Aiq21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 168
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 168
File number: PEG 31 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 19 October 2021 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal engaged in an active intellectual process – whether the Tribunal failed to take into account or give weight to a relevant consideration – whether there was a failure to give reasons in respect of complementary protection findings – whether the Tribunal’s decision was illogical or irrational – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5J(1), 5(1), 36(2)(a), 36(2)(aa), 476 Cases cited: Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Lafu v Minister for Immigration and Citizenship [2009] FCA 140
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 149
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Home Affairs [2019] FCAFC 3
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZTFZ v Minister for Immigration [2014] FCCA 1861:
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of hearing: 21 September 2021 and 11 October 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Gerrard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 31 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIQ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
19 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application 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 KENDALL:
BACKGROUND
The applicant is a citizen of the People’s Republic of China (Court Book (“CB”) 21, 44, 69, 96-97, 121, 207 & 227). She arrived in Australia in May 2017 (CB 27, 96, 134 & 227) as the holder of a Visitor (Class FA) (Subclass 600) visa (CB 96, 134 & 227). That visa expired in August 2017. The applicant remained in Australia as an “unlawful non-citizen” until September 2017 (when she was granted a Bridging A (Class WA) (Subclass 010) visa) (CB 111, 134).
On 26 July 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 12-75). She claimed to fear harm on the basis that she was “under threat of the local government” in her home town. She also claimed that she was subjected to “ill treatment” and “accidents” and wanted to “escape … their persecution” and threats
(CB 41-42). In a statement submitted with her visa application, the applicant also detailed a property dispute between her parents and the “Village Head”. In relation to that issue, the applicant claimed that she had “lodged a complaint regarding that dispute and was detained for 10 days with limited food and water and, upon her release, was warned by police to be careful”. She also claimed to have “received threats” and stressed that she and her husband had received “warnings” (“through incidents which appeared to be accidental but could have resulted in serious injury or death”) (CB 69-72).
The applicant attended an interview before a delegate of the first respondent (the “Minister”) on 1 November 2017 (CB 87-88).
On 29 November 2017, the delegate refused to grant the applicant the visa (CB 96-105). The delegate was not satisfied that the applicant or her husband had been harmed in the past as claimed and did not accept that the applicant’s claims were genuine (CB 100).
It appears from the material before the Court that a further copy of the delegate’s decision was provided to the applicant, through her representative, on 30 November 2017 (CB 111-120). Aside from the date change, there does not appear to be any difference in the content of the decision record.
On 5 December 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision (CB 121-122).
On 7 September 2020, the Tribunal invited the applicant to attend a hearing scheduled for 15 October 2020 (CB 131-133). On 6 October 2020, the applicant’s newly appointed representative requested a postponement of that hearing (CB 136-137). On 7 October 2020, the Tribunal agreed to postpone the hearing (CB 144-146).
On 8 October 2020, the applicant’s previous representative provided a completed response to the hearing invitation and written submissions to the Tribunal (CB 147-157).
On 9 October 2020, the Tribunal sought clarification from both representatives as to who was acting for the applicant and whether the submissions provided would be relied upon
(CB 158-163). On 9 October 2020, the Tribunal also invited the applicant to attend a hearing before it scheduled for 10 November 2020 (CB 167-169).
On 15 October 2020, the applicant’s new representative confirmed that the applicant would seek to rely on the written submissions prepared by her previous representative (CB 170-172). The applicant’s new representative also confirmed this via email on 2 November 2020 (CB 181-183).
On 9 November 2020, the Tribunal advised that, due to circumstances beyond its control, the matter was no longer able to be heard on 1 November 2020 and a new hearing date would be provided in due course (CB 184-186).
On 27 November 2020, the Tribunal invited the applicant to attend a hearing before it scheduled for 17 December 2020 (CB 193-196).
The applicant appeared before the Tribunal on 17 December 2020 with the assistance of an interpreter in the Mandarin language. Her representative did not attend the hearing
(CB 212-215).
On 23 January 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 226-236).
On 15 February 2021, the applicant lodged an application for judicial review in this Court (CB 1-7). That application was supported by an affidavit annexing a copy of the Tribunal’s decision (CB 8-11). The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when applicants are unrepresented and have struggled to clearly articulate their concerns. In those circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. A more detailed overview of the Tribunal’s decision is particularly helpful in that regard.
The Tribunal’s decision is 11 pages long and spans 39 paragraphs. It also includes 3 pages of extracts from relevant legislative provisions.
The Tribunal began by identifying the type of visa under review. The Tribunal explained that the delegate had refused to grant the applicant the visa (at [1]), outlined the applicant’s migration history and confirmed that the applicant had lodged an application for the visa on 26 July 2017 (at [2]).
The Tribunal then set out the applicant’s protection claims, as outlined in her visa application, as follows (at [3]):
a.The applicant claims to have been the victim of persecution in China on account of her opposition to the illegal seizure of her family’s land.
b.More particularly the applicant claims that she comes from a rural family. Until 10 years ago (that is, around 2007), she and her parents were classified as ‘farmers’. Her parents were held a ‘Permit to Use of Farm Land’ and were allocated 20MU of land.
c.Around a decade ago farming households, including the applicant’s, were relocated to urban areas and ‘upgraded’ to ‘worker’ classification for employment in factories or other businesses. Part of this reform process included an option for farmers who have held a ‘Permit to Use of Farm Land’ for more than 10 years to purchase that land from the local Government at a minimal cost.
d.The applicant’s family qualified to purchase their land under this reform and the applicant’s mother applied to purchase her blocks. She was asked by the Village Head and Party Secretary, a Mr Wu, to submit her Permit along with her application.
e.The application has not proceeded as expected, and the applicant’s inquiries of Mr Wu as to its progress have proved fruitless. The applicant claims that ‘buildings’ have been seen on the land in question and that she has discovered that the ownership of the block has been transferred to Mr Wu’s wife.
f.The applicant and her mother went to see Mr Wu at his office in May of 2016 and were told that he had retired two years previously and his position had been taken over by a Mr Tao. The applicant told her story to Mr Tao and lodged a complaint against Mr Wu but heard nothing of it.
g.The applicant went to see Mr Wu, however he denied any involvement with the applicant’s family’s land. The meeting became ‘heated’ and the applicant claims that Mr Wu threatened her safety and the lives of her ‘loved ones’.
h.The applicant and her mother then went to the local police station; however, they could furnish no proof of their allegations and were told that there was nothing the police could do.
i.The applicant stated that she did not give up and began to post ‘accusation posters’ around the Village Head’s office. She claims that ‘very soon’ she was apprehended and put in a detention room inside the local police station for 10 days. She was not allowed visitors and had limited food and water. Before being released she was warned by the officer in charge that if she continued her protests or complaints she would ‘need to be careful’.
j.The applicant claims that, although she had ‘no concrete evidence’ she continued to write to ‘senior government levels’ in her province. She claims that in March of 2017 she received a phone call from an identified person who warned her to stop her activities or ‘something’ might happen to her or her loved ones.
k.The applicant claims that on 19 March 2017 her husband was admitted to hospital for ‘observation’ after a brick ‘narrowly missed his head’. The applicant perceived this as a ‘warning’ to her.
l.She states that two days later, she was pushed in the back while standing, waiting at a traffic intersection, and was forced out onto the road. The traffic had stopped by a change in the lights and the applicant was not hurt. The applicant could not find the person who pushed her, but also perceived this incident as a ‘warning’ to her.
m.The applicant states that as a result of these events she became concerned for her and her family’s safety and she decided to flee China. She claims to have met a number of other farmers who had similar experiences with Mr Wu and she believes that Mr Wu was part of a ‘syndicate’ who would be motivated to ‘eliminate’ her should she return to China.
The Tribunal confirmed that the applicant had attended an interview before the delegate (at [4]) and that the delegate had refused to grant the applicant the visa on the basis that the applicant’s claims were not credible. It was noted that the delegate did not accept that there was a real risk that the applicant would suffer harm if removed from Australia (at [5]).
The Tribunal then summarised the criteria, legislative provisions and mandatory considerations relevant to a visa of this sort (at [10]-[15]).
The Tribunal concluded that the decision under review should be affirmed (at [16]) and confirmed that the applicant’s evidence to the Tribunal broadly followed the statement submitted in support of her visa application (at [17]).
The Tribunal summarised the applicant’s evidence as follows:
(a)the purpose of the applicant’s travel to Australia was to seek refugee status. She travelled on a tourist visa to make an application for protection when she arrived onshore. The applicant’s husband and daughter are still in China, as are her parents. She has no family in Australia and is working here as a cleaner. The applicant obtained a passport in October 2016. She travelled to South Korea and Japan “to send milk back for her child”. Further, she learned about applying for refugee status in Australia from reading a newspaper in Japan (at [18]);
(b)the applicant fears she will be “prosecuted” upon her return to China in relation to the dispute over her mother’s land and, if she challenges that, she will be arrested by the village leader and put in gaol (at [19]);
(c)in relation to the land dispute, the applicant explained that her family was allocated a piece of land in 1955 which was approximately 20MU3 in size. The land was owned by the government but allocated to her family for farming and the applicant’s family later moved to the city and obtained “city household” status – which they have held for “many years” (at [20]);
(d)in or around 2007, holders of “farming land” were able to purchase that land from the government at a discount. In 2012, the applicant’s family decided to do so. However, upon inquiry, it was discovered that the land had “a block of buildings” erected on it and the land was held in the village leader’s name (at [21]);
(e)the applicant first raised objections about the land ownership with the village leader in 2015. She and her parents attended a meeting with the village leader and his wife. The applicant claims the village leader “denied” the land use certificate held by her family and, when she told the village leader she would report him to the police, he told her “you can do whatever you like” (at [22]);
(f)the applicant raised her concerns with the police in May 2015 but was told that, as the land was in the village leader’s name, she should raise her objections with the relevant government authorities. The applicant claims to have done so but the authorities could not locate the original land use certificate (at [23]);
(g)the village leadership changed in 2016 and the applicant sought to raise her objections with the new leader. Following those attempts, the applicant was arrested in January 2017 and held in detention for 10 days. The applicant claims she was not told why she had been arrested, was not questioned and was given little food or water. The village leader had called the police in her presence but the applicant thought hey were called as part of a mediation process (at [24]); and
(h)the applicant claims to have received anonymous calls following her release which were “threatening” and was told by “the caller” not to come back to the village and that “the land [did not] belong to [her]”. The caller also said that if the applicant did not listen to what the caller said, “something bad will happen to [her]”. During the hearing, the applicant again said that village leadership was corrupt and they had “engaged in criminal activity” regarding her family’s land (at [25]).
The Tribunal continued as follows:
26.The applicant then related two incidents that she claims were connected to the land dispute:
a.firstly, in March 2017 her husband was walking near a construction site and was struck and injured by a brick; and
b.secondly, when the applicant was waiting to cross a street at a set of traffic lights she was ‘pushed in the back’ out into the street and she ‘nearly died’.
The applicant also claimed to have received threatening letters related to the land dispute. These letters, however, were not provided to the Tribunal (at [27]).
The Tribunal then assessed whether the applicant had a “well-founded fear of persecution” for any of the reasons outlined in s 5J(1) of the Act, “now or in the reasonably foreseeable future” (at [28]).
The Tribunal determined that the applicant’s claims regarding the land dispute were broadly consistent with country information which indicated that protests and petitions relating to land seizure remain common in China. Further, the treatment of individual cases of petitioners for compensation depends on the attitude of local officials towards the individuals, thus making it difficult to generalise. However, the Tribunal determined that the applicant’s description of the behaviour of local officials in connection with her family’s land was consistent with DFAT analysis (at [29]).
The Tribunal then found as follows:
30. Accordingly, the Tribunal is prepared to accept that:
a.In or around 1955 the applicant’s family were allocated approximately 20MU of faming land, and that the family farmed the land until they moved to ‘the city’ to become workers there.
b.In or around 2007 the government policy changed, and holders of farming land, including the applicant’s parents, could apply to purchase their landholding at a reduced price.
c.In or around 2012 the applicant’s parents resolved to purchase their farmland from the government however, after inquiries, they discovered that the land had been transferred to their village leaders’ name and had been developed.
d.In or around 2015 the applicant, on behalf of her parents, raised objections with the village leader, police and relevant government authorities but were unable to successfully resolve their case.
e.In or around 2016 the applicant, on behalf of her parents, raised their objections with the new village leader but did not achieve a satisfactory resolution to their claims.
31.However, the Tribunal does not consider the following claims to be made out for the reasons stated:
a.The applicant’s account of having been arrested by police was vague at the hearing and inconsistent with her written statement. In particular, in her written statement the applicant claims that her detention ended with a specific warning that she that if she continued her actions she would ‘need to be careful’; however her oral account of the event was that she was not told why she was arrested and that she was not questioned or interrogated; merely that she had ‘little food or water’. Overall, the Tribunal did not find the applicant’s oral account of this incident persuasive and the material inconsistency in the applicant’s evidence regarding the warning she allegedly received causes the Tribunal to doubt it veracity.
b.Although the Tribunal is prepared to accept that the applicant believes that her husband’s injury from being hit by a brick near a construction site and her having been ‘pushed in the back’ at a set of traffic lights are connected with her family’s land dispute, there is no evidence before the Tribunal to substantiate this belief and any fear that the applicant claims to hold on this basis is mere conjecture or surmise on her part. Accordingly, the Tribunal does not accept the applicant’s claimed fears on account of these events to be well founded.
The Tribunal noted that the applicant was able to leave China in 2016 to travel to South Korea and Japan, and in 2017 to travel to Australia. The Tribunal also noted that the applicant did not detail her “intended future conduct” should she return to China, but instead stressed that she wished to remain in Australia and might return to China to pursue her family’s land claim when there was a change in village leadership (at [32]).
The Tribunal did not consider the applicant’s claims to fear being arrested or imprisoned upon return to China (now or in the reasonably foreseeable future) to be well founded. The Tribunal did not accept that the applicant was arrested or was the target of attempted violence or intimidation in the past. The Tribunal was of the view that the applicant had not provided persuasive evidence to suggest that she was at risk now or in the reasonably foreseeable future (at [33]).
The Tribunal concluded:
34.Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution, any fear that she claims to hold in respect of the future being mere conjecture or surmise on her part. The Tribunal therefore finds that she does not face a real chance of serious harm amounting to persecution arising from these circumstances.
35.The applicant’s claims arguably relate to issues such as local corruption, land confiscations, and perceived shortcomings in China’s criminal justice system and the rule of law. These reflect broad socio-economic, political and legal conditions in China of general application. The Tribunal finds that the applicant does not have a well-founded fear of persecution arising from such general conditions. It does not accept on the available material that she faces a real chance of serious harm; or that the essential and significant reason for any harm would be a reason set out in s.5J(1).
36.After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that she has been seriously harmed in the past or that, if she were to return to China now or in the reasonably foreseeable future, there is a real chance that she will be harmed for the reason of her race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
The Tribunal then turned its attention to whether the applicant was owed the complementary protections in 36(2)(a) or s 36(2)(aa) of the Act and determined as follows in that regard:
37.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1 ). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There was no suggestion that the applicant was the member of the same family unit of a person who satisfied either provision (at [38]).
On that basis, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [39]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicant on 15 February 2021 contained two “grounds of review” as follows:
Ground One
1.The Second Respondent made a jurisdictional error in failing to take into account and give weight to a relevant consideration.
Particulars
a.The Second Respondent has a statutory duty to take into account and give weight to a relevant consideration of a matter.
b.At paragraph 37 of its Decision Record, the Second Respondent stated that:
‘Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraph (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm reasonably be regraded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of who Australia has protection obligations under s.36(2)a(aa).’
c.Although the Second Respondent, as stated at paragraph 37 of its Decision Record, considered whether the Applicant met the s.36(2)(aa) of the Act, the Second Respondent did not involve an active intellectual process directed at the consideration.
d.The Applicant described two incidents occurred in China which were closely related to the land dispute. In the two described incidents, the Applicant and her husband were targeted.
e.In addition, the Applicant received threatening letters in relation to the land dispute.
f.Should the Second Respondent have involved active intellectual process directed at the consideration, the Second Respondent would have found that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there is a real risk that the Applicant will suffer significant harm.
Ground Two
2.The Second Respondent made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds.
3.As stated above, the Second Respondence did not involve active intellectual process in considering whether as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there is a real risk that the Applicant will suffer significant harm.
4.As a result, the Second Respondent came to the conclusion that the Applicant is not a person in respect of who Australia has protection obligations under s.36(2)(aa).
5.The decision made by the Second Respondent is so unreasonable that no reasonable person would have made it. It is a decision that is illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
The applicant also filed an affidavit in support of the application for review. In effect, that affidavit sets out the relevant factual background and otherwise simply states that the applicant is “aggrieved by the Tribunal’s decision”. The affidavit does not raise any additional “grounds of review”.
The applicant was given an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed.
This matter was scheduled for a hearing on 21 September 2021. The applicant appeared before the Court without legal representation and was assisted by a Mandarin interpreter. The Court confirmed that she had received a copy of the Court Book and the Minister’s written submissions.
At that hearing, the Court raised concerns with the quality of the Minister’s written submissions. Noting that the applicant was unrepresented and noting counsel’s role as a “model litigant”, the Court expressed concerns that the submissions as presented would not assist either the Court or, perhaps more importantly, the (unrepresented) applicant.
Counsel for the Minister agreed and requested an opportunity to, in effect, “re-do” the Minister’s written submissions.
The matter was adjourned. Orders were made giving the Minister until 1 October 2021 to file further submissions and granting the applicant leave to file any reply submissions.
The Minister’s written submissions, were, unfortunately, filed late (relevantly, on 5 October 2021). No further material was filed by the applicant.
The matter was brought back on for hearing on 11 October 2021.
At that hearing, the Court asked the applicant whether she had had time to have the Minister’s submissions translated and whether she was able to proceed. Although the applicant expressed some concern about her ability to understand complex legal argument, she indicated that she wished to proceed with the hearing. The Court did so but asked counsel for the Minister to summarise the Ministers submissions in detail for the applicant so that she might seek clarification of any issues that she believed needed to be clarified.
In the circumstances, the Court made orders allowing the Minister to rely on his further written submissions filed on 5 October 2021.
To assist the applicant (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what she thought the Tribunal “did wrong”.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 (“Singh”) at [44].
The Court also explained that the Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa that the applicant now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, and having heard from the Minister, the applicant explained, in effect, that while the Tribunal was correct to find that she had not presented evidence to support her protection claims, this was because she was unable to get that evidence. The applicant then explained in detail what had happened to her and her family in China and why she believes the Tribunal erred in not accepting her claims.
On one level the applicant’s oral submissions seek no more than an impermissible merits review of the Tribunal’s decision. More broadly, however, it is arguable that she queries whether Tribunal’s approach was “illogical” or “unreasonable”. This latter argument will be addressed below in relation to the applicant’s grounds of review as articulated in her application for judicial review.
CONSIDERATION
Ground 1
In relation to ground 1, the Court agrees with the Minister that, read broadly, ground 1 alleges a failure to take into account and give weight to a relevant consideration. However, reading this ground as a whole, it can also be said that ground 1 is, in effect, an allegation that the Tribunal did not engage in an active intellectual process directed at the following:
(a)two incidents of alleged harm relied upon by the applicant in which the applicant and her husband were said to be targeted; and
(b)the applicant’s claim to have received threatening letters in relation to the land dispute; and
(c)whether or not the applicant satisfied the complementary protection criteria in s 36(2)(aa) of the Act.
The Court will address these issues in turn.
Failure to take into account or give weight to a relevant consideration
The Two Incidents of Alleged Harm
The “two incidents” the applicant references in her application for judicial review were detailed as follows (CB 41 at Q. 78):
[S]eemingly accident did happen to me where I have been pushed to the road of traffic by someone at the back while I was waiting under the traffic light in a crowd and my husband has narrowly missed a falling brick from the sky while he was walking near a construction site two days before my above event. I am sure these events did look like accidents but were in fact warnings to me.
As noted by the Minister in further written submissions filed on 5 October 2021 (at [7]), the applicant also referenced these incidents in a written statement annexed to her visa application (CB 71), as follows:
On Sunday 19 Mar 2017, I received a call from the hospital advising me that my husband had been admitted to the hospital for observation. While he was walking home after meeting a friend, a brick was seen suddenly falling from a higher floor of the building site and narrowly missed his head. What made me puzzled was that where this brick did come from on Sunday when no one worked on the site. I understood that this was a warning to me!
Two days later on Tuesday 21 Mar 2017, when I was returning home after work, I stood still in the frontline of a crowd under the traffic light waiting to cross the road with a high volume of traffic. When the light was still red and just before it turned green, someone suddenly gave me a push at my back. I was out of my control and dashed out onto the road. Luckily the light changed colour and the cars stopped in time or else I might have already lost my life. I couldn’t find who did this to me at my back and I understood that this was yet another warning to me again!
The Tribunal discussed these two incidents in its decision as follows:
3. In her protection visa application, the applicant made the following claims:
…
k.The applicant claims that on 19 March 2017 her husband was admitted to hospital for ‘observation’ after a brick ‘narrowly missed his head’. The applicant perceived this as a ‘warning’ to her.
l.She states that two days later, she was pushed in the back while standing, waiting at a traffic intersection, and was forced out onto the road. The traffic had stopped by a change in the lights and the applicant was not hurt. The applicant could not find the person who pushed her, but also perceived this incident as a ‘warning’ to her.
…
26.The applicant then related two incidents that she claims were connected to the land dispute:
a.firstly, in March 2017 her husband was walking near a construction site and was struck and injured by a brick; and
b.secondly, when the applicant was waiting to cross a street at a set of traffic lights she was ‘pushed in the back’ out into the street and she ‘nearly died’.
In relation to whether the Tribunal did or did not address these two alleged incidents of harm, the Minister submitted as follows in further written submissions filed on 5 October 2021:
9.In this matter the Court can confidently conclude that the Tribunal did actively engage in a proper, genuine and realistic consideration of the applicant’s claims in respect of the 2 incidents. In this regard, it is important to note that the applicant’s claims consisted solely of bare allegations that:
9.1.Her husband was either struck by a brick, or a brick narrowly missed hitting him;
9.2.Shortly afterwards, she felt a push in the back when waiting at a traffic crossing;
9.3.Neither the applicant, nor her husband, witnessed or otherwise knew who did this to them;
9.4.The applicant suspected that the 2 incidents were related to her family’s objections in respect of the ongoing land dispute.
10.Very clearly, the Tribunal was aware of the applicant’s claims in respect of the 2 incidents. It set them out accurately at [3](k) and (l) and again at [26]. The Minister accepts that it is not sufficient to simply obliquely refer to claims to establish that they were properly and considered. However, that is not established in this matter.
11.It is clear from [30] and [31] of the Tribunal’s Reasons that the Tribunal gave specific consideration to which parts of the applicant’s claims it was able to accept or not accept. Overall, the Tribunal accepted that the applicant and her family were embroiled in a land dispute with local village authorities. However, the Tribunal rejected each of the specific claims of harm the applicant claimed to have experienced in relation to that dispute. Specifically:
11.1.The Tribunal rejected the applicant’s claim to have been arrested and detained by the police; and
11.2.Whilst the Tribunal accepted that the applicant believed that the 2 incidents were connected to her family dispute, those claimed fears were not well founded.
13.In respect of the 2 incidents, the Tribunal gave reasons for rejecting this evidence at [31](b). It is clear from the Tribunal’s reasoning here that it understood the applicant’s claim but rejected it as being well-founded because:
13.1. There was no evidence to substantiate the claim; and
13.2.The applicant’s claimed fear was mere conjecture or surmise. In respect of this, the Tribunal accepted that the applicant may hold a subjective belief that these 2 random incidents were connected to her family’s land dispute.
The Court agrees with the Minister in this regard. Here, the Tribunal:
(a)clearly referenced the relevant claims regarding past “incidents” of alleged violence or intimidation (at [26]);
(b)considered the claims, having regard to relevant country information (specifically the DFAT country report) (at [29]);
(c)discussed the relevant country information, noting that the applicant’s description of the behaviour exhibited by the local officials was consistent with DFAT’s analysis (at [29]) and the information the Tribunal was prepared to accept (at [30]); and
(d)accepted that the applicant believes that her husband’s injury and her having been pushed at a set of traffic lights were in connection with her family’s land dispute but ultimately concluded that there was no evidence to substantiate that belief and did not accept that the applicant’s claimed fears based on those events was well-founded (at [31]).
As further noted by the Minister (at [12]), the applicant does not appear to take issue with the Tribunal’s rejection of her claim to have been arrested and detained by the police (at [31]). However, to the extent that this is raised as an issue, the Court agrees that any concerns in this regard are also rejected. The Tribunal gave clear reasons about why it did not accept the applicant’s claim in this regard. Relevantly, the Tribunal found that the applicant’s evidence at the hearing in relation to this event was “vague and inconsistent with her written statement” (at [31a]).
On the basis of the above, it cannot be said that Tribunal failed to consider the applicant’s claims in respect of the 2 incidents or indeed any other incident raised by the applicant.
The applicants concerns in this regard fail to demonstrate jurisdictional error on the part of the Tribunal.
The “Threatening Letters”
In relation to the “threatening letters”, the Court notes the Tribunal’s reference to those letters as follows:
27.The applicant also claimed to have received threatening letters in connection with the land dispute, however she did not produce these to the Tribunal.
The applicant seems to suggest that this “was not enough”.
The Court disagrees. As explained by the Minister in further written submissions dated filed on 5 October 2021:
15.It is true that the Tribunal did not make any express findings in respect of the threatening letters the applicant alleged she had been sent although it noted that those letters had not been produced to the Tribunal15. However, there was no need to make an express finding in circumstances where the Tribunal had neither the letters themselves or any indication as to what threats were contained within these letters.
16.It may be true that what constitutes the boundaries of active intellectual consideration may differ from claim to claim but it cannot extend to a requirement to consider evidence that does not exist. The Tribunal was clearly unable to make any findings in respect of the purported threatening letters. It was for the applicant to provide any evidence in support of such a claim, particularly in circumstances where that claim was raised for the first time at hearing.
The Tribunal here was charged with determining whether, based on the applicant’s past and future conduct and all relevant country information, the applicant had a well-founded fear of persecution (at [28]). There was simply no evidence here that “the letters” existed. Without that evidence the Tribunal could only “work with what it had”, concluding as follows:
33.Although the applicant claimed to have a fear of arrest and imprisonment if she were to return to China now or in the reasonably foreseeable future, the Tribunal does not consider these claims to be well founded; in particular the Tribunal does not accept the applicant's claims to having been arrested or to having been the target of attempted violence or intimidation in the past. The applicant provided no persuasive evidence to suggest that she is at risk of such behaviour now or in the reasonably foreseeable future.
The weight the Tribunal places on the evidence before it is a matter for the Tribunal (and not a matter for this Court): Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. Here, there was no evidence before the Tribunal of the letters the applicant now references and claims should have been assessed. In that context, it cannot be said that the Tribunal failed to engage with the evidence before it.
No error arises in this regard.
Failure to engage in active intellectual process
Where an applicant makes a claim or claims for protection, the Tribunal must engage in an active intellectual process addressing that claim or claims: Lafu v Minister for Immigration and Citizenship [2009] FCA 140 at [47]-[54]; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 149 at [57].
In Singh v Minister for Home Affairs [2019] FCAFC 3, the Full Court of the Federal Court stated as follows:
36The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
37In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
In addition to the principles articulated above in Singh, the Court also notes that the Tribunal will be found to have failed to perform its statutory duty if it fails to take account of cogent evidence providing substantial support to an applicant's case: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112].
Further, as stressed by the Minister in further written submissions filed on 5 October 2021 at [5.4] and [5.5], meaningful consideration of a clearly articulated and substantial or significant representation on risk of harm requires more than the decision-maker simply acknowledging or noting that the representations have been made: Minister for Home Affairs v Omar [2019] FCAFC 188 at [29]. Finally, findings at a high level of generality may be incapable of establishing that a decision-maker has meaningfully engaged with a given claim to fear harm: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [32].
On the evidence here, it cannot be said that the Tribunal failed to engage in an active intellectual process when addressing the applicant’s claims. The Tribunal:
(a)referenced the relevant claims regarding past incidents of alleged violence or intimidation (at [26]);
(b)referenced the threatening letters and noted that the applicant had not produced copies of those letters to the Tribunal for its consideration (at [27]);
(c)considered the applicant’s claims, having regard to relevant country information (specifically the DFAT country report) (at [29]);
(d)accepted the applicant’s family was involved in a land dispute and that the applicant had raised objections with police and the relevant government authorities on behalf of her parents, as well as raising objections with the new village leader and was not able to resolve their land claim (at [30]);
(e)accepted that while the applicant may believe that her husband’s injury and her having been pushed at a set of traffic lights were in connection with her family’s land dispute, ultimately concluded that there was no evidence to substantiate that belief and did not accept that the applicant’s claimed fears based on those events was well-founded (at [31]);
(f)did not accept that the applicant had been arrested or was the target of attempted violence or intimidation in the past (at [33]); and
(g)found that any fear the applicant claimed to hold in respect of the future was “mere conjecture or surmise” on the part of the applicant (at [34].
The Tribunal actively engaged with and gave a genuine consideration to the claims made by the applicant but ultimately rejected those claims on the evidence before the Tribunal.
No error arises in this regard.
Failure to give reasons in respect of findings made regarding complementary protection
In relation any concern that applicant might have that the Tribunal failed to demonstrate any proper evaluation or reasons for its findings in relation to complementary protection outlined at [37], the Court finds as follows.
The Tribunal’s consideration of complementary protection guarantees under s 36(2)(aa) of the Act is often dealt with in less detail than an applicant’s protection claims pursuant to s 36(2)(a) of the Act.
As explained in SZTFZ v Minister for Immigration [2014] FCCA 1861:
23.As Robertson J held in SZSGA v Minister for Immigration each case must depend on its own facts and, in particular, the reasons of the tribunal in each case. Further, SZSFK does not stand for the proposition that findings of fact made in the course of considering refugee claims cannot be relied upon for the purpose of assessing complementary protection claims.
24.Consistently with the principles set out in the previous paragraph it is not always necessary for the tribunal to give extensive reasons for the rejection of complementary protection claims. This is especially so where the facts giving rise to the complementary protection claims are the same as those upon which refugee claims are based. In particular:
(a)It is sufficient for the tribunal to refer to its previous findings where the effect of those previous findings was that the tribunal did not accept that the events which were said to give rise to the risk of harm actually occurred. This is consistent with the principle that the tribunal has no obligation to give consideration to a claim where the factual premise upon which the claim depends has been rejected, and;
(b)Where the tribunal, in the course of considering an applicant’s refugee claims makes a finding that there is not a real chance of the applicant suffering any harm by reason of a particular matter, it is open for the tribunal to rely on this finding when rejecting a complementary protection claim arising from the same facts. That is, a finding that there is not a real risk of any harm is sufficient to dispose of claims to fear both serious harm under s.36(2)(a) and significant harm under s.36(2)(aa).
Here, the Tribunal did not accept that the events the applicant claimed gave rise to her fear of harm actually occurred. Specifically, the Tribunal did not accept “the applicant’s claims to [have] been arrested or to [have] been the target of attempted violence or intimidation in the past” (at [33]). Further, the Tribunal found that any fear the applicant claimed to “hold in respect of the future” was “mere conjecture or surmise on her part”.
In this regard, when the Tribunal’s decision is read “as a whole”, it is clear that the Tribunal’s findings of fact in [33] to [36] were relied upon in the Tribunal’s findings at [37] with respect to complementary protection.
As explained by the Minister in further written submissions filed on 5 October 2021, in light of the forensic assessment provided by the Tribunal in relation to s 36(2)(a) of the Act, there was simply no extant claims upon which complementary protection findings could be made. As further explained by the Minister:
17.1.The Tribunal had already rejected each and every allegation of past harm. In particular, the Tribunal had rejected that the applicant had been arrested and detained by the police in respect of the protests and had rejected that the 2 alleged incidents had anything to do with her land dispute.
17.2. The Tribunal had already rejected that the applicant:
17.2.1.Had been arrested or having been the target of attempted violence or intimidation in the past;
17.2.2. Was not at risk of such behaviour now;
17.2.3. Was not at risk of such behaviour in the future.
In this matter, no additional claims were raised by the applicant. There was, in effect, “nothing else the Tribunal could assess” in relation to s. 36(2)(aa). All that could be scrutinised had been scrutinised (and in detail).
No error arises in this regard.
Ground 2
Ground 2 repeats the assertion that the Tribunal did not engage in an active intellectual process in reaching its finding in respect of complementary protection. In relation to that issue, the Court relies on its findings above at [77] to [81].
The ground also asserts, however, that the Tribunal's conclusions in this regard were “illogical, irrational and not based upon findings of fact”.
In relation to jurisdictional error on the basis of irrationality or illogicality, the Court is guided by the principles outlined in SZMDS, as follows:
131What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court notes the principles outlined in Singh, as follows:
44In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):
It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].
Noting this Court’s findings above at [77] to [81], the Court again agrees with the Minister that no concerns in relation to unreasonableness, illogicality or irrationality arise here. Relevantly, the Tribunal's analysis of the any complementary protections owed under s 36(2)(aa) of the Act follows its forensic analysis of, and ultimate rejection of, “each and every claim of harm the applicant had advanced”. In this context (where the Tribunal had rejected the “fundamental basis to the applicant's claim”), there was a logical, rational and probative basis upon which to conclude that the applicant did not meet the requirements of s 36(2)(aa) of the Act. As succinctly put by the Minister (at [23]) “having found that the applicant had not suffered the harm she had claimed (and was not at risk of suffering similar harm in the future) there was no remaining claim which warranted separate consideration in the context of complementary protection.”
No error arises in this regard. The Tribunal assessed the evidence before it (and all relevant country information) and made findings that were open to it. The Tribunal ultimately determined that the applicant’s claims were not made out.
In this context, the Tribunal’s determinations that the criteria in s 36(2)(aa) of the Act were met was entirely sound and flowed logically from the assessment of the claims and evidence that preceded that conclusion.
No error arises in this regard.
Otherwise
Throughout its decision, the Tribunal references the applicant as “the applicant”. Where a gender pronoun if referenced, the applicant is referred to “her” or “she”. However, the Court notes that at [28], the Tribunal refers to the applicant as “he” (emphasis added):
28.The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s past and future conduct if he returns to China, and relevant country information, he has a well-founded fear of persecution for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future.
The Court considers this to be no more than a typographical error. It is clear from the remainder of the decision that the Tribunal is referencing this applicant and her particular claims.
Whilst this is an unfortunate oversight, no jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed on 15 February 2021 fails to identify any jurisdictional error on the part of the Tribunal in its decision dated 23 January 2021. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 19 October 2021
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