SZALG v Minister for Immigration

[2019] FCCA 1529

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZALG v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1529

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse a Protection visa to the applicant – applicant claims that Administrative Appeals Tribunal did not consider his claims pursuant to his homosexuality and political involvement while in Nepal – applicant alleges procedural unfairness – no jurisdictional error identified – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, [48A], 424A, 438

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641
Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599

Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366

NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
SZALG v MIMIA [2005] HCA Trans 360
SZGIZ v The Minister of Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZALG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2527 of 2016

Judgment of: Judge Dowdy

Hearing date: 8 May 2019

Delivered at: Sydney

Delivered on: 8 May 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr M. Cleary of Counsel

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Amended Application filed in this Court on 10 November 2016 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,000. 

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 26 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2527 of 2016

SZALG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The Applicant is a male citizen of Nepal aged 48 years, having been born on 11 January 1971. 

2. By Amended Application filed in this Court on 10 November 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 17 August 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 18 June 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

1. The Applicant arrived in Australia on 2 July 2001 on a Business (Short Stay) (Class UC) (Subclass 456) visa. He applied for a Protection visa under the Refugees Convention criterion (first Protection visa application), which was refused on 13 November 2001 by a Delegate of the Minister.  The Refugee Review Tribunal (RRT) affirmed the Delegate’s refusal of the Protection visa on 11 December 2002, and judicial review for jurisdictional error was successively refused in the Federal Magistrates Court, the Federal Court of Australia and the High Court of Australia by 26 May 2005: see SZALG v MIMIA [2005] HCA Trans 360.

2. Then, on 31 May 2013 the Applicant applied for the Protection visa (present Protection visa application) which is the subject of this proceeding, following the introduction on 24 March 2012 of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v The Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.

Claims for Protection

1. The Applicant, in answer to question 43 of his Protection visa application form as supplemented by his statutory declaration declared on 10 June 2014, which formed part of his Protection visa application, claimed in short:

   ·to fear physical harm or death in Nepal at the hands of supporters and members of the Communist Party of Nepal (Maoist) and the Nepalese Police on account of his involvement with the Maoist political party; and

   ·the fear of being harmed and mistreated in Nepal because he is a homosexual.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 11 June 2014. The Delegate summarised the Applicant’s claims in his Decision Record as follows:

   ·He is a member of the Communist Party of Nepal (Maoists) and having left Nepal for a long time fears he would be killed or physically harmed by fellow Maoists for abandoning the party.  He also fears physical harm or death from the Nepalese Police on account of his political opinion.

   ·He also fears he will be killed or physically harmed in Nepal on account of his sexual orientation.

2. I note that the Delegate only had jurisdiction to consider the present Protection visa application under the complementary protection criterion:  Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH), but in fact also assessed the claims of the Applicant under the Refugee Convention criterion.

3. In the result the Delegate did not find the Applicant to be a credible witness. The Delegate rejected his claims to fear persecution in Nepal for political reasons or because he feared harm as a result of his sexual orientation and refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 16 July 2014. After a hearing before it on 23 June 2015 it affirmed the decision of the Delegate on 14 December 2015.  However, that Tribunal decision was set aside by this Court on 25 February 2016 and remitted to the Tribunal for rehearing.  On 15 July 2016 the Applicant again appeared before the Tribunal on the remittal to give evidence and present arguments.

2. I note that the Tribunal was of the view that its jurisdiction in considering the present Protection visa application was limited to the complementary protection criterion under s.36(2)(aa) of the Act and not the Refugee Convention criterion under s.36(2)(a). This view was subsequently confirmed as correct in SZVCH at 379 [44] per Kenny, Siopis and Besanko, and 398 – 399 [113] – [114] per Mortimer J, with that decision having been delivered on 14 September 2016.

3. From [12] – [60] of its Decision Record, the Tribunal summarised the Applicant’s claims as made from the time of the lodging of his first Protection visa application, including:

   ·his claims as made in his first Protection visa application, including a further written statement dated 8 August 2001 and his oral evidence to the RRT;

   ·his claims as made in his present Protection visa application, including the statutory declaration of 10 June 2014, the interview with the Delegate on 11 June 2014, of which the Tribunal listened to an audio recording, a further statutory declaration of the Applicant of 17 June 2015, an email from the Sydney Gay and Lesbian Mardi Gras dated 6 March 2015, an email from Trikone Australia dated 15 March 2015, an email from the Gay and Lesbian Rights Lobby dated 27 May 2015 and photographs of the Applicant taken at the 2015 Mardi Gras;

   ·the evidence given by him at the first Tribunal hearing on 23 June 2015; and

   ·the post-first Tribunal hearing submissions received by the Tribunal and a further statutory declaration of the Applicant dated 14 July 2015.

4. Then from [61] – [107] of its Decision Record the Tribunal recorded the evidence given at the second Tribunal hearing on 15 July 2016 and its questioning of the Applicant concerning that evidence. 

5. At [108] – [113] of its Decision Record the Tribunal recorded the substance of its post-second hearing correspondence with the Applicant and from [114] – [116] extracted passages from the DFAT Country Report for Nepal dated 21 April 2016 in relation to the political environment in Nepal, the extortion and treatment of returnees and the position of homosexuals in Nepal.

6. From [117] – [137] of its Decision Record the Tribunal set outs its findings and the reasons for those findings.  At [117] the Tribunal stated as follows:

   [117] The credibility of the applicant’s evidence has been severely damaged by a number of inconsistencies and contradictions, with the result that the Tribunal is not satisfied that he has provided truthful evidence about his past experiences in Nepal or his personal circumstances. 

7. In short, the Tribunal was of the view that the Applicant’s evidence and claims in relation to his joining the Maoists was vague and unpersuasive and his claimed motivations for doing so opaque.  Further the Tribunal was of the view that there were inconsistencies in his evidence, as given from time to time in relation to his connection with the Maoists and his encounters with the Nepalese Police. 

8. At [122] and [123] of its Decision Record the Tribunal stated as follows:

   [122]The Tribunal further finds that significant portions of the applicant’s written evidence in relation to his claims to have been a Maoist are identical to claims made by other protection visa applicants as set out in unrelated, published Tribunal decisions. The applicant has provided differing explanations for this circumstance, most recently, suggesting that it is merely a coincidence that his statements used similar wording to that used by other applicants. Given that some of the statements in question are unusually worded ad contain specific factual information, the Tribunal does not accept this explanation.

   [123] These features in the applicant’s evidence leave the Tribunal unsatisfied that any of the applicant’s claims regarding his involvement with the Maoists are true. The Tribunal is not satisfied that the applicant ever supported or joined the Maoists, was involved in any activities for the Maoists, was ever approached by police in connection with any activities for the Maoists or was in hiding or fearful of harm from the police or government prior to his departure from Nepal.

9. In relation to the claim based on the Applicant’s sexual orientation, the Tribunal found that it lacked credibility for the reasons given by it at [125] – [131] of its Decision Record, finding at [131] as follows: 

   [131] As with the applicant’s claim to have been a Maoist, portions of   the applicant’s June 2014 statutory declaration dealing with this claim also appear to have been taken from unrelated published Tribunal decisions. Once again, the Tribunal finds the applicant’s assertion that this is simply coincidence implausible. 

10. At [132] of its Decision Record the Tribunal stated as follows:

    [132] Having considered all the evidence, the Tribunal is not satisfied that the applicant is bisexual or homosexual. The Tribunal is not satisfied that the applicant has conducted homosexual relationships or had sexual encounters with men in either Nepal or Australia. Whilst the Tribunal accepts that the applicant has participated in Mardi Gras parades and been involved with LGBTI advocacy and support groups in Australia, the Tribunal is not satisfied that these activities were engaged in for reasons other than obtaining evidence to support or strengthen his protection application.

11. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relies on five Grounds:

   1. The Tribunal Member committed jurisdictional error by failing to consider my claims of homosexuality and actual or imputed political opinion fairly and it has breached certain sections of the Migration Act in dealing with and applying the requirements of certain case laws in identifying the adverse issue or material referred to.

   2. The decision of the Tribunal Member is unreasonable or illogical or irrational. The Tribunal Member's decision is infected with jurisdictional error because it is unreasonable, illogical or irrational. The Tribunal Member stated that the Tribunal does not find me to be a credible witness at the reasons I claim I was a Maoist and I was chased by the police and I claim that I am a homosexual. The Tribunal is of the view that I have fabricated claims and concocted evidence to strengthen my protection application. The Tribunal based the finding of lack of credibility was based on a clearly erroneous fact and its arbitrary views.

   3. The Tribunal Member misinterpreted the applicable law or misapplied the law to the facts. The Tribunal's conclusion that, even if my activities in Nepal or in Australia are considered cumulatively it was not satisfied that I would have an adverse profile with the Maoists or Nepalese authorities, indicated that the Tribunal approached the issue on the basis of the balance of probabilities, rather than by appropriately assessing the possibilities of future persecution. There is a degree of artificiality or stereotyping about the process of categorising     as either ' high-profile' or 'low-profile'. This process carries with it a risk of obscuring the fundamental question that the Tribunal failed to consider, namely whether I have a well-founded fear of persecution for a Convention reason. The Tribunal's decision was affected by jurisdictional error by reason of a failure to follow the mandatory procedure required by s.424A (1).

   4. The Tribunal's decision failed to conform to standards of procedural fairness as apprehended bias was established through its arbitrary views rather than the facts of my claims. The Tribunal Member failed to take into account a relevant consideration and took irrelevant considerations into account and in its decision by ignoring relevant material for me.

   5. The Tribunal erred when addressing Art 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial and failed to consider whether I might nevertheless be at risk from the Maoists and whether the Nepalese authorities would take reasonable measures to protect me.

Consideration

Ground 1

1. This Ground appears to complain that the Tribunal did not meaningfully consider the Applicant’s claims concerning his homosexuality or connection with the Maoists.  It is of course a well-established principle that an administrative decision-maker such as the Tribunal is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on a “substantial clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.

2. However, this Ground fails at a factual level.  The Decision Record of the Tribunal is replete with references to the Applicant’s claims to be homosexual and his claimed connection with the Maoists and how it would put him at risk of harm: see in particular [13] – [15], [19] – [21] and [23] of the Tribunal Decision Record as to the connection with the Maoists and as to his claims based on his sexual orientation see also [23].

3. At [63] – [64] of its Decision Record, in connection with evidence given by the Applicant at the second Tribunal hearing on 15 July 2016, the Tribunal stated as follows:

   [63] The applicant told the Tribunal that the first reason he feared returning to Nepal was the political reason.  The applicant said that his political opponents would consider him an enemy and frame him, kill him or conspire against him. The Maoists might threaten him to give them donations.

   [64] The second main reason the applicant said he did not want to go back to Nepal was because of his homosexuality.

4. Then at [67] – [83] of its Decision Record the Tribunal set out in detail the evidence given by the Applicant in support of his claim based on his political opinion.  At [124] the Tribunal rejected those claims.  At [84] –[103] the Tribunal set out in detail the evidence given by the Applicant in support of his claim based on him being homosexual but at [132] it rejected the Applicant’s claims based on his claimed homosexuality or bisexuality. 

5. It is clear that the Tribunal considered the claims made by the Applicant in support of his Protection visa application and Ground 1 is not made out.

Ground 2

1. This Ground asserts in general terms that the decision of the Tribunal is unreasonable, illogical or irrational. The relevant principles have recently been summarised by the Full Court of the Federal Court of Australia in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at 649 – 650 [30] as follows:

   [30] Therelevant principles can be summarised as follows.

   (1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]–[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; 154 ALD 221; [2016] FCAFC 174 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; 302 ALR 572; 136 ALD 41; [2013] FCA 317 (SZRKT) at [77] (Robertson J).

   (2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 (SZMDS) that:

   135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   (Emphasis added)

   (3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection (2015) 233 FCR 451; [2015] FCA 1089 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676; [2002] FCAFC 437 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37].

   (4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or  irrational  may  establish jurisdictional error (SZMDS at [132] (Crennan and  Bell  JJ)).  In  this regard, with respect to the  significance  of  an  illogical  or  irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

   56. An irrational or illogical finding, or  irrational  or  illogical  reasoning leading to a finding, by the Tribunal that the review applicant  was not   a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny …

   (citations omitted)

   (5) A high degree of caution must, however, be exercised before finding that adverse  findings  as  to  credit  expose  jurisdictional  error  in order to   ensure that the Court does  not  embark  impermissibly  upon  merits  review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality  must  be  demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be suffıcient to make out illogicality”: CQG15 at [61].

1. In my view this Ground fails. In this case, the Tribunal stated and considered and analysed the Applicant’s claims and evidence in a meaningful and legally reasonable manner. At [118] – [123] of its Decision Record it gave legally rational reasons for rejecting the claims based on the Applicant’s political opinions and connections and at [125] – [132] for rejecting his claims based on his claim of homosexuality.

2. In my view the finding do not exhibit legal unreasonableness, but rather appear to constitute a comprehensive, reasoned and meaningful consideration of the Applicant’s claims and this Ground fails to establish jurisdictional error.

Ground 3

1. This Ground fails because the Tribunal did not misinterpret, misunderstand or misapply the law and criteria for the grant of the Protection visa under the complementary protection criterion. At [6] – [10] of its Decision Record the Tribunal correctly set out the relevant legal principles applicable to the matter before it, including the correct test under s.36(2)(aa) of the Act and at [124] the Tribunal applied that test in relation to the Applicant’s political claims, and again at [133] and [137] the Tribunal made findings invoking the correct test under s.36(2)(aa): see also in particular [137].

2. In my view, this Ground fails to establish jurisdictional error. I should note, in relation to this Ground, that the last sentence baldly alleges a breach of s.424A(1) of the Act by the Tribunal, but the Applicant has not identified any such breach.

Ground 4

1. The Applicant has failed to establish that the Tribunal held arbitrary views or was guilty of any prejudgement of his claims for protection.  There is not a scintilla of evidence which would establish the complaint of apprehended bias.  The Applicant has failed to identify, let alone establish, that the Tribunal acted in a procedurally unfair way. The Tribunal invited him to a hearing at which he appeared on 15 July 2016 and the Decision Record establishes that the Tribunal gave meaningful consideration to his claims and evidence.

2. Accordingly, Ground 4 is not made out.

Ground 5

1. Ground 5 also fails.  In my view, Article 1C(5) of the Refugees Convention has no relevance to this case.  The Applicant has never formally been recognised as a refugee and in any event the Tribunal was only considering his claims under the complementary protection criterion.  In other words, the invocation by the Applicant of Article 1C(5) has no pertinent relevance to this case and Ground 5 fails to establish any jurisdictional error.

A Further Matter: s.438 Certificate

1. In the Written Submissions of Mr Cleary of Counsel, who appears for the Minister, there has been reference in passing to a purported s.438 Certificate issued by the Department of the Minister dated 10 March 2016.  That reference has clearly provoked the Applicant to raise a point in relation to the purported s.438 Certificate, which had been put into evidence by the Minister and has been marked Exhibit B.

2. I say provoked because at the hearing the Applicant submitted a written Outline of Submissions dated 7 May 2019 which clearly has been drafted by a lawyer and which was confirmed by the Applicant as having been drafted by a lawyer, and which makes an allegation that because the Tribunal did not disclose to the Applicant that a purported s.438 Certificate had been issued, the Tribunal did not afford procedural fairness to the Applicant.

3. I permitted the Applicant to rely on this point as if it were a new fresh Ground and Mr Cleary was content for that course to be taken.  In the result, he tendered the documents which were the subject of the purported s.438 Certificate, conceding that the Certificate was invalid and its existence had not been disclosed to the Applicant at the time of the Tribunal hearing.  It is also clear that the Tribunal makes no reference in its Decision Record to the existence of the s.438 Certificate.

4. In my view, the Applicant has not suffered any procedural unfairness or practical injustice by the existence of the s.438 Certificate. The documents which were the subject of the s.438 Certificate are completely banal, conventional and typical administrative documents which have been created from time to time, seemingly going back to at least 2003.  They contain no information adverse to the Applicant or the Applicant’s present Protection visa application. It is clear that the Tribunal had no regard to them and indeed it would have been perverse for the Tribunal to have had any regard to them because they are completely irrelevant and immaterial to any consideration of the present Protection visa application.

5. In my view there has been no breach of procedural fairness and in this regard Mr Cleary relies upon the recent decision of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599, at 611 [44] in particular.

6. In my view, jurisdictional error is not established by the fact that the purported s.438 Certificate, dated 10 March 2016, was brought into existence and sent to the Tribunal.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  5 June 2019