SZVYF v Minister for Immigration & Border Protection

[2015] FCCA 1719

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYF v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1719

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal erred failing to consider whether the Sri Lankan Immigrants and Emigrants Act was a law of general application – whether the Refugee Review Tribunal failed to consider the conditions in which the applicant may be held on remand in Sri Lanka – whether Refugee Review Tribunal failed to consider whether the Sri Lankan Immigrants and Emigrants Act was adapted and appropriate for its purpose – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZQPA v Minister for Immigration & Anor [2012] FMCA 123
Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
WZAPN v Minister for Immigration and Border Protection (2014) FCA 947
Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22
SZTEQ v Minister for Immigration and Border Protection & Anor [2015] FCAFC 39
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19

Applicant: SZVYF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 4 of 2015

Judgment of: Judge Emmett

Hearing date: 22 June 2015

Date of Last Submission: 22 June 2015

Delivered at: Sydney

Delivered on: 22 June 2015

REPRESENTATION

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

Solicitor for the Respondents: Mr Andras Markus
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4 of 2015

SZVYF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

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 (“the RRT”), dated 4 December 2014 and handed down on 5 December 2015.

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 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. 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.”

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

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 of the Act 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 RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT 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).

Background and RRT Decision

1. The background to this matter and the RRT’s decision record are accurately summarised in the first respondent’s written submissions, filed on 16 June 2015. Those submissions are as follows:

   “Background

   2.The applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia on 24 June 2012 as an 'unauthorised boat arrival' (RD 170). He attended an Irregular Maritime Arrival Entry interview on 3 August 2012 when he claimed he left Sri Lanka because he was a Tamil and because 'people' came looking for him in December 2010 and tortured his brother and family (RD1-15).

   3.The applicant applied for a protection visa on 23 November 2012 (RD 16-71).

   4.Before the delegate the applicant claimed army officers would harass, arrest and interrogate him and other Tamils.

   5.The applicant claimed that in September 2010 he trapped and caught a Sinhalese 'Grease Man' who was then handed over to the police.

   6.In December 2010, the applicant claimed a white van came to his brother's house and 6 assailants broke into his brother's house and threatened to kill him.

   7.The same white van came to the applicant's house that night but the applicant had left.

   8.One of the assailants was identified as Manjula - a 'thug' for the District Minister Olitha. The applicant and his brother reported the attack to the police. A settlement was later reached following which the problems with Manjula stopped. However, a month later visits from the white van resumed and threats were made to the applicant's wife and father.

   9.Following the interview with the delegate, the applicant's representative provided short submissions and a statement from M Kingslylal Fernando, the United National Party (UNP) organiser for the applicant's electorate stating that the applicant and his brother were supporters and rural organisers for the UNP and as a consequence had many enemies (RD 72-77).

   10.A delegate of the first respondent refused the application on 15 August 2013, finding the applicant's testimony to be lacking in credibility (RD 78-114).

   11.On 29 August 2013, the applicant applied to the Tribunal for review of the delegate's decision (115-121).

   12.The applicant's representatives provided submissions claiming that the applicant feared persecution for reason of one or more of the following Refugee grounds:

   a) his race - being a Sri Lankan Tamil;

   b) his political opinion - being imputed with a pro-LTTE political opinion;

   c) his political opinion - being imputed with an anti-government political opinion.

   13.The applicant also claimed State protection would not be provided to him against these harms (RD 142).

   14.The applicant attended a hearing before the Tribunal on 24 November 2014 (RD 150), following which the applicant's representative provided further submissions (RD 154-163). At the hearing the applicant indicated he did not have any fear because he had left Sri Lanka illegally. However his representative submitted that this was not the applicant's 'primary fear' but one she would address in later submissions. However, no submissions were put in support of this contention.

   15.In the post-hearing submissions, the applicant’s representative responded to the Tribunal's concern regarding new claims made by the applicant at the hearing and his failure to mention other matters. The representative claimed the applicant had consistently claimed that:

   a) as a Tamil he was targeted by the Sri Lankan Army including being arrested, detained and physically harmed;

   b) he felt strongly against what he saw of Sinhalese 'Grease Men' who had connections with the police or army;

   c) he did what he could to protect the village community including opposing local district Minister Perrera;

   d) on 23 December 2010 a group of men broke into his brother's house looking for the applicant and intimidated his brother's family;

   e) the applicant is now known to the authorities in Puttalam and expects a denial of fair treatment.

   16.The representative confirmed that the applicant's father was involved in the UNP and his brother was a member, that the applicant was a member, supported the ideals of the UNP and helped when required.

   Tribunal decision

   17.On 4 December 2014, the Tribunal affirmed the delegate’s decision (RD 169-190).

   18.The Tribunal did not accept the applicant was a truthful witness and considered he had fabricated the majority of his claims regarding his past experiences. The Tribunal did not accept the applicant genuinely feared harm upon his return to Sri Lanka.

   19.The Tribunal accepted that Grease Men were in the applicant’s area in 2010 but did not accept he had given truthful evidence of his involvement with the Grease Men or men in ‘white vans’. The Tribunal noted the applicant’s claims made during the hearing were very different from those in his statutory declaration. New evidence presented included the killing of his uncle and that he was sought by Minister Perrera. The Tribunal also noted that the applicant failed to mention Manjula and Minister Olitha who he had previously indicated was the Minister who was seeking to harm him.

   20.The Tribunals summarised the applicant’s post-hearing submissions and the reasons for what the Tribunal described as the inconsistencies and problematic nature of the applicant’s evidence: (RD 178-180 [30]-[34]).

   21.The Tribunal did not accept the applicant’s explanation for the inconsistent nature of his evidence and the difference between the claims made in his statutory declaration and his oral claims. The Tribunal considered these differences were due to the fact the applicant had manufactured his claims regarding the Grease men and being sought by Minister Perrera because of his involvement in opposing him: (RD 180-182 [35]-[40]).

   22.The Tribunal accepted the applicant was harassed in 2000 as a young Tamil man and was arrested briefly in 2001. However the Tribunal did not accept the incident in 2001 was due to the influence of the Minister. The Tribunal did not accept the applicant was considered to be an LTTE sympathiser or supporter after that time and did not accept any of his claims relating to more recent incidents in 2010 and did not accept the applicant had any adverse political profile when he left Sri Lanka in 2012: (RD 182 [42]).

   23.The Tribunal next considered whether the applicant would be harmed upon return to Sri Lanka because he left illegally, is a Tamil from the North Western Province and had sought asylum in a Western country: (RD 183 [43]).

   24.The Tribunal took into account relevant country information in finding that the applicant would not be at risk of serious harm on the basis of his ethnicity alone. For the reasons set out, the Tribunal was not satisfied, given the applicant’s particular circumstances, that he had any adverse political profile such that there was a real chance he would suffer serious harm for reason of his actual or imputed political opinion: (RD 184-185 [47]).

   25.The Tribunal then referred to country information and the tightened procedures adopted in 2012 with regard to returnees believed to have left the country in breach of immigration laws. The Tribunal noted such persons were arrested at the airport, brought before a court and granted bail. The Tribunal noted that if the arrival occurs over a weekend or on a public holiday the returnee would be placed in the remand section of the prison until a bail hearing was available.

   26.The Tribunal found the most likely penalty would be a fine and was not satisfied the applicant would suffer imprisonment or that he would be subjected to penalties other than a fine. Nor did the Tribunal consider the fine imposed could be reasonably seen as constituting serious harm: (RD 185-186 [50]-[51]). If held on remand, the Tribunal found the evidence did not establish that the applicant would be ‘singled out or treated any differently’ because he was a Tamil and that the ‘cramped and uncomfortable conditions’ applied to persons in remand generally. Further the Tribunal found the available evidence did not establish that returnees are subject to mistreatment whilst on remand. The Tribunal concluded it was not satisfied there was a real chance the applicant would suffer serious harm because he was a Tamil, a failed asylum-seeker or because he left Sri Lanka illegally: (RD 186-187 [52]).

   27.The Tribunal was also not satisfied that the conditions to be experienced if held on remand were such as to constitute significant harm as contemplated by s 36(2A) of the Migration Act 1958 (the Act): (RD 187 [55]).

   28.For the above reasons, the Tribunal concluded the applicant did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act.”

The proceeding before this Court

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

2. On 26 March 2015, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application and any further evidence by way of affidavit by 14 May 2015. The applicant was further directed to file and serve written submissions 14 days before the hearing.

3. The matter was set down for final hearing before me today.

4. On 11 June 2015, the applicant filed an affidavit annexing a transcript of the RRT hearing. That transcript was objected to by the solicitor for the first respondent, Mr Markus, on the grounds of relevance. I invited the applicant to identify to the Court the issue, complaint, or ground to which the transcript may be relevant. The applicant was unable to identify any such issue and, for that reason, the affidavit was rejected.

5. The applicant sought to adjourn the hearing of today’s matter on the ground that he wished to have some more time to think about his position. That application was opposed by the solicitor for the first respondent. Given that the applicant has had since 26 March 2015 to file and serve documents in support of his application to “think about” his case and seeking legal advice, and the lack of specificity in the reason for the adjournment, the application for adjournment was refused. I note the applicant was provided with the contact details of legal service providers and translator and translation services at the directions hearing before the Registrar.

6. The applicant confirmed that he relied on the grounds of his initiating application, filed on 2 January 2015. Those grounds are as follows:

   “1. The Tribunal considered the wrong issue and thereby made a legal error.

   Particulars

   a.   At paragraphs 43 and 48 the Tribunal accepted that the applicant departed Sri Lanka illegally;

   b.   The Tribunal correctly identified the applicant's claim at paragraph 48 as:

   i."Whether there is a real chance that the applicant, as a Tamil from the North Western province who is returning from the West as a failed asylum seeker without documentation will face serious harm upon his return to Sri Lanka?" ;

   c.   At paragraph 51 the Tribunal made the findings that:

   i."The Tribunal is not satisfied there is a real  chance that the applicant would suffer imprisonment or that he would be subjected to penalties  other than a fine for  departing illegally" and

   ii."Nor is the Tribunal satisfied that the scale of the fine imposed could reasonably be seen as constituting serious   arm".

   d.   The Tribunal erred in considering the outcome of the process of being prosecuted under the Sri Lankan Immigrants and Emigrants Act, imprisonment and/or fine, instead of assessing whether there was a real chance that the applicant would face persecution (SZQPA v MIBP [2012] FMCA 123 & MIAC v SZQPA [2012] FCA 1025.

   2.   The Tribunal asked itself the wrong question and thereby made a legal error.

   Particulars

   a.   At paragraph 52 the Tribunal accepted that;

   “...the applicant will be questioned at the airport and he may be held for a limited period in remand whilst waiting bail, in conditions that can be poor due to overcrowding";

   and

   b.   The Tribunal overlooked the s91R(l)(b) of the Migration Act 1958 (Cth) as whether this constituted a threat to the applicant's life or liberty (WZAPN v MIBP [2014] FCA 947).

   3.    The Tribunal failed to consider whether the Sri Lankan Immigrants and Emigrants Act is adapted and appropriate for its purpose of deterring Sri Lankans from departing Sri Lanka illegally or whether it is punishment for an imputed anti-government opinion (Chen Shi Hai v MIMA [2000] HCA 19, 201 CLR 293; 170 ALR 553; 74 ALJR 775).”

7. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of those grounds. The applicant had nothing of relevance to say in support of any of the grounds, save to say in support of Ground 2 that his submission was true.

   Ground 1

8. Ground 1 asserts that the RRT considered a wrong issue and thereby made a legal error. That assertion is supported by particulars identifying particular findings of the RRT and contending that the RRT erred in considering the outcome of the process of being prosecuted under the Sri Lankan “Immigrants and Emigrants Act”, imprisonment and/or fine instead of assessing whether there is a real chance that the applicant would face persecution.

1. In support of Ground 1, the particulars referred to SZQPA v Minister for Immigration & Anor [2012] FMCA 123 (“SZQPA”) and Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025. In SZQPA at [29], Driver FM found that the RRT had erred by focusing on the “likely outcome of the possible detention and interrogation” upon return to Sri Lanka and whether the applicant in that case would be able to persuade authorities that he was not a Liberation Tigers of Tamil Eelam (“LTTE”) member or supporter. Driver FM stated that the RRT should have considered the “process of interrogation to which he would be subjected and the risk that he might suffer serious harm”. An appeal from that decision was dismissed in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025.

2. However, the matter before this Court is distinguishable from SZQPA in that the RRT in this case did not accept that the applicant would be suspected of LTTE links or opposing the government. The RRT’s decision record makes clear that the RRT considered in some detail the processes which the applicant may experience upon his return.

3. The RRT did not accept that the applicant would be persecuted upon his return because of any perceived or actual link with the LTTE, or any perception that he opposed the government or individual members of the government in any way.

4. The RRT accepted that the authorities may know that the applicant is a failed asylum seeker from a western country but was ultimately not satisfied that this would result in the applicant suffering serious harm upon his return.

5. The RRT accepted that the applicant departed Sri Lanka unlawfully and also noted that the applicant did not claim that he would have problems upon his re-entry to Sri Lanka but that the problems he would face would arise upon his return to his village. The RRT went on to consider in some detail the evidence in relation to returnees and failed asylum seekers, both at the airport and after that time.

6. The RRT identified its consideration as being whether there was a real chance that the applicant, as a Tamil from the North Western Province who is returning from the West as a failed asylum seeker without documentation, would face serious harm upon his return to Sri Lanka. The RRT referred to particular country information that it identified with specificity. The RRT found that country information before it indicated that the most likely penalty for leaving Sri Lanka illegally would be a fine unless the person was considered to be an organiser of people smuggling.

7. The RRT was not satisfied that, were the applicant to return to Sri Lanka, there was a real chance that the applicant would suffer imprisonment or that he would be subjected to penalties, other than a fine for departing illegally. Further, the RRT was not satisfied that the scale of the fine imposed could reasonably be seen as constituting serious harm. The RRT found there was no evidence to suggest that the applicant would be suspected of people smuggling or was on any watch list.

8. The RRT accepted that the applicant would be questioned at the airport and may be held for a limited period in remand whilst awaiting bail in conditions that can be poor due to overcrowding. The RRT found the applicant would not be singled out or treated differently if he was placed in remand for a short period because he is a Tamil, or that he would be imputed with any political opinion as a failed asylum seeker or for any other Convention reason.

9. The RRT considered that cramped and uncomfortable conditions apply generally to persons in remand in Sri Lanka. The RRT relied on independent evidence that indicated that the applicant would not be subject to a custodial sentence and found that the prospect of him being detained for a prolonged period of time as a penalty for illegal departure was remote.

10. Ultimately, the RRT concluded that the applicant did not satisfy the criteria under either the Refugee Convention or complementary protection and, accordingly, affirmed the decision under review.

11. In reaching these conclusions the RRT made adverse credibility findings in respect of the applicant. The RRT’s decision record discloses a summary of various exchanges that the RRT had with the applicant in some detail, and identifies particular matters of concern that the RRT put to the applicant for comment and noted the applicant's explanations.

12. Ultimately, the RRT was not satisfied by the applicant's explanations. The RRT rejected the applicant's claims of any past harm, as claimed, though did accept that the applicant was harassed in 2000 as a young Tamil man and arrested briefly in 2001 when studying in Colombo.

13. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. 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).

14. The RRT’s reasons made clear that it considered whether the applicant would suffer imprisonment or be subjected to penalties, other than a fine for departing illegally, in the course of considering whether there was a real chance that the applicant, as a Tamil from the North Western Province returning from the West as a failed asylum seeker without documentation, would face serious harm upon his return to Sri Lanka.

15. In the circumstances, Ground 1 is not made out.

    Ground 2

16. Ground 2 asserts that the RRT asked itself the wrong question and thereby made a legal error. The particulars in support of Ground 2 refer to WZAPN v Minister for Immigration and Border Protection (2014) FCA 947 (“WZAPN”). The particulars in support of Ground 2 also refer to the RRT’s consideration of the possibility that the applicant might be held on remand in Sri Lanka and whether this would constitute a threat to the applicant's life or liberty.

17. To the extent that the applicant relies on WZAPN, on 17 June 2015, the High Court of Australia in Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22 confirmed the Full Court of the Federal Court of Australia finding in SZTEQ v Minister for Immigration and Border Protection & Anor [2015] FCAFC 39, that s.91R(2)(a) of the Act should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purpose of s.91R(1)(b) and Article 1A(2).

18. The RRT clearly considered the conditions in which the applicant may be held in remand and, as stated above, considered that the crammed and uncomfortable conditions apply to persons in remand generally and that there was no evidence before it to establish that returnees are subject to mistreatment whilst in remand, despite there being evidence of some thousands of returnees.

19. As stated above, the RRT found that the applicant was not likely to be subjected to imprisonment as a penalty and that the likely penalty was a fine for departing illegally. Having found that the applicant may be detained for a brief period on remand and may pay a fine, the RRT also found that the amount generally imposed was not an amount which it would consider serious harm. These findings were open to the RRT on the evidence and material before it and for the reasons it gave.

20. Accordingly, Ground 2 is not made out.

    Ground 3

21. Ground 3 asserts that the RRT failed to consider whether the Sri Lankan “Immigrants and Emigrants Act” is adapted and appropriate for its purpose of deterring Sri Lankans from departing Sri Lanka illegally and whether it is punishment for an imputed anti-government opinion. In support, the applicant's grounds refer to Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19 at 19, as follows:

    “19. Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, "black children", as distinct from children generally - cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.”

22. The RRT made no express finding regarding a law of general application. In the circumstances, there was no obligation on the RRT to consider whether any such law is appropriate (Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22 at 77).

23. Accordingly, Ground 3 is misconceived and is not made out.

24. Otherwise, a fair reading of the RRT’s decision record makes clear that the RRT 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.

25. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant's responses. The RRT identified country information to which it had regard. The RRT then made findings based on the evidence and material before it, which were open to it on the evidence and material before it and for the reasons it gave.

26. The RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

27. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

28. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere with the decision under review and the proceeding before this Court commenced by way of application filed on 2 January 2015 should be dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 13 July 2015