WZAUY v Minister for Immigration

[2016] FCCA 2024

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2024

Catchwords:
MIGRATION – Judicial review – decision of former Refugee Review Tribunal to refuse Chinese citizen a protection visa – whether applicant denied procedural fairness – whether irrelevant considerations taken into account – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), pt.7, div.4, ss.5(1), 36(2)(a), (aa) & (c), 36(2A), 48A(1), 65, 422B, 424A, 424AA, 425(1), 474, 476, 499

Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Cases cited:
Craig v The State of South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; (1995) 82 A Crim R 359
Mahon v Air New Zealand Ltd & Ors [1984] AC 808; (1983) 50 ALR 193; [1983] NZLR 662; [1984] 3 WLR 884; [1984] 3 All ER 201; (1984) 128 SJ 752; (1983) 4 NZAR 33; (1984) 81 LSG 3336
Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412
Minister for Immigration & Multicultural Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Parker v Director of Public Prosecutions & Anor (1992) 28 NSWLR 282; (1992) 65 A Crim R 209
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re The Minister for Immigration &Ethnic Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Sami v Minister for Immigration & Citizenship [2013] FCAFC 128; (2013) 139 ALD 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1

Applicant: WZAUY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 354 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 30 April 2015

Date of Last Submission: 30 April 2015

Delivered at: Perth

Delivered on: 16 August 2016

REPRESENTATION

For the Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Mr B Dube

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. That the name of the second respondent be amended to “Administrative Appeals Tribunal”.

2. The application filed on 10 November 2014, as amended by an amended application filed on 3 March 2015, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 354 of 2014

WZAUY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Previous protection visa application

1. The applicant first lodged an application for a Protection (Class XA) visa on 10 July 2006: CB 1-28 (“Previous Protection Visa Application”). That application was refused by a delegate on 4 October 2006: CB 30, and that decision was affirmed by the former Refugee Review Tribunal on 23 January 2007 (“2007 RRT Decision”): CB 28-36.

2. As the Previous Protection Visa Application was lodged before the inclusion of s.36(2)(aa) into the Migration Act the Previous Protection Visa Application was assessed in accordance with the criteria in s.36(2)(a) of the Migration Act only.

The application for judicial review

1. This proceeding commenced on 10 November 2014 by the applicant filing an application (“Judicial Review Application”) seeking review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 10 October 2014. The Tribunal Decision is at Court Book (“CB”) 128-138. The Tribunal Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) under s.65 of the Migration Act 1958 (Cth) (“Migration Act”).

The present protection visa application

1. The applicant lodged the present application for a Protection Visa (“Present Protection Visa Application”) with the Tribunal on 11 April 2014: CB 37-68. In the Present Protection Visa Application, the applicant made the following claims:

   a)that he had left China because he was a member of 'Fa Run Gong' and that he had previously been detained for 14 days due to that membership: CB 54-55; and

   b)that if he was to return to China:

   i)he would be detained and tortured;

   ii)he would be unemployable and would be denied social welfare; and

   iii)as Fa Run Gong activities are illegal in China the authorities would not protect him: CB 56-57.

2. On 30 May 2014 the Delegate refused to grant the applicant a Protection Visa: CB 85-105.

3. On 26 June 2014 the applicant lodged a valid application with the Tribunal for review of the Delegate’s Decision: CB 107-113.

4. On 6 August 2014 the Tribunal invited the applicant to a hearing: CB 116-119 (“Tribunal Hearing”). The applicant attended the Tribunal Hearing on 11 September 2014, and with the assistance of an interpreter, gave evidence and presented arguments in support of the Present Protection Visa Application: CB 122-125.

5. On 10 October 2014 the Tribunal Decision affirmed the Delegate’s Decision refusing the applicant a Protection Visa: CB 128-138.

Tribunal Decision

1. As the Previous Protection Visa Application had resulted in the assessment of the applicant’s claims under s.36(2)(a) of the Migration Act the Tribunal confined its consideration of the Present Protection Visa Application to whether the applicant satisfied the requirements of ss.36(2)(aa) and (c) of the Migration Act: CB 129 at [5] and [6]. The Tribunal was correct to do so at that point in time having regard to the judgment of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 (“SZGIZ”) in which the Full Court of the Federal Court held that the proper effect of s.48A(1) of the Migration Act was that it did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa: SZGIZ at [32]-[33] and [47] per Allsop CJ, Buchanan and Griffiths JJ.

2. The Tribunal Decision:

   a)set out the relevant test for complementary protection pursuant to s.36(2)(aa) of the Migration Act, and noted the definition of “Significant harm” was exhaustively defined in s.36(2A), read with s.5(1), of the Migration Act: CB 130 at [8]-[9], and also noted the relevant exceptions to circumstances where there is not a real risk that an applicant will suffer significant harm in a country: CB 130 at [10]; and

   b)noted that there was a relevant ministerial direction made under s.499 of the Migration Act.

3. In relation to the applicant’s background and claims the Tribunal noted:

   a)the 2007 RRT Decision, and that the applicant’s subsequent bridging visa had ceased on 22 March 2007 and that he became an unlawful non-citizen in Australia thereafter, and that after being detained on 19 March 2014 the applicant submitted the Present Protection Visa Application: CB 130-131 at [12]; and

   b)summarised the applicant’s “core claims” as set out in the Present Protection Visa Application: CB 131 at [15], and see [4] above.

4. The Tribunal identified the issue as being whether with respect to the claims advanced the applicant was owed complementary protection under s.36(2)(aa) of the Migration Act, and indicated that it had considered that issue having regard to the evidence before it, and the definition of “Significant harm” in the Migration Act, and the attendant definitions in s.5 of the Migration Act, and the interpretation of “real risk” adopted by the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269: CB 131 at [16] and [18].

5. In the Tribunal Decision the Tribunal found, in relation to the applicant’s credibility, that the applicant had not been truthful in his claims for protection, and therefore it did not find him to be a credible witness based on cumulative concerns arising from:

   … inconsistencies, changes and contradictions in the applicant's written and oral evidence; his inability to provide convincing and credible explanations for aspects of his claims, gaps in his claims; and other concerns as discussed. The applicant was put on notice at the beginning of the hearing that there were concerns over the credibility of his claims. The Tribunal found the applicant’s overall testimony thoroughly unconvincing. His testimony appeared in the main to be rehearsed, vague and brief or convoluted and evasive. The Tribunal considers that the applicant’s oral evidence regarding the reasons why he left China was not believable.

   CB 132 at [21].

6. The Tribunal set out the applicant’s evidence given at the Tribunal Hearing, including the following:

   a)that he sought protection because if he returned to China now he would be put in prison in Shenyang: CB 132 at [22];

   b)that he was truly facing prosecution if he returned to China: CB 132 at [24];

   c)that he had never practised Falun Gong and his involvement was limited to distributing flyers: CB 132 at [24];

   d)that he cannot provide any evidence that he was abused in China and it is impossible for him to provide that evidence: CB 132 at [24];

   e)his child was planning to come to Australia to study but the child’s application was refused, and “nobody knows why”: CB 132 at [24];

   f)that the police had visited his wife and that they were “acting like wild dogs when they visited her”: CB 132 at [24];

   g)his wife has left her job because the police attended looking for him: CB 132 at [24];

   h)he has just found his passport and there was no stamp in his passport from Hong Kong to Australia, and his passport was not stamped in Australia and he does not know why: CB 132-133 at [26]; and

   i)in relation to the period between the final determination of the Previous Protection Visa Application and the making of the Present Protection Visa Application the applicant said:

   i)he could not remember if he had received advice concerning the final determination of the Previous Protection Visa Application;

   ii)he was living with a friend in Sydney whose mailing address he used;

   iii)he worked in Sydney for low wages and for long hours; and

   iv)that he had a representative but that his representative “dumped him”: CB 133 at [27].

7. In considering the applicant’s evidence the Tribunal found that:

   a)the applicant had the capacity to resolve his visa status at any time from the final determination of the Previous Protection Visa Application to the filing of the Present Protection Visa Application: CB 133 at [27];

   b)evidence in relation to the applicant’s activities in Australia was “vague”, and the Tribunal did not accept that the applicant had been involved with Falun Gong in Australia, attended any meeting, participated in any protest, held a banner in a parade, or that he had been involved in any other way with the Falun Gong in Australia: CB 133 at [30];

   c)due to the applicant's own admission and his inability to demonstrate any basic knowledge about its beliefs and practices, it could not accept that the applicant was a Falun Gong practitioner, and further did not accept that he ever assisted Falun Gong practitioners or provided them with refuge or that he was involved in any Falun Gong protests in China at all: CB 135 at [37];

   d)because of the inconsistent evidence provided by the applicant it did not accept that he was ever a Falun Gong practitioner, or was perceived to be a Falun Gong practitioner, or associated with Falun Gong practitioners. Accordingly the Tribunal did not accept that the applicant was ever detained as a result of any Falun Gong association or activity: CB 136 at [42], or for any other reason: CB 138 at [52];

   e)it did not accept, based on country information, that the applicant would not have been able to obtain a Chinese passport in 2004, and then depart China in 2006 if he was of adverse interest to Chinese authorities as claimed: CB 136-137 at [49];

   f)it did not accept that the Chinese authorities regularly visited his wife and family and asked about him, that the applicant was of adverse interest to the Chinese authorities, or that the authorities would be interested in him after his lengthy absence from China: CB 137 at [51]; and

   g)it did not accept that, if the applicant were to return to China, he would face any harm for any reason: CB 138 at [53].

8. The Tribunal found that:

   a)the applicant was not a genuine Falun Gong practitioner and, as a result, did not accept that the applicant would practice Falun Gong if he was returned to China, or be in any way associated with Falun Gong or assist any Falun Gong practitioners in any way: CB 138 at [54]; and

   b)it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to China, there was a real risk that he would suffer significant harm, and as such it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act.

9. In light of the findings made, the Tribunal affirmed the Delegate’s Decision to not grant the applicant a Protection Visa: CB 138 at [58].

An amended Judicial Review Application

1. In accordance with the orders of a Registrar of this Court made on 4 February 2015, the applicant filed an amended Judicial Review Application on 3 March 2015 (“Amended Judicial Review Application”).

2. The Amended Judicial Review Application raises the following grounds of review (transcribed verbatim from the original):

   1. The Second Respondent owns me nature justices in reaching the decision.

   Particulars

   On Paragraph 30 of the decision record, the second respondent state: 'the applicant's description of his involvement in the activities in 2011 was vague and sounded more like an observer rather than a participant."

   It further stated: "while the applicant stated he held a banner, it was more an afterthought rather than an accurate recall of his participation.

   The Second Respondent clearly demonstrated it does not believe I have attended  the FaLun Gong's Grand Christmas Parade in 2011.

   I have provided the details of my involvement in that particular, however, the second respondent with out if finding of fact concluded that my evidence as to my activities in Australia was vague.

   2. The Tribunal erred by finding as it denied me procedural fairness by take irrelevant consideration in its decision,

   Particulars

   By reading the Second Respondent's decision, I realised in the decision record, the second respondent has given a lot of weight to the decision of the first respondent.

   For instance, in paragraph 41, it stated: “according to the delegate's decision ...”.

   I had a Legitimate Expectation, that the Tribunal will have a fresh hearing for my case without taken any weight about the first respondent's finding.

   The Tribunal denial me "Natural Justice" during my hearing.

3. The applicant filed an affidavit sworn on 13 March 2015 (“Applicant’s March 2015 Affidavit”) in support of the Amended Judicial Review Application. The first seven paragraphs of that affidavit set out matters which are factual or uncontroversial. The Applicant’s March 2015 Affidavit from [8] to [19] consists, however, of assertions which are submissions on fact and law, and as such inappropriate to appear in an affidavit, and inadmissible as evidence, and therefore should be struck out of the Applicant’s March 2015 Affidavit. The applicant is not disadvantaged by the striking out of the above paragraphs of the Applicant’s March 2015 Affidavit because the content of those paragraphs is substantially similar to the particulars to the Amended Judicial Review Application, and, in any event, the applicant subsequently, on 13 April 2015, filed written submissions (“Applicant’s Written Submissions”) addressing the issues raised by the particulars, and which are the subject of the struck out paragraphs of the Applicant’s March 2015 Affidavit.

4. The Applicant’s Written Submissions are dealt with below in relation to each of the grounds of the Amended Judicial Review Application.

Consideration

Jurisdictional error required

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Craig v The State of South Australia (1995) 184 CLR 163; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; (1995) 82 A Crim R 359; CLR at 177 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).

Ground 1

1. Although ground 1 of the Amended Judicial Review Application refers to the Tribunal owing the applicant natural justice (or procedural fairness) in reaching the Tribunal Decision, the particulars to that ground all relate to the findings of credit and fact made by the Tribunal. The Court will therefore deal with both the findings on procedural fairness and on credit and fact.

2. The Applicant’s Written Submissions refer to the Privy Council’s judgment in Mahon v Air New Zealand Ltd & Ors [1984] AC 808; (1983) 50 ALR 193; [1983] NZLR 662; [1984] 3 WLR 884; [1984] 3 All ER 201; (1984) 128 SJ 752; (1983) 4 NZAR 33; (1984) 81 LSG 3336 and to a judgment of the New South Wales Court of Appeal in Park v Director of Public Prosecutions (which is actually Parker v Director of Public Prosecutions & Anor (1992) 28 NSWLR 282; (1992) 65 A Crim R 209). Those judgments are of no or limited assistance to the Court given that the procedural fairness requirements for judicial review of migration proceedings are set out in Division 4 of Part 7 of the Migration Act which, by reason of s.422B of the Migration Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412.

1. In this case the Tribunal:

   a)invited the applicant to attend the Tribunal Hearing to give evidence and present arguments: CB 118-119;

   b)the applicant attended the Tribunal Hearing, and was assisted by an interpreter: CB 122 and 129 at [2]; and

   c)in relation to the critical issue of credibility the Tribunal discussed it with, and gave the applicant an opportunity to respond to the Tribunal’s concerns about his credibility at the Tribunal Hearing: CB 131 at [20]-[21], and the applicant was otherwise plainly on notice that his credibility was likely to be the “determinative issue” on review by reason of the Delegate’s Decision.

2. As this was a case to which s.422B of the Migration Act applied, the applicant was entitled only to the rights afforded him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the applicant was invited to and attended, and gave evidence at the Tribunal Hearing, and had matters which concerned the Tribunal put to him for comment. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.

3. Findings as to credit are findings of fact par excellence and are for the Tribunal to make: Re The Minister for Immigration & Ethnic Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J. The Tribunal was under no obligation to uncritically accept all or any of the allegations made by the applicant, or to have rebutting evidence available to it before making a particular factual finding: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; Minister for Immigration & Multicultural Affairs, v Rajalingham & Ors [1999] FCA 719; (1999) 93 FCR 220; (1999). The weight to be given to the applicant's claims was a matter for the Tribunal to assess as part of its fact-finding function, and it is not a permissible request for the Court to review the Tribunal's factual findings concerning the applicant's claims and evidence: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”). The Tribunal did consider, but given its adverse credibility findings did not accept, the applicant's claims.

4. For the sake of completeness, the Court also notes that in respect of the Tribunal's obligations pursuant to s.424AA of the Migration Act (as no written invitation pursuant to s.424A of the Migration Act was sent to the applicant), 'information' for that purpose does not include the existence of doubts, inconsistencies or the absence of evidence: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, and that the Tribunal was therefore not obliged to put to the applicant the basis for its findings that it was not satisfied that his claims were genuine.

5. For all of the above reasons, ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.

Ground 2

1. It is trite law that the Tribunal Decision is not to be examined critically in search of error: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Sami v Minister for Immigration & Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [17] per Jagot, Barker and Perry JJ, and therefore particular or individual paragraphs of the Tribunal Decision ought not to be read and examined critically in isolation from the remainder, or the substance, of the Tribunal Decision.

2. In the Tribunal Decision it is clear that the Tribunal, in assessing the applicant's claims, referred to:

   a)the applicant's evidence to the Delegate (as noted in the Delegate’s Decision): CB 133-134 at [27]-[31] and CB 134 at [34]; CB 135-136 at [41]-[43]; CB 135 at [38];

   b)made a finding as to credibility which had regard to all of the information provided to it: CB 132 at [21];

   c)information provided directly to the Tribunal: CB 132-133 at [22]-[28]; CB 134-135 at [32]-[33]; CB 135-136 at [35]-[37]; CB 135 at [39]-[40]; CB 136-137 at [44]-[51];

   d)relevant country information: CB 136-137 at [49]-[51],

   and drew conclusions based upon its consideration of all of the information before the Tribunal (including the Delegate’s Decision which it was entitled to, and must, review): CB 138 at [52]-[57].

3. In the Court’s view:

   a)the Tribunal:

   i)considered afresh the material before it, and that material included, as it must if an applicant’s credit is to be assessed, the applicant's evidence to the Delegate as outlined in the Delegate’s Decision; and

   ii)gave proper consideration to each of the applicant’s claims, and gave intelligible reasons as to why those claims were not made out;

   b)the Tribunal’s consideration of both the applicant’s credit and claims make it clear that the Tribunal did refer to, but did not uncritically adopt, the findings of the Delegate in the Delegate’s Decision; and

   c)the Tribunal having considered the materials afresh, and given consideration to each of the applicant’s claims, and given intelligible reasons as to why those claims were not made out, arrived at a decision to affirm the Delegate’s Decision not to grant the applicant a Protection Visa which was a decision made properly in the proper exercise of the Tribunal’s discretion to consider the matter anew: CB 138 at [52]-[58].

4. In the above circumstances, ground 2 is not made out, and does not establish any jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. The Court has concluded that neither of the applicant’s grounds of review have been made out, and that there is no jurisdictional error in the Tribunal Decision. The Tribunal Decision is therefore a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.

2. The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.

3. The Court will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 16 August 2016