CUX18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 8

Federal Circuit and Family Court of Australia

(DIVISION 2)

CUX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 8

File number(s):

SYG 1510 of 2018

Judgment of:

JUDGE LAING

Date of judgment:

17 January 2023

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa – whether the Tribunal’s reasoning was illogical or unreasonable – whether the Tribunal failed to consider the risk of harm to the applicant in Iraq into the reasonably foreseeable future – whether a claim that the applicant may face persecution as a Shia Muslim clearly arose but was not considered under the refugee criterion – jurisdictional error established.

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

AOJ18 v Minister for Home Affairs [2018] FCAFC 220

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175

DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 95 ALJR 352

ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; (2021) 283 FCR 164

Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423

Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [20024] FCAFC 263; (2004) 144 FCR 1

Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200

SZCNG v Minister for Immigration & Anor [2006] FMCA 505

SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214

SZVFH v Minister for Immigration and Border Protection [2017] FCA 909

Truong v Minister for Immigration and Border Protection [2014] FCA 1312

Division:

Division 2 General Federal Law

Number of paragraphs:

47

Date of hearing:

21 November 2022

Place:

Sydney

Counsel for the Applicant:

Mr B Zipser

Solicitor for the Applicant:

Alkafaji Lawyers Pty Ltd

Counsel for the First Respondent:

Ms K Hooper

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

SYG 1510 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CUX18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	17 January 2023

THE COURT ORDERS THAT:

1.A writ of certiorari issue, quashing the decision of the second respondent dated 1 May 2018 in case number 1601100.

2.A writ of mandamus issue directing the second respondent to determine the applicant’s application for review according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Iraq.

3. The applicant was refused a visitor visa in February 2014. Review was sought of that decision by the (then) Migration Review Tribunal and the matter was remitted in September 2014.

4. The applicant was granted the visitor visa on 11 June 2015, arriving in Australia on 25 June 2015.

5. On 28 or 29 July 2015, the applicant lodged an application for a protection visa. The Delegate refused the application on 21 January 2016.

6. On 1 February 2016, the applicant sought review by the Tribunal. The applicant attended a hearing before the Tribunal on 29 March 2018 with the assistance of an Arabic interpreter.

7. On 1 May 2018, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

8. The Tribunal found that the applicant was not a reliable, credible or truthful witness. It found that he had fabricated his claims in order to be granted a protection visa (at [62]).

9. The Tribunal did not accept that the applicant had any relationship with the Iraqi Communist Party (ICP). It observed that the only evidence he had provided of this other than his oral testimony was a letter purportedly from the Thi Qar branch. This document was given little weight due to the lateness of its submission and because it could easily have been produced on any computer. The Tribunal found the applicant’s oral testimony to be vague and unconvincing. As the Tribunal did not accept that the applicant had any relationship, or was perceived to have had any relationship, with the ICP, it did not accept that he was detained, attacked, threatened or otherwise faced the issues that he had claimed on this account (at [63] to [67]).

10. The Tribunal did not accept that the applicant was or would be perceived to be an atheist. The Tribunal considered that the applicant had been inconsistent and evasive when questioned about his religious identity. Whilst he had claimed during interview that he was not a Muslim, he had described himself as Shia Muslim in his protection visa application. At the hearing before the Tribunal, the applicant had initially claimed the information in that application was correct. The applicant had also claimed to have had two wives, which country information indicated was a practice only available to Muslims (at [68] to [70]).

11. The Tribunal did not accept that the applicant was attacked and nearly executed by a group of men in February 2015. This serious claim was not mentioned in his original visa application.  The Tribunal considered the account given of it to be implausible, in circumstances where the attack appeared to have been planned with knowledge of the applicant’s identity and yet the applicant claimed that he was spared at the last moment when his identity (and in particular his relationship with his father) was raised. The Tribunal also considered the timing of this event and the claimed attack two days later on his home to be “extremely coincidental”, occurring around the time that the applicant was contemplating travel to Australia (at [71] to [75]).

12. At [76] to [79], the Tribunal reasoned:

    76. I do not accept that the applicant’s brother was confronted by armed elements in Iraq in the mistaken belief he was the applicant, during a holiday there in 2017. He never reported the incident to police, nor to the Australian embassy so the claim is entirely reliant on his oral testimony. I place little weight on his oral testimony given he has sponsored the applicant’s original visitor’s visa and, as the applicant’s brother is not an objective witness.

    77. I have also had concerns regarding the accuracy of evidence the brother gave regarding non-Muslims also taking two wives in Iraq. As noted previously (para 68), he did not provide any country information to support this claim, was unable to name the non-Muslim groups that did this, and the relevant Iraqi Law confines this practice to Muslims. This impacts on my view of the brother’s credibility.

    78. I also do not accept that the applicant’s family have had to slow down their business to avoid confrontation with the militia. Because I do not accept that the militia are interested in the applicant it follows that they are not interested in his family. The fact that they have remained in Nassiriyyah and the applicant’s brother left Australia to visit them in Iraq in 2017 supports this view.

    79. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

13. In considering the applicant’s claims against the complementary protection criterion, the Tribunal reasoned (at [80] to [82]) (footnote omitted):

    80. Because I do not accept that the that the applicant was ever a supporter of the ICP or perceived to be one, atheist or perceived to be so, was ever threatened verbally or physically by militia groups, had his attacked by them, or that his brother was approached by militia groups in Iraq in the mistaken belief he was the applicant, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

    81. While I accept that the security situation has been unstable in parts of Iraq, I am not satisfied that this alone constitutes a real risk of significant harm. Islamic State has been essentially defeated and Iraqi government control reasserted over those areas it held.² The applicant’s family has remained in the same area in Nassiriyyah and the brother voluntarily left Australia to visit family there in 2017, also stating under oath that Nassiriyyah is normally quiet. I am satisfied that, given the effective defeat of Islamic State and the fact that the applicants family lives without incident in Nassiriyyah and the brother felt it safe enough to visit there in 2017, that the applicant would be able to return and live safely in Iraq. He also has significant financial assets at his disposal so will be able to live a more than comfortable lifestyle.

    82. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

14. On the basis of the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [83] to [86]).

    proceedings before this court

15. The applicant commenced the current proceedings by application filed on 30 May 2018. The applicant ultimately relied upon an amended application filed on 1 November 2022 containing the following grounds of judicial review:

    Ground 1: The applicant's brother B gave evidence to the Tribunal of an occasion in April 2017 on which he was confronted by armed elements in Iraq in the mistaken belief he was the applicant. The Tribunal at [76] stated that it would "place little weight on [B's] oral testimony given he has sponsored the applicant's original visitor visa and as the applicant's brother is not an objective witness". The reasoning process by which the Tribunal placed little weight on B's evidence was illogical or legally unreasonable in a manner which involved jurisdictional error.

    Ground 2: In considering whether the applicant satisfied the complementary protection criterion for a protection visa in s 36(2)(aa) of the Migration Act, the Tribunal at [82], based on reasons at [81], was not satisfied that "there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm". The Tribunal's reasons at [81] indicate that the Tribunal, in considering the complementary protection criterion, did not have regard to the reasonably foreseeable future or the consequences for the applicant in the reasonably foreseeable future. This was a jurisdictional error.

    Ground 3: in his origination application, the applicant put the following ground:

    "On l May 2018 I attended a hearing before the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed the delegate's decision not to grant my protection visa subclass XA-866. I believe that the Tribunal fell into jurisdictional error in making its decision.

    I am an Iraqi citizen. As recorded by the Administrative Appeals Tribunal ("the AAT") in paragraph 81 of its decision, "the security situation has been unstable in parts of Iraq". The AAT, in considering my claims for a protection visa on complementary protection grounds, considered my claim arising from the unstable security situation in Iraq. However, the AAT, in considering my claim for a protection visa under the 'refugee' criterion, did not consider my claim arising from the unstable security situation in Iraq. The AAT thereby failed to consider a claim which arose on the materials before it, which is a jurisdictional error.

    Ground 1

16. Ground 1 as pleaded contended that it was illogical or unreasonable for the Tribunal to place little weight on B’s evidence for reasons including that B was the applicant’s brother, and had sponsored his visitor visa application.

17. In support of the ground, Mr Zipser for the applicant referred to the following circumstances in which the authorities indicate that a finding may be found to be irrational, illogical or unreasonable:

    (a)if the finding of fact lacks an evident and intelligible justification: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486 at [48]; Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [61];

    (b)“if there is no logical connection between the evidence and the inferences or conclusions drawn”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135];

    (c)if there is no “rational or probative evidence to support” the finding, or the finding is “made without any probative foundation” or “without any material to found” it: see Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 at [44]-[47]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(2)]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31];

    (d)if the finding of fact is not “based upon facts having logical and probative weight”: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (253 FCR 496) at [41]; or

    (e)if the finding of fact is “simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support [the finding] and all evidence to the contrary to a reasonable decision-maker”: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 at [45].

18. At the hearing of the matter, Mr Zipser advised that his client did not press the argument that the Tribunal’s reasoning miscarried on account of limited weight being accorded to the applicant’s brother’s evidence due to their familial relationship. This was sensible, and followed Ms Hooper for the Minister drawing attention to cases such as SZVFH v Minister for Immigration and Border Protection [2017] FCA 909 at [13a], [21], [24]; Truong v Minister for Immigration and Border Protection [2014] FCA 1312 at [88]; and SZCNG v Minister for Immigration & Anor [2006] FMCA 505 at [73]-[75].

19. However, Mr Zipser submitted that it was not open to the Tribunal to place limited weight on the brother’s evidence due to his sponsorship of the applicant’s earlier visa application. The fact that someone sponsored an application, it was submitted, did not rationally indicate that they were non-objective or untruthful.

20. The reasons given by the Tribunal for affording limited weight to the brother’s evidence at [76] to [77] are set out in full above. As Ms Hooper submitted, there were three concerns identified at [76], namely:

    (a)an absence of corroboration;

    (b)the brother’s familial relationship with the applicant; and

    (c)the brother’s sponsorship of the applicant’s earlier visa application.

21. At [77], the Tribunal also took issue with the credibility of the brother’s evidence regarding marriage practices in Iraq.

22. I consider that it was open to the Tribunal to place limited weight upon the brother’s evidence for reasons including his previous sponsorship of the applicant’s earlier visa application. Like the brother’s familial relationship with the applicant, this evidence was capable of supporting an inference that the brother was motivated towards supporting the applicant’s visa situation (and was therefore not necessarily entirely objective or independent). When considered together with the familial relationship and other reasons given by the Tribunal, I consider that this was logically, rationally and reasonably capable of supporting the Tribunal’s decision to give the brother’s evidence limited weight.

23. It is therefore unnecessary for me to determine Ms Hooper’s alternative submission, which was that there was material capable of indicating that the brother sponsored the applicant for a visa requiring temporary residence in Australia (and gave associated undertakings) in consciousness that the applicant may pursue a protection visa. There is no suggestion in [76]-[77] that the Tribunal relied upon such reasoning. I find the more likely inference is that the Tribunal considered the brother’s previous support of the applicant to be relevant in a similar manner to his familial relationship i.e. in demonstrating that the brother may be motivated to assist the applicant and therefore not be entirely objective.

24. For the above reasons, ground 1 is unable to succeed.

    Ground 2

25. Ground 2 contended that that the Tribunal failed to consider the risk of harm to the applicant in Iraq into the reasonably foreseeable future.

26. The paragraphs with which the applicant took issue in this regard, at [81]-[82] of the Tribunal’s decision, are set out above. Mr Zipser submitted that the material before the Tribunal indicated that the situation in Iraq was unstable and had been unstable for a number of years, observing in written submissions that:

    a)The delegate’s decision in January 2016 at CB 94-95 refers to the unstable security situation in parts of Iraq at the time.

    b)The Tribunal’s findings at [81] commence with an acceptance (in May 2018) that “the security situation has been unstable in parts of Iraq”.

    c)The 2017 DFAT Report (which the Tribunal at [8] stated it “has taken account of”) at [2.33] stated that “overall, the security situation in Iraq ... is fragile and susceptible to rapid and serious deterioration with large-scale conflict in some areas”, and at [4.5] referred to “the deteriorating security and economic situation in Iraq”.

27. Despite this, Mr Zipser submitted that the language used by the Tribunal at [81] indicated that the Tribunal was focussed on the recent past and present, and did not have regard to the reasonably foreseeable future. In particular, Mr Zipser suggested that the Tribunal ought to have also expressly considered the risks to the applicant of:

    (a)another Sunni militia group arising to create a destabilising force in Iraq;

    (b)further intra-Shia militia group conflicts destabilising the security situation in southern Iraq; and/or

    (c)a deterioration in the security situation in southern Iraq.

1. I do not accept that the Tribunal was obliged to reason in this manner. I accept Ms Hooper’s submission that the Tribunal’s reasoning at [80]-[82] and [84] addressed the relevant statutory criterion and demonstrates that it engaged in a prospective assessment in correct application of the law: see DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 95 ALJR 352 at [13].

2. The Tribunal expressed at [82] that it had assessed whether there were “substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm” (emphasis added). This was the correct statutory test.

3. The Tribunal acknowledged at [81] that the situation in parts of Iraq had been unstable (and therefore, implicitly, subject to change). The Tribunal was not, however, satisfied that this gave rise to a real risk of significant harm as, inter alia, a “foreseeable consequence” of the applicant’s removal (at [81]-[82]). This was having regard to recent country information (that post-dated the DFAT report) as well as the circumstances of the applicant and his family.

4. It follows that ground 2 is unable to succeed.

   Ground 3

5. Ground 3, as pleaded, contended that the Tribunal did not consider the applicant’s claims arising from the security situation in Iraq under the refugee criterion (as distinct from the complementary protection criterion). In written and oral submissions, Mr Zipser clarified the ground to explain that the applicant contended that a claim that he faced persecution as a Shia Muslim in Thi Qar clearly arose on the materials and that the Tribunal failed to consider this against s 36(2)(a) of the Migration Act 1958 (Cth) (Act).

6. In support of the ground, Mr Zipser referred to AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503, which provided the following summary of principles regarding when a claim may be said to ‘clearly arise’ (at [18]):

   (a)such a finding is not to be made lightly (NABE at [68]);

   (b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

   (c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38]))…

   (d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

   (e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

7. Mr Zipser submitted that a claim that he faced persecution as a Shia Muslim in Thi Qar clearly arose in circumstances where:

   (a)it had been considered by the Delegate;

   (b)the Tribunal assessed whether the applicant faced a real chance of significant harm by reference to the security situation in Thi Qar under the complementary protection limb; and

   (c)there was country information before the Tribunal indicating risks of harm to Shias in respect of which the distinction between the definitions of serious and significant harm was potentially relevant.

8. I accept this. The formulation of the claim by reference to the applicant’s religion provided a relevant Convention nexus. The fact that the Delegate considered, and found, that such a claim (referable to s 36(2)(a) of the Act) arose from the materials is “significant” in determining whether an unarticulated claim clearly emerged: see ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; (2021) 283 FCR 164 (ESQ18) at [68]-[72].

9. At CB 94, the Delegate stated in the present case:

   I have accepted that the applicant is a Shia Muslim from Thi Qar, Nasiriyah. Given the general country reports on Iraq, an assessment of whether or not the applicant could face persecution because he is a male Shia Muslim from Thi Qar, Nasiriyah should be assessed.

10. The Delegate went on to consider this claim against country information, including recorded attacks in predominately Shia areas and information indicating that Shias Muslims without any particular profile were not “likely” to face targeted harm in areas such as Thi Qar. Ultimately, the Delegate concluded that the risk of the applicant facing serious harm in Thi Qar was remote.

11. The Tribunal did not dispute that attacks against Shias, in Shia dominated areas, had occurred. The Tribunal expressed that it had taken into account relevant DFAT information (at [8]) from which it had apparently accepted that the security situation had “been unstable in parts of Iraq” (at [81]). The Tribunal accepted that the applicant was a citizen of Iraq and appears to have proceeded on the basis that he was a Shia Muslim from the area he had claimed (at [68]-[70] and [81]). Whilst the applicant was assisted before the Tribunal by a migration agent, they put limited material before the Tribunal. They did so in a context where the Delegate had considered the claim in issue to arise and considered it against available country information.

12. For the Minister, Ms Hooper suggested that the present case was distinguishable from ESQ18. In particular, Ms Hooper observed that the applicant appeared by the time of the Tribunal hearing to have moved away from any claim to be a Shia Muslim, claiming instead to be an atheist. I accept that the applicant’s express claims included a claim that he was no longer a Muslim by the time of the Tribunal hearing. However, that claim was rejected by the Tribunal (at [68]-[70]). The Minister accepted at hearing that the Tribunal therefore proceeded on the basis that the applicant was a Shia Muslim. Claims that the Tribunal was obliged to consider which “clearly arose” included those that arose in consequence of (inter alia) its own findings: AYY17 at [26].

13. Ms Hooper submitted that even if the claim relevantly arose, any error in this regard was immaterial and therefore non-jurisdictional. Ms Hooper observed that the Tribunal found at [81] that “the applicant would be able to return and live safely in Iraq”. This followed the Tribunal’s consideration of country information regarding the essential defeat of the Islamic State as well as the applicant’s personal circumstances. Ms Hooper therefore submitted that the distinction between serious and significant harm was not material to how the Tribunal reasoned in the present case.

14. There is some force to this argument. However, on balance, I accept Mr Zipser’s submission that the Tribunal’s assessment that the applicant could “live safely” at [81] was influenced by the context in which it was made i.e. in assessing whether the applicant may face a real risk of significant harm. This was the risk to the applicant’s safety with which the Tribunal was concerned at [81]. As Mr Zipser emphasised, and Ms Hooper accepted, the tests for serious harm and significant harm are not identical and potentially give rise to different considerations depending on the circumstances.

15. Two examples were given by Mr Zipser as to where the respective tests may conceivably have differential application; namely, where there is evidence of risks regarding (a) robbery and/or (b) extortion.

16. In this regard, Mr Zipser observed that there was country information before the Tribunal in the form of a DFAT Country Information Report (Iraq, 26 June 2017) indicating (at [3.33]) that there may be some risk for those in predominately Shia areas being caught up in intra-Shia violence due to being perceived as part of a Shia militia or a tribal group’s constituency. Such potential issues were indicated to include criminal activities including, specifically, robberies.

17. The Tribunal did not conclude, when assessing the risk to the applicant under complementary protection, that there was no real risk to the applicant of any type of harm in the foreseeable future as a Shia Muslim from Thi Qar, Nasiriyah. Instead, the Tribunal concluded that there was no real risk of the applicant facing significant harm.

18. Whilst there does not appear to have been a strong prospect of the outcome being different had the Tribunal also assessed the claim against the concept of serious harm under the refugee criterion, I accept Mr Zipser’s submission that this was possible. Having regard to the threshold for materiality discussed in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, I therefore accept that materiality has been established.

    CONCLUSION

19. As jurisdictional error has been demonstrated, the application before this Court succeeds.

20. I will hear from the parties in relation to costs.

48          I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated: 17 January 2023