BSD24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 572
•27 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSD24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 572
File number(s): SYG 3088 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 27 June 2024 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority affirming delegate’s decision not to grant Safe Haven Enterprise Visa – citizen of Pakistan – unparticularised grounds of review – whether possible basis for jurisdictional error otherwise – whether material jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 57, 473DD, 474, 476 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
APH17 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 118
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196.
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144
FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1;
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 5 April 2024 Date of hearing: 5 April 2024 Place: Perth Applicant: In person with the assistance of an interpreter Counsel for the First Respondent: Ms G Ellis Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3088 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSD24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1.The originating application filed 5 November 2018 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application by the applicant (“BSD24”) for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) filed on 5 November 2018. The Judicial Review Application seeks review of a decision made by the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) made on 4 October 2018. The Authority Decision affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), not to grant BSD24 a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHE Visa”).
BACKGROUND AND CLAIMS
The background to this matter and the claims made by BSD24 are as follows:
(a)on 17 November 2012, BSD24, a citizen of Pakistan, arrived in Australia as an unlawful maritime arrival: Court Book (“CB”) 256;
(b)on 2 September 2016 BSD24 applied for the SHE Visa advancing the following claims: CB 70-73:
(i)BSD24 originated from Upper Kurram, Kurram Agency. He was a Pashtun from the Turi tribe and a Shia Muslim;
(ii)BSD24 was a student in Parachinar and was awarded a scholarship to attend a secondary college in Mardan, at which he completed year 12;
(iii)when BSD24 was studying in Mardan and residing at a hostel, he received a threatening letter and threatening telephone calls that identified his village and tribe. BSD24 reported the threats to the school principal who told him to stop using his own telephone and to confine himself to the hostel. BSD24 suspected that these threats were made due to his Shia religion and because people did not want him to succeed in his education. BSD24 did not know who made the threats. However, during one call the caller introduced themself as being from the Taliban;
(iv)BSD24 feared that if he returned to Kurram Agency, he would be harmed by those that threatened him. He claimed that they knew where he was now and would be angry if he returned, particularly as he was educated; and
(v)BSD24 claimed that it would not be possible to find employment if he needed to relocate away from his home region in Pakistan as he did not have a qualification. He claimed that Islamabad was expensive and he did not know anyone living there;
(c)on 26 February 2018 BSD24 attended an interview with the Delegate (“Delegate’s Interview”), elaborating on the above claims: CB 130;
(d)on 14 March 2018 pursuant to s 57 of the Migration Act, the Department invited BSD24 to comment (“Invitation to Comment”) on whether he could relocate to Islamabad and his remittances to Pakistan which far exceeded what he claimed to have remitted at the Delegate’s Interview: CB 144-149;
(e)on 4 April 2018 BSD24 provided submissions and a statutory declaration confirming that he had transferred about $100,000 in total to his family in Pakistan in the last 3 years, which he did not disclose at the Delegate’s Interview because he was scared it would affect the consideration of his claims: CB 160;
(f)on 15 May 2018 the Delegate refused to grant BSD24 the SHE Visa on the basis that BSD24 would not face a real chance or risk of harm in Islamabad: CB 256-274;
(g)on 18 May 2018 the matter was referred to the Authority: CB 347 at [1]; and
(h)on 13 June 2018 BSD24 provided submissions, new information and a statutory declaration (“June 2018 Statutory Declaration”) to the Authority: CB 312-340.
AUTHORITY DECISION
On 4 October 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 346-366.
In the Authority Decision the Authority dealt with the information before it in the following way:
(a)in relation to BSD24’s submissions, to the extent that they engaged in argument with the Delegate’s Decision, the Authority had regard to them: CB 347 at [3]. However, it observed that the submissions included new information: CB 347 at [4]; and
(b)the Authority summarised the effect of s 473DD of the Migration Act, including that new information needed to satisfy one limb of s 473DD(b) of the Migration Act, and also s 473DD(a) of the Migration Act: CB 347 at [5]. It then proceeded to make the following findings concerning BSD24’s new information:
(i)first, with regard to the 2018 travel advice on Pakistan provided by DFAT on its Smart Traveller website, the Authority considered BSD24’s submission that the DFAT Smart Traveller advice was inconsistent with the DFAT report, and that given the Smart Traveller advice said travelling to Pakistan was unsafe for Australians, “asylum should be extended to refugees”: CB 347 at [6]. The Authority did not accept that submission but found that the Smart Traveller advice on Pakistan was general information provided as a consular service to Australian citizens and as such, was of limited assistance in the Authority’s assessment of BSD24’s circumstances: CB 347 at [6]. The Authority noted that it already had a wide range of country information before it and found that there were no exceptional circumstances to justify the consideration of this information: CB 347 at [6];
(ii)second, with regard to the 2016 report by the Aljazeera Centre for Studies “Attacks against Minorities”, the Authority noted that the report predated the Delegate’s Decision and that it was not apparent why it was not provided to the Delegate: CB 348 at [7]. The Authority considered the report to be of limited probative value and found the extracted information was general in nature, rather than personal information: CB 348 at [7]. The Authority found that there were no exceptional circumstances to justify the consideration of this information: CB 348 at [8];
(iii)third, with regard to a 1 June 2018 Express Tribune article, the Authority noted that the article post-dated the Delegate’s Decision: CB 348 at [9]. The Authority did not consider that the article meaningfully added to the information already before the Delegate and was not satisfied that there were exceptional circumstances to justify the consideration of this information: CB 348 at [9];
(iv)fourth, with regard to a 23 May 2018 Express Tribune article, the Authority noted that the article post-dated the Delegate’s Decision: CB 348 at [10]. The Authority noted that the article did not make any reference to the labour market or economy in Islamabad, or the likely employment situation for a person in circumstances like BSD24. The Authority was not satisfied that there were exceptional circumstances to justify the consideration of this information: CB 348 at [10];
(v)fifth, with regard to an undated screenshot from the website of the Provincial Assembly of the Punjab (“Assembly”), which was a particular Assembly member profile, the Authority noted that the Assembly appeared to have no jurisdiction in Islamabad: CB 349 at [11]. The Authority considered there was no information that substantiated the claim that the particular Assembly member was a known terrorist or had links to the sectarian military group, Lashkar-e-Jhangvi: CB 349 at [11]. The Authority found that this information did not substantiate BSD24’s claim that Islamabad was the nucleus of organised terrorist activities in Pakistan, and was not satisfied that there were exceptional circumstances to justify the consideration of this information: CB 349 at [11];
(vi)sixth, in relation to the June 2018 Statutory Declaration, the Authority noted that BSD24 disavowed the April 2018 Statutory Declaration made in response to the Invitation to Comment: CB 349 at [12]. BSD24 declared that his representative did not make him aware of the contents of the Invitation to Comment, had not sought his instructions in preparing a response and told him to sign the April 2018 Statutory Declaration without reviewing it: CB 349 at [12]. BSD24 also declared that, contrary to his admission in the April 2018 Statutory Declaration that he had given false evidence in his SHE Visa interview, that he had been “entirely honest” in his responses and that apparent falsities with regard to the remittance of money to Pakistan could be attributed to errors made by the Pashto interpreter: CB 349 at [12]. The Authority found that it was evident from the flow of the interview and BSD24’s positive confirmation at the beginning of the interview that he understood the interpreter and the questions being asked: CB 349 at [13]. The Authority noted that BSD24 could speak, write and read English to a high standard: CB 349 at [14]. The Authority was not satisfied that there were any material misunderstandings or misinterpretations. The Authority did not accept BSD24’s claim that he did not discuss the Invitation to Comment with his representative or that he signed the April 2018 Statutory Declaration without reading and understanding its contents: CB 350 at [15]. The Authority was not satisfied that there were exceptional circumstances to justify the consideration of this information: CB 350 at [16]; and
(vii)finally, in relation to an Esanda bank statement, the Authority did not consider that the new information was sufficiently detailed to corroborate BSD24’s claim that he never owned two cars, that there was already information before the Authority about BSD24’s vehicle ownership, and the Authority was therefore not satisfied that there were exceptional circumstances to justify the consideration of this information: CB 350 at [17].
In relation to factual findings concerning BSD24’s claims in the Authority Decision the Authority:
(a)accepted that BSD24:
(i)was born in Parachinar, Kurram Agency, Khyber-Pakhtunkhwa province of Pakistan, and was a national of Pakistan: CB 351 at [19];
(ii)was a Shia Muslim of Pashtun ethnicity and from the Turi tribe, that his first language was Pashtu and that he could also speak, read and write Urdu and English: CB 351 at [20];
(iii)lived in Parachinar until 2007 and attended secondary college in Mardan until June 2012, and that he departed Pakistan a few months later in 2012: CB 351 at [21];
(iv)would be identifiable in Kurram Agency as a Shia Muslim who was an ethnic Pashtun from the Turi Tribe: CB 351 at [22]; and
(v)may have been subject to harm from members or associates of Sunni militant groups whilst studying in Mardan: CB 351 at [23];
(b)noted that BSD24 gave inconsistent evidence regarding his relationship and engagement to “AB” and that the inconsistency could not be plausibly attributed to poor interpretation, a misunderstanding or memory loss: CB 351-352 at [24]-[25];
(c)considered BSD24’s remittances to Pakistan: CB 352 at [26]-[28], and in particular his explanations for the discrepancy between his account and the Department’s information, and was satisfied that, notwithstanding BSD24’s claims about the interpreter, that BSD24 provided misleading answers to the Delegate about the amounts and frequency with which he had remitted money to Pakistan: CB 353 at [28]; and
(d)the Authority considered BSD24’s personal circumstances: CB 353 at [29]-[31], and was not satisfied that BSD24 provided an accurate account of his or his family’s true circumstances or that BSD24’s family were reliant on his remittances for subsistence: CB 353 at [30], and was satisfied that BSD24 had access to substantial amounts of money: CB 353 at [31].
In dealing with the refugee criterion the Authority:
(a)found that the consensus in the country information before it was that, despite the longer-term trend toward improved security in Kurram Agency, there remained a degree of volatility and fragility: CB 355 at [38];
(b)was satisfied that BSD24 would face a real chance of being killed or seriously injured for being a Shia Muslim if he were to reside in his home area of Parachinar in Kurram Agency: CB 355 at [40], and the Authority therefore turned to consider whether BSD24 would face a real chance of serious harm in Islamabad, as satisfaction of s 5J(1) of the Migration Act requires the chance of harm to relate to all areas of a receiving country: CB 355 at [41];
(c)found that were BSD24 to reside in Islamabad, he would very likely be identifiable as a Pashtun Turi Shia Muslim from Upper Kurram: CB 356 at [44];
(d)accepted that BSD24 was the subject of periodic threats whilst studying in Mardan in 2008 and 2009, but did not accept that BSD24 had a personal adverse profile or was of ongoing adverse interest to the militant groups in Pakistan on account of being a Shia Turi who had studied in Mardan: CB 356 at [45];
(e)found that the evidence before it did not support BSD24’s contention that there was an ongoing trend of threats, attacks or kidnappings in Islamabad targeting members of the Pashtun Turi Muslim community who had migrated from Upper Kurram, or Shias more broadly: CB 357 at [51];
(f)found that the evidence before it indicated that ordinary Shia Muslims, including Pashtun Turi Shia Muslims who had migrated from Upper Kurram, and who would likewise be identifiable as such, were able to engage in public worship and to go about their day-to-day activities in Islamabad such as work and education, without facing a real chance of harm: CB 358 at [52];
(g)found that the information before it was that BSD24 did not match any of the profiles that military and law enforcement agencies were known to target: CB 359 at [55];
(h)found that there was no evidence before it that contradicted DFAT’s 2017 assessment that Pashtuns living in Pakistan’s cities did not face a higher risk of violence or persecution based on their ethnicity, and was not satisfied that BSD24 faced a real chance of harm in Islamabad: CB 359 at [56];
(i)was not satisfied that BSD24 would face a real chance of any, or any serious, harm in Islamabad because of his status as a Pashtun Turi Shia Muslim from Kurram Agency, his perceived opposition to Sunni militant groups, his having spent time, or having sought asylum, in a Western country like Australia, or as a consequence of more generalised violence: CB 359 at [58], and, therefore, was not satisfied that he had a well-founded fear of persecution: CB 359 at [58]; and
(j)found that BSD24 did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and did not satisfy s 36(2)(a) of the Migration Act: CB 359 at [59].
In dealing with the complementary protection criterion the Authority:
(a)found, for the same reasons as set out above in relation to the refugee criterion, that BSD24 would face a real risk of significant harm if he were to return to reside in his home area of Kurram Agency: CB 360 at [62];
(b)was satisfied that it would be reasonable for BSD24 to relocate to an area of Pakistan where there was not a real risk of significant harm: CB 360 at [64];
(c)relied on its anterior findings that BSD24 did not face a real chance of harm in Islamabad as a Pashtun Turi Shia Muslim from Kurram Agency, his having spent time in a Western country, or as a consequence of more generalised violence, and for the same reasons, was not satisfied that BSD24 would face a real risk of significant harm in Islamabad: CB 360 at [64];
(d)found that there was no credible evidence before it that BSD24’s family was completely reliant on him for their basic needs and did not accept BSD24’s claim in this regard: CB 360-361 at [66];
(e)did not accept BSD24’s claim that his unspecified emotional or psychological vulnerabilities prevented him from studying in Australia and would impact on his ability to establish himself in Islamabad: CB 361 at [66];
(f)relying on country information about the infrastructure, the existence of Turi Shia communities, and the cost of living in Islamabad, did not accept that BSD24 would be unable to subsist in Islamabad: CB 361 at [67]-[68];
(g)did not accept BSD24’s claim that he did not have access to any support networks in Islamabad: CB 361 at [69], but also found that, in any event, BSD24 could establish support networks in Islamabad, as he has done in different parts of Australia: CB 361 at [69];
(h)given BSD24’s education and fluency in multiple languages, was not satisfied that BSD24 would be unable to find employment and accommodation in Islamabad: CB 361-362 at [70];
(i)was satisfied that BSD24 would be able to renew his Computerised National Identity Card in Islamabad, without returning to Kurram Agency: CB 362 at [71];
(j)was not satisfied that BSD24 would be prevented from pursuing further education and starting a family, should he return to Pakistan: CB 362 at [72];
(k)having regard to the BSD24’s overall circumstances, was satisfied that it would be reasonable for BSD24 to relocate to Islamabad, an area of the country where there would not be a real risk that BSD24 would suffer significant harm: CB 362 at [73]; and
(l)concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that BSD24 would suffer significant harm and found that BSD24 did not meet s 36(2)(aa) of the Migration Act: CB 362 at [74].
JUDICIAL REVIEW APPLICATION
Grounds
There are two grounds of review in the Judicial Review Application, which are as follows:
1. The IAA made jurisdictional errors by being misdirected in its statutory task in determining whether I am a refugee.
2. I will provide more details as I am waiting for advice from my lawyer.
Litigation history
Given that it is more than five years since the Judicial Review Application was filed it is appropriate to set out the litigation history of the matter, which is as follows:
(a)the Judicial Review Application and a supporting affidavit were filed on 5 November 2018 in the Sydney Registry of the Court (then the Federal Circuit Court);
(b)on 30 November 2018 a Judge of the Court made an order transferring the matter to the Adelaide Registry of the Court;
(c)on 14 February 2019 a Registrar of the Court made orders (“Registrar’s February 2019 Orders”) that included the following:
2 The Applicant has leave to file and serve any amended application by 19 April 2019.
3 The Applicant has leave to file and serve such further material that they may rely upon at the hearing by 19 April 2019.
4 The First Respondent has leave to file and serve any affidavit evidence that they wish to rely on by 3 May 2019.
5 The application be listed for a final hearing on a date to be advised.
6 The Applicant file and serve an outline of submissions 14 days prior to the final hearing.
7 The First Respondent file and serve an outline of submissions 7 days prior to the final hearing.
8 The matter be listed for a directions hearing on 12 June 2020 at 9.30 am.
(d)BSD24 did not file any documents pursuant to Orders 2 and 3 of the Registrar’s February 2019 Orders;
(e)on 9 January 2020 the Adelaide Registry of the Court advised the parties that the 12 June 2020 directions hearing had been vacated and adjourned to a date to be fixed. No reason was given for the adjournment;
(f)nothing further occurred in relation to the matter until May 2023 when the matter was docketed to the presently presiding Judge and a directions hearing was listed for 25 May 2023 at which the Court made orders (“Court’s May 2023 Orders”), which included the following:
2. Orders 2-9 of Registrar Parkyn’s orders of 14 February 2019 be set aside, and in lieu thereof order that:
a) the applicant file and serve any amended originating application, further affidavits, and an outline of submissions by 19 January 2024;
b) the first respondent file and serve any amended response, affidavits in reply, and an outline of submissions by 16 February 2024; and
c) the matter be listed for final hearing by video link on 5 April 2024 at 10.00am AWST/12.30pm ACDT/1.00pm AEDT before Judge Lucev.
(g)at the 25 May 2023 directions hearing the Court also explained to BSD24 (as noted in Note B to the Court’s May 2023 Orders) the following:
B.Having regard to the recent Federal Court judgment in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384, the Court has explained to the applicant:
a)the need to establish material jurisdictional error in the Immigration Assessment Authority decision;
b)the nature of jurisdictional error;
c)the necessity to provide grounds, properly particularised, alleging what the jurisdictional error or errors committed by the Immigration Assessment Authority were;
d)that a failure to specify and particularise jurisdictional error in the grounds may result in the dismissal of the originating application or any amended originating application; and
e)that if the originating application or any amended originating application is dismissed at hearing the applicant may have to pay the Minister’s costs.
(h)BSD24 did not file any documents pursuant to Order 2(a) of the Court’s May 2023 Orders;
(i)the Minister filed an outline of submissions on 16 February 2024 in accordance with the Court’s May 2023 Orders; and
(j)the final hearing proceeded on 5 April 2024, and at the final hearing the Court:
(i)noted that BSD24 had not filed any materials pursuant to the Court’s May 2023 Orders;
(ii)reiterated to BSD24 that he needed to establish material jurisdictional error in the Authority Decision, and that a failure to specify or particularise jurisdictional error may result in the dismissal of the Judicial Review Application and liability for costs;
(iii)heard oral submissions from both BSD24 and the Minister. Albeit that BSD24 did not file any materials he was permitted to make oral submissions, consistent with Federal Court authority to the effect that even where there are un-particularised grounds of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 (“DQQ17”) at [9] per Colvin J. In this respect DQQ17 is regularly applied by this Court. Two recent examples are FSQ18 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 383 at [8(j)] per Judge Lucev and FRK17 vMinister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 144 at [25]-[26] per Judge Ladhams; and
(iv)made an order that a new pseudonym (BSD24) be provided, to operate retrospectively, as the previous pseudonym had apparently also been allocated to a different matter (that is, there were two matters bearing the same pseudonym).
Submissions
BSD24’s oral submissions
In BSD24’s oral submissions BSD24:
(a)repeated many of the factual claims made before the Delegate and Authority, without asserting or identifying any alleged jurisdictional errors in relation thereto;
(b)ultimately alleged the following specific mistakes by the Authority, namely that in relation to:
(i)the possible relocation of BSD24 to Islamabad, that this was impossible; and
(ii)money transfers from Australia to Pakistan that:
(A)there was an error made by the interpreter before the Delegate who translated 100,000 Pakistani rupees as $AUD100, 000; and
(B)the agent who transferred the money may have misused BSD24’s driver’s licence to send money to Pakistan either for the agent or for persons other than BSD24; and
(c)adverted to the alleged leaking of his data from the Department with the consequence that his whereabouts and the name of his wife (whom he married in Australia) was now known in Pakistan.
Minister’s submissions
The Minister submitted that:
(a)BSD24 had provided no particulars, submissions or evidence to substantiate the grounds of the Judicial Review Application, and in those circumstances BSD24 had not demonstrated any jurisdictional error in the Authority Decision;
(b)the Authority Decision:
(i)was reasonable, rational and open to be made by the Authority for the reasons it gave;
(ii)gave intelligible reasons for the Authority’s concerns with the credibility of BSD24’s claims; and
(iii)otherwise made findings based on the country information before the Authority; and
(c)the Authority’s new information findings were consistent with relevant case law.
Consideration
Material jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. To constitute jurisdictional error an error must be material in the requisite sense explained in MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA [(2019) 264 CLR 421] to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”).
Ground 2
Ground 2 can be disposed of first: it is not a ground of review as such and does not allege any error in the Authority Decision, let alone material jurisdictional error.
Ground 1
In its terms ground 1 is an unparticularised assertion that the Authority made a jurisdictional error by being misdirected in its statutory task in determining whether BSD24 was a refugee. Were it not for the matters raised at hearing and set out at [10] above, it would have been open to the Court, having given both explanation and opportunity to BSD24 to explain what jurisdictional error he alleged affected the Authority Decision, to dismiss the Judicial Review Application because of the failure to go beyond the bare assertion of jurisdictional error in ground 1, and the failure to particularise ground 1: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
Jurisdictional error otherwise
General matters
Before dealing with the matters dealt with by the Authority and the matters raised at final hearing by BSD24 the Court notes that BSD24 was given three opportunities prior to the final hearing to put material (including submissions and affidavits) before the Court in relation to any alleged jurisdictional error in the Authority Decision. The first opportunity was upon the filing of the Judicial Review Application. The second opportunity was as a consequence of the Registrar’s February 2019 Orders. The third opportunity was as a consequence of the Court’s May 2023 Orders. The Court further notes that:
(a)at the directions hearing on 25 May 2023 the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to BSD24, and BSD24 was told that the Court did not engage in merits review of the Authority Decision;
(b)BSD24 speaks English, and self-assessed his English language capabilities as “Good”: CB 5 at Qu 21 and 22, and said that he spoke, read and writes English: CB 48 at Qu 29, and appears to have spoken English for the majority of his initial entry interview in English: CB 349 at [14] (although he did utilise, as he was entitled to do, the services of an interpreter before this Court); and
(c)was not impecunious, having a taxable income of $63,409 for the year ended 30 June 2017: CB 236.
BSD24 did not file any materials dealing with or setting out the nature of any alleged jurisdictional error in the Authority Decision.
Having regard to the matters set out at [16] above the Court is satisfied that BSD24 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: DQQ17 at [8]-[9] per Colvin J; BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 (“BKT17”) at [31]-[35] per Feutrill J, and notes that he does not suffer from some of the “manifest disadvantage[s]” suffered by many self-represented visa applicants seeking refugee protection: BKT17 at [35] per Feutrill J.
Refugee and complementary protection matters (including relocation)
It is evident from a review of the Authority Decision that the Authority set out the relevant legislative requirements, engaged with the claims actually made by BSD24, and considered country information in relation to BSD24’s refugee and complementary protection claims, as it was required to do: as to claims, see, for example Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ and Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [47]-[50] per Judge Lucev, and as to country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[13] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ.
The Authority considered the country information and determined that there was a serious risk of harm if BSD24 were to stay in his hometown of Parachinar, but determined that serious risk of harm was not present if he were to relocate within Pakistan, specifically to Islamabad. In making that determination the Authority considered the relevant country information, as well as information particular to BSD24, including:
(a)country information concerning:
(i)the integration of Shia and Sunni Muslim communities in Islamabad, and the mix of ethnic and religious communities therein, and its historically “relatively high population of internal migrants”: CB 356 at [43];
(ii)the “small but significant community of Turi Shia Muslims from Upper Kurram” living in, or in close proximity to, Islamabad: CB 356 at [44] and 361 at [67];
(iii)the rarity of violent attacks on the Turi community in Islamabad by Sunni militant groups: CB 356 at [46];
(iv)the targeting of “leading figures” and community leaders by suicide bombers or gunmen: CB 356-357 at [47];
(v)rare attacks upon government, judicial and security infrastructure, resulting in few civilian casualties: CB 356-357 at [47];
(vi)the “low risk of sectarian violence” against Shia Muslims in Islamabad: CB 357 at [49];
(vii)DFAT’s analysis of the security situation in Islamabad not supporting BSD24’s contention of an ongoing trend of threats, attacks or kidnappings in Islamabad targeting members of the Pashtun Turi Shia Muslim community: CB 357-358 at [51];
(viii)“ordinary Shia Muslims, including Pashtun Turi Shia Muslims who have migrated from Upper Kurram, and who would likewise be identifiable as such” being “able to engage in public worship and to go about their day-to-day activities in Islamabad such as work and education, without facing a real chance of harm”: CB 358 at [2];
(ix)the greater access to employment, education and health care in Islamabad (as opposed to the Upper Kurram), and how this access was central to the decisions made by Turis to relocate to Islamabad: CB 361 [67];
(b)that BSD24:
(i)did not have a “personal, adverse profile” with, nor was he “of ongoing interest to the militant groups in Pakistan on account of being a Shia Turi who had studied in Mardan”: CB 356 at [45];
(ii)“is not and has never been prominent as an activist or a community leader within the Turi tribe, or a religious leader within the broader Shia Muslim community”: CB 356 at [45];
(iii)was not part of any specific group specifically targeted by the Pakistani police or security forces by way of racial profiling or discriminatory treatment: CB 358 at [53];
(iv)has demonstrated the ability to live apart from his family for over ten years (first in Mardan and then in Australia): CB 360-361 at [66], and to “establish networks of support” in Australia “without the presence of immediate relatives or a large community of Turis or Pashto speakers”: CB 361 at [69]; and
(v)had the capacity (on the evidence before the Authority) “to find employment and earn a livelihood sufficient to pay for his accommodation” in Islamabad: CB 361 at [69] and 361-362 at [70].
The Authority utilised the country information and the conclusions drawn therefrom to find that BSD24 did not require protection as a refugee or under the complementary protection provisions of the Migration Act if he were to relocate to Islamabad on return to Pakistan: CB 354-359 at [33]-[59] and 360-362 at [64]-[74].
Whilst BSD24 asserts that relocation to Islamabad is “impossible”, that merely demonstrates that BSD24 disagrees with the Authority Decision. Even strong disagreement with the Authority Decision is not necessarily indicative of jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577 at [40] per Gleeson CJ and McHugh J, Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [75] per Colvin and Halley JJ. The weight to be afforded to the material before the Authority (and in particular, country information: NAHI at [11] per Gray, Tamberlin and Lander JJ), was a matter for the Authority. In the circumstances, the Authority Decision was one that was reasonable, rational and open to it on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248. Moreover, the Court cannot engage in a general review of the merits of the Authority Decision: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
New information
The Authority’s new information findings are consistent with the relevant law. The Authority correctly stated that before it could consider new information, it must satisfy one limb of s 473DD(b) of the Migration Act, and “additionally” s 473DD(a) of the Migration Act: CB 357 at [5]. The Authority put its consideration of s 473DD(b) of the Migration Act before s 473DD(a) of the Migration Act, demonstrating that it understood that it should turn its mind to the criteria in s 473DD(b) of the Migration Act before considering s 473DD(a) of the Migration Act: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196.
In its new information findings the Authority:
(a)expressly records the date of the new information (and whether it pre or post-dates the Delegate’s Decision, or is undated: CB 349 at [11]),
(b)deals with whether the new information relates specifically to BSD24’s claims: see CB 347-348 at [6] about the Smart Traveller advice being “general information” and CB 349 at [11] about the Assembly website not substantiating BSD24’s claims;
(c)deals with whether there was “credible or independent evidence” to substantiate the assertions put forward by BSD24 in the new information: CB 350 at [15]; and
(d)the bulk of the new information was country information which did not contradict the country information already before the Authority, and the new information which was not country information was found to lack credibility: CB 350 at [15], or was of minimal relevance to BSD24’s claims: CB 350 at [17].
In relation to the June 2018 Statutory Declaration in which BSD24 contended that his former representative allegedly did not obtain his instructions before responding to the Invitation to Comment, the Authority considered that explanation in detail, and rejected it: CB 349-350 at [12]-[16]. The Authority was not required to engage in any formulaic consideration of s 473DD(b) of the Migration Act: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] per Markovic J (from which the High Court refused special leave to appeal in APH17 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCASL 118 at [1] per Keane and Gleeson JJ), but it is clear that the Authority considered the substance of s 473DD(b) of the Migration Act. Even if there was any technical or minute non-compliance with s 473DD(b) of the Migration Act any error was immaterial in the sense that it could not have realistically affected the Authority Decision: MZAPC at [2] and [38] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Interpreter error
BSD24 asserts that the Authority made a jurisdictional error because an error was made by the interpreter before the Delegate who translated 100,000 Pakistani rupees as $AUD100, 000.
An error in interpretation may result in a jurisdictional error where:
(a)the standard of interpretation is so inadequate that the applicant is effectively prevented from giving evidence; or
(b)the errors in interpretation are material to adverse conclusions reached by the Tribunal: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 (“SZRMQ”) at [9] and [24] per Allsop CJ.
BSD24 made the same allegation of interpreter error in submissions before the Authority. The Authority examined the issue in some detail at CB 349-350 at [12]-[15] as follows:
12.In the 13 June 2018 statutory declaration the applicant disavowed an earlier statutory declaration he has made in April 2018 in response to a March 2018 written invitation to comment on adverse information sent by the delegate (s.57 letter). He declared that his previous representative did not make him aware of the contents of the s.57 letter, did not seek his instruction in preparing the response and told him to sign the declaration without having reviewed it. He also declared that, contrary to the admission in that declaration that he had given false evidence in the SHEV interview, he had been ‘entirely honest’ in his responses during the SHEV interview and that the apparent falsities in his evidence with regard to the remittance of money to Pakistan can be attributed to errors made by the Pashto interpreter during the SHEV interview. He claimed that he struggled to communicate with the interpreter as he spoke an Afghan dialect of Pashto which is significantly different to the Pashto dialect spoken in Pakistan.
13.I have taken into consideration that the use of an interpreter can have the potential to distort the meaning of some evidence given in an interview. In this case I note that the interpreter had professional accreditation in Pashto, that this is the applicant’s first language, and that the rest of the applicant’s answers in the same interview in relation to his claims for protection are consistent with preceding and subsequent evidence put forward by him. At no stage did the applicant or his agent indicate to the delegate that the applicant couldn’t understand the interpreter during the interview. Indeed it is evident from the overall flow of the interview, as well as the applicant’s positive confirmation at the beginning of the interview, that he understood the interpreter and the questions being asked.
14.During the SHEV interview the delegate repeatedly raised the issue of the discrepancy between the remittance receipts presented by the applicant and the information held by the Department regarding the large amount of remittances to Pakistan in the applicant’s name. The applicant contends he was unable to understand the delegate’s questions about the remittances or their context, and that he provided truthful answers to the questions as he understood them through the interpreter. However it is clear from the SHEV application and Entry interviews that the applicant speaks, reads and writes English to a high standard; to the extent that the applicant participated in most of the 1 hour Entry interview in English, and handwrote in English the four page statement of claims prepared for his SHEV application. At times during the SHEV interview he directly responded to the delegate’s question in Pashto without waiting for the question to be interpreted, or responded to the delegate’s question directly by answering in English. These circumstances suggest to me that the applicant was actively engaged with the delegate’s line of questioning, and understood the delegate’s questions in English. I am not satisfied that there were any material misunderstandings or misinterpretations.
15.The applicant’s serious allegation that his previous agent has engaged in misconduct by failing to advise the applicant the contents of the s.57 letter, prepared the response to this letter without seeking instruction, and then told the applicant to sign a statutory declaration without reading it is not substantiated by any credible or independent evidence. As noted earlier, the applicant has demonstrated he understands written English and was actively engaged in preparing the SHEV application and supporting materials. I do not accept his claim that he did not discuss the s.57 letter with his representative, or that he signed the April 2018 statutory declaration without reading and understanding its contents.
It is evident from the Authority decision at CB 349-350 at [12]-[15] (and especially [14]) that the Authority listened to a recording of the Delegate’s Interview.
In relation to the standard of interpretation required before the Delegate, and any assertion of error in relation to that interpretation, the Court makes the following observations and findings:
(a)to amount to jurisdictional error the standard of interpretation before the Delegate must have been so inadequate that it deprived BSD24 of a real and meaningful opportunity to participate in the Delegate’s Interview by effectively preventing BSD24 from giving evidence where the conclusions formed on the basis of the inadequately interpreted evidence were material to the outcome of the SHE Visa application: SZRMQ at [78] and [80] per Robertson J; Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [26] per Kenny J;
(b)despite the numerous opportunities afforded to BSD24 to put materials (including affidavit evidence) before the Court: see [16] above, BSD24 provided no supporting affidavit evidence in the form of a recording or transcript of the Delegate’s Interview to support any possible claim of errors in interpretation, or which might enable the Court to determine if inadequate interpretation occurred, and, if it did occur, whether it was material to the outcome of the Authority Decision; and
(c)based upon the Authority Decision, and bearing in mind the Authority had the advantage of listening to a recording of the Delegate’s Interview, it appears that BSD24 did not need an interpreter to answer some questions, and otherwise answered the questions put during the Delegate’s Interview adequately and directly in relation to what was being asked of him. On the face of the Authority Decision there is no evidence that the interpreter was not conveying to the Delegate what was being said by BSD24 (and vice versa) during the Delegate’s Interview, and the Court cannot therefore find any error, let alone jurisdictional error, in relation to the issue of interpretation.
It follows from the above that the allegation of interpreter error does not establish jurisdictional error in the Authority Decision.
Money transfers
BSD24 also alleges jurisdictional error by the Authority in findings concerning his remittances to Pakistan. BSD24 alleges that the agent who transferred the money may have misused BSD24’s driver’s licence to send money to Pakistan either for the agent or for persons other than BSD24.
In the Authority Decision this issue is considered at CB 352-353 at [26]-[28] as follows:
26.In the SHEV interview the applicant was asked whether he sent money to Pakistan and he responded that sometimes he sends small amounts of money to his father. It was put to him that the information obtained by the Department indicated that the applicant was remitting large sums of money, tens of thousands of dollars. The applicant responded that on one occasion he sent a larger sum of money that he borrowed from friends as his father was in hospital. The delegate said he was talking about a sum of over $100,000. The applicant responded that he had never sent that amount and had receipts for the amounts that he has sent. He then presented the delegate with eight receipts (totalling around $5800) and the delegate asked whether it was correct that the applicant had only sent money back to Pakistan on eight occasions. The applicant responded that he has kept these receipts because he thought if anything happened, or any time it was needed he’d kept the receipts.
27.I note that the Pashto interpreter used in the SHEV interview had a recurring mannerism where he would commence his interpretation of the applicant’s responses by saying “Yes”. I accept that this may not have been a literal interpretation of the applicant’s response in this instance and may have led the delegate to believe that the applicant had started his response by saying ‘Yes’ when this may not have been the case. Nevertheless, I find it would have been apparent to the applicant from the context of the questioning that there was a large discrepancy between the Departments’ information about his remittances and the receipts he was presenting. For example, the next question the delegate asked was “Is it possible that someone has sent money in your name?” The applicant responded that it was possible that the owner of the shop in Merrylands was sending money under his name. After discussing the eight receipts and the reasons for each of those remittances the delegate returned to the discrepancy again, “Just to confirm, this is the only money you say you have sent to Pakistan?” and the applicant responded “[Yes] “I have sent this much amount and I have the receipt of the amount I have sent”. Twenty minutes later, the delegate returned to the topic, reiterating that he remained concerned by the fact that there had been a substantial amount of money been sent by the applicant to Pakistan and this was far more than what the applicant had told him. The delegate asked a third time “Just to confirm, this is the only money you’ve sent?” The applicant responds “I have the receipts here – whatever amount I have sent it. If you want I can go and tell the person why have you sent the money in my name?”
28.The evidence before me strongly indicates that the applicant provided false and misleading evidence to the delegate on the amounts and frequency with which he had remitted money to Pakistan. When first asked whether he sent any money to Pakistan, he responded by stating that he sometimes he sent small amounts of money to his father. When asked to explain the discrepancy between this account and the Department’s information that he has sent more than $100,000 he speculated that perhaps someone else was sending money in his name. The delegate asked the applicant about this discrepancy in three different ways, at three separate points during the interview and at no point did the applicant indicate that he had sent any other money other than the amounts in the eight receipts, or that he had any other receipts. The applicant has a good command of the English language; evident in the fact that the Entry Interview was conducted almost entirely in English, the applicant handwrote a four page statement of claims in English and he responded to a number of questions directly, without using the interpreter during the SHEV interview. I am satisfied that, notwithstanding the interpreter, that the applicant understood the delegate’s questions and provided misleading answers. I further note that the applicant admitted and apologised for making false statements in relation to the remittances in a statutory declaration made in April 2018.
The Delegate dealt with the issue of money transfers finding that BSD24 “remitted the equivalent of more than one hundred thousand Australian dollars to Pakistan, which he states he has used to assist his family”: CB 268. In the April 2018 Statutory Declaration BSD24 said he had sent money to his family in Pakistan and that the “[t]otal amount would be about one hundred thousand dollars”. In the June 2018 Statutory Declaration at CB 319, BSD24 does not say that he did not send a total of $AUD100,000 to his family in Pakistan, but rather that he did not do so as a lump sum. It is also evident that the Delegate relied upon some information from the Australian Transaction Reports and Analysis Centre (“AUSTRAC”) in relation to remittances made by BSD24 to his brothers in Pakistan: CB259, . There was no evidence before this Court, nor before the Authority or the Delegate, to support BSD24’s assertion that any agent who transferred the money may have misused BSD24’s driver’s licence to send money to Pakistan either for the agent or for persons other than BSD24.
In all the circumstances there was evidence upon which the Authority could make the factual findings that it did at CB 352-353 at [26]-[28], and it is not the role of this Court on judicial review to remake those findings: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and it follows that there is no jurisdictional error in the Authority Decision arising from its findings concerning BSD24’s money transfers.
Data leak
In his oral submissions in reply BSD24 adverted to the alleged leaking of his data from the Department with the consequence that his whereabouts and the name of his wife (whom he married in Australia) was now known in Pakistan.
The issue of the alleged data leak had not previously been raised by BSD24 and consequently neither the Delegate nor the Authority dealt with it. The Authority did not make a jurisdictional error with respect to the data leak because it was not required to consider it because it was not a matter put in issue before the Authority or the Delegate. Further, it is not the role of this Court to make factual findings on new claims raised before this Court, but rather to determine if the Authority Decision is affected by material jurisdictional error: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Self-represented litigant
The Court is cognisant that BSD24 was a self-represented litigant, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.
CONCLUSION AND ORDER
The Court has concluded that the Authority Decision is not affected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 27 June 2024
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