AHS17 v Minister for Immigration
[2020] FCCA 1011
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1011 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant applicant protection visa – whether Authority applied a narrow construction of s.473DD when determining whether there were exceptional circumstances justifying its considering new information – whether the Authority made unreasonable or irrational findings – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), pt.3, sch.1 |
| Cases cited: ANL17 v Minister for Immigration & Anor [2020] FCCA 637 DLB17 v Minister for Home Affairs [2018] FCAFC 230 DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782 DZU16 v Minister for Immigration [2017] FCCA 851 Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 |
| Applicant: | AHS17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 215 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 October 2019 |
| Date of Last Submission: | 15 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The applicant not have leave to rely on the amended application filed on 30 September 2019.
The application is dismissed.
Subject to order 4, the applicant pay the first respondent’s costs set in the amount of $7,206.
The parties have liberty to apply within fourteen days of the making of these orders for an order discharging or varying order 3.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 215 of 2017
| AHS17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
Procedural background
The matter came for hearing before me on 1 October 2019. On 30 September 2019 the applicant filed an amended application. The Minister was not in a position to deal with the amendments at the hearing. After discussing with both counsel for the Minister and the applicant, who is not legally represented, the course I should follow, I decided to hear submissions on the grounds contained in the application filed on 23 January 2017, and I made directions for the filing of submissions on whether I should grant leave to the applicant to rely on the amended application and, if so, to determine the merits of those grounds. I ordered that the Minister may file submissions by 18 October 2019, and the applicant by 8 November 2019. I also directed that unless by 15 November 2019 either party informed the Court he required an oral hearing in relation to the matters covered by the written submissions the parties filed pursuant to my orders, I would be at liberty to give judgment without further hearing on whether I should grant the applicant leave to rely on the grounds stated in the amended application.
The Minister filed his written submissions on 25 November 2019. This occurred after the Minister’s lawyer, on 14 October 2019, sent an email to my associate and to the applicant stating that the Minister would be unable to provide the submissions because counsel for the Minister had suffered an injury that required treatment. The Minister’s lawyer requested that the time for the Minister filing his submissions be extended to 25 November 2019. On 14 October 2019, on my instructions, my associate sent an email to the parties stating that, subject to any objection from the applicant, I would be content for the timetable that was then in place to be amended in the manner requested by the Minister’s lawyer. The applicant did not communicate any objection.[1]
[1] I have marked in chambers the chain of emails as Exhibit “A”
The applicant filed written submissions on 2 December 2019. The applicant there noted that the Minister did not file his written submissions by the time provided by the orders I made on 1 October 2019. I take this to be a submission that I should not read the Minister’s submissions without giving the Minister leave to do so. I give the Minister that leave. The applicant filed an amended application without leave on the day before the hearing; and the applicant filed the amended application more than two years after the time he was permitted to file an amended application pursuant to orders made on 4 May 2017. There is nothing to suggest the applicant did not receive the email from the Minister’s lawyer on 14 October 2019, or the email from my associate sent to the parties on the same day. Further, the applicant has not submitted he would suffer prejudice if I were to grant the Minister leave to rely on his written submissions; and he in any event made submissions “[s]ubject to the fact that the First Respondent’s lawyers failed to comply [with] the orders made on 1 October 2019”.[2]
[2] Applicant’s Outline of Reply Submissions, [6]
Neither the applicant nor the Minister has requested a further hearing on whether I should permit the applicant to rely on the amended application and, if so, whether any of the grounds contained in the amended application should succeed. Accordingly, in these reasons for judgment I will consider the grounds contained in the application as filed, and then consider whether I should grant the applicant leave to rely on the grounds contained in the amended application. Before I consider those questions, it will be necessary to set out the claims for protection the applicant made, the grounds on which the delegate refused to grant the applicant a SHEV, and the Authority’s reasons for affirming the delegate’s decision.
Claims for protection
The applicant stated his claims for protection on a number of occasions. It would be convenient if I first set out the claims the applicant made in his application for a SHEV; [3] and they are as follows:
[3] CB59-62
a)The applicant is a Tamil, and a Hindu. He was born in Jaffna.
b)The applicant halted his studies because there were always long periods of disturbances, and the school would regularly close. The applicant then worked at a store as a shop assistant. His father worked at a different store three to four kilometres away; and he would drop off the applicant at his work, and collect him from his work after the applicant’s father finished his work.
c)In June 2006 there was a “claymore mine attack” in Jaffna, Manakora Junction, where the applicant’s father worked. The Sri Lankan Army (SLA) took the applicant’s father on suspicion of being involved in the bomb blast. He was beaten as a result of which he was hospitalised. The applicant attached a newspaper article about the bomb blast in which the applicant claims his father’s name appears.
d)After this the applicant’s father was interrogated regularly, and on one occasion the applicant was with his father and was consequently detained by the SLA. The applicant’s father was hit in front of the applicant. The applicant was released at night after the applicant’s mother pleaded for the applicant to be released.
e)Approximately six days later the applicant’s father returned home injured. The applicant’s father arranged for the applicant to live at a different address because he feared the applicant would be taken away. The applicant moved to “Uravakaturai” where he lived with his relatives, and worked in a grocery store at “Urukavaturai”. The applicant, however, was regularly interrogated there by the CID (that is, the Criminal Investigation Department), the EPDP (that is, the Eelam People's Democratic Party), and the SLA. He was continuously asked about the operations of the LTTE (that is, Liberation Tigers of Tamil Eelam) in the applicant’s area.
f)In early 2009 the applicant obtained a national ID card and moved to Colombo. He there worked as a shop assistant. Police regularly visited the applicant to check he was registered with a police station. On the first occasion he was checked, the applicant was taken to the police station. The police called the applicant to the police station at “Urkavaturai” after the applicant provided his national ID card, and the police from “Urkavaturai” informed the police at Colombo “about the case that was on file about” the applicant and his father. At that time the applicant and his father were separately taken to a police station and investigated. The police viewed the applicant with suspicion because he had come to Colombo, and they accused the applicant of being involved with the LTTE and doing errands for them. The applicant’s boss, who was a fellow village man, paid “a large bribe” to have the applicant released.
g)After this the applicant feared staying in Pettah and, through an agent, in May 2009 he secured a passport, but the agent cheated the applicant. Later in the year the applicant moved to “Kurungala [sic]” where the applicant registered with the authorities. The applicant did so “under the pretence that” the applicant’s father “was a different man”, M, “to avoid any problems, as” the applicant’s father “was continuing to face problems”.
h)In early 2012 the CID took the applicant for enquiries. They asked the applicant who was his father. When the applicant said the name “M”, the CID said the applicant was lying. The way the CID were speaking suggested to the applicant that they wanted a bribe; so the applicant paid them a bribe and he was released. The applicant did not remain in one place. He did casual work changing locations and shops at which he worked.
i)A month or two later M informed the applicant that the applicant was being searched for. The applicant feared for his safety, and he left Sri Lanka by boat.
At his interview before the delegate (SHEV interview) the applicant additionally claimed that his father had been missing since 2013; M was the applicant’s uncle and M had confessed to the applicant’s real identity when M was questioned by the authorities in 2012, and the applicant attended identification parades as part of interrogations at “Uravakaturai”.[4] The applicant also claimed that between 2009 and 2012 the applicant paid bribes to police in Colombo and in Kurunegala.[5] After the SHEV interview the applicant’s representative provided a submission in which it was claimed there was scarring on the applicant’s body which may expose him to a real chance of mistreatment on his return to Sri Lanka,[6]
[4] CB137
[5] CB142
[6] CB115
Delegate’s findings
The delegate:
a)accepted the applicant’s father was accused of involvement in the “claymore mine attack” in 2006 and was detained for between three to six days; and while detained the applicant’s father was beaten by the SLA as a result of which he was hospitalised;
b)accepted the period the applicant was detained with his father was less than one day in 2006;
c)accepted the applicant’s father was again detained on further occasions after 2006, and that the applicant’s father was required to register in “Uravakaturai” on a regular basis;
d)accepted the applicant was sent to “Uravakaturai”, although he may not have had a complete understanding of his family’s motivation for sending him there, and that, between 2007 and 2009, the applicant was questioned on several occasions;
e)accepted the applicant was detained by police in 2009 after his move to Colombo over the question of registration; and that the applicant obtained a passport because he contemplated the possibility of leaving Sri Lanka;
f)accepted that later in 2009 the applicant moved to Kurunegala, that up to around 2012 the applicant was required to present himself to the police on a weekly basis, but did not accept these visits constituted more than routine registrations;
g)did not accept the applicant told police in 2009 that his father’s name was M, or that he was able to continue with the pretence that M was the applicant’s father for two years;
h)accepted the applicant paid “some degree of bribes to police”;[7]
i)accepted the applicant may have held several jobs and moved his place of residence on more than one occasion in 2012;
j)did not accept the applicant was in hiding from authorities during 2012;
k)although the issue of scarring was raised after the SHEV interview, accepted that the applicant has some degree of scarring from his experiences in Sri Lanka;
l)did not accept that multiple elements of the Sri Lankan state, as well as non-state actors, were actively searching for the applicant in 2012;
m)accepted the applicant left Sri Lanka illegally in 2012;
n)did not accept the applicant’s father is either missing or has been in hiding since 2013.
[7] CB143
On 15 November 2016 the delegate decided not to grant the applicant a SHEV; and on 18 November 2016 the delegate’s decision was referred to the Authority for review.
Before the Authority
After the matter was referred to the Authority the applicant’s representative provided to the Authority written submissions.[8] With those submissions the representative provided what purports to be a letter dated 4 December 2016 from an “ex-member of Parliament”.[9] The ex-parliamentary member claimed the applicant is an ardent supporter of the Tamil National Alliance (TNA), that in 2010 the applicant was helping the purported ex-parliamentary member in the election campaign, and that the applicant was helping the LTTE. The letter also claimed the applicant could not live peacefully in Sri Lanka, and, for that reason, he left Sri Lanka. The letter also stated that the EPDP and the SLA visit the applicant’s house to make enquiries about his whereabouts. The letter also referred to advice given by Amnesty International and by the foreign minister of Switzerland that those who intend to return to Sri Lanka should not do so; and that recently six or seven deportees had been taken into custody at Katunayake Airport on their return to Sri Lanka.
[8] CB174-180
[9] CB179
The Authority’s reasons
The Authority first identified the information that was before it. It referred to the submissions the applicant’s representative provided to the Authority, and to the purported ex-parliamentary member’s letter. The Authority accepted the letter itself could not have been provided to the delegate because it was written after the delegate’s decision.[10] The Authority noted, however, that:
a)the information it contained recounts information the applicant had earlier provided, and there was no reason to believe the applicant could not have obtained this information earlier and provided it to the delegate;
b)the letter makes a number of new claims about the applicant, such as his being a supporter of the TNA, and helping the LTTE, but the applicant did not advance these claims in his SHEV application or interview, having specifically advised the delegate the applicant had no involvement in Sri Lankan politics or with the LTTE.
In those circumstances, the Authority said it was not satisfied that any exceptional circumstances exist that justify considering this new information.[11]
[11] CB187, [6]
The Authority then made a number of findings. The Authority:
a)accepted the applicant was detained with his father in late 2006 and released on the same day;[12]
[12] CB190, [13]
b)accepted that in 2006 the applicant’s father was held for six days during which he was physically assaulted, and that, following a number of bomb blasts the applicant’s father was required to sign daily, and that he assisted the authorities to identify suspects;[13]
[13] CB190, [13]
c)did not accept that following his one day of detention in late 2006 the applicant was a person of adverse interest to the CID, the police or any other authority, or that he quickly moved to “Urukavaturai” to evade those authorities, although the Authority did accept the applicant moved to “Urukavaturai” in early 2007;[14]
[14] CB190, [14]
d)accepted that while in “Urukavaturai” the applicant was questioned by various authorities in relation to his involvement in LTTE activities;[15]
e)accepted that when he moved to Colombo the applicant did not follow registration protocols, as a consequence of which the applicant was viewed with suspicion and was required to sign at the police station daily for a period of time;[16]
f)did not accept the Colombo police contacted their counterparts in “Urukavaturai” who discovered the applicant and his father had a case on file; and that is because in his SHEV application the applicant said he was detained at Jaffna police station, not at “Urukavaturai” police station, and the applicant had been released from Jaffna police station three years prior in response to his mother’s plea;[17]
g)accepted the applicant was briefly detained by Colombo police but found the applicant was not of significant concern to the Colombo police because he was released following the payment of a bribe, and because in May 2009 the applicant was able to obtain a passport that would enable him to depart the country;[18]
h)accepted it to be plausible that when he moved to Colombo the applicant registered with M, but it did not accept he had any difficulty registering at that time or that he did so under the pretence he was M’s son; [19]
i)did not accept the applicant was arrested or tortured in around May 2012;[20]
j)did not accept the applicant left Sri Lanka in 2012 for the reasons he claimed because the applicant applied for a driver’s licence in June 2012 and the applicant claimed at his entry interview on 2 January 2013 that his father commenced arrangements for his travel five to six months before he departed for Australia;[21]
k)found the applicant’s oral evidence in relation to his being of interest to the Sri Lankan authorities and various groups between October 2009 and August 2012 to be “unconvincing, vague, and contradictory to information provided in his SHEV statement”; and, for these reasons, the Authority did not accept that while living in Kurunegala the applicant came to the adverse attention of the EDPD, the CID, the SLA, or the police because of any suspected links to the LTTE, or because of any suspected links between the father and the 2006 bombing, or because of his registration on M’s household card, or for any other reason;[22]
l)was not satisfied the applicant’s father is missing or hiding since 2013; and that is because in his SHEV application (which is dated March 2016) the applicant listed his father’s contact address at a place in Jaffna; and the applicant did not claim in the SHEV application that his father was missing;[23] and
m)did not accept the authorities have been seeking the applicant at his home since his departure from Sri Lanka.[24]
[15] CB190, [15]
[16] CB190-191, [18]
[17] CB191, [18]
[18] CB191, [18]
[19] CB191, [22]
[20] CB192, [23]
[21] CB192, [25]-[26]
[22] CB193, [27]
[23] CB193, [29]
[24] CB193, [29]
In the light of these findings the Authority was not satisfied the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of his past experiences in Sri Lanka, or because of his family links, or because of having any adverse profile with the Sri Lankan authorities.[25] Nor was the Authority satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of his Tamil ethnicity.[26]
[25] CB194, [31]
[26] CB194-195, [32]-[34]
Next the Authority considered the claim made by the applicant’s representative that the applicant’s scars constituted “additional profile factors” that put the applicant at risk if he returned to Sri Lanka because the scars would be exposed to the authorities. The Authority was not satisfied the applicant would be at risk of harm from the scars. The Authority relied on there being no information about how the applicant obtained the scars; the applicant’s not having advanced in his SHEV application or at the SHEV interview a claim based on his having scars; the delegate’s noting that the issue of scarring was not examined during the SHEV interview, and that the delegate had not noticed any visible scarring during the interview; and the applicant’s representative not mentioning the scarring in the submissions he provided to the Authority.[27]
[27] CB195, [35]
The Authority then made a number of findings about what would occur to the applicant if he were to return to the Sri Lanka. The Authority accepted the applicant departed Sri Lanka illegally; that on his return he will be questioned by police and charged under the Immigrants and Emigrants Act and will be arrested at the airport in the course of which the applicant will be fingerprinted and photographed; he will be transported by police to the nearest Magistrate’s Court at the first available opportunity once investigations are completed after which responsibility for the custody of the applicant would lie in the courts and prison; the applicant might be held in prison until a magistrate is available; the applicant will be fined; and that none of these matters constitute serious harm, and they, in any event, are matters that are applied generally to persons who have left Sri Lanka illegally.[28]
[28] CB195-196, [36]-[40]
Having made these findings, the Authority concluded the applicant did not meet the definition of “refugee” given in s.5H(1) of the Act.[29]
[29] CB196, [41]
Finally, the Authority considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. Relying to a significant extent on the findings it had already made the Authority concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.
Grounds stated in application as filed
The application contains four grounds.
Ground 1
Ground 1 is as follows:
The Immigration Authority (IAA) failed to consider additional profile that I raised about scars in my body.
PARTICULARS:
a)In my post interview submission, my representative submitted that my scars could expose me to the Sri Lankan authorities.
b)The IAA failed to determine whether these scars would cause problems or arouse suspicion with the Sri Lankan authorities and subsequently put me in severe danger. I am at risk of harm from scars.
c)The IAA failed to review the decision of the delegate when the delegate stated that in his decision that “that [sic] no scarring was visible while the applicant remained clothed, I accept as plausible that the applicant has some degree of scarring from his previous experiences in Sri Lanka.”
d)The IAA therefore committed jurisdictional error.
This ground may be taken to make three claims. One is that the Authority did not consider the applicant’s claim that he feared harm because of the scarring. I do not accept that claim. As I have already noted in paragraph 15 of these reasons, the Authority referred to the claim, and determined it adversely to the applicant for the reasons it gave.
A second claim the ground might be considered as making is that the Authority ought to have accepted the delegate’s finding that he was prepared to accept the applicant had scarring. If that is what the applicant intends to claim, I do not accept it. The “review” the Authority is required to undertake under s.473DB is a “de novo” review; that is, a consideration by the Authority of whether, on the material before it, the applicant meets the criteria for the grant of the SHEV.[30]
[30] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [17], [85], [92]
A third claim the ground might be considered as making is that the Authority itself should have obtained further information about the scarring. Such claim, if intended to be made, I also do not accept. It was for the applicant to place before the Minister all the material on which he intended to rely in support for his claims for protection. The applicant elected to make the claim that he feared harm from the scarring, not by displaying to the delegate the scarring or by subsequently providing to the delegate photographs of the scarring, or by providing evidence of the origins of the scarring; but by a bare assertion through his representative after the SHEV interview. There is nothing in the material that was before the Authority that ought reasonably to have obliged the Authority to consider whether it should exercise its discretion under s.473DC of the Act to obtain information relating to the applicant’s scarring.
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
The IAA failed to consider whether I would be at risk if I failed to raise the fine because I departed illegally from Sri Lanka.
PARTICULARS
a)The IAA decided that “on return to Sri Lanka, I find the applicant would be charged and fined under the IAEA and then released”
b)I might be imprisonment [sic] and subjected to poor prison conditions in Sri Lanka.
c)I might face serious harm during my detention because of my scars and authorities would think I was part of LTTE.
d)I might face harm because I had issues with the Sri Lankan Authorities in the past.
e)The IAA therefore committed jurisdictional error.
The ground itself claims the Authority failed to consider the risk of harm the applicant would face if he failed to raise the fine which the Authority was satisfied would probably be imposed on the applicant for having left Sri Lanka illegally. The ground implies that a premise of the Authority’s being satisfied the applicant would not suffer serious or significant harm on his return to Sri Lanka was that the applicant would not only be fined, but that he would be able to pay the fine. That, however, is not what the Authority found. The Authority found that “the imposition of any fine, surety or guarantee would not of itself constitute serious harm”. In other words, this is a finding that the applicant’s being fined would not constitute serious harm.
The particulars to ground 2 do not appear to relate to the ground. The particulars appear to claim the Tribunal did not consider whether, because of his scarring, the applicant would be suspected of having been part of the LTTE. As I have already noted, the Authority considered, but determined adversely to the applicant, the claim that the applicant had scarring that constituted “additional profile factors” that placed the applicant at risk of harm if he returned to Sri Lanka because the scars would be exposed to the authorities.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The IAA failed to consider new information which was in [ex-parliamentary member’s] (ex-MP of Jaffna) letter dated 04/12/2016, submitted to the IAA.
PARTICULARS
a)I was an ardent supporter of the Tamil National Alliance and I was involved in a 2010 election campaign.
b)Contents of the letter was ignored by the IAA, about the risk of a failed asylum seeker and about the operation of the Prevention of Terrorism Act which is in force.
c)My life was at risk and it was an exceptional circumstance for the IAA to consider.
d)The IAA therefore committed jurisdictional error.
In his counsel’s written submissions, the Minister submits ground 3 does not identify with any degree of precision the exact basis of the challenge to the Authority’s “finding at [6]”, that being the paragraph in which the Authority considers and determines adversely to the applicant whether there are exceptional circumstances justifying the Authority’s considering the ex-parliamentary member’s letter. The Minister, however, has made submissions on the assumption that ground 3 raises the claim that the Authority misconstrued or misapplied s.473DD, and, in particular, it considered and applied the expression “exceptional circumstances” too narrowly. Here the Minister submitted the Authority took into account all relevant facts relating to the provision of the ex-parliamentary member’s letter “including its probative significance”. The Minister submitted this is reflected by the manner in which the Authority considered the new claims contained in that letter concerning the TNA, and the applicant’s assisting the LTTE. The Authority, the Minister submits, rejected “the information on the basis that the applicant at no point advanced the claims”, and had “indeed disavowed involvement in Sri Lankan politics of the LTTE”; and that these matters “went beyond the merely temporal questions relating to when the . . . letter was provided”; instead, “it went to the credibility of the new information”.[31] Counsel for the Minister repeated the substance of these submissions at the hearing before me.
[31] First Respondent’s Outline of Submissions filed on 24 October 2019, [32]
I recently reviewed the principles relating to the operation of s.473DD of the Act in ANL17 v Minister for Immigration, and I will not repeat what I said in that case.[32] I will, however, refer to the two cases on which counsel for the Minister relies. The first is DSD16 v Minister for Immigration and Border Protection.[33] In that case the Authority decided the preconditions provided by s.473DD were satisfied in relation to three letters the applicant provided to the Authority. The Authority gave the following reasons (emphasis added):[34]
The applicant claims these letters were not previously available to him when the case was presented to the delegate. While I am prepared to accept that the applicant may not have had these documents in his possession earlier, no explanation has been provided as to why he had not been able to obtain them earlier, particularly given they pre-date [sic] the delegate’s decision by eight to eighteen months and all also predate the application. The referred material also does not show the applicant had indicated to the delegate that he was seeking to obtain further evidence, or indeed that his wife was being threatened or that he had previously been arrested.
[32] ANL17 v Minister for Immigration & Anor [2020] FCCA 637, at [43]-[52]
[33] DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782
[34] DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782, at [20]
The visa applicant appellant submitted the Authority concentrated on the “temporal issue” of why the documents had not been provided earlier, and, for that reason, the Authority failed to engage with whether there were exceptional circumstances beyond that aspect. Colvin J did not accept that submission. His Honour said (emphasis added):[35]
In my view, the Authority was not confining its consideration in the manner submitted. It was not limiting its consideration to whether there had been an explanation for delay. It was observing that the fact that one document raised matters that had not been advanced before and there was no explanation as to why the documents were not previously provided were reasons why exceptional circumstances had not been demonstrated. The reason those observations were significant because they were matters that affected the credibility of the documents and the information within them.
[35] DSD16 v Minister for Immigration and Border Protection [2018] FCA 1782, at [24]
The second case on which the Minister relies is the Full Federal Court’s judgment in DLB17 v Minister for Home Affairs.[36] In that case the visa applicant appellant submitted the Authority made a jurisdictional error in the construction it gave to new information which it found contradicted information the applicant had given to the delegate. The appellant submitted the Authority’s construction of the new information was based on the “slenderest of evidence”, and this manifested a misunderstanding by the Authority of the correct meaning of “exceptional circumstances” in s.473DD(a) of the Act.[37] The Full Federal Court did not accept the appellant’s submissions. Before so concluding, the Full Federal Court set out the following principles:[38]
In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.
[36] DLB17 v Minister for Home Affairs [2018] FCAFC 230
[37] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [17]
[38] DLB17 v Minister for Home Affairs [2018] FCAFC 230, at [22]
Unlike DSD16 and ground 3, the question in DLB17 was not whether the Authority failed to consider the credibility of the new information when assessing whether exceptional circumstances existed justifying the Authority’s considering that information; the question was whether the Authority acted unreasonably or without evidence in finding that the new information contradicted evidence the appellant had given to the delegate. Nevertheless DLB17 is relevant because the Minister submits that the Authority in the case before me did that which the Authority did in DLB17, namely, assess the credibility of the new information contained in the ex-parliamentary member’s letter, when determining whether there were exceptional circumstances justifying its considering that information.
I am not satisfied the Authority construed s.473DD of the Act too narrowly by restricting its consideration of “exceptional circumstances” in s.473DD(a) without reference to the matters identified in s.473DD(b), and, in particular, the matters identified in s.473DD(b)(ii). As counsel for the Minister submitted, when considering whether it would have regard to the information contained in the ex-parliamentary member’s letter, the Authority did not only consider matters that were relevant to whether the applicant could have put that information to the delegate before the delegate made his decision; the Authority also considered matters that could only have been relevant to its assessment of the credibility of the information, namely, that it contained claims the applicant not only did not advance before the delegate, but which the applicant disavowed.
For these reasons, ground 3 fails.
Ground 4
Ground 4 is as follows:
The IAA has failed to determine whether I had [a] well-founded fear upon return to Sri Lanka because of the issue of harm caused by the EPDP.
PARTICULARS:
a)I was regularly interrogated by the CID, EPDP and the Sri Lankan Army and I was continuously asked about the LTTE operations in our area.
b)The IAA did not conduct a proper review as regards the EPDP issue even though the delegate had failed to consider this important issue.
c)The IAA fell into error when it failed to review this issue which was part of my claim.
This ground asserts there was before the Authority a claim that the applicant feared harm from the EPDP, and that part of that claim included a claim that he was regularly interrogated by the CID, the SLA, and the EPDP; but the Authority failed to consider the claim to the extent it related to the EPDP.
It is true that the applicant claimed he was regularly interrogated by the CID, EPDP, and the SLA, during which he was continuously asked about the operations of the LTTE in the applicant’s area. The Authority accepted, however, that, while in “Urukavaturai” the applicant was questioned by “various authorities” in relation to his involvement in LTTE activities.[39] On a fair reading of its reasons, the Authority used the expression “various authorities” to refer to those entities the applicant claimed regularly interrogated him. Thus, I am not satisfied the Authority failed to consider the applicant’s claim based on his being regularly interrogated by the CID, the SLA, and the EPDP.
[39] CB190, [15]
Ground 4, therefore, also fails.
Amended application
The amended application contains five grounds.
Ground 1
Ground 1 is as follows (errors and emphasis in original):
The Immigration Assessment Authority (hereinafter referred as “the IAA”) made a jurisdictional error by making findings of fact without regard to the circumstances of the SHEV application and the SHEV interview on 14 October 2016 and/or adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD of the Migration Act 1958.
Particulars:
a.The IAA found at [paragraph 6] of its decision that the applicant did not advance either of these claims in his SHEV application and his SHEV interview on 14 October 2016, the applicant specifically advised the delegate that he had no prior involvement in Sri Lankan politics or with the LTTE. I am not satisfied that any exceptional circumstances exist that justify considering this new information.”
b.The IAA however at [paragraph 11] of its decision said “ ..... While at time vague, the applicant’s oral evidence in the SHEV interview was broadly consistent with his written statement of 23 March 2016 (SHEV statement) that accompanied his SHEV application. I accept the applicant’s claim that the SLA suspected his father of having links to the LTTE and physically assaulted him. ...... The country information also documents the detention and mistreatment of ordinary Tamils during the civil war, noting that LTTE support was at times imputed on the basis of ethnicity.”
c.The IAA also said at [paragraph 13] “As noted, I find the applicant’s evidence throughout the SHEV application to be broadly consistent in relation to the events of 2006. I accept that the applicant was detained with his father in September or October 2016 and released the same day. I also accept that the applicant’s father was held for a period of six days and was physically assaulted during this period. I further accept it is plausible that following a number of bomb blasts the applicant’s father was required to sign daily and that he assisted the authorities to identify suspects”. The IAA also said [at paragraph 15] “I accept it is plausible that as a young Tamil living in an army controlled area he was questioned by various authorities in Urukavaturai in relation to his involvement in LTTE activities.
d.The IAA in making findings of fact or conclusions as to credibility by reference to the SHEV application and the SHEV interview was required to do so in light of the circumstances of that interview: MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 . . . . at [56]-[57].
e.The IAA failed to do so.
f.The IAA had also adopted an inappropriately narrow scope of the term “exceptional circumstances in applying s 473DD of the Migration Act 1958.
g.White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the line of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” at [104] and (the authorities cited by his Honour at [39]-[41] of BVZ16 v Minister for Immigration and Border Protection and [sic] Anor).
h.The IAA reasoned that, because the applicant did not advance either of these claims in his SHEV application and his SHEV interview on 14 October 2016, the applicant specifically advised the delegate that he had no prior involvement in Sri Lankan politics or with the LTTE. I am not satisfied that any exceptional circumstances exist that justify considering this new information.”
i.The refusal to accept new information by the Authority was also legally unreasonable.
Ground 1 makes two clear claims. One is that the Authority applied an inappropriately narrow construction of “exceptional circumstances” as that expression appears in s.473DD of the Act. When considering ground 3 of the application I concluded I was not satisfied the Authority applied a narrow construction of “exceptional circumstances”. There is nothing in ground 1 of the amended application or in the particulars appended to that ground that suggests the Authority applied a narrow construction of that expression. I therefore do not consider ground 1 to be reasonably arguable, and I would not grant the applicant leave to rely on ground 1 to the extent it claims the Authority applied an inappropriately narrow construction of “exceptional circumstances”.
The second clear claim ground 1 of the amended application makes is that the Authority’s decision not to consider the information contained in the ex-parliamentary member’s letter was legally unreasonable. The basis of that claims appears to be the findings in favour of the applicant the Authority made in paragraphs 11, 13, and 15 of its reasons.
In Minister for Immigration and Border Protection v Eden the Full Federal Court said that the concept of legal unreasonableness is not amenable to rigidly defined categorisation or a precise textural formulary, although the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. The task, however, is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[40]
[40] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, at [65]
I am not satisfied it is reasonably arguable that the Authority’s decision not to consider the ex-parliamentary member’s letter, or the reasons it gave for that decision, were legally unreasonable. It is beyond argument that the matters the Authority considered relevant to whether it should consider the information in the letter, namely, there was no apparent reason the applicant could not have obtained that information earlier, and the information contained claims the applicant had not only not made before the delegate, but had stated disavowed, were matters that were relevant to the exercise of the power conferred by s.473DD of the Act, and that it was reasonably open to the Authority to decide it would not consider the new information having regard to those matters.
Paragraph (d) of the particulars to ground 1 appears to claim the Authority failed to assess the credibility of the applicant’s claims in light of the circumstances of “that interview”. That appears to be a reference to the SHEV interview although, given the applicant refers to MZZJO v Minister for Immigration and Border Protection, the applicant may also intend to refer to the applicant’s entry interview held on 2 January 2013. The Authority referred to evidence the applicant had given at the interview that his father commenced arrangements for his travel five to six months before he departed for Australia, and relied on that evidence, together with the applicant’s evidence that he applied for a driver’s licence in June 2012, for not accepting the applicant had left Sri Lanka in 2012 for the reasons he claimed. [41] The particulars to ground 1 do not identify any circumstances in relation to the applicant’s entry interview that ought to have led the Authority to treat the evidence the applicant gave at that interview with particular care. Nor is there any evidence to suggest any such circumstances existed. Further, neither the applicant nor his representative submitted to the delegate or to the Authority that any such circumstances existed.
[41] CB192, [26]
I am satisfied that none of the matters raised in ground 1 of the amended application are reasonably arguable. I propose, therefore, not to grant the applicant leave to rely on ground 1 of the amended application.
Ground 2
Ground 2 is as follows (errors in original):
The IAA made a jurisdictional error by making material findings of fact which were legally unreasonable
Particulars
a.The IAA could not make findings which were legally unreasonable in the sense that they lacked an evident and intelligible justification: Minister for Immigration and Border Protection v SZVFW [2018] HCA at [10] and [82];
b.As part of the law of legal unreasonableness, the Authority could not impose an arbitrary standard of knowledge upon the Applicant: BWC16 v Minister for Home Affairs [2018] FCA 1375 at [59] per Thawley J;
c.In order to establish jurisdictional error, the findings so affected by legal unreasonableness also had to be material to the Authority’s decision in the sense that there was some possibility that if the findings were made without such unreasonableness they could have changed the result: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31];
d.The IAA found at [paragraph 6] of its decision that the Applicant had first claimed to be helping the LTTE (Liberation Tigers of Tamil Eelam);
e.The Authority said at [paragraph 18] of its decision that “I accept that as a consequence of failing to follow the correct registration protocol in Colombo the applicant was viewed with suspicion and required to sign at the police station daily for a period of time”.
f.The Authority further said at [paragraph 27] of its decision that:
i.In a post-SHEV interview submission, dated 27 October 2016, the applicant’s representative submitted the quality of interpreting from Tamil to English was of a poor standard and a number of corrections were documents. his [sic]migration agent;
ii.The applicant’s representative also submitted that applicant was suffering from mental health issues at the time of the SHEV interview, which impacted his ability to transfer questions to the full extent.
g.As a result of the above, the IAA conclude at [paragraph 30] of its decision that “I am not satisfied that the applicant faces a real chance of serious harm on account of his past experiences in Sri Lanka, his familial links, or due to having an adverse profile with the Sri Lankan authorities upon his return to Sri Lanka, now or in the foreseeable future.
This ground appears to be directed to the Authority’s conclusion in paragraph 30 of its reasons, the effect of which is set out in paragraph (g) of the particulars (impugned finding). It claims the finding was legally unreasonable, given the matters set out in paragraphs (d), (e), and (f) of the particulars to the ground.
a)That the Authority found the applicant first claimed he helped the LTTE when his representative provided the ex-parliamentary member’s letter to the Authority is incapable of supporting any case that the impugned finding is legally unreasonable. The applicant does not claim he had made a claim to the delegate that he helped the LTTE. In any event, it is beyond argument that the Authority did not in making the impugned finding rely on the applicant’s having first claimed he helped the LTTE after the delegate’s decision.
b)The Authority accepted the applicant was viewed with suspicion as a consequence of his not following correct registration protocol. That, however, is incapable by itself of supporting an arguable case that the impugned finding was unreasonable. The Authority relied on other findings, and reasoning based on those findings, which the ground does not identify or otherwise claim was unreasonable.
c)The Authority referred to the post-SHEV submissions dated 17 October 2016. The Authority was not satisfied the matters stated in the submissions account for what the Authority considered to be significant discrepancies between the SHEV statement and the SHEV interview. In any event, the Authority said it did not consider that “the claimed inaccuracies are significant in the overall context of the applicant’s claims”. Thus, that the applicant made the submissions in the post-SHEV submissions to which the Authority referred is incapable of supporting an arguable case that the impugned finding was unreasonable.
For these reasons, the matters raised in ground 2 of the amended application are not reasonably arguable and, for that reason, I do not propose to permit the applicant to rely on ground 2.
Ground 3
Ground 3 is as follows (errors in original):
The IAA failed to consider adequately the Sri Lankan Authorities would be aware of the applicant’s familial connections to the LTTE on return to Sri Lanka and that effective protection measures are not available to him in [sic] on return.
Particulars:
a.The Authority said “UNHCR notes that persons with family links to former LTTE members may be of interest to the authorities although I note this information is now some seven years old.” In its 2018 report DFAT notes it cannot confirm reports of persecution of relatives of former LTTE members but understands that close relatives of high profile former LTTE members who are wanted by the Sri Lanka [sic] authorities may be subject to monitoring.” at [paragraph 26].
b.The Authority said “I accept the applicant is a . . . year old Tamil from the east of Sri Lanka and that Sri Lanka is the receiving country. I accept he was abducted in a white van and questioned by authorities in 2006 in relation to his older sister’s LTTE links. . . . I accept his data may have been leaked and accessed in a 2014 Departmental data breach and that he will be identifiable as someone who has attempted to seek asylum in a Western country.” At [paragraph 23] of its decision.
c. conflict, as did many other Tamil civilians at that time.” at [paragraph 14] of its decision.
d.Despite the above findings the Authority said “I am not satisfied the applicant has a well-founded fear of persecution because of his and his family’s experiences in Sri Lanka and India, LTTE links, or because he is a young Tamil male from the east of Sri Lanka who illegally left for India in 2006, has been away from Sri Lanka for 13 years in Australia for some six, has attempted to seek asylum in a Western country or because of his lack of identity documentation or the 2014 data breach. at [paragraph 35].
e.Thereby the Authority fell into jurisdictional error.
The particulars to this ground appear to relate to some other case, not the case that was before the Authority. The applicant is not the age asserted in paragraph (b) of the particulars; the Authority did not refer to a 2018 DFAT report; the applicant did not claim he was abducted in a white van in 2006 because of his sister’s links with the LTTE; and the applicant did not claim he fled to India in 2006 or at all.
For these reasons, ground 3 does not raise any arguable case of jurisdictional error, and I propose to order that the applicant not be permitted to rely on it.
Ground 4
Ground 4 is as follows (errors in original):
The IAA fell into jurisdictional error for not considering the applicant’s claims cumulatively or collectively, he had a well-founded fear of persecution.
Particulars:
a.In W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21] French J stated: “It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant”
b.See also Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478.
c.See also the observations of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 294-295.
This ground is a bare assertion that the Authority failed to consider the applicant’s claims cumulatively. It is premised on the view that the Authority was required to consider the applicant’s claims “cumulatively”, but the ground does not identify the nature or scope of any such asserted duty,[42] or the claims the ground claims the Authority failed to consider cumulatively, or the matters on which the ground relies for claiming the Authority did not consider those claims cumulatively. In any event, the Authority stated it considered the applicant’s claims “individually and cumulatively”.[43]
[42] See Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, at [34]: “It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.”
[43] CB196, [41]
For these reasons, ground 4 also does not raise any arguable case of jurisdictional error, and I propose to order that the applicant not be permitted to rely on it.
Ground 5
Ground 5 is as follows:
The IAA made a jurisdictional error of legal unreasonableness with respect to the Applicant’s family.
Particulars:
a.The Authority could not make findings which were legally unreasonable in the sense that they lacked an evident and intelligible justification: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82];
b.As part of the law of legal unreasonableness, the Authority could not impose an arbitrary standard of conduct in relation to the Applicant: BWC16 v Minister for Home Affairs [2018] FCA 1375 at [59] Thawley J;
c.The Authority was required not to make an arbitrary assumption concerning the nature or conduct of the Applicant’s family: DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [33] per Gleeson J;
d.The Authority made such assumptions about the behaviour of the Applicant’s family towards the Applicant at [paragraph 67] of its decision.
This ground does not identify that which it claims constitutes legal unreasonableness. Paragraph (d) asserts the Authority made assumptions which it does not articulate, other than stating the assumption is made in “paragraph 67” where the Authority’s reasons for decision comprises only 51 paragraphs, none of which is identified as paragraph 67.
Ground 5, therefore, also does not raise any arguable case of jurisdictional error, and I propose to order that the applicant not be permitted to rely on it.
Ground 6
Ground 6 is as follows (errors in original):
The IAA made a jurisdictional error by failing to consider a claim of the applicant or integer thereof or an important item of evidence or failing to give proper genuine and realistic consideration to the applicant’s case or by legally unreasonable.
[Particulars]
a.The IAA said at [paragraph 32] “while I accept that the applicant may still encounter a degree of societal discrimination, I am not satisfied that this would constitute serious harm”
b.The IAA’s reasoning recounted at (a) did not properly or logically have regard to the relevant Applicants’ claims of ongoing interest to the Sri Lankan authorities due to his actual or imputed personal or familial links to the LTTE, or on account of his previous claimed interactions with the EPDP, the CID, the SLA or the police.
Ground 6 asserts the Authority failed to consider a claim or an integer of a claim or important evidence, but it does not identify the claim, integer, or evidence it is claimed the Authority failed to consider.
Paragraph (a) of the particulars attacks the Authority’s finding that although the applicant may still encounter societal discrimination, it was not satisfied such discrimination would constitute serious harm. That is a finding that was reasonably open to the Authority to make.
Paragraph (b) of the particulars is a general assertion the Authority did not properly or logically have regard to the matters the applicant claimed would expose him to ongoing interest by the Sri Lankan authorities due to the matters he claimed in support of his application for a SHEV. That is not reasonably arguable. The Authority considered the applicant’s claims and, for reasons that were open to it, including country information, concluded it was not satisfied that the matters on which the applicant relied, most of which it accepted, would expose the applicant to a real chance of serious or significant harm if he were to return to Sri Lanka.
Ground 6, therefore, also does not raise any arguable case of jurisdictional error, and I propose to order that the applicant not be permitted to rely on it.
Applicant’s submissions filed on 2 December 2019
In addition to objecting to my considering the Minister’s written submissions filed on 25 November 2019, the applicant, in his written submissions filed on 2 December 2019 makes three submissions. The first is that the claims an applicant makes before a delegate must be considered by the Authority.[44] The applicant, however, does not submit the Authority failed to consider the claims the applicant made before the delegate. In any event, it is apparent from the Authority’s decision that it did have regard to the claims the applicant made before the delegate.
[44] Applicant’s Outline of Reply Submissions, [6.a.]
Second, the applicant submits there is a danger in describing the Authority’s decision-making function in terms of having to determine what is the correct or preferable decision.[45] This submission does not constitute a claim of jurisdictional error by the Authority; it is a submission that, when exercising its jurisdiction under s.476 of the Act, this Court should not characterise the Authority’s duty under s.473CC of the Act to review a fast track reviewable decision.
[45] Applicant’s Outline of Reply Submissions, [6.b.], referring to Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136, at [92]
I have not in these reasons for judgment determined the applicant’s claims by applying as a premise the proposition that the Authority’s duty under s.473CC of the Act is to arrive at the correct or preferable decision. I have not accepted each ground on which the applicant relies for the reasons I have given; and I have proceeded on the basis that the “review” the Authority is required to undertake under s.473DB is a “de novo” review; that is, a consideration by it of whether, on the material before it, the applicant meets the criteria for the grant of the SHEV.[46]
[46] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, at [17], [85], [92]
Third, the applicant sets out what purports to be a quote from the judgment of Judge Driver in DZU16 v Minister for Immigration[47] that the “particular facts of the case may mean that there has been an unreasonable failure by the Authority to consider the exercise of powers conferred upon it”; and the applicant submits the Court in that case also said that the discretion in s.473DC(3) of the Act exists to be exercised in an appropriate case, in aid of the objective of making the correct or preferable decision.[48] Whether or not these passages reflect what Judge Driver said in DZU16, the applicant does not submit the occasion for the Authority to exercise its powers under s.473DC arose, or that, if it did, the Authority acted unreasonably, or that, if it did act unreasonably, the manner in which it acted unreasonably.
[47] DZU16 v Minister for Immigration [2017] FCCA 851
[48] Applicant’s Outline of Reply Submissions, [6.c.]
Conclusion and disposition
The applicant has not succeeded on any of the grounds contained in the application; and I have concluded that none of the grounds contained in the amended application are reasonably arguable. I propose, therefore, to order that the applicant not have leave to rely on any of the grounds contained in the amended application, and to dismiss the application.
I also propose to order that the applicant pay the Minister’s costs set in the amount of $7,206 being the costs provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) at the time the applicant commenced this proceeding on 23 January 2017. I will, however, reserve to the parties liberty to apply within fourteen days to vary or discharge this order for costs because the parties have not made submissions on costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 1 May 2020
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