

    e. Assisting with administration of variety of medication, including Cyclosporin, a drug preventing bone marrow rejection

    f. Accompanying her sister to the doctors and specialists in Sydney and Wagga Wagga

    3. Suffering from fatigue and mild medical conditions which prevented her from socialising with other people.

    v. The Applicant did not wish to visit general practitioners in Wagga Wagga by herself so as to diagnose her mild medical conditions since she could not speak English. Whilst she was accompanying her sister to visit Dr. Bruce and Dr. Solomon, she did not disclose her mild medical conditions including frequent headaches, nausea, insomnia, hip pain to them to prevent her sister from worrying about her which could cause added stress and delay her recovery from leukaemia.

    vi. The Applicant and her sister attempted to obtain further evidence which could support her Second Medical Treatment Visa application. However, it was not possible to secure these evidence in time for the MRT hearing on 27 April 2015

    Due to her patient's unstable medical conditions around the New Year’s 2015, Dr. Liane Khoo of RPAH could not estimate the following:

    1. The possibility of the patient having a bone marrow rejection in the near future, whilst she was and is on Cyclosporin;

    2. The possibility of the patient having a relapse of leukaemia in the near future, even after a successful bone marrow transplantation;

    3. The possibility of the patient having to receive another bone marrow transplantation from her younger sister, the Applicant; and

    4. The timeframe for which the Applicant needs to be available in Australia should the patient's: medical condition deteriorate and/or reject the donated bone marrow.

    j. On 27 April 2015:

    i. William Wang and the Applicant did not attend the MRT hearing.

    ii. The Second Respondent failed to consider the Applicant's and her sister's personal circumstances and proceeded to make a decision in the absence of the Applicant and William Wang.

    iii. There was no ‘available material’ before the Second Respondent to make a favourable decision.

    k. On 28 April 2015, the Second Respondent sent a letter by email to William Wang enclosing the Decision Record. As per Decision Record, one of the bases for the Second Respondent's refusal was that “there is no evidence that the applicant .... is seeking to make any further donation of an organ...the medical evidence indicates that bone marrow transplant has occurred and does not indicate any current relevant needs or arrangements for treatment which require the applicant's presence"

    l. On or around 1 May 2015:

    i. The Applicant advised William Wang of her inability to attend the MRT hearing because her sister was unfit to drive 6-8 hours from Wagga Wagga to the MRT at Sydney. There was no other person who could have taken the Applicant as she has no partner, friends and other relatives in Australia. It was her first time visiting Australia and there were no close contacts other than her sister.

    ii. The Applicant advised William Wang of her change in mobile number.

    m. The Second Respondent's decision to proceed with the MRT hearing was unreasonable in these circumstances, notwithstanding that the Applicant had failed to contact William Wang and/or the Second Respondent to explain her non-attendance on 27 April 2015.

    n. The Second Respondent erred in not having regard to:

    i. The fact that the Applicant's sister was undergoing continuous treatment from the RPAH, and other Medical Centres as an outpatient

    ii. The fact that the Applicant's sister was closely monitored by the RPAH and other Medical Centres for any adverse changes in her medical condition

    iii. The physical exertion, fatigue and emotional distress experienced within the Applicant's family unit in Australia

    iv. The difficulty in obtaining medical evidence of this nature in these circumstances.

    o. An adverse assessment of the Applicant's sister's medical condition is critical to the Applicant meeting the visa criterion, 602.212(3). For the Second Respondent to fail to give an opportunity to the Applicant to be heard and to address the evidentiary issues upon which the Second Medical Treatment Visa was refused is to effectively doom the Applicant's application for a review to failure.

    2. The Migration Review Tribunal (MRT) unreasonably failed to reschedule its proceedings and to exercise its discretion under Section 362B(2) of the Migration Act 1958 (Cth).

    Particulars

    a. The Applicant refers to and repeats the particulars at paragraph 1 above.”

1. Mr Hu submitted that the essential gravamen of the applicant’s complaints are the contentions that the Tribunal unreasonably failed to adjourn its proceeding under s.363(1)(b) of the Act, or that the Tribunal unreasonably failed to reschedule its proceeding and to exercise its discretion under s.362B(2) of the Act. The particulars in support of those grounds refer to the history of the matter and the various steps that the Tribunal might have taken in an attempt to contact the applicant.

2. However, the fact that there were steps that the Tribunal might have taken does not, by itself, establish that it is a jurisdictional error on the part of the Tribunal to have failed to take those steps.

3. Mr Hu referred the Court to Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [105] per Gageler J, as follows:

   “‘It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason’. Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”

   (Emphasis added).

4. The first respondent contends that the decision by the Tribunal that it was appropriate to make its decision without adjourning or rescheduling the hearing fell within the range of possible and acceptable outcomes which were defensible in respect of the facts and the law. I agree with that submission. I have summarised above in some detail the evidence before the Tribunal and the findings it made, which provided the foundation of its decision not to adjourn or reschedule the hearing.

5. The Tribunal gave thoughtful and detailed regard to the evidence that was before it. In short, after summarising the evidence before it, the Tribunal noted that there had been no further evidence or argument provided by the applicant; that the applicant had been advised that she was being invited to a hearing because the Tribunal could not make a favourable decision on her review application on the presently available material; and, that the Tribunal had received no contact from the applicant or her representative seeking an adjournment, or for any other reason, in relation to the hearing.

6. On two occasions, the applicant was invited by the Tribunal to send any further evidence and submissions, and none were sent.

7. In the circumstances, the Tribunal’s exercise of its discretion under either of s.363(1)(b) and s.362B of the Act not to adjourn or reschedule the hearing was open to it for the reasons that it gave. I do not accept that the Tribunal’s decision was one that fell outside the range of possible acceptable and defensible outcomes in respect of the facts and the law as referred to in Li. 

8. Further, I accept the submission of the first respondent that in the circumstances of this case, it was not unreasonable for the Tribunal to proceed to make its decision and that there was no duty on the Tribunal to make inquiries of the applicant (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123).

9. In the circumstances, Ground 1 and Ground 2 of the Amended Application are not made out. 

10. The applicant’s solicitor informed the Court that the applicant no longer relied on Grounds 3 and Ground 4 of the Amended Application.

11. However, for the sake of completeness, I note that Ground 4 does not identify any error capable of review by this Court. I note that Ground 3 is addressed by the first respondent’s counsel, Mr Greg Johnson, in his excellent written submissions, which I accept. For the sake of completeness, those submissions are as follows:

    “25. In her Third Ground, the applicant seeks to rely upon s.357A(3) and s.353 of the Act.

    Section 357A(3) provides that:

    In applying this Division, the Tribunal must act in a way that is fair and just.

    26. Section 357A(3) is an exhortative provision of the Act that appears in Division 5 of Part 5 of the Act. There is some uncertainty as to the consequences of a breach of s.357A(3), where such a breach can be made out, except to say that the sub-section does not expand the procedural fairness requirements prescribed in Division 5 of Part 5 of the Act: Minister for Immigration and Citizenship v Li, [18]; Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, (2009) 257 ALR 42, [27], Minister for Immigration and Citizenship v Li [2012] FCAFC 74; (2012) 202 FCR 387, [28]-[30]. In addressing the relative provision in the Act, s.422B(3) (which appears in Division 4 of Part 7 of the Act), the Full Court stated in SZMOK v Minister for Immigration, at [15], that:

    Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4.

    27. Section 353(2) provides that:

    The Tribunal, in reviewing a Part 5-reviewable decision:

    (a) is not bound by technicalities, legal forms or rules of evidence; and

    (b) shall act according to substantial justice and the merits of the case.

    28. Section 353(2) appears in Division 4 of Part 5 of the Act. Even if the Court were to find, having regard to the facts of the present matter, that the Tribunal had failed to act according to ‘substantial justice and the merits of the case’, a failure to comply with the section is not jurisdictional error, and the High Court in Minister for Immigration v Li expressly rejected a finding to that effect made by the Full Court, the subject of the appeal in that matter: Minister for Immigration v Li, [12], [16] (French CJ); [51]-[53], [80] (Hayne, Kiefel and Bell JJ). The High Court opined that the position that a breach of s.353(2) was not jurisdictional error was supported by its earlier judgment in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, which addressed the analogue provision of s.420(2).

    29. Notwithstanding, it is strictly unnecessary for the Court to determine the bounds of s.357A(3) and s.353(2), because, for the reasons given in respect of the First Ground [paragraphs [18]-[20], above], the Tribunal did not in the conduct of the review act contrary to, or in breach of, either provision.”

12. In the circumstances, the findings made by the Tribunal in respect of the evidence and information that was before it, prior to exercising its discretion, were open to it on the evidence and material before it and for the reasons it gave.

13. The Tribunal exercised its discretion not to adjourn or reschedule the hearing according to law. A fair reading of the Tribunal’s reasons makes clear the findings it relied upon in the exercise of its discretion. The Tribunal’s reasons make clear that it understood that it was exercising a discretion that denied the applicant a further opportunity to present further evidence and arguments in relation to her review application. The Tribunal’s reasons make clear that it gave thoughtful consideration to the history of the matter before it in concluding that it would not adjourn or reschedule the hearing. The Tribunal’s findings in respect of the evidence and its conclusion to make its decision on the review were reasonable in the context of all the circumstances known to the Tribunal at the time it exercised its discretion not to adjourn or reschedule the hearing.

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

15. The Tribunal’s decision is not affected by jurisdictional error and is, therefore, a privative clause decision. 

16. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the proceeding should be dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 24 June 2016