AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FedCFamC2G 276
•29 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 276
File number(s): MLG 542 of 2015 Judgment of: JUDGE LUCEV Date of judgment: 29 November 2021 Catchwords: MIGRATION – Judicial review – decision of the Refugee Review Tribunal – citizen of Sri Lanka – refusal of Protection (Class XA) visa – alleged error of law not particularised – whether claims identified and considered – whether denial of procedural fairness – whether jurisdictional error.
PRACTICE AND PROCEDURE – Application orally made at hearing for adjournment of hearing – factors for consideration – overarching civil practice and procedure provisions – where two previous successful adjournment applications – whether a right to legal representation – where previous adjournment granted on basis that legal representation had been obtained – delay – where no notice of adjournment application – where backlog of several thousand unheard migration judicial review cases – effect of further delay – whether further delay undue – effect of further adjournment on other litigants – consideration of efficiency and expense in relation to further adjournment.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 8, 190
Migration Act 1958 (Cth), Pt 7, Div 4, ss 46A, 65, 422B, 424A, 425, 425A, 474, 476
Cases cited: ADN15 v Minister for Immigration and Border Protection [2016] FCA 810
ADY15 v Minister for Immigration & Border Protection [2017] FCCA 560
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688
AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195
AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
BXT18 v Minister for Immigration & Anor [2019] FCCA 2455
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145
DFE20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 35
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
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
Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590; (2017) 347 ALR 62
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
Sali v SPC Ltd & Anor [1993] HCA 47; (1993) 67 ALJR 841; (1993) 116 ALR 625
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WZATN v Minister for Immigration & Anor [2014] FCCA 861
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of last submission/s: 12 November 2021 Date of hearing: 12 November 2021 Place: Perth The Applicant: Appeared in person, with the assistance of an interpreter Counsel for the First Respondent: Mr C. Orchard Solicitor for the First Respondent: Sparke Helmore For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 542 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: AFN15
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
29 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The originating application filed 18 March 2015 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 18 March 2015 the applicant (“AFN15”) lodged in the Melbourne Registry of this Court an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a 16 February 2015 decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, (“Tribunal Decision” and “Tribunal” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to affirm the decision to refuse AFN15 a Protection (Class XA) visa (“Protection Visa”) under s 65 of the Migration Act.
BACKGROUND PRIOR TO TRIBUNAL DECISION
AFN15 is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 9 June 2012. On 7 September 2012 AFN15 applied for a Protection Visa after the Minister lifted the bar under s 46A(2) of the Migration Act: CB 20-46.
AFN15 claimed to be a Tamil farmer from Jaffna and to fear harm in Sri Lanka from the Sri Lankan authorities, including the Sri Lankan Army (“SLA”) and the Eelam People’s Democratic Party (“EPDP”), because of his:
(a)Tamil race in combination with his origin, being from the north of Sri Lanka and of male gender;
(b)imputed political opinion in support of the LTTE; and
(c)status as a failed asylum seeker: CB 46-50.
On 19 December 2012 the Delegate’s Decision was to refuse to grant the Protection Visa to AFN15: CB 101-127.
On 21 January 2013 AFN15 applied to the Tribunal for review of the Delegate’s Decision.
On 26 June 2013 the Tribunal, differently constituted to that which made the Tribunal Decision, affirmed the Delegate’s Decision. AFN15 sought judicial review of that Tribunal decision in this Court (then styled the Federal Circuit Court of Australia but which continues in existence as this Court: Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), s 8(2)). On 29 September 2014 the Court ordered, by consent, that the matter be remitted to the Tribunal for reconsideration on the basis that the Tribunal had failed to consider AFN15’s claim to fear harm because of his Tamil ethnicity: CB 139-140.
On 16 February 2015 the Tribunal, differently constituted to that which made the first Tribunal decision, again affirmed the Delegate’s Decision not to grant AFN15 the Protection Visa: CB 166-192.
TRIBUNAL DECISION
The Tribunal Decision largely turned on issues of:
(a)country of nationality;
(b)third-country protection;
(c)credibility; and
(d)claims of:
(i)being Tamil, specifically a male Tamil from the north of Sri Lanka;
(ii)real or imputed political opinion in support of the LTTE;
(iii)being a failed asylum seeker; and
(iv)discrimination against Tamils.
All of AFN15’s claims were addressed, comprehensively, in the Tribunal Decision. In the Tribunal Decision the Tribunal:
(a)at CB 179-180 at [41]-[49]:
(i)expressed “significant concerns” about AFN15’s claims to fear harm arising out of a claimed dispute and fight;
(ii)having regard to the available evidence, including country information, considered that AFN15’s claim regarding the EPDP’s involvement was an embellishment, and it did not accept that the EPDP was involved in the incident or interested in AFN15 in any way;
(iii)formed the view that the claimed actions of the Sri Lankan authorities, in questioning AFN15, were not unreasonable, given that violence was involved; and
(iv)considered that the incident would not have any ramifications on a political or caste basis;
(b)at CB 180-181 at [50]-[56]:
(i)accepted that AFN15 had occasionally been detained and harmed by the authorities in the past;
(ii)did not accept that AFN15 was “someone of ongoing concern” as he had been released on each occasion after a short period of time;
(iii)accepted that AFN15’s cousin had been killed in 2006 due to his involvement with the LTTE, but noting that AFN15 had been detained and released by the authorities in the years after his cousin’s death, did not accept that AFN15’s cousin’s circumstances imputed him with any political opinion, or were relevant to his present circumstances; and
(iv)found that AFN15 was not a person of interest to the Sri Lankan authorities due to his limited previous involvement with the LTTE;
(c)at CB 181-182 at [57]-[64]:
(i)did not accept that AFN15 faced any chance or risk of harm arising from the dispute in circumstances where four years had elapsed since the incident occurred;
(ii)given AFN15’s failure to raise it previously, also rejected his claim that family members of the men whom he had fought with had lost their jobs;
(iii)noting AFN15’s evidence regarding his “caste based concerns” was “very limited and unconvincing” and that the cause of the dispute was AFN15’s belief that his cousin’s honour had been impugned, did not accept that AFN15 faced a real chance or a real risk of harm for any reason associated with his caste;
(d)at CB 182-183 at [65]-[74]:
(i)having regard to the available country information did not accept AFN15’s claim that all Tamils in Sri Lanka faced harm because of their race, location or gender;
(ii)did not accept the particular risk profiles identified in the United Nations High Commissioner for Refugees (“UNHCR”) guidelines were applicable to a person with AFN15’s accepted circumstances; and
(iii)did not consider that AFN15 would be targeted by the authorities for harm and concluded that he did not face a real chance of serious harm or a real risk of significant harm arising from his Tamil race or any particular social groups arising from location or gender;
(e)at CB 185-187 at [75]-[84]:
(i)noting that AFN15 did not claim to have been involved with the LTTE, had “very limited interaction” with them in the past, and had not claimed to have done anything in Australia to raise the concerns of Sri Lankan authorities, did not accept that AFN15 faced a real chance of serious harm or real risk of significant harm arising from any imputed pro-LTTE political opinion; and
(ii)did not accept that AFN15 faced a real chance or real risk of harm from the EPDP, having regard to its earlier rejection of the claim that the EPDP were involved in the dispute;
(f)at CB 187-191 at [85]-[99]:
(i)accepted AFN15 would be questioned on arrival at the airport in Sri Lanka;
(ii)accepted that the Sri Lankan authorities would assume AFN15 had sought asylum in Australia but did not accept there was a real chance any state-actor would be motivated to harm him at any stage of the re-entry process;
(iii)noting the particular risk profiles specified in the UNHCR guidelines, did not accept that AFN15 faced a real chance of serious harm at the airport or in his home area due to any of the claimed reasons;
(iv)did not accept that the weight of the evidence before it supported the view that the Sri Lankan government would harm AFN15 due to an assumption that he had criticised the government in the course of seeking asylum;
(v)did not accept that being questioned or monitored briefly at the airport or in his home region amounted to serious harm; and
(vi)concluded that AFN15 did not face a real chance of serious harm arising from his status as a failed asylum seeker, separately, and in combination with any of his other claims, and for the same reasons, found that AFN15 did not face a real risk of significant harm;
(g)at CB 191 at [100]-[102]:
(i)noted there were some limited references by AFN15 that he would be discriminated against on return to Sri Lanka;
(ii)did not accept, on the available evidence, that AFN15 would face discrimination amounting to serious or significant harm; and
(iii)found AFN15’s claim was not made out; and
(h)at CB 191-192 at [103]-[105] found that AFN15 did not meet the refugee criterion or the complementary protection criterion, and affirmed the Delegate’s Decision to refuse AFN15 a Protection Visa.
JUDICIAL REVIEW APPLICATION
Litigation History
The prior litigation history of the Judicial Review Application is set out in significant detail in two earlier judgments:
(a)AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688 (“AFN15 (No 1)”); and
(b)AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 195 (“AFN15 (No 2)”).
For present purposes, it suffices to observe that:
(a)the Judicial Review Application was filed in the Melbourne Registry on 18 March 2015;
(b)the Judicial Review Application was dismissed for non-appearance by a Registrar at the First Court Date on 24 June 2015 (“Registrar’s Order”);
(c)following judgment in Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114; (2017) 255 FCR 590; (2017) 347 ALR 62, where the Full Court of the Federal Court of Australia determined that an order for dismissal for non-appearance by a Registrar was beyond power, orders were made by a Judge in the Melbourne Registry on 6 November 2019, providing, amongst other things, for the setting aside of the Registrar’s Order, and the filing by AFN15 of any amended Judicial Review Application, affidavits and written submissions 28 days before a hearing on a date to be advised;
(d)in June 2021 orders were made by the Court’s National Migration Law Judge, listing the matter for hearing on 15 July 2021 in the Perth Registry before the Court as presently constituted;
(e)the effect of the listing of the matter for hearing on 15 July 2021 was to afford AFN15, a self-represented litigant without English as a first language, only one day to comply with the orders of 6 November 2019 for filing of any amended Judicial Review Application, affidavits and written submissions;
(f)when the matter came on for hearing on 15 July 2021, the Court as presently constituted granted an adjournment of the hearing to 22 October 2021 because of the unfairness to AFN15 resulting from his only having one day to comply with the 6 November 2019 orders for filing of any amended Judicial Review Application, affidavits and written submissions: AFN15 (No 1) at [11] per Judge Lucev. Orders were consequently made by the Court as presently constituted, including the following orders:
3.The matter be adjourned to a further hearing on 22 October 2021 at 12pm AWST/3pm AEDST.
4. The Applicant must file and serve:
(a) any amended application with proper particulars of the application;
(b) supplementary Court Book, if any; and
(c) an outline of written submissions, by 24 September 2021.
5. If the Applicant fails to comply with Order 4 the originating application be dismissed pursuant to r 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
(g)when the matter came on for hearing on 22 October 2021, the Court as presently constituted granted a further adjournment of the hearing to 12 November 2021 in circumstances where AFN15 told the Court that he had previously not been able to find a lawyer during the COVID-19 lockdown in Melbourne, but said, expressly, that just a few days before the hearing he had found a lawyer, whom he named, who was prepared to assist him. The Court considered, amongst other things, that a just resolution of the dispute might be assisted by AFN15 being represented by a lawyer in the proceedings: AFN15 (No 2) at [11]-[12] and [20]-[23] per Judge Lucev, and that “to adjourn … for a short period would not be unjust”: AFN15 (No 2) at [23] per Judge Lucev;
(h)having concluded that a further short adjournment would not be unjust, the Court made orders on 22 October 2021, including the following:
1. Pursuant to rule 3.05(3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth):
a. an extension of time for compliance with Order 4 of orders of 15 July 2021 be granted to 2 November 2021; and
b. an extension of time for compliance with Order 6 of orders of 15 July 2021 be granted to 9 November 2021.
2. The matter be adjourned to a further and final hearing on 12 November 2021 at 12:30 pm AWST / 3:30 pm AEDT.
12 November 2021 – a further adjournment is sought
At the hearing on 12 November 2021 AFN15 again sought to adjourn the hearing, and made a number of submissions, as follows:
(a)due to the COVID-19 pandemic, he had not been able to “get legal representation for himself”;
(b)he was presently self-represented, and wanted to be represented by a lawyer;
(c)that additional time would be beneficial to him, and said he did not need a lot of time, although he then said the lawyer he had contacted had said he needed “a minimum of three months” to prepare the case;
(d)he was presently “having many problems”, including family problems and other problems caused by his lack of a visa;
(e)he could not go back to Sri Lanka (a submission reiterated several times);
(f)he was uneducated, only spoke Tamil, and because he did not have a visa he could not work.
The Minister opposed a further adjournment, and submitted that:
(a)AFN15 had had ample time to prepare his case, the proceedings having been on foot since 2015, and the Court had latterly given AFN15 adequate opportunity to do so;
(b)since the transfer of the matter to a Perth Registry Judge in June 2021, AFN15 had had two adjournments granted, the first for three months, the second for three weeks;
(c)at the time of seeking the first adjournment (in July 2021), AFN15 sought an adjournment of a year and a half, and at the time of seeking the second adjournment (in October 2021) AFN15 said he had sought legal advice;
(d)at both the hearings in July and October 2021 oral judgments were delivered and orders were made, all of which were interpreted in Court by a Tamil interpreter for AFN15;
(e)the orders at both the hearings in July and October 2021 provided for AFN15 to file any amended Judicial Review Application, any affidavits, and written submissions, and AFN15 failed to comply on both occasions, without explanation;
(f)AFN15 has been on notice of the need to prepare his case, and on notice that he is not entitled to legal representation, even though an adjournment was granted when he said (at the 22 October 2021 hearing) that he had found a lawyer;
(g)there was, however, no evidence of any attempt to obtain a lawyer, previously or now, and no Notice of Address for Service had been filed by any lawyer, and AFN15 now seeks another adjournment to obtain a lawyer;
(h)absence of prejudice is not a reason not to grant an adjournment, but in this case, there is also the public interest to consider in circumstances where:
(i)each application for adjournment by AFN15 has been made at hearing without prior notice to the Minister’s lawyers or the Court;
(ii)a further adjournment would be an inefficient use of the Court’s resources, and would impose on the overall caseload of the Court by keeping in the lists, to the exclusion of other cases, a case which is unmeritorious; and
(iii)no further delay is warranted, and further delay simply adds to the complexity of these proceedings, which are not inherently complex, and to the cost of and resources required for this case, in a manner disproportionate to the nature of the case before the Court.
At hearing on 12 November 2021, having heard the parties as to AFN15’s adjournment application, the Court made the following orders:
1. The Applicant’s oral application for adjournment of the hearing be dismissed.
2. Written Reasons for Judgment in relation to Order 1 be delivered at a later date.
What follows hereunder at [16]-[31] are the Court’s written Reasons for Judgment in relation to AFN15’s adjournment application.
Adjournment - principles
In considering whether to adjourn this hearing, the Court now has to have regard to the overarching purpose of the civil practice and procedure provisions inserted into the recently operational FCFCOA Act and, in particular, s 190 of the FCFCOA Act. The Court refers to and adopts what it said in COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145 (“COF17”) at [13] to [19] and [21] per Judge Lucev (set out also in AFN15 (No 2) at [15] per Judge Lucev) with respect to those civil practice and procedure provisions, as follows:
13 With the coming into operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Court Rules 2001 (Cth) (“GFL Rules”) there have been changes to the legislative objects and practice and procedure requirements for the Court now prescribed by s 8(2) of the FCFCOA Act as the “Federal Circuit and Family Court of Australia (Division 2)”. Those changes alter the nature of the factors for consideration when deciding whether to adjourn proceedings, as compared to the factors formerly considered in general federal law matters by the then Federal Circuit Court of Australia: as to which see, for example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev and BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 at [27]-[28] per Judge A Kelly.
14 The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a). That object must be read together with the provisions of the FCFCOA Act relating to the overarching purpose of the civil practice and procedure provisions which provide, in s 190 of the FCFCOA Act that:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
15 The FCFCOA Act provides that the practice and procedure of Division 2 of the Court is to be in accordance with, relevantly, the Rules of Court: FCFCOA Act, s 174(1)(a). The relevant Rules of Court are the Rules of Court made under Ch 4 of the FCFCOA Act (and specifically s 217 of the FCFCOA Act): FCFCOA Act, s 7(1), and are the GFL Rules, which provide:
(a) in r 1.04(1) that the overarching purpose of the GFL Rules is “as provided in section 190 of the … [FCFCOA Act], … to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”; and
(b) in r 1.04(2) that the parties “must” (in the chapeau to the sub-rule) “avoid undue delay, expense and technicality” (in para (a)).
16 As to the use of “must” in r 1.04(2) of the GFL Rules, it was recently observed in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020 at [24] per Judge Lucev that:
The chapeau to reg 5.19(2) of the Migration Regulations provides that “[t]he application must”. The use of “must” is indicative of an imperative command: The Shorter Oxford English Dictionary on Historical Principles, Volume II (Oxford: Clarendon Press, 1973), page 1376 (“Shorter Oxford English Dictionary”), in this case, a positive command, expressing necessity in the sense of an obligation to fulfil the requirements set out in the paragraphs (a), (aa) and (b) to reg 5.19(2) of the Migration Regulations: Posner v Collector for Inter-State Destitute Persons (Victoria) [1946] HCA 50; (1946) 74 CLR 461; [1947] VLR 276; [1947] ALR 61; (1946) 20 ALJ 444; CLR at 490 per Williams J; Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J; Wang v Minister for Immigration and Multicultural Affairs [1997] FCA 70; (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104, FCR at 391 per Merkel J.
17 Likewise in this case the use of “must” in the chapeau to r 1.04(2) of the GFL Rules imposes a mandatory requirement to fulfil the requirements in para (a) of that sub-rule, subject to any contrary legislative requirement and the Court’s power to dispense with compliance with the GFL Rules: GFL Rules, r 1.07(1).
18 The word “undue” carries with it both “a quantitative connotation – in the sense of going beyond what is warranted, or excessive – or a qualitative connotation – in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable”: John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314 at [58] per Jessup J. In r 1.04(2)(a) of the GFL Rules it would appear that “undue” is used primarily in the former sense, that is, that which gives rise to unwarranted or excessive delay, expense or technicality, although in relation to technicality it might be used in both senses in an appropriate case.
19It follows from the above that the factors for consideration in relation to whether to grant an adjournment are whether an adjournment might:
(a) facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and
(b) avoid undue delay, expense and technicality.
…
21In terms of the overarching purpose of the civil practice and procedure provisions in s 190 of the FCFCOA Act, the Court also notes that it relates to the “just resolution of disputes”. The use of the plural “disputes” as opposed to the singular “dispute” is important. That is because the use of the plural “disputes” allows the Court to give consideration to the possible impact of a proposed course of action on other matters pending before the Court, and not just the “dispute” the subject of the matter immediately before it for hearing. Thus the Court may have regard, as it traditionally would have: Sali v SPC Ltd & Anor (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, to the possible effect on other litigants who might be denied a final hearing date if this matter were to be listed for final hearing now, and which final hearing might then have to be vacated if Ministerial intervention resulted in the grant of a Protection Visa. That is a particularly cogent consideration when regard is had to the number of migration judicial review applications in the Melbourne Registry not presently allocated to a Judge of the Court for hearing: see [4] above, many of which were filed upwards of four years ago.
Adjournment application – consideration
There have been three sets of orders made by the Court (6 November 2019, 15 July 2021 and 22 October 2021) requiring AFN15 to file and serve documents including any amended Judicial Review Application, any affidavits, and written submissions by times or dates specified in those orders.
As indicated above at [10]-[14], the present adjournment application is the third time the issue of an adjournment has arisen since this matter was allocated to a Perth Registry Judge for hearing in June 2021.
The Court is acutely conscious that the Judicial Review Application was filed more than six and a half years ago, and by reason of an invalid dismissal by reason of the Registrar’s Orders and the delays in hearing matters in the Melbourne Registry of the Court, more than six years passed before the matter was finally listed for hearing before a Perth Registry Judge (with those delays not being any fault of AFN15: AFN15 (No 1) at [9] per Judge Lucev), and was then adjourned at the 15 July 2021 hearing out of fairness to AFN15 because of the very limited time that listing gave AFN15 to file any documents: AFN15 (No 1) at [11] per Judge Lucev at [3] and [8]-[11]. All of this can be weighed in favour of AFN15 (as it was in both AFN15 (No 1) and AFN15 (No 2)). What must, however, also be weighed is the fact that in all of that time (more than six years) there is no evidence that AFN15 did anything to advance his case. Notably, ground 2 of the Judicial Review Application filed so long ago indicates that AFN15 was “seeking a legal merits assessment from Victoria Legal Aid”, and so there can be no question that AFN15 was early aware of the possibility of having lawyers involved in the preparation of his case. AFN15 did not attend the First Court Date, which resulted in the invalid dismissal of the Judicial Review Application pursuant to the Registrar’s Orders. There is no evidence that AFN15 took any steps to attend to the preparation and filing of any amended Judicial Review Application, affidavits or written submissions, either by his own efforts or by seeking the assistance of a lawyer, between the making of orders by a Melbourne Registry Judge on 6 November 2019 until shortly before the second listed hearing on 22 October 2021.
The Court also has regard to the fact that it was told by AFN15 at the 22 October 2021 hearing that AFN15 had a lawyer who was prepared to act for him and that that hearing was adjourned to 12 November 2021 as a consequence of AFN15’s assertion: AFN15 (No 2) at [22]-[23] per Judge Lucev. The Court notes that no evidence has been put before the Court to validate what AFN15 told the Court in this regard at the 22 October 2021 hearing. On 12 November 2021 no lawyer appeared for AFN15 and no Notice of Address for Service had been filed by a lawyer acting for AFN15. AFN15 now says that a lawyer has told him that the case will take three months to prepare. There is no independent evidence of this, and in particular, no evidence from the lawyer concerned to the effect that the lawyer:
(a)is prepared to act for AFN15; and
(b)needs more time to prepare the case, or of the reasons therefor.
The present position is that AFN15 has no lawyer acting, and there is no evidence that there is any lawyer prepared to act for him, but he seeks a further adjournment to find a lawyer who may be prepared to do so. However, there is no evidence before the Court as to what, if any, steps AFN15:
(a)took to obtain, and then lose, the services of the lawyer he says was prepared to act for him; and
(b)has taken, since becoming aware that the lawyer referred to above would or could no longer act for him, to obtain the services of another lawyer; or
(c)took to obtain a lawyer in the more than six years after the filing of the Judicial Review Application which expressly refers to his seeking a legal merits assessment from Victoria Legal Aid.
There is simply no evidence before the Court to indicate that AFN15 is likely to obtain the services of a lawyer, or that if he were able to, in what timeframe the lawyer might actually attend to the matter. The fact that AFN15 has no work rights, says he has not worked and is seemingly impecunious, probably increases the unlikelihood of his finding a lawyer to assist him.
The Court notes that the fact that AFN15 is self-represented and does not have a lawyer to assist him is a matter to be taken into consideration when exercising the discretion as to whether to grant an adjournment: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but so too is the fact that there is no right to legal representation in judicial review migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev. In circumstances where it seems unlikely that AFN15 will be able to obtain the services of a lawyer, the fact that there is no right to legal representation is a factor that carries more weight, and weighs against an adjournment.
Whilst AFN15’s primary basis for seeking an adjournment was that he wanted further time to find a lawyer to act for him, there are other matters to which he alluded, and yet other matters, to which the Court ought to have regard.
The issue of delay arises. The Court has adverted to the issue of delay at [19] above.
The Court notes that at each hearing on 15 July, 22 October and 12 November 2021 AFN15 has sought an adjournment, without notice to the Court or the Minister. Where an adjournment is granted, the failure to give notice is:
(a)both expensive and inefficient for the Minister, in terms of repeated getting up of the matter and having repeat appearances before the Court; and
(b)inefficient for the Court, in terms of case management, and the use of judicial and administrative resources, the latter leading to increased expense,
in circumstances where the increased expense to both the Minister and the Court is ultimately an increase borne by the taxpayer, and where AFN15 is seemingly impecunious not an increase in respect of which it is likely that any costs order made against AFN15 would result in the recovery of some of the Minister’s costs. Those circumstances weigh against a further adjournment where no prior notice of the intended adjournment application was given by AFN15 to either the Minister or the Court.
The Court also bears in mind that a further adjournment deprives another litigant of an opportunity to have their case listed for hearing: COF17 at [21] per Judge Lucev citing Sali v SPC Ltd & Anor [1993] HCA 47; (1993) 67 ALJR 841; (1993) 116 ALR 625; ALJR at 843-844 per Brennan, Deane and McHugh JJ and 849 per Toohey and Gaudron JJ; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [95] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. That is a powerful consideration when regard is had to the delays in listing hearings of judicial review migration applications in this Court, arising from the fact that there are several thousand migration judicial review applications which have been filed in the Melbourne Registry of this Court and which have not presently been allocated to a Judge of the Court for hearing, many of which were filed upwards of three years ago. Those delays are both notorious and significant: Chief Judge
Any adjournment of this matter now would be likely to lead to an adjournment of more than three months, and possibly considerably longer, in circumstances where it is not clear that AFN15’s position at any adjourned hearing will be any different to his present position: see [29] below. In those circumstances, the further delay would be bordering on the undue, both of itself and in the context of the delays which have already occurred, albeit that those delays have, until recently, not been wholly, or even in large part, of AFN15’s making. This is a consideration which, on balance, neither weighs for nor against the adjournment application.
The Court is not without sympathy for the plight of a person seeking protection from alleged persecution who finds themselves in a foreign country separated from family and unable to work. However, in relation to the types of matters put forward by AFN15 to support the adjournment application the Court observes as follows:
(a)the fact that AFN15 says he cannot go back to Sri Lanka is not a basis for the grant of an adjournment;
(b)a lack of work rights for AFN15 is likewise not a basis for the grant of an adjournment;
(c)the fact that AFN15 is having problems, including family problems, is hardly surprising in circumstances where he has been in Australia for over nine years, appears to be impecunious, and may be suffering from mental health issues. However, in the absence of any evidence of an immediate crisis affecting AFN15’s capacity to appear before this Court, those matters cannot be relied upon to justify an adjournment, or ongoing adjournments, particularly when balancing them against some of the factors for consideration set out and discussed at [19]-[28] above; and
(d)the fact that AFN15 is uneducated, an ethnic Tamil, and a Tamil speaker who does not speak English, are matters to which, at least in part, the Court has previously had some regard when considering previous adjournments: AFN15 (No 1) at [12(a)] per Judge Lucev and AFN15 (No 2) at [7] per Judge Lucev, but they are features which cannot be relied upon on an ongoing basis to justify multiple or ongoing adjournments, particularly when balancing them against some of the factors for consideration set out and discussed at [19]-[28] above.
The Court also notes that at the 15 July 2021 hearing, AFN15 adverted to mental health problems as the basis for seeking an 18-month adjournment: AFN15 (No 1) at [3(i)] per Judge Lucev, and in granting a shorter adjournment, but not on medical grounds, the Court set out the type of medical evidence which might be required to justify any future adjournment on medical grounds: AFN15 (No 1) at [18] per Judge Lucev (and the cases there cited; see too AFN15 (No 2) at [7] per Judge Lucev). Suffice to observe that no medical evidence was filed or sought to be relied upon in this adjournment application.
For the reasons set out at [17]-[30] above the Court has concluded that the adjournment application must be dismissed as it would not facilitate a quick, inexpensive or efficient disposition of this matter, and nor would it contribute to a resolution, let alone a just resolution, of the matter, and in those circumstances, an adjournment is contrary to the overarching purpose of the civil litigation practice and procedure provisions as set out in s 190 of the FCFCOA Act.
Grounds of Judicial Review Application
Following the making of an order at hearing on 12 November 2021 dismissing AFN15’s adjournment application, the Court heard the parties in relation to the Judicial Review Application.
The Judicial Review Application contains the following two grounds of review:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. The Applicant is currently seeking a legal merits assessment from Victoria Legal Aid.
Ground 2 is not a proper ground of review and does not require further consideration.
AFN15’s Submissions
Pursuant to orders made by the Court on 6 November 2019, 15 July and 22 October 2021, AFN15 has had three distinct opportunities to file materials, including submissions. AFN15 did not avail himself of any of these opportunities. At hearing the oral submissions made by AFN15 in relation to the Judicial Review Application were that he:
(a)had not been able to obtain a lawyer because of the COVID-19 lockdown;
(b)was not working;
(c)could not go back to his country (Sri Lanka); and
(d)otherwise relied on what he had said previously (that is, in relation to the adjournment application as set out at [12] above].
Minister’s Submissions
The Minister submitted that:
(a)AFN15’s grounds are template in nature and insufficiently particularised to be meaningful, and the Judicial Review Application should be dismissed for this reason alone;
(b)the Tribunal correctly identified and considered AFN15’s claims to fear harm if returned to Sri Lanka;
(c)the Tribunal’s findings were based on its concerns as to the veracity of the claims made by AFN15 and country information, and in relation to which the Tribunal made findings open to it on the material before it, and in respect of which no error is revealed; and
(d)the Tribunal complied with its procedural fairness obligations under Pt 7, Div 4 of the Migration Act.
Consideration of Ground 1
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review 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. An instance where 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 thus affected, resulting in a decision exceeding or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: 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. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [56]-[58] per Hayne, Kiefel and Bell JJ, as may unreasonableness: see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
AFN15 bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine AFN15’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Error of Law
Failure to particularise
As it appears in the Judicial Review Application, ground 1 is an unparticularised assertion of legal error. The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); ADY15 v Minister for Immigration & Border Protection [2017] FCCA 560 at [13]-[14] per Judge Lucev. In DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J the Federal Court, citing WZAVW, observed as follows:
The grounds of judicial review in Mr DKN’s original application (CB1176) and first affidavit simply allege that the Tribunal’s decision was unreasonable, the Tribunal failed to properly apply or exercise the discretion under s 501CA of the Migration Act, the Tribunal failed to take relevant considerations into account, there was insufficient or no evidence to support its finding, and Mr DKN was denied procedural fairness. As such, the grounds are very broadly expressed and fail to specify the nature of the errors allegedly committed by the Tribunal. It follows that the grounds should be dismissed save to the extent that Mr DKN must be taken to have elaborated upon the grounds in his submissions: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); ASI17 v Minister for Immigration [2019] FCA 1235 at [22] (Perry J).
The Court notes that an appeal by DKN20 from DKN20 was dismissed, but this issue was not in contention on the appeal: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97.
Even where there is an unparticularised ground of review it is necessary for a self-represented applicant to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a review ground: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J. It is fair to observe that the foregoing fairly describes, generally speaking, the current practice of this Court, at least in the Perth Registry: FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams; DFE20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 35 at [4]-[5] per Judge Lucev; BXT18 v Minister for Immigration & Anor [2019] FCCA 2455 at [24]-[27] per Judge Kendall. And so it was in this case that the Court, having endeavoured to explain to AFN15 the nature of, and necessity for, jurisdictional error in the Tribunal Decision if the Judicial Review Application was to be successful, sought submissions from AFN15 as to any alleged error in the Tribunal Decision. Nothing that was put by AFN15 in his submissions: see [12] and [35] above, identified or particularised any error or error of law, let alone the required jurisdictional error, in the Tribunal Decision.
For all of the above reasons the unparticularised ground 1 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Jurisdictional error otherwise
As the Federal Court observed in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [27] per Judge Lucev) in circumstances where a party is self-represented the Court must nevertheless remain alert to the possibility of jurisdictional error by the Tribunal.
In this matter, the Tribunal correctly identified and considered AFN15’s claims to fear harm if returned to Sri Lanka, as it was required to do: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ, including claims made on account of:
(a)an incident with four men in May 2011: CB 178-182 at [37]-[61];
(b)AFN15’s caste: CB 182 at [62]-[64];
(c)AFN15’s Tamil ethnicity: CB 183-185 at [66]-[74];
(d)AFN15’s real or imputed political opinion: CB 185-187 at [75]-[84];
(e)AFN15’s putative status as a failed asylum seeker: CB 187-191 at [85]-[99]; and
(f)any discrimination against Tamils: CB 191 at [100]-[102].
It is not evident that the Tribunal Decision is unreasonable in the legal sense described in Pandey, nor that it is otherwise affected by any other form of jurisdictional error. No error of law, and in particular no jurisdictional error, is evident in the Tribunal’s consideration of AFN15’s claims.
For all of the above reasons, that part of ground 1 (save for procedural fairness which is discussed at [48]-[50] below) which asserts that there was an error of law made by the Tribunal is not made out and does not establish jurisdictional error in the Tribunal Decision.
Denial of procedural fairness
Procedural fairness obligations are imposed on the Tribunal by Pt 7, Div 4 of the Migration Act, and those obligations are taken to be an exhaustive statement of the natural justice hearing rule: Migration Act, s 422B; Li at [56]-[58] per Hayne, Kiefel and Bell JJ; WZATN v Minister for Immigration & Anor [2014] FCCA 861.
On the materials before it, the Court observes as follows:
(a)the Tribunal complied with its statutory obligations under ss 425 and 425A of the Migration Act by validly inviting AFN15 to a hearing before the Tribunal scheduled for 29 January 2015, and doing so by letter dated 9 December 2014: CB 149-150;
(b)AFN15 attended the Tribunal hearing and gave evidence in support of his claims, and there is no evidence of any failure by the Tribunal to put relevant matters to, or discuss relevant matters with, AFN15;
(c)the Tribunal Decision includes numerous instances where the Tribunal specifically raised or discussed with AFN15 concerns that the Tribunal had with claims and evidence: see, for example, CB 178 at [37], 183 at [67], 184 at [70], 185 at [76] and 190 at [90]; and
(d)in finding that AFN15 was not a person in respect of whom Australia had protection obligations, the Tribunal relied upon AFN15’s written evidence provided to the Department, his written and oral evidence provided to the Tribunal, and independent country information, all of which fell within the exceptions to information in ss 424A(3)(a), (b) and (ba) of the Migration Act respectively, and there was, therefore, no breach of s 424A of the Migration Act.
In the above circumstances, the Tribunal complied with its procedural fairness obligations under Pt 7, Div 4 of the Migration Act, and no denial of procedural fairness by the Tribunal in respect of this matter has been established. It follows that that part of ground 1 alleging a denial of procedural fairness by the Tribunal in respect of AFN15 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
For the reasons set out at [41]-[50] above, the Court has concluded that ground 1 of the Judicial Review Application has not been made out. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Dated: 29 November 2021
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