Mudiyanselage v MIAC
[2012] FMCA 887
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MUDIYANSELAGE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 887 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether a skills assessment provided by the applicant was a bogus document within the meaning of section 97 of the Migration Act 1958 (Cth) or contained information that was false or misleading in a material particular in relation to the applicant’s application for a visa – whether the Minister for Immigration and Citizenship should have waived the requirements of a criterion of the applicant’s visa because of compassionate or compelling circumstances that affect the interests of Australia or compelling and compassionate circumstances that affect the interests of an Australian citizen or Australian permanent resident |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.97, 474, Pt.8 Migration Regulations 1994 (Cth), cls.485.223, 485.224, Sch.2 |
| Batra v Minister for Immigration & Anor [2012] FMCA 544 Singh v Minister for Immigration & Anor [2012] FMCA 145 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 |
| Applicant: | SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 608 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 September 2012 |
| Date of Last Submission: | 14 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Jeppeson |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 19 March 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 608 of 2012
| SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 (“the Tribunal”) dated 24 February 2012 and handed down on 27 February 2012.
The issues in this case are whether a skills assessment provided by the applicant was a “bogus document” within the meaning of s.97 of the Act or contained information that was false or misleading in a material particular in relation to the applicant’s application for a visa; and, whether the Minister for Immigration and Citizenship (“the Minister”) should have waived the requirements of a criterion of the applicant’s visa because of compelling circumstances that affect the interests of Australia or compelling and compassionate circumstances that affect the interests of an Australian citizen or Australian permanent resident.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, including a summary of the decision of the delegate of the first respondent (“the Delegate”), as well as a summary of the Tribunal’s review and decision.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia in 2006 on a student visa to study at the St George Institute Australia for a Diploma in Printing & Graphic Arts (Multimedia).
The applicant applied for a Subclass 485 visa. The applicant is required to satisfy all the primary criteria in cl.485 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). At the time of the Delegate’s decision, cl.485.223 of Sch.2 of the Regulations provided that the applicant demonstrate that the skills for her nominated occupation had been assessed by the relevant assessing authority as suitable for that occupation.
The applicant nominated her skills occupation as a graphic pre-press tradesperson in her visa application and identified the Trades Recognition of Australia (“TRA”) as the relevant assessing authority. In her visa application, the applicant stated that on 2 October 2008, she had successfully undertaken a skills assessment (“the First Skills Assessment”).
On 6 August 2009, the Department of Immigration and Citizenship (“the Department”) wrote to the applicant informing her that she had provided a reference to the TRA from Dinkums The Copy Centre (“Dinkums”) signed by Don Mustafa to the TRA in support of her skills assessment. The reference stated that, in support of her skills assessment, she had completed in excess of 920 hours work experience with Dinkums during the period June 2007 to March 2008. The work undertaken was asserted to be voluntary. The Department’s letter informed the applicant that investigations undertaken by the Department indicated that she had never been employed by Dinkums and that Mr Don Mustafa was not authorised to provide the reference. The Department’s letter invited the applicant to comment within 28 days of the date of the letter.
On 25 August 2009, the applicant’s migration agent sent to the Department a Statutory Declaration declared by the applicant on 25 August 2009. In the Statutory Declaration, the applicant stated that the TRA dated 2 October 2008 was successful and was based on the 900 hours of work experience with Dinkums. The Statutory Declaration confirmed that the applicant undertook voluntary work at Dinkums as alleged.
On 25 September 2009, the Delegate refused the applicant’s application for a Subclass 485 Skilled Graduate visa. The Delegate found that the applicant had obtained her skills assessment based on bogus documents. The Delegate found that evidence of her employment was submitted to the TRA was false or misleading in a material particular and was submitted to obtain a favourable assessment.
Accordingly, the Delegate found that the applicant failed to meet the requirements of cl.485.223 of the Regulations.
On 15 October 2009, the applicant lodged an Application for Review of the Delegate’s decision with the Migration Review Tribunal. The Application for Review was accompanied by a letter from the TRA which stated that the First Skills Assessment had been withdrawn. However, on 29 October 2010, the applicant’s migration agent provided to the Tribunal a successful skills assessment, dated 10 November 2009 (“the Second Skills Assessment”).
On 2 April 2011, the Migration Amendment Regulations 2011 (No 1) (Cth) (“Amended Regulations”) came into effect. The Amended Regulations provided for the omission of cl.485.223 and the insertion of Public Interest Criterion 4020 (“PIC 4020”). Clause 485.224 required that PIC 4020 be satisfied, relevantly, as at the date of the Tribunal’s decision. It is common ground that PIC 4020 was the relevant criterion to be considered by the Tribunal in its review.
PIC 4020 is as follows:
“(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.”
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act”
[Emphasis added]
It is also common ground that for the purposes of PIC 4020, a “bogus document” is defined in s.97 of the Act which provides, relevantly, as follows:
“Interpretation
In this Subdivision:
…
"bogus document" , in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
…”
[Emphasis added]
The Tribunal’s review and decision
The Tribunal’s review and decision is accurately summarised in the written submissions of counsel of the first respondent, Mr Martin Smith, as follows:
“18. At the hearing, the applicant gave evidence explaining why she submitted the Dinkums’ letter (referred to in paragraph [10] above) to TRA. The applicant’s explanation was that she had completed over 1000 hours’ work experience at several printing businesses and that she contacted a Mr Liew, who was the job coordinator at St Georges Institute (where she had previously studied), who arranged a reference from Dinkums. The applicant stated that although she thought the letterhead should have referred to one or other of the printing companies at which she worked, the applicant trusted Mr Liew, who had organised everything for her and seemed to be honest. The applicant acknowledged that, with the benefit of hindsight, she had been naïve in her dealings with Mr Liew. The applicant also stated that she would have never misled the Department of Immigration and pointed to the fact that she had been employed for some time by Australia Post who seemed to value her as an employee: CB 134-137 [26]-[44].
19. After considering the evidence and the applicant’s explanation, the Tribunal found that the First Skills Assessment was made in part on the basis of information in the Dinkums’ letter (referred to in paragraph [10] above) that she had provided to TRA: CB 137 [47]. The Tribunal then concluded, based on an assessment of the evidence the applicant gave at the hearing, coupled with the fact that the First Skills Assessment had been withdrawn, that the Dinkums’ letter that the applicant had given to the TRA was false and misleading and that the applicant had not completed the work experience claimed: CB 137-138 [50].
20. Based on this factual finding, the Tribunal concluded that the applicant did not meet the requirements of PIC4020(1)(a), given that:
(a) The First Skills Assessment, which had been provided to the Minister, was a “bogus document”, given that it was a document that the applicant obtained because of a false and misleading statement that she gave to TRA: CB 138 [52]-[53]; and
(b) The applicant had given the TRA, being the relevant assessing authority, information that was false or misleading in a material particular: CB 138-139 [54]-[55].
21. Having concluded that the applicant did not meet the requirements of clause 4020(1), the Tribunal then considered whether it was appropriate to waive the requirements of 4020(1): CB 139 [56]. The applicant claimed that her circumstances were compelling given that (a) she had worked unpaid for over a year and was the victim of a fraud and (b) she was considered to be a valuable employee by Australia Post: CB 140-141 [60-[61]. The Tribunal concluded that even if were the case that the applicant had worked unpaid and had been the victim of a fraud, this did not demonstrate that her circumstances were compelling: CB 140 [60]. The Tribunal made a similar finding in respect of the claim regarding employment with Australia Post: CB 141 [61].”
On 24 February 2012, the Tribunal affirmed the decision under review.
The proceeding before this Court
On 19 March 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The applicant was represented before this Court by Mr Sean Jeppeson, of counsel. The first respondent was represented by Mr Martin Smith, of counsel.
Counsel for the applicant confirmed that the applicant relied on the grounds in the amended application, filed on 5 June 2012. Those grounds are as follows:
“The grounds of the Application are:
1. The Second Respondent erred in law and made jurisdictional error by taking into consideration irrelevant information, asking itself the wrong questions in finding the First Applicant did not meet Public Interest Criterion (PIC) 4020 in Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Particulars
(a) The Applicant applied for a subclass 485 visa on 21 October 2008 (“the visa application”);
(b) There is no evidence that Trade Recognition Australia (“the TRA”) or any other person or body had been approved in writing by the Education Minister or the Employment Minister for the purpose of reg.2.26B(1A) of the Regulations, to be the relevant assessing authority for the occupation of Pre-Press Tradesperson at the time the Applicant provided information to the TRA, or, when the Applicant’s skills were purportedly assessed by the TRA.
(c) The Second Respondent erred in concluding [para 46: at CB 137] that the TRA was the relevant assessing authority for the occupation of the Applicant at the time of applying for a subclass 485 visa, at the time of providing information to the TRA, and at the time the Applicant’s skills were purportedly assessed by the TRA.
(d) Consequently, the Second Respondent erred in construing that information given to the TRA were information given to a relevant assessing authority for the purposes of determining whether the Applicant met PIC 4020, and/or whether that information was capable of being information that is false or misleading in a material particular, for the purposes of the Applicant’s application [paras 50-55; at CB 138].
(e) The Applicant relies upon the decision in Singh v Minister for Immigration & Anor [2012] FMCA 145.
2. In the alternative the Second Respondent made jurisdictional error by failing to consider relevant information and considering irrelevant information in making the decision.
Particulars:
(i) The Second Respondent failed to take into consideration the Applicant’s favourable skills assessment from the Trade Recognition Australia dated 10 November 2009; and
(ii) The Second Respondent considered the Applicant’s Trade Recognition Australia skills assessment dated 2 October 2008 which was withdrawn by Trade Recognition Australia on 24 September 2009;
3. Further in the alternative, the Second Respondent erred in the interpretation and application of Clause 4020(4) of Division 5.8, Part 5, Schedule 4 of the Migration Regulations 1994 (Cth) (“the Regulations”) and thereby erred jurisdictionally by:
(a) asking itself the wrong questions and failing to take into consideration relevant considerations (information);
Particulars
In the absence of judicial guidance on the operation of Clause 4020 of the Regulations, the Second Respondent only considered the First Respondent’s Departmental Policy on the application of Clause 4020. Furthermore, in so considering, the Second Respondent failed to consider the cumulative claims of the Applicant when addressing the individual criteria of the Departmental Policy that are purported to justify a waiver of Public Interest Criteria 4020.
(b) making a decision that is irrational, capricious, unreasonable and unjust.
Particulars:
The Applicant repeats the particulars above.”
At the commencement of the hearing, counsel for the applicant conceded that the First Skills Assessment was based on inaccurate information provided by the applicant to the first respondent. Counsel for the respondent conceded that the TRA was not the approved skills assessment authority for the purposes of the visa criterion at the time of the Tribunal decision because it had not been validly appointed as an assessing authority for the occupation nominated by the applicant. However, that is not relevant to the issue of whether the applicant gave to the Minister a “bogus document” obtained because of a false or misleading statement, whether or not made knowingly, being the First Skills Assessment (see Batra v Minister for Immigration & Anor [2012] FMCA 544 at [50] - [51] per Riley FM).
Ground 1
In support of ground 1, counsel for the applicant submitted that by the time of the Tribunal’s decision, the Second Skills Assessment had been issued and the First Skills Assessment had been withdrawn. Counsel for the applicant submitted that, in the circumstances, the First Skills Assessment was not information relevant to any criteria that the Minister may consider.
Counsel for the applicant submitted that the information that the Tribunal was required to consider in relation to PIC 4020 was the information that the applicant had provided to the TRA in support of the Second Skills Assessment. Counsel for the applicant submitted that the Second Skills Assessment was not a “bogus document” and was not based on any inaccurate material provided by the applicant. Counsel for the applicant submitted that, in those circumstances, the First Skills Assessment was not relevant to the Tribunal’s review.
I do not accept the submissions made by counsel for the applicant in ground 1. PIC 4020 is clear in its terms. It does not provide any temporal confinement as to when a “bogus document”, obtained because of a false or misleading statement, was provided. It simply provides that there must be no evidence before the Minister that the applicant has given, or caused to be given, relevantly, to the Minister, or an officer of the Migration Review Tribunal, or relevant assessing authority, a “bogus document” that the Minister reasonably suspects was obtained because of a false or misleading statement, whether or not made knowingly, in relation to the application for the visa. As stated above, the applicant concedes that the First Skills Assessment was given to the Minister by the applicant.
The Tribunal noted that it mattered not that the false or misleading statement was made knowingly or not. The Tribunal found that the applicant’s First Skills Assessment was a “bogus document” within the meaning of s.97 of the Act. It was clearly open to the Tribunal to find that the First Skills Assessment was a “bogus document” because it was a document that the Minister reasonably suspected was obtained because of a false or misleading statement, whether or not made knowingly. That statement was that the applicant undertook voluntary employment with Dinkums of more than 900 hours.
Based on that finding, the Tribunal found that there was evidence before it that the applicant had given, or caused to be given, to the Minister a “bogus document” in relation to the applicant’s Subclass 485 visa application.
In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
To the extent that ground 1 of the application referred to Singh v Minister for Immigration & Anor [2012] FMCA 145, that case did not involve a “bogus document” and therefore is not relevant to the decision before this Court.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal erred in failing to take into consideration the applicant’s Second Skills Assessment, which was a favourable assessment and was not a bogus document.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal was aware of the Second Skills Assessment. However, the Second Skills Assessment was not a matter that the Tribunal was bound to take into account in considering whether the applicant satisfied PIC 4020(1) (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73]-[74] per McHugh, Gummow and Hayne JJ).
In circumstances where the Tribunal found that the applicant had provided a “bogus document”, and that finding was open to the Tribunal, it was open to the Tribunal to conclude that the applicant had failed to meet the requirements of PIC 4020(1)(a), unless the Tribunal waived compliance in accordance with PIC 4020(4). Whether the Second Skills Assessment replaced the First Skills Assessment, as at the date of the Tribunal’s decision, is irrelevant to the determination of whether the applicant met the requirements of PIC 4020(1)(a).
As stated in the reasons in ground 1 above, there was evidence before the Minister that the applicant had given a “bogus document” to the Minister. As stated above, it was open to the Tribunal to find that the First Skills Assessment was a document that the Minister reasonably suspected was obtained because of a false or misleading statement, whether or not made knowingly.
Further, I accept the submission of counsel for the first respondent that “it is incorrect to suggest that the Tribunal was required to consider the Second Skills Assessment and ignore the First Skills Assessment in considering whether it was appropriate to waive the requirements of PIC4020(1)(a). Such a contention cannot be reconciled with the clear wording of PIC4020(4)”.
Accordingly, ground 2 is not made out.
Ground 3
In support of ground 3, counsel for the applicant submitted that the Tribunal erred in its application of PIC 4020(4) by applying the first respondent’s Departmental Policy to its consideration of PIC 4020 thereby making a decision that was “irrational, capricious, unreasonable and unjust”.
Counsel for the applicant submitted that the Tribunal failed to have regard to other relevant matters to the applicant in considering whether there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen.
In its decision record, the Tribunal noted that there are no definitions of compelling or compassionate circumstances in the Act or Regulations and that there has not been any direct judicial guidance in relation to the construction of PIC 4020 in considering whether the Tribunal should waive an applicant’s breach of PIC 4020(1).
In considering the approach it should take in construing PIC 4020(4), the Tribunal referred to the ordinary dictionary meaning of the words “compassionate” and “compelling”. It also had regard to the Departmental Policy under the heading, “Compelling and/or compassionate circumstances”. The Tribunal acknowledged that statements in the Departmental Policy were not binding on the Tribunal but provided a useful guide. The Tribunal also had regard to the Explanatory Statement in the Amending Act that introduced PIC 4020, again noting that it was not binding but provided some further guidance on what may amount to “compelling or compassionate circumstances”.
The Tribunal noted the applicant’s submission that her circumstances were compelling because she worked unpaid for over a year and was the victim of a fraud. The Tribunal noted that the applicant acknowledged that she was naive and that her English was not good at the time. The Tribunal accepted the applicant’s submissions. The Tribunal also noted that the applicant’s position as a graphic pre-press tradesperson at Australia Post has been ongoing for four years and that she is a valuable asset to her employer.
However, in the light of the Tribunal’s finding that the applicant gave the Minister a “bogus document” in support of her visa application, the Tribunal did not consider that those circumstances relating to how and why the applicant obtained a false work reference, amounted to compelling circumstances that affect the interests of Australia; or were compelling and compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The Tribunal found that the mere fact that the applicant had obtained employment with Australia Post as a graphic pre-press tradesperson was not sufficient to demonstrate compelling circumstances affecting the interests of Australia. In making that finding, the Tribunal had regard to the Departmental Policy which stated that, “under policy gaining employer sponsorship is not considered sufficient grounds for a waiver”. The Tribunal also found that such circumstances do not amount to compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The Tribunal therefore concluded that the applicant did not meet the requirements of PIC 4020(4), and therefore the applicant had not met the requirements of PIC 4020(1). Accordingly, the Tribunal found that the applicant does not satisfy cl.485.224 of the Act.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood those matters that it identified and referred to in considering PIC 4020(4) could be used by it for guidance only. It is clear from the Tribunal’s decision record that it did not consider itself bound by any of those statements in considering whether to waive PIC 4020(1). However, it was open to the Tribunal to be guided by that information.
Further, a fair reading of the Tribunal’s decision record makes clear that the Tribunal was made aware that the applicant was putting herself forward as a person with the skills of a graphic pre-press tradesperson. Counsel for the applicant submitted that the Tribunal should also have had regard to the nature of the applicant’s breach of PIC 4020(1) and the applicant’s culpability in the creation of the bogus documents, in circumstances where the Tribunal found the applicant to be credible. A fair reading of the Tribunal’s decision record makes clear that it did so.
Counsel for the applicant submitted that in considering the Departmental Policy, the Tribunal only had regard to the first dot point of that Policy. Counsel for the applicant submitted that the Tribunal should also have had regard to the third dot point. Paragraph 27.1 of the Policy, under the heading “Compelling and/or compassionate circumstances”, is as follows:
“27.1 Affecting the interests of Australia
There may be compelling circumstances affecting the interests of Australia if:
· Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver) or
· Australia’s relationship with a foreign government would be damaged were the person not granted the visa or
· Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.”
Counsel for the applicant submitted that the Tribunal failed to consider that Australia may miss out on a significant benefit that the applicant could contribute to Australia’s business, economic, cultural or other development, because the Tribunal failed to have regard to the applicant’s highly specialised skills. I do not accept that submission. As stated above, it is clear that the Tribunal had regard to the applicant’s nominated skill as a graphic pre-press tradesperson, which it accepted. There was no evidence before the Tribunal of further, or higher skills, that the applicant has that may be relevant to Australia or to benefit the applicant’s present employer. Further, the Tribunal’s decision record does not suggest that any such submission was made by the applicant to the Tribunal. In any event, there was no obligation on the Tribunal to consider all the dot points and a failure by the Tribunal to do so does is not a jurisdictional error on the part of the Tribunal
Moreover, there was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 15 May 2012, the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
As stated above, the Tribunal’s decision record makes clear that it referred to the applicant’s skills, and the applicant’s present employer’s reference of her employment, including its description of her as a valuable asset. However, it was open to the Tribunal not to be persuaded by that evidence that the applicant satisfies PIC 4020(1)(a) or (b).
Those findings were open to the Tribunal on the material and evidence before it and for the reasons it gave.
In the circumstances, the Tribunal’s exercise of its discretion not to waive the requirements of PIC 4020(1) was open to it on the evidence and material before it and for the reasons it gave.
For those reasons, the contention in ground 3 that the Tribunal’s decision not to waive the requirements of PIC 4020(1) was “irrational, capricious, unreasonable and unjust” is not made out.
In the circumstances, ground 3 is not made out.
Conclusion
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 21 September 2012
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