CMB18 v Minister for Home Affairs
[2020] FCCA 110
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMB18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 110 |
| Catchwords: MIGRATION – Review of decision regarding the Applicant’s Application for a protection visa – where it was accepted that the Applicant is a Shia Hazara from Afghanistan and the Applicant’s Father was abducted by the Taliban in 2012 – the IAA properly applied the “relocation test” – IAA had proper regard to evidence it was required to consider – no relevant protection obligations owed to the Applicant – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J(1)(c), 36(2)(aa), 36(2B)(a), 473CB, 473DD |
| Cases cited: AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457; [2018] FCAFC 106 ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 |
| Applicant: | CMB18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | CAG 34 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 13 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Canberra |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz Canberra |
ORDERS
The Applicant’s Amended Application filed on 13th May 2019 be dismissed.
The Applicant is to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 34 of 2018
| CMB18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns discrete questions, factually and legally, in relation to an Application for Review, filed 1st May 2018, which was amended and filed in Court on 13th May 2019.
The two Grounds of Review focus on the alleged mis-application by the Immigration Assessment Authority (“the IAA”) of ss.36(2)(aa) and 36(2B)(a), on the one hand, and s.473DD of the Migration Act 1958 (Cth) (“the Act”).
The Applicant is a citizen of Afghanistan. He arrived in Australia by boat on 21st April 2013. On 9th June 2016, he applied for a protection visa.
On 17th June 2017, a Delegate of the First Respondent Minister refused the application for a protection visa. On 16th April 2018, the IAA affirmed the Delegate’s decision.[1] It is from this last decision that the Applicant seeks relief in this Court.
[1] A copy of the IAA’s decision is at Court Book (“CB”) 238 – 249.
There was no question that the Applicant’s Father had been abducted in 2012 by the Taliban when travelling between Ghazni City and Jaghori. Both Father and son, in different capacities, worked at a girls’ school in Jaghori.
The IAA determined that (a) the Applicant could reside safely in his home district in Jaghori, (b) there were limited risks the Applicant would face in and around Jaghori and the wider district of Hazarajat, and (c) in consequence, there were no relevant protection obligations owed to the Applicant.
For the reasons that follow, the Application, filed 14th May 2018, as amended, should be dismissed with a consequential Order in the Minister’s favour for costs.
The IAA’s decision
The IAA’s decision, notified to the Applicant on 16th April 2018, may be summarised as follows.
The IAA noted that the Applicant claimed to be a Shia Hazara from Afghanistan. His application for a Safe Haven Enterprise Visa (“SHEV”) claimed that he feared harm from the Taliban and other anti-Shia groups due to (a) his religion, (b) his Hazara ethnicity, (c) being a failed asylum seeker who lived in the West, and (d) his refusal to burn books at the school where he worked as a guard.
At pars.3 – 8, the IAA set out information taken from documents provided by the Secretary, pursuant to s.473CB, and others produced by the Applicant. This information, which was determined to be unavailable at the time of the Delegate’s decision, and otherwise that there were “exceptional circumstances” such as to warrant its consideration, was as follows:
a)Information taken from an Afghanistan Times report of 27th June 2017 regarding the Taliban’s attitude towards the education of girls;
b)Reports in July and August 2017 from Thomson Reuters, Tolo News and the European Asylum Support Office (“EASO”), regarding the unemployment situation generally and for returnees;
c)Reports of attacks on Shias and/or Hazaras in Herat, Kabul and Mazar-e-Sharif, among other places, in August, October and November 2017, and in March 2018. The information here, which was not before the Delegate, included material regarding the position of Islamic State;
d)Information concerning bombings and kidnappings by criminal gangs, which post – dated the decision of the Delegate;
e)Multiple reports regarding “recent security developments” in Ghazni, including an attack by the Taliban on the district governor’s compound;
f)Various reports on targeted killings in northern Afghanistan in late 2017 and early 2018;
g)A detailed report from Amnesty International regarding the extent of civilian casualties in 2016, and later reports by other agencies. These reports were determined by the IAA as being not directly relevant to the Applicant’s claims and therefore were not considered. The same determination was made in relation to a report by the eminent Australian academic, Professor William Maley;
h)Updated country information provided by the Department of Foreign Affairs and Trade (“DFAT”).
Paragraph 9 of the IAA’s decision outlined the Applicant’s claims for protection.
In addition to what has already been stated earlier in these reasons, the IAA recorded that the Applicant’s Father had been abducted by the Taliban in 2012 when he was returning from Ghanzi city with school books. After his Father was abducted, the Applicant said that he started to receive written threats and phone calls, which included a direction that he burn books at the school where his Father taught and where he worked as a watchman/guard.
The concluding part of the Applicant’s claims, as recorded by the IAA, stated:
The Applicant fears being killed or harmed by the Taliban on return because he disobeyed their orders to burn the books and the Taliban are still in control of the area around his home town. He also fears harm as a Shia Hazara, as a returnee who has lived in a western country and from generalised violence.
At par.10, the IAA confirmed that it accepted the Applicant to be an Afghani national whose receiving country is Afghanistan.
Paragraphs 11 – 15 set out material regarding the Applicant’s Father’s employment and “Taliban issues.” Very briefly stated, the IAA noted that the Applicant’s Father worked at a girl’s school as a teacher/manager for 4 to 5 years. It recorded that in some areas the Taliban facilitated the opening of schools, and while in various areas it was supportive of girls’ schools, in other areas this was not so.
The IAA said (at par.13) that it had doubts about the Applicant’s claim that his Father received threats from the Taliban. This was so because the school where the Applicant and his Father were employed, and more importantly lived, was in Jaghori “which was a low risk area with no Taliban presence, where education as well regarded, [and] there was a strong local government presence.”
The IAA said (par.15) that it accepted the Applicant received a number of telephone threats from the Taliban after his Father was abducted, and that some letters may have been received at the school. It was not satisfied that they were specifically addressed to the Applicant as “guard/watchman”. Nonetheless, it accepted that following these threats, the Applicant resigned from the school.
The Applicant’s claims of fear of persecution are set out at pars.17 – 33.
The IAA accepted that, in some areas, teachers and staff have been threatened and intimidated by the Taliban. It also accepted that the Applicant’s Father had been abducted by the Taliban when returning from Ghazni city with school books, and that threatening letters had been received. However, the IAA did not accept that the Applicant himself would be of specific interest to the Taliban on his return. Not only did the Applicant cease employment at the school some three months or so after his Father’s abduction but also that there was no evidence that any relevant attacks had occurred in Jaghori. Further, it is now approximately 6 years since the abduction of the Applicant’s Father.
Next (par.20), based on country information, the IAA determined that although there remained some incidents between Kabul and Ghazni, there is no evidence of more recent incidents on the roads or of western returnees being targeted in Jaghori itself.
The IAA noted (par.21) that the Applicant had lived in Australia for a relatively short time, that he has family in Jaghori and is conversant with the language and culture of Afghanistan, and he has no identifiable affiliations with international organisations or the Afghan government. He would be returning to Jaghori, a Hazara dominated area which is under government control.
At pars.22 – 26, the IAA outlined the reasons why it did not consider the Applicant to be at relevant risk of harm upon his return to Jaghori. First, country information established that Hazarajat, of which Jaghori is part, is considered to be more secure and that Hazaras are generally able to move about freely in these areas without undue security risks. Further, country information does not indicate that Jaghori or Ghazni are areas where Shia Hazaras have been more recently targeted. Indeed, the IAA positively found (at par.24) that it was not satisfied there was a real chance of the Applicant being harmed in Jaghori as a Shia Hazara.
Likewise, at par.25, having regard to the Applicant’s history, profile (including his ethnicity and religion), his residence in Australia, and his employment at a girls’ school, the IAA was not satisfied there was a real chance of the Applicant being harmed in Jaghori in the “reasonably foreseeable future.”
It noted (par.26) that there had been no attacks on the roads on “returnees” since 2014. Given the Applicant’s lack of relevant profile, the IAA did not consider him (par.27) to be at risk of such attacks on the roads when returning to Jaghori. Likewise, it found (par.28) that roads adjoining Hazarajat areas are considered “safe”. It said that there have been no reports in these areas of Hazara abductions or the targeting of failed asylum seekers/returnees from the West. This also included “on the road” from Kabul or via Bamiyan airport (par.29).
At par.30 the IAA noted again the Applicant’s family history linked to Jaghori and that, in its view, he would be able to “re-establish himself there.” He would not be reliant upon travel to Kabul for employment. Any occasional travel to Kabul would not place him at relevant risk. It noted in particular that the Applicant only went to Kabul to facilitate his departure from Afghanistan.
The IAA noted (par.31) that there were limited employment opportunities in Jaghori and in Hazarajat. However, having been employed in Australia as a tiler, and given his family ties in Jaghori, it was not convinced that his employment prospects would necessarily be dire.
At pars.32 and 33, the IAA determined that, because adverse incidents were relatively rare in Jaghori, and that Hazarajat was “largely secure”, in its view the Applicant would be able to move about freely in these areas without facing “undue security risks.”
Pars.36 and 37 summarised the Applicant’s risk of facing “significant harm” and concluded that there is no real risk of the Applicant suffering significant harm on his return to Jaghori. For the reasons already given, the IAA considered that the Applicant did not meet the criteria in relation to complementary protection under s.36(2)(aa).
Legislative Provisions
The following sections of the Migration Act 1958 (Cth) (“the Act”) are relevant to the consideration of the IAA’s decision and the parties’ submissions:
5H Meaning of refugee
1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
5J Meaning of well-founded fear of persecution
1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:
a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
c)the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
…
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non citizen in Australian respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
…
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
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.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Grounds of review
The Applicant’s Grounds of Review were set out his Amended Application which was filed in Court on 13th May 2019. They were as follows:
Grounds of Application
1. The IAA misapplied s 36(2)(aa) and s 36(2B)(a).
Particulars
(a) The applicant claimed to fear harm in the whole of Afghanistan by reason of his Hazara ethnicity and Shia religion.
(b) In considering whether the applicant had a well-founded fear of persecution within the meaning of s.5J of the Act, the IAA found that he did not because there was an area of Afghanistan, namely Jaghori, where he did not face a real chance of persecution: see s. 5J (1 )( c ), and reasons at [25];
(c) In considering whether the applicant met the criterion in s 36(2)(aa) of the Act, the IAA limited its consideration to the risk of significant harm in or around Jaghori and relied on its findings in relation to the criterion in s 36(2)(a): at [37]
(d) Because the IAA limited its consideration to harm in Jaghori and its surrounds, it proceeded on an implicit expectation that the applicant would remain within Jaghori and its surrounds, which raised a consideration whether such an expectation was reasonable.
(e) The IAA failed to consider (as it was obliged to consider) whether it was reasonable in the sense of practicable for the applicant to remain in or around Jaghori.
(f) Further, the IAA's finding that the applicant was not at risk of suffering significant harm in or around Jaghori was insufficient find that he did not meet the criterion in s 36(2)(aa), given that the IAA had found that the applicant may be required to undertake occasional travel to Kabul (at (30]), or may need to travel to other areas on a regular basis (at (33]). The IAA made no assessment of the risk to the applicant in Kabul or in the other (unspecified) places to which he might be required to travel.
2. The IAA misapplied s 473DD.
Particulars
(a) The IAA, in considering, pursuant to s 473DD, whether it could have regard to country information put forward by the applicant dated 20 May 2017 about the security situation in Ghazni, considered only the matters prescribed in s 473DD(b) and not 473DD(a).
(b) relevant "exceptional circumstances" which the IAA ought to have considered was relevant under s 473DD(a), namely (i) that the applicant had not been represented before the delegate and (ii) that the material in relation to Ghazni before the delegate was sparse and dated, were relevant to its consideration of s 473DD(b)(i); and
(c) the IAA mischaracterised and failed to properly consider the effect of the material.
Submissions on behalf of the Applicant
Submissions were filed on behalf of the Applicant on 24th April 2019. They provided as follows:
Applicant’s Submissions
1. The applicant seeks judicial review of a decision dated 16 April 2018 by the respondent authority (IAA). The IAA affirmed a decision of a delegate of the respondent Minister. The delegate decided to refuse to grant the applicant a protection visa.
2. The applicant seeks leave to rely on an amended application containing the grounds of review annexed to these submissions, adding a ground and making amendments to the existing ground.
3. The IAA’s decision should be quashed for the reasons set out in the submissions.
Background
4. The applicant is a citizen of Afghanistan. He arrived in Australia by boat on 21 April 2013. On 9 June 2016, after the bar imposed by s 46A of the Migration Act 1958 (Act) was lifted, he applied for a protection visa: Court Book (CB) 34.
5. On 15 June 2017, the delegate decided to refuse the application: CB 126 – 137. On 20 June 2017, the matter was referred to the IAA for a review: CB 146. On 16 April 2018, the IAA decided to affirm the delegate’s decision: CB 237 - 249.
IAA’s Decision
6. The IAA accepted the applicant’s claims that:
(a) both he and his father had worked at a girls school in Pato, Jaghori: CB 242 [11];
(b) the applicant’s father was in 2012 stopped and then abducted by the Taliban whilst travelling between Ghazni City and Jaghori when bringing back school books for the school: CB 243 [13];
(c) after the father’s abduction, the applicant received telephone threats from the Taliban, and the school also received threats, which precipitated the applicant’s resignation from the school: CB 243 [15]
7. The IAA did not, however, accept that the applicant now faced any real chance of harm in Jaghori, and found he could safely live there: CB 246 [24] - [25]. The IAA also found that the applicant could safely travel back to Jaghori: CB 247 [27] – [29].
8. For that reason, the IAA held that the applicant did not meet the requirements in the definition of refugee in s 5H(1) of the Act: CB 248 [33]. For the same reason, the IAA held that the applicant did not meet the complementary protection criterion in s 36(2)(aa): CB 249 [37].
Ground 1 – misapplication of the relocation test
9. The IAA’s findings about the risks to the applicant were limited to the risks he would face in and around Jaghori and in Hazarajat: CB 249 [37]. That limited finding was insufficient to support the conclusion that the applicant did not meet the complementary protection criterion.
10. The complimentary protection criterion in s 36(2)(aa) is addressed to the question of risk to a person in their receiving country (unlike s 5J(1)(c) of the Act). A finding that a risk of harm does not exist in a particular location within the receiving country is insufficient to support a finding that the criterion has not been satisfied. Such a finding can only be supported if the decision-maker also has regard to the relocation principle in s 36(2B)(a), and considers whether it is reasonable for the person to relocate to that particular location. The IAA made no such findings in the present case.
11. The relocation test in s 36(2B)(a) involves the application of the same principles which, prior to the insertion of s 5J into the Act, applies to refugee claims: see ELX17 v Minister for Immigration & Border Protection [2018] FCA 1372 (ELX17) at [18] – [21]; MZYXS v Minister for Immigration & Citizenship [2013] FCA 614 at [37].
12. In the present case, Jaghori was the location where the IAA considered that the applicant had lived most of his life, and where it was likely he would return: CB 248 [30]. But the IAA did not make any finding that it was reasonable for the applicant to return to Jaghori, or remain within the area of Hazarajat. That is what the relocation test required. As French CJ, Hayne, Kiefel and Keane JJ said in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [29]:
The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.
13. The IAA has committed the same error.
14. Indeed, in this case the error is more pronounced. The IAA in fact made findings that the applicant would sometimes have to leave Hazarajat. Thus, it held that the applicant “may be required to undertake occasional travel to Kabul” (CB 248 [30]), and seemed at paragraph [33] not to rule out the possibility of further unspecified travel outside Hazarajat on an irregular basis. Other than considering the risk to the applicant on the roads to Kabul (at J[30]), the IAA did not consider the risk to the applicant while undertaking this travel. In particular, the IAA did not consider whether the applicant would face harm while actually in Kabul, or in whatever other locations the IAA considered he might travel to from time to time. In the absence of consideration of these questions, the IAA could not properly form the state of satisfaction that it purported to form in paragraph [38], rejecting that the applicant satisfied the complementary principle.
15. For completeness, the consideration at CB 248 [30] – [31] does not consider whether it would be reasonable in the sense of practicable for the applicant to remain in Jaghori in the matter required by SZSCA. The most that can be gleaned from those paragraphs is that the IAA was satisfied that the applicant would not be harmed in and around Jaghori, and ‘was not satisfied’ that the applicant would be prevented from undertaking employment in Jaghori. Those findings cannot lawfully amount to a finding of positive satisfaction that it would reasonable in the sense of practicable for the applicant to remain in Jaghori: see ELX17 at [19] – [21]; MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191 at [58].
Ground 2 (with leave) – non-compliance with s 473DD
16. The applicant’s representative sought to place before the IAA a document dated 20 May 2017, which was not before the delegate, concerning Taliban attacks in Ghazni: CB 210 - 211 (the details of the document are set out in footnote 3 at CB 211).
17. The IAA decided not to consider the document at CB 240 (bullet point at the very top of the page). It said:
[The document] was issued on 20 May 2017 and pertains to an attack on the district governor’s compound in Ghazni by the Taliban. The representative has not given any explanation why the document could not have been provided to the delegate prior to a decision other than to state it is evidence of fighting in Ghazni. The representative has not satisfied me that the information could not have been provided to the delegate prior to the decision. Nor am I satisfied that the document is credible personal information that may have affected the consideration of the applicant’s claims. Section 473DD(b) is not met.
18. The IAA’s error was to fail to consider whether s 473DD(a) was satisfied. The applicable principles were set out in CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [26] (references to authorities omitted):
(1) The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both;
(2) The words “exceptional circumstances” are not defined and are to be given their ordinary meaning; circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon;
(3) What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case. There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor itself may be sufficient for “exceptional circumstances” to exist;
(4) The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:
(a) could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or
(b) is credible personal information which had not previously been known (subparagraph (b)(ii));
(5) Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may constitute jurisdictional error. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under (a). Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether “exceptional circumstances” exist under (a).
(6) It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:
(a) the circumstances contended to be exceptional; and
(b) how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b).
19. This is a case that falls within the final principle. That is because:
(a) the IAA had earlier considered that one ‘exceptional circumstance’ applying to the referral was that the applicant had not been represented before the delegate: see CB 239 top bullet point. That circumstance would rationally inform the reasons why the material dated 30 May 2017 was not placed before the IAA (which is relevant to s 473DD(b)(i));
(b) likewise, the material concerning Ghazni before the delegate was limited and more dated (see CB 128); and
(c) finally, the IAA misconstrued the material and failed to appreciate its significance. Contrary to the IAA’s summary of the effect of the material at CB 240, the information went beyond an attack on the district governor’s compound. It related to a “three pronged attack” by the Taliban on parts of Ghazni, including an effort to take control of an entire district of the city” CB 210-211. That information was relevant to the IAA’s consideration of the safety of those parts of Ghazni adjoining Jaghori at CB 247 [24]; and also to the IAA’s consideration that the applicant might work in Ghazni at CB 248 [31]. The IAA did not appreciate this, and so misunderstood important evidence: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [88].
Conclusion
20. The IAA’s decision should be quashed.
Submissions on behalf of the First Respondent
Submissions were filed on behalf of the First Respondent on 6th May 2019, which were as follows:
First Respondent's Outline of Submissions
1. This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 16 April 2018 (CB 238 - 256). The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (CB 123 –137).
2. The applicant filed an outline of written submissions on 29 April 2019 (AS). Those submissions provide most of the background to this application. The AS indicates that there are two key issues that arise for consideration:
(a) whether the IAA’s finding the applicant could reside safely in his home district of Jaghori was lawfully made in accordance with the principles in MIBP v SZSCA (2014) 254 CLR 317; and
(b) whether the applicant should be given leave to rely upon a new ground alleging a breach of section 473DD of the Migration Act 1958 (Cth) (Act).
3. In summary, for the reasons set out below: (i) the first issue relies upon an erroneous application of SZSCA and the IAA in this case did consider the applicant’s reasonable travel and work needs if he returned to his home and lived with his family in Jaghori; and (ii) the second issue is not presently able to be properly understood given the errors and omissions in the AS articulating this ground.
Issue 1 – Reasonableness of expecting the Applicant to live with his family in his home district
4. The AS makes clear that this ground purports to rely on the principles in SZSCA (supra). In that case, the respondent was a truck driver who had lived in Kabul from 2007 until he came to Australia and who had earnt his living in Kabul driving trucks between Kabul, Ghazni and Jaghori (at [2] to [5]). The Tribunal found that the applicant could live safely in Kabul if he remained there and did not drive on the roads outside Kabul (at [12]). The Tribunal held that the applicant could make a living in Kabul from his earlier profession as a jeweller in Kabul (at [13]). The Tribunal appears to have expressly held that “relocation” issues did not arise (at [29], [46]).
5. The majority of the High Court held that even in considering a person returning to their home, “it is the question of what may reasonably be expected of the respondent which must be addressed” (at [25]). This is a fact specific inquiry and the majority quoted (at [27]) the following passage of SZATV v MIBP (2007) 233 CLR 18 at [24] with approval:
“What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”
6. The majority then applied this principle to the Kabul truck driver stating (at [31] – [32]):
“[31]…it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family.
[32] The Tribunal did not address this question. It did not address what was necessary to an enquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.”
7. However, in this case, the IAA engaged in a detailed discussion about the practicalities of the applicant returning to his home and made findings to the effect that:
(a) the applicant’s family still lived in Jaghori (at [21], [30], [33]);
(b) the applicant – unlike SZSCA – had not claimed a fear of harm arising from having to use to the roads to make a living (at [18] – [20], [30]);
(c) the applicant’s previous employment had not required that he travel by road, the only reason he had travelled to Kabul once before was to facilitate his departure from Afghanistan and he could find employment in Jaghori (at [27] – [30], cf [11]);
(d) the applicant upon return to Afghanistan could travel safely from Kabul to Jaghori (at [27] –[29]);
(e) any travel on the roads by the applicant would be occasional and not on a regular basis and he would not face real chance of harm in those circumstances (at [29] – [32]); and
(f) the question of the applicant’s travel safety was limited to the “real chance” test as the IAA concluded at [32], CB 249:
“Moreover given the applicant’s family is based in Jaghori although his wife continues to travel occasionally between Kabul and Jaghori for study, and the employment and services he requires are available in Hazarajat and Jaghori, I consider that he would not be required to travel in contested areas outside Hazarajat or Jaghori on a regular basis. I am satisfied that he would be able to safely access services through travel in adjacent safe areas.”
8. Accordingly, the IAA’s reasons make clear that it did consider whether it was reasonable, in the sense of practicable, to expect the applicant to live with his family in Jaghori and it did not make the error identified by the High Court in SZSCA. This ground of review is, in substance, seeking impermissible merits review.
Issue 2 – leave to raise section 473DD ground
9. The applicant’s proposed new ground of review is difficult to understand for a number of reasons.
10. First, the first dot point on CB 240 does not match the passage quoted by the applicant in AS [17] which is at the top of CB 241.
11. Second, the applicant does not quote the whole of the bullet point cited as giving rise to this alleged error at AS [17] which in full with the chapeau is as follows:
“[5] The representative in the IAA submission refers to a number of documents which were all published after the delegate’s decision, and a new information which I am satisfied could not have been provided prior to the delegate’s decision. The representative also sent further excerpts from media articles on 4 October 2017, 14 November 2017 and 29 March 2018 which (with the exception of one document that predates the decision) all postdate the delegate’s decision and are new information that I am satisfied could not have been provided prior to the delegate’s decision. The documents are:
…
A Pajhowk News Report dated 31 July 2017 regarding security developments in Ghazni. On 28 March 2018 the representative also provided a further eight reports, seven of which postdate the delegate’s decision, in relation to recent fighting in various districts of Ghazni including the main roads, the temporary closure of some roads and threats to residents by Islamic State. The documents postdate in the delegate’s decision are new information which I am satisfied could not have been provided to the delegate. They report on events that occurred after the delegate’s decision was made and are potentially significant to the consideration of the current security situation in Ghazni, where the applicant’s home area Jaghori is located in the area to which he would return. I am satisfied there are exceptional circumstances to justify considering them. The document which predates the delegate decision is also new information. It was issued on 20 May 2017 and pertains to an attack on the district governor’s compound in Gaza city by the Taliban. The representative has not given any explanation why the document could not have been provided to the delegate prior to a decision other than to state it is evidence of fighting in Ghazni. The representative has not satisfied me that the information could not have been provided to the delegate prior to the decision. Nor am I satisfied that the document is credible personal information that may have affected consideration of the applicant’s claims. Section 473DD(b) is not met.”
12. The key documents referred to in this dot point are found in the Court Book as follows: the eight articles about security in Ghazni are at footnotes 1 to 8 on CB 211 – 215. The impugned article is at CB 211 – 212 (and not CB 210 – 211 as stated at AS [16]).
13. Third, having regard to the whole of the impugned bullet point it is not clear why the seven other more recent articles provided by the applicant and considered by the IAA about the security situation in Ghazni were not sufficient for it to properly consider this issue. In particular, those articles also indicated that parts of Ghazni might be unsafe (see AS [19](c)]). Without the applicant providing an outline of written submissions prior to the hearing as to how this ground is actually articulated having regard to what the IAA actually held and considered, it is not possible for the Minister to properly understand and respond to this issue.
14. Finally, it is also not possible to understand how the applicant claims that the fact a refugee applicant might be “unrepresented” before the delegate is an “exceptional circumstance” (AS [19](a)). Common sense and experience is that many if not most applicants seeking protection visas are not represented before the delegate. If there is some basis to this bare assertion, it should be articulated in writing prior to the hearing so that the Minister can, again, properly consider this proposed new ground.
Conclusion
15. The application should be dismissed with costs.
Supplementary submissions by the Applicant and First Respondent
In the light of matters raised during the hearing, Orders were made on 13th May 2019, which provided a filing timetable for submissions addressing the judgment of Markovic J in CYF16 v Minister for Immigration and Border Protection.[2]
[2] [2018] FCA 2034.
Curiously, and without any substantive explanation, the solicitors for both the Applicant and the Fist Respondent advised via email dated 22nd May 2019 and 29th May 2019 respectively, that they did not wish to make any supplementary submissions regarding the matters raised in CYF16.
Consideration and disposition
For the purposes of determining the Grounds of Review, I note the following principles from the authorities cited.
The relevant considerations regarding the principle of “relocation” have been enunciated in multiple authorities in recent times, and in particular by reference to the High Court decisions in SZATV and SZSCA.[3] For current purposes it is sufficient to record the comments of the Full Court (Mortimer, Moshinsky and Thawley JJ) in AHK16 v Minister for Immigration and Border Protection.[4] At [2] and [3], the Court said (emphasis added):
[2] The “internal flight” or “internal relocation” concept, as it is understood in the context of Art 1A of the Refugees Convention, has been the subject of several decisions of the High Court and this Court, notably in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541 and CSO15 v Minister for Immigration and Border Protection [2018] FCA 14 Mortimer J has also considered the matter in two decisions: MZZZA v Minister for Immigration and Border Protection [2015] FCA 594 and MZANX v Minister for Immigration and Border Protection [2017] FCA 307 to which both parties referred in the present appeal…
[3] The assessment of whether a person can return to one or more parts of her or his country of nationality is undertaken in relation to the causal aspect of the definition of refugee in Art 1A of the Refugees Convention: namely, whether a person is outside her or his country of nationality owing to (in the sense of because of) a well-founded fear of persecution for a Convention reason: see generally SZATV at 25-26 [19], referring to the reasoning of Lord Bingham in Januzi v Secretary of State for Home Department [2006] 2 AC 426. As the extract from Januzi at [19] of SZATV, and the other authorities to which we refer establish,
[3] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317.
[4] AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457; [2018] FCAFC 106.
A tad earlier, in MZACX v Minister for Immigration and Border Protection, Kenny J set out, with her Honour’s typical clarity and economy, similar principles regarding relocation.[5] At [24] - [26], her Honour said (emphasis added):[6]
[24] The requirement that a “fear” be “well-founded” in Art 1A(2) of the Convention “incorporates a consideration as to whether a claimant for refugee status can relocate within the country of his nationality so as to avoid persecution”: see MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8], citing SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] – [22]. A person is not a refugee within the meaning of the Convention if he or she could obtain real protection in his or her country of nationality by relocating to another part of the country. The “factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm”: Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [25] (French CJ, Hayne, Kiefel and Keane JJ). Further, it “may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 at [14] (Gummow, Hayne and Crennan JJ). This analysis is taken up by Australian law in s.36(2) of the Migration Act, set out above.
[25] The issue of relocation does, however, raise the separate and distinct issue of reasonableness since “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV (2007) 233 CLR 18 at [24]; see also SZFDV (2007) 233 CLR 51 at [14]; and SZSCA (2014) 254 CLR 317 at [25].
[26] Clearly enough, whether relocation to a particular place is reasonable can raise different issues to those raised by the question whether a visa applicant faces a “fear of persecution”. Unlike fear of persecution, the reasonableness of relocation imports a question of practicability, the boundaries of which are different from fear of persecution for a Convention reason and in the Convention sense, even though the question of persecution in the Convention sense remains: see SZFDV (2007) 233 CLR 51 at [14]; SZATV (2007) 233 CLR 18 at [24] and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 (Black CJ, Whitlam J agreeing).
[5] MZACX v Minister for Immigration and Border Protection [2016] FCA 1212.
[6] See also Kenny J’s comments at [34] in MZACX.
Further, at [35] in MZACX, Kenny J said:[7]
In considering the possibility of relocation within a visa applicant’s country of nationality, the first question that arises is whether, objectively, there is no appreciable risk of the occurrence of the feared persecution in another part of that country. If there is an appreciable risk, then the issue of relocation for a particular applicant is concluded. If, however, there is no appreciable risk of the feared persecution at some other place in the country of nationality, the issue of relocation can be further explored. At this point, as indicated earlier, the question is whether the relocation of the visa applicant to that place is “reasonable”, in the sense of “practicable”, having regard to the particular circumstances of the applicant and the impact upon the applicant of relocation to that place. In answering this question, it may be relevant to include different or lower risks of harm faced by the applicant at a suggested place in assessment of the reasonableness of relocation in the particular circumstances of the case. Issues of risk of harm arise at these two stages of inquiry, although each stage of the inquiry has a different focus. Jurisdictional error may arise where a Tribunal conflates the two stages of the inquiry …
[7] See also her Honours comments at [34], [36] – [37] in MZACX. See too the comments by Perry J in ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at [19] – [21].
It is sufficient briefly to note some basal principles from more long-standing authorities, thus:
a)The comments by the Full Court in MZYTS, at [31] – [50], regarding the scope and requirement of the statutory task to be undertaken by the relevant reviewing body, which necessarily includes a “process of weighing evidence and preferring some over the other”;[8]
b)The comments by the Full Court in CGA15 v Minister for Home Affairs regarding the importance of reading reasons of the reviewing body “fairly”;[9] and,
c)The articulation of principles by Markovic J in CYF16 v Minister for Immigration and Border Protection, at [54] – [58], regarding allowing a new ground of review to be raised, which had not been canvassed in earlier proceedings.[10]
[8] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
[9] CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [22] – [32].
[10] CYF16 v Minister for Immigration and Border Protection [2018] FCA 2034. See also similar, earlier comments by Thawley J in CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [25] and [26].
Ground 1
The Applicant contended that the IAA had misapplied the “relocation test”, and in particular that it had made limited, and therefore insufficient, findings to support the conclusion that the Applicant did not meet the complementary protection criteria in s.36(2)(aa) of the Act.
The Applicant relied in particular upon the following statement by the High Court in SZSCA at [29]:
The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.
The Applicant contended here that the identical error identified in SZSCA had been committed in his case because the IAA had not considered whether he might (or would) face harm while actually in Kabul or in “whatever other locations the IAA considered he might travel to from time to time.”[11]
[11] Applicant’s submissions, par.14.
The Applicant further contended that the IAA found that the Applicant would not be harmed “in and around Jaghori”, and that it was not satisfied (IAA’s reasons: pars.30-31) that the Applicant would be prevented from undertaking employment in Jaghori. The Applicant contended that such a finding was insufficient to support a finding that it was or would be reasonable, in the sense of practicable, for the Applicant to remain in Jaghori.
In my view, the IAA did relevantly consider the claims that the Applicant put before it. As summarised at par.9 of its reasons, and recorded earlier in these reasons, the IAA referred to
The Applicant fears being killed or harmed by the Taliban on return because he disobeyed their orders to burn the books and the Taliban are still in control of the area around his home town. He also fears harm as a Shia Hazara, as a returnee who has lived in a western country and from generalised violence.
In ELX17, at [21], Perry J said (internal citations omitted; emphasis added):[12]
… the scope of the inquiry which the IAA must undertake into the practical realities of relocation is not free-ranging but will be determined by reference to the issues raised by an Applicant with respect to the question of relocation and on the material before it …
[12] ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372.
In the light of the claims made by the Applicant in the current matter, it is clear that, in “weighing up” (MZYTS) a wide range of evidence before it, the IAA relevantly considered the following matters and evidence:
a)The reports, submissions and information set out in par.5 of its reasons (recorded earlier in these reasons);
b)The nature and frequency of threats received by the Applicant’s Father prior his abduction, as well as the nature and frequency of threats received by the Applicant (pars.11 – 15);
c)The profile of the Applicant as a likely or possible person of interest to the Taliban, in the light of the family history (e.g. the abduction of his Father), and his employment which ceased at the school 3 months after his Father’s abduction, which occurred in 2012. The IAA also considered the more positive attitude of the Taliban towards education since the Applicant’s departure (pars.18 – 19);
d)The “targets” on the roads are directed more towards government officials and people associated with the international community and others mentioned at par.19;
e)The IAA discussed the Applicant’s fears as a returnee from a western country and determined, on the basis of country information, that the Applicant faced a relevantly “low risk” (par.20);
f)Similarly, it determined that the Applicant would not be at relevant risk because he would not be perceived to be “pro-western”, not least because he had lived in Australia for a relatively short time, and because he had no identifiable affiliations with any international organisations. Moreover, the IAA said that he would be returning to a “Hazara dominated area which is under government control” (par.21);
g)After noting the Applicant’s fears regarding him being a Shia Hazara, it determined (par.22) that Hazarajat (which includes Jaghori) is more secure and that “Hazaras are generally able to move about freely in these areas.” The IAA noted areas of insecurity in Pashtun majority districts. Based on DFAT reports in 2015 and reports from UNHCR it recorded past areas of insecurity, including on the roads “linking Hazarajat-dominated areas with Kabul.” However, citing more recent material before the IAA, it said (at par.22) that this did not indicate that Shia Hazaras were targeted in Jaghori or Ghazni;
h)The IAA next considered the presence of Islamic State (“IS”) in Ghazni, as well as in Kabul (par.23);
i)In the light of its consideration of the matters set out earlier in its reasons (noted above), the IAA concluded (at par.24 & 25) that it was satisfied that the Applicant could reside safely in Jaghori and would not face a real chance of harm from the Taliban, IS or other anti-government elements (“AGEs”). In making this determination it compared the situation in Jaghori “and other Hazarajat areas” to the position in Kabul;
j)At pars.26 - 29 the IAA again considered the situation of safety on roads (and implicitly in the air), including that in 2015, the roads between Hazarajat and Kabul were targeted but that since that time such targeting of Hazaras had significantly decreased. In the light of the information before it, the IAA concluded that there was not a real chance of the Applicant facing a “real chance of harm on the roads” when returning to Jaghori;
k)The IAA also considered the Applicant’s close family ties to Jaghori, and the fact that he had not claimed that it was necessary for him to travel to Kabul for employment. It determined (par.30) that occasional travel to Kabul would not put the Applicant at relevant risk and thereby face a real chance of harm.
In my view, the IAA adequately considered and weighed the material provided by the Applicant. It considered the weight and relevance of the Applicant’s family still living in Jaghori, his lack of claimed need to travel. On a fair reading of its reasons, the IAA considered the evidence and the claims put before it by the Applicant, in accordance with the principles to which I have referred (in AHK16 and MZACX). Ground 1 is not made out.
Ground 2 – with leave
The terms of s.473DD are set out earlier in these reasons. I need not repeat them.
In the submissions of the parties there is a degree of confusion regarding the Applicant’s reference (Applicant’s submissions, par.17) to “CB240 (bullet point at the very top of the page).” The text from CB240 is set out, beginning with the sentence “[The document] was issued on 20 May 2017 and pertains to an attack on the district governor’s compound in Ghanzi city by the Taliban.”
Accepting, as I do, the outline of principle by Markovic J in CYF16, and by Thawley J in CMY17, regarding a party raising a new or revised ground of review/appeal, I note the following.
In my view, there are three matters that were not addressed by the Applicant, both of which go to the grant of leave and to the substantive consideration of s.473DD.
First, as noted in the IAA’s reasons, the particular document referred to pre-dates the Delegate’s decision. The IAA stated further (par.5, top of CB240) that there was no explanation given by the Applicant’s representative why the document referred to could not have been provided to the Delegate prior to a decision “other than to state that it is evidence of fighting in Ghazni.” So far as I can see, this issue of explanation still has not been provided or addressed. The issue was certainly not addressed in the Applicant’s submissions.
Secondly, as the IAA stated, the general description of the document sought to be relied upon was referred to as providing “evidence of fighting in Ghazni.” It was not, therefore limited in the way suggested in the Applicant’s submissions (par.19(c)).
Thirdly, as pointed out in the Minister’s submissions, the context of the document sought to be relied upon is important. In all of the “dot points” in par.5 of the IAA’s reasons (CB238 – 240), a significant number of reports and other material is referred to and accepted by the IAA as relevant to the Applicant’s claims. In all other instances, the IAA accepted that the material to be relied upon (a) post-dated the Delegate’s decision and (b) constituted exceptional circumstances to warrant the consideration of it.
In my view, it was incumbent upon the Applicant (a) to address the IAA’s point about explaining why the material had not been put before the Delegate, (b) to put before this Court the context of the document in question in the light of all the other documents otherwise referred to (in par.5 of its reasons) and considered by the IAA, and (c) to explain how a document, dated 20th May 2017, could have or was likely to make any material difference to the IAA’s decision. In relation to all other documents, the IAA had properly considered the requirements that there relevantly were (i) exceptional circumstances, and (ii) that the material sought to be relied upon could not have been provided prior to the Delegate’s decision.
For these reasons, leave should not be granted to rely upon the amended Ground 2. If I am wrong on the exercise of discretion in this regard, for the same reasons, I do find that Ground 2 has relevantly been made out.
The Applicant’s Amended Application, filed 13th May 2019, must be dismissed. The Applicant is to pay the Minister’s costs in accordance with Schedule 1 Part 3 of this Court’s Rules.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 29 January 2020
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