Singh v Minister for Immigration
[2015] FCCA 2364
•10 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2364 |
| Catchwords: MIGRATION – Judicial review – Indian citizen – Skilled Residence (Class VB) visa – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), reg.1.03, Sch.2, cl.886.225, Sch.4, cl.4020 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Kandelv Minister for Immigration & Anor [2014] FCCA 1479 Kandel v Minister for Immigration & Border Protection [2015] FCA 706 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Border Protectionv Dhillon [2014] FCAFC 157 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 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NBKT v Minister for Immigration & Multicultural Affairs[2006] FCAFC 195; 156 FCR 419; (2006) 93 ALD 333 Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 SZLEX v Minister for Immigration & Anor [2007] FMCA 209 SZNNK v Minister for Immigration & Citizenship[2009] FCA 1386 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 WZATH v Minister for Immigration & Anor [2014] FCCA 612 WZATH v Minister for Immigration & Border Protection [2014] FCA 969 |
| Applicant: | HARJASPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 263 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 August 2015 |
| Date of Last Submission: | 27 August 2015 |
| Delivered at: | Perth |
| Delivered on: | 10 September 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms L Gallagher |
| For the Second Respondent: | Submitting appearance save as to costs. |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent be amended to read “Administrative Appeals Tribunal”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 263 of 2014
| HARJASPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding commenced on 4 September 2014 by the applicant filing an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, made on 6 August 2014, is at Court Book (“CB”) 126-130. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), to refuse the applicant’s a Skilled (Residence) (Class VB) visa (“Skilled Residence Class VB Visa”). The Delegate’s Decision, made on 8 August 2013, is at CB 87-92.
Background to Judicial Review Application
The background to the Judicial Review Application is as follows:
a)on 5 May 2009 the applicant, born on 28 August 1985 in India: CB 2, lodged an application for the Skilled Residence Class VB Visa: CB 1-21;
b)the Minister notes that prior to lodging the Skilled Residence Visa application, the applicant had lodged an application for a Skilled (Provisional) (Class VC) visa (“Skilled Provisional Class VC Visa”) on 12 March 2009;
c)on 13 June 2012 the Delegate determined that the Skilled Provisional Class VC Visa was refused on the basis that the applicant did not satisfy the requirements of the Public Interest Criterion at cl.4020 in Schedule 4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) (“PIC 4020”) as a work reference submitted in support of that application was found to be bogus, or false or misleading in a material particular: CB 42-48;
d)the applicant sought review of that decision by the Tribunal and in a decision dated 7 August 2013 the Tribunal affirmed the decision to not grant the applicant a Skilled Provisional Class VC Visa: CB 69-80;
e)on 8 August 2013 the Delegate refused the applicant’s current application for the Skilled Residence Class VB Visa on the basis that the applicant did not satisfy PIC 4020(2): CB 83-92. The Delegate found that, in the period commencing three years before the making of the application and ending as at the date of the Delegate’s Decision, the applicant had been refused a visa on the ground of providing a bogus document or false or misleading information in a material particular and it was not satisfied that the requirements of PIC 4020(2) should be waived: CB 90-91;
f)on 27 August 2013 the applicant lodged an application for review in the Tribunal for review of the Skilled Residence Class VB Visa: CB 93-100;
g)on 18 June 2014 the applicant was invited to appear before the Tribunal to give evidence and present arguments: CB 103-104. This invitation was also emailed to the applicant on 2 July 2014: CB 105;
h)on 24 July 2014 a hearing took place and the applicant was in attendance: CB 114-117; and
i)on 6 August 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant the Skilled Residence Class VB Visa: CB 122-132.
PIC 4020 relevantly read as follows at the time the applicant’s Skilled Residence Class VB Visa application was under consideration:
4020 (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 to grant the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2A) ….
(2B) ….
(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.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)identified the issue as whether the applicant met PIC 4020 as required by cl.886.225 of Schedule 2 to the Migration Regulations for the grant of the Skilled Residence Class VB Visa, and identified the requirements thereof, including that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has no t been refused a visa because of a failure to satisfy PIC 4020(1) during the period staring 3 years before the application was made and ending when the application is granted or refused: PIC 4020(2); …
CB 127 at [5].
b)found that:
i)the applicant was refused a Subclass 485 visa (being the Skilled Provisional Class VC Visa) on 7 August 2013 because of a failure to satisfy PIC 4020(1): CB 128 at [12]; and
ii)the applicant was refused the Skilled Provisional Class VC Visa in the period three years before the Skilled Residence Class VB Visa application was lodged to the date of the Tribunal Decision, and accordingly, PIC 4020(2) was not met: CB 128 at [12]-[13].
The Tribunal then considered whether the requirements of PIC 4020(2) should be waived pursuant to PIC 4020(4), that is whether there were compelling circumstances that affect the interest of Australia, or whether there were compassionate or compelling circumstances that affect the interests of an Australia citizen, an Australian permanent resident, or an eligible New Zealand citizen: CB 128 at [14].
The Tribunal had regard to the relevant explanatory statement for the provisions of PIC 4020, and to the Departmental Guidelines indicating what constituted compelling circumstances affecting the interests of Australia: CB 128-129 at [15]-[16], and then observed that the Department’s position was that compelling circumstances affecting the interests of Australia “would not include circumstances if the non-citizen was merely working and paying taxes in Australia; paying fees to an education provider or spending money in Australia”: CB 129 at [17]. The Tribunal further observed that it had had regard not only to the Departmental Guidelines, but had also considered the individual circumstances of the applicant and all matters put forward by him: CB 129 at [18].
In relation to the individual circumstances of the applicant for the purposes of establishing the relevant circumstances, the Tribunal Decision records that:
20.At the hearing the Tribunal asked the applicant if he made any claims in this regard. He said that he had now been in Australia for 8 years, was working, paid tax, made donations and was law-abiding, having a ‘clean record’. He said he father had passed away and he was supporting his mother who was ill, that it would be difficult for him to find work if he had to go back to India. He asked the Tribunal to waive the relevant criteria. The Tribunal notes that these circumstances while they might be regarded as compassionate, do not affect the interests of Australia or the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03. The Tribunal allowed the applicant some further time to make relevant submissions in this regard.
21.The Tribunal later received correspondence from the director of a trucking business advising that he started a new business about 4 months ago and has been looking for “a dedicated manager who will be able to take over the day-to-day operations” and stating that the applicant “is a person who not only has the relevant Australia qualifications, but also possesses the right attributes including hard work, reliability, good communication skills and dedication to the job. I have every confidence that he will be able to independently manage and grow the business ..” The letter further states that “I need someone to handle the daily operations and make management decisions on the spot.. need a reliable manager to help grow the business…” It is further contended that the business “will have to be closed down if I do not have a manager with the right qualifications and attributes” and “the more the business expands the more people will be employed, which I believe is a compelling reason to grant the visa.” It seems from the correspondence that the applicant is not yet employed in the business and the assumptions made about his contributions are speculative and not yet established, as are the expectations about growing the business and the hiring of more employees. On this basis the Tribunal is not persuaded that there would be adverse effects on Australian interests such as to constitute compelling circumstances justifying the grant of the visa. As noted above, while sympathetic to the applicant’s personal circumstances, the Tribunal is also not satisfied that they can be characterised as compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03.
CB 129-130 at [20]-[21].
The Tribunal was thus:
a)not persuaded that there would be adverse effects on Australian interests such as to constitute compelling circumstances justifying the grant of the Skilled Residence Visa: CB 130 at [21]; and
b)not satisfied the applicant’s personal circumstances could be characterised as compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03 of the Migration Regulations: CB 130 at [21],
and therefore determined that the requirements of PIC 4020(2) should not be waived pursuant to PIC 4020(4): CB 130 at [22], and as the applicant did not satisfy PIC 4020 for the purposes of cl.886.225 of Schedule 2 of the Migration Regulations the Delegate’s Decision was affirmed: CB 130 at [25].
Judicial Review Application
The Judicial Review Application sets out the following grounds:
1.The MRT made a mistake in giving a decision against me.
2.The MRT did not consider the compelling circumstances that affect the company, … [company name] and its director who is an Australian citizen. The company will be badly affected if I am not able to work for them as a manager. The company has given his reasons and the MRT made a mistake in not understanding how serious it will be for the Australian citizen.
Proceedings in the this Court
On 29 October 2014 a Registrar of this Court made orders permitting the applicant to file and serve an amended Judicial Review Application giving complete particulars of each ground of review relied upon by 26 November 2014. The Registrar’s orders also permitted the applicant to file affidavit evidence and submissions. The applicant filed no further documents before the hearing by the Court. Notwithstanding the failure to file any documents before the hearing by the Court, the Court invited the applicant to make oral submissions at the hearing on 27 August 2015. Other than to say that the Tribunal made a mistake, the applicant was unable to articulate the grounds of review in any greater detail than appeared in the written grounds for review in the Judicial Review Application.
The Minister relied on the written submissions filed which provided:
a)in relation to ground one that:
i)it is insufficiently particularised so as to make it meaningless. The applicant has not identified how the Tribunal “made a mistake”;
ii)it is clear from the Tribunal Decision that the Tribunal correctly identified and applied the tests in PIC 4020(2) and (4);
iii)it is well established that the making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone. A mere disagreement with the weight being given to a particular claim or document is not 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 (“Wu Shan Liang”); NBKT v Minister for Immigration & Multicultural Affairs[2006] FCAFC 195; 156 FCR 419; (2006) 93 ALD 333 at [81] per Young J (Gyles and Stone JJ agreeing); Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552 and 559 per O’Connor, Branson and Marshall JJ; SZNNK v Minister for Immigration & Citizenship[2009] FCA 1386 at [20] per McKerracher J; and
iv)the Tribunal’s findings were open on the material before it and reveal no jurisdictional error.
b)in relation to ground two that it:
i)cannot be maintained that the Tribunal failed to consider the “correspondence from the director of a trucking business” in circumstances where the Tribunal not only made express reference to the document in the Tribunal Decision but also engaged with the specific contents of the correspondence: CB 129-130 at [21]; and
ii)constitutes impermissible merits review based on the applicant’s dissatisfaction with the Tribunal’s finding. In that regard, the Minister repeated and relied upon the submissions set out at [8(a)(iii)] above.
Consideration
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, (2003) 211 CLR 476, (2003) 77 ALJR 454, (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
The Court has no jurisdiction to engage in merits review. Fact finding is within the jurisdiction of the Tribunal, and as such, is not reviewable by this Court if, as here, the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ.
It is apparent from the outline of the Tribunal Decision set out above: see [4]-[8] above, that the Tribunal identified the relevant issues, asked the right questions, relied on appropriate factual material, did not ignore any relevant factual material, an exercised its power properly and within jurisdiction: Yusuf.
Having regard to the above authorities – which are well-established – ground one cannot succeed. If it does anything, it does no more than assert factual error by the Tribunal, which does not and cannot of itself constitute jurisdictional error. Ground one is merely an unparticularised assertion that the Tribunal made a mistake. In the absence of any proper submission, either written or oral, ground one remains merely an unparticularised assertion. As such, it cannot disclose jurisdictional error in the Tribunal Decision. The failure to particularise a ground of review is sufficient basis for it to be dismissed: SZLEX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, followed in WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969).
The Tribunal Decision is also consistent with authority: Minister for Immigration & Border Protectionv Dhillon [2014] FCAFC 157 at [15] per Allsop CJ, Murphy and Pagone JJ where the Full Court of the Federal Court observed that:
The finding of Mr Dhillon having given, or caused to be given, a bogus document or false information precludes him under Public Interest Criterion 4020 from being granted a visa for a period of three years unless justified by “compelling circumstances”: see Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226; (2013) 281 FLR 247; Kandel v Minister for Immigration [2014] FCCA 1479.
For all of the above reasons, ground 1 is not made out and does not establish jurisdictional error by the Tribunal.
The allegation in ground two that the Tribunal did not consider the claim by the applicant of circumstances affecting the named trucking company and its director, is plainly wrong. As can be seen from the extract from the Tribunal Decision at CB 129-130 at [21] which is set out at [7] above, this claim was expressly referred to in the Tribunal Decision by reference to material put before the Tribunal by the applicant by way of a letter from the director of that company (a copy of the letter appears at CB 119-120).
The Tribunal made factual findings and observations that were open on the material in the letter from the director to the effect that Mr Singh was not yet employed in the business of the company, and that the director’s letter made assumptions about what contribution Mr Singh would make, which were speculative and not yet established, as were the expectations about the growing of the business and the hiring of more employees. From those factual findings and observations the Tribunal drew conclusions which were equally open to it as to it not being persuaded that there would be adverse affects on Australian interests such as to constitute compelling circumstances justifying the grant of the Skilled Residence Class VB Visa, or that the circumstances could be characterised as compassionate or compelling circumstances affecting the interests of an Australian citizen, namely the director. It is the latter conclusion which is sought to be reviewed in ground two.
This was a case in which the material put forward, the factual content of which was largely accepted by the Tribunal, was considered by the Tribunal and was found to be incapable of meeting the relevant tests. On the authorities, it was open to the Tribunal to conclude that those tests were not met.
In Kandelv Minister for Immigration & Anor [2014] FCCA 1479 (“Kandel”) this Court in relation to the interests of an Australian citizen and director of a company which owned a Nepalese restaurant in Perth, and a person who sought an Employer Nomination (Residence) (Class BW) visa which also had to meet the tests in PIC 4020, said as follows at [22]-[23] per Judge Lucev:
22. The Tribunal considered the available evidence, and in particular the evidence from both the applicant and Mr Dhakal as to the effect on the Himalayan Restaurant and Café business if the applicant was not granted an Employer Nomination Visa, and came to the view that the relevant circumstances as set out above were not satisfactorily established. That was solely a matter for the Tribunal to determine given there was available evidence which was sifted and weighed by the Tribunal.[Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors [1986] HCA 40; (1986) 162 CLR 24 at 40-41 per Mason J and 64-65 per Brennan J.] The Tribunal carefully weighed the evidence and submissions made before it, and whilst accepting that there would be some affect upon the business of the Himalayan Restaurant and Café which would affect the interests of Mr Dhakal as an Australian citizen, the Tribunal was not satisfied that the circumstances were either compelling or compassionate such that they affected Mr Dhakal’s interests to the extent required under PIC 4020 of Schedule 4 to the Migration Regulations and the Departmental guidelines. A similar outcome occurred in Chand & Ors v Minister for Immigration & Anor.[[2014] FCCA 751 (“Chand”)] There the Court accepted that Mr Chand was a valued employee and held an important position in a green grocery business, and that his employers, who were Australian citizens, might be affected by the loss of his services in the business. The Tribunal was not satisfied that that constituted compelling circumstances affecting Australia’s interests or compassionate or compelling circumstances affecting the interest of Australian citizens.[Chand at para.4 per Judge Driver.] In Vyas, cited by the applicant, this Court held that the applicant’s claims related only to her and not to an Australian citizen, permanent resident or eligible New Zealand citizen.[Vyas FLR at 255-256 per Judge Raphael; FCCA at para.18 per Judge Raphael.]] In the circumstances, Vyas does not assist the applicant. Further, the Tribunal was not satisfied that there were compelling circumstances affecting the interests of Australia having regard to the meaning of that phrase and the Departmental guidelines. The conclusion that compelling circumstances affecting the interests of Australia are not demonstrated by reason of the departure of a specialist cook from a Nepalese restaurant in Perth demonstrates no error, factual, legal or jurisdictional, especially when regard is had to the meaning of “the interests of Australia” as connoting a more significant, objective and public interest than that associated with employment in a restaurant. [Re Minister of Immigration, Local Government & Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 87 per Einfeld J, which was cited with approval in Lin v Minister for Immigration & Citizenship & Anor [2009] FCA 494; (2009) 176 FCR 371 at 391 per Foster J; [2009] FCA 494 at para.94 per Foster J. In Australian Maritime Safety Authority v Livestock Transport and Trading [2009] FCAFC 10; (2009) 174 FCR 74 at 83 per Dowsett, Rares and Gilmour JJ; [2009] FCAFC 10 at para.32 per Dowsett, Rares and Gilmour JJ the “interests of Australia” were said to be engaged by ships loading cargo in Australian waters being required to comply with the appropriate standard, particularly an international Convention in force in Australia] In short, the Tribunal considered the issue to be determined by reference to the correct questions and had regard to all of the relevant material, both legal and factual. It arrived at factual conclusions with respect to the issue of whether or not there were established the relevant circumstances sufficient to warrant granting the applicant the Employer Nomination Visa and determined that it was not satisfied that such circumstances had been established. [Migration Act, s.65.] In those circumstances, the Tribunal affirmed the Delegate’s Decision to refuse to grant the applicant an Employer Nomination Visa.
23. When regard is had to all of the circumstances of the Tribunal’s consideration, and the manner in which the Tribunal Decision was arrived at, namely that the correct issue was identified, the correct questions were asked, and all of the relevant material was taken into account, the Tribunal Decision was a decision made within power by the Tribunal and which evinces no jurisdictional error.
Kandel was appealed. The appeal was unsuccessful: Kandel v Minister for Immigration & Border Protection [2015] FCA 706 (“Kandel Appeal”). Although the Federal Court expressed some reservations about the Tribunal’s reasoning style: Kandel Appeal at [44] per Siopis J, it went on to say at [45]-[46] per Siopis J as follows:
45. However, I would have come to the view that the primary judge did not err in concluding that the Tribunal did not fall into jurisdictional error, for the reasons which the primary judge gave.
46. The question for the Tribunal was whether it was satisfied that there were compelling circumstances affecting Mr Dhakal’s interests as an Australian citizen in carrying on his restaurant business, which justified the grant of the visa. It is apparent that the Tribunal appreciated that this was the appropriate question and that the Tribunal addressed that question. Ultimately, the Tribunal was not satisfied and gave reasons which could quite properly be criticised. However, the Tribunal was not obliged uncritically to accept Mr Dhakal’s evidence. In my view, it is open to conclude that the Tribunal found that Mr Dhakal’s evidence was not of sufficient probative weight to convince the Tribunal that the business conditions described by Mr Dhakal were and would be as difficult for him as he described and predicted. The assessment of the weight of the evidence was within the Tribunal’s jurisdiction.
As in Kandel the Tribunal in this case has found that the evidence of the trucking company director was not of sufficient probative weight to convince the Tribunal that the business conditions were and would be as difficult for him as he described and predicted, and in so doing, the Tribunal was fulfilling its function of assessing the weight of the evidence. Having done that, and having considered and addressed the appropriate question, there can be no jurisdictional error on the part of the Tribunal as asserted in ground two.
Conclusions and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order to that effect.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 September 2015
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