SZTJY v Minister for Immigration

[2016] FCCA 769

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 769

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal denied procedural fairness to the applicant by failing to give proper, genuine and realistic consideration to a document provided by the applicant – whether Administrative Appeals Tribunal denied procedural fairness to the applicant by failing to give proper, genuine and realistic consideration to country information submitted by the applicant – whether the Administrative Appeals Tribunal’s finding that there was no real risk of persecution to the applicant if he returned to Sri Lanka was irrational, illogical and/or unreasonable – whether the Administrative Appeals Tribunal erred in finding that the applicant was not a person to whom Australia had obligations under the complementary protection criterion – whether the Administrative Appeals Tribunal failed to consider all the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
ACC15 v Minister for Immigration and Border Protection [2016] FCA 97
BNK15 v Minister for Immigration & Anor [2015] FCCA 3349
BEV15 v Minister for Immigration & Anor [2015] FCCA 3205

Applicant: SZTJY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2480 of 2013

Judgment of: Judge Emmett

Hearing date: 17 November 2015

Date of Last Submission: 24 February 2016

Delivered at: Sydney

Delivered on: 4 May 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Tamil interpreter.

Counsel for the Respondents: Mr Jonathan Kay Hoyle

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2480 of 2013

SZTJY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 16 September 2013 and handed down on 17 September 2013 (“the Tribunal”).

2. The applicant claims to be a citizen of Sri Lanka of Hindu faith, and Tamil ethnicity, who fears harm from the local Sinhalese people and the authorities in Sri Lanka.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived in Australia as an irregular maritime arrival after departing illegally from Sri Lanka.  

2. On 22 September 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 7 January 2013, the Delegate refused the applicant’s application for a protection visa.

4. On 30 January 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 17 September 2013, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 14 October 2013, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) 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.”

5. Sections 36(2A) and 5 of the Act defines “significant harm.”

6. Section 36(2B) of the Act is as follows:

   “(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.            

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)He is a Tamil male from Udappu, Sri Lanka;

   b)He worked as a sales assistant from late 2003 to late 2006. As there was a civil war in Sri Lanka during that time, “animosity” towards Tamil people by the Sinhalese was frequent, and he was harassed by “groups of Sinhalese thugs”;

   c)From 2006, he worked as a truck driver. The applicant helped his employer with his local government election campaign in 2011. His employer lost this election;

   d)In April 2011, a group of Sinhalese men dragged the applicant from his truck, beat him, and threatened him to stop assisting his employer;  

   e)In 2011, he was arrested and detained on a false charge of robbing a bank. He was beaten while he was in custody. He was only released when video footage of the incident showed that he was not involved in the robbery;

   f)His cousin had been arrested in 2009 on suspicion of being involved with the Liberation Tigers of Tamil Eelam (“the LTTE”). Every month, he approached the authorities to have his cousin released. With the assistance of the International Community of the Red Cross, his cousin was released in September 2011. However, the applicant had to guarantee that his cousin would report to the army. His cousin then went into hiding. He does not know his cousin’s whereabouts;

   g)In 2012, his mother told him that the Sri Lankan Criminal Investigation Department (“the CID”) was looking for him and had said that they were going to kill him. He was afraid that he would be held responsible for his cousin’s disappearance. He therefore decided to leave Sri Lanka;

   h)After the applicant had left Sri Lanka, the CID returned to his home and threatened his mother and demanded to know his whereabouts; and

   i)He fears that he will be detained, interrogated, tortured, abused or killed because of his Tamil ethnicity and Hindu faith, his real or imputed political opinion, and because of his membership of the “failed Tamil asylum seekers” social group.

The Delegate’s decision

1. On 28 September 2012, the Department conducted a protection visa interview with the applicant.

2. The Delegate found that the applicant did not have a profile that was associated with the LTTE. Accordingly, the Delegate found that the applicant would not have any political opinion imputed to him, and that he would not be of any adverse interest to the Sri Lankan authorities if he returned to Sri Lanka.

3. On 7 January 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 30 January 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided further documents in support of his review application, including written submissions from the applicant’s authorised representative.

3. On 25 February 2013, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 9 April 2013 to give oral evidence and present arguments.

4. On 9 April 2013, the applicant attended the Tribunal hearing and gave evidence. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

5. After the hearing, on 28 August 2013, the Tribunal wrote to the applicant and invited him to comment on information contained in a ‘Country Information Report Sri Lanka’, published by the Australian Department of Foreign Affairs and Trade (“DFAT”). In its letter, the Tribunal identified with specificity the country information in respect of which it invited comments from the applicant. 

6. On 10 September 2013, the applicant’s authorised representative provided a written statement in response and submitted that the impartiality of the DFAT report is questionable.

7. Having considered the applicant’s claims, the Tribunal found that the applicant was not a witness of truth. The Tribunal did not consider it credible that the applicant would have remained in the same locality on 24 and 25 April 2012, continuing to go to work and come home as normal, after the CID allegedly came looking for the applicant on 23 April 2012.

8. The Tribunal also found that there were inconsistencies in the applicant’s account of the disappearance of his cousin. The applicant had initially claimed that after the CID visited his house on 23 April 2012, he called his aunt who said that his cousin had been taken from home and had not been seen since. However, when questioned as to why he stayed in the same locality and went to work as normal on 24 and 25 April 2012, the applicant stated that his cousin had not been taken from his home, but had rather gone to report to the army and had not been seen since that time.

9. The Tribunal found that there were further inconsistencies in the applicant’s account of the movements of his cousin following the cousin’s release in 2011. The Tribunal noted that in the applicant’s statutory declaration lodged with his protection visa application, the applicant stated that his cousin went into hiding “shortly after” he was released. In contrast, the applicant told the Tribunal that his cousin had continued to live in the same area until late 2011 without making any reference to him having gone into hiding. The Tribunal did not accept the explanation of the applicant’s representative that such inconsistencies could be explained by “mistakes” in the statutory declaration due to “communication deficiencies”.

10. After exploring the applicant’s claims with him at the hearing, the Tribunal comprehensively rejected all of them as lacking credibility, save for the applicant’s background, his schooling and that he worked as a sales assistant and truck driver.

11. The Tribunal also had regard to a document purportedly issued by the Red Cross stating that a person with the same name as the applicant’s cousin was held in detention from 2009 until 30 September 2011. The Tribunal acknowledged that this document purportedly corroborated the applicant’s claims. However, the Tribunal found that the document did not outweigh its concerns about the applicant’s evidence. Further, in light of its comprehensive adverse credibility findings in respect of the applicant, the Tribunal did not afford the document any weight.

12. Having regard to country information, the Tribunal found that upon return to Sri Lanka, the applicant could be held in detention briefly before being brought before a magistrate and granted bail. The Tribunal found that the applicant would receive a fine for his illegal departure and noted that the applicant did not claim that he could not pay the fine. The Tribunal rejected the applicant’s claim that he would be sentenced to a term of imprisonment and held in poor prison conditions.

13. Having considered the applicant’s claims, the Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Sri Lanka, that the applicant did not have a well-founded fear of persecution in Sri Lanka and for this reason the applicant was not a person to whom Australia owed protection obligations.

14. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that the applicant would be harmed on return to Sri Lanka because he was a Tamil, a Hindu, a failed asylum seeker, or otherwise. Accordingly, the Tribunal found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the applicant would suffer significant harm.

15. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter. 

2. On 2 April 2014, by consent, Orders were made setting the matter down for final hearing. The applicant was represented at that time.

3. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. A copy of the applicable costs schedule of the Court was annexed to the Orders.

4. On 11 June 2014, the applicant filed an Amended Application.

5. At the commencement of today’s hearing, the applicant confirmed that he relied on the grounds contained in his Amended Application, as follows:

   “1. The Tribunal committed jurisdictional error by failing to give proper, genuine and realistic consideration to the Red Cross document submitted by the applicant which appeared to corroborate assertions made by him in support of his application. The Tribunal denied procedural fairness to the applicant.

   Particulars:

   a) Failure to consider a claim that clearly arose before the Tribunal, that being that the Applicant submitted a document issued by Red Cross stating that a person with the same name as the applicant's cousin was held in detention by the authorities from 2009 until 30 September 2011.

   b) Despite the fact that the Tribunal acknowledged the document purports to corroborate the claims made by the applicant about his cousin being held in detention (at page 21 of 28) paragraph 123 of the decision record.

   c) However at page (21 of 28) paragraph 117, the Tribunal disbelieves the applicant's claims that he had a cousin who was detained from 2009 on suspicion of involvement with the LTTE. It is a clear contradiction in its findings. Resulting in confusion and it is not fair and just to the applicant.

   d) The Tribunal failed to engage in an active intellectual process in relation to the Red Cross letter and analyse the possible implications to the applicant. In view of the fact that the applicant stood surety for his cousin in this matter to report to the army according to the conditions.

   e) The Tribunal wrongly focused on whether the Applicant was a truthful witness rather than to ascertain the issues surrounding an independent document issued by the Red Cross. The fact that it was a separate issue from ascertaining the applicant's credibility was ignored by the Tribunal.

   f) With regard to the above issue the Tribunal pre-judged a central issue in this matter.

   g) If the Tribunal had placed the proper weight to the Red Cross document it could have come to a different conclusion.

   h) The Tribunal failed to act in a way that is fair and just.

   i) The Tribunal further failed to consider whether the applicant had a well-founded fear of persecution due to his claim related to this document taking his role as a main consideration.

   2) The Tribunal fell into jurisdictional error when the Tribunal did not give proper, genuine and realistic consideration to the country information submitted by the applicant in relation to a politician by the name of Jekath and another colleague of his and their propensity for violence and threats. The Applicant was denied procedural fairness.

   Particulars:

   a) Failure to consider a claim that clearly arose before the Tribunal, that being that the applicant was subjected to risk by this person due to his involvement in helping a Tamil political candidate [Sivapalan], in a local government elections held in 2011.

   b) In view of the fact that the applicant gave evidence that he was victim of political/race persecution as a result of helping a Tamil politician.

   c) The Tribunal reached a wrong conclusion that the applicant will not suffer harm because there is no credible evidence that he was harmed by this person in Sri Lanka. Despite the fact that the applicant provided country information to the Tribunal to demonstrate the violent activities of this person.

   d) Failure on the part of the Tribunal to conclude that the applicant will not be harmed by this politician based on the applicant's past experience. The Tribunal should have ascertained whether if the applicant returns to Sri Lanka now whether his life will be at risk. Despite the fact that the applicant gave evidence that he was beaten by Sinhalese men and was threatened to stop assisting the Tamil politician.

   e) The fact that the Tribunal decided that he was not harmed in the past does not necessarily mean that the applicant will not be subjected to future risk from him and other Sinhalese associates of this politician.

   f) The Tribunal failed to act in a way that is fair and just.

   g) The Tribunal fell into error in failing to taking into account this relevant consideration.

   3. The Tribunal made a jurisdictional error in that it was irrational, illogical and/or unreasonable specifically, the finding that there was no real risk of persecution of the applicant if he returns to Sri Lanka.

   Particulars:

   a) The Tribunal was bound by technicalities and strictly followed UNHCR guidelines and ignored the caveat which stated that the UNHCR guidelines were not exhaustive. As a result the Tribunal was not fair and just when it considered the applicant's plight.

   b) Despite the fact that the Tribunal acknowledged there may well be government related groups such as paramilitary and Sinhalese people who would attack Tamils.

   c) The applicant gave evidence to the Tribunal that he stood surety for his cousin who is suspected by the authorities as an LTTE member, who had breached the reporting conditions to the army.

   d) The applicant arriving as a failed asylum seeker may be investigated and even interrogated by the Sri Lankan authorities to determine whether he is a security threat.

   e) Failure on the part of the Tribunal to correctly ascertain the authority's fear, those abroad has been LTTE supporters and sympathisers and that they may suspect the claimant as a person under this category.

   f) The authorities would be aware that the applicant's uncle and cousin were LTTE members/supporters.

   g) As a matter of fact the applicant gave evidence that he assisted a Tamil political candidate in the local election.

   h) The applicant was employed by this local Tamil politician after the election and the applicant was subjected to further threat and harassment by Sinhalese men associated to the successful politician.

   i) In view of the fact that the applicant was arrested, detained and maltreated by the police because he was falsely accused of bank robbery by a close associate of Jekath (the politician).

   j) The Tribunal failed to realistically determine the implications of the applicant's involvement in a Hindu temple activity which was resisted by the Sinhalese man.

   k) Despite the fact that the Tribunal acknowledged there may well be government related groups such as paramilitary and Sinhalese people who would attack Tamils.

   l) Failure on the part of the Tribunal to recognise that the applicant had a profile of his own which will attract the adverse interest of the Sri Lankan authorities.

   m) In view of the fact that the Tribunal has also considered the country information submitted by his adviser with regard to human rights abuse and violations in Sri Lanka. Furthermore, the Tribunal accepts such events occur at page (25&26) of the decision record.

   4) The Tribunal committed jurisdictional error of law in its finding that the applicant is not a person to whom Australia has protection obligations under the complementary protection grounds as stated in s.36(2)(a) of the Act.

   Particulars:

   a) Failure on the part of the Tribunal to ascertain properly whether that the applicant will be subjected to harassment of Sinhalese men and specially Jekath (the politician) and the Sri Lankan authorities if he returns home.

   b) The applicant gave evidence and provided country information to support his claim in relation to political harassment of Jekath and his people.

   c) Failure on the part of the Tribunal to ascertain what would happen to the applicant in his position of standing surety when his cousin has breached those reporting conditions, if he had to return to Sri Lanka in the foreseeable future.

   d) Failure on the part of the Tribunal to analyse the possible punishment by the authorities for the applicant in not meeting the surety requirements.

   e) Failure on the part of the Tribunal to determine whether the applicant will be subjected to arbitrary deprivation of life, torture or cruel inhuman degrading treatment or punishment as a result of breach of conditions in standing surety.

   f) Failure on the part of the Tribunal to determine whether the applicant will be subjected to arbitrary deprivation of life, torture or cruel inhuman degrading treatment or punishment as a result of a failed political asylum seeker from Australia, Tamil and a suspected LTTE supporter and sympathiser.

   g) Failure on the part of the Tribunal to recognise that that the applicant had a profile of his own which will attract adverse interest of the Sri Lankan authorities.

   h) Failure on the part of the Tribunal to recognise that the applicant might be charged for a criminal offence and sentence to imprisonment as a result of the breach of the reporting conditions. Despite the fact that the Tribunal accepts the poor conditions and maltreatment in Sri Lankan prisons.

   i) Failure on the part of the Tribunal to rule out clearly whether the applicant falls under the exceptions to Complementary protection s.36 (2B).

   j. The Tribunal conflated the issue of Convention consideration and did not address the complimentary protection.

   5. The Tribunal fell into jurisdictional error when its approach was to focus on the likely outcome of the possible interrogation and detention of the applicant as a failed asylum seeker on his return to Sri Lanka rather than to consider the process of the interrogation to which the applicant would be subjected and the risk that the applicant might suffer serious harm amounting to persecution before being able to convince the authorities that he or his family was not an LTTE member, sympathiser or a supporter. It denied procedural fairness to the applicant.

   Particulars:

   a) Failure to consider a claim that clearly arose on the materials before the Tribunal, that being that the applicant might be persecuted by the Sri Lankan authorities, in the course of determining whether the applicant or his family might have LTTE connections.

   b) Despite the fact that the Tribunal at [page 24 of 28] decision record acknowledges the poor human rights record of the Sri Lanka authorities and related agents.

   c) In view of the fact that applicant gave evidence that he was victim of persecution several times by the authorities in relation to his race, religion, suspected LTTE supporter and his involvement in assisting a Tamil politician. Even though his claims were rejected by the Tribunal without proper evidence.

   d) As a matter of fact the applicant gave evidence that he had issues with a notorious politician.

   e) The Tribunal failed to consider that the applicant gave evidence that he had issues with a government informant.

   f) In total, it is unreasonable for the Tribunal to rely on selective country information to support its decision without giving consideration to the applicant's previous persecution and discrimination that he had suffered. The Tribunal excluded, relevant country information on this area about Sri Lanka, which indicates that human rights violation including abduction, torture in detention and detention without charges.

   g) The Tribunal breached section 420 and 422B of the Migration Act by its failure to accord the applicant substantial justice and the merits of the case and further its failure to act in a way that is fair and just, and thereby denying the applicant natural justice.

   6. Tribunal fall into jurisdictional error when it failed to consider a very important claim made by the applicant that on 25 April 2012, evening the CID came to the applicant's house and informed his mother that the CID is going to kill the applicant. This is in regards to the CID's second visit. The Tribunal denied procedural fairness to the applicant.

   Particulars:

   a) Failed to conduct the review according to s.420 of the Migration Act 1958.

   b) The Tribunal failed to provide a fair hearing under s422B.

   c) The Tribunal did not rebut that the CID visited the applicant's home.

   d) The Tribunal failed to invite the applicant to comment on or respond to this information.

   e) The Tribunal fell into jurisdictional error when it failed to take into account relevant consideration and give proper weight to any information to support the applicant's case.

   7. The Tribunal fell into jurisdictional error when it failed to accept the submission by the adviser that the Attorney General's office of Sri Lanka could not be relied on a source of country information on issues related to treatment of failed asylum seekers. It is unreasonable and denied procedural fairness to the applicant.

   a) Despite the fact that the Tribunal acknowledges at (page 26 of 28) that the Sri Lanka government may try to down play or deny human rights violations taking place in Sri Lanka but sees no reason for the Attorney General's Department of that country to falsely state no returnees are receiving custodial sentences.

   b) The Tribunal failed to understand that the Sri Lankan AG's office is part of the Sri Lankan government's machinery.

   c) The Tribunal failed to understand that the AG's office is not an independent department.

   d) The Tribunal did not understand the workings of the Sri Lankan government and as a result came to the wrong conclusion in its decision.

   e) The Tribunal in reaching this conclusion did not act in a way that is fair and just.”

   (Errors in original).

1. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

2. The applicant made no further oral submission in support of any of the grounds of his Amended Application.

Ground 1

1. Ground 1 asserts that the Tribunal failed to give proper, genuine and realistic consideration to the Red Cross document submitted by the applicant in support of his application, thereby denying him procedural fairness. Ground 1 was supported by various particulars that appeared, in essence, to make the following complaints:

   a)Failure to consider a claim that clearly arose from the Red Cross document stating that a person with the same name as the applicant’s cousin was held in detention by authorities from 2009 until 30 September 2011;

   b)The Tribunal failed to engage in an active intellectual process in relation to the Red Cross document and the possible implications for the applicant;

   c)The Tribunal prejudged and un-particularised the “central issue” in the matter;

   d)Had the Tribunal placed a proper weight on the Red Cross document, it would have come to a different conclusion;

   e)The Tribunal failed to act in a way that was fair and just; and

   f)The Tribunal failed to consider whether the applicant had a well-founded fear of persecution as disclosed by the Red Cross document.

2. The other particulars in support of Ground 1 state factual findings of the Tribunal with which the applicant disagreed.

3. In a written submission filed on 22 February 2016, the applicant further asserted that the Tribunal erred by failing to take into account the applicant’s evidence and by failing to consider the core issues arising from his claim that he assisted a politician in his area.

4. In its decision record, the Tribunal identified with specificity the applicant’s written claims in support of his protection visa application and summarised the evidence given by the applicant at the hearing before the Tribunal. The Tribunal also summarised various exchanges it had with the applicant about his evidence and noted matters of concern that it put to the applicant about his evidence and noted the applicant’s responses. The Tribunal then identified country information to which it had regard, including country information relating to returnees to Sri Lanka who are “failed asylum seekers” and the procedure on arrival at the airport in Colombo as well as the penalties relating to illegal departure. The Tribunal also identified country information in relation to the risk faced by a Tamil person returning to Sri Lanka involuntarily, having been unsuccessful in an application for asylum abroad.

5. In particular, the Tribunal found the applicant’s written claims about the release of his cousin and when his cousin had gone into hiding to be inconsistent  with the applicant’s account of events to the Tribunal at the hearing.

6. The Tribunal also had regard to submissions from the applicant’s representative which sought to address some of the inconsistencies in the applicant’s evidence identified by the Tribunal. 

7. Ultimately, as stated above, the Tribunal found that the applicant was not a witness of truth and that his account of events on which his protection claims were based was false. The Tribunal accepted that the applicant is a Tamil Hindu male who attended school up until year 11 and has a family living in Udappu. The Tribunal also accepted that the applicant had been employed as a truck driver, a person who loaded goods on and off a vehicle and as a sales assistant.

8. Otherwise, the Tribunal rejected all other claims made by the applicant. The Tribunal comprehensively rejected the applicant’s claims to have had a cousin who was detained on suspicion of involvement with the LTTE; that the international community, including the Red Cross, assisted in having the cousin released; that the applicant had guaranteed the cousin’s attendance when required by the army; that the CID came to the applicant’s home in April 2012 looking for him and his cousin; and, that the CID went to his home again after he had left Sri Lanka to find out his whereabouts. The Tribunal also rejected the applicant’s reasons as to why he left Sri Lanka and why he does not wish to return. Further, the Tribunal rejected the applicant’s claim that Sri Lankan authorities wished to apprehend and harm him.

9. In relation to the Red Cross document stating that a person with the same name as the applicant’s cousin had been held in detention from 2009 until 30 September 2011, the Tribunal found that the contents of that document did not outweigh the concerns it had about the applicant’s credibility. Accordingly, the Tribunal gave the Red Cross document no weight.

10. It is well accepted that where a party’s credibility has been so weakened, corroborative evidence maybe found to be of no weight “because the well has been poisoned beyond redemption” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ). The case before this Court is such a case and the Tribunal’s clear and comprehensive adverse credibility findings are such that it was open to the Tribunal to place no weight on the Red Cross document as corroborative of the applicant’s claims.

11. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

12. Accordingly, the applicant’s complaints about the consideration given to the Red Cross document by the Tribunal in Ground 1, together with the attenuated particulars, are not made out.

Ground 2

1. Ground 2 asserts that the Tribunal did not give proper, genuine and realistic consideration to the country information submitted by the applicant in relation to a politician named Jekath and Jekath’s colleague and their propensity for violence and threats, thereby denying the applicant procedural fairness.

2. The particulars in support essentially repeat the applicant’s claims.

3. However, the Tribunal’s decision record refers to the applicant’s claims in respect of Jekath and noted country information provided to it about that person and his propensity for violence and threats. The Tribunal found there was no credible evidence that the applicant was harmed by this person in Sri Lanka. As stated above, the Tribunal comprehensively rejected the applicant’s claims of past political involvement in helping a Tamil political candidate in local government elections, or to have suffered any harm for that reason.

4. A fair reading of the Tribunal’s decision record does not support the applicant’s contention that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s country information. The Tribunal appeared to have accepted the country information but rejected the applicant’s claim to have ever suffered harm for that reason. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

5. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal’s decision was irrational, illogical and/or unreasonable in finding that there was no real risk of persecution to the applicant if he returned to Sri Lanka. Again, the particulars in support restate various claims made by the applicant and which were rejected by the Tribunal.

2. As stated above, the Tribunal’s comprehensive adverse credibility findings were open to it on and evidence and material before it, and for the reasons it gave. None of the findings are findings that no rational or logical decision maker could have made and none lacked an evident or intelligible justification (see Minister for Immigration and Cirizenship v SZMDS & Anor (2010) 240 CLR 611 (“SZMDS”); Minister for Immigration and Citizenship v Li (2013) 297 ALR 225). It is well established that a decision cannot be illogical or irrational simply because one conclusion has been preferred to another (see SZMDS at [131] – [135] per Crennan and Bell JJ). Nor is the applicant’s disagreement with the Tribunal’s findings a proper basis for finding that the Tribunal’s reasoning was irrational or illogical.

3. The complaints in Ground 3 otherwise cavil with findings made by the Tribunal which, as stated above, were open to it on the evidence and material before and for the reasons it gave. Such disagreement invites merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J (“Abebe”); Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

4. To the extent that Ground 3 asserts that the Tribunal failed to consider country information provided by the applicant, no such country information is identified by the applicant. In any event, the country information referred to by the Tribunal is detailed, comprehensive and relevant. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”); VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. Accordingly, Ground 3 in not made out.

Ground 4

1. Ground 4 asserts that the Tribunal erred in failing to find that the applicant was not a person to whom Australia had protection obligations under the complementary protection criterion in s.36(2)(aa) of the Act. Again, the particulars in support of Ground 4 are reassertions of the applicant’s claims which were rejected by the Tribunal.

2. The Tribunal considered whether the applicant met the complementary protection criterion. The Tribunal found that the grounds on which the applicant claimed to meet the complementary protection criterion were the same as those advanced in support of his Convention based claims. The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm if returned to Sri Lanka for the same reasons it found that the applicant did not have a well-founded fear of persecution if he returned to Sri Lanka. The Tribunal found that the risk of harm to the applicant because he is a Tamil Hindu man from Udappu who left Sri Lanka illegally and will return there as a “failed asylum seeker” from Australia, to be remote.

3. It is well established that it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).

4. In considering complementary protection, the Tribunal acknowledged country information about poor conditions in Sri Lankan prisons. The Tribunal referred to country information that indicated that for departing Sri Lanka illegally, a returnee such as the applicant would be granted bail and would eventually receive a fine. The Tribunal further noted that country information indicated that Tamils are treated the same way as anyone else in this process. The Tribunal found that prison sentences are more likely to be imposed on those organising people smuggling. The Tribunal noted that the DFAT country information report dated 31 July 2013 disclosed that the Sri Lankan government had stated that no one had been given a custodial sentence for departing Sri Lanka illegally, only fines.

5. Based on country information to which it referred, the Tribunal found that the risk to the applicant of receiving a jail sentence because of his illegal departure from Sri Lanka to be remote. The Tribunal accepted that the applicant would receive a fine; that such a fine would be within a range given in country information; and, that the imposition of such a fine did not amount to significant harm as defined in the Act. In particular, the Tribunal noted that the applicant did not make a claim that he could not pay a fine. The Tribunal also noted that paying such a fine would not amount to significant harm.

6. Further, the Tribunal found that the possibility of the applicant being held in remand briefly before being brought before a magistrate did not amount to a real risk of significant harm as defined in the Act.

7. Accordingly, the Tribunal concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

8. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. In light of the Tribunal’s reasons, it is apparent that the Tribunal understood the complementary protection criterion and considered it in the context of the legislative scheme.

9. To the extent that Ground 4 suggests that the Tribunal was required to consider s.36(2B) of the Act, I accept the first respondent’s submission that such a claim is misconceived in circumstances where the Tribunal was not satisfied that the applicant was at risk of significant harm upon his return to Sri Lanka.

10. Accordingly, Ground 4 is not made out.

Ground 5

1. Ground 5 asserts that the Tribunal erred in focusing on the likely outcome of possible interrogation and detention rather than the process of interrogation to which the applicant would be subjected. Again, the particulars in support reasserted various claims made by the applicant. The particulars further asserted that it was unreasonable for the Tribunal to rely on selective country information in support of its decision without considering prior persecution and discrimination faced by the applicant. The particulars asserted that the Tribunal excluded relevant country information and failed to accord the applicant substantial justice.

2. As stated above, the Tribunal comprehensively rejected the applicant’s claims to have ever been involved in the LTTE, or that he was imputed with any such connection.

3. As stated above, the Tribunal’s findings in relation to whether the applicant was at risk of significant harm in the process of being questioned and detained briefly were open to it on the evidence and material before it and for the reasons it gave. As stated above, it is well established that the country information to which a Tribunal has regard is a matter for the Tribunal, as is the weight it places upon that information (see NAHI).

4. The complaints in Ground 5 otherwise invite merits review which this Court cannot undertake (see Abebe).

5. Accordingly, Ground 5 is not made out.

Ground 6

1. Ground 6 asserts that the Tribunal erred in failing to consider that the CID came to the applicant’s home on 25 April 2012 and told his mother that they were going to kill the applicant, thereby denying the applicant procedural fairness. Essentially, the particulars in support assert that the Tribunal failed to invite the applicant to comment on this information and that the Tribunal failed to give this information proper weight.

2. As stated above, the Tribunal rejected the applicant’s claims that the CID came to his home at any time either before or after he left Sri Lanka. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

3. There was no obligation on the Tribunal to give to the applicant for comment its subjective appraisals, thought processes and determinations. It is well established that the Tribunal's disbelief of an applicant's evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does “information” include the Tribunal's defects, gaps or lack of detail in an applicant's evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

4. Again, Ground 6 appears more to be a disagreement with the Tribunal’s findings, thereby inviting impressible merits review (see Abebe).

5. Accordingly, Ground 6 is not made out.

Ground 7

1. Ground 7 asserts that the Tribunal erred in failing to accept the applicant’s representative’s submission that the Attorney-General’s Department in Sri Lanka could not be relied on as a source of country information on issues relating to the treatment of failed asylum seekers and that to do so was unreasonable and denied the applicant procedural fairness. Again, the particulars in support are reassertions of various factual claims made by the applicant.

2. Essentially, Ground 7 cavils with findings made by the Tribunal that were open to it on the evidence and material before it and for the reasons it gave. Such disagreement invites merits review which this Court cannot undertake (see Abebe).

3. As stated above, it was open to the Tribunal not to accept the submission made by the applicant’s representative, and a failure to do so cannot be a jurisdictional error. The Tribunal acknowledged that the Sri Lankan government may try to downplay or deny human rights violations taking place in Sri Lanka. However, the Tribunal did not accept that the Attorney-General’s Department would falsely state that no returnees were receiving custodial sentences. The Tribunal acknowledged that the applicable law provided for a jail sentence but found that, based on DFAT country information, the risk of that happening to the applicant was remote. As stated above, that finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

4. Accordingly, Ground 7 is not made out.

Additional issue – SZTAP v Minister for Immigration and Border Protection & Anor

1. Following the completion of submissions by the parties at the hearing, this matter was adjourned pending the publication of the reasons for judgment by the Full Court of the Federal Court of Australia in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 (“SZTAP”). Although not raised by the applicant in the Amended Application, each party was given an opportunity to file further submissions in relation to the issues arising in SZTAP.

2. The applicant’s submissions in support said no more than that the applicant relied on the decision in SZTAP. The first respondent’s submissions addressed the principles arising from SZTAP and the Full Court’s consideration of SZTAP and its application to the case before this Court. I accept in their entirety, and for the reasons given, the first respondent’s submissions and refer to them as follow:

   “Principles arising from SZTAP

   3. In SZTAP, the Tribunal had relevantly found that “[b]ail is routinely given on the accused’s own recognisance although a family member is also required to provide surety”. The Court (Robertson and Kerr JJ, Logan J agreeing) noted that “a general level of abstraction, there is a similarity between SZTQS and [SZTAP]”.

   4. Importantly, however, the Court found that “SZTQS does not stand for a high-level proposition that every reference to a family member being required to provide surety involves a breach of s 425(1) of the Act. Rather, SZTQS was “of necessity” a “fact specific” decision. On the facts of SZTAP, unlike in SZTQS, the Court did not accept that it was:

   “an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal.”

   5. Consistent with the Minister's position in these proceedings, the following principles are confirmed by the decision in SZTAP:

   (a) SZTQS does not stand for the high level proposition that every family member being required to provide surety involves a breach of s. 425 of the Act (at [76]);

   (b) the outcome in SZTQS was dependent upon a very specific factual matrix. Before the applicant had left Sri Lanka, he had been taken to a local courthouse where his mother had paid bail money for his release. By reason, in part, of this factual background the applicant feared that he would be arrested again. He had also provided evidence that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally. These were the factual circumstances which made it “critical to the Tribunal's finding” whether a family member would be able to again provide financial surety (at [78]-[79]);

   (c) SZTQS was merely an example, specific to its facts, of the Tribunal’s review jurisdiction (at [77]).

   6. It follows that SZTQS stands for the very limited, and case-specific, proposition that on the facts of that case the manner in which the Tribunal dealt with the applicant’s claim constituted a breach of s. 425 of the Act. The case is not authority for any broader proposition or, indeed, principle capable of being applied across a range of different cases. The very limited ambit of the case is borne out by the Full Court’s consideration of the Tribunal’s conclusions in SZTAP, almost identical in form to SZTQS, but very different in context. The Full Court found, on those facts, that the Tribunal in SZTAP had made no error.

   Subsequent consideration of SZTAP

   7. The approach taken by the Full Court in SZTAP has been applied in subsequent cases.

   8. For example, in ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 (ACC15) the Tribunal found: “if he was taken before a magistrate, I am satisfied he would be immediately given bail”. In doing so, the Tribunal referred to country information indicating that returnees have been granted bail with the requirement that a family member act as guarantor. The Court applied SZTAP as follows:

   “26. The facts of this case are distinguishable from those in SZTQS. In the present case the matter of bail was not an issue, either generally or in particular, as to the need for a family member to be a guarantor. There was no suggestion that the family member would be required to actually pay money before bail was granted. In SZTQS there was evidence that on a prior occasion the appellant’s mother had paid bail money for his release.

   27. As in SZTAP at [79], on the facts of this case, I do not accept that it was critical to the Tribunal’s finding that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as an determinative factor in the mind of the Tribunal.

   28. Moreover, as the plurality said at [80] in SZTAP, in the Federal Circuit Court, it appeared to have been assumed that providing surety involved the payment of money. That is not generally the case, unless the bailed person breaches the conditions of bail, and it is not the case here.”

   9. The case of SZTQS has been similarly distinguished by reference to SZTAP in a recent decision of this Honourable Court: BNK15 v Minister for Immigration & Anor [2015] FCCA 3349 (14 December 2015) at [17] (see also BEV15 v Minister for Immigration & Anor [2015] FCCA 3205 (2 December 2015) at [25]).

   Application to the present case

   10. The present case is more analogous to SZTAP and the cases that have followed than the specific factual matrix that arose in SZTQS:

   (a) the relevant factual circumstances which gave the issue of surety prominence in SZTQS do not arise in the present case. Specifically, there was no evidence before the Tribunal in the present case that a family member of the applicant had previously been required to pay money for bail, or that the applicant faced outstanding charges based upon any previous charge for attempting to leave the country illegally;

   (b) as in SZTAP and ACC15, there was no suggestion that surety required the payment of money. To the contrary, [73] of the Tribunal's decision indicated that no payment would be necessary;

   (c) the Tribunal’s finding at [131] was to the effect that it was satisfied that the applicant would be granted bail. The Tribunal made no finding about the need for a surety or for payment in respect of bail. It follows that the availability of a family member to provide a surety to the applicant was not a “determinative factor” in the Tribunal's reasoning. The comment at [73] that “a family member” was required “to stand as guarantor” simply formed part of the Tribunal's consideration on the relevant country information, and was not imported into its finding that the period in remand awaiting bail would be limited.

   11. Further, and as previously submitted on behalf of the Minister, the applicant raised the issue of bail and was aware of the issue of bail because:

   (i) the applicant referred, at paragraph [113] of his written submissions, to the fact that the applicant would have a bail hearing upon his return and relied on country information that referred to bail being given (CB 190);

   (ii) the applicant referred to bail at paragraph [124] of his written submission, quoting country information that suggested that bail may be problematic where funds were not available meet bail requirements (CB 195); and

   (iii) the applicant in a supplementary written submission, referring to matters put to the applicant during the hearing about being given bail, was given the opportunity to respond to the question of bail.

   (b) In light of the matters referred to in (c) above, the claimant could not have been in a position where he was entitled to assume that any claim to bail was not in issue.”

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  4 May 2016