DLH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DLH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 165   

File number(s):	SYG 2430 of 2017
Judgment of:	JUDGE EGAN
Date of judgment:	11 March 2022
Catchwords:	MIGRATION – application for protection visas – the failure on the part of the Authority to consider new information was immaterial and did not constitute jurisdictional error - no failure on the part of the Authority to properly assess the applicants’ claims – Authority did not act in a legally unreasonable way – no jurisdictional error established – application dismissed
Legislation:	Migration Act 1958 (Cth) ss. 473 CB and 473DD.
Cases cited:	MZAPC vMinister for Immigration and Border Protection (2021) 95 ALJR 441.  CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Division:	Division 2 General Federal Law
Number of paragraphs:	22
Date of last submission/s:	2 March 2022
Date of hearing:	10 March 2022
Counsel for the Applicants:	Mr G Fredricks
Solicitor for the Applicants:	McCabes Lawyers
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor
Second Respondent:	Submitting appearance save as to costs

ORDERS

SYG 2430 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DLH17

First Applicant

DLK17

Second Applicant

DLN17 (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	11 MARCH 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The Amended Application for Review filed on 27 November 2017 be dismissed.

3.The First Applicant and the Second Applicant pay the Respondents’ costs of and incidental to the Amended Application for Review, fixed in the amount of $7,206.00.

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 EGAN

Introduction

1. The first applicant and the second applicant are citizens of Iraq. The third, fourth, fifth and sixth applicants are their children.

2. Protection Visa applications had been made on behalf of each of the applicants.

3. On 15 March 2017, a delegate of the Minister refused to grant the visas on the ground that the applicants did not face a real chance of persecution, or a real risk of significant harm, should they be returned to Iraq.

4. The refusal decision was referred to the Immigration Assessment Authority (the Authority) for its review.

5. On 13 July 2017, the Authority affirmed the decision of the delegate.

6. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provision of s. 473 CB of the Migration Act 1958 (Cth) (the Act).

7. At [9] of its reasons, the relevant claims of the first applicant and the second applicant for protection were summarised as follows:

   •The applicant husband had been employed making sweets like baklava while he was studying. He did not have that as a full-time job in Iraq. He was also not able to secure a job as a teacher, once he had completed his studies. After the invasion in 2003 his brother [name omitted] was driving a truck. As the applicant husband could not get any work, [name omitted] would ask him to come along and help with his transport work. It was on a casual basis: the applicant husband might work three days in a week or there might not be any work for two weeks. The applicant husband did this for about two years, from mid-2006 to June 2008. They (the applicant husband and [name omitted]) would pick up the goods from Baghdad Airport and deliver to the US bases between al Kut and Hillah. The applicant husband did not have the permits to enter the US base she would wait at the reception point while [name omitted] completed the deliveries. [Name omitted] would pay him cash at the end of the day. The applicant husband had no paperwork;

   •In June 2008 [name omitted] was shot and killed while driving between Baghdad and Karbala. No group claimed responsibility for his death. There were no witnesses. The reason for the killing had to be due to his work with the Americans, there was no other reason for him to be targeted;

   •Around ten days after this the applicant first child, who was then about six, was playing in the street with the neighbourhood children when two men came up on a motorcycle and tried to kidnap him. Due to his struggles and the poor and uneven surface of the road the motorcycle fell to the ground and the applicant first child was able to escape, with the assistance of neighbours. The kidnappers fled;

   •Another ten or so days after this, someone threw a grenade into the front yard of the family home. There was some damage to the garden but not to the house or any of the occupants. The applicant husband concluded that this event and the kidnap attempt were related to the work he had done with [name omitted]. He was considered to be an agent of the Americans and would be killed, like his brother. He had never previously had any troubles, due to being a Shia in Karbala or any other reason. The applicants fled to Syria;

   •Prior to their departure the they had lived in the family home with the applicant husband’s mother and three of his brothers. There were no further attacks on the family home after they left;

   •The applicant husband came back to Karbarla for a few days prior to 2012 in order to renew their passports. He did not stay in the family home, but with friends and relations elsewhere;

   •In 2013 shots were fired into the apartment of his brother [name omitted], born 1961. [name omitted] and his family fled to Turkey but [name omitted] passed away the following year due to illness. His wife and children returned to Iraq. The applicant husband's other brother, [name omitted] (born 1984) had also worked for the Americans, as an interpreter. After the shooting at [name omitted]’s apartment he became concerned for his own safety and also left for Turkey, but he could not afford to stay and returned to Karbala.

   Grounds of Review

8. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 27 November 2017, the grounds of which were as follows:

   “1.The Second Respondent committed a jurisdictional error in failing to consider all of the new information provided by the First Applicant and in determining that there were no exceptional circumstances in existence to justify considering the information pursuant to section 473DD of the Migration Act 1958 (the Act).

   Particulars

   (i)The Second Respondent did not properly construe and apply the requirements of section 473DD of the Act.

   (ii)The Second Respondent did not separately consider or make any finding with respect to each of the subsections of 473DD of the Act.

   (iii)The construction by the Second Respondent of “exceptional circumstances” was too narrow in that the Second Respondent only considered whether the new information could have been provided prior to the delegate making her decision.

   2.In making that finding that the First Applicant did not meet the requirements of section 5H(1) of the Act and section 36(2)(a) of the Act, the Second Respondent committed jurisdictional error by misconstruing relevant evidence in finding that the First Applicant is not a person outside their country of nationality and is not a person of well-founded fear of persecution.

   Particulars

   (i)the Second Respondent erred in relying upon minor differences in the accounts of the First Applicant and Second Applicant, as to an explosive device being thrown at their home, in the finding of the Second Respondent that this event did not occur.

   3.In making that finding that the First Applicant did not meet the requirements of section 5H(1) of the Act and section 36(2)(a) of the Act, the Second Respondent committed jurisdictional error by not having regard to relevant evidence in finding that the First Applicant is not a person outside their country of nationality and is not a person of well-founded fear of persecution.

   Particulars

   (i)the Second Respondent considered each of the events relied upon by the First Applicant in isolation and did not consider whether such events when taken together constituted a basis for finding that the First Applicant had a well-founded fear of prosecution.

   4.Consequently, the Second Respondent committed jurisdictional error in making the finding that the Second Applicant, Third Applicant, Fourth Applicant, Fifth Applicant and Sixth Applicant do not meet the criteria of section 36(2)(b)(i) or section 36(2)(c)(i) of the Act.

9. As to Ground 1 of the Amended Application for Review, it was conceded by Counsel for the first respondent that the Authority had failed to consider the provision to it of new information pursuant to its obligation to do so under s. 473DD(b)(ii) of the Act. [1] Section 473DD relevantly provided as follows:

   [1]           AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [11]-[12].

   “473DD Considering new information in exceptional circumstances

   For the purpose of making a decision in relation to a fast track reviewable decision, the immigration Assessment authority must not consider any new information unless:

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)the referred applicant satisfied the Authority that, in relation to any new information given, or proposed to be given, t othe Authority by the referred applicant, the new information:

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been  known, may have affected the consideration of the referred applicant’s claims.”

10. It was submitted on behalf of Counsel for the applicant that though the Authority had accepted that the first applicant’s brother had been killed, and that his first child had been the subject of an attempted kidnapping – as had both been claimed by the first applicant – that acceptance ought to have lead the Authority into accepting the other claim made on behalf of the applicants, namely that a grenade had been thrown into the applicants’ house.

11. Counsel for the first respondent submitted, however, that the Authority did not fall into jurisdictional error by failing to consider the new information, because such failure was immaterial because the Authority had accepted the claims about the first applicant’s brother’s death and the attempted kidnapping. It was submitted that in such circumstances, the failure could not realistically have resulted in the Authority arriving at a different decision had it in fact considered the new information.

12. Counsel for the Minister relied upon MZAPC vMinister for Immigration and Border Protection (2021) 95 ALJR 441 at [35] – [40] inclusive, where the majority (Keifel CJ, Gageler, Keane and Gleeson JJ) said as follows:

    “[35] Occasion both to examine the content of materiality and to consider the onus of its proof in an application for judicial review of an administrative decision arose in SZMTA. There the majority constituted by Bell, Gageler and Keane JJ held that “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision and that “the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant [for judicial review] bears the onus of proof”.

    [36]Those holdings of the majority were determinative of the outcome in SZMTA. In the judgment under appeal in that case, a judge of the Federal Court had found jurisdictional error in a decision of the Tribunal having regard to the “prospect” that the Tribunal had not taken certain documents and information into account in making its decision under review. The majority held the finding to have been erroneous in precisely delineated respects. One was that “his Honour failed to make a finding as to whether the Tribunal had in fact failed to take such documents and information into account in reaching its decision”. Another was that, “in the event of finding that the Tribunal had failed to take such documents and information into account, his Honour erred in not going on to determine whether the Tribunal’s decision could have been different if the Tribunal had taken the documents and information into account”.

    [37]Subsequently, in CNY17 v Minister for Immigration & Border Protection, Kiefel CJ and Gageler J referred to the determination of materiality by a court as involving “a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation”. The same point was made in different language by the Full Court of the Federal Court in BDY18 v Minister for Immigration & Border Protection, where it said that “[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker” and that “[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case”.

    [38]The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

    [39]Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

    [40]There is no reason to consider that the burden placed on the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with the condition that has been breached is significantly more onerous than the burden indisputably borne by the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied that the condition has in fact been breached. And especially in a case such as the present, where the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman prevents a decision-maker appearing as an active party in a proceeding for judicial review of one of its decisions, there is no reason to consider that the burden would more fittingly be borne by the active defendant in a proceeding for judicial review to prove the historical facts necessary to enable the court to be satisfied that a different decision could not have been made.”

    [footnotes omitted]

    13The Court further notes that at [60] of MZAPC, the majority also said:

    “[60]Accordingly, the decisions on which the appellant relies provide no support for the shift in onus for which he contends. Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.”

13. The Court accepts the submissions made on behalf of the first respondent in respect of Ground 1 of the Amended Application for Review. The acceptance by the Authority of the first applicant’s claims in respect of the death of his brother and the attempted kidnapping of his first son undercuts the gravity of the s. 473DD(b)(ii) failure on materiality grounds. There is no merit to Ground 1.

14. As to Ground 2, such was a claim redolent of the applicants seeking an impermissible merits review of the decision of the Authority. Further, the claim made on behalf of the applicants that the Authority had “misconstrued relevant evidence” was in effect a claim that the Authority’s reasoning process was legally unreasonable. Such a claim necessarily required the applicants to meet a high bar.

15. In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) set out the relevant principles relating to irrationality and illogicality at [60] – [61] as follows:

    “[60]In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

    [52]As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

    …

    [54]… The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

    [55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

    [56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

    [61]For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).”

1. The Authority found that it was unprepared to accept the applicants’ claims about a grenade having been thrown into their home based upon inconsistencies in the evidence of the first applicant and the second applicant. The Authority set out those inconsistencies at [11] and [14] of its reasons as follows:

   “[11]Notwithstanding any credibility issues, the applicant husband has been generally consistent in his evidence regarding his work with his brother Muhammad and the attempted kidnap of his son. There has been some variation in his evidence regarding the explosive device thrown at their house. The evidence of the applicant wife was less consistent and included some items which contradicted the evidence of the applicant husband, including that he was working in Iraq making sweet pastries until their departure. In the recent submission to the IAA, the applicant husband stated that his wife was not aware of where he worked in Iraq, as culturally men did not discuss these things with their wives. His view on this has changed since living in Australia. I accept that this is the case and prefer the evidence of the applicant husband on the issue of his employment. I accept that from 2006 to 2008 the applicant husband worked several days a month on a casual basis with his brother Muhammad. This work comprised transporting items from Baghdad airport to US Army bases. I accept that Muhammad was shot and killed on 16 June 2008. No group claimed responsibility for his death.

   …

   [14]The applicants also claim that an explosive device was thrown at their home or into their garden some days after this event. There has been some variation in the evidence relating to this, including whether the attack occurred at night when everyone was asleep or in the evening when the applicant husband was not at home. The applicant wife stated at her PV interview that there was no damage to the house and the applicant husband stated at his that the windows were broken. The applicant wife stated that they called the police but they did not attend and the applicant husband stated that the police attended of their own accord. Taking into account these inconsistencies I am not satisfied that this event occurred.”

2. Similar inconsistencies were found in the delegate’s reasons under the heading “Attack on family home”. [2]

   [2]           Exhibit 1 – Court Book (CB) pp. 375-376.

3. The Court finds that the Authority did not err in the way in which it approached the question as to whether or not the grenade incident had occurred or not. In that respect, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

4. There is no merit to Ground 2 of the Amended Application for Review.

5. Ground 3 again seeks an impermissible merits review of the decision of the Authority. No particulars of any claimed failure on the part of the Authority to have regard to relevant evidence have been provided. The Authority carefully considered the evidence before it and arrived at a reason and logical decision. It carried out its reasoning process having regard to all of the evidence, both individually and cumulatively. It did not consider the events in isolation as claimed. There is no merit to Ground 3.

6. The success of Ground 4 was dependent upon the success of any one of the other Grounds. As the Court has found that the other Grounds were without merit, Ground 4 necessarily fails.

7. Further, the decision of the Authority could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. The applicants have failed to establish jurisdictional error on the part of the Authority.

9. The Amended Application for Review is without merit and is dismissed.

10. The Court will hear the parties as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       11 March 2022

SCHEDULE OF PARTIES

SYG 2430 of 2017
Applicants
Fourth Applicant:	DLL17
Fifth Applicant:	DLM17
Sixth Applicant:	DLO17