Alw18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 182
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 182
File number(s): MLG 259 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 1 March 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – protection class XD (subclass 785) visa – where applicant made two requests for an adjournment of the Tribunal hearing to obtain legal representation and obtain copy of entry interview – consideration of whether Tribunal’s refusal of adjournment requests was legally unreasonable or resulted in the applicant not being afforded a meaningful opportunity to present his case – consideration of whether Tribunal failed to consider various claims made by applicant – where claims were expressly dealt with in Tribunal reasons – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 65, 420, 422B, 425, 425A, 427
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 136 Date of last submission/s: 25 January 2024 Date of hearing: 25 January 2024 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms M Stone of Australian Government Solicitor ORDERS
MLG 259 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALW18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant’s amended application filed on 18 January 2024 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 12 January 2018. By that decision, the Tribunal affirmed the decision of a delegate of the then Minister for Home Affairs (‘the Minister’) to refuse the applicant a temporary protection class XD (subclass 785) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is an Iranian citizen.[1] He is a Shi’a Muslim and is of Kurdish ethnicity.[2]
[1] Court book at page 65.
[2] Court book at page 65.
The applicant arrived in Australia on 4 May 2013.[3]
[3] Court book at page 141.
Application for a protection visa on 5 August 2013
The applicant made an application for a protection (class XA) (subclass 866) visa on 5 August 2013, which was subsequently converted into an application for a temporary protection (class XD) (subclass 785) visa pursuant to legislative amendments made to the Act.[4]
[4] Court book at page 39 and following; Court book at page 141.
Applicant’s claims for protection
In his application for a protection visa and supporting statutory declaration dated 2 August 2013 (‘August 2013 statutory declaration’), the applicant claims to fear persecution on return to Iran due to his:
(a)disability;
(b)ethnicity; and
(c)imputation with anti-regime political opinions.[5]
[5] See Court book at page 65 and following.
Disability
In the applicant’s Irregular Maritime Arrival and Induction Interview, conducted on 22 June 2013, in response to a question about why he left Iran, he said:
I have university degrees in accounting and because I had some medical problem I couldn't get a job in my country. I work with my father and sometimes like free jobs, like self employment jobs. So our economic state wasn't very good.[6]
[6] Court book at page 16.
The applicant has indicated that his disability refers to a deformity in his left and right thumbs, which has caused significant difficulties in his life.[7] He claims that after he finished his studies in 2011, he was exempted from military service because of his thumbs.
[7] Court book at page 16.
He also says that as a result of his medical condition, he was unable to sit a test which would have allowed him to apply for various employment opportunities. As a result, he was unable to access employment in Iran. He further states that even if he were able to sit the test, he doubted that he would be successful in obtaining employment as people with military service get preferential treatment.
For these reasons, the applicant claims to fear persecution upon returning to Iran by virtue of his membership to a particular social group, namely a group of deformed people within Iran.[8]
[8] Court book at page 68.
Moreover, as a result of the difficulties experienced obtaining employment due to his disability, the applicant says that he was forced to work for his father in his roofing business after completing his studies, where he continued working until November 2012, following which, he worked in a grocery store.[9]
[9] Court book at page 67.
The applicant also says that he started to suffer depression in 2012, which has affected his memory, amongst other things.[10]
[10] Court book at page 67.
Ethnicity
The applicant further states that Faili Kurds (the ethnic group to which he belongs) are discriminated against and denied basic services due to their ethnicity.[11]
[11] Court book at page 68.
In his August 2013 statutory declaration, the applicant referred to an occasion in 2010 where he and his girlfriend were stopped and interrogated by police.[12] The applicant claims that upon discovering that the couple were unmarried, the police took him and his girlfriend to the police station where he experienced verbal abuse and was detained for one day.
[12] See Court book at pages 65 to 66.
Further, the applicant stated that approximately three months after this incident, he and his cousin were approached by a police officer at a public telephone booth.[13] The applicant said that the police officer swore at them and demanded to know their reason for being out at that time of night. The applicant stated that he objected to the police officer swearing at him and the police officer subsequently beat him and his cousin.
[13] See Court book at page 66.
The applicant attributes these issues with police on these occasions to their perception that he holds anti-regime views.[14] As a result of his fear of harm, the applicant fled Iran in 2013.[15]
[14] Court book at page 66.
[15] Court book at page 67.
The applicant now also fears harm if he were to return to Iran as the fact that he has sought asylum overseas would further indicate to the Iranian authorities that he holds anti-regime views.[16] For example, the applicant claims that his father fears that his phone was tapped by the authorities. This fear is based on unusual messages being left on his father’s phone.
[16] Court book at page 67.
The applicant’s representative made further written submissions on the applicant’s behalf on 17 February 2015.[17] Further clarification was provided on 18 February 2015.[18]
[17] Court book at pages 96 to 106.
[18] Court book at pages 107 to 134.
On 5 May 2015, the applicant was notified by letter that a delegate of the Minister had refused his application for a protection visa.[19]
[19] Court book at pages 136 to 166.
Application for review in the Tribunal on 6 May 2015
On 6 May 2015, the applicant’s representative filed an application for review on behalf of the applicant, but also noted that they did not hold instructions beyond filing the said application.[20] From this point onwards, the applicant represented himself.
[20] Court book at page 167.
On 22 March 2017, the applicant was invited by letter to attend a hearing before the Tribunal to give evidence and present arguments in support of his application for a protection visa.[21] The hearing was scheduled to occur on 17 May 2017.
[21] Court book at pages 177 to 178.
On 10 April 2017, the applicant wrote to the Tribunal seeking a ‘postponement’ of the hearing.[22] In that email, the applicant said:
I have chosen to appoint a solicitor to assist me in this process and he has informed me that he is occupied with other court cases on the date of my hearing. He would need 4-6 weeks to familiarise himself with my refugee claims and allocate time to attend my hearing. I therefore request you to kindly postpone my hearing to late June 2017 or any day beyond that.[23]
[22] Court book at page 179.
[23] Court book at page 179.
On 2 May 2017, the Tribunal advised the applicant that ‘the Member has considered the request carefully but has decided not to postpone the hearing based on the information before him’.[24]
[24] Court book at page 180.
At pages 188 to 189 of the court book are a series of case notes. Relevantly, those case notes record a telephone conversation with the applicant on 26 April 2017:
[The applicant] called regarding his second request for postponement of hearing, last one received on 17 April 2017 … the reason given is that his solicitor is unable to make the date of the hearing, however we do not have a Representative listed for his case.
I advised him that it is in his best interest to have his solicitor provide an Appointment of Representative form to the Tribunal and then he can also request a postponement and give his reasons why he is requesting the postponement.
[The applicant] understood my request and said he will contact his solicitor with this request.[25]
[25] Court book at page 188.
Another case note, recording a further discussion which occurred on 3 May 2017, noted:
Applicant stated he had contacted DIBP and requested a copy of his entry interview but they have not addressed this. He states that he needed to know what was said in his entry interview so that he could better prepare for his hearing.
I queried if he had requested this under FOI from DIBP. Applicant explained that he had a case manager and wasn’t sure what was actually done with DIBP. I explained that he may follow this up with DIBP.
Applicant stated he needed more time to prepare of the hearing. I have explained that the member had received his first postponement request and deemed it insufficient.
I stated that he may discuss his concerns with the member at the hearing and that he may also request for time after the hearing to provide post hearing submissions.[26]
[26] Court book at page 189.
The hearing proceeded accordingly before the Tribunal member on 17 May 2017. The applicant attended the hearing, representing himself, and was assisted by an interpreter in the Kurdish and English languages.[27]
[27] Court book at page 183.
On 12 January 2018, the applicant was notified by letter that the Tribunal had affirmed the decision of the delegate to refuse the applicant a protection visa.[28]
[28] Court book at page 190.
TRIBUNAL DECISION
The Tribunal’s reasons of 12 January 2018 are set out at pages 191 to 207 of the court book.
At paragraphs [1] to [3] of the Tribunal’s reasons, the member set out the background to the application for review and the relevant law that applies. At paragraph [4], the Tribunal identified the issues in the review.
The Tribunal accepted the applicant’s identity and citizenship and that he had no right to reside in any third country.[29] The Tribunal then went on to set out the applicant’s claims and the procedural history before the delegate.[30]
[29] Tribunal decision record dated 12 January 2018 at paragraphs [5] to [6].
[30] Tribunal decision record dated 12 January 2018 at paragraphs [7] to [10].
At paragraph [11], the Tribunal noted the applicant’s request for a postponement:
11. … Given the lack of detail about his nominated legal representative and their inability to attend the hearing in the requests, and that the requests were made approximately a month before the hearing date, I decided to refuse the request. He contacted the Tribunal again on 3 May 2017 and said that he had not received his entry interview from the Department and needed more time to prepare for the hearing. He did not clearly explain why this was relevant or necessary for him to have prior to the hearing. Despite being advised that he could do so, he did not raise this as a concern at the hearing, nor indicate how not having a copy of his entry interview had disadvantaged him, nor did he seek additional time to provide further information after the hearing.
At paragraphs [14] to [55], the Tribunal then set out in detail each of the claims made by the applicant and its consideration of those matters.
At paragraph [56], the Tribunal set out its findings and conclusions reached in relation to the applicant’s claims, before moving to consider whether he would face persecution if he were to return to Iran.[31] In doing so, the Tribunal considered various country information, as well as information provided by the applicant.[32]
[31] Tribunal decision record dated 12 January 2018 at paragraphs [58] to [75].
[32] Tribunal decision record dated 12 January 2018 at paragraph [72].
At paragraphs [76] to [77], the Tribunal went on to consider the applicant’s claims cumulatively. At paragraph [78], the Tribunal concluded that having considered the applicant’s claims individually and cumulatively, it was satisfied that there was:
78.… no real chance that [the applicant] will be seriously harmed by the authorities or anyone else for reasons of his ethnicity, his actual or imputed political opinion, membership of the particular social groups of ‘disabled persons in Iran’, ‘failed asylum seekers’ and ‘failed asylum seekers who have spent time in a Western Country’, membership of his family or for any other reason on return to Iran, now or in the reasonably foreseeable future.
The Tribunal then considered whether the applicant’s circumstances enlivened Australia’s obligations under the complementary protection provisions.[33]
[33] See Tribunal decision record dated 12 January 2018 at paragraphs [79] to [84].
At paragraph [79], the Tribunal set out the relevant statutory provisions and identified the test to be applied. At paragraphs [80] to [83], the Tribunal then went on to consider the applicant’s claims. The Tribunal ultimately concluded that the applicant did not face a real risk of significant harm if he were to return to Iran.[34]
[34] Tribunal decision record dated 12 January 2018 at paragraph [84].
For each of these reasons, the Tribunal concluded that the applicant did not meet the criteria for a protection visa and went on to affirm the delegate’s decision to not grant the visa.[35]
[35] Tribunal decision record dated 12 January 2018 at paragraphs [85] to [88].
PROCEEDINGS IN THIS COURT
On 2 February 2018, the applicant filed his application for judicial review in this court, along with an affidavit in support.
On 22 January 2024, the applicant was granted leave to file an amended initiating application.[36] By these orders, the first respondent was also granted leave to file further written submissions responding to the amended application.
[36] Orders of Deputy Chief Judge Mercuri dated 22 January 2024.
The applicant did not file any written submissions.
On 25 January 2024, the applicant appeared before me, representing himself and assisted by an interpreter in the Farsi and English languages.
After explaining the role of the court in a judicial review application and the limits on the powers that the court has in such an application, I invited the applicant to make any oral submission that he wished to make in support of his amended application.
I will set out the applicant’s submissions in relation to each of the grounds in turn.
GROUNDS OF REVIEW
Ground 1
By ground 1 of his amended application, the applicant states that:
1.The Tribunal acted unreasonably in refusing the Applicant’s first and second requests for adjournment to allow him, respectively, to be legally represented and to obtain access to his entry interview. In the alternative, by doing so, the Tribunal failed to afford the applicant a meaningful opportunity to present his case.
Particulars
a.The Applicant’s request was reasonable, for a brief and specific period, and made a month prior to the scheduled hearing.
b.The Applicant’s request was particularly brief in the context of the overall review period. The Applicant lodged an Application with the Tribunal in 2015. The hearing was held on 17 May 2017. The Tribunal did not make a decision on the application until 12 January 2018, nearly 8 months later.
c.The first request
i.The Applicant made clear that the first postponement request of 4-6 weeks would enable him to be legally represented, in circumstances where the proceeding was legally complex and had significant consequences, including potential refoulement to persecution, for the Applicant.
ii.Despite this, the Tribunal’s only justification for refusing the first request was “a lack of detail” in the request and that the request was made “approximately a month before the hearing”.
d. The second request
i.The Applicant made clear that his second request was to enable him access to preparation material and because he need[ed] more time to prepare. In seeking to prepare without the assistance of the lawyer, and in light of the first refusal, he had sought access to his entry interview, but had been unable to obtain it.
ii.The Tribunal’s only justification for refusing this request was that the Applicant “did not clearly explain why [the entry interview] was relevant or necessary for him to have.”
iii.In its decision, the Tribunal relied heavily on the Applicant’s accounts over time, at interviews and in writing.
e.The Tribunal did not make any further enquiries of the Applicant with respect to the first or second requests.
f. There was no prejudice to the Tribunal in a brief adjournment.
In relation to ground 1, the applicant said in oral submissions that he hoped to have accessed the preparation material requested before the hearing, but this was not accommodated.
As I understand the amended application, the applicant’s arguments as articulated in ground 1 are essentially that each of his requests for an adjournment was reasonable, and the Tribunal’s rejection of his requests in each case was legally unreasonable.
The first adjournment request
The applicant asserts that the first request for an adjournment was reasonable in that he only sought a short adjournment, and he gave a reason for doing so, namely to allow him to obtain legal representation. Therefore, the applicant claims that the Tribunal’s failure to grant the first adjournment request was legally unreasonable.
It is said that this unreasonableness is further made clear when one considers that the request for a postponement was only for a relatively short period of time, compared to the lengthy period over which the review process took place. Relevantly, the applicant points to the fact that he lodged his application for review in 2015, the hearing was conducted in May 2017, and a decision was not delivered until 12 January 2018, almost eight months after the hearing. In this context, it is suggested that the refusal of a brief adjournment was clearly unreasonable.
Moreover, the applicant points to the reasons given for not permitting the adjournment to further substantiate his claim that the Tribunal acted unreasonably. In relation to the first postponement request, the Tribunal said at paragraph [11] of its reasons:
11.The applicant requested that the hearing be postponed because he had decided to appoint a solicitor and the solicitor was busy on that day and the solicitor would need 4-6 weeks to familiarise himself with the case. Given the lack of detail about his nominated legal representative and their inability to attend the hearing in the requests, and that the requests were made approximately a month before the hearing date, I decided to refuse the request. …
It was further submitted that in circumstances where the applicant was representing himself at the Tribunal hearing, it was incumbent upon the Tribunal to make further inquiries of the applicant’s request for an adjournment. The applicant says that the Tribunal’s failure to do so, in circumstances where there was no prejudice to the Tribunal, further supports his submission that the Tribunal’s refusal to grant the first adjournment was legally unreasonable.
The second adjournment request
Similar arguments are raised in relation to the second adjournment request. The applicant says that this request was made for a legitimate purpose, namely to obtain a copy of his entry interview. Moreover, the applicant says that he had already made a request for a copy, but had not yet received it.
Therefore, by ground 1, the applicant says that in circumstances where he was not represented, and where the Tribunal had already refused his request for a short adjournment to allow such representation, had the Tribunal acted reasonably, it would have granted this request.
The applicant also says that the Tribunal’s unreasonableness in refusing the second adjournment request is also apparent when one considers the reasons given for the refusal, being the absence of any proper explanation by the applicant for the need to access the documents sought. It is submitted that, in circumstances where the applicant did not have legal representation, there was an obligation upon the Tribunal to seek further information from the applicant if it required more detail. Having not requested any such further information, I understand the applicant to be saying that it was legally unreasonable for the Tribunal to refuse the request on the basis that no explanation was given as to why the documents were required.
Relevant principles
It is well-settled that a discretionary power must be exercised within the bounds of legal reasonableness.[37]
[37] See Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] (‘Pandey’) and cases cited therein.
Moreover, as noted in Pandey at paragraph [41]:
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”…
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process … The intelligible justification must lie within the reasons given by the decision-maker …
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law” …
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case … In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important …
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: …
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker … The test of legal unreasonableness is stringent …
In considering whether the Tribunal’s refusal to allow a postponement was legally unreasonable in this instance, either in relation to the first or the second request, the court must therefore have regard to the legislative framework within which the Tribunal was operating.
Section 420 of the Act relevantly provides that in conducting a relevant review, the Tribunal must act according to substantial justice and the merits of the case. Section 427 of the Act further confers upon the Tribunal a discretion to adjourn a review from time to time.
Additionally, section 425 of the Act provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review, other than in certain limited circumstances.
Section 425A specifies the information which must be provided to an applicant in the notice of invitation to appear. Relevantly, it provides:
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
Regulation 4.35D of the Migration Regulations 1994 (Cth) prescribes this period as either 7 days where the applicant is in detention, or 14 days otherwise.
It is within this statutory context that the Tribunal’s decision not to grant either the first or second request for adjournment must be assessed.
Additionally, it is important to note that the applicant was invited to attend the hearing by letter dated 22 March 2017. This was in the context of an application for review filed by the applicant in May 2015. At that time, the applicant had been legally represented, and that representative had assisted the applicant to lodge the application for review but was not instructed to otherwise act for the applicant beyond the filing of the application. It was open to the applicant to obtain alternative representation at any point between May 2015 and March 2017. Accepting that the applicant had not done so, he was given over two months’ notice of the upcoming hearing.
The case notes contained at page 188 of the court book, outlined above, indicate that the applicant contacted the Tribunal on 26 April 2017 to discuss his request for a postponement. Notwithstanding the advice provided, the applicant did not submit an appointment of representative form. The applicant was then advised by letter dated 2 May 2017 that the request for a postponement was denied.[38] The following day, on 3 May 2017, the case notes, summarised above, indicate that the applicant again contacted the Tribunal in relation to his adjournment request.
[38] See Court book at page 180.
In Pandey, the court considered the Tribunal’s refusal to grant a requested adjournment in the context of a Part 5 reviewable decision. The observations made in that case are equally applicable to the present case, despite it involving a Part 7 reviewable decision.
Relevantly, in Pandey, the court said at paragraph [32]:
32.The Tribunal’s discretion in s 363 to adjourn the review (which will include a hearing convened following an invitation under s 360) may appear to be relevantly unconstrained. No mandatory considerations are spelt out. The scope, subject and purpose of Part 5 of the Act, however, would suggest that the Tribunal is bound at least to consider whether the applicant has been given a reasonable opportunity to give evidence and present arguments concerning the issues arising in relation to the decision under review. In a case where an applicant is seeking more time in which to provide evidence to the Tribunal, that may in turn require the Tribunal to consider the matters placed before it by the applicant to explain why he or she requires more time. That would generally include matters relating to the further evidence that is to be supplied, the reason that the evidence has not been provided to date and the length of time required.
In Minister for Immigration and Citizenship v Li [2013] HCA 18 (‘Li’), Chief Justice French said at paragraph [31]:
31.The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent's migration agent. It did not suggest that the first respondent's request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent's application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.
In Li, after noting that a statutory discretion is not at large and must be exercised within the bounds of legal reasonableness, their Honours Justice Hayne, Justice Kiefel and Justice Bell further stated:
66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness[134]. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power[135]. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
67.The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused
In Li, the plurality went on to note the statutory context in which the Tribunal was exercising its discretion as follows:
77.The starting point is that the Tribunal, for the purposes of reviewing the delegate's decision, exercises all the powers and discretions of the Minister. Further, and as the Minister concedes, in making a decision neither the delegate nor the Tribunal is confined to the material which was initially provided to support satisfaction of the relevant visa criteria. Those criteria are expressed to be satisfied at the time of the decision. If a further skills assessment is completed by TRA before the Tribunal makes its decision, the Tribunal may have regard to it. It is difficult to conceive of a circumstance where the Tribunal must not do so.
After considering the particular circumstances in the case before it, the plurality went on to reject the submission that if the Tribunal was wrong to conclude that the applicant had sufficient time to put evidence before it as to the criteria for the granting of the visa, the Tribunal would be:
81.… required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.
Relevantly, the plurality went on to say:
82.It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.
83.The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments "relating to the issues arising in relation to the decision under review". The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.
In his reasons for decision in Li, his Honour Justice Gageler (as he then was) noted that, in practice, a decision will be held to be affected by legal unreasonableness in relatively rare circumstances.[39] At paragraph [113], his Honour observed that ‘…[n]othing in these reasons should be taken as encouragement to greater frequency. This is a rare case’.[40]
[39] See Minister for Immigration and Citizenship v Li [2013] HCA 18, [112]-[113] (Gageler J).
[40] Minister for Immigration and Citizenship v Li [2013] HCA 18, [113] (Gageler J).
After setting out the particular facts in Li and the issues before the Migration Review Tribunal at the time of its refusal to adjourn the hearing as requested by the applicant in that case, Justice Gageler said:
122.… Ms Li had been in Australia for some years. The review by the MRT had been on foot for nearly a year without any delay on her part. What she sought was an adjournment of the review for a highly specific purpose clearly articulated by her migration agent: to await the outcome of the review she had already sought of TRA's second skills assessment, which she contended to have been erroneous for reasons the migration agent explained to the MRT. Those reasons were, as the Minister concedes, "coherent on their face and might well have justified an expectation that a favourable skills assessment would be obtained". Indeed, the evidence before Burnett FM showed that a favourable skills assessment did in fact eventuate, three months later. Nothing in the MRT's reasons for decision suggests that the MRT took a different view of Ms Li's prospects and there was no reason to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.
…
124.No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.
Did the Tribunal act unreasonably in refusing the applicant’s requests for adjournment?
The facts in the present case are distinguishable from those in Li. Whilst it is the case that the applicant’s first request to postpone the hearing was for a relatively short period of time, the applicant had not identified the representative who he had approached to assist with the hearing.
Moreover, even after being advised to do so, the applicant did not appoint a representative as suggested. Had he done so, a further request for an adjournment could have been made, which may have been considered with possibly a different outcome. At its highest, at the point of the first postponement request, the Tribunal simply had before it an assertion by the applicant that he had sought legal assistance but required additional time.
Furthermore, the Tribunal noted that there was a lack of detail as to the reason why the said representative was unable to attend the scheduled hearing, and the fact that at the time the request for a postponement had been made, the applicant still had about four weeks prior to the hearing.[41] In Li, the request for an adjournment made by the applicant’s representative clearly articulated the errors that were alleged to have been made in the Trades Recognition Australia’s assessment, which was the subject of a review. Additionally, the applicant in Li had already lodged the review application. As such, the specificity of the reasons for the request for an adjournment and the information provided in support were not present in this application in a manner comparable to the request in Li.
[41] Tribunal decision record dated 12 January 2018 at paragraph [11].
Whilst it is possible that a different Tribunal member may have come to a different view on the first adjournment request, the Tribunal’s decision not to agree to the first request for a postponement is not, in my view, unreasonable in the sense contemplated in Li. As noted above, in declining to grant the request, the Tribunal noted that there was a lack of detail as to the identity of the representative that the applicant had engaged, the reason why they were unable to attend the scheduled hearing and the fact that at the time the request for an postponement had been made, the applicant still had about four weeks until the hearing. In the circumstances, this decision was reasonably open to the Tribunal.
Nor, for the following reasons, is the Tribunal’s decision in relation to the second request for a postponement legally unreasonable. The applicant says that he had sought access to his entry interview but had not yet received it. Again, the applicant did not explain the relevance of the entry interview and why he required it for the purpose of preparing for the hearing. Moreover, the applicant already had access to the delegate’s decision, which contains a relevant summary of the claims made by the applicant in his entry interview.
Moreover, the applicant in this case did not identify a particular reason why the entry interview might assist his application. On the contrary, in Li, the unreasonableness arose from the fact that the document that the applicant in that case sought to put before the Tribunal would be determinative of the issue before it. That is, in the event that she was successful and had the Tribunal allowed the adjournment requested, she would have met the criteria for the granting of the visa at the time of decision.
Similarly, in relation to this request for more time to access his entry interview, the reasons given by the Tribunal, namely, the lack of an explanation as to why the applicant needed the entry interview to prepare for the hearing, was a reasonable basis for refusing to grant the second request. The Tribunal also noted that it had regard to the fact that although the applicant had been advised that he could do so, he did not raise this issue before the Tribunal at the hearing, nor did he request additional time to address this issue after the hearing.
In the circumstances, the refusal to allow a postponement of the hearing to enable the applicant to obtain his entry interview was reasonably open to the Tribunal.
For each of these reasons, I do not accept that the Tribunal’s reasons for not allowing either the first or second adjournments evidence legal unreasonableness. In the context of the issues before it, the Tribunal’s decision record, when read fairly,[42] adequately expose the Tribunal’s reasons, which were reasonably open on the material before it.
[42] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 291.
Did the Tribunal rely heavily on the applicant’s accounts over time?
The applicant further states in ground 1 that notwithstanding the refusal to grant him additional time to obtain his entry interview prior to the hearing, the Tribunal went on to rely heavily on the applicant’s accounts over time, at interviews and in writing.
It is the case that the Tribunal did draw adverse conclusions about claims made by the applicant in his protection visa interview, which had not been included in his initial statutory declaration. However, at no point in its reasons did the Tribunal draw an adverse inference from the fact that the applicant later raised something not included in his initial entry interview. Rather, these conclusions were made on the basis of discrepancies which arose between claims made in the applicant’s statutory declaration and protection visa interview, when considered against further information before the Tribunal.
For example, at paragraph [24] of its decision record, the Tribunal did not accept that the applicant was given a warning letter after he was detained for being in public with a woman who was not his wife, as claimed at interview. The Tribunal went on to say at paragraph [24]:
24.… I do not accept that the applicant was given a warning letter on the first occasion. … I find that his failure to mention this in his statutory declaration signifies that this did not happen and that he is seeking to address perceived problems in his claims over time. For the same reason, that he did not mention it in his statutory declaration, I do not accept that the applicant was taken to a police station and they took his name on the second occasion – I find, as described in his statutory declaration, that he was assaulted and sworn at by the police officer but that that is all that happened.
In discussing the difficulties experienced by the applicant in finding employment after completing his studies, the Tribunal considered the clarification given by the applicant in his Tribunal hearing and compared this with the information before the delegate.[43] The Tribunal drew no adverse inference from these differences, but rather, understood them to be a clarification of earlier information.
[43] Tribunal decision record dated 12 January 2018 at paragraph [26].
In relation to the applicant’s alleged protests at the Governor’s office, the Tribunal set out the applicant’s evidence about this at paragraph [35] and following of its reasons. The Tribunal noted, and put to the applicant, differences between the evidence given about this incident in his statutory declaration and at the Tribunal hearing.[44] Relevantly, the Tribunal noted that the evidence given by the applicant at the Tribunal hearing was inconsistent in some respects with the evidence given in his statutory declaration. The Tribunal went on to say:
40. … I noted that this caused me some concern because I would expect such important information to be at least mentioned, particularly as the statutory declaration was prepared with the assistance of a lawyer and interpreter, but he did not include these details until later in the process and I noted that this might lead me to doubt that these things happened and that his claims had changed over time to address problems identified with his claims.
[44] Tribunal decision record dated 12 January 2018 at paragraph [40].
After considering the applicant’s explanation as to the discrepancies between the evidence he provided over time, the Tribunal was ultimately not convinced as to why he omitted these key details in his statutory declaration.[45] Moreover, the Tribunal found his evidence in relation to these matters implausible. The Tribunal went on to conclude that aspects of the applicant’s claims arising from his alleged protests at the Governor’s office did not occur,[46] and that matters were not part of the reason for him departing Iran.[47]
[45] Tribunal decision record dated 12 January 2018 at paragraph [43].
[46] Tribunal decision record dated 12 January 2018 at paragraphs [46] to [47].
[47] Tribunal decision record dated 12 January 2018 at paragraph [48].
The Tribunal also identified further inconsistencies between the applicant’s claims regarding the phone calls his father had received after he left Iran. At paragraph [51], the Tribunal rejected the claim that ‘the authorities have called the applicant’s father seeking information on the applicant’ on the basis that there were material differences in the evidence.
It is therefore apparent that the Tribunal did identify a number of inconsistencies in the applicant’s claims over time. However, at no point did the Tribunal identify inconsistencies between claims originally made in the applicant’s entry interview and those subsequently made. Therefore, the applicant has not established, and certainly has not identified, any prejudice that he would have suffered as a result of the Tribunal hearing proceeding before he had received the entry interview that he had sought under a Freedom of Information request.
For these reasons, accepting that the Tribunal’s reasons were brief, I find that the Tribunal’s reason for its decision did provide an intelligible basis for its refusal, and its decision to refuse the postponements on both occasions was reasonably open to it.
Was there prejudice to the Tribunal in granting the adjournment?
Further, it is submitted for the applicant that there was no prejudice to the Tribunal in granting the adjournments sought, particularly in circumstances where the Tribunal ultimately did not hand down its decision in this matter for some further eight months. Even if I were to accept that this was the case, to the extent that it is relevant, this issue is not determinative.
Did the Tribunal fail to afford the applicant a meaningful opportunity to present his case?
It is further argued for the applicant in the alternative in ground 1 that the Tribunal’s failure to allow the first and second requests for postponement resulted in the Tribunal failing to afford him a meaningful opportunity to present his case.
The applicant did not expand on how he was not afforded a meaningful opportunity to present his case, other than by implication from his submissions that he was not legally represented and was without the benefit of receiving a copy of his entry interview prior to the hearing.
In oral submissions, the applicant said that in circumstances where he was representing himself and where his request for an adjournment, if allowed, would have enabled him to obtain such representation, it was incumbent upon the Tribunal to ask him for any further information that it required.
Section 422B of the Act relevantly provides that Division 4 of Part 7 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters that it deals with. The Tribunal complied with section 425 of the Act by inviting the applicant to appear at a hearing. The applicant was given almost two months’ notice of the hearing. Moreover, the hearing request was provided almost two years after the delegate’s decision subject of review.
The Tribunal’s hearing record notes that the applicant attended the hearing and was assisted by a Kurdish interpreter.[48] It further records that the hearing commenced at 10:13am and concluded at 2:32pm.
[48] Court book at pages 183 to 185.
Moreover, at paragraph [13] of the Tribunal’s decision record, the member notes that at the commencement of the hearing:
13.… the applicant raised concerns with the interpreter, claiming that the interpreter had been the same interpreter he had in his Department interview and that he had had concerns with the standard of interpretation. The Tribunal was able to source another interpreter via phone and the hearing proceeded. The applicant did not raise any concerns about the standard of interpretation with the second interpreter.
Having regard to my findings about the reasonableness of the Tribunal’s decision not to permit either the first or second postponement request, and having regard to the matters set out above, I am satisfied that the applicant was provided with a meaningful opportunity to present evidence and make submissions.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant states that:
2.The Tribunal failed to consider the Applicant’s actual political views. The Applicant clearly expressed fear of persecution based on his political opinion, and although the Tribunal found the Applicant had not expressed his anti-regime views at a protest, it failed to consider whether the Applicant held such views and whether that might entitle the Applicant to protection. This claim clearly arose on the facts of the case.
In oral submissions, when asked what he wished to say in relation to ground 2, the applicant said that the Tribunal listened to his claims at the hearing but did not request any documents to support his claims. At its highest, by ground 2, the applicant claims that the Tribunal failed to consider an integer of his claims, namely that he actually held anti-regime political views and the consequential risk of harm to him if he were to return to Iran.
It is well-settled that the Tribunal is required to consider any claim expressly made or any claim which clearly emerges from the material before it.[49]
[49] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [55]-[68].
It is submitted for the first respondent that the applicant did not make a claim to fear harm on the basis that he actually held anti-regime political views, nor did any such claim arose from the material before the Tribunal. In the alternative, it is submitted for the first respondent that even if such a claim did arise on the material before it, the Tribunal expressly dealt with such a claim at paragraph [70] of its decision record.
For the following reasons, I find that to the extent that it could be said that a claim that the applicant faced harm on return to Iran due to his actual political views arose from the material before the Tribunal, that matter was expressly dealt with at paragraph [70] of the Tribunal’s decision record.
In his entry interview, the applicant said that he left Iran because he had medical problems, in reference to his disability related to his thumbs, which limited his ability to find work. He also stated that the principal reason for leaving Iran was ‘Lack of economic opportunity’.[50] Moreover, in response to questions about his political involvement, the applicant said that neither he nor his family had been associated with, assisted, or been involved in any political parties or activities.[51]
[50] Court book at page 17.
[51] Court book at page 17.
In his August 2013 statutory declaration, the applicant further expanded on his claims to fear harm. As summarised above, in that statement, he described a number of incidents when he says he was stopped and detained by the police in Iran due to his behaviour, once being in a public place with a woman that was not his wife and on another due to challenging police who were questioning him and his cousin whilst out and speaking on a pay phone.
After describing these incidents, at paragraph [13] of his statutory declaration, he said:
13.The police arrested, detained and abused me on these occasions because they viewed me as having a political opinion of opposition to the regime and it’s [sic] principles by virtue of my actions. The regime will assault and harm civilians for even the most minor expressions of dissent or semblance of opposition to Islamic principles and I fear that they will continue to harm me if I return to Iran.
Further, at paragraph [22], the applicant goes on to say:
22. I fear that the Iranian authorities know that I have left Iran and will harm me as a result. … The Iranian authorities are interested in anyone who seeks asylum overseas because they view these people as opposed to the regime and this is why I believe they are interested in me.
At paragraph [28] to [31], he says:
28.I fear I will be harmed because I have been imputed with the political opinion of opposition to the regime in Iran.
29.I fear I have been imputed with this opinion because of my Faili Kurdish ethnicity; Faili Kurds are widely viewed as opposed to the regime in Iran.
30.I fear I have been imputed with this opinion because I left the county and sought asylum overseas. The government view people who seek asylum overseas as hostile to the regime’s interests. ...
31.I have already been imputed with the political opinion of opposition to the Iranian regime from the times I have been detained, arrested and assaulted by the police. I fear that if I were to return the regime would view me as opposed to their interests, detain me and harm me.
In addition, the delegate’s decision also records additional matters raised by the applicant (who at the time was legally represented) in the course of his protection visa interview. Relevantly, the delegate recorded that at the protection visa interview, the applicant claimed that he had attended the Governor of Ilam’s administrative department twice during 2012 and verbally protested to staff ‘objecting to the fact that he had been unable to secure a position there’.[52]The applicant claimed that on the second occasion, the police were called and that following this, he was subject to ongoing harassment, which was another reason why he departed Iran. The applicant also claimed that he would be imputed with anti-regime opinions as a result of his demonstrations at the Governor’s office.
[52] Court book at page 146.
I agree with the first respondent’s submission that the applicant did not expressly claim to fear harm because of an actual anti-government view. However, it could reasonably be said that such a claim does reasonably arise from the material before the Tribunal.
As outlined above, the applicant refers to various incidents where he openly questioned the administration or laws and norms of Iran, being out with a woman who was not his wife, challenging police when they questioned him and his cousin and his claim to have openly challenged the government by demonstration. To that extent, it is arguable that this conduct was an expression of his anti-regime views.
Accepting this characterisation arises on the material before the Tribunal, as stated, I nonetheless consider that ground 2 is not made out in circumstances where the Tribunal expressly dealt with this claim at paragraph [70] of its decision record, where it says:
70.As above, I have rejected that the applicant was imputed or actually held an anti-regime political opinion. Whilst I accept that he was detained for one day in 2010 for infringing the moral rules and was beaten and sworn at by a police man in 2011, I do not accept as above that this leads to him being imputed with such an opinion. … I have rejected that he protested at the Governor’s office or was questioned by the authorities or issued with any warning letters. I find that the applicant was not ever a person of interest to the authorities. … I do not accept that there is a real chance that the applicant will be seriously or significantly harmed in the reasonably foreseeable future for reasons of his actual or imputed political opinion. (emphasis added)
When read in its entirety and fairly, it is clear that the Tribunal did, in fact, consider all of the applicant’s claims.
Ground 2 is therefore not made out.
Ground 3
By ground 3, the applicant asserts that:
3.The Tribunal failed to consider whether, having acknowledged that the authorities questioned the Applicants’ [sic] brother because of the Applicant’s long absence from Iran, that long absence might bring the Applicant to the adverse attention of the authorities or indicate their particular interest in the Applicant, and might entitle the Applicant to protection. This claim clearly arose on the facts of the case.
In oral submissions, in relation to ground 3, as with ground 2, the applicant said that the Tribunal did not request any documents or seek any further clarification as to his claims. The applicant further says that he continues to suffer psychologically as a result of the stress that his family was exposed to in Iran.
In considering this ground, it is important to give some consideration to the Tribunal’s findings in relation to the brother’s questioning. The Tribunal deals with this matter at paragraphs [52] to [55] of its decision record. Relevantly, the Tribunal accepted that the applicant’s brother came to Australia after the applicant, and that in 2014, the applicant’s brother returned to Iran to care for their mother after their parents were in a car accident in which the father died.
The Tribunal accepted at paragraph [55] that on his return to Iran:
55.… the applicant’s brother may have been questioned at the airport, but was then released, and that after this, perhaps as much as some months later, he was asked to come to the police station to answer questions. I accept that the applicant’s brother may have been threatened during this questioning. I accept that the authorities may have asked about the applicant, but I find, given my findings above, that this was only because he has remained outside Iran for a considerable time now, and not for any other reason. … I find, on the applicant’s evidence, that the authorities have not done anything further to his brother or the rest of his family in the three years since his brother returned. (emphasis added)
I accept the Minister’s submission that on a fair reading of the Tribunal’s reasons, and having regard to the Tribunal’s reasons as a whole, the Tribunal considered the applicant’s claims that he had a profile which would bring him to the attention of the authorities, and rejected that claim for the reasons given and discussed earlier. To the extent that the applicant asserts by ground 3 that the fact that his brother was questioned as a result of the applicant’s lengthy absence from Iran, and that this inexorably led to the conclusion that the applicant was of interest to the authorities in Iran, that assertion must be rejected.
Upon a fair reading of the Tribunal’s decision record, it is clear that the Tribunal did not accept that the applicant was of interest to the Iranian authorities. The findings in relation to the applicant’s brother did not alter this conclusion in any way.
The Tribunal’s findings at paragraph [55] must be read together with the Tribunal’s findings at paragraph [70] (set out in full above) and paragraph [74], where the Tribunal said:
74.Whilst I accept his brother was questioned once at the airport and once in Ilam, including about the applicant, I find that this was only because the applicant had been outside Iran for a considerable period. Given the length of time in which nothing has happened to his brother or family, I do not accept that the authorities held or hold any ongoing interest in the applicant.
In addition, the Tribunal’s findings at paragraph [55] must be read in conjunction with paragraph [75], where the Tribunal sets out its views as to what may occur upon the applicant’s return to Iran as a failed asylum seeker. Relevantly, the Tribunal found that he would be subject to minimal questioning, as was the case with his brother.
Having regard to the Tribunal’s reasons read fairly and as a whole, the applicant also has not made out ground 3.
Ground 4
By ground 4, the applicant asserts that:
4.In making credibility findings against the Applicant, the Tribunal failed to meaningfully consider the Applicant’s evidence that their memory was affected by their mental health. The Tribunal’s consideration was limited to a finding that ‘I do not accept that this depression has accepted his ability to recall events. The applicant was able to discuss the matters in his written claims in detail at the hearing.’
In relation to ground 4, the applicant said that he was content to undertake any test desired by the authorities to prove that his mental ill health has affected his memory. He maintained that it was not clear to him how the Tribunal could conclude that his memory was not affected by his depression without any independent assessment.
The Tribunal had before it very little by way of evidence about the applicant’s mental health and its impact on his memory. This consisted of the applicant’s own evidence at page 67 of the court book that he suffered depression, which affected his memory and caused difficulty in recalling dates and details. The applicant did not submit any medical reports or letters from medical practitioners regarding this issue.
In any event, the Tribunal did consider the applicant’s evidence, such as it was, at paragraphs [33] to [34] of its decision record. Relevantly, the Tribunal had regard to its observations of the manner in which the applicant gave his evidence. Moreover, the Tribunal stated that it was not satisfied that the difficulties that it went on to identify with the applicant’s evidence were related to his depression. Ultimately, the Tribunal simply did not accept some of the applicant’s claims, on the basis that it formed the view that that the applicant had embellished his claims to address difficulties identified by the delegate. This finding was open to the Tribunal on the evidence before it.
Moreover, the Tribunal’s conclusions in this regard were not dependent upon the applicant not recalling dates or details. Rather, they were based on inconsistencies between his initial claims as set out in some detail in his statutory declaration, and the implausibility of some of his claims.
I therefore find that the Tribunal did consider the applicant’s claims regarding his mental health and the impact on his memory. It did not accept this as a reasonable explanation for the problems it identified in the applicant’s evidence. These findings were reasonably open to it.
Finally, I note that two letters of support are annexed to the applicant’s amended application. They are two letters from Cabrini Outreach which detail the support that has been provided to the applicant in relation to his mental health since 2018. The first is dated 18 December 2023 and the latter dated 22 December 2023. At its highest, in relation to the issue of memory, the 22 December 2023 letter simply states ‘he has often complained of difficulties with concentration and memory recall regarding details of past events’.
These letters were not before the Tribunal and post-date the Tribunal’s decision, and therefore are not relevant to the issues on review. In any event, on the issue of the impact on the applicant’s memory, the 22 December 2023 letter simply records the applicant’s reports of the impact it has on him.
In his oral submissions, the applicant said that he was prepared to undergo any tests required to establish his memory issues. Ultimately, it is for the applicant to put forward evidence to support his claims. He made the claims about the impact of his mental health on his memory in his August 2013 statutory declaration. He was legally represented throughout the proceedings before the delegate. No explanation was offered as to why he did not produce any further evidence regarding this issue.
For these reasons, ground 4 is not made out.
CONCLUSION
As none of the grounds of review have been made out, the applicant’s application is unsuccessful. I therefore order that the applicant’s application be dismissed.
In its response, the first respondent seeks costs.[53] In circumstances where the first respondent has been fully successful, it is appropriate that costs follow the event. I will therefore make an order that the applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
[53] See Response filed on 20 February 2018.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 1 March 2024
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