ATM18 v Minister for Home Affairs

[2019] FCCA 1001

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATM18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1001

Catchwords:
MIGRATION – Application for protection visa – consideration of applicant’s circumstances and country information – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36(2), 65, 473CB, 473DC, 473DD

Cases cited:

Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
Minister for Immigration and Border Protection v George (2004) 139 FCR 127
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR

Applicant: ATM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 163 of 2018

Judgment of: Judge Egan

Hearing date: 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Brisbane

Delivered on: 4 April 2019

REPRESENTATION

Solicitor for the Applicant: Mr A. Francis

Counsel for the Respondent: Mr J. Byrnes

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The further amended application for review filed on 20 February 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 163 of 2018

ATM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Tamil from Sri Lanka who arrived in Australia by boat on 24 April 2013.  On 21 September 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).  That application was refused by a delegate of the Minister on 22 June 2017.  The matter was referred to the Immigration Assessment Authority for consideration on 1 February 2018.  The Authority affirmed the decision of the delegate not to grant the applicant a protection visa.  The applicant subsequently filed an application for review of the decision of the Authority. 

2. Today, the applicant was granted leave to read and file a further amended application.  That further amended application was annexure A to the applicant’s outline of submissions filed on 21 March 2019.  Counsel for the first respondent did not oppose the filing of such further amended application.  On that basis, leave was granted to the applicant to file the further amended application annexed to the written submissions of the applicant on the applicant’s undertaking, by Mr Francis, solicitor, to file a copy of that further amened application in the registry today.  The grounds of such further amended application are as follows:

   “1. The second respondent’s decision lacked a probative basis.

   a. The second respondent accepted the applicant’s claims that:

   i. he delivered laptops to the Tamil Makkal Viduthalai Pulikal (TMVP) which subsequently refused to pay for the goods;

   ii. he reported the incident to the police after threats against his life should he do so;

   iii. as a consequence, the applicant was detained and physically mistreated by the TMVP; and

   iv. the applicant subsequently escaped ad hid for 5 months before departing for Australia (Court Book (CB) 11 [17]; CB13 [26]).

   b. The second respondent relied on the following reports to find that “more recent incidents of torture and abductions” in Sri Lanka were “overwhelming” in relation to victims “identified as people the security forces suspected of assisting the LTTE” and “rigorously hunted down and punished extra-judicially during the post-war era”:

   i. UK Home Office, Sri Lankan Separatism, dated 31 March 2017 (the UK Report);

   ii. The International Truth and Justice Project (ITJP) report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015, published in July 2015 The International Truth and Justice Project (ITJP), Silenced: survivors of torture and sexual violence in 2015, dated January 2016 (referred to in the UK Home Office 2017 report above) (the ITJP Report) [CB14, [29]].

   c. The second respondent relied on its finding that the victims of recent incidents of torture and abductions in Sri Lanka were overwhelmingly victims who the security forces identified as suspected of assisting the LTTE to support its ultimate conclusion that as the applicant did not have the requisite “profile”, that is, links to the LTTE, the incidents in relation to the TMVP did not give rise to a real chance of serious or significant harm should the applicant return to Sri Lanka (CB15 [30], CB17 [42]).

   d. From the wording of the decision of the second respondent (at CB14, [29]) an inference can be drawn that the specific passage of the UK Home Office report (found at page 34) relied upon by the second respondent for the above finding provides as follows (emphasis added):

   8.5.2 The International Truth and Justice Project (ITJP) report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015, published in July 2015 … stated that ‘The vast majority of victims of torture and sexual abuse in Sri Lanka are Tamils’ and that ‘These were people the security forces suspected of assisting the LTTE in the past and they have been rigorously hunted down and punished extra judicially in the post-war period.

   (Citing to the ITJP Report at Executive Summary p. 7 and IV. Findings p. 28)

   e. The relevant passage of the ITJP Report cited in the above passage of the UK Home Office report in fact says in full and in context (text omitted from the UK Home Office report in emphasis):

   [IV. Findings p.28]

   Muslim and Sinhalese Victims

   It is worth noting that while the vast majority of victims of torture and sexual abuse in Sri Lanka are Tamils, there are also a few Muslims and Sinhalese among our witnesses. These were people the security forces suspected of assisting the LTTE in the past and they have been rigorously hunted down and punished extra judicially in the post-war period. For witness protection reasons, details of their cases cannot be given lest we identify them.

   f. Thus, the relevant part of the ITJP Report’s findings quoted in the UK Report refers to, in fact, the torture and sexual abuse and rigorous hunting down of Muslims and Sinhalese suspected of links to the LTTE, and thus, does not support the finding of the second respondent that Tamils without links to the LTTE, such as the applicant, were not at risk of torture and abduction by the TMVP or other security agencies.

   g. As the finding of the second respondent in regard to the requisite profile of victims of more recent incidents of persecution in Sri Lanka was critical to its ultimate conclusion that the applicant did not have a well-founded fear of serious or significant harm upon return to Sri Lanka, the second respondent’s decision was affected by jurisdictional error.

   2. The second respondent unreasonably failed to exercise its power under s 473DC(1) of the Migration Act 2958 (Cth) (the Act) to obtain a copy of the ITJP Report.

   a. The ITJP Report was “new information” as defined by s 473DC(1) of the Act as it was not a document that was before the delegate of the first respondent at the time the delegate made the decision under s 65 of the Act.

   b. The ITJP Report was obviously considered by the second respondent to be relevant to the conduct of its review as the second respondent cited to and relied upon the ITJP Report, as quoted in the UK Report, for its finding that the applicant was unlikely to face serious or significant harm due to his lack of the requisite “profile” (CB14, [29]’ CB15, [30]; CB17, [42]).

   c. The second respondent could straightforwardly have accessed a copy of the ITJP Report by clicking on the hyperlink to the ITJP Report found in footnote 65 of the UK Report, which was provided by the Secretary to the second respondent as part of the review materials pursuant to s 473CB(1) of the Act.

   d. The UK Report misrepresented the relevant finding in the ITJP Report relied upon by the second respondent in making the findings particularised above.”

3. In short, the grounds assert:

   a)that the Authority’s decision was affected by jurisdictional error in that it lacked a probative basis.  The applicant complained that the decision of the Authority was illogical in its ultimate conclusion.  That illogicality argument was based upon how the Authority was said to have dealt with and relied upon country information;

   b)that the Authority unreasonably failed to exercise its power under section 473DC(1) of the Act to obtain a copy of the “International Truth and Justice Project report, A Still Unfinished War:  Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015”, published in July 2015 (ITJP report).

4. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary, pursuant to the provisions of section 473CB of the Migration Act 1958 (“the Act”). 

5. At [7] of the Authority’s reasons, the Authority summarised the applicant’s claims for protection as follows:

   ·   “He is of Tamil ethnicity and Catholic faith and was born in Batticaloa district on 4 July 1986, where he remained for most of his life.

   ·   In September 2012 he delivered three laptops to a person claiming to be a TMVP person, ‘N’. N said he would pay the invoice in two weeks however when the invoice was not paid the applicant went to TMVP offices in Batticaloa to collect the outstanding amount. He was told they worked for the government,, did not know who N was and would not pay the invoke.

   ·   He returned to the TMVP offices about a week after the first visit to again request payment. This time he said if they did not pay the invoice he would lodge a complaint with the police. In response, a TMVP officer said they would shoot him if he did.

   ·   On 22 October 2012, he lodged a complaint with the police.

   ·   The next day he received a call from TMVP offices asking him to go to their offices to collect payment. When he arrived at their offices he was threatened, was assaulted and taken to another location. He was detained at the unknown location for seven days during which time he was mistreated. He eventually escaped and found his way to a church in Batticaloa previously known to him and he hid in an orphanage attached to the church until his departure by boat for Australia on 10 April 2013.

   ·   While in hiding at the orphanage the TMVP have visited his home and called his home looking for him once a week. They also sent threatening letters.

   ·   Since being in Australia the TMVP have continued to visit his home looking for him, and continued to send threatening letters.

   ·   He is wanted and will be arrested by the authorities if he returns as they are working with the TMVP.

   ·   He will not be able to seek the protection of the authorities because they work with the TMVP. For the same reason, he would not be able to re-locate elsewhere within Sri Lanka.

   ·   He left Sri Lanka illegally and will return to Sri Lanka as a failed asylum seeker.”

6. The Authority, when examining the applicant’s claims, relevantly accepted that the applicant was of Tamil ethnicity, that he was Sri Lankan, that he was a Catholic, and that he had worked as a computer technician in Sri Lanka.  At [11-15] of its reasons, the Authority closely examined the applicant’s claims that after having received a call from a person from the Office of TMVP (Tamil Makkal Viduthalai Pulikal), he delivered laptops to the TMVP Office, being told that upon the lapse of two weeks, he would be paid.

7. When he next went to the TMVP Office complaining of non-payment, the applicant said that he told someone at the TMVP Office that he would lodge a complaint with the police, after which someone from TMVP allegedly said that if he did that, he would be shot.  On 22 October 2012, the applicant alleged that he lodged a complaint with the Batticaloa Police in relation to the non-payment of the invoice and for the threat made against him. 

8. On 23 October 2012, the applicant claims that after receiving a call from the TMVP Office requesting his attendance at the office to collect payment for the computers, the applicant was subsequently kidnapped, tied up, assaulted and held in a dark room for seven days.  The applicant alleged that he ultimately was able to escape to a place called Kokkadicholai, from which he was able to make his way to safety.  The applicant subsequently travelled to Australia.

9. At [16] of its reasons, the Authority noted that the TMVP originally formed part of the LTTE (Liberation Tigers of Tamil Eelam), but that it had later broken away from it.  The Authority referred to the US Department of State as having noted that TMVP was a pro-Government party which had close ground-level ties with Government security forces.  The Authority accepted that the day after lodging the complaint with the police, the applicant was abducted and detained by the TMVP.  The Authority also accepted that the applicant managed to escape after seven days and eventually found himself at a Minister’s Church in Batticaloa, where he hid for about five months before departing for Australia. 

10. The Authority did not accept as plausible the assertion by the applicant that the TMVP continued to look for him every week up until five months after his escape from Sri Lanka.  The Authority was willing to accept that the applicant’s abductors may have briefly looked for him immediately after his escape, but it did not accept that they looked for him or called at his house every week up until his departure for Australia.  

11. At [19]-[21] inclusive of its reasons, the Authority dealt with assertions by the applicant to the effect that he had received warning letters related to his disrespect to TMVP, the Authority not accepting that the letters were genuine.  The Authority was not convinced that an organisation such as TMVP would publically warn a person in the manner asserted by the applicant.  The Authority was unconvinced that the TMVP would continue to pursue the applicant with vigour for more than four years after his detention and escape from them.  It was noted that the applicant was unable to spontaneously respond to the delegate’s questioning in relation to alleged visits by the TMVP in search of him, or as to the provision of specific dates of the claimed visits other than one on 22 February 2017. 

12. At [24] and [25] of it reasons, the Authority properly addressed the provisions of sections 5H(1) and 5J of the Act relating to refugee assessment criteria.

13. At [27] of its reasons, the Authority noted that country information before it suggested that there had been a change in the situation in Sri Lanka since the applicant’s departure, and particularly since the election of the Sirisena Government in 2015.  That government was said to have prioritised human rights and reconciliation, and was noted as having made significant progress, including replacing military governors in the northern and eastern provinces with civilians, as well as other actions constituting reform for the better. 

14. At the end of paragraph [27] of its reasons, the Authority stated:

    “The UK Home Office has more recently stated that it considers that being of Tamil ethnicity does not, in itself, warrant international protection.”

    The UK Home Office source of country information was relevantly footnoted as constituting the report contained in “Country Policy and Information Note.  Sri Lanka – Tamil Separation.  Version 4.0”, dated 31 March 2017. 

15. At [29] of its reasons, the Authority noted that whilst DFAT said in its 2015 report that it was aware of credible reports of groups like the TMVP still being active in Sri Lanka (including in criminal activity), neither DFAT nor the UK Home Office in their more recent 2017 report, had specifically reported civilians being harassed or abducted by the TMVP or Karuna in Sri Lanka.  The Authority made reference to the UK Home Office report of 2017 as also having referred to a 2015 report by the “International Truth and Justice Project” where incidents of torture and abductions, including white van abductions, in Sri Lanka had been documented.

16. The Authority in [29] stated in its reasons:

    “It noted that overwhelmingly, the victims were identified as people the security forces suspected of assisting the LTTE and rigorously hunted down and punished extrajudicially during the post-war era.”

17. DFATs more recent 2017 report states that since the end of the civil war, there had been a significant reduction in the incidents of extrajudicial killings, disappearances and abductions for ransom.  While it is noted that some Tamils in the north and east may not have full confidence in police and security officers, DFAT assessed that there was relevantly no law or government policy in Sri Lanka that hindered access to state protection on the basis of religion or ethnicity.

18. At [30] of its reasons, the Authority held that though it accepted that the TMVP, or its agents, may have looked for the applicant immediately after his escape, it did not accept that the TMVP continued to look for the applicant during the entire five months he was in hiding in Sri Lanka or since his departure for Australia in 2013.  The Authority did not accept that the Sri Lankan authorities had every pursued the applicant in relation to his altercation, complaint, detention or escape from the TMVP, or after his departure for Australia.  The Authority found:

    “Based on the applicant’s profile, my findings above and the availability of country information discussed above, I find that there is not a real chance the applicant will be detained, interrogated, tortured or otherwise harmed on his return to Sri Lanka by the TMVP, persons associated with them, or any arm of the Sri Lankan authorities by reason of his ethnicity, origin, past experiences with the TMVP and the police.”

19. At [33] of its reasons, the Authority accepted that by reason of having left Sri Lanka illegally, the applicant, if returned, might be identified by the authorities as an unlawful departee.  The Authority recorded that there was no report in any available country information of political parties screening people upon their return at the airport. 

20. The most recent DFAT country information available indicated that returnees would be processed en masse by government agencies, the process taking some hours.  If returning on a temporary travel document, police would undertake investigations to determine whether a returnee had a criminal or terrorist background or otherwise was avoiding a court order or arrest warrant. 

21. If the returnee was found to have departed illegally by boat, such a returnee would generally be found to have committed an offence under the Immigrants and Emigrants Act 1949, and any fine was most likely confined to those who had facilitated and organised a smuggling venture rather than the passengers on board, such as the applicant.  If arrested, a person could remain in police custody for up to 24 hours, or longer if a magistrate was unable to process any action taken against them. 

22. If a returnee pleaded guilty, they would be issued with a fine but were free to go.  If pleading not guilty, they would be granted bail by a magistrate on conditions.

23. At [34] of its reasons, the Authority found that there was no evidence before it to suggest that the applicant had any criminal background or outstanding court orders or arrest warrants against him, or was otherwise wanted by the authorities.  There was also no evidence to suggest that the applicant was a facilitator or organiser of a people-smuggling venture. 

24. At [35] of its reasons, the Authority found that, based on the available country information and the applicant’s circumstances, it was not satisfied that any detention to which the applicant would be subjected would amount to serious harm.  The Authority was also not satisfied that any fine imposed on the applicant would constitute serious harm. 

1. At [38] of its reasons, the Authority found that the country information before it indicated that the Immigration and Emigration Act applied to all Sri Lankan citizens and was not discriminatory on its face, or in its application or enforcement.

2. The Authority was not satisfied that any fine imposed pursuant to such Act would amount to systematic or discriminatory conduct, and, in so finding, the Authority found that any such treatment which would be faced by the applicant was not persecution for the purposes of section 5J(4) of the Act. The Authority concluded that the applicant did not meet the criteria requirements for him to fall within the definition of “refugee” as provided for in section 5H(1) of the Act, nor that the applicant met the section 36(2)(a) criteria.

3. The Authority, at [43] of its reasons, found that it was not satisfied that the applicant faced a real risk of significant harm as a consequence of his illegal departure from Sri Lanka.  At [44] of its reasons, the Authority found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, that there was a real risk that the applicant would suffer significant harm. 

4. The Authority found that the applicant did not meet the relevant section 36(2)(aa) criteria. 

5. As to ground 1 of its application for review, the applicant contends that the Authority acted illogically in relying on the 2017 UK Home Office report rather than the ITJP report.  It was submitted on behalf of the applicant, by reference to the contents of the ITJP report, that the UK report mischaracterised the ITJP report because it was said that the relevant part of the ITJP report only applied in relation to Muslim and Sinhalese ethnic groups rather than to Tamils. 

6. It was submitted that the Authority’s finding in paragraph [30] of its reasons, based on the applicant’s profile, was a significant finding, and that it was, in the circumstances, illogical for the Authority to rely upon only part of the ITJP report.  The relevant passage in the ITJP report is set out in paragraph 1(e) of the applicant’s grounds for review and is as follows:

   “Muslim and Sinhalese Victims

   It is worth noting that while the vast majority of victims of torture and sexual abuse in Sri Lanka are Tamils, there are also a few Muslims and Sinhalese among our witnesses.  These were people the security forces suspected of assisting the LTTE in the past, and they have been rigorously hunted down and punished extrajudicially in the post-war period.  For witness protection reasons, details of their cases cannot be given, lest we identify them.”

7. A fair reading of that quoted part of the ITJP report makes reference to not only Muslim and Sinhalese victims but also to Sri Lankans.  Of significance, the ITJP report is a 2015 report.  The more recent 2017 UK Home Office report and the 2017 DFAT report  were considered by the Authority at the time that it made its decision.  It cannot be said that the Authority did not have regard to those two more recent reports when arriving at its decision.  The Authority has said just that. 

8. The Authority is not required to detail each and every aspect of evidence before it, and upon which it based its decision, but it can be inferred that, in this case, the Authority did have regard to, and relied upon, the most recent country information concerning the likelihood of the applicant, as a Tamil, being targeted if returned to Sri Lanka.  It was entirely justified in adopting the stance which it did.

9. Even if found that the Authority ought to have had regard to the full text of the ITJP report, as referred to above, and had erroneously erred in not doing so, the court finds that such error was not material to the decision which it ultimately arrived at.  It cannot be said that such error deprived the applicant of the possibility of a successful outcome. 

10. There were other compelling reasons upon which the Authority found that the applicant was not a refugee requiring protection[1].  There is no merit to ground 1 of the application. 

    [1] Hossain v Minister for Immigration and Border Protection [2018] 92 ALJR 780 at [34]-[46] inclusive and [79] per Kiefel CJ, Gageler and Keane JJ; at [40] and [42] per Nettle J and at [35]-[40] inclusive and at [66]-[70] inclusive.

11. Further, the Authority is not necessarily in error because it relies upon incorrect information in a document.  As was said in Minister for Immigration and Border Protection v George [2004] 139 FCR 127 at [52] per Black CJ, Emmett and Selway JJ:

    “Where a decision is based on information or material that, unbeknownst to the decision-maker, is false or incorrect, that may not give rise to jurisdictional error, even though the decision may be objectively unfair, so long as there was in fact information or material before the decision-maker on which the decision could be based.”

    There is no merit to ground 1 of the application for review. 

12. As to ground 2, such ground is based upon an assertion that the Authority unreasonably failed to exercise its power pursuant to section 473DC(1) of the Act. Such section provides as follows:

    “Getting new information

    (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a) were not before the Minister when the Minister made the decision under section 65; and

    (b) the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a) in writing; or

    (b) at an interview, whether conducted in person, by telephone or in any other way.”

13. It is clear that pursuant to section 473DC of the Act, the Authority could get documents or information (new information) that was not before the Minister when the decision was made, pursuant to section 65 of the Act, if such new information was considered relevant. The Authority did not have a duty to get such new information. Pursuant to section 473DD of the Act, the Authority must not consider new information unless satisfied that there were exceptional circumstances justifying it considering such information, and, further, if the applicant satisfied the Authority that the new information was not, or could not have been, provided to the Minister, or was otherwise credible personal information which was not previously known.

14. In this case, the Authority did not act unreasonably in relation to the exercise of its discretion as to whether it would or would not get new information (namely, the whole ITJP report).  There was no discernible error on the face of the UK report, and even if there was, such error was not material in any event, as referred to above. 

15. Secondly, the UK report did refer to the relevant part of the ITJP report sufficient for it to reference the relevance of such report to the applicant’s circumstance as a Tamil.  It was not bound to address the situation of Muslims or Sinhalese by reference to the applicant in the circumstances of this case.  

16. Thirdly, the applicant did not request the Authority to obtain the report, and the Authority had no general obligation to make inquiries except in the circumstances referred to above.  Further, even if the Authority had obtained the whole report, the applicant has not satisfied the Court, on the balance of probabilities, that the receipt of the whole report would have materially altered the outcome in terms of the decision arrived at.  There is no merit to the second ground of review. 

17. It cannot be said that the Authority failed to make an obvious inquiry about a critical fact [2].

    [2] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25]

18. Nor could it be said that no other rational or logical decision-maker could not have made the same decision as did the Authority [3], as per Crennan and Bell JJ, where it was said:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

    [3] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]

19. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

    “[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.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  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.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

20. No jurisdictional error has been established on the part of the applicant.

21. The application is without merit and is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 17 April 2019