BLS17 v Minister for Immigration
[2018] FCCA 3064
•30 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLS17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3064 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise visa (SHEV) (XE-790) – whether the Authority failed to consider a claim – whether the Authority acted unreasonably, illogically or irrationally – whether the Authority denied the applicant procedural fairness – whether the Authority took into account irrelevant material – whether there was a reasonable apprehension that the Authority might not have brought an impartial mind to the matter. |
| Legislation: Migration Act 1958, ss.473BB, 473DA, 473DB, 473DC, 473DD, 473DE |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 AMA16 v Minister for Immigration and Border Protection (2017) 317 FLR 141; [2017] FCCA 303 CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16 Webb v R (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582; (1994) 73 A Crim R 258; [1994] HCA 30 |
| Applicant: | BLS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 682 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 23 July 2018 |
| Date of last submission: | 23 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2018 |
REPRESENTATION
| Counsel for the applicant: | Anthony Krohn |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the first respondent: | Nick Wood |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application filed on 5 April 2017, amended on 3 July 2018, further amended on 11 July 2018 and further amended again on 23 July 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 682 of 2017
| BLS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a safe haven enterprise (SHEV) (XE-790) visa.
The applicant’s claims
The applicant’s amended submissions filed on 17 July 2018 set out the applicant’s claims as follows:
a) The Applicant is a national of Sri Lanka and of no other country. (CB 38)
b) He has no right to enter and to reside in any other country. (CB 38)
c) The Applicant is of Tamil ethnicity and a Sri Lankan citizen. (CB 38)
d) The applicant is Hindu. (CB 38)
e) In 2004, the Applicant’s sister was taken by force to join the Liberation Tigers of Tamil Eelam (“LTTE”). She was with them until she escaped in 2009, at the end of the civil war. (CB 88, [7], [11])
f) In 2006, paramilitary groups connected with the Army came to the family’s home, searching for people involved in the LTTE. They confiscated the family’s ID cards. The family were told not to leave the area, but fled that night, and their house was burnt down by the paramilitary group the following day. (CB 88)
g) Towards the end of the civil war, in early 2009, the Army captured the family and took them to Manik Farm in Vavuniya (where the Applicant’s sister joined the family.) The family were held there for seven months, and the Applicant, a teenager, was interrogated twice. He was asked if he had been involved in the LTTE, and if he knew anyone involved. He was threatened with death if he did not tell the truth. He (and his brother) denied any knowledge or involvement. (CB 88)
h) After his release, the Applicant was regularly harassed and interrogated by the EPDP (a paramilitary group) and the CID. (CB89)
i) The Applicant could not endure this treatment and moved to another area where he began a business with a cousin. After he had moved, the EPDP came to his home a number of times looking for him. He therefore feared to return home. (CB 89)
j) In the new area, the CID tried to extort money from the Applicant and his cousin. He moved around in the area, and sometimes slept in his vehicle, to avoid the CID. (CB 89)
k) His cousin (not related, and whose last name [he] did not know) was detained by the CID for two days. (CB 283, 342, [22])
l) This treatment became intolerable and he left Sri Lanka. (CB 89)
m) The applicant cannot avail himself of the protection of the state. (CB 89)
n) He fears the CID, an arm of the government of Sri Lanka, and cannot relocate within Sri Lanka. (CB 90)
o) The Applicant has departed Sri Lanka illegally and made a claim for asylum in Australia. The Applicant claimed to fear harm as an illegal emigrant on return to Sri Lanka, (CB 89).
p) The applicant feared harassment, beating and serious harm. (CB 89)
The Authority’s reasons
The applicant’s amended submissions filed on 17 July 2018 sets out the following summary of the Authority’s reasons for decision:
13.The Authority accepted some, but not all of the Applicant’s claimed history. (CB 341-342, [19]-[23]) It perceived inconsistencies in the applicant’s evidence and concluded “credibility, inconsistency and plausibility issues” (CB 342, [22]), and concluded that the Applicant had fabricated some of his claims, notably that “another older sister had been arrested by the Sri Lankan Army in 1990 on suspicion of LTTE involvement and she was imprisoned until around 2000.” (CB 342, [21])
14.The Authority concluded that the Applicant did not have a profile such as to cause him to have a real chance of suffering persecution or to have a real risk of significant harm.
15. Particularly, the Authority found that the process of questioning which the applicant had endured had not involved physical harm to him, that his sister although known by the Sri Lankan authorities to have been in the LTTE, had been in food and medical services, had been released rather than being sent to rehabilitation, and had not suffered harm herself. (CB 346, [40])
16. Further, the Authority was not satisfied that the Applicant had not suffered extortion by CID, and found that his claim that his cousin had been abducted by the CID was a fabrication. (CB 342, [22])
17. The Authority noted that prison conditions in Sri Lanka were poor, but did not consider that if the applicant spent a brief period in prison as a person who had illegally departed from Sri Lanka this would amount to serious harm such as to be persecution, such that the applicant was a person in respect of whom Australia owed protection obligations under the Refugees Convention. (CB 349-350, [54])
18. The Authority also was of the view that nor was any harm the applicant might suffer in prison intentional such as to be torture, cruel or inhuman or degrading treatment or punishment such as to be “significant harm” within the meaning of the Act, and to give rise to a right to complementary protection under the Act. (CB 351-352, [67]- [68])
19. The Authority ultimately found that the Applicant was not a person to whom Australia owed protection obligations, and affirmed the decision to refuse to grant the visa. (CB 352s)
Ground 1
The first ground of review in the application filed on 5 April 2017, amended on 3 July 2018 and further amended on 11 and 23 July 2018 (“the application”) is:
The Authority fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
(a)The Authority accepted that the applicant was the brother of a former member of the LTTE, and considered whether the applicant was of interest to the authorities of Sri Lanka for this reason at the time he left the country, but in assessing the risk to the applicant if he returns to Sri Lanka it did not consider whether, in combination, the additional scrutiny the applicant would face if he returns to Sri Lanka as a failed asylum seeker, together with his relationship to a former member of the LTTE, and the fact that he and his parents had previously been questioned by the CID and EPDP, may cause him to have a well founded fear of persecution or a real risk of significant harm. (See Decision Record, [34], [41]-[42], [51], [60]) (emphasis in original)
The paragraphs of the Authority’s reasons for decision mentioned by the applicant are as follows:
34.The UNHCR’s current Eligibility Guidelines for Sri Lanka18 note that a person's real or perceived links with the LTTE may give rise to a need for international refugee protection. However, originating from an area that was previously controlled by the LTTE does not in itself do so. Although the nature of these links can vary, this may include:
18 UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, pp26 and 27.
• Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
• Former LTTE combatants or “cadres”;
• Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
• Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
• LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; or
• Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
…
41.I am satisfied that the applicant will not face a real chance of harm from the Sri Lankan authorities due to any real or perceived links to the LTTE and/or as a Tamil male from the north and east, if he returns to Sri Lanka, now or in the reasonably foreseeable future.
Adverse interest of the EPDP
42. I accept that the applicant was questioned by the EPDP on a number of occasions in Jaffna in late 2009 and early 2010. I also accept that the EPDP, together with the CID, questioned his parents in Jaffna on his whereabouts on four or so occasions during 2010 and 2011, including telling his parents that he must report to the CID office when he returns home.
…
51.I accept that the applicant will be considered a failed asylum seeker on his return. DFAT reports that there have been thousands of asylum seekers returned to Sri Lanka since 2009, including 1500 from Australia, with relatively few allegations of torture and mistreatment and assesses the risk of harm for the majority of returnees as low.42 While DFAT notes there are a small number of reports of mistreatment upon return by asylum seekers, they cannot verify these reports, which are often anonymous and made to third parties.43 Country information containing such reports was before the delegate.44 I accept that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. However, based on my findings, notwithstanding his sister being a known member of the LTTE, his family’s residence in LTTE controlled areas during the war and his routine questioning by the CID, EPDP and police, the applicant was not of any interest to the former Sri Lanka authorities at the time he left Sri Lanka and the authorities have shown no interest in him since he departed Sri Lanka. Taking into account those findings and the country information, I do not accept that the applicant will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka.
…
Cumulative circumstances
60. I accept that the applicant may experience some societal discrimination as a Tamil male from the north and the east. I also accept that he will face some non-discriminatory penalties because of his illegal departure from Sri Lanka. However, considering the applicant’s circumstances as a whole I am not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, for any links to the LTTE, as a Tamil male from the north and the east, because of the adverse interest of the EPDP or any combination of these. The applicant does not have a well-founded fear of persecution within the meaning of s.5J.
42 DFAT, “DFAT Country Information Report Sri Lanka” 18 December 2015, CISEC96CF14143 at 4.23 and 5.37.
43 DFAT, “DFAT Country Information Report Sri Lanka” 18 December 2015, CISEC96CF14143 at 4.22.
44 Including International Truth & Justice Project Sri Lanka, “Silenced: survivors of torture and sexual violence in 2015”, 7 January 2016, CIS38A801275; UKHO, “Sri Lanka December 2012 - Bulletin: Treatment of Returns”, 1 December 2012, 3853; Freedom from Torture, “Sri Lanka - Update on torture since 2009”, 6 May 2016, CIS38A8012881; Canadian IRB: Immigration and Refugee Board of Canada, “Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport”, 22 August 2011, LKA103815.E; Tamils Against Genocide, “Returnees at Risk: Detention and Torture in Sri Lanka”, 1 September 2012, CIS24826; “Another Tamil returnee arrested”, Sri Lanka Mirror, 1 July 2015, CXBD6A0DE15698; “SL military continues to arrest Tamils from East returning from Middle-East”, Tamil net, 31 May 2015, CXBD6A0DE7540; “16 Batticaloa Tamils arrested within last 100 days at Colombo airport”, Tamil net, 3 May 2015, CXBD6A0DE6027; and “10 Tamils arriving in Lanka arrested”, Sri Lanka Mirror, 4 March 2015, CXBD6A0DE6065.
The applicant specifically raised the need to consider his claims cumulatively in a written submission to the Department which enclosed his initial application for a protection visa (class XA). It is at CB52 and relevantly states:
… consideration must be given to the particular risks faced by the Applicant in light of the totality of his own circumstances. In view of his claims, we submit that the Applicant would be subject to more than just a perfunctory screening on his return to Sri Lanka and is at risk of detention and torture on return as a Tamil asylum seeker who has at the very least a perceived association with the LTTE (irrespective of the level).
The applicant conceded that the Authority considered each of the components of his claims. However, the applicant maintained that the Authority did not consider them cumulatively.
The Minister submitted that this ground is unsustainable, in view of paragraph 60 of the Authority’s reasons for decision, which is set out above.
I accept the Minister’s submission on this ground. The Authority said in paragraph 60 of its reasons for decision that it was considering the applicant’s circumstances as a whole. The applicant acknowledged that the Authority was aware of the detail of those circumstances and had considered them individually. The Authority said that it did not accept that any combination of his circumstances would result in the applicant facing a well-founded fear of persecution.
The Authority specifically listed in paragraph 60 of its reasons for decision most of the matters that the applicant now says the Authority failed to consider cumulatively. The Authority mentioned the applicant being a failed asylum seeker, by noting that he had made a claim for asylum in Australia. As he would presumably only return to Sri Lanka if his claim for asylum had failed, that note sufficiently encapsulated the idea of the applicant being a failed asylum seeker. The Authority mentioned in paragraph 60 of its reasons for decision the applicant’s links to the LTTE. That must refer to the applicant’s relationship to a former member of the LTTE. The Authority specifically mentioned in paragraph 60 of its reasons for decision the EPDP’s adverse interest in the applicant.
It is true that the Authority in paragraph 60 of its reasons for decision did not specifically mention that the applicant and his parents had previously been questioned by the CID. Obviously, the EPDP, being a paramilitary group, is a separate entity from the CID, which is a part of the police force. However, reading the Authority’s reasons for decision as a whole, it is clear that the Authority considered that the past questioning by the CID was of negligible future significance. I do not consider the Authority’s omission of an express mention of questioning by the CID in paragraph 60 of its reasons for decision is indicative of the Authority not taking it into account in its cumulative consideration of the applicant’s circumstances. This ground is not made out.
Ground 2
Ground 2 was omitted from the third amended application filed on 23 July 2018.
Ground 3
The third ground of review in the application is:
The Authority fell into jurisdictional error in that it acted irrationally, illogically, or unreasonably.
Particular 3(a)
The first particular to ground 3 is as follows:
The Authority accepted that persons with family links to LTTE cadres may be at risk of harm, according to the UNHCR Guidelines, but was not satisfied that there was a real chance or a real risk of persecution or significant harm to the applicant if he returned as an illegal emigrant and failed asylum seeker, and was interrogated on return. (Tribunal’s Decision Record, paragraphs [34]-[40], [65].)
The claim that the applicant’s sister was a member of the LTTE was described by the Authority as follows:
6.The applicant claims that he was not involved with the LTTE but in about 2004 one of his sisters, who was then 16 years old, was forced to join the LTTE. She worked in the medical section and the food section and also received military training from the LTTE. She remained a member of the LTTE until the end of the war in 2009. At the SHEV interview he said the SLA suspected one of his older sisters was in the LTTE and she was arrested and imprisoned in 1990 until about 2000. That older sister was not in the LTTE.
In relation to this claim, the Authority said:
18.… The applicant has consistently maintained from his first interview with the Department that his sister was in the LTTE. Although I have some reservations about the applicant’s claim that his sister’s forced recruitment by the LTTE occurred when she was at school as the LTTE lost control of Jaffna where the family was living at the time in December 1995,10 I am prepared to accept his general claim that his sister was forcibly recruited into the LTTE in around 2004. I also accept that his sister worked in the medical and food sections of the LTTE; that she received military training from the LTTE; that she left the LTTE around the time the family was sent to Manik Farm and she joined them there; that the family revealed to the SLA that his sister was in the LTTE; that she was not sent for rehabilitation but was released from Manik Farm in September 2009 with the rest of the family; that she and the rest of his family continue to reside in Sri Lanka and they are okay; and that the applicant was not a member of the LTTE.
10 Joanne Richards, “An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE)”, CCDP — Graduate Institute of International and Development Studies, Geneva, CCDP Working Papers, 1 November 2014, CISA447F082828, p42.
…
34.The UNHCR’s current Eligibility Guidelines for Sri Lanka18 note that a person's real or perceived links with the LTTE may give rise to a need for international refugee protection. However, originating from an area that was previously controlled by the LTTE does not in itself do so. Although the nature of these links can vary, this may include:
18 UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, pp26 and 27.
• Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
• Former LTTE combatants or “cadres”;
• Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
• Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
• LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; or
• Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
35.DFAT refers to the UNHCR’s guidelines and notes19 that accurately identifying people according to those categories can be difficult and the UNHCR recognises that each case will depend on its individual circumstances.20 DFAT also confirms21 that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE and monitor former members and supporters of the LTTE.
36.DFAT assesses22 the number of incidents of extra-judicial killings, disappearances and kidnappings for ransom, including ones involving former LTTE members, as considerably fallen since the end of the war. DFAT also assesses23 that there are credible reports of torture carried out by Sri Lankan security forces both during the war and in its aftermath, including its use to extract information and confessions from suspects. Verifying the more recent reports of torture is difficult as many allegations are made anonymously, and to third parties, and DFAT has no information on the overall incidence of torture among people suspected of LTTE links.24 DFAT assesses that the risk of torture or mistreatment of high profile former LTTE supporters who are suspected of committing serious crimes as reduced under the Sirisena government, although it remains higher overall than the risk to the majority of low profile people with LTTE links, and notes that allegations of torture pertain to a relatively small number of cases compared to the total Sri Lankan population.25
37. The UK Home Office (UKHO) 2016 report discusses protection claims as based on a person’s actual or perceived political opinion of support for or involvement in the LTTE or other Tamil separatist groups, including membership of, or participation with, such groups overseas. The report notes that in the UKHO view simply being a Tamil does not give rise to protection claims.26 The UKHO notes there have been positive developments in Sri Lanka since President Sirisena became President in January 2015. White van abductions are now seldom reported, and the number of torture complaints has reduced, although new cases of Tamil victims continue to emerge, both of torture and occasional white van abductions.27 The authorities continue to monitor people, particularly in the north and east and persons perceived to sympathise with the LTTE continue to be intimidated, harassed, arrested, detained and tortured.28 UKHO notes that, despite improvements, there continue to be reports of abductions, torture complaints and police use of excessive force against Tamils perceived to support the LTTE.29
38. The US Department of State (USDOS) 2016 report notes there were no substantiated reports of extra-judicial killings in 2015 in Sri Lanka but the use of force against civilians, though rare, remains a problem.30 There are credible reports that the military and security forces have abducted, tortured, raped and sexually abused citizens and in the north and east security forces are responsible for detaining those accused of LTTE connections, with observers reporting that interrogations sometimes included mistreatment and torture.31
39.I accept that the applicant’s sister was a member of the LTTE from approximately 2004 until the end of the war, she worked in the LTTE’s medical and food sections and she received military training from the LTTE; that the applicant and his family lived in LTTE controlled areas during the war, including in Kilinochchi from 2006 to 2009; that the applicant's family's NICs were taken by the SLA / paramilitary group in 2006, that the family moved to Kilinochchi as a result and shortly after they moved the SLA / paramilitary group burnt down their former house; that when the family was in Manik Farm from February 2009 to September 2009 the applicant was questioned twice by the CID, he was threatened when he and his family were released and the family told the SLA that his sister was in the LTTE; that the EPDP and CID in Jaffna after their release from Manik Farm questioned and harassed the applicant, also his older brother to a lesser extent and questioned all the members of his family once; that the applicant moved away from the EPDP and CID in Jaffna to Kilinochchi in April 2010; that the applicant was questioned on a number of occasions by the CID and police in Kilinochchi; that he moved around and sometimes slept in his lorry to avoid the harassment; and that the EPDP and CID in Jaffna visited his parents’ home in Jaffna four or so times in 2010 and 2011 to ask after the applicant's whereabouts.
40.Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of serious harm for reason of any real or imputed LTTE links or political opinion, now or in the reasonably foreseeable future, for a number of reasons. First, residing in a LTTE controlled area does not on the evidence indicate a need for protection. Secondly, the Sri Lankan authorities were aware that his sister was a member of the LTTE when the family was held at Manik Farm and didn’t send his sister to rehabilitation like many other LTTE members or suspected members, but released her and her family, including the applicant, without any further restrictions. Thirdly although he was questioned and threatened by the EPDP and CID in Jaffna and by the CID and police in Kilinochchi, he was never physically harmed and does not claim to have been arrested or detained by the authorities. Fourthly, the questioning and harassment of Tamils in the north and the east, particularly the questioning of returnees from IDP camps, was common or routine under the former Rajapaksa government. Fifthly, on my findings, none of the applicant’s family, including his LTTE sister, have been arrested or detained by the authorities. Sixthly, the destruction of his family’s home occurred during the war and there is no suggestion in the evidence that the authorities have seized or damaged any of the applicant’s family’s property since the end of the war. Seventhly, on my findings, the Sri Lankan authorities have shown no interest in the applicant or his family since he left Sri Lanka for Australia in August 2012. I am not satisfied that the authorities would have had any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile to be remote. (emphasis added)
19 DFAT, “DFAT Country Information Report Sri Lanka” 18 December 2015, CISEC96CF14143, 3.35.
20 UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012, UNB0183EA8, p25.
21 DFAT, “DFAT Country Information Report Sri Lanka” 18 December 2015, CISEC96CE14143, 3.36.
22 Ibid 4.1
23 Ibid 4.17 and 4.19.
24 Ibid 4.18 and 4.20.
25 Ibid 4.18, 4.20 and 4.21.
26 UKHO, “Country Information and Guidance. Sri Lanka: Tamil separatism. Version 2.0”, 19 May 2016, OGD7C848D17, 1.1.1 and 2.3.1.
27 Ibid 2.3.6, 2.3.7, 6.6.2, 6.6.6, 6.6.7 and 6.6.11.
28 Ibid 2.3.8.
29 Ibid 2.3.10.
30 USDOS, “Sri Larika - Country Report on Human Rights Practices 2015”, 13 April 2016, OGD95BE926320, p2.
31 Ibid pp7-9.
The applicant noted that the Authority accepted that the applicant’s sister was a member of the LTTE and noted that the UNHCR Guidelines indicate that people with family links to LTTE cadres may be at risk of harm. The applicant submitted that it was contradictory (and irrational) for the Authority, having accepted those matters, to then find that the applicant would not be at real risk of serious or harm if he returned to Sri Lanka.
The Minister submitted that the UNHCR Guidelines did not say that each and every person with LTTE familial links would be at risk of harm, but that such people may be at risk of harm. Moreover, the Minister submitted, the UNHCR Guidelines noted that each case depends on its individual circumstances. In the present case, the Minister noted that the Authority said in its reasons for decision at [40] that:
… the Sri Lankan authorities were aware that his sister was a member of the LTTE when the family was held at Manik Farm and didn’t send his sister to rehabilitation like many other LTTE members or suspected members, but released her and her family, including the applicant, without any further restrictions. …
In those circumstances, the Minister submitted that the Authority’s findings were not contradictory and were not irrational.
I accept the Minister’s submissions on this point for the reasons that he gave.
Particular 3(b)
The second particular to ground 3 is as follows:
The Authority made its decision in part on the basis that it rejected some of the applicant’s claims as a fabrication. (Decision Record, paragraphs [20]-[23].) In a matter where the rejection of the credit of the applicant was part of the basis for the decision it was a denial of procedural fairness for the Authority not to invite the Applicant to an interview.
This aspect of ground 3 primarily concerned paragraphs 21 and 22 of the Authority’s reasons for decision, which are as follows:
21. At the SHEV interview the applicant claimed for the first time that, in addition to the older sister who was forcibly recruited into the LTTE, another older sister was arrested by the SLA in 1990 on suspicion of LTTE involvement and she was imprisoned until around 2000. From the birth dates supplied in his arrival interview and his SHEV application, his other older sisters were 13, 11 and 10 years old in 1990. Given the belated mention of this incident and as I do not consider it plausible that the Sri Lankan authorities would, notwithstanding that it was during the war and the widespread use by the authorities of the arbitrary detention powers of the Prevention of Terrorism Act 1979 (Sri Lanka) (PTA), simply on suspicion of an association with the LTTE imprison someone 13 years old or younger for ten years, I reject this claim as a fabrication.
22. In his 2013 written statement the applicant claimed the CID tried to extort money from him and his cousin in Kilinochchi. At the SHEV interview he did not mention any extortion attempts against himself but said, when asked if there was anything in particular that made him want to leave Sri Lanka, that his cousin was abducted by the CID. He initially said his cousin contacted him to tell him he was kidnapped and being blackmailed; he told his aunty about the cousin’s abduction; he and his aunty went to the police to lodge a complaint; as a result the police and CID came and questioned him; and he doesn’t know where his cousin is now. He was asked if his cousin was ever released by the CID and he said his cousin was abducted for two days and then one night all his cousin’s documents went missing from the house; his cousin was no longer in CID custody; and he had heard, but was not sure, that his cousin was now living in France. The applicant was unable to recall his cousin’s surname. I do not accept as credible that the applicant would fail to specifically mention in his written statement, prepared just over a year after he arrived in Australia, an event he now claims made him want to leave Sri Lanka. Similarly, I do not accept as credible that he could not recall the cousin’s surname given the supposed seriousness of the event, because he had lived in the cousin’s mother’s house for two years or so before he left Sri Lanka and as he claims his lorry was put in the cousin’s name because he was too young at the time he bought it. The applicant was inconsistent at the SHEV interview as to where the cousin was living now. Additionally, I do not consider it plausible that, as he claims he was being harassed in Kilinochchi by the police and CID, that he would approach the police about the CID abducting his cousin or that he knew that his cousin was released from CID custody because two days later his cousin’s identity documents disappeared during the night. In view of the credibility, inconsistency and plausibility issues, I reject the applicant’s claim that his cousin was abducted by the CID as a fabrication. Having rejected the abduction claim and as he provided no other details about it, I am also not satisfied that he and his cousin were subject to extortion attempts by the CID.
The applicant noted that the applicant’s claims about his unrelated cousin were accepted by the delegate at CB283, and, in contrast, the Authority considered that those claims were a fabrication. In those circumstances, the applicant argued that it was a denial of procedural fairness for the Authority to have failed to invite the applicant to an interview under s.473DC(3) of the Migration Act 1958 (“the Act”).
Section 473DC of the Act provides that:
(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.
The Minister submitted that the applicant’s argument was not sustainable, in view of the statutory scheme and decided cases. The Minister noted that s.473DC(2) of the Act expressly excludes any obligation on the Authority to invite the applicant to give new information in any circumstances.
The Minister also noted that s.473DB(1) provides that:
Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
The Part referred to is Part 7AA of the Act. That Part includes s.473DC of the Act and s.473DA(1) of the Act, which provides that:
This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
The Division referred to is Division 3 of Part 7AA of the Act. The provisions of that Division do not oblige the Authority to invite the applicant to a hearing in circumstances such as the present. The applicant did not make any submission about how the legislative scheme operated to require the Authority to invite him to an interview, beyond the bald assertion that it was a denial of procedural fairness to fail to invite him.
There are now a number of authorities that are against that proposition, a recent one being DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 where the Full Court of the Federal Court said at [72]:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
In view of the legislative scheme of Part 7AA of the Act and the authorities relating to it, there is no substance to ground 3(b).
Particular 3(c)
The third particular to ground 3 is as follows:
Further or in the alternative to Particular (b) of this Ground, the Authority made its decision in part on the basis that it rejected some of the applicant’s claims as a fabrication (Decision Record, paragraphs [20]-[23]), but this had not been a finding or approach of the delegate. In a matter where the rejection of the credit of the applicant was an issue before the Authority and part of the basis for its decision, and had not been an issue or part of the basis for the delegate’s decision, it was unreasonable for the Authority not to invite the Applicant to an interview.
With this ground, the applicant seeks to use unreasonableness to circumvent the statutory restrictions on procedural fairness. The Full Court of the Federal Court in DGZ16 rejected a substantially similar argument, saying at [78] that it:
… fails as under the statutory scheme in the circumstances of this case the Authority was not obliged to inform the appellant of the issues that it considered to arise on the review, insofar as those issues were not found to be dispositive by the delegate. …
In CRW16 v Minister for Immigration and Border Protection [2018] FCA 710, the Flick J stated:
42.Both the content of the rules of procedural fairness and the principle of “unreasonableness” must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how “unreasonableness” could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being “unreasonable” rather than a denial of “natural justice”. On such an approach, a draftsman could avoid the constraints imposed by s 473DA by recharacterising a ground of review as “unreasonableness” rather than a requirement of “natural justice”.
Nevertheless, in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16, the plurality of the High Court held at [21] that the provisions of Division 3 of Part 7AA of the Act are to be applied within the bounds of legal reasonableness. In that particular case, the High Court considered that the decision of the Authority not to obtain certain new information, including by interviewing a certain person, was legally reasonable. Importantly, the High Court emphasised the statutory conditions on the Authority obtaining new information, such as by interviewing the applicant. Those conditions include the conditions in s.473DD of the Act, which provides that:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The applicant did not address s.473DD of the Act or explain how its requirements could have been met in the circumstances of this case. Consequently, I am not persuaded that it was legally unreasonable for the Authority to not invite the applicant for an interview in all the circumstances of this case.
Ground 4
The fourth ground of review in the application is:
The Authority fell into jurisdictional error in that it denied procedural fairness.
Particular 4(a)
The first particular to this ground is as follows:
The Applicant refers to and repeats the particulars (b) and (c) to Ground 3 of this Amended Application.
For the reasons expressed above, this aspect of ground 4 is not made out.
Particular 4(b)
The second particular to ground 4 is as follows:
The Minister’s delegate, and then the Authority had before them material or information adverse to the Applicant personally, relating to allegations which had been the subject of a criminal investigation and were the apparent basis for an intervention order being made against him. These allegations, although not resulting in charges being laid against the applicant, may have allowed an inference of the Applicant having poor judgement and a disrespect for the law, and may have affected the assessment by the Authority of the Applicant’s credibility, but the Authority did not give the Applicant a copy of this material or particulars of it and invite or give him an opportunity to respond, although the Minister’s delegate had not done so either.
The crux of this aspect of ground 4 is that the delegate and the Authority are said to have had prejudicial information before them that they did not make known to the applicant.
The information concerned an allegation that the applicant had sexually assaulted a 15 year old girl[1] from another asylum seeker family. The police investigated the allegation by interviewing the girl, some members of her family and the applicant. However, the police decided not to charge the applicant with any offence. They decided that no offence was detected. I understand that to mean that, in the view of the police, the applicant had not committed a crime. That is different to a decision not to prosecute on the grounds that the evidence is unlikely to reach the required standard.
[1] SCB18, where it is indicated that the applicant was 8 years older than the girl. The events occurred in February 2016, when the applicant was 23, making the girl 15.
Nevertheless, the police did obtain two intervention orders against the applicant restraining him from contacting the girl and her family. Those intervention orders were obtained by consent without admissions.
In addition, a Status Resolution Support Services (“SRSS”) provider reported the incident to the Department of Immigration and Border Protection as a possible breach of the code of behaviour for irregular maritime arrivals released into the community on bridging E visas. The code of behaviour relevantly required that the applicant not make sexual contact with a person without the person’s consent, not to be involved in any violence against a person and not to harass, bully or intimidate another person.
The person who assessed whether there had been a breach of the code concluded that the available evidence was insufficient to support a conclusion that a breach of the code had occurred. (That person also stated at SCB5 that the applicant had been afforded procedural fairness because the police had interviewed him. That was obviously a different context from the present.)
The version of events given by the alleged victim’s family to the police was that the applicant had abducted the girl, asked her to love him, took pictures of her, threatened to burn her house down, used a knife in a threatening manner, and stripped her mother of her clothes.
The version of events given by the applicant to the police and/or the SRSS was that his relationship with the girl grew from friendship into mutual love, and the applicant telephoned her father to arrange a discussion about the applicant’s future with the girl. When the applicant went into the father’s house, the father beat the applicant, and a relative of the father called the police. The applicant denied threatening anyone with a knife or touching a knife.
This ground concerns the Authority not giving the applicant details of the allegations against him or seeking his comment on them. In support of this ground, the applicant submitted that the Authority had an obligation under s.473DE of the Act to give the applicant particulars of information. Section 473DE of the Act provides that:
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3)Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Section 473DE of the Act does not concern any information but only concerns new information. New information is defined in s.473BB of the Act to have the meaning given by s.473DC(1) of the Act. That subsection provides that:
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.
It was common ground that the information presently in issue was before the Minister when the Minister (or, in fact, his delegate) made the decision in question. Therefore, the information in issue did not meet the definition of new information and there was no obligation on the Authority to give the applicant particulars of it.
Moreover, the applicant did not make any submissions on how the information in issue could have passed the tests posed by s.473DD of the Act. That section provides that:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The applicant also noted that the Authority has power under s.473DC of the Act to seek information. That section provides that:
(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.
Section 473DC of the Act would permit the Authority to obtain information from the applicant about his response to the allegations, subject to the other provisions of Part 7AA of the Act. One of those provisions is s.473DD of the Act.
The applicant did not make any submissions on how the applicant could have passed the tests posed by s.473DD of the Act.
For these reasons, this aspect of ground 4 is not made out.
Ground 5
The fifth ground of review in the application is:
The Authority fell into jurisdictional error in that it took account of irrelevant material or considerations.
Particulars
(a) The Authority had before it material or information adverse to the Applicant personally, relating to allegations which had been the subject of a criminal investigation and were the apparent basis for an intervention order being made against him. This material and these allegations, although not resulting in charges being laid against the Applicant, and not relevant to the task of the Authority, were part of the material before the Authority and it should be inferred that the Authority had regard to them as required by section 473DB of the Migration Act 1958. This material and these allegations, although irrelevant, may have allowed an inference of the Applicant having poor judgement and a disrespect for the law, and may have affected the assessment by the Authority of the Applicant’s credibility.
The gist of this ground is that the Authority took into account irrelevant material, being the allegations against the applicant outlined above. It was common ground that the Authority did not refer in its reasons to the allegations made against the applicant. However, the applicant argued that it should be inferred that the Authority had regard to the allegations because, under s.473DB of the Act, the Authority was required to review the material given to it by the Secretary, which, in this case, included material relating to the allegations.
The obligation to review material does not necessarily entail a conclusion that particular aspects of the reviewed material were given any weight. In the present case, the Authority could have considered the allegations, and decided that they were irrelevant to any issue before it, or decided to accept the applicant’s version of events and draw no adverse inference against him.
In all the circumstances, I am not prepared to infer that the Authority did, in fact, take into account and place weight on the allegations against the applicant. This ground is not made out.
Ground 6
The sixth ground of review in the application is:
The Authority fell into jurisdictional error in that there was a reasonable apprehension that it was biased.
Particulars
(a)The Authority had before it material or information adverse to the Applicant personally, relating to allegations which had been the subject of a criminal investigation and were the apparent basis for an intervention order being made against him. This material and these allegations, although not resulting in charges being laid against the Applicant, and not relevant to the task of the Authority, were part of the material before the Authority and it should be inferred that the Authority had regard to them as required by section 473DB of the Migration Act 1958. This material and these allegations, although irrelevant, may have allowed an inference of the Applicant having poor judgement and a disrespect for the law, and may have affected the assessment by the Authority of the Applicant’s credibility, but the Authority did not give the Applicant a copy of this material or particulars of it and invite or give him an opportunity to respond, although the Minister’s delegate had not done so either.
(b)The Authority did not say in its reasons that it had excluded this material and these allegations from its consideration, nor that it had considered them and rejected them as irrelevant.
This ground asserts that a fully informed, fair minded lay observer might reasonably apprehend that the Authority might not have brought an impartial mind to the matter[2], by virtue of the allegations against the applicant described above. For this ground, the applicant relied on Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534; [2017] FCAFC 136, which was an appeal from my decision in AMA16 v Minister for Immigration and Border Protection (2017) 317 FLR 141; [2017] FCCA 303. In AMA16, it was held that jurisdictional error had occurred as a result of a reasonable apprehension of bias, in circumstances where the Authority was in possession of highly prejudicial material that it did not disclose to the applicant or seek his comment on.
[2] ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35].
The applicant submitted that the present case is indistinguishable from AMA16, where the Full Court of the Federal Court said:
73.Secondly, in O’Sullivan, the presiding judicial member rejected the proposed tender and stated unambiguously that the Tribunal could properly put the document out of its mind and not bring it to bear in any way in determining the matter. That is to be contrasted with the position here where the Reviewer’s statement of reasons is simply silent on the relevance or irrelevance of the Departmental communications. This should be viewed against a background of the plain fact that the Secretary had formed the subjective view that the document was relevant to the review because otherwise it would not have been included in the review material. Furthermore, as emphasised above, in fulfilling its statutory function, the IAA must, subject to Pt 7AA, consider the review material provided to it under s 473CB (see s 473DB(1)). These matters are properly attributed to the fair-minded lay observer.
74.Thirdly, the mere fact that there is no reference in the IAA’s statement of reasons to the Departmental communications does not mean that the fair-minded observer would conclude that the material could have had no bearing on the IAA’s decision. The fair-minded lay observer should be attributed with knowledge of the following relevant matters:
(a) the IAA had a statutory obligation under s 473EA to give a written statement for its decision, including the reasons for the decision; and
(b) consistently with the Minister’s concession in the appeal, s 25D of the Acts Interpretation Act 1901 (Cth) also applies with the consequence that the IAA’s statement of reasons must also set out the IAA’s findings on material questions of fact and refer to the evidence or other material on which those findings were based.
75.That does not mean, however, that the fair-minded lay observer would conclude from the absence of any reference in the IAA’s statement of reasons to the Departmental communications, that those communications may not have influenced the IAA’s decision. Having regard to the highly prejudicial nature of the communications, the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the IAA may have been affected by them albeit subconsciously. It is this consideration which supplies the necessary connection between the nature of the Departmental communications and the fear that the IAA might not decide the referral on its merits, as required by Ebner (see [61] above).
76.I respectfully agree with Finn J’s views in Islam at [49] that, while the significance of “subconscious effect” is to be treated with circumspection in a case involving the first limb of procedural fairness (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [19]),
… the issues of appearance and judgment in apprehended bias cases are … differently appointed. They do involve an appeal to the good sense and experience of the reasonably informed and fair minded lay (not judicial) observer. (Emphasis in original.)
77.It is unnecessary to determine in this case what significance, if any, should attach to an express assertion by the IAA that highly prejudicial material has been discarded and played no role in its decision. That is because, in contrast with O’Sullivan, no such assertion was made by the IAA here.
78.The Minister contended that merely because the IAA was in possession of prejudicial material was insufficient, without more, to give rise to apprehended bias. It is also unnecessary to determine that submission in circumstances where in this case there is present more than the mere fact that the IAA had possession of the prejudicial material. In particular, as noted above, when the matter was referred to the IAA, the Secretary must have considered that the Departmental communications were relevant to the review. The IAA must have known that to be the case having regard to the plain terms of s 473CB. It is notable that this provision requires the Secretary to focus on whether he or she considers particular material to be relevant to the review at the time when the decision is referred to the IAA and not on the broader question whether material might be relevant to the review. Moreover, it was the IAA’s statutory obligation under s 473DB to consider the “review material”. It was, of course, open to the IAA in arriving at its own decision on the referral to take a different view from the Secretary as to the relevance of the material, but its statement of reasons is entirely silent on that matter. As noted above, given the highly prejudicial nature of the material, the fair-minded lay observer, acting reasonably, might apprehend that the IAA may have been affected by the material, even subconsciously.
The Minister argued that AMA16 is distinguishable from the present case. In AMA16, the applicant was charged with the indecent assault of a woman. The charges were outstanding at the time of the Authority’s decision. Following the Authority’s decision, the charges against AMA16 were dismissed.
In the present case, the police investigated a complaint against the applicant. However, the police had decided not to lay charges prior to the Authority’s decision, and, indeed, prior to the delegate’s decision. In addition, there was an enquiry into whether the applicant’s conduct had breached the applicable code of behaviour. It was found, again, prior to the delegate’s decision, that there was insufficient evidence to find that the applicant had breached the applicable code of behaviour.
These circumstances are not highly prejudicial, so as to fall within the scope of AMA16. Indeed, they are not even prejudicial, so as to fall within the fourth category of case disqualifying a judge for reasonable apprehension of bias as described by Deane J in Webb v R (1994) 181 CLR 41; (1994) 122 ALR 41; (1994) 68 ALJR 582; (1994) 73 A Crim R 258; [1994] HCA 30 at 74, namely, knowledge of a prejudicial but inadmissible fact. They were simply some allegations that had been found to be unsubstantiated by the police and the person who considered whether there had been a breach of the applicable code of behaviour.
The applicant also noted that there were two intervention orders made against the applicant. The intervention orders were made by consent and without admissions. In other words, there was no judicial determination that the applicant had done anything to warrant an intervention order being made against him. In these circumstances, the existence of the intervention orders was not prejudicial.
On the material that the authorities appear to have accepted, the worst that could reasonably be said against the applicant was that he had, as a 23 year old, formed a relationship with a 15 year old. That may be questionable behaviour, but it does not seem to me to be relevantly prejudicial.
In my view, the fair minded, appropriately informed lay observer could not have reasonably formed the view that the Authority might not have brought an impartial mind to the matter. Ground 6 is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 30 October 2018
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