CFK16 and Ors v Minister for Immigration and Anor - [2020] FCCA 1940

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFK16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1940

Catchwords:
MIGRATION – Immigration Assessment Authority – temporary protection (subclass 785) visa – whether the applicants abandoned a claim made in an earlier protection visa application that had been deemed to be invalid.

Legislation:
Migration Act 1958, s.473CB

Cases cited:
MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948

First Applicant:

CFK16

Second Applicant:

CFL16

Third Applicant:

CFM16

Fourth Applicant:

CFN16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

MLG 1722 of 2016

Judgment of:

Judge Riley

Hearing date:

29 May 2020

Date of last submission:

29 May 2020

Delivered at:

Melbourne

Delivered on:

16 July 2020

REPRESENTATION

Counsel for the applicant:

Angel Aleksov

Solicitors for the applicant:

Clothier Anderson Immigration Lawyers

Counsel for the first respondent:	Jonathan Barrington
Counsel for the second respondent:	No appearance

Solicitors for the respondents:

Mills Oakley

ORDERS

The application filed on 11 August 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1722 of 2016

CFK16

First Applicant

And

CFL16

Second Applicant

And

CFM16

Third Applicant

And

CFN16

Fourth Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicants temporary protection subclass 785 visas.
This matter was in the docket of Judge Wilson, as his Honour then was. With all migration matters now being in the registrar’s docket, the matter was listed before me for final hearing.

The applicants’ claims

The applicants filed written submissions drawn by counsel, but they did not provide a summary of the applicants’ claims or explain the background to the matter. The Minister’s written submissions filed on 27 April 2020 provided the following summary of the applicants’ claims:
2.The First Applicant and Second Applicant are husband and wife. Their two children are the Third Applicant (their son) and Fourth Applicant (their daughter). The Applicants are citizens of Iran.
3.The Applicants came to Australia as irregular maritime arrivals; they came aboard a boat that departed from Indonesia and was intercepted by Australian authorities on 23 August 2012 (CB 481 [2]).
4.The Applicants were represented by registered migration agents throughout the visa application process.
5.On 24 October 2013, the First and Second Applicants purported to apply for a Protection (subclass XA) visa (the invalid protection applications). The applications were deemed invalid because they were subject to the bar in s 46A of the Migration Act 1958 (Cth) (the Act) (CB 202). The First and Second Applicant each attached a signed statutory declaration to the invalid [protection visa applications] (CB 89 and 148).
6.In the invalid protection applications, the First and Second Applicants relevantly claimed that:
(a)the First Applicant “was born a Shia Muslim but don’t practice anymore” and that his “children are not interested in following Islam because religion is forced in Islam” (CB 88);
(b)the Second Applicant and [his] son “attended political demonstrations as part of the Green Movement” (CB 89);
(c)the First Applicant “protested against the government by climbing on to the roof of our house and shouting ‘Allah Akbar’, as encouraged by the opposition party” (CB 89);
(d)the Second Applicant being “harassed in the street all the time by the Basij for not wearing what they thought was appropriate clothing” and other “nonsense regulations discriminatory towards women” (CB 148, 149)[; and]
(e)their daughter not being able to “attend any international [swimming] competitions due to the need to cover her body” (CB 149).
7.These matters were summarised by the Authority at [20] of its Reasons (CB 528).
8.On 16 July 2015, the Department of Immigration and Border Protection invited the Applicants to apply for either the visa or a Safe Haven Enterprise (subclass 790) visa (CB 205). The First Applicant applied for the visa (the valid protection application) (CB 213). Only the First Applicant made claims for protection (CB 214). The Second, Third and Fourth Applicants did not make claims for protection; they are dependent applicants under s 36(2)(b)(i) or s 36(2)(c)(i) of the Act (CB 483 [9]).
9.The First Applicant attached a statutory declaration declared 23 August 2015 with the valid protection application (CB 256-260). There, the First Applicant claimed to fear harm resulting out of a business dispute he had with [company X], a company affiliated with the Islamic Revolutionary Guard Corps (the IRGC) (CB 257 [6]).
10.The First Applicant said that [company X] owed him [money] …, but that [company X] refused to pay. The First Applicant said that he subsequently lost his temper and started swearing at them, the IRGC, the corrupted system, the Supreme Leader and the president. The First Applicant said he then immediately realised he would be in “big trouble” because insulting the Supreme Leader could put him in gaol for several years. The Applicants subsequently fled Iran (CB 257-258).
11.On 3 June 2016, the delegate refused to grant the First Applicant the visa. The delegate did not accept that the First Applicant had an altercation with an officer of [company X] or that he was of adverse interest to the Iranian authorities (CB 480-498).
12.On 8 June 2016, the matter was referred to the Authority for a review pursuant to s 473CA of the Act (CB 503). The First Applicant’s representative provided the Authority with a submission, expanding on matters relating to the First Applicant’s dealings with [company X] (CB 511-515).
13.The Authority affirmed the delegate’s decision not to grant the First Applicant the visa. Its findings are set out at CB 524 [8] – 532 [38]. These findings are not impugned by the Applicants in this case, and it is unnecessary for present purposes to set them out in detail.

The Authority’s reasons for decision

The Authority noted that:
a)the applicants’ had made certain claims in the invalid 2013 protection visa application;
b)the applicants did not pursue the 2013 claims in the later, valid, 2015 protection visa application; and
c)the delegate did not address the 2013 claims in his decision.
In these circumstances, the Authority considered that it was unnecessary for it to consider the 2013 claims. The Authority discussed this at paragraph 20 of its reasons for decision saying that:
I note also that the applicants lodged a Protection visa application on 24 October 2013 which was deemed invalid under s.46A (the invalid 2013 PV application). Both the applicant and the applicant's wife raised claims in this invalid application, and these included matters additional to the matters raised in the 2015 TPV application, such as: that the applicant no longer practises Shia Islam and his children are not interested in following Islam, the involvement of the applicant's wife and son in green movement demonstrations, the applicant's support for the green movement and opposition to the Iranian government, his wife and daughter being harassed for transgressing the dress code and having suffered other discrimination as women, and his daughter's being not allowed to attend international [sporting] competitions because of the dress code. These claims have not been pursued by the applicant in his 2015 TPV application, they were not considered in the delegate's decision, and they have not been raised in the 2016 IAA submission. I have therefore not considered these claims any further.
The balance of the Authority’s reasons for decision concerned the claims that were expressly advanced in the 2015 protection visa application. The applicants did not challenge the Authority’s treatment of the 2015 claims, so it is unnecessary to consider them further.

Grounds of review

The first and second grounds of review in the application filed on 11 August 2016 (“the application”) were formally abandoned at the hearing before this court on 20 May 2020.

Ground 3

The third ground of review in the application is:
The Second Respondent failed to consider an integer of the claim[.]
Particulars
a)The Second Respondent failed to consider claims made by both the First and Second Applicants that were presented to the Department of Border Protection in the Applicant’s invalidated protection visa application.
b)The claims clearly arose on the material before the Authority.
The applicants said in their written submissions filed on 3 January 2020 in support of this ground that:
2.The applicant advances a single ground, alleging that the IAA failed to consider several claims advanced by the appellants (sic).
3.The claims are recorded at IAA Reasons [20], where the IAA refers to an invalid application for a protection visa made by the applicants at a time prior to the bar under s 46A being lifted in respect of them. Statement (sic) from the first and second applicant accompanied this invalid application. The claims made in those statements were never “abandoned” in any sense. Although the IAA was correct to observe that these claims were not mentioned in the statements made which accompanied the later, valid application for a protection visa, that did not permit an inference of abandonment.
4.These statements had to be “considered” by the IAA in order to perform lawfully the function of reviewing the delegate’s decision because the statements were part of the review material (s 473DB(1)). The IAA stated expressly that it did not consider the information in these statements, and so, failed to perform the review required by law.
The Minister said in his written submissions filed on 27 April 2020 opposing this ground that:
16.The Applicants complain that the Authority failed to consider several claims advanced by the Applicants in the invalid protection applications. Those claims were set out at [20] of the Authority’s reasons (CB 528).
17.While the Authority did not overlook the claims, plainly enough, it did not feel compelled to consider them any further. The Authority reached this view because the claims were not pursued in the valid protection application, mentioned in the delegate’s decision, or in the First Applicant’s submissions to the Authority (CB 528 [20]).
18.The Applicants contend the Authority’s approach fell foul of s 473DB(1) of the Act, which is as follows.
473DBImmigration 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.
19.It is common ground that the invalid protection applications formed part of the s 473CA material provided to the Authority.
20.The legal principles relating to the Authority’s obligation to consider claims and issues arising from the material before it are well-established. The Authority must consider claims where they are either:1
1 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, at [18].
(a)“the subject of substantial clearly articulated argument, relying on established facts”; or
(b)“clearly emerge from the material”, and such a finding is not to be lightly made.
21.In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, Gleeson CJ said (at [1]):
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
22.In the present case, there were good reasons for the Authority to consider that the claims made in the invalid protection applications were no longer pursued.
23.First, with two exceptions, the claims at [20] relate to the Second, Third and Fourth Applicants. The Second, Third and Fourth Applicants later expressly indicated that they were not making any claim for protection (CB 339, 373, 401). In those circumstances, it was open to the Authority to have considered that these claims were abandoned.
24.The two exceptions relate to the First Applicant’s claims that he “was born a Shia Muslim but don’t practise anymore” and that he “protested against the government by climbing on to the roof of our house and shouting ‘Allah Akbar’, as encouraged by the opposition party (CB 88-89).
25.Secondly, as the Authority noted, they were never raised by the Applicants at any point after the invalid visa applications, notwithstanding that the Applicants:
(a)filed a valid protection visa application with an attached statutory declaration;
(b)attended an interview before the delegate;
(c)filed written submissions before the Authority; and
(d)were at all relevant times represented by a registered migration agent.
26.In those circumstances, it was open to the Authority not (sic) to conclude that the claims were no longer pursued and not to consider them any further. Instead, from August 2015 onwards, the First Applicant only sought to agitate his claims for protection based on his dealings with [company X].
27.Accordingly, the claims in the invalid protection application are not a “substantial, clearly articulated argument”, nor do they “clearly emerge” from the materials. This ground must be rejected.
Following the filing of both parties’ written submissions, and less than one hour before the final hearing was due to commence on 20 May 2020, the applicants filed two further affidavits, one sworn or affirmed by their solicitor and one sworn or affirmed by the first applicant. Those affidavits necessitated an adjournment of the final hearing until 29 May 2020.
The first applicant said in his affidavit filed on 20 May:
10.Mr Ghaffari [the applicants’ former solicitor, who had replaced the solicitor they had at the time of the 2013 claims] did not tell us specifically whether or not the Department had a copy of the first application lodged 2013.
11.However, I remember that he told us that we could not step away from anything that we had previously told the Department about our case.
12.I did not alter, or intend to alter, what I had previously said to the Department about my claims in any way.
The applicant’s new solicitor, in his affidavit filed on 20 May 2020, set out certain extracts from a transcript of the interview between the delegate and the first applicant. During the adjourned period, the Minister obtained a full transcript of the hearing before the delegate. It is the exhibit marked HFD-2 to the affidavit sworn by Hao Feng Deng on 26 May 2020.
There was no dispute about the accuracy of that transcript. In fact, there was no dispute about the accuracy of any of the affidavit evidence.
The delegate’s decision (CB480-498):
a)noted that the applicants had made an invalid protection visa application in 2013;
b)set out the first applicant’s 2015 claims;
c)noted that the second, third and fourth applicants made no claims of their own in 2015; and
d)dealt only with the first applicant’s 2015 claims.
In other words, the delegate disregarded the applicants’ 2013 claims, on the basis that they were not pressed in the 2015 claims.
The Secretary of the Minister’s Department referred the matter to the Authority for review in the usual way. The Secretary included in the review materials the 2013 claims.
The applicants’ lawyer and migration agent sent a written submission to the Authority (CB510-515). Significantly, the applicants’ lawyer and migration agent made no complaint about the delegate’s failure to deal with the 2013 claims. As noted above, the Authority did not deal with the 2013 claims either.
The only aspect of the 2013 claims that the applicants said in this proceeding that the Authority should have considered was described as the religious apathy claim. That claim was that:
a)the first applicant no longer practices Shia Islam; and
b)his children are not interested in following Islam.
The applicants conceded in the present proceeding that the second, third and fourth applicants made no claims on their own behalves, and their claims were entirely dependent on the first applicant’s claims.
The applicants noted that the transcript of the delegate’s interview showed that the delegate put to the first applicant information from his and his wife’s original interviews, which were presumably their entry interviews (page 29 of the transcript). The entry interviews preceded the 2013 claims.
The applicants argued that a reasonable inference from the delegate considering the entry interviews was that the first applicant would have believed that all of the claims in the entry interviews and all of the subsequent 2013 claims would have been considered by the delegate while considering the 2015 application.
However, the weakness in that argument is that the point from the entry interviews that the delegate discussed with the first applicant was the first applicant’s main point from the 2015 claims, being his financial relationship with company X, and had nothing to do with the 2013 claims.
In these circumstances, I do not consider that it is appropriate to draw the inference proposed by the applicants. That is, I do not infer that the delegate’s mention of a particular point from the entry interviews would have led the applicant to believe that the delegate would have taken into account every point he had raised at the entry interviews and subsequently, including all of his 2013 claims.
The applicants also noted that:
a)the delegate reminded the first applicant that, in his entry interview, he said that his son had problems at school; and
b)the first applicant told the delegate that it was not part of his case that his son had problems at school, and the son’s problems at school did not put the first applicant’s life in danger.
The applicants argued that, contrary to the position taken by the Authority, the first applicant’s statement did not mean that the applicant had abandoned his claim about his son. I disagree. By saying the claims in relation to his son were not part of his case, the first applicant did abandon those claims. That is the natural reading of the first applicant’s statement.
The applicant also noted an exchange at page 33 of the transcript of the delegate’s interview which was as follows:
DEPARTMENT OFFICER: ... Ok, now before we finish the interview is there anything else you would like to say in regard to your protection visa application?
INTERPRETER: Uh so we filled out everything again but app - this is second time we filled everything this time, uh, but the last time apparently everything was, uh, disqualified, something like that?
DEPARTMENT OFFICER: That’s right, yes.
INTERPRETER: Was it - is it the same thing?
DEPARTMENT OFFICER: No, this application will be processed and it will be decided. The reason last one was disqualified was nothing to do with your application, it had to do with changes in government policy, and it had to do with the change in government as well. The reasons are complex and political as much as they are legal.
… This application will be decided. Alright, have you put forward all your claims for protection?
INTERPRETER: Yes.

The applicants’ complaint about this passage was that the delegate did not seek to clarify with the first applicant exactly what claims he was making or not making. That is so, at that point in the interview. The question, have you put forward all of your claims?, was somewhat ambiguous, because it was unclear whether the delegate meant:
a)have you put forward all of your claims in the 2015 application?; or
b)have you put forward all of your claims in your statements made at any time to the department?
However, earlier, at page 5 of the transcript of the delegate’s interview, the delegate asked the first applicant why he left Iran. He said it was because he had insulted the Supreme Leader and the Government, in the context of a business dispute. The delegate then asked the first applicant if he had any other fears when he left Iran. The first applicant said no.
At that point, the first applicant did make it clear what all of his claims were. The delegate and the Authority considered precisely the claim about the first applicant insulting the Supreme Leader and the Government in the context of a business dispute. The Authority rejected that claim. That aspect of the Authority’s reasons for decision is not challenged in this proceeding.
The Minister’s main argument was that the religious apathy claim, although clearly articulated and substantial in the 2013 claims, was not a clearly articulated and substantial claim by the time of the 2015 claims and the delegate’s consideration of them. I accept that argument. For the reasons expressed in paragraphs 29 and 30 above, I consider that the religious apathy claim had been abandoned by the time of the delegate’s decision, and, as such, was not at that time a clearly articulated and substantial claim.
Both parties referred to MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948, where Dodds-Streeton J considered a case involving a decision by a Refugee Status Assessment officer (“RSA”) and reviewed by the Independent Merits Reviewer (“IMR”). The RSA was in the position of the delegate in this case, and the IMR was in the position of the Authority in this case.
The question was whether the appellant had abandoned a claim made orally before the RSA regarding conscription, in circumstances where:
a)the RSA did not deal with the conscription claim in his reasons;
b)the appellant did not complain about the RSA’s failure to deal with the conscription issue either in writing or verbally before the IMR, although there were many logical occasions and ample opportunity to do so[1];
c)the appellant was represented by a migration agent;
d)the appellant did not repeat the conscription claim in writing or orally to the IMR;
e)the appellant told the IMR that he relied on previous written and oral evidence;
f)the IMR told the appellant at the commencement of the hearing before him that:
…I have all the information previously provided by you and your advisor or referred to in the earlier decision and that will be taken into consideration whether or not we specifically cover it again today. …[2]; and
g)the IMR did not have access to the recording of the RSA interview, where the conscription claim was made.
[1] At [56].
[2] At [15].
In these circumstances, Dodds-Streeton J said:
57.The central question is whether the IMR’s opening statement (particularly after the appellant’s avowed reliance on previous oral and written evidence and submissions) displaces the inference of abandonment that would otherwise arise from the failure to complain of the RSA’s omission or to repeat or refer to the conscription claim before the IMR.
58.In my opinion, in the circumstances of this case, the conscription claim was not abandoned before the IMR. The IMR not only failed to challenge the appellant’s express assertion that he relied on previous written and oral evidence and submissions, but reinforced it by his unqualified opening statement that he had “all the information previously provided by you and your adviser or referred to in the earlier decision” and would take it into consideration, whether or not it was specifically covered.
59.It was common ground that (although the first respondent had an audio recording and the first migration agent had taken notes of the RSA interview) the IMR did not have any notes, transcript or audio recording of the RSA interview before him.
60.While it is thus unlikely that the IMR intended, by his opening statement, to undertake to consider claims made orally only in the course of the RSA interview, the statement, according to its literal, ordinary meaning, in my view extended to such claims. Particularly given the appellant’s express reliance on previous oral and written evidence and submissions, there is no basis to construe the statement as applicable only to written material. Further, there was no evidence that the appellant or his migration agent were aware that the IMR did not have any record of the RSA interview available or before him.
61.The appellant deposed that he did not intend to abandon the conscription claim and thought that the IMR would consider all documents and materials related to his case. There was no evidence on whether, and if so how, the IMR’s statement influenced the migration agent’s conduct in the course of the interview.
62.It might be thought likely that the appellant would have expressly raised any important claims, irrespective of any assurance from the IMR that he would consider all previous information. Before me, senior counsel for the appellant acknowledged that the conscription claim was subsidiary to the claims expressly articulated before the IMR. Nevertheless, while the question is not without difficulty, in my opinion, in circumstances where the appellant did not intend to abandon the conscription claim, and expressly adopted all previous oral and written evidence and submissions; the IMR’s statement, fairly construed, extended to all previous oral and written information provided by the appellant, whether or not covered at the interview; and the appellant understood the IMR to mean that he would consider all documents and materials related to the appellant’s case; the conscription claim cannot be treated as abandoned. The authorities on which the first respondent relied are distinguishable from this case, as they did not involve an express statement by a decision-maker that all previously provided information would be considered.
The issue for Dodds-Streeton J was whether the inference of abandonment that would be drawn from:
a)the failure to complain in submissions to the IMR about the RSA’s disregard of the conscription claim; and
b)the failure to repeat the claim before the IMR,
was displaced by the IMR’s opening statement that he would consider all information previously provided.
In the present case, there was:
a)the failure to complain in submissions to the Authority about the delegate’s disregard of the religious apathy claim; and
b)the failure to repeat the claim before the Authority (although the applicant was represented by a lawyer and migration agent).
On the other hand, in the present case, there was no opening statement by the Authority that it would consider all of the information previously provided. That would tend to suggest that the inference that the applicants had abandoned their claim in relation to religious apathy was not displaced.
However, in the present case, there was no opportunity to make an opening statement verbally, because the Authority did not conduct an oral hearing. Nevertheless, the Authority sent the first applicant a letter dated 9 June 2016 (CB503) saying:
The Department … has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department …
There may be some debate about whether the information mentioned in this statement included the 2013 claims. Read literally, it might not, because there was no decision to refuse a protection visa in relation to the 2013 claims. Rather the initial application was deemed invalid.
In any event, the applicants noted s.473CB of the Act, which provided that:
(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;
…
There may also be debate about whether s.473CB of the Act required the Secretary to give to the Authority material relating to the 2013 claims. However, whether the Secretary was required to or not, he did. That is clear from paragraph 20 of the Authority’s reasons for decision.
The combination of s.473CB of the Act and the Authority’s letter dated 9 June 2016 may have been sufficient to amount to an opening statement of the type given by the IMR in MZYQZ to the effect that the Authority would consider all the information given to it. However, the information sent by the department to the Authority included, not only the 2013 claims, but also:
a)the information that the 2013 claims had not been pursued by the applicants in their 2015 application;
b)the information that the 2013 claims were not considered in the delegate’s decision;
c)the information that the 2013 claims were not raised in the submissions by the applicants’ lawyer and migration agent to the Authority; and
d)the audio of the delegate’s interview with the first applicant.
The Authority listened to the audio of the delegate’s interview with the first applicant[3]. That is apparent from a comparison of the delegate’s reasons for decision and the Authority’s and was also expressly confirmed by the Authority. In these circumstances, it can be taken that the Authority was well aware that the first applicant had verbally abandoned before the delegate the claim of religious apathy, as discussed at paragraphs 29 and 30 above.
[3] CB527, paragraph 18 of the Authority’s reasons for decision.
There are important respects in which this case differs from MZYQZ. Firstly, unlike the appellant in MZYQZ, the applicants in the present case did not clearly state to the delegate that they wished to rely on all of their previous claims, including their 2013 claims. Secondly, the applicants did formally abandon all of the 2013 claims made in relation to the second, third and fourth applicants, because they confirmed in relation to the 2015 application that they were making no claims of their own, but were dependent on the first applicant’s claims. Thirdly, the first applicant clearly stated to the delegate in this matter the basis of his fears and those fears did not include any fears associated with religious apathy. The first applicant confirmed to the delegate that he had no other fears when he left Iran. This amounted a verbal abandonment of the religious apathy claim.
In these circumstances, I consider that the applicants did abandon the religious apathy claim, and there was no need for the Authority to consider it. This ground is not made out.

Ground 4

The fourth ground of review in the application is:
I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
This is not a ground of review and does not need to be considered further.

Conclusion

As the applicants’ ground of review has not been made out, the application will be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 16 July 2020