Yan v Minister for Immigration - [2016] FCCA 237

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 237

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether, for the grant of a partner visa pursuant to cl.100.221(4) of the Migration Regulations 1994 (Cth), the applicant was required to be in a “married relationship” as defined in s.5F of the Migration Act 1958 (Cth) with the sponsor at the time the claimed family violence occurred – whether the Administrative Appeals Tribunal erred in finding that the applicant and the sponsor were not in a married relationship at the time the claimed family violence occurred – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5F, 31, 65, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth) regs.1.15A, 1.22, 1.23, 2.01, Schedule 2 – cl.100.221
Migration Amendment Regulation 2007 (No.13) (Cth)
Migration Amendment Regulation 2009 (No.12) (Cth)

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24

Applicant:

HONG QIU YAN

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1310 of 2014

Judgment of:

Judge Emmett

Hearing date:

9 February 2016

Date of Last Submission:

11 February 2016

Delivered at:

Sydney

Delivered on:

23 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Adria Poljak

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr Mark Cleary

Solicitors for the Respondents:

DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1310 of 2014

HONG QIU YAN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 Migration Review Tribunal dated 23 April 2014 and handed down on 24 April 2014 (“the MRT”).
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 decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

On 1 December 2010, the applicant lodged an application with the Department of Immigration and Citizenship (“the Department”) for a Partner (Provisional) Subclass 309 visa and a Partner (Migrant) Subclass 100 visa on the grounds of being in a spousal relationship with an Australian citizen (“the Sponsor”).
On 1 June 2011, the applicant was granted a Partner (Provisional) Subclass 309 visa.
On 28 June 2011, the applicant entered Australia as the holder of a Partner (Provisional) Subclass 309 visa.
On 18 January 2012, the Delegate refused the applicant’s application for a Partner (Migrant) Subclass 100 visa.
On 31 January 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.
On 24 April 2014, the MRT affirmed the decision of the Delegate not to grant a Partner (Migrant) Subclass 100 visa.
On 15 May 2014, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

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 Partner (Migrant) (Class BC) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
At the time of the visa application, and at the time of the MRT’s decision, the applicant was required to meet the requirements in cl.100.221 of Schedule 2 to the Regulations for the grant of a Partner (Migrant) Subclass 100 visa, as follows:
“100.22 – Criteria to be satisfied at time of decision
100.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4) or (4A).
(2) The applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 309 (Partner (Provisional)) visa; and
(b) the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (5), (6) and (7), at least 2 years have passed since the application was made.
…
(4) The applicant meets the requirements of this subclause if:
(a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) after the applicant first entered Australia as the holder of the visa mentioned in paragraph (a)—either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a member of the family unit of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
…
(7) Nothing in paragraphs (2)(c) and (2A)(c) prevents the Minister, less than 2 years after the application is made, from:
(a) refusing to grant a Subclass 100 visa; or
(b) granting a Subclass 100 visa to an applicant who meets the requirements of subclause (3) or (4).
“Spouse” is defined in s.5F of the Act, as follows:
“Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
This definition of “spouse” is supplemented by reg.1.15A of the Regulations, as follows:
“1.15A Spouse
(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.
(2) If the Minister is considering an application for:
(a) a Partner (Migrant) (Class BC) visa; or
…
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day-to-day household expenses; and
(b) the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c) the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d) the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.”
In relation to claims of family violence under cl.100.221(4) of Schedule 2 to the Regulations, the applicant must satisfy regs.1.22 and 1.23 of the Regulations, as follows:
“1.22 References to person having suffered or committed family violence
(1) A reference in these Regulations to a person having suffered family violence is a reference to a person being taken, under regulation 1.23, to have suffered family violence.
(2) A reference in these Regulations to a person having committed family violence in relation to a person is a reference to a person being taken, under regulation 1.23, to have committed family violence in relation to that person.
1.23 When is a person taken to have suffered or committed family violence?
…
(4) The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:
(a) a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and
(b) the order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.
(5) For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.”
Amendments to reg.1.23 of the Regulations were made pursuant to Migration Amendment Regulation 2009 (No.12) (Cth) (“2009 Amending Regulation”), by inserting, amongst other provisions, regs.1.23(4) and 1.23(5) of the Regulations. The effect of these amendments is that a person is not taken to have suffered relevant “violence”, unless the violence “occurred while the married relationship…existed between the alleged perpetrator and the spouse of the alleged perpetrator”.
Under s.338 of the Act, a decision to refuse to grant a Partner (Migrant) Subclass 100 visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) 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.
360 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.”
Section 359AA of the Act permits the MRT to give orally to an applicant clear particulars of any information that the MRT considers would be the reason or part of the reason for affirming the decision under review. The MRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The MRT 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.
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.
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 Delegate’s decision

On 8 November 2011, the Department sent an email to the applicant requesting information in relation to her relationship with the Sponsor, after receiving information from the Australian Federal Police on that day that the applicant was no longer living with the Sponsor.
In that email, it was stated that the Department had received information that the relationship on which the applicant’s application for a Partner (Migrant) Subclass 100 visa was based, was no longer continuing. The applicant was given 28 calendar days to provide relevant information to the Department in support of her visa application.
It was also stated in that email that if the applicant chose not to submit any additional information, or failed to provide adequate reasons as to why the requested information could not be provided within the given timeframe, a decision would be made based on the information available to the Department.
The Department did not receive any response from the applicant within the given timeframe.
On 18 January 2012, the Delegate refused the applicant’s application for a Partner (Migrant) Subclass 100 visa on the ground that the Delegate was not satisfied that the applicant met any of the subclauses in cl.100.221 of Schedule 2 to the Regulations for the grant of the visa.

The MRT’s review and decision

On 31 January 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.
The applicant provided further documents in support of her review application, including various Statutory Declarations signed by the applicant, the Sponsor and the applicant’s friends; bank statements; and photographs of the applicant and the Sponsor together.
In her Statutory Declaration declared on 9 February 2013, the applicant made a new claim that she was the victim of family violence perpetrated by the Sponsor. This claim was corroborated by a copy of the relevant Protection Order made by a Magistrates Court of Queensland.
On 18 January 2013, the MRT wrote to the applicant informing her that the MRT 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 19 February 2013 to give oral evidence and present arguments.
On 19 February 2013, the applicant attended the MRT hearing and gave evidence.
Although the MRT accepted the applicant’s claim of family violence, it noted that the case turned on whether the violence, or part of the violence, had occurred while a spousal relationship existed between the applicant and the Sponsor. The MRT noted that it was required to consider whether, at the time the claimed family violence occurred, the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others; whether the relationship between them was genuine and continuing; and whether they were living together, or not living separately and apart, on a permanent basis.
The MRT was satisfied on the evidence before it that, in accordance with s.5F(2)(a) of the Act, the applicant and the Sponsor were legally married to each other. However, the MRT had significant concerns in relation to whether there was a genuine spousal relationship as defined by the Act such that the marriage was valid for the purposes of the Act.
In affirming the Delegate’s decision, the MRT considered all of the circumstances of the relationship between the applicant and the Sponsor in accordance with reg.1.15A(3) of the Regulations, including the financial aspects of their relationship; the nature of their household; the social aspects of their relationship; and the nature of their commitment to each other.
In relation to the financial aspect of the relationship, the MRT noted that there was no evidence of joint ownership of assets or joint liabilities between the applicant and the Sponsor, other than a joint bank account that was opened in February 2012.
However, there was evidence that the applicant was not working and was entirely dependent upon the Sponsor’s welfare benefits. Therefore, the MRT found that the evidence before it offered some support to the applicant’s claim that both parties had a commitment to their relationship.
In relation to the nature of the household, the MRT noted that at no time did the applicant have any responsibility for care and support of the Sponsor’s children from a previous relationship.
The MRT placed weight on the fact that the applicant and the Sponsor did not live together until after the applicant’s Partner (Migrant) Subclass 100 visa application had been rejected by the Department. It also placed emphasis on the submission of the applicant’s representative that the refusal of the visa application by the Department had “forced [the applicant and the Sponsor] into a relationship neither was ready for at that time”.
Therefore, the MRT found that the evidence as to the nature of the household did not support the existence of a genuine spousal relationship between the applicant and the Sponsor after the applicant’s arrival in Australia.
With respect to the social aspects of the relationship, the MRT noted that although it had received various letters from the applicant’s family and friends stating that the applicant and the Sponsor represented themselves to other people as being married, those letters did not provide any detail about the nature of that relationship. Additionally, although there was evidence that the applicant and the Sponsor undertook joint social activities, the MRT was not satisfied that they did so as a married couple.
On the evidence before it, the MRT concluded that at no time after the applicant’s arrival in Australia did the applicant and the Sponsor have a mutual commitment to a shared life as husband and wife, to the exclusion of all others.
Based on that finding, the MRT was not satisfied that a married relationship as defined in s.5F of the Act existed between the applicant and the Sponsor at the time the claimed family violence occurred. The MRT was therefore not satisfied that the applicant had suffered family violence committed by the Sponsor within the meaning of reg.1.23(5) of the Regulations.
Accordingly, the MRT affirmed the decision of the Delegate as it was not satisfied that the criteria for the grant of Partner (Migrant) Subclass 100 visa in cls.100.221(4)(b) and 100.221(4)(c) of Schedule 2 to the Regulations were met by the applicant.

The proceeding before this Court

The applicant was represented before this Court by Ms Adria Poljak, of counsel.
Counsel for the applicant confirmed that the applicant relied on the grounds contained in the applicant’s initiating application filed on 15 May 2014, as follows:
“1. The Migration Review Tribunal (Tribunal) erred when refusing application for a Partner (Migrant) (Class BC) visa (Visa)
Particulars
a. The decision of the Second Respondent was infected by jurisdiction error in requiring the applicant to evidence a subsisting spouse relationship at a time proximate to the making of a judicial order capable of satisfying the requirements of cl 100.221(4)(b),(c)(i).
b. The decision of the Second Respondent to the effect that the applicant and sponsor were not in a genuine, ongoing and mutually exclusive relationship at the time of the judicial order was not relevant. That fact having already been established on or about 1 June 2011 by the grant of a visa subclass 309, which established the conditions precedent as contemplated in cl 100.221(2A) to a finding in favour of the Applicant by reason of the satisfaction of requirements of criterion 100.221(4)(b) and (c)(i) of the Migration regulations.”
Counsel for the applicant submitted that the MRT erred in finding that the applicant was not a victim of family violence at the time the claimed violence occurred. In support, counsel for the applicant referred the Court to Muliyana v Minister for Immigration and Citizenship [2010] FCAFC 24 (“Muliyana”), where the Full Court of the Federal Court of Australia stated as follows:
“[33] In Sok, Riley FM observed that the express words of cl 100.221(c) of Sch 2 of the regulations do not state that the domestic violence needed to have occurred during the currency of the spousal relationship or that the domestic violence needed to have caused or contributed to the cessation of the spousal relationship. Her Honour nevertheless identified an “obvious policy” behind the provisions to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising his or her immigration status. Her Honour concluded that the policy so identified required the domestic violence to have occurred during the currency of the relationship.
[34] However, in our view, her Honour’s identification of an “obvious policy” behind the provisions to enable a person in circumstances of domestic violence to leave an abusive relationship without compromising his or her immigration status, is too narrowly stated. There is no warrant, in terms of policy, for treating such a “humanitarian ground”, to adopt the phrase used by Wilcox J in Ibrahim at [40], as inapplicable to a person who has suffered domestic violence after the spousal relationship has ceased for whatever reason (whether temporarily or not) who does not wish to return to that relationship but in taking this position, would not be compromising her (or less frequently, his) immigration status. In short, the policy is intended to cover both situations: not to force a person to stay in an abusive relationship; and not to force a person to go back into an abusive relationship, in either case without compromising his or her immigration status. If that is the correct identification of the policy, then it matters not whether the domestic violence occurred before or after the cessation of the spousal relationship; just that domestic violence occurred and the spousal relationship has ceased; and that may well explain why there is no temporal limitation in the text of cl 100.221(4)(c) confining it to the former situation.
[35] No doubt there will be cases where the violence occurs between former spouses in circumstances, for example, many years after the relationship has ended, such that it would not qualify as “domestic violence” within the broader concept of a “non-judicially determined claim for domestic violence”. But that is not this case where the Tribunal made an unchallenged finding that the appellant had suffered domestic violence.
[36] Absent the confined policy identified by her Honour, there is nothing in the text of the legislation viewed in its context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, and nothing in any referrable relevant extrinsic material, which would suggest that the domestic violence had to be the cause or a reason for the cessation of the spousal relationship and, for that reason, had to have occurred prior to the cessation of the spousal relationship. Indeed, acceptance of the broader policy identified in [34] above, inevitably leads to the conclusion that it matters not when the violence occurred, before or after cessation of the spousal relationship, provided it was “domestic violence” as defined.
[37] There are other reasons why we think our construction is to be preferred over that submitted on behalf of the Minister. Chief amongst them is that the Minister, on his own submission, would be involved in ascertaining and determining the cause or reason for a cessation in the spousal relationship. That is a matter for experts, not Ministers of the Crown or their delegates. But that is what would be involved, in many cases, if the fact-finding exercise requires one to fix the time of the cessation of the spousal relationship; and such time fixing would be necessary if the domestic violence must occur before that time for the requirement of cl 100.221(4)(c) to be satisfied.
[38] No such fact-finding would be involved on the part of the Minister if the construction which we embrace is adopted. All that would be necessary would be findings that:
1. The spousal relationship has ceased: cl 100.221(4)(b); and
2. the visa applicant has suffered domestic violence committed by the sponsoring spouse: cl 100.221(4)(c).”

Counsel for the applicant submitted that the effect of the grant of a Partner (Provisional) Subclass 309 visa by the Department to the applicant on 1 June 2011 was that the applicant and the Sponsor were accepted as having a mutual commitment to a shared life as husband and wife, to the exclusion of all others; that their relationship was genuine and continuing; and that they were living together, or not living separately and apart, on a permanent basis.
Counsel for the applicant submitted that, in the circumstances, it mattered not when the claimed “family violence” occurred. Counsel for the applicant submitted that the relationship between the applicant and the Sponsor had plainly ceased as a result of the family violence, and that the applicant was not required to be in a spousal relationship with the Sponsor at the time of the MRT’s decision as she had suffered family violence committed by the Sponsor.
Counsel for the applicant submitted that the MRT erred in not accepting that the relationship was regarded as a genuine spousal relationship at least when the applicant was issued with a Partner (Provisional) Subclass 309 visa. Counsel for the applicant submitted that, as a consequence, the MRT failed to address the issue of the relationship ceasing due to family violence in accordance with cls.100.221(4)(b) and 100.221(4)(c) of Schedule 2 to the Regulations.
However, I accept the submissions of counsel for the first respondent that the Regulations in force at the time of the decision in Muliyana, which was in respect of a visa application made on 14 October 2005, are different to those applicable in the present case.
Amendments to the criteria for the grant of a Partner (Migrant) Subclass 100 visa were made with effect from 15 October 2007 by the Migration Amendment Regulation 2007 (No.13) (Cth) (“2007 Amending Regulation”). Under the 2007 Amending Regulation, the words “domestic violence” which had previously appeared in cl.100.2201(4)(c) of Schedule 2 to the Regulations were replaced with the words “family violence”.
“Family violence” was defined by the 2009 Amending Regulation. The effect of the 2009 Amending Regulation is that a person is not taken to have suffered relevant family violence unless the violence, or part of the violence, occurred while a married relationship existed between the alleged perpetrator and the spouse of the alleged perpetrator, in accordance with reg.1.23(5) of the Regulations.
On the evidence and material before it, the MRT was not satisfied that a relevant married relationship had ever existed between the applicant and the Sponsor. Accordingly, it was not possible for the applicant to satisfy reg.1.23(5) of the Regulations. Those findings were open to the MRT on the evidence and material before it, and for the reasons it gave, as summarised above.
I do not accept counsel for the applicant’s submission that the granting of a Partner (Provisional) Subclass 309 visa to the applicant on 1 June 2011 was evidence that the genuineness of the spousal relationship between the applicant and the Sponsor had been established. Indeed, in the ‘Notification of grant of application for a Spouse (Provisional) (Subclass 309) visa’, sent by office of the Australia Consulate General in Shanghai to the applicant on 2 June 2011, the applicant was made aware that she had applied for “both a temporary and permanent visa when [she] applied for this visa” and that “the grant of [her] Partner (Provisional) (Subclass 309) visa does not mean [she] will automatically be granted the Partner (Migrant) (Subclass 100) visa”. That letter also provided information about the second stage of the visa processing and the contact details of the Department.
Further, I do not accept counsel for the applicant’s submission that the MRT erred in considering whether or not a spousal relationship existed after the applicant arrived in Australia rather than at the time the claimed family violence occurred.
Clause 100.221(4) of Schedule 2 to the Regulations clearly contemplates satisfaction of the regulatory requirements after the applicant arrived in Australia on a Partner (Provisional) Subclass 309 visa. That clause also requires the applicant to continue to hold the Partner (Provisional) Subclass 309 visa. That requirement will not be capable of being met once there has been a final determination that the applicant does not meet the requirements in cl.100.221 of Schedule 2 to the Regulations for the grant of a Partner (Migrant) Subclass 100 visa. In order to meet the Partner (Migrant) Subclass 100 requirements, the applicant must satisfy the MRT that she is in a genuine spousal relationship in accordance with the Act.
In considering whether or not the applicant was ever in a spousal relationship with the Sponsor after having arrived in Australia, the MRT gave the applicant the opportunity to satisfy the relevant criteria and meet the definition of “family violence” in reg.1.23 of the Regulations. Ultimately, the MRT concluded that at no time had the parties been in a spousal relationship. Therefore, the MRT found that the applicant could not satisfy the definition of “family violence” in regs.1.22 and 1.23 of the Regulations, in particular regs.1.23(4) and 1.23(5) of the Regulations.
The MRT’s findings were open to it on the evidence and material before and the reasons it gave.
Accordingly, neither of the grounds of the applicant’s application for judicial review establish any jurisdictional error on the part of the MRT. The MRT complied with its obligations under the statutory regime in the making of its decision. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision.
The MRT’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.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 February 2016