Bxu16 v Minister for Immigration

[2018] FCCA 1247

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXU16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1247

Catchwords:
MIGRATION – Application for review of Immigration Assessment Authority decision – grounds of the substantive application not pressed – application dismissed.

PRACTICE & PROCEDURE – Application to amend substantive application made at final hearing – proposed grounds – whether the Authority failed to consider material – whether the Authority failed to consider a substantial clearly articulated submission – proposed grounds lack merit – application to amend refused.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 46, 473CB, 473CC, 473DB, 476

Cases cited:

Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
NAJT v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365

Applicant: BXU16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1937 of 2016

Judgment of: Judge Nicholls

Hearing date: 5 March 2018

Date of Last Submission: 5 March 2018

Delivered at: Sydney

Delivered on: 18 May 2018

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application made on 5 March 2018 to amend the substantive application is refused.

2. The application made on 22 July 2016 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 1937 of 2016

BXU16

Applicant

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. On 22 July 2016 the applicant made an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Immigration Assessment Authority (“the Authority”) which, on 17 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) not to grant a protection visa to the applicant.

2. The applicant was legally unrepresented when he made his application to the Court. However, by the time of the final hearing he had instructed a firm of solicitors to act for him, and was represented by counsel at the hearing. The Minister was also represented by counsel. The stated grounds of the application were in general terms.

3. At the final hearing, leave was sought by the applicant’s counsel to amend the grounds of the application. The Minister opposed the grant of such leave.

4. The Minister agreed that the applicant, through his solicitor, had provided a satisfactory explanation for the delay in seeking to amend his application. Particularly in circumstances where he had been in discussion with lawyers since July 2016, and who came onto the record on 27 February 2018.

5. The question as to whether leave should be granted to amend the application came down to whether there was such merit in the proposed grounds such as to warrant leave in the interests of justice.

6. The proposed grounds are in the following terms:

   “1. The IAA failed to review the delegate’s decision pursuant to ss 473CC and 473DB(1) of the Migration Act by failing to consider review material provided to the Authority under section 473CB of that Act.

   Particulars

   (a) Failure to consider the content of paragraph 5.21 of a DFAT report dated 18 September 2015, and references to that report in the applicant’s advisor’s submission at Court Bok p.83.

   2. The IAA failed to review the delegate’s decision pursuant to ss 473CC and 473DB(1) of the Migration Act by failing to consider a substantial, clearly articulated submission provided to the Authority under section 473CB of that Act.

   Particulars

   (a) Submission to the effect that;

   i) There is an intrinsic link between Shia religion and Hazara ethnicity and political views are often guided by ethnicity, with the result that Hazaras are often imputed with anti-fundamentalist views.

   ii) Asylum seeker returnees from western countries face a similar level of risk to those associated with government and the international community, and that insurgent groups openly target government officials and people associated with the international community throughout Afghanistan, including Kabul.

   iii) The applicant would stand out in Afghanistan as an individual easily identifiable as foreign and who has been westernised and thus provide an easy target.

   iv) Kabul is one of the most dangerous cities in the world.”

7. The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB” “RE1”), and the affidavit of David John Prince, Solicitor, made on 27 February 2018, annexing country information. This affidavit was admitted on the basis of provisional relevance.

Background

1. The applicant is a citizen of Afghanistan, and is of Hazara ethnicity and Shia Islam religion (CB 20 and CB 22). He arrived in Australia by boat in November 2012. As such, the applicant was an “unauthorised maritime arrival” within the meaning of s.5AA of the Act. It appears that the Minister issued a notice pursuant to s.46(2) of the Act, which permitted the applicant to apply for a safe haven enterprise visa (“SHEV”). He did so on 8 October 2015.

2. The applicant’s claims to protection were variously set out in his application form (CB 48 to CB 54), an interview with the Minister’s delegate and written submissions lodged by his representatives, both with the delegate (CB 74 to CB 126), and the Authority (CB 186 to CB 210).

3. The applicant claimed to have been born in a village in Wardak province of Afghanistan. When he was about two years old, the family moved to Quetta in Pakistan because of danger from the Taliban ([6] at CB 48 to [7] at CB 49).

4. Sunni Muslim militants began targeting Hazaras in Quetta. Therefore, the family moved back to the village in Wardak province in 2012

   
   

   ([7] – [11] at CB 49).

5. The applicant claimed that the Taliban and “Koochis” attacked his village. In one attack, the applicant’s father and brother went “missing”. The remainder of his family left the village in Wardak province and travelled to Kabul. After a few months the applicant left for Australia. Some of his family remains in Kabul ([12] at CB 49 to [20] at CB 50).

6. In all, the applicant claimed to fear harm if he were to return to Afghanistan because of his Hazara ethnicity, Shia religion, as a returned asylum seeker from a Western country, and as an unaccompanied child ([21] at CB 50 to [27] at CB 51).

7. In written submissions, his then representative also advanced the following claims ([5] of the Minister’s written submissions):

   “5.1 The applicant was at risk of being forcibly recruited by extremist or anti-government groups.

   5.2 The applicant would be destitute if returned to Afghanistan and as a young man, he would be at risk of violence in Kabul while trying to find work.

   5.3 There would be a risk to the applicant were he to travel on roads in Afghanistan outside of Kabul.

   5.4 The applicant’s level of education and status as a young male placed him at risk in Afghanistan.

   5.5 The applicant faced a risk of harm from Islamic State.”

8. Both parties summarised the Authority’s decision. It is convenient to note the following as background to the applicant’s proposed grounds ([12] – [13] of the applicant’s written submissions):

   “[12] The Authority accepted that the applicant had given a truthful account of his life (CB 217 [11]). It found that there was an ongoing risk of persecution in his village in Wardak Province (CB 221 [31]-[32]), and that if he were to return to Afghanistan he would go to Kabul (CB 222 [36]). Thus, as previously noted, the focus of the decision was the situation for the appellant in Kabul. It found;

   (a) That DFAT advises that the government in Kabul continues to maintain effective control. There have been attacks in Kabul, but such attacks are targeted at government bodies, political figures, Afghan and international defence and security forces diplomatic and international organisations (CB 222-3 [42]).

   (b) There have been some incidents of violence against Shia and Hazara targets in Kabul since 2001 (CB 223 [43]).

   (c) There is a danger to Hazaras travelling on roads, particularly between Kabul and the Hazarajat, but other than that ethnic/religious violence against Hazaras remains rare (CB 223 [44]-[45]).

   (d) Discrimination against Hazaras in Kabul does not rise to the level of serious harm (CB 223 [46]).

   (e) Hazaras are often perceived as being affiliated with the government, and this may in some circumstances contribute to them being targeted for harm, particularly on the roads. But DFAT advises that Hazaras who have spent time in western countries face a low risk of harm as a result of those links. The risk is to those directly associated with governmental and international bodies. The applicant does not have a profile of a person that would link him to a high risk group, and so there is not a real chance that he would be harmed in Kabul (CB 224 [47]- [50]).

   (f) Addressing the claims that the applicant would be in danger from being perceived as pro western, or anti Taliban because of his language, dress, way of thinking and interacting, the AUTHORITY found that there was no country information that indicates that returnees from the west or failed asylum seekers have been targeted for harm in Kabul (CB 224-5 [52]-[56]).

   (g) Reports indicate that insurgent and terrorist groups openly target government officials and people who are associated with the international community, and that such attacks occur throughout Afghanistan, including Kabul. However, DFAT also advises that there is no evidence to indicate that low profile individuals are subject to discrimination or violence as a result of their having spent time in western countries, whereas there is a higher risk for those who have worked for, support or are associated with the international community (CB 225 [58]).

   (h) Referring to UNHCR guidelines dated 19 April 2016 which referred to reports of individuals being targeted by anti-government agencies because of their values or appearances, the AUTHORITY opined that such reports were general and provide little detail about the types, incidents or frequency of such threats or targeting. It found that the country information does not indicate that there is a real risk of harm in Kabul for a returnee of a westernised person, or a person perceived to be affiliated with the west. It found that there was no country information before it that in a city as diverse as Kabul, which has experienced such significant population growth since the fall of the Taliban, that returning from the west imputes a person with a political opinion and nor is there any indication that that as a young Hazara man with an education, English language skills or western traits, would be at risk of harm on return to Kabul (CB 225-6 [59]-[60]).

   “[13] The Authority then went on to discuss issues which are not relevant to the proposed amended application.”

9. Further, see [7] – [16] of the Minister’s written submissions as follows:

   “[7] The Authority had regard to the material referred to it by the Department under s.473CB of the Act (CB 215 at [4]). The Authority referred to the submissions received on 14 June 2016, noting that to the extent that they referred to country information that was not before the delegate (and which was therefore “new information” within the meaning of s.473DD of the Act), the applicant had not provided any reason why the Authority should consider the information, despite having been informed of the requirements of s.473DD. The Authority was not satisfied that this information could not have been provided to the delegate, nor was the Authority satisfied that this information was credible personal information. The Authority did not have regard to the country information (CB 215 at [5]).

   [8] The Authority accepted the applicant’s account of his family’s time in Pakistan (CB 218 at [15]), and also accepted that the applicant’s father and brother went missing in an armed attack in 2012 and that, following this, the applicant fled with his remaining family to Kabul (CB 220 at [26]). The Authority noted that the applicant did not claim to have suffered any harm after living in Kabul for four to five months and accepted the applicant’s account of his time in Kabul (CB 220 at [27]).

   [9] The Authority accepted that there was a real chance of the applicant suffering persecution in Beshood as a Hazara Shia, at the hands of Kuchis, the Taliban or Hezb-e-Islami (CB 221 at [32]). However, the Authority found that, as his family was in Kabul, and he had only spent two to three weeks in Beshood following twelve years in Quetta, the applicant would return to Kabul from Australia (CB 221-222 at [36]).

   [10] The Authority noted country information that the government maintained effective control in Kabul and that ongoing insurgent attacks in Kabul were focussed not on Hazara or Shia but against high profile targets (CB 222-223 at [42]), and that the applicant did not have such a profile (CB 224 at [48]). The Authority also noted that Hazaras were the largest ethnic group in Kabul, at an estimated 40 to 50 per cent of the population CB 225(at [56]). The Authority had regard to country information that Hazara Shia were more likely to be targeted on roads than Pashtuns and that there was a risk to Hazara Shia on the roads between Kabul and the Hazarajat (CB 223 at [44] to [45]).

   [11] The Authority found that while the applicant might encounter a degree of discrimination on return to Kabul as a Hazara Shia, this would be low-level and infrequent, and would not constitute serious harm (CB 223 at [46]). The Authority noted that there was no country information before it to indicate that failed asylum seekers or returnees from the west, or those with relatives in the west, had been targeted for harm within Kabul (CB 225 at [55]). Further, the Authority found that there was no information to support the applicant’s claim that ‘he would be perceived to have links to, or sympathies for, a western country or the Afghan government, or be anti-Taliban or anti-IS or otherwise be seen as a spy, a collaborator, interpreter or of a higher profile than other Hazara Shia in Kabul’ (CB 227 at [64]). The Authority found that the applicant would not face a real chance of harm for these reasons (CB 227 at [65]).

   [12] In relation to the Departmental data breach in 2014, the Authority noted that the applicant did not claim to fear harm from the central government or the authorities, and found the prospect that this data would be accessed and the applicant identified by anyone, let alone by those with any enmity towards him, to be farfetched and remote (CB 226 at [62]). The Authority found that there was not a real chance of harm on this basis (CB 226-227 at [63]).

   [13] In respect of the applicant’s claim that he would be at risk as an unaccompanied minor, the Authority found that the applicant was now 18 and therefore did not accept this claim (CB 227 at [67]). In relation to the applicant’s claim that he would be forcibly recruited by anti-government forces, the Authority considered country information and noted there was no evidence that forced recruitment occurred in Kabul and did not accept that the applicant would face harm on this basis (CB 228 at [73]).

   [14] The Authority accepted that the applicant may have to support his mother on return to Kabul but noted that he had the support of his sister-in-law prior to leaving Kabul, including staying in her house, and there was nothing to suggest that such support would be withdrawn upon the applicant’s return to Kabul (CB 228-229 at [75]). The Authority did not accept that the applicant would be ‘isolated, destitute with no income, trade or prospects of employment, or that he would be subjected to inhumane treatment as a result’ (CB 229 at [80]). The Authority noted that while the economic situation in Kabul was difficult, those with certain skills, including linguistic skills, were better placed to find employment in Kabul. The Authority found that as a multilingual and educated young male, with a home and some family support, his employment prospects upon return appeared to be favourable.

   [15] The Authority found that there was no evidence to suggest that the applicant was suffering from any condition related to past trauma (CB 229 at [81]) and found that completion of his schooling in Australia was a positive indication that he was intelligent and able to adjust to a new environment (CB 229-230 at [81]). The Authority further found that there would not be a real chance of harm on the basis of the applicant’s ethnicity, religion, youth, education, imputed association with the west, or status as a returnee from the west in Kabul (CB 224-225, 230 at [50] and [83]). The Authority found that the applicant did not meet the refugee criterion for the grant of the visa (CB 230 at [85]).

   [16] The Authority then considered the complementary protection criterion for the visa and found that, for the reasons set out previously, the applicant would face a real risk of significant harm if he returned to Beshood (CB 231 at [88]). However, having regard to its anterior findings of fact, the Authority found that the applicant would not face a real risk of significant harm in Kabul (CB 231 at [90]). Given that the applicant had only lived in Beshood for two weeks and all of his remaining family resided in Kabul, the Authority found that it would be reasonable for the applicant to relocate to Kabul (CB 232 at [95]) and found that there was not a real risk that the applicant would face significant harm in Kabul (CB 232 at [97]).”

10. The following statutory context is relevant to understanding the applicant’s proposed grounds. Section 473CC of the Act requires the Authority to review the delegate’s decision. This must be done in accordance with s.473DB of the Act. Relevantly, this requires that the Authority consider material provided to it, pursuant to s.473CB of the Act.

11. Section 473CB of the Act is in the following terms:

    “Section 473CB

    Material to be provided to Immigration Assessment Authority

    (1)  The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a)  a statement that:

    (i)  sets out the findings of fact made by the person who made the decision; and

    (ii)  refers to the evidence on which those findings were based; and

    (iii)  gives the reasons for the decision;

    (b)  material provided by the referred applicant to the person making the decision before the decision was made;

    (c)  any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)  the following details:

(i)  the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)  the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)  the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)  if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)  if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)  The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

1. Section 473CC of the Act is in the following terms:

   “Section 473CC

   Review of decision

   (1)  The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

   (2)  The Immigration Assessment Authority may:

   (a)  affirm the fast track reviewable decision; or

   (b)  remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”

2. Section 473DB of the Act is in the following terms:

   “Section 473DB

   Immigration Assessment Authority to review decisions on the papers

   (1)  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.

   (2)  Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

   Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).”

3. The applicant’s submission was that the Act compels the Authority to consider material provided by the applicant. Further, it must also consider any other material considered by the Secretary of the Minister’s department to be relevant to the review, and which is in his (or her) possession or control, at the time the delegate’s decision is referred to the Authority.

4. The context for the applicant’s proposed grounds is that the Authority had before it the Department of Foreign Affairs and Trade (“DFAT”) report of 18 September 2015 (“the DFAT Report”) and the DFAT Thematic Report of 8 February 2016 (“the DFAT Thematic Report”) (see annexures “A” and “B” to the affidavit of Mr Prince), the delegate’s decision (which extracted [5.21] of the report (see CB 159), and the applicant’s representative’s submissions to the delegate in relation to that document (see CB 83 and footnotes 39 and 40)).

5. The gravamen of the complaint in proposed ground one is that contrary to the Act, the Authority did not consider these documents in the requisite sense.

6. The applicant submitted that the word “consider” has a particular meaning and operation for the purposes of s.473DB(1) of the Act (with reference to “by considering” in that sub-section) and as it applies to that material referred to in s.473CB of the Act.

7. The applicant referred to Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 (“Tickner”) per Black CJ (at 462) as follows:

   “The meaning of ‘consider’ used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, (2nd ed) as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.”

8. The applicant also referred to Kiefel J (as her Honour then was) in Tickner (at 495) as follows:

   “To ‘consider’ is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.”

   See also Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38] and NAJT v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [212].

9. In the current case, the Authority found that there was a real chance of harm if the applicant were to return to his home village ([30] – [32] at CB 221). However, the Authority was not satisfied that there was a real chance of harm if the applicant was to return to Kabul ([64] at CB 227).

10. The Authority’s reasoning was, in essence, that it was satisfied that the applicant would return to Kabul from Australia ([36] at CB 221 to CB 222). With regard to the situation for Hazaras and Shias in Afghanistan, the Authority stated ([39] at CB 222):

    “In relative terms, the situation for Hazara Shia in Afghanistan improved significantly following the fall of the Taliban in 2001, however an assessment of the current risk of harm to the Hazara is complex and can vary significantly throughout the country. A key reason is that the Government does not have uniform and effective control throughout Afghanistan due to the insurgency and an overall deteriorating security situation.”

    [Footnotes omitted.]

11. The Authority then stated ([42] at CB 222 to CB 223):

    “While detailed evidence has been provided pointing to potential ongoing risks to Hazara Shia in several provinces, DFAT advises that in Kabul the government continues to maintain effective control. There is evidence of insurgent attacks in Kabul, as has been highlighted by the representative, but the focus of these attacks has not been against the Hazara or Shia, but against other high profile targets. Country information indicates that the attacks have been directed at government bodies, political figures, Afghan and international defence and security forces, diplomatic organisations and international organisations.”

    [Footnotes omitted.]

12. Given the Authority’s statutory obligation, the following from its decision record is relevant ([44] – [45] at CB 223 and [47] and [49] at CB 224):

    “[44] In her submissions, the representative has highlighted the inextricable link between ethnicity, religion and political allegiance for Hazara Shia and the difficulty in distinguishing between these elements when considering incidents and tensions which involve Hazara. There is support for this in her submissions and the country information about Hazara Shia travelling on roads, in particular between Kabul and the Hazarajat – DFAT indicates that if a bus containing a mixture of ethnic groups is to stop in these areas, ethnic Hazaras (non-Pashtuns) are more likely to be targeted for harm than Pashtuns, although DFAT advises that it is difficult to say with any certitude that this is due to their ethnicity.

    [45] Conversely, country information indicates that with the exception of those travelling by road between Kabul and the Hazarajat, the incidents of inter-faith and/or inter-ethnic violence against Hazara Shia remains rare in Afghanistan.

    …

    [47] Due to improvement in the situation of the Hazara, at least in a relative sense, Hazara are often perceived to be affiliated with the government and international community in Afghanistan. DFAT has suggested that this, in some circumstances, may contribute to a person being targeted for harm – particularly on the roads. However, outside of that context, DFAT consider low profile Hazara who have spent time in western countries face a low risk of harm as a result of those links. The country information before me does not indicate that low profile Hazara who have spent time abroad are imputed to hold any political opinion that would put them at a real risk of harm above that of other Hazara Shia – instead, the risk is to those that have been directly associated with governmental and international bodies.

    …

    [49] While insurgent attacks against high profile groups continue in Kabul, the country information does not support a finding that a low profile Hazara Shia like the applicant would be targeted for harm in Kabul. I have considered the representative’s extensive submissions on the situation in Kabul, and while I accept the security situation remains volatile, given his profile the chance of the applicant being harmed on return to Kabul remains remote.”

    [Footnotes omitted.]

13. In short, the Authority found that the applicant could live in Kabul and there would not be a real chance of harm on the basis of his Hazara ethnicity, Shia religion or imputed political opinion.

14. In relation to the applicant’s claim to fear harm as a returnee from a Western country, the Authority found that ([55] at CB 225):

    “There is no country information before me that indicates that returnees from the West or failed asylum seekers or those who have spent time outside Afghanistan have been targeted for harm in Kabul. The representative referred to two instances of Hazara citizens, apparently from Australia, that were seriously harmed, and in one instance killed. These two incidents did not occur in Kabul, but to two unrelated Hazara males travelling to and from Jaghori.”

    [Footnotes omitted.]

15. The Authority then stated ([57] –  [58] at CB 225):

    “[57] DFAT advises that in part as a result of Kabul’s size and diversity, a returnee is unlikely to be discriminated against or subjected to violence on the basis of ethnicity or religion. DFAT indicates that it was aware of reports of returnees from western countries alleging that they have been kidnapped or otherwise targeted on the basis of having spent time in a western country, however they assess that, in general, returnees from western countries are not specifically targeted on the basis of their being failed asylum seekers.

    [58] As referred above, reports indicate that insurgent and terrorist groups in Afghanistan openly target government officials and people associated with the international community. These individuals are often subject to intimidation, threats, abduction and killing. DFAT has confirmed these attacks occur throughout Afghanistan, including Kabul. However, DFAT advises that there is no evidence to indicate low-profile individuals are subject to discrimination or violence as a result of them having spent time in western countries, whereas there is a higher risk for individuals that have worked for, support or are associated with the international community. This is consistent with its most recent report, where DFAT has advised that that (sic) low-profile Hazaras who have spent time in western countries face a low risk of violence as a result of those international links.”

    [Footnotes omitted.]

16. As set out above, the Authority is required by the Act to consider the delegate’s decision, and the review material provided to it. In that context, the delegate’s decision contained a “large extract” from the DFAT Report as follows ([148] at CB 159):

    “DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their with (sic) the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.”

    [Footnotes omitted. Emphasis added.]

17. Further to this, the Authority was also required to consider the submissions made by the applicant’s representative.

18. Relevantly, the applicant’s representative stated (CB 83):

    “The Migration and Refugee Division of the Administration (sic) Appeals Tribunal concluded that these reports clearly indicate that ‘individuals known to have returned from Australia are liable to be imputed by the Taliban with an anti-Taliban or pro-western political opinion or both. DFAT has acknowledged that

    
    

    asylum-seeker returnees from western countries face a similar higher level of risk to those groups of people who are associated with supporting the government or the international community. To put this equivalence in context, DFAT has reported that ‘[i]nsurgent and terrorist groups, including the Taliban, openly target government officials and people associated with the international community’ through the use of intimidation, threats, abduction and killings. DFAT has also reported that these attacks occur through out (sic) Afghanistan including Kabul.”

19. Before the Court, the applicant sought to explain the representative’s submissions with reference to [5.21] at page 23 of the DFAT Report as referred to in the delegate’s decision record (at CB 159), which is as follows (see page 26 of annexure “A” to the affidavit of Mr Prince):

    “DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent group such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.”

20. The applicant also sought to explain the applicant’s representative’s submissions with reference to [3.34] at page 17 of the DFAT Report which is as follows (see CB 83 footnote 40 and see also page 17 of annexure “A” to the affidavit of Mr Prince):

    “Insurgent and terrorist groups, including the Taliban, openly target government officials and people associated with the international community. These individuals are often subject to intimidation, threats, abduction and killing. These attacks occur throughout Afghanistan, including Kabul.”

21. In essence, the applicant’s argument before the Court was that the applicant’s representative made submissions to the Authority. These drew on both the paragraphs from the DFAT Report (see above at 

    
    

    [37] – [38]) and as these were referred to by the delegate. They were as follows.

22. One, the applicant would be “identified” as a returnee from a Western country. Such “people” are subject to a similar level of threat, as people associated with the international community. Such threats include intimidation, kidnapping, abduction and killing.

23. Two, the applicant had spent time in Australia as a young person, and had received a Western education, which would heighten the perception of his Western “links”.

24. Three, the applicant would face serious harm in Afghanistan, because amongst other things, he would “stand out” or be easily identifiable as someone with Western “links”. That is, as a young person, the applicant would be “particularly vulnerable” if he were to return (and “relocate”) to Kabul (CB 88).

25. Before the Court, the applicant noted that the Authority referred to the DFAT Report of 18 September 2015.

26. The specific complaint was that the Authority failed to consider the “country information” extracted in the delegate’s decision, and the applicant’s representative’s written submissions which were given to the Authority. That duty arose from a combination of the operation of s.473CC of the Act and s.473DB of the Act.

27. Before the Court, the applicant also sought to characterise the complaint as a failure to consider a “clearly articulated submission of substance made to it” (see [23] of the applicant’s written submissions). This is the essence of ground two of the proposed amended application.

28. In this regard, the applicant specifically relied on SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 (“SZSSC”). Although that case was concerned with a review under Part 7 of the Act (by the Administrative Appeals Tribunal), the submission was that its reasoning applied equally to a review by the Authority.

29. In SZSSC, the Federal Court held that a failure to consider a clearly articulated, relevant argument, was a failure to lawfully conduct the review. The submission before the Court was that this applied to the current circumstances because the Authority was required to consider, as set out above, the paragraphs from the DFAT Report, that is, the submissions (“material”) put before it (submissions which contained a clearly articulated relevant argument).

30. The link with proposed ground one was said to be that by failing to engage in “an active intellectual process” in relation to this material, the Authority failed to “engage” with the submission put to it, which drew on the relevant paragraphs from the DFAT Report.

31. As set out above, the applicant’s articulation of legal error (as expressed in two different ways), relies on the identification of certain information, how that information was used in written submissions to the delegate, and then ultimately given to the Authority. In that context, the complaint is that the Authority did not deal with that “material”.

32. It is helpful in considering this claim, to first look separately at each of the “parts” of the material on which the applicant’s argument in explanation of his proposed ground is constructed.

33. First, the applicant’s representative made lengthy written submissions to the delegate (CB 74 to CB 126). For current purposes, attention must be given to Court Book page 81. Here, the submissions begin with specific reference to the two elements of the applicant’s argument in support of the claim to fear harm as follows (CB 81.5):

    “3. The Applicant’s status as a person with perceived links to, and sympathies for, a western country.

    4. The Applicant’s status as an educated Hazara.”

34. In essence, that submission can be fairly understood as follows. Further to the “intrinsic link” between the Shia religion and Hazara ethnicity, there is also a “close connection between the Hazara ethnicity and political allegiances” (CB 81.8). For Hazaras, this often means being imputed with pro-Western views which makes them a target for those who oppose the government and the West.

1. In this context, the submission was that given the length of time the applicant had spent in Australia, the already high risk he faced because of his ethnicity and religion was “significantly increased” (CB 81.9 to CB 82.1).

2. The applicant’s representative’s written submissions then made reference to various country information to support this argument. For current purposes, the submissions refer to both [5.21] and [3.34] of the DFAT Report (CB 83.3 and footnotes 39 and 40).

3. The delegate’s decision, which the Authority was required to review, is set out at Court Book pages 127 to 170. The delegate, amongst other references, made specific reference to the DFAT Report at [148] (at CB 159 and as reproduced above (at [34])). The extract at [148] (at CB 159) is taken from [5.21] of the DFAT Report.

4. At [149] (at CB 159 to CB 160) the delegate stated as follows:

   “While the above DFAT report related to Afghanistan as a whole, I note in DFAT’s thematic report on conditions in Kabul, released on the same day did not make any mention of returnees in Kabul facing possible security issues due to perceived associations with the government or the international community.”

   [Footnotes omitted.]

5. I note there is no reference at [149] (at CB 159 to CB 160) to [3.34] of the DFAT Report, but there is a reference to the DFAT Thematic Report (see further below).

6. The Authority’s decision is at Court Book pages 214 to 237. Before the Court, the Minister drew specific attention to the “fact” of the “fluidity” in country information about Afghanistan, and how this was relevant to the Authority’s consideration.

7. In this context, two paragraphs of the Authority’s decision are relevant ([5] at CB 215 to [6] at CB 216):

   “[5] The applicant’s representative provided an 18 page submission to the IAA on 6 June 2016. On 9 June 2016, that submission was returned to the representative as it did not comply with the IAA Practice Direction No.1. An amended submission was received on 14 June 2016. I have considered the submissions and I am satisfied that the legal arguments and aspects of the country information included are not new information. However, there are instances of new country information referenced in the submission that were not before the delegate – the applicant’s representative has not provided any reasons why the IAA should consider the new information, despite being advised in the IAA’s email of 9 June 2016 of the requirements of s.473DD. I note the applicant was represented before the delegate. On the material before me, I am not satisfied that this information could not have been provided to the delegate, nor am I satisfied that is credible personal information. In the circumstances, I have not had regard to this country information.

   [6] I have obtained new information relating to the status of Hazara Shia in Afghanistan. In assessing the applicant’s case, the delegate referred to ‘DFAT Thematic Report – Hazaras in Afghanistan’ from 2014, but did consider an updated report relating to the Hazara released in 2016. Similarly, both the representative and the delegate referred to the ‘UNHCR Eligibility guidelines for assessing the international protection needs of asylum-seekers from Afghanistan’ from 1 August 2013, but did not consider updated eligibility guidelines issued in 2016. The situation in Afghanistan remains highly fluid, and the new information is the most up to date DFAT and UNHCR versions of the assessments referred to by the delegate. I am satisfied that there are exceptional reasons to justify consideration of this new information as it pertains to the situation for Hazara Shia on return to Afghanistan.”

   [Footnotes omitted.]

8. As noted above, there are two DFAT reports annexed to the affidavit of Mr Prince. First, at annexure “A” is a copy of “DFAT Country Information Report - Afghanistan (18 September 2015) (“the DFAT Report”). Second, at annexure “B” is the “DFAT Thematic Report – Hazaras in Afghanistan (8 February 2016) (“the DFAT Thematic Report”).

9. For current purposes, I note that both [5.21] and [3.34] are part of the DFAT Report. They are respectively at pages 23 to 24 of the DFAT Report (see page 26 of annexure “A” to the affidavit of Mr Prince) and page 14 of the DFAT Report (see page 17 of annexure “A” to the affidavit of Mr Prince). However, the thrust of the Minister’s submission was that the Authority did consider the relevant parts of the representative’s written submissions, and the delegate’s decision (with references to the DFAT Report), but did so in the context of the subsequent DFAT Thematic Report.

10. To make good the proposition that the Authority did properly consider what it was statutorily required to, the Minister emphasised the following. Given the later and relevant country information, the disposition of the applicant’s proposed grounds involves an understanding of how the Authority considered the applicant’s claims (relevantly the representative’s submissions). That is, relevantly, in the context of the country information referred to by those submissions and the delegate. However, such consideration must also be in light of subsequent country information (particularly, and relevantly, in February 2016), relevant to the same thematic topics raised by the submissions, and as referred to in the delegate’s decision.

11. In relation to the “additional” information relied on by the Authority the Minister referred to [5.22] of the DFAT report which is as follows (see page 24 of the DFAT report at page 27 of annexure “A” to the affidavit of Mr Prince):

    “In 2014 there were news reports that an Afghan Hazara, Zainullah Naseri, from Jaghori District in Ghazni Province, was abducted and tortured by the Taliban following his deportation from Australia. He reportedly escaped from his captors and returned to Kabul. These reports have not been corroborated. DFAT has since been in contact with Mr Naseri, who is not currently pursuing any action regarding this matter.”

12. The Minister also referred to the DFAT Thematic Report at the heading, “[p]eople associated with the government or the international community” (pages 12 to 13 of DFAT Thematic Report at pages 41 to 42 of annexure “B” to the affidavit of Mr Prince).

13. The Authority accepted that the applicant would face a real risk of harm if he were to return to his village in his home province. That harm emanating from of the “Koochis” and the Taliban. The only dispute between the parties derives from the Authority’s reasoning and analysis (or claimed lack thereof), of the question of a real risk of harm in the rest of Afghanistan, including in Kabul, on the basis of the applicant’s Hazara ethnicity and Shia religion, and as a returnee from the West.

14. In this context, the Authority accepted that there were a number of areas in Afghanistan where there were “credible risks” for Hazara Shias and those associated with the West ([41] at CB 222).

15. For current purposes, in making the finding referred to above (at [66]), the Authority referred to, amongst other things, the DFAT Report (see footnotes 17, 19 and 20 at CB 222). I note also that it referred to the DFAT Thematic Report (see footnote 18 at CB 222).

16. I note that the Authority had earlier found that it was satisfied that the applicant would return to Kabul ([36] at CB 221 to CB 222). In this context, the Authority had regard to the DFAT Thematic Report ([42] at CB 222 to CB 223 and footnote 21 at CB 222).

17. The Authority however, also had regard to the DFAT Report. The context for this was that the applicant’s representative had highlighted evidence of insurgent activity in Kabul. Therefore, the Authority had evidence before it, as drawn from the DFAT Report, that in Kabul, the central government “continues to maintain effective control” ([42] at CB 222 to CB 223 and footnote 21 at CB 223).

18. Further, the Authority referred to “country information” that indicated that such attacks had not been directed against Hazaras or Shias, but “against other high profile targets” ([42] at CB 222 to CB 223). One such source of country information was the DFAT Report ([42] at CB 222 to CB 223 and see footnote 22 at CB 223).

19. The Authority’s relevant analysis continues at [43] (at CB 223) and [44] (at CB 223) with reference to country information from a number of reports including the DFAT Thematic Report (see footnotes 23 to 26 at CB 223).

20. Importantly, the Authority addressed a central part of the applicant’s representative’s submissions, that is, that there was a link between ethnicity (Hazara), religion (Shia) and their perceived political allegiance (pro-government or pro-Western) (see [44] at CB 223).

21. The Authority acknowledged there was support for this submission in the country information, particularly in relation to those travelling on the road between Kabul and the home state of Hazaras (“the Hazarajat”). That statement was made with specific reference to the DFAT Report (see footnote 27 at CB 223).

22. Given the applicant’s submissions before the Court, it is important to note that the Authority’s analysis is reasoned and nuanced. An example of this can be found when regard is had to [45] (at CB 223), where the Authority refers to country information that indicates the converse to what is referred to at [44] (at CB 223).

23. Importantly this again is drawn from the DFAT Report (see footnote 28 at CB 223).

24. The Authority then turned to another submission made on the applicant’s behalf, concerning societal discrimination against Hazara or Shia in Afghanistan ([46] at CB 223). Regard was had to the DFAT Thematic Report (see footnote 29 at CB 223).

25. The Authority distinguished, based on country information, between those Hazara with a “low profile”, from those with direct associations with government and international bodies ([47] at CB 224).

26. The Authority expressly acknowledged that the applicant had, through his representative’s submissions, “advanced a number of claims relating to his time in Australia or the West” ([51] at CB 224). The Authority set out the details of these claims and submissions as follows ([52] at CB 224 to [54] at CB 225):

    “[52] The applicant has claimed that he would be subjected to serious harm as a failed asylum seeker and a ‘returnee from the west’, and that, because of his residence in Australia, he would be seen as ‘pro-government’, ‘pro-Afghan National army’ or

    
    

    ‘pro-Western’ because of his appearance, which would make him a target for those who oppose the Government, the army and the West.

    [53] The representative submits that this impression would be significantly increased by the time he has spent outside of Afghanistan, his status as a young educated male, and the Department’s data breach of 2014 in which the applicant may have been identified. The representative further submits that as a Hazara known to or found to be connected to and having spent time in the west, or returned as a failed asylum seeker, the applicant would be imputed with ‘pro-west’, ‘anti-Taliban’ or ‘anti-IS’ political opinions. The representative also highlighted that the applicant would [be] identified as linked to the west through his language, dress, way of thinking and interacting, his documentation, any evidence of his time and purpose in Australia.

    [54] The applicant has contended that each of these factors, considered cumulatively with his English skills, his status as educated Hazara, and his information that was released by the Department, builds a profile of the applicant as someone who would be seen as foreign, an infidel who has turned away from their religion, or a spy.”

27. In this context, the Authority stated ([55] at CB 225):

    “There is no country information before me that indicates that returnees from the West or failed asylum seekers or those who have spent time outside Afghanistan have been targeted for harm in Kabul. The representative referred to two instances of Hazara citizens, apparently from Australia, that were seriously harmed, and in one instance killed. These two incidents did not occur in Kabul, but to two unrelated Hazara males travelling to and from Jaghori[1].”

    [Footnotes renumbered.]

    [1] DFAT, “DFAT Country Information Report – Afghanistan”, 18 September 2015, CISEC96CF13366, at p.23-24; UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016, UN6C8EFBB3, at p.41.

28. The information source to which the applicant’s representative’s submissions relied, is “footnoted” by the Authority. Footnote 34 (at CB 225) directs attention to the DFAT Report (and see footnote 1 to this judgment).

29. However, for current purposes, the importance of this is that the pages to which the footnote directs attention (pages 23 to 24), contained the paragraph of the DFAT Report that the applicant now says was not considered by the Authority (that is, [5.21] of the DFAT Report).

30. When fairly read, what the Authority was stating was that it had regard to those pages of the DFAT Report dealing with the “treatment of returnees” and “conditions for returnees”.

31. The Authority made findings based on an analysis which had regard to that information. That is, the information referred to by the applicant’s representative and the delegate. The Authority found there was “no country information” before it that “indicates that returnees from the West have been targeted for harm in Kabul” ([55] at CB 225). This was reasonably open to the Authority given what is set out at [5.21] (and [5.22]) of the DFAT Report.

32. I note the Authority also made reference to a third DFAT report. This was the “DFAT Thematic Report Conditions in Kabul” (also dated 18 September 2015) ([56] - [57] and footnotes [35], [37] and [38] at CB 225).

33. At [58] (at CB 225) the Authority stated:

    “As referred above, reports indicate that insurgent and terrorist groups in Afghanistan openly target government officials and people associated with the international community. These individuals are often subject to intimidation, threats, abduction and killing. DFAT has confirmed these attacks occur throughout Afghanistan, including Kabul[2]. However, DFAT advises that there is no evidence to indicate low-profile individuals are subject to discrimination or violence as a result of them ‘having spent time in western countries, whereas there is a higher risk for individuals that have worked for, support or are associated with the international community. This is consistent with its most recent report, where DFAT has advised that that low-profile Hazaras who have spent time in western countries face a low risk of violence as a result of those international links.”

    [Footnotes renumbered.]

    [2] DFAT, “DFAT Country Information Report – Afghanistan September 2015”, 18 September 2015, CISEC96CF13366, at p.14-15.

34. Footnote 39 (at CB 225) is also of particular importance to the current consideration. That footnote directs attention to the DFAT Report at pages 14 to 15 (and see footnote 2 to this judgment). Those pages include [3.34] of the DFAT Report.

35. Again, reflecting the nuanced approach taken by the Authority, having referred to the DFAT Report, it properly also had regard to the later DFAT Thematic Report, and various other reports (see [59] and footnotes 41 and 43 at CB 226).

36. The Minister’s submissions before the Court were detailed and comprehensive in their reference to the Authority’s actual analysis, and the Authority’s detailed references to source materials. This reveals the weakness in the applicant’s proposed grounds.

37. In essence, when read fairly, the Authority’s reasoning in relation to the applicant’s claims, submissions and references to country information to fear harm as an Hazara and Shia Muslim returnee from a Western country was as follows.

38. There was earlier country information that indicated a risk of harm to returnees, and in particular, as to how they may be perceived. However, the more recent, and latest, country information did not support this proposition. Particularly for returnees to Kabul. Noting that the Authority had found that the applicant would return to Kabul.

39. On the evidence before the Court, and in reaching this conclusion, the Authority did not fail to have regard to the statutory obligations as asserted by either of the applicant’s proposed grounds, and including in relation to the specific matters raised by the applicant’s submissions before the Court.

40. Contrary to the applicant’s submissions, the Authority did not fail to “mention” [5.21], or for that matter, [3.34] of the DFAT Report. It simply, after having regard to these, in amongst a plethora of material given to it, preferred to rely on, and draw from, the later country information available to it.

41. The applicant’s submissions before the Court focused on such assertions as the Authority failed to “consider” material, and failed to “consider a substantial clearly articulated submission”.

42. The highest articulation of this complaint was the submission that [5.21] of the DFAT Report does not just deal with Hazaras, but also says something specific about returnees from the West.

43. The Authority was plainly aware that the applicant claimed to fear harm, in part, because he was an Hazara (see for example [39] at CB 222).

44. It is also clear that [5.21] of the DFAT Report deals with those returning from the West (see above).

45. Before the Court, the applicant did not explain, let alone satisfactorily explain, why the Authority’s analysis at [55] (at CB 225), when read in context, does not satisfy that requirement. In my view, it plainly does.

46. The paucity of the applicant’s case before the Court was revealed by a submission made, not in chief, but for the first time in reply.

47. After hearing the Minister’s submissions before the Court, which, as set out above, provided a detailed explanation based on a comprehensive and fair reading of the Authority’s nuanced analysis and approach to the applicant’s claims, submissions, and information, in support of his claim to fear harm as an Hazara returning from the West, the applicant submitted that the Authority failed to apply an “active intellectual process”, to this claim and material.

48. He relied on NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 (“NAJT”) (also not listed in his list of authorities filed on 5 March 2018) for the first time in reply. The proposition he sought to draw from NAJT was that a mere reference to “something”, does not mean that an “active consideration” has taken place.

49. This was an important shift in the applicant’s case. The proposed grounds, as stated, asserted a failure to consider. For the reasons set out above, that is not available to the applicant.

50. Therefore, the latest submission could only reasonably be understood as a “concession” that the Authority had made some appropriate reference to the identified country information, but somehow did not properly consider it.

51. I do not accept the applicant’s submission. The Authority was faced with a statutory obligation to consider the reasons provided by the delegate and the submissions (and country information), provided by the applicant to it (in the current case by his representative in written submissions).

52. But there is nothing in the Act which precludes the Authority from also taking into account later, or more recent, country information relevant to the claimed fear of harm.

53. The Authority did not consider the applicant’s claims in exactly the same way as the delegate. It did not have to. It was not required to make the same express findings as the delegate, or to deal individually with each and every finding made by the delegate.

54. The Authority did not, to use the applicant’s counsel’s word, “grapple” with (that is, consider) parts of the DFAT Report he now relies on, in the same way as the delegate. That does not mean that the Authority failed to properly consider what the Act required it to so consider.

55. Again, there is no compulsion on the Authority to simply mimic the delegate’s approach. As set out above, the Authority’s analysis was nuanced, in that it did “grapple” with the information in relation to Hazaras in Kabul (that is [3.34] of the DFAT Report) and returnees from the West ([5.21] of the DFAT Report).

1. It is simply that the Authority did it in a different way to the delegate, and in particular, also considered later country information that it considered relevant to the disposition of the applicant’s claims.

2. It is to be remembered that the consideration set out above is in the context of whether leave should be granted, at a late stage, for the applicant to amend the grounds of his application to the Court.

3. Before the Court, the applicant submitted that there was “sufficient merit” for his matter “to go to a final decision”.

4. I do not agree. The matter set out above required lengthy submissions, and a lengthy exposition in this judgment. However, this is reflective of a complex task faced by the Authority, and the burden placed upon it by s.473CC and s.473DB of the Act. It is not reflective of the merit of the applicant’s proposed grounds.

Conclusion

1. On a fair reading, the applicant’s proposed grounds lack merit. Leave to amend should be refused. Given that the grounds of the substantive application were not pressed, then that application must be dismissed. I will make the appropriate order.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 18 May 2018