CRE15 v Minister for Immigration
[2016] FCCA 2997
•14 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRE15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2997 |
| Catchwords: MIGRATION – Application for extension of time in which to file application for judicial review – arguable case – extension granted – application for protection visa – whether Applicant made claim that if he returned to Sri Lanka he would be interrogated and suffer serious or significant harm – whether Tribunal considered claim – held Applicant made claim – held Tribunal considered claim – whether Tribunal considered significant evidence before it that if Applicant returned to Sri Lanka he would be interrogated and suffer serious or significant harm – held Tribunal considered evidence – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 441A, 441C, 477 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 |
| Applicant: | CRE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2757 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 17 August 2016 |
| Date of Last Submission: | 17 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2016 |
REPRESENTATION
Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Hill |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant be granted an extension of time to 15 December 2016 pursuant to s.477(2) of the Migration Act 1958 in which to file an application for judicial review.
The application for judicial review be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2757 of 2015
| CRE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 September 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
Pursuant to sub-s.477(1) of the Migration Act 1958 (“the Act”), an Applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. The Applicant’s application was filed on 14 December 2015, some six weeks out of time.
Pursuant to sub-s.477(2) of the Act, the Court may extend the 35 day period if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
In his application for judicial review, the Applicant has complied with sub-s.477(2)(a) of the Act. Accordingly, it falls to the Court to consider whether it is satisfied that it is necessary in the interests of the administration of justice to make the Orders sought by the Applicant for an extension of time.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) of the Act as follows:
46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
47. The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
48. The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
In MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 the Full Court, whilst not actually deciding the point, approved the approach to s.477(2) of the Act elucidated by Justice Mortimer in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391. In essence, her Honour said that if a Judge, considering whether to extend time under the requirements of s.477(2) of the Act, engages in what is apparently a full blown hearing, then the Judge will have erred in discharging his/her discretion. The Full Court referred to this extract from her Honour’s decision:
21. Her Honour nonetheless continued to express her “disquiet” about the manner in which the FCC had dealt with the factor of the merits of the appellant’s proposed grounds of review in considering the application to extend time “lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court” (at [61]). In this regard, her Honour held first that:
61. ... it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]- [9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
22. In this regard, her Honour expressed her agreement with the observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (appeal dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158). In particular, her Honour agreed with Wigney J in SZTES at [102] that the practice in the FCC of listing both an application for an extension of time and the final hearing together may encourage an undue focus upon the merits of the proposed grounds of review and result in an artificial approach to the extension of time application. Nonetheless, her Honour considered that, provided that the proper tests are applied, there is no reason why that practice cannot be followed.
(my emphasis)
The Applicant is a Sri Lankan Tamil, who was born in the Jaffna district in a northern province of Sri Lanka. He claims to be owed protection obligations because of an imputed political opinion (association or support for the Liberation Tamil Tigers of Eelan (“LTTE”)), his race as a Tamil and his status as a failed asylum seeker.
By his amended application filed on 3 August 2016, his grounds of judicial review are that the Tribunal failed to perform its statutory task because it failed to consider a claim made by the Applicant or, alternatively, significant evidence in support of the claim that:
a)as a failed asylum seeker who had been in a Western country, he faced a real chance of being harmed during a process of interrogation that the Sri Lankan authorities would conduct on his return, whether or not Sri Lankan authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections; and
b)the Applicant claimed that he faced a real chance of being harmed because (i) persons detained by Sri Lankan authorities (including Tamils with no connections to the LTTE) had been tortured for the purpose of extracting false confessions that they had assisted the LTTE; (ii) persons had been tortured by Sri Lankan authorities to instil terror in the broader Tamil population and to discourage involvement with the LTTE; (iii) persons had been detained by Sri Lankan authorities in abominable conditions and deprived of basic human rights; (iv) persons had been wrongly linked to the LTTE by Sri Lankan authorities, and had only discovered that their friends, acquaintances, work colleagues, employers and even family members were in some way connected to the LTTE when they themselves were detained and interrogated.
The Minister concedes that the Applicant made such a claim but argues that the Tribunal considered both the claim and the evidence made in support of that claim.
Extension of time
The Minister does not oppose an extension of time on the basis that the Applicant’s application for judicial review is arguable.
The Applicant’s explanation for the delay in filing his application for judicial review[1] is on the one hand, that he did not receive the decision until 25 days after the decision was made and, secondly, that he was confronted by multiple challenges – including his inability to speak English and obtain timely assistance from legal aid organisations, his impecuniosity and inability to pay for private legal representation and his poor mental health. He says that, having failed to obtain professional assistance, he filed an application in this Court with the assistance of members from the Tamil community living in Australia.
[1] Affidavit filed by the Applicant on 13 July 2016.
I am not satisfied that the Applicant’s explanation is a satisfactory one. Firstly, under the notice provisions of the Act, the Applicant was deemed to have received the decision at the end of the day on which it was transmitted by email, namely 30 September 2015 (CB 312). The decision was sent to the email address of the Applicant’s legal representative, as provided on the ‘Appointment of Representative’ form (CB 204). Consequently, by operation of sub-ss.441A(5) and 441C(5) of the Act, the Applicant was taken to have received the decision at the end of the day on which the document was transmitted, that being 30 September 2015.
Secondly, the Applicant’s explanation that he suffered from multiple “burdens” is not convincing. These “burdens” are confronted by many, if not most, self-represented litigants who seek judicial review in relation to decisions to refuse to grant a visa.
I am satisfied that there would be no prejudice to the Minister, as any prejudice can be met by an award of costs.
I am satisfied, however, having regard to the grounds for judicial review and material before the Court, that the Applicant does have an arguable case. Consequently, I am satisfied that it is in the interests of the administration of justice to grant an extension of time in which the Applicant may file his application for judicial review.
Tribunal decision
With respect to the Applicant’s claim to fear persecution because of his imputed political opinion, the Tribunal:
a)accepted “the applicant’s claims to have been arrested and charged under the anti-terrorism law in place along with four others in Colombo sometime in 1999, detained for 14 days in Welikade prison, and then released without charge following a brief appearance in a Colombo magistrate’s court” (CB 319 at [25]);
b)did not accept the Applicant was rounded up in 2000 after a bomb blast in Colombo, detained for three months, beaten and tortured (CB 320 at [27]); and
c)accepted that police officers were shot in the vicinity of the Applicant’s restaurant in January 2007, and that the Applicant was beaten by the police and his restaurant destroyed by the police. It did not accept that the Applicant was subsequently wanted by police in Vavuniya or others either as a witness or suspect and did not accept and the Applicant has evaded questioning (CB 318 at [19]).
The Tribunal found that the Applicant’s family members died as a result “of the long-standing civil war between the government of Sri Lanka and the LTTE, which has now ended, and finds the chance that he would be imputed with a pro-LTTE political opinion and seriously harmed by the authorities on this basis on return to Sri Lanka is remote” (CB 321 at [29]).
The Tribunal considered country information and said as follows (CB 321 at [31]):
… The applicant told the Tribunal that he was not an LTTE member and for reasons set out above the Tribunal is not satisfied that the applicant was of particular interest to the authorities in the past after they released him from 14 days detention (without charge) in late 1999, which is over 15 years ago. The Tribunal is not satisfied that the applicant’s profile and circumstances are such as to result in a real chance of being persecuted because of his imputed political opinion on account of being a young Tamil male who originates from the north if he were to return to Sri Lanka, now or in the reasonably foreseeable future.”
The Tribunal’s ultimate finding was expressed as (CB 321 at [32]):
Taking into account the above considerations the Tribunal does not find that the applicant faces a real chance of serious harm on return to Sri Lanka on the basis of his imputed (pro-LTTE) political opinion. His fears of persecution in (sic) this basis are not well founded.
With respect to the Applicant’s claim to fear persecution because of his Tamil ethnicity, the Tribunal considered country information and said (CB 323 at [37]):
…the Tribunal does not accept that simply being a Tamil or a young Tamil male from the north gives rise to a well-founded fear of persecution from the authorities in Sri Lanka. The Tribunal makes this finding on the basis of independent sources indicating that it would no longer be assumed that all Tamils face a real chance of suffering serious or significant harm solely on account of their Tamil ethnicity.
(footnotes omitted)
The Tribunal referred to the Applicant’s representative’s written and oral submissions at the Tribunal hearing, in which reliance was placed on a report from an organisation Freedom from Torture, ‘Tainted Peace – Torture in Sri Lanka since May 2009’, August 2015. The Tribunal noted that the representative argued that this information “make evidence that torture is still prevalent in Sri Lanka and any individual who is perceived to have an affiliation with the LTTE – even in a small way – is at risk of harm” (CB 323 at [41]). The Tribunal also referred to the Applicant’s representative’s post-hearing submission, in which it was argued, based on country information, that “many Tamils are continuously targeted by the Sri Lankan authorities and enforced disappearances and torture of Tamils continues to occur” (CB 324 at [42]).
The Tribunal stated that it had regard to these submissions and relevant country information, and found that (CB 324 at [43]):
...the Tribunal notes that there have been improvements, particularly since the election of the new president since January 2015, and overall DFAT reports that the security situation in the north (and east) has greatly improved since the end of the military conflict. For reasons set out above the Tribunal does not accept that the applicant has a profile that would result in him being of adverse interest to the authorities on return to Sri Lanka, either in relation to the police shooting in Vavuniya in 2007 or in relation to his arrests by the authorities in Colombo in 1999 and 2000. Given this, even if the Tribunal accepts an ongoing military presence in the north of the country, it is not satisfied that the applicant has a profile that would result in him being targeted for harm on return to his home in area(s)….
(footnotes omitted)
With respect to the Applicant’s claim to fear persecution on return to Sri Lanka as a failed asylum seeker, the Tribunal noted the Applicant’s representative’s oral submissions that “upon return many individuals are subjected to questioning and torture in an attempt to force them to admit they have committed various acts and that the applicant is a member of an ethnic minority and has been abroad for a prolonged period of time, it is highly likely he would be subjected to such ill‑treatment upon return” (CB 325 at [45]).
The relevant paragraphs of the decision record in which the claims (as set out at [21] and [23] above) are considered, are as follows (CB 325 at [47]-[48]):
47. The UK Home Office reports that Sri Lanka has an extensive intelligence system shared by the security forces and immigration officials and that it security policy has become increasingly sophisticated since 2009 and is based on intelligence and the comprehensive surveillance of its Tamil citizens as well as monitoring of the Tamil diaspora. That Guidance notes that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk. At the hearing the applicant said because he has spoken about the Sri Lankan government (in particular the military) to the Australian authorities (in relation to his protection visa application and review) he is fearful that on return they will question him and discover the old information about him (i.e. about being an LTTE suspect and in relation to the police shooting at his restaurant).
48. The Tribunal accepts that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad and that given he is a Tamil speaker, he may also face questioning about any links he may have with the LTTE. At hearing the applicant told the Tribunal that neither he nor his family had any past involvement with the LTTE, apart from two days training he undertook around 1999 (before moving to Vavuniya). The Tribunal finds the chance that he would be imputed with a pro-LTTE political opinion and seriously harmed on return to Sri Lanka on the basis of two days training with the LTTE over 15 years ago in the context of the war to be remote. Further, as set out above, whilst the Tribunal has accepted the applicant was arrested and detained for 14 days in late 1999 on suspicion of being an LTTE supporter, it found that he was released without charge and did not experience any further problems, therefore finding his chance of being imputed with a pro-LTTE political opinion and seriously harmed as a result be remote. The Tribunal did not accept the applicant’s claims to have been arrested a second time in early 2000 and his claims of suffering serious harm from the authorities as a result. The Tribunal accepts that the applicant has spoken about the Sri Lankan government to the Australian authorities in relation to his protection visa application and review, but taking into account the country information detailed above, is not satisfied that the person identified as having unsuccessfully sought asylum in Western country faces a real chance of serious harm on that basis. The Tribunal also accepts that the applicant has been abroad for a prolonged period of time but apart from his own assertions there is nothing to suggest that this would result in a real chance of the applicant experiencing serious harm. In such circumstances the Tribunal considers that such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant was not a member or supporter of the LTTE nor suspected of such. It is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka or that he will do so if he returns to Sri Lanka in the foreseeable future.
(footnotes omitted)
With respect to the Applicant’s claim for protection under sub‑s.36(2)(aa) of the Act, the Tribunal referred to the Applicant’s submissions that there was a real risk that he would suffer significant harm, including torture (in an attempt to obtain a confession), because he left Sri Lanka to seek asylum from a Western country (CB 326 at [54]). The Tribunal found (CB 326-327 at [55]-[56]):
55. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnicity, his imputed political opinion, or the fact that he is a failed asylum seeker from a western country…
56. For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
Judicial Review
The Applicant’s ground for judicial review is as follows:
The Tribunal constructively failed to exercise its jurisdiction, by reason that the Tribunal failed lawfully to consider a claim made by the applicant to satisfy the criteria for a protection visa under section 36 of the Migration Act 1958 (the Act), or significant evidence in support of that claim.
Particulars
a. The applicant made various claims to fear harm in Sri Lanka. In particular, the applicant claimed that, as a Tamil, as (potentially) a failed asylum seeker who had been in a Western country for a long period of time, and as a person who had had certain adverse interactions with Sri Lankan authorities, faced a real chance of being harmed by Sri Lankan authorities on his return to Sri Lanka.
b. In particular, the applicant claimed that he faced a real chance of being harmed during a process of interrogation that the Sri Lankan authorities would conduct upon his return, whether or not the Sri Lankan authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections.
c. The applicant also claimed that he faced a real chance of being harmed having regard to country information to the effect that: (i) persons detained by Sri Lankan authorities (including “normal” Tamils with no connections to the LTTE) had been tortured for the purpose of extracting false confessions that they had assisted the LTTE; (ii) persons had been tortured by Sri Lankan authorities so as to instil terror in the broader Tamil population and to discourage involvement with the LTTE; (iii) persons had been detained by Sri Lankan authorities in abominable conditions and deprived of basic human rights; (iv) person had been wrongly linked to the LTTE by the Sri Lankan authorities, and only discovered that their friends acquaintances, work colleagues, employers and even family members were in some way connected to the LTTE when they themselves were detained and interrogated.
d. The Tribunal failed to consider these claims, or to consider this significant evidence in support of his claims.
In oral submissions, counsel for the Applicant stated that the Applicant’s ground for judicial review relies on two uncontroversial propositions. The first is that, if an applicant makes a claim that they satisfy the criteria for a protection visa by invoking Australia’s protection obligations, the Tribunal must consider it. The second and related proposition is that the Court’s only task is to consider whether the Tribunal lawfully considered that claim.
The Minister accepts that the Tribunal’s review function requires it to consider all of the integers of the claims put by the Applicant: NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 (“NABE”) at [55]-[57]. The Minister further accepts that a failure by the Tribunal to consider a piece of evidence may amount to a jurisdictional error, depending on the relevance, cogency and importance of the piece of evidence: Liew v Minister for Immigration [2016] FCA 172 at [32]-[33]; Pokharel v Minister for Immigration [2016] FCAFC 34 at [47]; SZWCC v Minister for Immigration [2015] FCA 1402 at [33].
The Minister, however, argues that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. Reliance is placed on the following extract from the Full Court decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs: (2003) 236 FCR 593 (“WAEE”) at [46]-[47]:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. …
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Although the Applicant makes it plain that he does not rely on the decision of Gilmour J in Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292 (“SZQPA”) for establishing a general proposition, the Applicant argues that, as the facts in that case and the present matter are analogous, it is relevant to consider the approach adopted by his honour in SZQPA. In the course of submissions, the parties addressed both that decision, and subsequent decisions of both the Federal Court and this Court which considered SZQPA. I will deal with these authorities as part of my consideration of the application for judicial review.
The Applicant submits, in his written submissions (at [9]), that he made the following claims in relation to his claim to fear significant harm if he was returned to Sri Lanka:
9.1 persons detained by Sri Lankan authorities, including “normal” Tamils with no connections to the LTTE, had been tortured, including for the purpose of extracting false confessions stating that they had assisted the LTTE (CB 177, 180, 183, 186, 191-192, 254, 271);
9.2 Sri Lankan authorities had also tortured detainees so as “to instil terror in the broader Tamil population to discourage involvement with the LTTE” (CB 183);
9.3 as well as being tortured, persons detained by Sri Lankan authorities were also kept in “abominable conditions and deprived of basic human rights” (CB 177, 179);
9.4 many persons were “wrongly linked to the LTTE by the Sri Lankan authorities, leading to their detention”, and “[m]any … people reported that they only discovered that friends, acquaintances, work colleagues, employers and even family members were in some way connected to the LTTE when they were themselves detained and interrogated” (CB 304);
9.5 as a Tamil who had been abroad for a long period of time, the applicant faced a real chance of being harmed during such a process of interrogation and detention, whether or not Sri Lankan authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections (CB 186, 188-190, 195, 255, 257, 263, 302).
The argument developed by counsel for the Applicant is that the Applicant claimed that, because of his status as a Tamil speaker and someone who has been abroad for some time, he will be interrogated and detained. The Applicant claims that during the process of interrogation, he will face a real chance of serious harm whatever the outcome of the interrogation process. The claims identified in paragraph [31] above are relevant to this claim.
The Minister accepts that the Applicant made this claim.
Consequently, the focus of the submission by the parties was whether the Tribunal considered the Applicant’s claims.
The Applicant argues that the Tribunal failed to consider his claim, because it failed to consider whether he might suffer harm during the process of interrogation. The Applicant submits that the Tribunal’s consideration of his claim to fear serious harm on return to Sri Lanka is located at [47] and [48] of its decision record (extracted in full at [24] above).
The Applicant submits that the reasoning employed by the Tribunal at [47] of the Tribunal decision record does not disclose that the Tribunal considered the Applicant’s claim to fear harm during the process of interrogation because:
a)it could not be said that the reference to “an extensive intelligence system” closes off the possibility that the authorities would not know at the commencement of the questioning of the Applicant upon his arrival in Sri Lanka, whether or not the Applicant had an association with the LTTE;
b)the premise for the reference to the absence of anti-government activity pre and post departure is something that could only have been potentially established by the authorities after a process of interrogation;
c)the use of the phrase “is not reasonably likely to crystallise into concern” can only be read as a reference to the outcome following the interrogation and not the process of interrogation;
d)the Tribunal failed to address the broader aspect of the Applicant’s claim; namely, that even if the authorities did not think that he was a person of interest they might still abuse him to instil terror, or that, even if the Applicant was unaware before the Tribunal that he had a connection with the LTTE, the Sri Lankan authorities might themselves perceive a connection to exist.
The Applicant submits that the reasoning employed by the Tribunal at [48] of the Tribunal decision record does not disclose that the Tribunal considered the Applicant’s claim to fear harm during the process of interrogation because:
a)the Tribunal accepted that upon return to Sri Lanka, the Applicant is likely to face questioning at the airport about the activities during the time he has been abroad and, given he is a Tamil speaker, he may face questioning about any links he may have with the LTTE;
b)the premise can only be that there may be some minimum level of suspicion by the authorities about links with the LTTE;
c)the Tribunal’s finding that questioning at the airport, in conjunction with intelligence, means that the process of questioning will quickly establish that he is not a member or supporter of the LTTE or suspected as such, does not deal with the methods of interrogation and the conditions under which the interrogation would occur. Accordingly it is only a finding that the process will be quick and not a finding about the interrogation process itself.
The Applicant submits that the mere fact that the Tribunal, earlier in the decision record, did not accept that the Applicant’s status as a Tamil or a young Tamil male from the north of Sri Lanka gives rise to a well-founded fear of persecution from authorities in Sri Lanka, did not absolve it from the obligation to consider the process of interrogation. The Applicant submits that the Tribunal needed to consider, on a cumulative basis, the Applicant’s claim based on his ethnicity as a Tamil, the fact he had been abroad for some time and that he was a failed asylum seeker, whether he would suffer harm during the process of interrogation.
The Minister submits, relying on the decision in WAEE, that the Tribunal considered the Applicant’s claim. It is argued that, in deciding whether the Tribunal considered the Applicant’s claim, it is necessary to have regard to the Tribunal decision record as a whole.
The Minister submits that the critical claim put forward by the Applicant’s migration agent is recorded by the Tribunal as (CB 325 at [45]):
a)upon return to Sri Lanka, many individuals are subjected to questioning and torture in an attempt to force them to admit that committed various acts; and
b)as the Applicant is a member of an ethnic minority and has been abroad for a prolonged period of time, it is highly likely he will be subjected to such ill-treatment upon return.
The Minister also notes that the Tribunal decision record referred to the Applicant’s migration agent’s submissions that the authorities remain suspicious of Tamils, that torture is still prevalent in Sri Lanka (CB 322 at [35]), that any individual who is perceived to have an affiliation with the LTTE, even in a small way, is at risk of harm and that Tamils continue to be targeted by the authorities (CB 323 at [41]).
In respect of these claims, the Minister submits that:
a)at [37] of the Tribunal decision record (the relevant part of which is extracted at [20] above), the Tribunal made a finding that it did not accept that the Applicant’s Tamil ethnicity, or his membership of a social group being a young Tamil male from the north, gave rise to a well-founded fear of persecution from the authorities in Sri Lanka;
b)At [43] of its decision record, the Tribunal did not accept the Applicant has a profile that would result in him being of adverse interest to the authorities or targeted for harm on return to Sri Lanka, either in relation to his arrests or the police shooting in 2007. It also found at [44] that Tamils, including the Applicant, did not face a real chance of suffering serious harm solely on account of their ethnicity.
In this context, the Minister submits that the ordinary meaning of the statement by the Tribunal at [47] of its decision record, that the Guidance provided by the UK Home Office reports “that the absence of any anti-government activity pre and post departure from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk”, is that the investigations of pre-and post anti-government activity have already been conducted and the use of the word “crystallise” is a reference to the process of questioning.
The Minister submits that the finding at [48] of the Tribunal decision record, that the Applicant is likely to face questioning at the airport about his activities abroad and any links he may have with the LTTE, must be considered in the context of the country information referred to by the Tribunal regarding the intelligence of the Sri Lankan authorities. This context is evident in the Tribunal’s finding that “any questioning at the airport in conjunction with intelligence, will quickly establish the applicant was not a member or supporter of the LTTE nor suspected of such”. That is, given intelligence about pre and post departure anti‑government activity, the process of questioning will be quick and will establish that the Applicant did not have the relevant profile. On this basis, it is submitted that the Tribunal found there was not a real chance the Applicant will suffer harm during this process of questioning.
Consideration
The issue to be determined on judicial review is whether the Tribunal failed to consider a claim which expressly or squarely arose from the material before it.
The Tribunal’s duty to review obliges it to consider all of the Applicant’s claims, whether or not expressly articulated, provided that they clearly arise from the material before it. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the material. The relevant principles are set out in the Full Court decision in NABE, where it said at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). …It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”), the Full Court held that the fact that the Tribunal referred to a claim or certain fact does not necessarily mean it considered that claim or certain fact. The Tribunal’s reasons must disclose a “consciousness of the contents” of the claim “as opposed to their existence”, and an evaluation of the material or a process of weighing evidence and preferring some evidence over the other: see MZYTS at [41], [45] and [52].
It is appropriate to briefly set out the authorities referred to by the parties. I say briefly, because the authorities are not relied on by the Applicant or the Minister for any proposition of law. The authorities referred to seem only to have some relevance because of the fact that they deal with claims to be owed protection obligations because of the Applicant’s fear of harm on return to their country of origin, as a failed asylum seeker or person who departed illegally.
In SZQPA, Gilmour J described the Applicant’s claim before the Independent Merits Reviewer as follows (at [39]):
It is plain enough in context that the first respondent was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.
His Honour agreed with the findings of the Trial Judge (then Federal Magistrate Driver) that the reviewer (SZQPA at [44]):
focus[ed] on the likely outcome of the possible detention and interrogation of the [first respondent] on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role.
In SZQPA, the Appellant argued that if a claim was made by the Applicant that he feared being questioned on return to Sri Lanka, this claim was considered by the Tribunal by reason of its findings that the Applicant was not somebody who would be suspected of having an involvement with the LTTE, and would not be expected to be interrogated by the Sri Lankan police. Further, it was argued by the Appellant that, having regard to the Tribunal’s findings, an initial suspicion on the part of the authorities would be absent. The Appellant relied on the Tribunal’s findings that the Applicant lacked the appropriate profile. His Honour rejected this submission, stating (at [51]-[54]):
51. The approach of the appellant suffers, in my opinion, from the same vice as that which infected the reasoning of the Reviewer.
52. The appellant assumes as a starting point that during an interrogation on his return to Sri Lanka whether by the CID or police or some other government agency, the first respondent will be regarded as someone who was not “an active member or supporter of the LTTE”.
53. That seems to me to be the wrong starting point. It contains a false premise. The starting point is whether the Sri Lankan authorities would suspect that he had links or an association with the LTTE. Indeed that is the way that the first respondent described his fears as summarised by the Reviewer at SOR [15] set out above. I will repeat here for convenience the relevant part:
The claimant stated that he feared he would, on return to Sri Lanka, be considered by the authorities … to be a person supportive of the LTTE through his family’s and specifically his brothers’, LTTE connections, and through having been forced by the LTTE to use his boat to unload supplies from ships. (Emphasis added.)
54. Had the Reviewer asked himself that question I think, on the material before him, that he would have concluded that the authorities would have held such suspicions. I have already mentioned it is significant that the appellant escaped from Sri Lanka for the very reason that the Sri Lankan Army was looking for him and that his young son was detained and arrested during which time he was asked as to the first respondent’s whereabouts.
In WZAQR v Minister for Immigration and Border Protection [2013] FCAFC 122, the Full Court doubted whether the Applicant had made a claim that he would be persecuted during a process of questioning by the Sri Lankan authorities. It held that the facts, as found by the Assessor, did not support such a claim. The Court said (at [29]-[34]):
29. An important part of the reasoning was that the appellant had not ever come to the attention of the authorities in a way that would suggest political or religious activism. This was in the light of earlier findings that the appellant had not been involved in any such activism notwithstanding his brief and limited involvement in two demonstrations. The Assessor, at [113], said “I do not accept that there is a real chance that the authorities would show any interest in him on return to Iran.” The expression “show any interest in him on return to Iran” does not in context convey interest only after a process of investigation but includes a process of investigation which could amount to searches and extensive questioning by government authorities for evidence of anti-government activities as referred to at [112].
30. There was a distinction drawn by the Assessor between how the authorities might deal with returnees who had been involved in anti-government activities and those who were merely returnees who had sought asylum.
31. The Assessor found the appellant belonged to the second group and concluded that there was not a real chance that the appellant would suffer serious harm either because he would be a returned asylum seeker or because as a returned asylum seeker he would be imputed to have a political opinion opposed to the regime. Implicit, at least, in these findings is that for a returnee to Iran who had not been involved in anti-government activities there was not a real chance that the returnee would suffer serious harm. As we have said, the facts as found did not provide support for the contention that there was a real chance the appellant himself would suffer serious harm merely by coming to the attention of the Iranian authorities as a failed asylum seeker.
32. Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025 was a case involving quite different facts.
33. In that case the applicant escaped from Sri Lanka for the very reason that the Sri Lankan Army was looking for him and his young son was detained and arrested during which time he was asked as to the applicant’s whereabouts. Also the reports in the Country Information of torture of detainees merely suspected of supporting the LTTE were widespread.
34. As to whether the claims covered the issue, Gilmour J held at [39] that it was plain enough in context that the applicant was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE. This was the applicant’s only articulated claim of fear of torture during interrogation. At [43], Gilmour J rejected the submission that there was no expressly articulated claim made by the applicant which required the Reviewer to consider whether the applicant would be subjected to Convention-related persecution during a process of questioning by the Sri Lankan authorities. This was at the very core of the applicant’s claimed fears.
In SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 (“SZSRU”), one of the grounds of appeal was that the primary Judge wrongly distinguished SZPQA. Katzmann J held (at [[61]-[62]):
61. SZQPA must be understood in its particular factual context. As the Minister submitted, SZQPA does not establish a general proposition that decision-makers are required in every case to determine whether an applicant for a protection visa might be harmed in the process of questioning: cf. WZAQR v Minister for Immigration and Border Protection (2013) 138 ALD 17; [2013] FCAFC 122 at [28]. In SZQPA the relevant factual context was that the applicant had claimed that he would be subjected to persecution during questioning by Sri Lankan authorities on his return. The relevant factual context also included, as Gilmour J noted at [61], that there was no room for doubt, on the facts accepted by the independent merits reviewer, that on arrival in Sri Lanka the applicant would assume a risk profile as a person suspected of having links with the LTTE.
62. In the present case, the factual context is quite different. In contrast with SZQPA, there is real doubt about whether the appellant claimed to fear harm during the process of questioning by Sri Lankan authorities on his return. But assuming that such a claim can be said to have been made, the tribunal (at [173] and [175]) addressed this claim. The tribunal accepted that the appellant would be questioned, but did not consider that he would be imputed with a political opinion as an LTTE supporter and harmed as a result. SZQPA is therefore distinguishable.
It is to be noted that Katzmann J relevantly described a finding of the Tribunal in SZSRU as [14]:
The tribunal also accepted that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that the appellant would be imprisoned for up to three nights and that the circumstances of his detention would likely be disturbing and very unpleasant. But it was not satisfied that this would amount to significant harm within the meaning of the Act.
In SZTPG v Minister for Immigration [2015] FCCA 918 (“SZTPG”), one of the Applicant’s grounds of judicial review was that the Tribunal failed to consider a claim of the Applicant that he feared harm during the process of questioning by the authorities if returned to Sri Lanka. Judge Emmett said as follows at [30]-[33]:
30. Minster for Immigration and Citizenship v SZQPA [2012] FCA 1025 is a case where the reviewer accepted that the applicant’s family was affiliated with the LTTE. That is an entirely different factual scenario to the case before this Court. The RRT in the case before this Court comprehensively rejected the applicant’s claims of past harm either for himself or his family and rejected any perception by the applicant’s family as being linked to the LTTE. The RRT also made the clear finding that the applicant is not a person who is in any way seen as having links to the LTTE.
31. In such circumstances, it was not necessary for the RRT to consider whether the questioning process itself would subsequently amount to harm in light of the RRT’s findings that there is no association or perception of association of the applicant or his family in being linked with the LTTE.
32. The factual assumption that underpins the applicant’s complaint in ground 1 is that the applicant would, in fact, be interrogated in order to determine whether he is associated with the LTTE. Such an assumption cannot be made in light of the RRT’s clear findings that neither the applicant nor his family would be perceived to be a person with links to the LTTE.
33. In the circumstances, it was unnecessary for the RRT to make a finding in relation to the applicant’s complaint that the RRT failed to consider the treatment or mistreatment that the applicant would face in determining whether or not he was associated with the LTTE.
I accept that the Tribunal’s duty to review requires it to consider and deal with clearly articulated claims, or claims which can be said to squarely arise from the material before it. Further, I accept that a failure to consider a claim that is substantial and clearly articulated could amount to jurisdictional error.
I accept that the Applicant made a claim that he feared harm during a process of interrogation and detention, whether or not Sri Lankan authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections.
I am satisfied that the Tribunal appreciated that the Applicant made this claim. This is evident from [45] of the Tribunal decision record (extracted at [23] above). Further, it is clear from the Tribunal decision record that the Tribunal considered this claim and made its findings in relation to this claim at [47]-[48] of its decision. However, I agree with the submission of the Minister that this consideration must be looked at in context of the whole of the decision record.
Considering the decision record as a whole, it is apparent that the Tribunal:
a)accepted the Applicant’s claim that he was detained in 1999 for 14 days on suspicion of assisting the LTTE, but rejected his claims that he was detained in 2000 for three months and beaten and tortured. The Tribunal accepted that in 2007 there was a shooting incident involving police officers outside the Applicant’s restaurant, that he was beaten by the police and that his restaurant was destroyed. It did not accept the Applicant was pursued by the police or other authorities for questioning subsequent to that event or that the Applicant avoided such questioning. The Tribunal also accepted that members of the Applicant’s family died as a result of the civil war between the government of Sri Lanka and the LTTE;
b)found that, in circumstances where the civil war had ended and where it was not satisfied the Applicant was of particular interest to the authorities after his release in 1999, the Applicant did not have a profile such as to result in a real chance of being persecuted because of his imputed political opinion; and
c)found that Tamils, including the Applicant, do not face a real chance of suffering serious harm based solely on their ethnicity.
I do not accept that, merely because the Tribunal made findings that the Applicant did not have a relevant profile, such that there was a real chance of being persecuted because of his imputed political opinion or that the Applicant would not face a real chance of suffering serious harm because of his Tamil ethnicity, that this absolved the Tribunal from being required to consider the Applicant’s claim that he would suffer harm during the process of interrogation on return to Sri Lanka as a failed asylum seeker. To that extent, I respectfully disagree with the approach adopted by Emmett J in SZTPG. However, although I am of the opinion that the Tribunal was required to consider the Applicant’s claim, it is apparent that these findings were relevant to the Tribunal’s consideration of the Applicant’s claim. The Tribunal’s reasoning discloses that the Tribunal treated these findings as relevant.
The reasoning adopted by the Tribunal in considering the Applicant’s claim was:
a)it noted country information that the Sri Lankan intelligence regarding any pre and post departure anti-government activity had become more sophisticated and that an absence of such intelligence meant the questioning was unlikely to crystallise into a concern about the person being a security risk [47];
b)it accepted that, upon return to Sri Lanka, the Applicant was likely to face questioning at the airport as to his activities during the time he had been abroad and, because of his Tamil ethnicity, about potential links to the LTTE [48];
c)repeated its findings that the chance that the Applicant would be imputed with a political opinion was remote, and noted that at hearing, the Applicant told the Tribunal that neither he nor his family had any past involvement with the LTTE [48];
d)it thus found that “In such circumstances… such questioning at the airport, in conjunction with intelligence, will quickly establish that the applicant was not a member or supporter of the LTTE nor suspected of such” [48].
The Tribunal then made its ultimate finding that, “[f]or these reasons, the Tribunal does not accept there to be a real chance that the applicant will be targeted for harm at the airport” [49].
I am satisfied that, in context, the use of the words, “quickly establish” (at [48] of the Tribunal decision record) is a reference to the process of questioning. Moreover, I am satisfied that the subsequent finding that the Applicant will not be targeted for harm must also be read as a reference to the process of questioning at the airport.
It is to be recalled that the Applicant’s claim was that even those Tamils not suspected of being associated with the LTTE were subjected to questioning and harm in an attempt to force them to admit that they have committed various acts: (CB 324 at [42] and [45]). The Tribunal, therefore, dealt with the Applicant’s claim by finding that he would not be targeted for harm at the airport.
Having regard to the whole of the Tribunal decision record, I am satisfied that the Tribunal did consider the Applicant’s claim that he would be subjected to torture at the airport on return to Sri Lanka as a failed asylum seeker. It is plain that the Tribunal found that, in the absence of a relevant profile and relevant intelligence, the questioning would be quick and the Applicant would not be targeted for harm during the process of questioning at the airport.
I have dealt with the Applicant’s ground for review that the Tribunal failed to consider a claim made by the Applicant. Although it is not strictly necessary for me to do so, I will refer to the decision in SZQPA in light of the Applicant’s arguments that the facts in that case are analogous to those in the present case. In my opinion, SZQPA can be distinguished for the following reason. Whilst it can be said that in this matter, the Applicant made a claim to fear harm during interrogation at the airport if returned to Sri Lanka (and to that extent is analogous with the facts in SZQPA), in this matter the Tribunal did not that accept the Applicant’s claims of past harm in relation to an incident in 2000. Although it accepted the Applicant was arrested in 1999, it found that this occurred as part of a general round up of Tamils and that, given it occurred 15 years ago, this did not support the Applicant’s claim to fear harm as a returned asylum seeker. The agreed facts were that the Applicant and his family were not involved with the LTTE, apart from two days training the Applicant undertook in 1999. This is to be contrasted with the circumstance in SZQPA, where the Applicant’s fear was [39]:
…emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.
Accordingly, I find that the Tribunal, having considered the Applicant’s claim, discharged its statutory duty to review.
Failure to Consider Evidence
Counsel for the Applicant did not press the alternative ground that the Tribunal failed to consider a substantial body of evidence. I assume this is because the Applicant’s case was put on the basis that he both made a claim, and gave evidence, that upon return to Sri Lanka as a failed asylum seeker, he would suffer harm during the process of questioning at the airport. This ground appears to derive from the judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, where his Honour said at [111]:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
This opinion of Robertson J was cited with approval by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [68]:
In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.
For the reasons set out above in considering whether the Tribunal considered the Applicant’s claim to fear harm if returned to Sri Lanka, on the basis that he would be interrogated by authorities at the airport, I am satisfied that the Tribunal considered the Applicant’s evidence in support of this claim.
Conclusion
For the reasons set out in this judgment, I am not satisfied that the Tribunal constructively failed to exercise its jurisdiction and, therefore, I find that no jurisdictional error arises on this ground of judicial review.
Accordingly, the application for judicial review is dismissed and the Applicant is ordered to pay the First Respondent’s costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 14 December 2016
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