Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 749
•15 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749
File number(s): PEG 123 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 15 April 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 Visa – whether not the holder of a substantive visa at time of application because of factors beyond applicant’s control – whether statement of conclusion erroneously included – whether error in relation to number and nature of witnesses – whether typographical or drafting errors of significance – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 65, 476
Migration Regulations 1994 (Cth) Sch 2 cl 461.213, Sch 3 cll 3000, 3004
Cases cited: AZAEA v Minister for Immigration & Anor [2014] FCCA 1083
BRE15 v Minister for Immigration & Anor [2019] FCCA 1680
CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Dunsmuir v New Brunswick [2008] 1 SCR 190
Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50
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
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
MZZZW v Minister for Immigration & Border Protection & Anor [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433
S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153
SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81; (2014) 314 ALR 146; (2014) 142 ALD 211
WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209; (2003) 79 ALD 421
Number of paragraphs: 41 Date of last submission/s: 7 April 2021 Date of hearing: 7 April 2021 Place: Perth For the Applicant: The Applicant appeared in person Counsel for the First Respondent: E. Tattersall For the Second Respondent: Submitting appearance, save as to costs Solicitor for the First Respondent: Sparke Helmore ORDERS
PEG 123 of 2020 BETWEEN: MORIIN MOANIBA OVERY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The originating application filed 17 April 2020 be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 17 April 2020, the Applicant, Moriin Moaniba Overy (“Ms Overy”), filed an application in this Court for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”).
The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 18 March 2020. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse Ms Overy’s application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 Visa (“the NZ Family Visa”) under s 65 of the Migration Act.
The Judicial Review Application contains three grounds of review, set out at paragraph [5] (ground 1), [13] (ground 2) and [34] (ground 3) below.
The Court notes that Ms Overy did not provide written submissions in support of the Judicial Review Application and that her oral submissions at the hearing were very limited. The Court further notes that the grounds of the Judicial Review Application, and more particularly grounds 1 and 3, can, at least to a limited extent, be characterised as submissions. The Court has read the Minister’s Written Submissions. It is unnecessary in what follows to set out the parties’ submissions in any significant detail.
GROUND 1
Ground 1 of the Judicial Review Application is as follows:
1. The Tribunal stated in paragraph 23 that because I was helping my husband look for work and Tertiary study options for my elder son, that my mental health issues did not preclude myself from doing paperwork. The Tribunal failed to recognise that I was only capable of doing what was in front of me, they misunderstood my capabilities of coping with taking care of my family's needs as me being well enough. It is unreasonable and unfair to judge my mental health issues at the time without taking into consideration that each individual reacts differently and do not fit into a neat box.
In the Tribunal Decision the Tribunal:
(a)referred to and applied the relevant criteria for the NZ Family Visa, namely, cl 461.213(b)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) and the criterion in cl 3004 of Schedule 3 to the Migration Regulations: CB 95-96 at [6]-[7] and 98-99 at [20] and [23]-[25] (subject to what is said at [30]-[33] below concerning typographical errors in relation to cll 3000 and 3004 of Schedule 3 to the Migration Regulations), and had regard to the relevant policy guidelines concerning a visa holder’s awareness of the period covered by a holder’s visa: CB 98 at [21];
(b)set out in detail the evidence given by, and on behalf of, Ms Overy before the Tribunal: CB 96-98 at [10]-[19];
(c)accepted that Ms Overy believed she was not required to lodge an application for a further NZ Family Visa until October 2018: CB 98 at [22];
(d)accepted that Ms Overy suffered depression after a miscarriage (in 2012: CB 97 at [10]) and that financial and family stressors had contributed to ongoing depression and anxiety since then, and accepted Ms Overy’s evidence in that regard on the basis that it considered her to be a credible witness, and notwithstanding that there was no supporting medical evidence: CB 98 at [22]-[23];
(e)did not accept that Ms Overy’s mental health issues were the reason that she ceased to hold a substantive NZ Family Visa before she applied for a further NZ Family Visa: CB 98 at [23];
(f)found that Ms Overy’s incorrect belief that her former NZ Family Visa was valid until October 2018 was the reason she ceased to hold that former NZ Family Visa (when it expired on 7 February 2018: CB 96 at [8]): CB 98 at [23];
(g)in reaching the finding that Ms Overy’s incorrect belief that her former NZ Family Visa was valid until October 2018 was the reason she ceased to hold that former NZ Family Visa, the Tribunal relied on Ms Overy’s own evidence that she:
(i)mistakenly believed that she was not required to apply for a new NZ Family Visa until October 2018: CB 98 at [22]-[23]; and
(ii)was assisting her husband to update his CV and look for work, and assisting her son to look into tertiary study around this time, and that this demonstrated that Ms Overy’s mental health issues did not preclude her from attending to paperwork and making enquiries: CB 98 at [23];
(h)found, therefore, that Ms Overy’s oversight of the cessation date of the former NZ Family Visa was not a factor beyond her control: CB 98 at [23];
(i)accepted that Ms Overy met the other criteria for the NZ Family Visa: CB 98 at [24];
(j)found that Ms Overy did not meet the criterion in cl 3004 of Schedule 3 to the Migration Regulations, and therefore did not meet cl 461.213 of Schedule 2 to the Migration Regulations: CB 99 at [25]; and
(k)affirmed the Delegate’s Decision to refuse to grant Ms Overy a NZ Family Visa: CB 99.
The Tribunal Decision is characterised as “unreasonable and unfair” in ground 1 of the Judicial Review Application. The Court has taken this to be a claim of jurisdictional error on the basis of legal unreasonableness.
The relevant principles in relation to legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“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 Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“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 statutorily conferred must be exercised reasonably: Li at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ, and [88] per Gageler J; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ;
(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] per French CJ and [72] per Hayne, Kiefel and Bell JJ; Singh at [44] per Allsop CJ, Robertson and Mortimer JJ, and in the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27] per French CJ and [68] per Hayne, Kiefel and Bell JJ; Singh at [44] per Allsop CJ, Robertson and Mortimer JJ;
(c)unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28] per French CJ and [110] per Gageler J; Singh at [44] per Allsop CJ, Robertson and Mortimer JJ;
(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] per Gageler J; Singh at [44]-[45 ] per Allsop CJ, Robertson and Mortimer JJ. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47] per Allsop CJ, Robertson and Mortimer JJ;
(e)regard can also be given to the outcome of the decision, that is, whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] per Gageler J, quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45] per Allsop CJ, Robertson and Mortimer JJ;
(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] per Hayne, Kiefel and Bell JJ; Singh at [48] per Allsop CJ, Robertson and Mortimer JJ. In the case of discretionary powers vested in a statutory body or tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49] per Allsop CJ, Robertson and Mortimer JJ; and
(g)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] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Singh at [47] per Allsop CJ, Robertson and Mortimer JJ. The test of legal unreasonableness is stringent: Li at [113] per Gageler J.
The Tribunal accepted Ms Overy’s evidence as to her mental health issues; primarily, it seems, depression and anxiety. Ms Overy did not, however, put before the Tribunal any:
(a)medical evidence that, as set out in ground 1 of the Judicial Review Application, she was “only capable of doing what was in front of [her]”, or that she was not “well enough” to lodge the NZ Family Visa application within time; or
(b)independent evidence concerning her mental health issues and how they allegedly impacted her ability to lodge the NZ Family Visa application within time.
The Tribunal’s finding that Ms Overy’s mental health issues did not preclude her from attending to paperwork and making enquiries, from which it can be inferred the Tribunal found that Ms Overy was not precluded from lodging her NZ Family Visa application within time or confirming when her former NZ Family Visa application expired, was a finding that was open to it. Although it did not expressly advert to it in making this finding, it would be fair to infer that the Tribunal also had in mind the evidence it set out of Ms Overy’s:
(a)sister-in-law that Ms Overy “goes out of her way to help others in need”: CB 97 at [15]; and
(b)partner that Ms Overy “takes care of everything for the family”: CB 97 at [18],
which can be said to support the finding made by the Tribunal.
On the evidence before the Tribunal, it cannot be said that it was legally unreasonable for it to make the finding that it did. The finding did not lack an evident and intelligible justification, and was within the Tribunal’s area of decisional freedom: Li at [28] per French CJ, and to find otherwise would be to impermissibly substitute the Court’s view for that of the Tribunal: Li at [30] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Singh at [47] per Allsop CJ, Robertson and Mortimer JJ.
It follows that ground 1 is not made out.
GROUND 2
Ground 2 of the Judicial Review Application is as follows:
2. In paragraph 5 the Tribunal stated the following, The Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal Decision: CB 95 at [5] the Tribunal said that:
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Ms Overy complains about the conclusion at CB 95 at [5] because it is inconsistent with the Tribunal’s affirmation of the Delegate’s Decision to refuse her the NZ Family Visa at CB 94 and 99.
In written submissions, the Minister, quite properly, raised the fact that the Tribunal, at CB 98 at [20], [23] and [24], and CB 99 at [25], had made further typographical errors in referring to cl 3000, rather than cl 3004, of Schedule 3 to the Migration Regulations.
At hearing, the Court raised the fact that there are also further typographical errors in the Tribunal Decision at:
(a)at CB 97 at [16] where “her youngest school is in primary school” should obviously read “her youngest child is in primary school” (emphasis added); and
(b)at CB 97 at [18] where “Mr Overy” has been used to describe Ms Overy’s partner who is Mr Munro: see 95 at [4]. This matter overlaps with ground 3: see [34] below.
It is appropriate that each of these drafting and typographical errors be considered as part of ground 2. There is no prejudice to the Minister in so doing, particularly in circumstances where the additional matters raised were competently addressed by Counsel for the Minister at hearing.
It is also appropriate to review, fairly briefly, earlier judgments in relation to cases involving the borrowing from, or cutting and pasting of, earlier judgments, or common form or common source templates, as well as typographical errors.
In WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209; (2003) 79 ALD 421 at [52] per French J the Federal Court observed, in a case concerning “common source” and “borrowed” text that each such case turns on its own circumstances.
Typographical errors in Tribunal decisions are not exceptional. In S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34] per Moore J the Federal Court said:
The second is that the decision of the Tribunal had not been proof read, with the result that all transcription or typographical errors were not corrected. Experience would indicate that reasons for decision or judgment of members of administrative tribunals as well as judges, are not always models of perfection when first published. Typing and other errors can be overlooked in the proof reading process. It is commonplace for corrigenda to issue. In my opinion, it is probable that the word “not” was omitted. That conclusion is reinforced by the approach the Tribunal ultimately took to the applicant’s claims, namely that the applicant could live in Jakarta without facing a “real chance” of persecution.
In Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 (“Foroghi”) at [48] per Marshall J the Federal Court, when referring to typographical errors, observed that:
The existence of a typographical error is best acknowledged rather than attempted to be exploited…
and cited CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 (“CCC”), a case where a ground of the appeal fastened on the omission of the word “not” prior to the word “satisfied”, and where at [29] per Marshall J the Federal Court said there is:
… no reason to defy commonsense by not observing that a typographical error was made. I would read in the word “not” prior to the word “satisfied”…
In AZAEA v Minister for Immigration & Anor [2014] FCCA 1083 (“AZAEA”) this Court was dealing with a case of a single typographical error, where the Tribunal decision there being considered in relation to complementary protection made reference to Pakistan rather than Afghanistan in one of the paragraphs: AZAEA at [15] per Judge Raphael, and proceeded to observe at [15]-[16] per Judge Raphael as follows:
15. … In his helpful written submissions he discusses at some length the decision in SZIFI v Minister for Immigration and Citizenship [2007] FCA 63, where Greenwood J was faced with a decision that made several of these geographical errors which led his Honour to take the view that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases” at [33].
16. The Court does not believe that this is such a case. The Court is of the view that the Tribunal made a typographical error only in inserting the word “Pakistan” instead of the word “Afghanistan” and is at fault only in not re-reading its decision record with a scrupulousness that one hopes for but rarely obtains.
In SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81; (2014) 314 ALR 146; (2014) 142 ALD 211 (“SZRBA”) at [21] per Siopis, Perram and Davies JJ the Full Court of the Federal Court found that the process of cutting and pasting by an independent merits reviewer had caused that reviewer to overlook a substantial submission made by the Applicant’s representative, and the Full Court of the Federal Court was therefore satisfied that there was a denial of procedural fairness of the kind described in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321.
In MZZZW v Minister for Immigration & Border Protection & Anor [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433 (“MZZZW”) the Full Court of the Federal Court was dealing with an appeal from this Court in relation to a Tribunal decision in which many passages in the Tribunal decision were identical, or identical but for syntactical modifications, to passages in an earlier Tribunal decision concerning the same matter (which had subsequently been remitted by this Court, by consent, to the Tribunal differently constituted): MZZZW at [1], [7]-[17] per Tracey, Murphy and Mortimer JJ. There was no dispute that the copied passages in the Tribunal decision the subject of the appeal included passages dealing with findings on credibility and whether the Appellant’s claims ought to be accepted: MZZZW at [27] per Tracey, Murphy and Mortimer JJ.
The Full Court of the Federal Court in MZZZW undertook a comparison of the two Tribunal decisions concerned, and reviewed in its entirety the Tribunal decision in which the copying was said to have occurred. In response to a submission from the Minister in relation to a lengthy part of the Tribunal decision the subject of the appeal which had not been the subject of copying, the Full Court of the Federal Court in MZZZW at [32(10)] per Tracey, Murphy and Mortimer JJ said that:
… the remainder of this section is highly generalised. That is why it is not appropriate to conduct, as the Minister’s submissions invited us to, some kind of percentage analysis of the copying undertaken by Member Boddison. Even in the paragraphs containing findings as to why Member Boddison does not accept the appellant would face serious harm on return, or (in respect of complementary protection) a real risk of significant harm, the findings are expressed at a high level of generality. … Their high level of generality and their failure to descend into much detail about the appellant’s particular circumstances (outside what might be said to be boilerplate phrases such as “the applicant’s individual circumstances”) give us no confidence that Member Boddison brought an independent mind to this decision, with the requisite examination of the circumstances of the particular applicant before her and her own assessment of them.
In MZZZW the alleged jurisdictional error was characterised as a failure to discharge the Tribunal’s statutory task: MZZZW at [53] per Tracey, Murphy and Mortimer JJ. Ultimately, the Full Court of the Federal Court in MZZZW was “not satisfied Member Boddison brought an independent mind to the consideration of the appellant’s claims. She failed to discharge the statutory task imposed on the Tribunal to consider an applicant’s claims on review for itself, afresh …” and went on to observe that making a conclusion of this kind involved the “forming [of] an overall impression, and it is one on which it is possible reasonable judicial minds might differ”: MZZZW at [66] per Tracey, Murphy and Mortimer JJ.
In BRE15 v Minister for Immigration & Anor [2019] FCCA 1680 (“BRE15”) the Tribunal decision had three references to the wrong country of origin, in two separate paragraphs wide apart, in combination with not insubstantial copying over from another Tribunal decision: BRE15 at [10(d)-(h) and [88] and [90]] per Judge Lucev. In BRE15 the Court was “left with the overall impression that there was not a fresh and independent consideration of the complementary protection findings and reasons”: BRE15 at [93] per Judge Lucev, and found jurisdictional error because the Tribunal did not therefore discharge its statutory task or function in relation to making its findings and reasons on complementary protection: BRE15 at [94] per Judge Lucev.
It is plain that the paragraph complained of in the Tribunal Decision: CB 95 at [5], has been inserted into the Tribunal Decision in error. That is because:
(a)the Tribunal Decision otherwise makes it clear that the Tribunal did not consider that Ms Overy had satisfied cl 3004(c) of Schedule 3 to the Migration Regulations, and did not meet cl 461.213 of Schedule 2 to the Migration Regulations, and therefore the Tribunal affirmed the Delegate’s Decision; and
(b)the Tribunal appropriately assessed each of Ms Overy’s specific claims and the drafting error did not bear upon the ultimate Tribunal Decision, nor the consideration of Ms Overy’s claims.
In relation to the typographical errors whereby cl 3000 of Schedule 3 to the Migration Regulations is referred to instead of cl 3004 of Schedule 3 to the Migration Regulations a fair and whole reading of the Tribunal Decision makes it clear that the Tribunal correctly assessed Ms Overy’s compliance with cl 3004 of Schedule 3 to the Migration Regulations, and did so based on the evidence before it. Properly analysed, and having regard to substance not form, what the Tribunal did was to apply the correct criteria to Ms Overy’s circumstances whilst making a number of numerical typographical errors in referring to the relevant clause of Schedule 3 to the Migration Regulations. Thus, although there were multiple incorrect references to cl 3000 of Schedule 3 to the Migration Regulations, they are no more than mere typographical errors, and are not demonstrative of the Tribunal failing to discharge its statutory task.
Albeit that they are somewhat embarrassing errors, the references to Ms Overy’s partner as “Mr Overy” are likewise no more than typographical errors, and are again not demonstrative of the Tribunal failing to discharge its statutory task.
The Court has considered whether, if the drafting and typographical errors are considered in aggregate, they might be demonstrative of the Tribunal failing to discharge its statutory task, and therefore establish jurisdictional error in the Tribunal Decision. The errors are not, even when taken in aggregate, such as to signify a failure in the discharge of the Tribunal’s statutory task. They do not indicate an abdication of that task in the same way as does the wholesale copying over of earlier Tribunal reasons for decision or multiple failures to refer to the correct country of origin in relation to a protection visa application in the manner set out in SZRBA, MZZZW and BRE15 referred to at [24]-[28] above. Rather, it is evident that the Tribunal has in this case otherwise applied itself diligently to a consideration of the relevant facts and criterion. Sight ought not be lost of the fact that the Tribunal did ultimately, by reference to the correct criterion, conclude that Ms Overy “does not meet Schedule 3 criterion 3004. Accordingly she does not meet cl.461.213”: CB 99 at [25].
It is unfortunate that the Tribunal Decision is afflicted by multiple drafting and typographical errors. Those errors are not, however, for the reasons set out above, errors which resulted in the Tribunal Decision being affected by jurisdictional error. It follows that ground 2 is not made out.
GROUND 3
Ground 3 of the Judicial Review Application is as follows:
3. The Tribunal named Justin Munro as Mr Overy both in the Decision letter and during the hearing. Also during the hearing the Member mentioned my two witnesses, I had one, Mrs Emma Overy. The Tribunal asked Mr Justin Munro to attend. It seemed unprofessional and as though the Tribunal wasn't particularly interested in my appeal.
The allegations in ground 3 are made on the bases that the Tribunal:
(a)incorrectly referred to Ms Overy’s partner as “Mr Overy”, instead of “Mr Munro” in the Tribunal Decision: CB 97 at [18], and allegedly at the Tribunal hearing, and
(b)referred to there being two witnesses at hearing, whereas Ms Overy considered that Mr Munro was not a witness as he was “asked… to attend” by the Tribunal.
The Court notes that the Tribunal did correctly refer to Mr Munro when setting out the names of those persons who gave oral evidence: CB 95 at [4].
Ground 3 does not allege jurisdictional error in the Tribunal Decision. Rather, referring to Ms Overy’s partner as “Mr Overy” in the Tribunal Decision, and any references to him as such at the Tribunal hearing (if such were made, there being no transcript of, or affidavit as to, the Tribunal proceedings before this Court), was an error of fact that does not go to the Tribunal’s jurisdiction, and does not establish jurisdictional error: 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.
Ms Overy’s claims that the Tribunal was wrong in stating that it took evidence from two witnesses, establishes no error, let alone jurisdictional error. Mr Munro was a witness from whom the Tribunal took evidence: see the Tribunal hearing record where Mr Munro’s role was recorded as “witness”: CB 87. The Tribunal was therefore correct to state that it took evidence from two witnesses, one of whom was Mr Munro.
In the circumstances, ground 3 is not made out.
CONCLUSION AND ORDER
The Court has concluded that none of the grounds of the Judicial Review Application have been made out. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 April 2021
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