CVT19 v Minister for Immigration

[2020] FCCA 606

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVT19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 606

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made a jurisdictional error by failing to invite comment from the Applicant under s.473DC of the Migration Act 1958 (Cth) – whether the Authority made a finding of fact that was legally unreasonable – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5H, 5J, 36, 473BA, 473CA, 473CB, 473CC, 473DA, 473DC, 473DD, 476

Applicant: CVT19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1842 of 2019

Judgment of: Judge Street

Hearing date: 17 March 2020

Date of Last Submission: 17 March 2020

Delivered at: Sydney

Delivered on: 17 March 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Lonsdale
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,031.00.

DATE OF ORDER: 17 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1842 of 2019

CVT19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt.7AA of the Act made on 10 July 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprises visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil male from a particular village in the Jaffna district in the Northern Province of Sri Lanka.

3. The applicant arrived in Australia on 13 October 2012 as an unauthorised maritime arrival. On 23 March 2017, the applicant applied for a Safe Haven Enterprise visa.

4. The applicant alleged that he had an uncle who was a supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”) who vanished in 1990.

5. The applicant also alleged that his family was displaced due to civil conflict until they moved into the home of his maternal aunt and uncle’s home in 2001/2002. 

6. The applicant alleged that his maternal uncle encountered an incident with the Sri Lankan Army (“the SLA”) in 2007 and that the maternal uncle and his family have since gone to France.

7. The applicant alleged that he and his brother started to be questioned by authorities about the maternal uncle’s activities and assistance to the LTTE, and that his brother became scared and travelled to France while the applicant engaged the services of an agent to travel overseas. 

8. In early 2008, whilst staying in Colombo, the applicant alleged that the SLA found weapons next to the lodge he was staying in and that the applicant was accused of being involved and arrested. The applicant alleged that he was released after his family paid a bribe for his case to be dismissed. 

9. The applicant alleged that after he was released from jail, another brother, L, became scared, and departed Sri Lanka, and travelled to Switzerland, and the applicant returned to the Jaffna District. The applicant alleged that he had a lot of problems on return to that district with the Sri Lankan Authorities. 

10. The applicant also alleged that in 2012, while he was working with his relative, KK, in a grocery store they co-owned, unidentified individuals demanded money, and the applicant and KK were told that if they did not pay they would be kidnapped. The applicant alleged that since his departure, he has been told that KK is missing. 

11. The applicant also fears harm by reason of white-van abductions, and by reason of his illegal departure and as a failed asylum seeker.

12. In summary, the applicant claimed to fear harm by reason of his ethnicity, actual or imputed political opinion arising from his profile as a young Tamil male from the Northern Province, his past experiences with the Sri Lankan authorities, his familial relations with individuals who supported and/or assisted the LTTE and/or individuals who have sought asylum overseas, his involvement in Australia in Tamil diaspora activities and his illegal departure and return as a failed asylum seeker with actual links and sympathies to the West due to his protracted residence in Australia.

13. On 31 May 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. On 5 June 2019, the Authority wrote to the applicant explaining that his application for visa Safe Haven Enterprise had been referred to the Authority for review. The letter attached a fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions and new information, sent 26 June 2019, that were expressly referred to in the Authority’s reasons. 

14. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application and had regard to the material given under s.473CB of the Act. 

15. The Authority found that the applicant’s submissions, sent 26 June 2019, insofar as they engaged with the Delegate’s decision, did not constitute new information and had regard to the same. 

16. The Authority identified new information that was provided and, on a fair reading of the Authority’s reasons as a whole, took into account the whole of the provisions of s.473DD of the Act in considering whether there were exceptional circumstances to justify considering the new information.

17. The Authority found that there were exceptional circumstances to justify considering an undated video of the applicant purportedly engaging in Tamil diaspora activities in Sydney. However, the Authority found that there were not exceptional circumstances to justify considering an article dated 26 November 2018, a letter dated 25 June 2019, a letter from the wife of KK dated 24 June 2019, or an undated photograph of the grocery store.

18. The Authority summarised the applicant’s claims and identified the relevant law that was also included as a paginated incorporation of applicable law in the Authority’s reasons. 

19. The Authority engaged with the submissions and the alleged explanation for the applicant’s responses to the questions of the Delegate. The Authority did not accept that the applicant’s mental state had any impact on the applicant’s ability to raise issues before the Delegate. 

20. The Authority was not satisfied that the applicant has any ongoing physical, or mental-health conditions or that his capacity to give or present his evidence before the Delegate was affected by his health.

21. The Authority accepted that the applicant’s paternal uncle was a supporter of the LTTE, and vanished in 1990 and that his whereabouts remains unknown. The Authority accepted that the applicant’s knowledge of this incident was noted given his very young age at that time of disappearance. 

22. The Authority accepted that the applicant's family was displaced and that in 2001/2002 they moved to his maternal aunt’s and uncle’s home. The Authority accepted that in 2007 the applicant’s maternal uncle was stopped by the SLA and questioned, and that the maternal uncle became fearful for his safety and departed Sri Lanka.

23. The Authority accepted that the maternal uncle was recognised as a refugee and provided with a residency card in 2009 but did not accept that the maternal uncle and family departed Sri Lanka in 2007 as claimed by the applicant. The Authority, in this regard, referred to the applicant’s claim that after the departure of his maternal uncle the Sri Lankan authorities started to question him and his brother about the maternal uncle’s assistance to the LTTE. 

24. The Authority took into account the age of the brothers at that time, and was prepared to accept that they were harassed and questioned and that this was the basis of one of the brother’s decisions to leave Sri Lanka. The Authority also accepted that that brother left Sri Lanka, and travelled to France and accepted that that brother has also been recognised as a refugee. 

25. The Authority referred to the applicant’s claim that in early 2008 the SLA found weapons hidden in an area next to the lodge where the applicant was staying. The applicant alleged that he was accused of being involved in terrorist activities, that he was arrested and detained at the Criminal Investigation Department (“CID”) and taken to the Magistrates Court and remanded in jail for a further eight days. The applicant alleged that a lawyer was hired because of the seriousness of the charges and that the lawyer managed to bribe the Sri Lankan Authorities involved and that on the day of the hearing, the case was dismissed due to lack of evidence and the applicant was released from jail without payment of bail or reporting conditions. 

26. The Authority accepted that in early 2008 the applicant was arrested and detained by the Sri Lankan Authorities along with two other young Tamils. The Authority accepted that the applicant was taken to the CID where he was processed and questioned. The Authority accepted that the applicant denied any involvement in relation to weapons that were found in the nearby lodge. The Authority accepted that the applicant was presented before the Magistrates Court and that he was ordered to be remanded for a further eight days.

27. In relation to the applicant’s claims regarding dismissal of the charges by the Magistrates Court after payment of a bribe, the Authority considered information in relation to payment of bribes to police and other providers, but was not persuaded that this information, which was published in 2017, nine years after the event, overcame the concerns that the Authority had in relation to this claim. Given the serious natures of the charges and the timing of arrest immediately prior to the civil conflict ending, the Authority was not convinced that the Sri Lankan authorities would dismiss such charges and/or case and release the applicant on the payment of a bribe. In these circumstances, the Authority was satisfied that the applicant was released after eight days without any bail or reporting conditions because the Sri Lankan authorities did not have any evidence suggesting that he was involved in the hiding of the weapons or terrorist activities and did not hold any suspicions about the applicant in relation to this matter. 

28. The Authority accepted that after the applicant’s case was dismissed he was released from jail. The Authority also accepted that the applicant’s brother, L, departed Sri Lanka in May 2008 and travelled to Switzerland and that L has obtained provisional residency in Switzerland. 

29. The Authority referred to the applicant’s claims of having troubles after returning to his home district in 2008. 

30. The Authority was prepared to accept that on a number of unspecified occasions the applicant was harassed, intimidated and questioned about his knowledge and connections with the LTTE. The Authority found that each time the applicant was detained it was for no more than 24 hours before the applicant was released. 

31. The Authority was not satisfied that the applicant’s ability to move around and live like a normal citizen was affected and found the applicant’s submissions to the contrary to be unfounded.

32. The Authority referred to a letter provided by the applicant dated 13 November 2012 and gave the letter no weight. 

33. The Authority referred to the applicant’s claim about events in 2012 in relation to the jointly owned grocery store as being problematic. The Authority found it difficult to accept the applicant’s evidence that, on three separate occasions, in relation to demands for money, the applicant and the co-owner, KK, were able to not pay the money demanded without any apparent consequences when his claims are that during the same period other business owners had been kidnapped. The Authority found the applicant’s responses to the delegate in respect of these aspects of his claim to be superficial and unconvincing and was not persuaded that the applicant was giving evidence indicative of a lived experience. 

34. The Authority accepted that the applicant was the co-owner with his relative, KK, of a grocery store, and that the grocery store is now leased to someone else. However, the Authority was not satisfied that in 2012, unidentified individuals attended the grocery store and demanded money. The Authority was also not satisfied that subsequent to these events KK went missing or that the events were a reason for the applicant making arrangements to leave Sri Lanka. The Authority was not satisfied the applicant has been a truthful witness in respect of these aspects of his claim and found that they had been provided to enhance his claims for protection.

35. The Authority referred to the applicant’s claim of being involved in Tamil diaspora activities since his arrival in Australia, including some activities that have been published on social media including Facebook. The Authority referred to when the applicant first attended particular events, including Remembrance and Martyrs’ Day. The Authority accepted that the applicant participated in the Martyrs’ Day and Remembrance events in 2017, 2018 and 2019. The Authority did not accept that the applicant started to attend these events in 2015, but rather 2017. 

36. The Authority did not accept that since the applicant’s arrival he has shared his views on any other social-medial platforms, or publicly anywhere else or participated in protests against the Sri Lankan authorities. The Authority found that, unlike the applicant’s Facebook activities and attendance at particular events, the applicant had not provided any evidence to substantiate his alleged activities and the Authority was not satisfied that these aspects of his claims were true. 

37. The Authority referred to the applicant’s claims that his activities were the subject of surveillance. The Authority referred to the content of the text message alleged to support the applicant’s claim. The Authority found that it was not satisfied that the text message corroborates the applicant’s claims.

38. The Authority referred to country information in relation to diaspora activities and noted that attendance, alone, was not sufficient to create a real risk, or a reasonable degree of likelihood, that a person will attract adverse attention on return to Sri Lanka.

39. The Authority was not satisfied that the intermittent nature of the diaspora activities, which the Authority accepted that the applicant had engaged in, would lead to the applicant being perceived as a leader or having a significant role or have attracted the attention of Sri Lankan authorities and led them to monitor him or place him under surveillance or hack his Facebook profile. The Authority found that these claims were not true.

40. The Authority was not satisfied that, after the applicant’s departure from Sri Lanka, the Sri Lankan authorities attended the applicant’s family home and sought his whereabouts.

41. The Authority referred to the applicant’s two brothers departing Sri Lanka through the airport at Colombo and travelling to Europe prior to the applicant’s departure from Sri Lanka. The Authority found it difficult to accept that, given their mode of travel and the time that has passed, the Sri Lankan authorities would not have been aware of their departure. In these circumstances, the Authority was not satisfied that the Sri Lankan authorities have questioned the applicant’s mother about his brothers’ whereabouts since his departure.

42. The Authority referred to the applicant sharing publicly various pro-LTTE, pro-Tamil, pro-Tamil separatism and anti-Sri Lankan government material on his Facebook profile. The Authority found that the intermittent nature of the activities would not lead to the applicant being perceived to be a leader or having a significant role or attracting the attention of Sri Lankan authorities. The Authority was not satisfied that, on the basis of the applicant’s activities in Australia after his departure from Sri Lanka, the Sri Lankan authorities attended the applicant’s family home and sought his whereabouts. The Authority was of the view that the applicant had fabricated these claims to enhance his claims for protection.

43. The Authority referred to the applicant’s claim that he would be abducted by a white van. 

44. The Authority referred to country information. 

45. The Authority also referred to the applicant’s claims concerning the then government and absence of reconciliation and alleged improvement for Tamils. The Authority found the applicant’s claims in this regard too speculative to give rise to a real risk of harm to the applicant on return to Sri Lanka. The Authority took into account country information in relation to the government maintaining effective control. 

46. The Authority was not satisfied that the applicant will be perceived to have any actual or imputed profile because of his age, as a Tamil male who resided in the Northern Province or former LTTE-controlled areas. 

47. The Authority referred to the charges brought against the applicant in 2008 having been dismissed and the Authority rejecting the applicant’s claim as to the family having paid a bribe. The Authority found the lack of any subsequent actions by the Sri Lankan authorities suggested that the Sri Lankan Authorities did not hold any serious suspicions about the applicant.

48. The Authority also referred to the applicant’s activities on Facebook and his attendance at events and the rejection of the applicant’s claims that, since his departure, the Sri Lankan authorities had sought his whereabouts from his family’s home. 

49. The Authority did not accept that the applicant would be perceived to have had any role in the LTTE and did not accept that the applicant was on any stop or watch list. 

50. The Authority referred to the applicant’s paternal uncle disappearing 20 years ago and the maternal uncle’s activities 10 years ago.

51. The Authority was not satisfied the applicant’s activities in Australia would attract the attention of the Sri Lankan Authorities on return. 

52. The Authority was not satisfied that the applicant would be viewed as a Tamil activist or someone who seeks to promote Tamil separatism or be perceived to be a threat against the State resulting in a profile of concern to the Sri Lankan Authorities on return. The Authority was not satisfied that the applicant will engage in or have any interest in political groups or similar activities to those which he has engaged in in Australia on return. 

53. The Authority was not satisfied that the applicant would be perceived to have any actual or be imputed with any type of profile arising from his or his family’s past circumstances on return to Sri Lanka.

54. The Authority was not satisfied that the applicant faced a real chance of harm as a Tamil, or because of any actual or imputed pro-LTTE, or pro-Tamil, or pro-Tamil separatism, or anti-Sri Lankan government political opinion on his return to Sri Lanka now or in the reasonably foreseeable future. 

55. The Authority referred to its findings in relation to the applicant not being imputed with any type of profile because of his family’s past circumstances and was not satisfied that the applicant’s fears of being abducted in a white van were credible. 

56. The Authority accepted that the applicant departed Sri Lanka illegally and found that the processing of returnees at the airport is not applied in a discriminatory manner or selectively enforced. 

57. The Authority was not satisfied that any period of detention while the investigations of the applicant, as a returnee, were ongoing would be other than brief. 

1. The Authority was not satisfied that the applicant would be given a custodial sentence.

2. The Authority was not satisfied that any investigation, prosecution, punishment of the applicant upon return would amount to persecution for the purpose of ss 5H(1) and 5J(1) of the Act. 

3. The Authority was not satisfied that the applicant faces a real chance of serious harm by reason of being a failed asylum seeker. 

4. The Authority was not satisfied that the applicant faced a real chance of persecution as a Tamil failed asylum seeker with his background who departed illegally and has spent a prolonged period of time in a western country on his return to Sri Lanka now or in the reasonably foreseeable future. 

5. The Authority found that the applicant did not have a well-founded fear of persecution. 

6. The Authority found that the applicant did not meet the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

7. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.

8. Accordingly, the Authority affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 27 July 2019.

2. On 15 August 2019, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant referred to the new information that was provided concerning the co-owned grocery store with his relative, KK, and a letter being from KK’s wife. The applicant complained that he had not been the subject of any interview in relation to that new information. 

5. The scheme in the statutory provisions under pt.7AA of the Act are the subject of a simplified outline referred to in s.473BA of the Act that identifies the object of the review as a mechanism which is intended to be efficient and quick. The outline also indicates that the Authority does not hold hearings and is required to review the decisions on the papers that are provided to it, except in exceptional circumstances.

6. Section 473CA of the Act requires the Authority to review a fast track reviewable decision as soon as reasonably practicable after the decision was made and s.473CB of the Act identifies review material to be provided by the Secretary. Section 473CC of the Act requires the Authority to review the reviewable decision with one of two outcomes. 

7. Section 473DA of the Act identifies that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the reviews conducted under pt.7AA of the Act. Section 473DB of the Act identifies that, subject to provisions of the Part, the Authority is to conduct the review without accepting or requesting new information and without interviewing the referred applicant.

8. It is apparent from the Authority’s reasons in relation to the new information from paragraph 4 to paragraph 14 read as a whole that the Authority took into account the whole of the statutory provisions. The Authority referred to the content of the letter, which had no other information to verify the author, and to the absence of any substantive detail surrounding KK’s kidnapping, and was not satisfied that the letter was genuine and found that there were not exceptional circumstances to justify considering the new information.

9. On a fair reading of the Authority’s reasons, the Authority engaged in a preliminary assessment of the kind required under s.473DD of the Act in relation to the new information. The reference to the letter not being genuine does not support a claim that the Authority misunderstood its statutory task and was engaged in other than a preliminary assessment of the material, and as required under s.473DD of the Act, in determining whether the criteria under that section were met.

10. The applicant’s complaint in relation to the letter is that the applicant was not invited to comment or to attend an interview. Given the statutory scheme in relation to the review and that the applicant had been invited by letter dated 5 June 2019 to provide submissions and new information, it cannot be said that the absence of an express reference to s.473DC of the Act lacks an evident and intelligible justification. That evident and intelligible justification is the opportunity that had been provided to the applicant to put on new information and submissions. It was for the applicant, pursuant to s.5AAA of the Act, to provide sufficient evidence to establish his claims. 

11. The Authority identified a want of detail in relation to the substance of the letter concerning the kidnapping and the verification of the author. Those matters also provide an evident and intelligible justification of the absence of an express reference to s.473DC of the Act.

12. In these circumstances, no jurisdictional error arises by reason of the applicant’s complaint in respect of the Authority not accepting as new information the letter from KK’s wife.

13. The applicant also put on submissions concerning the Authority’s finding in para 31 of its reasons and suggested that the Authority had misunderstood that the bribe was paid to the judge. There was no such finding that the bribe was paid to the judge. The observation in relation to the payment of the bribe in para 31 of the Authority’s reasons is entirely consistent with the information given by the applicant in his statement where he referred to a bribe paid to the authorities through his lawyer to have the case dismissed. The Authority’s reasons do not identify any misunderstanding of the applicant’s claims and evidence. The applicant’s disagreement with the adverse finding, in substance, reflects a disagreement with the merits. 

14. The Authority provided logical reasons why the Authority did not accept the information provided on behalf of the applicant that was published nine years after the event, and the Authority’s reasons referring to the serious nature of the charges and the timing of the arrest support why the Authority was not satisfied that the charges would be dismissed with mere payment of a bribe. These were logical and rational reasons that were open to the Authority. Accordingly, the applicant’s disagreement with the adverse finding in relation to the bribe does not identify any jurisdictional error. 

15. The applicant referred to the Authority not understanding that he had one brother go to France and one brother go to Switzerland each who had remained in those countries. It is apparent from the Authority’s reasons, as summarised above, that the Authority correctly identified the applicant’s evidence in relation to those two brothers. There is no basis, by reason of the reference to those two brothers, to find that there is any illogicality or unreasonableness in the Authority’s adverse findings in respect of the applicant’s claims.

16. The applicant referred to the festivals that he had attended, and it is apparent that the Authority expressly took those into account. The Authority referred to the applicant’s other Tamil diaspora activities in Australia, and, as referred to above, it is apparent that the Authority took those into account and provided logical, rational reasons in support of the Authority’s adverse findings as summarised above. The applicant’s disagreement with the Authority’s adverse findings, in that regard, invites the Court to engage in merits review. This Court has no power to review the merits. 

17. The applicant also submitted from the bar table that there had, since the determination by the Authority, been a change in government and the position for Tamils. This is not information that was before the Authority and is not capable of giving rise to any error or excess of jurisdiction by the Authority. 

18. Accordingly, nothing said by the applicant from the bar table identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows:

Ground 1

1. The Immigration Assessment Authority (hereinafter referred as "the Authority") made a jurisdictional error by failing to consider inviting or failing to invite comment from the Applicant under s 473DC of the Migration Act 1958 (Cth).

   Particulars:

a. At [paragraph 13] of its decision, the Authority found the letter submitted by the Applicant not to be genuine;

b. As the Authority noted at [paragraph 6] of its decision, the letter was new information which had not been before the Delegate;

c. The Authority did not notify the Applicant that it was minded to find the letter not to be genuine;

d. The Authority did not invite the Applicant to comment on its proposed finding that the letter was not genuine;

e. The Authority, as a matter of legal unreasonableness or procedural fairness, failed to consider inviting or failed to invite comment from the Applicant under s 473DC of the Act: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21], WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [39]).

Ground 2

1. The Authority made a jurisdictional error by making findings of fact for which there were no evidence or which were legally unreasonable.

   Particulars:

a. At paragraph 31 of its decision, the Authority rejected the Applicant's case that charges against him in the Magistrates Court in 2008 had been dismissed because of the payment of a bribe.

b. The Authority further found that, by reason of their seriousness, the Authority was not satisfied that the magistrate would have been susceptible to bribery;

c. The Authority further found that the charges were dismissed for lack of evidence;

d. There was no logically probative evidence before the Authority that the magistrate was not susceptible to a bribe or that the charges had been dismissed for want of evidence: DHKJ 6 v Minister for Immigration and Border Protection [2018] FCA 1353;

e. There was no evident and intelligible justification for the Authority's findings of fact: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10], [82].

Ground 1

1. In relation to ground 1, the Court has already identified reasons why the Court has not accepted that the absence of express reference to consideration of s.473DC of the Act, in relation to the letter from KK’s wife, can be said to lack an evident and intelligible justification. The Court identified that the evident and intelligible justification included the opportunity that the applicant had already been provided by the letter dated 5 June 2019 to put on submissions and new information, and the lack of substantive details surrounding the alleged kidnapping and the absence of information verifying the identity of the author of the letter. There was no legal unreasonableness by the Authority in the absence of express consideration to the exercise of the powers under s.473DC of the Act in the circumstances of the present case.

2. For these reasons and the reasons earlier given, no jurisdictional error as alleged in ground 1 arises. 

Ground 2

1. Ground 2 alleges legal unreasonableness in respect of the Authority’s adverse finding concerning the bribe. For the reasons already given, that adverse finding was open to the Authority and cannot be said to lack in evident and intelligible justification. 

2. In that regard, the Authority referred to the post-dated information being nine years after the event and the concerns that the Authority had, given the serious nature of the charges and the timing. The Authority’s reasons do not suffer from any illogicality, inconsistency or legal unreasonableness. 

3. No jurisdictional error as alleged in ground 2 is made out. 

4. Accordingly, as the application fails to make out any jurisdictional error and as nothing said by the applicant gives rise to any jurisdictional error, the application is dismissed.

I certify that the preceding ninety (90) paragraphs are a true copy of the transcript of published oral reasons for judgement of Judge Street delivered in open Court on 17 March 2020 and the parties were provided with sealed copies of the Court’s orders

Associate: 

Date:  24 April 2020