Sharma v Minister for Immigration - [2018] FCCA 2163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2163

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – partner temporary (Class UK) visa – whether the Tribunal decision is affected by actual or apprehended bias – whether Applicant in a genuine and long term relationship – where Applicant seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 368.

Migration Regulations 1994 (Cth), Schedule 2, cl. 820.211, Schedule 3, criterion 3001.

Cases cited:

Comcare v Broadhurst (2011) 192 FCR 497.

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

Applicant:

SANJEEV SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1926 of 2016

Judgment of:

Judge Hartnett

Hearing date:

21 May 2018

Delivered at:

Melbourne

Delivered on:

9 August 2018

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the First Respondent:

Ms Montalban

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1926 of 2016

SANJEEV SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application filed on 8 September 2016 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 August 2016. In that decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa (‘the visa’).
In the ‘grounds of application’ the Applicant states the following:-
“1. I am attached my grounds on separate letter and all errors made by Administrative Appeals Tribunal and all my ground as well”
The separate letter referred to is as follows:-
“To whom it may concern
I, Sanjeev Sharma, date of birth, 08-09-1988, address 10 Chaucer close, Delahey, Vic 3037.
1. That the administrative tribunal made a decision on 15- August-2016. There are number of mistake has been made by appropriate authority. For example, As you go through the paragraph number 26, 28, 30, 33, 34, 35, 36, 44, 45 and many more paragraph have lot of mistake all decision letter has been wrong made by Tribunal member. Tribunal member wrote all information in decision letter that’s was incorrect.
2. Tribunal member misuse her power. She was forcing to me at the hearing leave the country. She harassing to me at the hearing as well asking to me wrong question. Before the hearing was started she said to me why you went to the court. She did not ask to me any question related to my case. She did discrimination with me at the hearing.
3. Tribunal member saying in letter I did not give any explanation to her. The reason is when I try to want explain anything to her she stopped to me all the time at the hearing then how I can explain to her. She stopped to me use my note book where I wrote all information about my case. Then how I can explain everything to her.
4. I lodged a complain against Tribunal Member Catherine Wall two time to the Administrative Appeals Tribunal they did not take any action against her 16 of August 2016, first complain lodge and second one 25 August 2016.
5. I will prove to court all information in decision letter it was wrong.
6. I am humbling request to the court please do justice with me.
7. Also I am requesting to the court please take action against her as well. She did same mistake again what she did last year 2015. When she made decision.
8. ALL of my above grounds are bona fide and well with my knowledge.
Note – I am attaching the decision copy of the administrative appeal tribunal. If you are looking forward for further evidence or supported document. I will be happily to provide or discussed on your assigned date.”
(Errors in original)
The First Respondent seeks dismissal of the Applicant’s judicial review application and seeks an order that the Applicant pay the costs of the First Respondent.
The First Respondent relies upon an affidavit affirmed by Ms Emilia Ramos on 23 May 2017 to which is annexed (‘Annexure A’) a true copy of the transcript of the proceedings of the Tribunal of 28 July 2016. Also annexed to that affidavit (‘Annexure B’) is a true copy of the transcript of the proceedings of the Tribunal of 29 July 2016. Otherwise the First Respondent relies upon submissions filed on 24 May 2017.
The Applicant relies on submissions filed on 15 March 2017 which are relevantly as follows:-
“…
I am writing this letter to inform court Administrative Appeals Tribunal did injustice with me at the hearing, Member Catherine Wall misused her power, When I requested to her to use my note book where I made my very important information notes about my case and my circumstance has been changed the member refused the request twice. How would I gave a explanation to member about my case and my circumstance. Member totally made me confused at hearing and I was in stressed how I gave all explanation without having my notes.
I was the victim of family violence twice with my partner. I was attending special counselling with psychiatrist in 2015; 2016 and 2017. I booked court date in May 2016 for family violence. Court gave to me application date 16/09/2016 and made Intervention Order against my partner and we separated 9am 17/9/2016 permanently.
28 July she came with me at hearing but she didn’t came with me inside with me building because she was not well and she was not coping with me and her behaviour was not good and I could not to forced that day her because her mentally health was not good. July 28 and 29 July. I requested to the member to postponed the hearing but member refused. I had very good reason to postponed the hearing but Member refused to me use my any document at the hearing. I could not able to gave any explanation at the hearing. Member forcing to me at hearing to leave the country if member already decided to me not giving to me visa what purpose Member made that hearing on July 2016. Also member asked to me irrelevant questioned at hearing.
Member did not followed the rule for FULL FEDERAL COURT OF AUSTRALIA and totally did with me injustice at the hearing and member wasted my opportunity.
Member Catherine Wall did same thing with me 2015 at hearing what Member did with me 2016.
I also requested to thedepartment why they appointed same Member again 2016 at hearing. All information written in decision letter totally wrong. I will proof in the court at hearing date.
I had lot more information about my case and I will proof to the court at final hearing date 21 May 2018.”
(Errors in original).
Annexed to the Applicant’s submissions is a copy of an intervention order, wherein he is the named Applicant and his sponsor, the Respondent. The order was made by consent and without admissions of allegations in the complaint. The First Respondent objects to the admitting into evidence of the intervention order documentation on the basis of relevance, as it postdates the Tribunal decision. The Court does not accept the document into evidence on the basis that such document was not before the Tribunal.
There is also before the Court the evidence as contained in the Court Book filed 13 March 2017.

Background

The Applicant is a male citizen of India. He first arrived in Australia on 7 July 2008 as the holder of a Student (subclass 572) visa. This visa ceased on 2 September 2010. The Applicant then remained unlawfully in Australia until 20 August 2013, when he lodged an application for a Partner (Temporary) (class UK) visa under s.65 of the Migration Act (Cth) 1958 (‘the Act’). The Applicant applied for the visa on 20 August 2013 on the basis of his de facto relationship with his sponsor, Ms Sarah McKeown, who was at the time of the Tribunal hearing, a 37 year old Australian citizen. On 20 August 2013 the Applicant was granted a bridging visa C.
As the Applicant did not hold a substantive visa at the time he applied for the visa he was required to satisfy Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) criteria as set out in cl.820.211(d). That criteria was as follows:-
“…(d) in the case of an applicant who is not the holder of a substantive visa—either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.”
The Applicant entered Australia as the holder of a student visa and therefore did not satisfy sub-cl.(d)(i) above. Accordingly, he needed to satisfy sub-cl.(d)(ii).
Relevantly, criterion 3001 of Schedule 3 to the Regulations required:-
“(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
…
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
…
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
...”
Sub-cl.(2)(c) of criterion 3001 applied to the Applicant. The Applicant’s last substantive visa expired on 2 September 2010. The Tribunal found the application for the visa was made on 20 August 2013 and so was not made within 28 days of the relevant day. Accordingly, the Tribunal found the Applicant did not satisfy criterion 3001 of Schedule 3 to the Regulations.
The Tribunal correctly went on to consider, having found that the Applicant did not meet the relevant Schedule 3 criteria, whether there were compelling reasons for not applying the criteria. The delegate had found that there were no compelling reasons to not apply the relevant Schedule 3 criteria and a copy of the decision record of the delegate was submitted to the Tribunal by the Applicant for the purposes of the review.
In order to assist it in its consideration of the Applicant’s claims and evidence, the Tribunal invited the Applicant to appear before the Tribunal on 28 July 2016 and 29 July 2016 to give evidence and present arguments relating to the issues arising in his case.
The Applicant had previously appeared before the Tribunal, having applied to the Tribunal for review of a decision of a delegate made on 13 August 2014. The Tribunal affirmed the decision under review on 21 July 2015 and the Applicant thereafter sought judicial review of that decision in proceedings MLG1957/2015. Orders were made by consent in those proceedings on 6 April 2016 with the matter being remitted to the Tribunal for reconsideration. It was conceded by the First Respondent that the Tribunal had erred in construing cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations as confining the decision-maker’s satisfaction of whether there were compelling reasons for not applying the Schedule 3 criteria, to circumstances which existed only as at the time of application.
By letter dated 10 May 2016 the Tribunal invited the Applicant to provide any further submissions or evidence about his circumstances including information about circumstances arising after the time he applied for the visa. The letter noted that in light of the decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (‘Waensila’) the Tribunal was entitled to consider circumstances arising after the time of the visa application in deciding whether compelling reasons existed for not applying the Schedule 3 criteria.
The Tribunal received a submission from the Applicant on 20 May 2016 enclosing evidence relating to the sponsor’s health conditions. The submission stated that the Applicant had been living with Ms McKeown since 2012. He claimed that the sponsor was dependent on him both “financially as well as emotionally”, and that the sponsor’s mental health condition was deteriorating. She was also:-
“…suffering with diabetics and taking prescribed medicine to control on it.”
The Applicant attached documents in respect of the health of Ms McKeown, including medical certificates and receipts, medical prescription, diabetic prescription, and a hospital admission certificate. Additionally the Applicant attached other documents which he claimed went to the financial operations of the household in which he and the sponsor resided such as utility bills, rental contract receipts and grocery receipts.
A subsequent submission to the Tribunal from the Applicant stated the Applicant feared he would not be reunited with the sponsor if he had to return to India, and that it would destroy their longstanding relationship.

The Tribunal hearing

The Applicant attended a hearing before the Tribunal on 28 July 2016. The sponsor, Ms McKeown, did not attend the hearing. The letter inviting the Applicant to the hearing noted that the Tribunal may wish to take evidence from the sponsor and asked that arrangements be made for the sponsor to attend the hearing. The response to hearing invitation from the Applicant indicated that the sponsor would attend the hearing in person.
As set out in paragraph 18 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’), when the Tribunal asked the Applicant why Ms McKeown was not present, the Applicant said that she “came to the building but felt sick so she went home”. The Tribunal indicated to the Applicant it was important Ms McKeown give evidence about her relationship with the Applicant in order for the Tribunal to understand the parties’ circumstances and for it to consider “compelling reasons”.
The Tribunal phoned Ms McKeown three times on the phone number provided by the Applicant. However, she did not answer her phone. The Tribunal indicated to the Applicant that it would adjourn the hearing until the following day to enable Ms McKeown to give evidence. The Applicant was also advised by the Tribunal that if the sponsor was unable to attend the hearing, she could give evidence via telephone.
Shortly before the hearing was resumed on 29 July 2016, the Applicant phoned the Tribunal to advise that he and the sponsor were both sick and he sought an adjournment of the hearing. The Tribunal did not agree to postpone the hearing, as the Applicant had been given five weeks’ notice of the hearing date and he did not seek postponement prior to his attendance at the scheduled hearing on 28 July 2016. The Tribunal noted in paragraph 19 of the Decision Record that the Applicant:-
“… was aware that the hearing was adjourned until the 29 July 2016 to provide Ms McKeown with a further opportunity to give oral evidence. It was not adjourned for the purpose of providing Mr Sharma with further preparation time.”
The sponsor did not attend the resumed hearing, nor did the sponsor answer the Tribunal’s further phone call to her. The Applicant did attend the hearing on 29 July 2016, and despite saying he felt unwell, presented his evidence in a detailed and assertive manner. When asked why the sponsor did not attend, the Applicant told the Tribunal that she did not want to attend the hearing because she had “mental health problems” and was “feeling stressed and unwell”.
The Applicant sought an adjournment of the hearing until such time as the sponsor, Ms McKeown, may have been willing to attend, but the Tribunal declined that request. The Tribunal stated in paragraph 21 of the Decision Record:-
“The Tribunal is mindful of medical evidence that Ms McKeown has a long history of mental illness. However the Tribunal is satisfied that she has had adequate opportunity to provide evidence in support of Mr Sharma’s review application, either in person, via phone or in writing. Further the Tribunal has not received a medical certificate which indicates that her health prohibits her from providing evidence to the Tribunal at this time.”

The Tribunal decision

On 15 August 2016, the Tribunal affirmed the decision under review. The Tribunal noted that it was not in dispute that the Applicant did not hold a substantive visa at the time of application for the visa and found the application was not made within 28 days of the relevant day.
The Tribunal considered in careful detail whether there were compelling reasons for not applying the Schedule 3 criteria and acknowledged that circumstances which constitute compelling reasons can arise at any time in light of Waensila.
The Tribunal, commencing at paragraph 23 of the Decision Record, considered whether the Applicant and sponsor were in a genuine and long‑term relationship and whether that constituted a compelling reason for not applying the Schedule 3 criteria. The Tribunal considered that there was some evidence that the Applicant and sponsor may have been in a de facto relationship in the past, and accepted that the parties had ongoing contact with each other. However the Tribunal found “the nature of their relationship is unclear.” The Tribunal placed significant weight on the fact that the only evidence before it from the sponsor herself was a statutory declaration dated 23 July 2013. In the absence of evidence from the sponsor and in the context of the Tribunal’s significant concerns about the credibility of the Applicant’s evidence, the Tribunal was not satisfied the claim that the parties were in a long term de facto relationship was a compelling reason to not apply the criteria.[1]
[1] Decision Record, paragraph 41.
When considering the sponsor’s claimed reliance upon the Applicant for her mental well-being, the Tribunal was not satisfied that claim was a compelling reason to not apply the Schedule 3 criteria. On the evidence before it, the Tribunal accepted that Ms McKeown had a history of mental illness and opioid addiction since 2011, as evidenced by a Centrelink medical certificate dated 13 May 2014 and reports from a consultant psychiatrist dated 30 October 2015 and 18 March 2016.[2]
[2] Decision Record, paragraph 42.
The Tribunal also gave weight to the sponsor’s statutory declaration dated 23 July 2013, in which she detailed her emotional attachment to the Applicant and her reliance on him. The Tribunal gave weight to the report from Dr Kiriella dated 30 October 2015, in which the doctor stated that the parties had lived together since April 2012 and that Ms McKeown was totally dependent on the Applicant, who helped Ms McKeown maintain stability in her life. The Tribunal found that this indicated that the parties were in a relationship in October 2015.
The Tribunal found however that Ms McKeown had not obtained a recent report from Dr Kiriella which described her reliance on Mr Sharma post-2015, and nor had she obtained a medical certificate which either explained her inability to give oral evidence, or suggested a postponement of the hearing until such time as she felt more resilient, given the evidence before the Tribunal which indicated that Ms McKeown regularly saw health professionals who were familiar with her condition.
When considering the sponsor’s financial reliance upon the Applicant, the Tribunal was not satisfied that the claimed financial hardship was a compelling reason to not apply the criteria. The Tribunal found no independent information before it regarding the sponsor’s current financial situation.

The Tribunal found overall the evidence of the Applicant to be inconsistent and there to be no evidence from the sponsor regarding the current status of her relationship with the Applicant.
The Tribunal, as set out in paragraph 50 of the Decision Record, asked the Applicant why he remained in Australia unlawfully for three years when his student visa ceased. The Applicant said it was because he got married, and was having relationship problems, which caused him considerable stress.
The Tribunal referred to the Department of Immigration and Border Protection’s procedure advice manual (‘PAM3’) when considering this aspect of the matter, in particular when deciding whether there were circumstances beyond the Applicant’s control that led him to become unlawful and/or prevented him from regularising the status of his stay in Australia through means other than the visa application.
The Tribunal said at paragraph 50 of the Decision Record:-
“While acknowledging that a relationship breakdown can cause the individual’s involved distress, the Tribunal does not accept that such circumstances explain why Mr Sharma was unlawful for 3 years. The Tribunal is not satisfied that such circumstances were beyond Mr Sharma’s control.”
The Tribunal did not accept the Applicant’s desire to remain in Australia gave rise to compelling reasons, particularly given that he did not hold a valid visa for three out of the eight years he had been in Australia.
Having considered the circumstances of the Applicant and the sponsoring partner separately and cumulatively, the Tribunal was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. As a consequence, the Tribunal concluded the Applicant did not meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Consideration

Grounds 5, 6, 7 and 8 of the Applicant’s application make no allegation of jurisdictional error on the part of the Tribunal. They are not proper grounds of judicial review.
Grounds 2, 3 and 4 raise for consideration whether the Tribunal decision is affected by actual or apprehended bias. As is often said in the authorities which are binding on the Court, an allegation of bias is serious and consequently must be firmly established, distinctly made, and clearly proved.[3]
[3] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, 69 per Gleeson CJ and Gummow J.
There is no evidence before the Court to suggest that the Tribunal did not conduct its review with an open mind and there is nothing to suggest that the Tribunal came to either of the hearing dates with a closed mind. In both its questioning of the Applicant, in evidence before the Court in the transcript of the proceedings on 28 and 29 July 2016, and on an examination of the Decision Record, it cannot be found that the Tribunal did not bring an impartial mind to the resolution of the question to be decided.[4]
[4]Comcare v Broadhurst (2011) 192 FCR 497.
As submitted by the First Respondent, the Applicant’s allegations appear to be largely based on the fact that the same Tribunal member who decided his earlier review application on 21 July 2015, also heard and determined the matter on remittal. The Court is satisfied that the Tribunal on remittal freshly approached the issue of whether there existed compelling reasons to waive the Schedule 3 criteria.
Ground 4 in particular asserts that the Applicant lodged a complaint against the Tribunal member on two occasions, the first being on 16 August 2016 and the second on 25 August 2016. Those complaints by the Applicant post-dated the decision. The First Respondent contends that consistent with the advice given to the Applicant by the Tribunal in letters dated 23 and 31 August 2016, it was not possible for the Tribunal to change, or otherwise intervene with the decision once it had been determined in accordance with s.368(2A) of the Act. The Court accepts that contention and no jurisdictional error can be found to attend the decision of the Tribunal on this ground.
Ground 1 complains that “there are a number of mistake” in the Tribunal decision. No particulars are provided by the Applicant and nor is there any elaboration of this ground in the submissions filed by the Applicant. The ground is nothing more than a complaint about findings made by the Tribunal with which the Applicant disagrees. The reason for such disagreement is not before the Court. The ground really seeks impermissible, on the facts of this case, merits review of the Tribunal findings.
Grounds 2 and 3 make allegations with respect to the conduct of the Tribunal hearing. Those allegations are repeated in the submissions relied upon by the Applicant. In order to meet those grounds the First Respondent relied upon the transcripts of the Tribunal hearings conducted on 28 and 29 July 2016. That evidence does not support the allegations made by the Applicant in his submissions, nor do they enable the Court to find any of the matters raised in grounds 2 or 3 to be made out. Indeed, no jurisdictional error attends the decision of the Tribunal on this basis.
The Applicant alleges that the Tribunal member misused her power and that:-
“She was forcing to me at the hearing leave the country.”
In annexure ‘B’ of the affidavit of Emilia Ramos affirmed on 23 May 2017 the following exchange at page 15 of the transcript line 36 is seen to have occurred between the Tribunal member and the Applicant:-
“MS WALL: Now, the issue I need to consider, Mr Sharma, is whether there are compelling reasons that would make it difficult for you to apply for this visa offshore. You have told me that Ms McEwan (sic) relies on you.
MR SHARMA:   Yes.
MS WALL:   Unfortunately, I’m, you know, not able to talk to her about that. But it does appear to me it would be possible for you to return to India to apply for the visa. Would you like to comment on that?
MR SHARMA:   Because, as I said to you, she will do it all the time. She’s not – she’s …, she’s not working and she’s not in that position, she can look after well, because she – if I went to India, and if she did something on herself or – like, who is responsible for that time, because in the past she did something, she tried to do something on herself, and if she did that what I can do?
MS WALL:   Have you discussed her going to India with you?
MR SHARMA: I can take her. She is happy to come with me, and the thing is if I took her and something happened wrong with her over there then still I am responsible over there.
MS WALL:   Yes. You would be with her, so you would be able to...
MR SHARMA:   Because here on the medication and – and the physiotherapist, and there’s the different – we have different medicine – different tablets, because hers are different. ... all the medical, I don’t know, but if something happened wrong for her how can – become issue then everyone going to blame to me why you took her to – took her to – with me in India, for – if you know her health is not well, then why are you taking her. And could you, please, repeat again what you said before for if I apply offshore visa, is getting visa hard for me or is it …?
MS WALL: Well, the issue I need to – you did not hold a substantive visa when you applied for this partner visa.
MR SHARMA:   Yes, yes.
MS WALL:   Normally that requires you to go offshore.
MR SHARMA:   Yes.
MS WALL: What I need to consider whether there are compelling reasons why going offshore would be difficult or unreasonable, and it’s not clear to me, you know, why you couldn’t go offshore to apply for the visa.
MR SHARMA:   I have already told you, like, for – the reason I can’t because it’s been more than four year we living together, and we go – if she don’t want … then we are again fighting and …
MS WALL: Now, the record indicates that you remained unlawfully in Australia for about three years after your visa ceased.
MR SHARMA:   Yes.”[5]
[5] Affidavit of Ms Emilia Ramos affirmed 23 May 2017, Annexure B pages 14 and 15.
This line of questioning and approach to questioning by the Tribunal member was entirely appropriate and reasonable. No jurisdictional error is disclosed by the Tribunal member exploring this part of the Applicant’s claims and evidence with him. The questioning was relevant to the matters that needed consideration by, and the determination, of the Tribunal.
The Applicant alleges that the Tribunal member harassed him at the hearing; that she asked the Applicant wrong questions; that she did not ask the Applicant any questions which related to his case; and that she discriminated against him at the hearing. There is no evidence before the Court that the Tribunal member harassed the Applicant, nor is there any evidence before the Court that the questions asked of the Applicant by the Tribunal member were not relevant to the issues to be considered by the Tribunal in reaching its decision. There is nothing in the transcript evidence before the Court to support the unparticularised allegations of the Applicant.
The Applicant alleges that before the hearing started the Tribunal member asked him why it was he “went to the Court”. That appears to be a reference to the Applicant having earlier gone to the Tribunal with the outcome being by a consent remittal to the Tribunal for the Tribunal’s reconsideration. Again the evidence before the Court does not support the allegations made by the Applicant. As submitted by the First Respondent, at neither hearing was the member recorded as having asked the Applicant about his Court proceedings or making any comment on that issue.
There is no evidence before the Court that the Tribunal member discriminated against the Applicant and that is again another unparticularised allegation. It is not supported by the transcript evidence before the Court.
The Applicant asserts the Tribunal member “stopped to me all the time at the hearing”, not allowing him to explain himself. Again that allegation cannot be sustained in light of the transcript evidence before the Court. As submitted by the First Respondent, the Tribunal member allowed the Applicant to provide responses to all questions and is not recorded as having interrupted the Applicant or prevented him from providing full responses. The First Respondent noted to the Court, in particular, the hearing on 29 July 2016 at pages 17 to 19 of the transcript, where the Applicant gave long and detailed evidence without interruption.
The Applicant alleges that the Tribunal member did not allow him to use his notebook, “where I wrote all the information about my case”. That allegation refers to a discussion which took place at the resumed hearing on 29 July 2016, which is contained in Annexure B to the affidavit of Emilia Ramos at page 4 of the transcript. That evidence is as follows:-
“MS WALL: Now, you told me that you started a de facto relationship in 2012.
MR SHARMA: Yes.
MS WALL: Is that right? What month?
MR SHARMA: And if you don’t mind can I use my notebook, because I ... in my notebook?
MS WALL: Don’t you recall?
MR SHARMA: No, no, I say can I use my notebook?
MS WALL: To take notes?
MR SHARMA: Yes – no, no, this one. No, because I did make some notes, I’ve written, I will explain everything while you asking to me questions.
MS WALL: I would like you – I mean, I would expect you to – if you’re in a relationship, I would expect you to remember some things.
MR SHARMA: Yes, but not like all that exact details.
MS WALL: That’s okay. If you don’t remember the exact date- - -
MR SHARMA: Yes, yes, yes, all good here.
MS WALL: So you don’t remember exactly what month in 2012?
MR SHARMA: No, no, June 2012.
MS WALL: June, okay.
MR SHARMA: But as I said last time if I call some department or my partner will, like, call on my behalf because she have to... or department or gas or electricity bill, when we call they put her name on the ... because I said two or three month period with the bills, that’s why officially, as I said last time, officially she’s moving – all the documentation and paperwork in June 2011, but we are living starting from March or April. We’re starting from them, yes, yes.
MS WALL: Okay. And where were you living together?
MR SHARMA: First we living at 23 Edmondshaw Drive, Deer Park.
…”
The Tribunal member did not prevent the Applicant from referring to his notebook as alleged by the Applicant and otherwise the exchange between the Tribunal member and Applicant is unremarkable and discloses no jurisdictional error. The Tribunal’s comment that the Applicant ought to be able to remember details, or the comment that Tribunal member would expect the Applicant to remember some things about his claimed de facto relationship discloses no error.
No jurisdictional error attends the decision of the Tribunal. The Court will dismiss the application and costs shall follow that dismissal. In essence, the Applicant is simply dissatisfied with the Tribunal decision and disagrees with its findings.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 9 August 2018