SZVJT v Minister for Immigration & Border Protection
[2015] FCCA 1481
•2 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVJT v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1481 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| 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 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 SZLSP [2010] FCAFC 108; (2010) 187 FCR 363 SZRRN v Minister for Immigration and Citizenship [2014] FCA 77 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196, (2001) 113 FCR 396 Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 |
| Applicant: | SZVJT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3005 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 2 June 2015 |
| Date of Last Submission: | 2 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2015 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter in the Mandarin language. |
| Solicitors for the Respondents: | Ms Ada Wong (DLA Piper) |
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 3005 of 2014
| SZVJT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 29 October 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 3 October 2014 (“the RRT”).
On 5 March 2015, the applicant attended a directions hearing before a Registrar of this Court.
The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. 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 by 26 May 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 26 May 2015.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
The applicant confirmed to the Court that he had not filed any further documents in accordance with those directions. However, on 24 February 2015, the applicant filed a document that appears to be a letter to the Court annexing another document headed “Court Ruling of Civil Litigation”. The applicant confirmed the document filed on 24 February 2015 was not provided to the RRT for its consideration.
I explained to the applicant that the single issue before this Court is whether or not the decision of the RRT is affected by mistake that goes to its jurisdiction. I explained to the applicant that it cannot be an error going to the RRT jurisdiction for it to fail to consider documents that the applicant did not give to it. The tender of the document was objected to by the solicitor for the first respondent on the grounds of relevance and rejected on that basis.
The applicant then confirmed that he relied on the grounds identified in his application for judicial review filed on 29 October 2014, under the heading “Orders Sought by Applicant”. The ‘Grounds of the Application’ were no more than a restatement of the applicant’s claims. The grounds upon which the applicant relied are as follows:
“1. I cannot accept DIBP and RRT's decisions because I don't think my real circumstance have been carefully and prudently taken into account. The decision made by RRT lack of fairness and comprehensiveness in particular in 44- 47 on page 10 of the decision.
2. RRT's decision shows unclear reason why and how my statements and explanation given come with significant conflicts against relevant independent information. I don't think I have changed my claims in hearing but giving more comprehensive and clear answers to the questions asked.
3. RRT's decision on denial my religious belief based on testing my biblical knowledge is improper and unrealistic and this is against Local Church character and specialty in multiple sharing spiritual experiences on recovery bible reading in congregation (item 51 on page 11 of decision).
4. RRT’s decision to denial the reason for my safety departure from China with my real name on passport is improper and wrongly interpreted as the incident occurred on me was on the way of my voyage to Australia instead of prior to my departure from China.
5. RRT failed to properly consider for my marine crew identity in my case in which I am innocent to be labelled a "fabrication of claim".
6. RRT failed to take a good consideration in my commitment of religion, biased my background and actual practice of Christian in China and Australia (item 52 on page 11 of decision).
7. RRT's comments and judgment on my church practice and commitment are totally distorted. The reference letter provided by Local Church in Australia has been unfairly treated and misinterpreted as it is church usual practice to issue a standard reference letter but will definitely welcome any investigation or enquiries such baptism, mementos of such significance from parties concerned if there is such need to do so. However, tribunal failed to take any positive action in the process which they are obliged to undertake accordingly by hearing code. And I have been lately contacted with refused decision after an extreme extension for over a year after hearing and this is improper, bureaucratic and hard to accept. I have a reason to doubt about why I should not be given a chance to comment on the significant outstanding questions in the refused letter before handing out decision.”
Each of the grounds was interpreted for the applicant, and the applicant was invited to make submissions in support of each of the grounds as each was interpreted. The applicant declined to make any submission in support of any of the grounds.
The first respondent, in written submissions, summarised the background of the applicants’ claims and the RRT’s decision, as follows:
“Background
4. The applicant is a male citizen of China who first arrived in Australia on 14 May 2011 holding a subclass 988 Maritime Crew Visa, which was valid until 23 March 2012. The applicant departed Australia on 1 June 2011 before returning on 17 March 2012. The applicant deserted ship while on shore leave, on 22 March 2012.
5. The applicant applied for a Protection (Class XA) visa on 30 May 2012. The applicant's claims were set out in a statement accompanying the application.
5.1. The applicant claimed to fear harm by the Chinese government because he was a member of the Local Church. The applicant claimed to have engaged a lawyer to challenge the local government's blackmail of his church. He claimed that the lawyer was imprisoned by police. The applicant posted the details of that arrest in a blog, which was later shut down and the applicant was put under police investigation.
5.2. Between August and October 2011, the applicant stayed at home for almost 60 days. On the day that the applicant was scheduled to be baptised, undercover policemen arrested the applicant and several others at the gathering. The applicant was fined, warned and spent a day in detention. The applicant was fined, warned and spent a day in detention. The applicant's wife “posted” the applicant's story on a “micro blog” which “led to troubles”.
5.3. The applicant claimed that his family were being harassed by the “the committee” and that they are under surveillance.
6. A delegate of the first respondent refused the application on 6 September 2012. The applicant applied to the RRT for review of the delegate’s decision on 3 October 2012, providing a copy of the delegate’s decision record. The applicant gave oral evidence before the RRT on 13 June 2013 and provided a letter from the Local Church in Sydney, to the RRT. The RRT made its decision on 3 October 2014.
The RRT’s reasons for decision
7. The RRT held that the applicant had fabricated his claims to have been a Christian in China and to have experienced harm prior to his departure. The RRT relied in so finding on matters including the paucity of the applicant's knowledge of the Bible used by the Local Church, as demonstrated by the applicant to the delegate (at [51]). The RRT rejected the applicant's claims concerning events in China in their entirety as having been fabricated (at [43]). The RRT further placed weight upon the applicant's delay in applying for protection (at [45]), the significant conflicts in the applicant's evidence as against the country information and the marked changes in the applicant's claims as presented to the RRT (at [46]).
8. The RRT accepted that the applicant attended the Local Church in Sydney (at [50]), but held that the applicant had engaged in that conduct for reasons solely to strengthen his protection claims (at [53]).
9. The RRT was not satisfied that the applicant satisfied the criterion set out in section 36(2)(a) or section 36(2)(aa) of the Act.”
In Ground 1, the applicant asserts that the RRT’s decision lacked “fairness and comprehensiveness”, and that his real circumstances were not carefully and prudently taken into account.
The applicant refers to paragraphs 44 to 47 of the RRT’s decision record in support of that contention. Those paragraphs relate to the findings by the RRT that the applicant had fabricated the claims that he made for protection in order to remain in Australia and are as follows:
“44. I am satisfied that the applicant has fabricated these claims in order to remain in Australia.
45. When the applicant attended the hearing before me, I put to him that there were a number of aspects of his claims as presented, and in the context of other information from independent sources, which raised doubts in my mind about whether his claims were true and which might lead me to conclude that he had fabricated his claims. I put to him that the delay which attended seeking protection, and transiting other countries prior to doing so, cast doubt on the genuineness of his claimed fear of return to China. I have set out those concerns above, in my recitation of the evidence at the hearing, and I have set out the applicant's responses.
46. The applicant's responses to these matters did not persuade me to set those concerns aside. The applicant's explanations for the significant conflicts in his evidence as against the relevant independent information, and the marked changes in his claims as presented to me, having been refused a protection visa by the delegate on the claims made in his protection visa application and written statement, did not satisfy me that he was telling the truth. I am satisfied that the applicant was shaping his evidence in order to take account of the ways in which his previous claims conflicted with the independent information or were otherwise illogical or not consistent with the chronology as presented to the delegate.
47. In the absence of any material which might corroborate the applicant's claims to have been a Christian in China prior to his last departure, to have been detained for that reason, and that his wife continues to experience adverse attention, and given that his evidence conflicts with the iI1dependent information, together with the applicant's delay in seeking protection in Australia, I find that the applicant was not in China a Christian and that he was not, therefore, detained or otherwise harmed by reason of a religious belief or religious activities. I am satisfied that the reason why the applicant was able to depart from China on a passport in his own name is because he was not of any adverse interest to the Chinese authorities at the time that he left or at any time previously.”
The paragraphs referred to provide the reasons for the basis for that finding, and the comprehensive rejection by the RRT of the applicant’s claims on credibility grounds. Those reasons include conflicts between the applicant’s claims and country information, the applicant’s delay in seeking protection and the absence of material to corroborate the applicant’s factual claims. The RRT’s findings contained in those paragraphs would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. It is well established that credibility findings are a matter par excellence for the RRT (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 RRT] 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).
The RRT’s decision record does not support the applicant’s allegation that his circumstances were not carefully and prudently taken into account or that there was any lack of fairness or comprehensiveness by the RRT in considering his claims. The decision record provides in significant detail the exchanges that it had with the applicant about his evidence, and various concerns that it had about that evidence which it put to the applicant. The RRT decision record notes the applicant’s responses and explanations to the concerns put to him by the RRT. The decision record also identifies with particularity the country information to which the RRT had regard in considering the applicant’s claims.
Ground 2 asserts that the RRT’s decision shows an unclear reason why the RRT found that there were significant conflicts with independent country information. That complaint does no more than cavil with the merits of the RRT’s findings, thereby inviting merits review, which this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; 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 RRT set out the country information before it, which showed that persons of adverse interest to police in China would have difficulties obtaining a passport and departing China, neither of which the applicant encountered.
In Ground 3, the applicant asserts that the RRT’s testing of the applicant’s religious knowledge was improper and unrealistic, and refers to paragraph 51 of the RRT’s decision record in support of that complaint, as follows:
“51. I have already found that the applicant was not a Christian in China, for the reasons given above. I am buttressed in that finding by the paucity of knowledge demonstrated by the applicant to the delegate of his knowledge of the Bible used by the Local Church.”
The RRT’s decision record discloses in some detail exchanges that it had with the applicant about his understanding about his experiences as a member of an underground local church in China. It does not appear that the RRT engaged in any detailed or any impermissible testing of the applicant’s religious knowledge, in the sense of setting itself up as the arbiter of religious knowledge (see Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 363).
To the extent that the RRT referred to or relied or made findings that had regard to the applicant’s oral evidence to the delegate, there is no error in the RRT in doing so (see SZRRN v Minister for Immigration and Citizenship [2014] FCA 77). Moreover, the RRT’s decision record makes clear that the RRT conducted its own review of the applicant’s claims and did not simply rely on the findings of the delegate, as opposed to having regard to evidence given by the applicant to the delegate.
Again, it would appear the RRT’s findings in relation to the applicant’s lack of religious belief would appear to be open to it on the evidence and material before it, and for the reasons it gave.
In Ground 4 the applicant asserts that the RRT improperly and wrongly interpreted the applicant’s departure from China on a passport in his real name as an incident occurring on his way to Australia instead of prior to his departure from China. I don’t pretend to fully understand the nature of the complaint made by the applicant in that ground, however, the applicant declined to make any further submission in support of that ground.
In the circumstances, I accept the first respondent’s understanding of the complaint in that ground, which is that the RRT wrongly interpreted the applicant’s safe departure from China, stating that the reason that he was able to safely depart was because the “incident” occurred during his voyage to Australia instead of prior to his departure from China.
The applicant’s reasons for his safe departure from China were put before the RRT and were properly understood. The RRT put to the applicant independent information that persons of adverse interest to the police in China would have difficulties obtaining a passport and departing China, as follows:
“30. I put to the applicant the independent information available to me1 that persons of adverse interest to the police in China would have difficulties obtaining a passport and departing China. I noted that he claimed to have been of adverse interest to the authorities since 2009, that he obtained a passport in June 2010 and in his protection visa application he states that he did so without any difficulty. I put to the applicant that these Circumstances, in the context of the independent information, might suggest that he was not of any adverse interest to the Chinese authorities at the time he left China on the last occasion, on 27 October 2011. The applicant's response was not to the issue, saying that they abuse their powers and they hit people and put them in gaol so of course they have to appeal and publicise this abuse. Asked if he wished to respond to the independent information, the applicant said that the blogs were posted after he left China and that those blogs appeared to be anti-government so that is why the government is so interested in him now.”
The RRT noted that the applicant claimed to have been of adverse interest to the authorities since 2009 yet he obtained a passport in June 2010 and that in his protection visa application, he stated that he did so without difficulty. The RRT noted that it put those circumstances to the applicant in the context of the independent information and indicated that such conduct may suggest that the applicant was not of adverse interest to the Chinese authorities at the time he last left China on 27 October 2011. The RRT noted the applicant’s response. Ultimately, at stated above, the RRT found the applicant had fabricated his claims of past harm in China and to have been a Christian in China in order to remain in Australia.
Part of the reasons for the adverse credibility findings would appear to be the ability of the applicant to have departed China on a passport in his own name that he had no difficulty obtaining in circumstances, where independent information suggested that persons of adverse interest would not be able to do so.
Otherwise, Ground 4 appears to simply be a disagreement with the ultimate conclusions of the RRT. Again, thereby inviting merits review.
Ground 5 asserts that the RRT failed to properly consider the applicant’s marine crew identity and appears to cavil with the RRT’s ultimate conclusion that the applicant had fabricated his claims. Neither complaint in ground 5 would appear to demonstrate any jurisdictional error on the part of the RRT. The RRT decision record makes clear that it understood that the applicant had travelled to Australia on a maritime crew non-military ship visa.
As stated above, the RRT’s comprehensive rejection of the applicant’s claims would appear to be open to it on the evidence and material before it and for the reasons it gave.
In Ground 6, the applicant asserts that the RRT failed to take good consideration of his commitment to religion and biased his background and actual practice of being a Christian in China and Australia.
It is not clear to me whether the applicant is making an allegation that the RRT was biased in relation to its consideration of the applicant’s Christianity in China and Australia. The applicant referred to paragraph 52 in support of ground 6, which was as follows:
“52. The letter provided by the applicant was the only support for his claim to be a genuine member of the Local Church congregation in Sydney, and I accept that he has, as the letter says, “met regularly'' with that church. However, in light of the applicant's poor familiarly with the Local Church Bible, which is the core of Local Church worship, this letter is not sufficient-to persuade me that the applicant is genuinely committed to his claimed religious belief. I note also that the applicant did not provide any witnesses, either in person at the hearing or by written testimonial, from his religious community to attest to his religious commitment or involvement. Neither did the applicant provide any support for his claim to have been baptised into the Local Church in Sydney, such as by a certificate of baptism or photographs or mementoes of an occasion of such significance, and the Jetter from the Local Church makes no mention of having been baptised. Finally, I note that the applicant did not attend the Local Church in Sydney for the first two months after his most recent arrival in Australia, and there is no evidence he attended at all on his previous trip to Australia (14 May to 1 June 2011 ). The timing of the applicant's attendance at the Local Church in Sydney, commencing in the same month in which he lodged his protection visa application, also casts doubt on the motive for the applicant attending that church.”
Paragraph 52 refers to a letter provided by the applicant in support of his claim to be a genuine member of a local church congregation in Sydney. The RRT accepted that the applicant regularly attended that church. However, in light of the applicant’s poor familiarity with the local church Bible, the letter was not sufficient to persuade the RRT that the applicant was genuinely committed to his religious beliefs.
The RRT also noted that there was no other evidence to support the applicant’s commitment to Christianity. Whilst the RRT accepted that the applicant attended at the local church in Sydney, the RRT did not accept that he did so because he was genuinely committed to Christianity. The RRT was not satisfied that the applicant engaged in that conduct otherwise than for the purpose of strengthening his protection claims. Accordingly, in accordance with s.91R(3) of the Migration Act 1958 (Cth), the RRT disregarded that conduct in determining whether the applicant had a well-founded fear of persecution for a Convention reason.
Again, those findings would appear to be open to the RRT on the evidence material before it and for the reasons it gave.
To the extent that the applicant may be asserting in Ground 6 that the RRT was biased against him, it would appear that the basis for that allegation is that the RRT did not accept that the applicant was a Christian, either in China or in Australia.
A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (See Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the RRT’s decision does not appear to suggest that the RRT approached its task other than with a mind open to persuasion. There does not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Again, Ground 6 appears to be no more than a disagreement with the adverse findings and conclusions of the RRT, which, as stated above, would appear to be open to it on the evidence and material before it and for the reasons it gave.
Ground 7 appears to be a complaint by the applicant that the RRT could have investigated or made further inquiries from the local church in Australia about the applicant’s Christianity, including any baptism; that the RRT erred in failing to take any positive action to do so; and that the applicant was not given a chance to comment on the significant outstanding questions that the RRT had before the RRT handed down its decision.
Again, it is well established that the role of the RRT is to review and not to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). There is no duty on the RRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
There are a limited number of circumstances in which the RRT may be obliged to do so (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, none of those circumstances would appear to arise in this case.
Further, there was no obligation on the RRT to give to the applicant its own thought processes and assessment of his evidence and credibility as a running commentary for comment (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592 per Northrop, Miles and French JJ; Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196, (2001) 113 FCR 396 at 428; Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [54]).
In the circumstances, the complaints in Ground 7 would not appear to identify any jurisdictional error on the part of the RRT and, again, do no more than reflect a disagreement with the RRT’s findings and conclusions.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 29 October 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 25 June 2015
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