DIG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1452
•5 September 2019
FEDERAL COURT OF AUSTRALIA
DIG18 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1452
Appeal from: DIG18 v Minister for Home Affairs & Anor [2019] FCCA 450 File number(s): QUD 169 of 2019 Judge(s): COLLIER J Date of judgment: 5 September 2019 Catchwords: MIGRATION – application for protection visa – grounds of appeal lacked merit – no error in decision of primary Judge Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(aa) Cases cited: DIG18 v Minister for Home Affairs & Anor [2019] FCCA 450 Date of hearing: 27 August 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 51 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Clayton Utz Counsel for the First Respondent: A G Psaltis Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
QUD 169 of 2019 BETWEEN: DIG18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
5 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
2.The name of the First Respondent be amended to be Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an appeal from the decision of the Federal Circuit Court in DIG18 v Minister for Home Affairs & Anor [2019] FCCA 450 in which the primary Judge dismissed the appellant’s application for review of a decision of the Immigration Assessment Authority (Authority). In its decision the Authority affirmed the decision of a delegate (delegate) of the Minister for Home Affairs (Minister) to refuse the appellant a Safe Haven Enterprise Visa (visa).
BACKGROUND
The appellant is a citizen of Afghanistan. He arrived in Australia by boat on 8 July 2013. On 31 July 2017 the delegate refused the appellant’s application for the visa on the ground that the appellant would not face a real chance of serious harm or real risk of significant harm anywhere in Afghanistan.
On 3 August 2017 the matter was referred to the Authority.
DECISION OF THE AUTHORITY
The appellant provided submissions, via his migration agent, to the Authority on 24 August 2017. The essence of those submissions was that, in substance, the appellant disagreed with the delegate’s decision. In summary, the Authority did not accept that mere disagreement with the delegate’s decision was a basis to disturb it.
The appellant also referred to relevant country information referable to his claims. The Authority was satisfied that the information could not have been provided at an earlier time and subsequently considered the information, being satisfied that there were ‘exceptional circumstances’ justifying consideration.
At [7] of its reasons, the Authority summarised the applicant’s claims as follows:
•The applicant was born in Iran to Afghan national parents. His father was born in Kandahar and was a Sunni Pashtun who converted to become a Shia Muslim. He passed away when the applicant was very young. The applicant’s mother is a Shia Hazara who was born in Sar-e-Pul and currently resides in Iran.
•The applicant identified himself as a Shia Muslim who has resided in Iran his whole life. He has never been issued with any Iranian refugee cards. He obtained a taskera when he went to Afghanistan for the first time in 2011. This taskera was destroyed on his way to Australia, however in 2013 his step sister who resides in Afghanistan obtained a copy of his taskera. The original of this taskera copy has been submitted in support of his claims and identity.
•His parents left Afghanistan for Iran prior to the applicant’s birth as his father had converted from Sunni to Shia Islam and faced retaliation from the Sunni people in Kandahar where he was residing. The applicant’s paternal uncle was killed for also converting so his parents feared for their safety and left Afghanistan for Iran.
•He has never received any formal education and commenced working when he was nine or ten years old, after his father passed way. He was discriminated against in Iran as he was Afghan. He was also asked for bribes by the police and was only able to obtain low paid casual jobs.
•He did not want to live in Iran anymore so he travelled overland to Turkey and had planned to travel onto Europe. After a few months in Turkey he realised it was very difficult so he approached the Afghan embassy and organised to be returned to Afghanistan. He went to Mazar-e-Sharif where his step sister and brother in law were living. He stayed there for a few months and made arrangements to travel to Australia. He then returned to Iran for a few months before departing Iran for Malaysia, Indonesia and then Australia.
•Since the applicant’s arrival in Australia his brother in law (who resided in Mazer-e-Sharif) was killed in a hit and run however the applicant believes it was purposefully orchestrated by his father’s relatives in retaliation for his father’s religious conversion.
•He fears returning to Afghanistan rom the Taliban and Daesh/Islamic State (IS) as he is a Shia, Hazara, has been living in Australia (a western country) and will be returning as a failed asylum seeker. He fears harm as he will stand out for the way he speaks, dresses and behaves. He also fears harm from his father’s family and others on the basis of his father’s religious conversion and because he has tattoos. He also has scars due to previous suicide attempts. He claims the tattoos and scars are considered to be haram and forbidden in Islam and he will be targeted on this basis.
At paragraphs [8] – [42] of the Authority’s reasons, the Authority considered whether the appellant was a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) (Act). In doing so the Authority considered whether the appellant had a ‘well-founded fear of persecution’ should he be returned to live in Iran or Afghanistan, according to s 5J of the Act.
Section 5H(1) of the Act relevantly provides:
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
(Emphasis added.)
Section 5J of the Act relevantly provides:
5J Meaning of well‑founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
The Authority was willing to conclude that the appellant was an Afghan national and Afghanistan was the appellant’s receiving country. The Authority was also willing to conclude that the appellant had no legal right to return and reside in Iran.
The Authority was not satisfied that the appellant would face any harm on the basis of his father’s religious conversion if he returned to Afghanistan. The Authority also found that there was no evidence in support of the appellant’s claim that his brother-in-law had been targeted by his father’s family in a hit-and-run accident due to his father’s religious conversion, rather, the Authority found the appellant had ‘speculated’ about the cause of the hit-and-run. Consequently the Authority was not prepared to accept that the appellant’s brother-in-law had been killed because of his father’s religious conversion.
The Authority was not satisfied that the appellant had any real or perceived connection to the Afghan government or international community, nor that there was any evidence before the Authority to indicate the appellant would appear wealthier than other Afghans so as to give rise to a problem for him.
In relation to country information, the Authority acknowledged that there had been attacks against Shia Hazaras in parts of Afghanistan, but did not consider that the appellant would have cause to travel to those parts of the country or travel on those particular roads so as to expose himself to danger. The Authority did accept on the basis of the information that that appellant may be subject to some discrimination upon return to Mazar-e-Sharif, specifically in relation to employment, however the Authority was not satisfied that this amounted to ‘a real chance of serious harm’.
With respect to the appellant’s assertion that he would be targeted because of his tattoos and scars, the Authority noted country information that indicated tattoos had become ‘popular’ in Afghanistan and was not presented with country information that indicated the appellant would face harm on the basis of having scars from previous suicide attempts. The Authority further noted that no evidence of the scars or tattoos had been provided.
The Authority also considered country information that indicated there was generally little risk by insurgents to people with low profiles in the cities of Kabul, Mazar-e-Sharif and Herat.
The Authority found that, based on DFAT assessments, returnees from Western countries who maintained a low profile did not face a ‘significantly’ higher risk of violence or discrimination then other people in Afghanistan with a similar ethnic or religious profile. The Authority noted that the appellant had not lived in Mazar-e-Sharif for a long period of time, and that, therefore, there would be limited knowledge of his past.
At paragraphs [43] – [46] the Authority considered whether the appellant satisfied the criteria in s 36(2)(aa) of the Act, entitling him to a complementary protection visa.
Section 36(2)(aa) of the Act relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm;
In relation to s 36(2)(aa) of the Act, the Authority found that, upon return to Mazar-e-Sharif, the appellant may face some societal discrimination however based on the evidence before the Authority, it was not satisfied that this would amount to the applicant facing an arbitrary deprivation of life or would constitute the death penalty or torture. Nor was the Authority satisfied that any such discrimination would amount to cruel or inhuman treatment or punishment or degrading treatment. The Authority was also not satisfied that this treatment would constitute significant harm.
The Authority found that the appellant would not face a real chance of any other harm upon return to Mazar-e-Sharif. Further, the Authority noted that as ‘real chance’ and ‘real risk’ involved the same standard, it was not satisfied that there was a real risk that the appellant would suffer harm, including significant harm, in Mazar-e-Sharif.
The Authority concluded that there were no substantial grounds for finding that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm.
Subsequently the Authority found that the appellant did not meet the requirements of s 36(2)(aa).
Accordingly, the Authority affirmed the delegate’s decision to refuse the visa.
On 27 June 2018, the appellant sought judicial review of the Authority’s decision by way of application to the Federal Circuit Court.
HEARING IN THE FEDERAL CIRCUIT COURT
The appellant raised two grounds of review, being:
(1)That the delegate did not give full regard to the merits of my specific situation and did not thoroughly consider my application.
(2)The delegate failed to take into account relevant factors in my case.
While the grounds referred to errors by the delegate, the matter was conducted on the basis that the reference to the delegate was an error and ought to have been a reference to the Authority. The appellant did not file written submissions in the support of his grounds of review in the Federal Circuit Court, however he did appear in person at the hearing on 13 February 2019.
At [29] of his Honour’s reasons, the primary Judge found that ground 1 of the application for review was ‘without merit’. His Honour held that the Authority closely considered and appropriately addressed the appellant’s claims and did not fail to deal with any claim of relevance addressed to it. His Honour also noted that although the Authority was not obliged to address each and every issue before it, it addressed all of the relevant issues put forward by the appellant. Subsequently his Honour concluded that ground 1 of the application for review, in effect, sought impermissible ‘merits review’ of the findings of the Authority.
Similarly, at [30] of his Honour’s reasons, the primary Judge found that ground 2 of the application for review was ‘without merit’. His Honour held that the appellant failed to particularise this ground. His Honour also held that the Authority had regard to all information before the delegate as well as the appellant’s submissions and additional country information put before the Authority, and did not overlook any relevant issue.
The primary Judge dismissed the appellant’s application for review.
APPEAL TO THE FEDERAL COURT
On 5 March 2019, the appellant filed a notice of appeal in this Court, seeking, inter alia, orders that the decision of the primary Judge in the Federal Circuit Court be set aside and the matter be remitted to the Authority for determination according to law.
The notice of appeal raised two grounds, being:
(1)The Federal Circuit Court erred in making orders dismissing the application for review filed 27 June 2018.
(2)This notice of appeal is filed as a holding notice as the primary Judge is yet to hand down written reasons.
The relief sought by the appellant was as follows:
(1)That the appeal be allowed.
(2)That the orders of the Federal Circuit Court made on 13 February 2019 be set aside and in lieu thereof it be ordered that:
(a)A Constitutional writ be issued to the Authority quashing its decision of 25 May 2019 and directing it to determine the appellant’s application according to law; and
(b)The first respondent before the Federal Circuit Court pay the appellant’s costs of the application to that Court.
(3)The first respondent pay the appellant’s costs of the appeal.
On the day of the hearing there was initially no appearance by the appellant. Mr Psaltis for the Minister informed me that his instructing solicitor had been informed shortly before Court that the appellant was unwell and interstate, and would not be attending the hearing. I directed the Court Officer to telephone the appellant. An interpreter was available, however the appellant dispensed with the services of the interpreter at the hearing, advising the Court that he was capable of understanding and speaking English without the assistance of the interpreter.
Application for adjournment
At the hearing, the appellant made an oral application for the matter to be adjourned. In support of his application, the appellant made submissions to the effect that he was too unwell to continue proceedings, and he needed time to obtain funding for legal representation. He also submitted that he currently resided in Newcastle, New South Wales, and was therefore too far away to attend Court.
The Minister opposed the application on the basis that the appellant had been advised on 28 June 2019 of the hearing date, which was adequate time for the appellant to obtain legal advice.
Upon consideration of the appellant’s oral application, I found it was not appropriate to delay the hearing further. The appellant had sufficient notice of the hearing and offered no compelling reasons as to why the matter should be adjourned. He filed no evidence in support of his claim that he was too unwell for the matter to proceed. Further, while I accept the desirability of legally inexperienced litigants being in a position to engage a lawyer to represent them, and difficulties which can be occasioned to litigants in relation to the associated expense, there is no evidence before me that the appellant had sought to obtain any legal advice or assistance. Finally, I note that the application for an adjournment was made orally, at the time of the substantive hearing and only after the Court had made an effort to be satisfied that the appellant was aware of the conduct of the proceedings.
The oral application for adjournment was refused.
Submissions of the parties
The appellant did not file written submissions in support of his grounds of appeal in this Court. I invited the appellant to make oral submissions in support of his appeal. The appellant submitted that the primary Judge failed to provide the appellant an opportunity to be heard during the hearing at the Federal Circuit Court.
The Minister opposed the appeal on the basis that, in circumstances where the Authority’s decision was careful, thorough and took into account all relevant material, it could not be said that the primary Judge erred in dismissing the appellant’s application for judicial review.
Further case management hearing
I note there was a further case management hearing listed on 3 September 2019, following the hearing on 27 August 2019. The reason for the case management was to correct the Court record with respect of the first respondent’s submission that “the only communication the First Respondent had received to indicate the Appellant was unable to appear” was a text message from the Appellant at 9.58 am on the day of the hearing. Since the conclusion of the hearing, the legal representative for the first respondent became aware that the appellant had tried to contact the first respondent on 22 August 2019.
The information provided to me at the case management hearing on 3 September 2019 does not change my findings in respect of the adjournment of the appeal hearing or the outcome of the appeal itself.
CONSIDERATION OF SUBSTANTIVE APPEAL
The second ground of appeal before me simply states that the appellant was awaiting the delivery by the primary Judge of written reasons. However as I observed to the appellant during the hearing, it is apparent that his Honour gave judgment orally on 13 February 2019, written reasons were made available by his Honour on 26 February 2019, and the appellant’s notice of appeal to this Court was filed on 5 March 2019. Accordingly, the second ground of appeal does not make sense – written reasons had been given some time before the notice of appeal was filed. The appellant did not demur from this observation. In my view, the second ground of appeal lacks merit.
In relation to the first ground of appeal the appellant does not particularise any errors of either the primary Judge or the Authority.
Having regard to the grounds of review before the primary Judge, I consider his Honour was correct to find that the first ground (to the extent that it referred to a failure by the Authority to properly consider the appellant’s claims) had no merit in circumstances where:
·The Authority gave detailed consideration to each of the appellant’s claims and provided reasons for dismissing them,
·The Authority accepted facts in the appellant’s favour notwithstanding the absence of supportive documentation;
·The Authority considered all material submitted to it; and
·The conclusions of the Authority were open to it on the material before it.
The second ground of review before the primary Judge raised the question whether the Authority had regard to all information which was before the delegate, as well as further submissions and country information the appellant had put before it.
Materially in its reasons the Authority said:
4.On 24 August 2017, the IAA received a submission from the applicant. Contained in this submission was discussion as to why the applicant does not agree with the delegate's decision. I consider this discussion to be argument rather than information and have had regard to it.
5.Contained in these submissions was also country information in relation to the applicant's claims. It post-dates the delegate's decision. I am satisfied it could not have been provided earlier. The country information is relevant to the applicant's claims and given its recent information about the situation in Afghanistan, I am satisfied there are exceptional circumstances to justify considering the information.
This comment appears to relate to the following written submission of the appellant:
NEW COUNTRY INFORMATION
We also submit new country information which refutes the delegate's findings that [the appellant] would not face harm in Kabul, or in Mazar e Sharif, or in transit between the two locations due to his ethnicity, religion or imputed political opinion. We refer here to the recent massacre on 5th August 2017 in Mirza Olang Valley in the northern Sar-e-Pul province of Afghanistan in which over 50 ethnic Hazara villagers were massacred by Taliban and IS militants.
The New York Times reported:
“Dozens of civilians and militia forces were killed in northern Afghanistan in what officials on Sunday described as an attack by Taliban fighters teamed up with a commander claiming allegiance to the Islamic State. If true, the open cooperation between the militant groups, which have sometimes fought turf battles in the past, could be further trouble for the struggling Afghan government.”
Furthermore, the New York Times reported:
Sayad district, in northern Sar-e-Pul province, had put up a fierce defense over the past two years against attacks by insurgents as other parts of the province seemed to be buckling under Taliban pressure.
…
“One of the things we are concerned about here in Afghanistan, the reason we think that the entire world needs to be focused on Afghanistan, is the potential for convergence among the various terrorist groups in this area,” Gen. John W Nicholson Jr, the commander of NATO and American forces in Afghanistan, said at a news conference in April.
Such information directly contradicts the delegate's findings that the applicant could safely return to Kabul and travel to … Mazar-e-Sharif or … Sar-e-Pul.
Geographically, Mirza Olang appeared to be serving as a "buffer" for Sar-e-Pul, which is now predicted to be at serious risk of being attacked by anti-government entities. It is noted that most of the surrounding villages are already under Taliban control.
In the past month alone since the delegate's decision has been made, Afghanistan has witnessed numerous other targeted attacks against its Shia Muslim minority, including an IS suicide bomber in Herat attacking a Shiite mosque during evening prayer resulting in the deaths of at least 37 people.
We submit that the authorities in Afghanistan are unable or unwilling to protect the applicant.
…
(Footnotes omitted.)
The Authority wrote at length in particular about available country information concerning Mazar-e-Sharif and Sar-e-Pul. While so far as I can identify there is no specific mention by the Authority of the events of August 2017 in Mirza Olang Valley in the northern Sar-e-Pul province of Afghanistan, I also note the following comments of the Authority:
23. As stated above, I have found the applicant would likely return to Mazar-e-Sharif upon return to Afghanistan. I have taken into account the country information before me, including that submitted by the applicant to the delegate in a post-interview submission and the submission to the IAA.
24. The United Kingdom (UK) Home Office report in 2015, cited the UNHCR Eligibility Guidelines for Assessing the International Protection Needs for Asylum Seekers, dated 2013 which states that anti-government elements, including the Taliban and other militant groups are reported to systematically target civilians who are associated with or who are perceived to be supporting the Afghan government and the international community in Afghanistan. Among the primary targets are national and local political leaders, government officials, teachers and other civil servants, off-duty police officers, tribal elders, religious leaders, women in the public sphere, civilians accused of spying for pro-government forces, human rights activists, humanitarian and development workers, construction works and persons supporting the peace process. The applicant does not fall into any of these categories.
25. … DFAT in 2015 reported that all ethnic groups are subject to a high risk of violence from anti-government elements, but no particular group is systematically targeted solely on the basis of ethnicity. … DFAT has no evidence to suggest that Hazaras are systematically targeted in these attacks on the basis of their ethnicity alone.
26. In 2016, DFAT reported that the frequency of attacks against Hazaras has increased and that the security situation for Hazaras remains fluid but they have also reported that people from all ethnic groups are at risk of violence from anti-government elements, but no particular group is systematically targeted solely on the basis of ethnicity, although it may be a contributing factor. However, the same report also indicates that insurgent groups typically target people associated with the government and the international community or those who appear wealthier than other Afghans. I also note that Hazaras have not been systematically targeted in Mazar-e-Sharif where the applicant will be returning to.
At [28] of its reasons, the Authority observed some attacks which took place in Mazar-e-Sharif, however these attacks were targeted towards government officials or sympathisers, or foreign officials. At [29] of its reasons, the Authority acknowledged attacks against Shia Hazaras within parts of Afghanistan, but noted that “looking at the applicant’s circumstances, he will have no cause to travel to these parts of Afghanistan or travel on those particular roads”. Notably, at [32] of its reasons, the Authority stated:
32. EASO in 2016 reported that Islamic State (IS) has recently infiltrated the Afghan insurgent scene and they have been reported to have a presence in Balkh Province, however in the southern districts and not in Mazar-e-Sharif, where the applicant will be returning to. UNAMA reported attacks which IS have claimed responsibility for in the Balkh province. There were two incidents in Sar-e-Pul in the first six months of 2016 resulting in the abduction of 36 Hazaras in total. The same report indicates that the abducted civilians were all released by June. I note that these attacks did not target Shia Hazaras in Mazar-e-Sharif and there is no indication in the information before me that IS presence will expand into Mazar-e-Sharif now or in the reasonably foreseeable future. I am not satisfied the applicant will face a real chance of harm from IS on the basis of his ethnicity or religion, nor or in the reasonably foreseeable future.
I am satisfied that the Authority had regard to the additional country information which the appellant sought to bring to its attention, however found that the appellant was not a person in respect of whom Australia had protection obligations. His Honour made the same finding at [30] of the primary judgment. No appellable error in the reasoning of the primary Judge is apparent.
CONCLUSION
The grounds of appeal before the Court are not substantiated. The appeal should be dismissed with costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 5 September 2019
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