DQK17 v Minister for Immigration

[2018] FCCA 3474

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3474

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority made a finding of fact not logically based upon inferences available to it – whether the Authority erred by failing to consider claim – whether the Authority erred by failing to conduct proper review of delegate’s decision – jurisdictional error – writs issued.

PRACTICE & PROCEDURE – Leave sought to amend original application in its entirety and rely on 2 new grounds – leave granted.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D

Migration Act 1958 (Cth), s.473EA, pt.7AA

Cases cited:

DAO16 v Minister for Immigration & Border Protection (2018) 353 ALR 641
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Other material cited

Prevention of Terrorism Act (Sri Lanka)
United Kingdom Home Office, Country Information and Guidance Sri Lanka: Tamil separatism, version 3.0, 1 August 2016
United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012
United States Department of State, Sri Lanka – Country Report on Human Rights Practices 2015, 13 April 2016

Applicant: DQK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2558 of 2017

Judgment of: Judge Smith

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

Counsel for the Applicant Mr L Karp with Mr G Schipp

Counsel for the First Respondent: Ms N Laing

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The applicant is granted leave to rely on the amended application annexed to his outline of submissions and directed to file the amended application within 7 days.

2. A writ of certiorari issue quashing the decision of the second respondent dated 4 August 2017.

3. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 14 December 2016 according to law.

4. The first respondent pay the applicant’s costs fixed in the amount of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2558 of 2017

DQK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 4 August 2017.  The Authority affirmed a decision of a delegate of the Minister made on 14 December 2016 to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka who arrived in Australia by boat without a visa on 6 September 2012.  After a decision was made by the Minister to allow him to apply for a protection visa he did so on 27 September 2016.  The claims made by him in support of that application are summarised accurately for present purposes in [9] of the Authority’s decision which I set out below:

   • The applicant is a Tamil from Mullaitivu Sri Lanka.

   • He lived in an LTTE[1] controlled area. He began work in 2003 as a road work supervisor for what he thought was a local government position, but after a while he discovered he was working for an LTTE owned entity. When he discovered this he considered leaving but there were limited opportunities as most of the work in the area was run by the LTTE. After he married he asked to be released but this was refused and he was transferred to an LTTE driving job.

   [1] Liberation Tigers of Tamil Eelam.

   • As a driver for the LTTE he transported food, various goods and fighters and weapons. He continued in this role until 2009.

   • He and all other employees undertook approximately six weeks basic training with the LTTE, including using arms.

   • In 2009 the civil war fighting escalated. The applicant and his family were displaced due to the fighting and living in tents and poor conditions with limited food and drinking water in Pokkanai. There were regular shell attacks and thousands of people died. In February 2009 the applicant’s mother was killed in a shelling attack and his wife and his mother-in-law were injured in the same attack. The applicant took the opportunity to go “AWOL” and stop working for the LTTE. On 3 March 2009 the applicant was hit in a further shell attack and sustained an injury in the buttock and he has residual scaring from this injury. He has provided a letter from Mullaitivu Hospital dated 20 September 2012 certifying injuries to his “buttock due to shell blast 3/3/2009 at Pockanai”. His sister lost her hand in the same incident.

   • They were forced by the LTTE to stay in the area as a human shield against attack by government forces until 27 April 2009, when the applicant and family were transferred to a camp at Chettikulam, Vavuniya District. He was released with his family on 15 October 2010 and was resettled with UN High Commissioner for Refugees (UNHCR) assistance in his home village where he began work as a driver in a local coconut farm. The applicant has provided a copy of a letter dated 23 September 2012 written by his sister and addressed to the Grama Niladhari (Village Officer) referring to the family being displaced in 2009/2010.

   • On 25 April 2012, two army soldiers and two Criminal Investigation Department (CID) officers came to the family home in a white van and took the applicant to the local camp for questioning. They accused him of being linked to and driving for the LTTE. He believes someone may have passed information about him to the authorities. He was undressed and they noticed the scar from the shelling attack in 2009. They took his telephone and checked his calls and messages. He was treated roughly while questioned. He denied any LTTE involvement and he was released later that day on condition he report to the camp every second day. He reported as required until 10 May 2012 when they took his photograph and advised he did not have to continue reporting.

   • On 11 August 2012, he was stopped near his home by people in the same white van and taken to a house near the army camp. He was slapped, beaten and kicked by army soldiers who called him a Tamil Tiger. They threatened to kill him if he did not disclose information about hidden weapons. The soldiers bought another person into the room and the applicant recognised him as a fellow LTTE driver. The soldiers accused them both of being LTTE supporters and demanded they disclose the location of hidden weapons. They took his refugee identity card. The applicant and the other driver were released the next day and told to report again on 15 August 2012 when they were expected to tell the army where the weapons were hidden. The soldiers threatened to kill them if they did not cooperate and he was warned not to tell anyone about his experience.

   • The applicant was fearful for his safety and decided not to report on 15 August 2012 and went into hiding and made arrangements to leave Sri Lanka. His wife went to Jaffna and stayed with relatives.

   • On 16 August 2012 the army visited the applicant’s home. The house was empty but his uncle who lives nearby told him he had heard the soldiers calling out the applicant’s name.

   • The other driver also did not report to the army on 15 August 2012 and on 16 August 2012 he was shot by the army at his home. The applicant has provided a copy of a newspaper article, and English translation, dated 18 August 2012, which names the other driver as being shot and injured by an unknown person in an incident outside his home. The applicant does not know the current whereabouts of the other driver or what happened to him after the shooting.

   • The applicant departed Sri Lanka illegally on 20 August 2012.

   • He fears harm on return to Sri Lanka because he is a Tamil from a former LTTE controlled area who trained with and worked for the LTTE and who will be imputed as an LTTE supporter. Because he departed Sri Lanka illegally he will be checked on return and the authorities will become aware of his previous arrest and they will suspect him and he will be detained for an extended period and harmed while detained.

   • In his area the military are confiscating land and he believes his land will be taken away and he will not be compensated.

   • In a post-interview submission, reports from DFAT were provided with hand written notations and highlights. Among parts highlighted were references to societal discrimination. The applicant did not advance any specific claims to fear harm due to societal discrimination.

   • The applicant’s details were disclosed in February 2014 by the Department of Immigration and Border Protection (DIBP) on their website. The Sri Lankan authorities have been looking for him and will now be aware he has left the country and is in Australia.

   • The applicant has provided a report from an Accredited Mental Health Social Worker dated 7 October 2016. He has been receiving counselling in Australia for his depression and “severe symptoms of PTSD including severe flash backs of threatening persecution, worsening feelings of hopelessness, helplessness and worthlessness and anxiety in the context of torture and trauma the he suffered at the hands of Sri Lankan army and CID.” The report states the applicant is at “significant risk of harm if he is forced to return back to Sri Lanka” and he has been receiving cognitive based therapy and supportive counselling to facilitate effective coping strategies.

   (Footnote omitted)

3. Those claims were rejected by a delegate on 14 December 2016 and because of the reasons for that rejection, and the way in which the applicant arrived in Australia as I have outlined, the matter was referred to the Authority for review under pt.7AA of the Migration Act 1958 (Cth). The applicant made submissions to the Authority in support of that review on 25 December 2016 and the Authority made its decision on 4 August 2017.

4. The Authority’s reasons for decision are, for present purposes, accurately summarised in the applicant’s written submissions at [11]-[15] which I gratefully adopt for the purposes of the judgment:

   11. As relevant to the proposed amended grounds of review, the IAA’s findings as to the applicant’s claims were as follows;

   (a) It accepted that the applicant acted as a driver for the LTTE and in that capacity transported goods, fighters and their weapons (CB 318 [14]). It also accepted that he took basic military training with the LTTE, this being a requirement of most civilians under LTTE control (CB 318 [15]).

   (b)It accepted as plausible that his work as a driver for the LTTE was known to Sri Lankan security organisations through informants (CB 319-20 [19]), and that he had been detained, questioned and beaten, as claimed, in 2012 (CB 319 [20]-[2l]).

   (c) It was not satisfied that the authorities believed that the applicant knew of the location of any hidden weapons (CB 319-20 [22]).

   12. Looking to the country information before it, the IAA referred, at CB 320 [24] to a report that the UK Upper Tribunal in 2013 recognised four categories of persons at risk. It also cited the US State Department as having continued to report human rights abuses in 2015, including cases of harassment, arbitrary arrest, detention and torture against, amongst others, LTTE sympathisers. It was not satisfied that the applicant fell within any of the categories identified in these reports.

   13.     The IAA continued, at CB 320-1 [25] (footnotes omitted);

   “I accept that country information reports the mistreatment of some Tamils at the hands of the Sri Lankan authorities and the International Truth and Justice Project report noted that human rights violations by the security forces continue with impunity and Tamils with tenuous links to the LTTE or low level cadres continue to be targeted, along with their families. But I am not satisfied that there is a real chance the applicant would face harm because of his past work and training with the LTTE; as noted above the UNHCR reported that all persons living in LTTE areas had contact with the LTTE and the UNHCR reported in 2012 that being of Tamil ethnicity alone does not give rise to protection needs, nor does originating from former LTTE controlled areas.”

   14. The IAA went on to refer to information before the delegate that the election of the Sirisena government in 2015 had led to what in general may be described as an easing in the security situation and advances towards reconciliation and engagement with the Tamil community (CB 321 [26]-[27]). It also noted and accepted that there were reports of Tamils being abducted detained and harmed by the security forces, and of continued use of torture and the ability of the security forces to act with impunity. However, it found that reports over the last few years did not support a conclusion that Tamils, including those from LTTE areas, are subjected to serious harm amounting to persecution because of their race or area of origin (CB 321 [28]).

   15. Other claims, not relevant to the proposed amended application, were also rejected.

   (Without alteration)

5. The applicant, by leave, relies upon two grounds in an amended application. Although the grounds essentially came down to the one point, namely, that the Authority fell into error by failing properly to apply the applicant’s particular individual circumstances to information that it had before it, and which it apparently accepted, concerning the targeting of Tamils with tenuous links to the LTTE along with their families. 

6. Although the applicant initially relied upon an argument that the obligation of the Authority to make findings based upon the applicant’s personal circumstances and in consideration of all the country information was heightened in the statutory context of pt.7AA in light of sub-s.473EA(1)(b), that is, the obligation to give reasons understood in light of s.25D of the Acts Interpretation Act1901 (Cth). The applicant ultimately accepted that that gave no greater force to what was the Authority’s clear obligation to review the delegate’s decision. That concession was, in my view, clearly correct in light of the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, especially at [68] of the joint judgment.

7. It may be accepted on general authority that in reviewing the delegate’s decision it is an obligation of the Authority to consider all of the material before it, and to address the applicant’s claims in light of its conclusions based upon that material and that it must act reasonably in doing so.  In this circumstance, acting reasonably means, relevantly, that it must act upon findings of fact which are based upon logical inferences drawn from the material before it. 

8. That is, in effect, what the applicant’s argument is: namely, that the Authority failed to do that. Because of the importance of the Authority’s consideration of the applicant’s particular claims, it is necessary to set out at its findings at [23]-[28]:

   23. I accept that the applicant found these events to be distressing and traumatic and as result he may be anxious about returning to Sri Lanka, and I note the report from the Mental Health Social Worker. I accept that the shooting of the other driver would be particularly alarming and that he fears similar harm on return to Sri Lanka. However, these events occurred in the context of the post war period when the north remained highly militarised under the repressive Rajapaksa government. The assessment of whether the applicant has a well-founded fear of serious harm is a forward looking test and, weighing the information before me, I am not satisfied that the applicant would come to the adverse attention of the authorities on return to Sri Lanka. I accept that the applicant may have been of interest in 2012 on suspicion of LTTE activities but, noting the significant change in the security situation in Sri Lanka since the defeat of the Rajapaksa government in 2015, I am not satisfied that he would be of interest now in Sri Lanka. I note that he was not subject to a court order to report and I am not satisfied that his failure to report to the camp on 16 August 2012 would be of concern to the authorities now, almost four years later.

   24. In 2012 the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka stated that senior LTTE members, fighters, people involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE, or fundraising may be at risk on return to Sri Lanka. However, reporting more recently in 2016 the UK Home Office noted that the Sri Lankan government’s concern has changed since the civil war ended and the government’s present objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan state. The UK Home Office reported the Upper Tribunal in 2013 recognised four categories of persons at risk; those with a significant role in post-conflict Tamil separatism, journalists/human rights activists, people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces and those whose name appears on a “stop” list of those against whom there is an extant court order or arrest warrant. Similarly the US Department of State continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists, and LTTE sympathisers. I am not satisfied that the applicant falls within one of these categories of persons identified by the UK Home Office or US Department of State.

   25. I accept that country information reports the mistreatment of some Tamils at the hands of the Sri Lanka authorities and the International Truth and Justice Project report noted that human rights violations by the security forces continue with impunity and Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families. But I am not satisfied that there is a real chance the applicant would face harm because of his past work and training with the LTTE; as noted above the UNHCR reported that all persons living in LTTE areas had contact with the LTTE and the UNHCR also reported in 2012 that being of Tamil ethnicity alone does not give rise to protection needs, nor does originating from former LTTE controlled areas.

   26. The information before the delegate indicates that the election of the Sirisena government in 2015 has led to greater political cooperation and an improvement in the security situation which has resulted in a decrease in Tamils held in detention. The Sirisena government has adopted a more proactive approach to human rights and reconciliation and has been engaging constructively with the Tamil political parties. Advances by the Sirisena government since its election in 2015 include working toward greater demilitarisation in the north and east, establishing a commission to investigate civil war abuses and the Human Rights Commission of Sri Lanka has unveiled a program to address human rights issues at the regional level. Tamils have been appointed to the Sri Lankan Council of Ministers and increasing the presence of Tamils in the police force in former LTTE areas.

   27. The US Department of State, reporting on events in 2015, noted the closure of the Omanthai military checkpoint, which previously divided government-held territory from former LTTE controlled territory; adopting the constitution’s 19th amendment, which limits the powers of the presidency and begins a process of restoring the independence of government commissions; the government cosponsored a resolution on human rights at the UN Human Rights Council and welcomed visits by the UN special rapporteur on transitional justice, the UN Working Group on Enforced and Involuntary Disappearances, and the UN Office of the High Commissioner for Human Rights (OHCHR) Office of Legal Affairs team; the establishment of the Office of National Unity and Reconciliation to play a key role in reconciliation efforts and the Ministry of National Dialogue to further advance reconciliation. Other advances have been made in assisting families to access government benefits in the absence of death certificates and the government signed the International Convention for the Protection of All Persons from Enforced Disappearances. The government removed the ban on eight Tamil diaspora organizations and 267 individuals on the previous government’s watch list.

   28. I have noted the country information provided with the SHEV application and I accept there are reports of Tamils being abducted, detained and harmed by security forces. There are also reports of continued human rights violations in Sri Lanka, including the use of torture against suspects, and the ability of the security forces to act with impunity. However, an analysis of reports over the last few years from a range of sources, including the UNHCR, the UK Home Office, the United States Department of State, the Norwegian Country of Origin Information Centre (Landinfo), and DFAT does not support a conclusion that Tamils, including those from former LTTE controlled areas, are being systematically targeted and subjected to serious harm amounting to persecution because of their race or area of origin.

   (Footnotes omitted)

1. The critical paragraph for the purposes of the applicant’s argument is [25]. In the first part of [25], the Authority accepted that there was some information about mistreatment of some Tamils and human rights violations by security forces and that Tamils with tenuous links to the LTTE or low level cadres continue to be targeted along with their families.

2. Pausing there, this reference was clearly based upon the Authority’s acceptance that the applicant fell within the description of that country information. It accepted, for instance, that the applicant had worked as a truck driver for the LTTE and had delivered goods and fighters and their weapons: [14]. It had also accepted the applicant had undertaken basic training with the LTTE while working for them: [15]. Further, the Authority accepted that the applicant had been taken in for questioning and accused of driving for the LTTE and he was mistreated while in questioning: [21].

3. However, at [25], it went on to find that in spite of that information it was not satisfied there was a real chance the applicant would face harm because of his past work and training with the LTTE.  In the last phrase of the paragraph, it explained its reason for that conclusion.  Namely, in reliance upon the 2012 UNHCR report[2] it accepted that being of Tamil ethnicity alone did not give rise to protection needs and neither did originating from former LTTE-controlled areas.  The difficulty with that reasoning is that neither of those two reasons, namely Tamil ethnicity and having origins in former LTTE-controlled areas, dealt with the gist of the applicant’s claim which had in fact been accepted and which was the reason for which I infer the Authority referred to the information concerning Tamils with tenuous links to the LTTE. 

   [2] United Nations High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012.

4. That information did not relate simply to people of Tamil ethnicity or people originating from former LTTE-controlled areas.  It was more specific.  Thus, reading [25] alone, there is a logical disconnect between the information given which supported the applicant’s contentions and the reasons for which the Authority did not accept that that information meant there was a real chance that the applicant faced persecution on return to Sri Lanka. 

5. The Minister argues and I accept, that [25] must be read in its context.  In particular, the Minister argued that the following matters were of importance in order to understand how the Authority was reasoning in [25] of its reasons:

   a)first of all, at [13] and [15], it noted that there were very many people from the north of Sri Lanka and the former LTTE-controlled areas who had worked for the LTTE; 

   b)secondly, at [22], the Authority placed significant weight on the fact that the applicant, when he was held for questioning, was not charged with any offences and was only detained for questioning, being the day or overnight on the second occasion.  This was in contrast, it noted, to the powers of the forces at the time under the Prevention of Terrorism Act (Sri Lanka), to suspend people without charge for a period of three months and up to 18 months.  In light of that information and the contrast of the applicant having been released without charge after a relatively short period, the Authority was not satisfied that the authorities believed the applicant knew the location of any hidden weapons or that it suspected him of being an LTTE member or supporter of a person with information about hidden weapons; 

   c)the third contextual element relied upon by the Minister was in [24] where the Authority referred in the first instance to the UNHCR 2012 report but noted that there was an updated report from the UK Home Office in 2016[3] which recognised four categories of persons at risk and the Authority’s conclusion that the applicant was not within one of those categories;

   d)finally, the Minister relies upon [26]-[28] in which the Authority considered country information concerning the apparent change in circumstances in Sri Lanka since the election of the Sirisena Government in 2015.

   [3] United Kingdom Home Office, Country Information and Guidance Sri Lanka: Tamil separatism, version 3.0, 1 August 2016.

6. I will deal with each of those in turn.

7. The first element, in [13] and [15], does not really address the context of [25] at all. The Authority accepted certain aspects of the applicant’s claims because they were consistent with information, for instance, that most civilians living under LTTE control required basic training.  I do not read [15] to mean that most civilians living under LTTE control had to work for the LTTE.  In [13], the Authority rejected the applicant’s claim that he was unaware that he was working for the LTTE simply because most people had contact with the LTTE and its civil administration in their daily lives.  Indeed, it also noted that most of the employment was run by the LTTE.  That is a different thing from saying that everybody in the LTTE-controlled areas worked, as the applicant did, as a truck driver carrying weapons and fighters and other goods for the LTTE during the relevant period. That is to say, the Authority did not proceed on the basis that there was a necessary correlation between having lived in the LTTE-controlled area and having a tenuous or other stronger links with the LTTE.

8. In respect of the second matter, namely, the fact that the applicant was not charged with offences, I accept that the reasoning in [22] goes some way to explaining the balance of the Authority’s reasons.  However, it does not go all the way.  The Authority concluded only that the authorities did not believe that the applicant knew the location of hidden weapons and that they did not suspect him of being an LTTE member or supporter, or a person with information about hidden weapons.  It did not go so far as to say that it meant that they did not think that he had any tenuous link to the LTTE. 

9. The third point is the information from the UK Home Office and the four categories of which members were at risk according to the report.  It may be accepted that that finding too goes some way to explaining the Authority’s approach to the applicant’s claims.  However, for two reasons, once again, it does not go the whole way.

10. First, it is one thing to find that a person does not fall within a category of accepted risks.  It is quite another to find that no person who falls outside those categories is at risk.  The report does not go so far and it would be an error of logic to assume otherwise.  Secondly, the Authority itself did not proceed on the basis that that was a complete answer to the applicant’s claims because, at [25], immediately following its consideration of the UK Home Office report and the US Department of State report[4], it referred to other reports were referred to in the UK Home Office reports and concerned ongoing human rights violations by security forces and that Tamils with tenuous links to the LTTE continued to be targeted. For those two reasons, [24], although providing some context to the balance of the Authority’s reasons, does not provide an answer to the reasoning in [25].

    [4] United States Department of State, Sri Lanka – Country Report on Human Rights Practices 2015, 13 April 2016.

11. Finally, although [26] and [27] deal with the circumstances after the election of the new Government in 2015, again, they do not go all the way in dealing with the applicant’s claims. The conclusion at [28] makes this clear.  In that paragraph, once again, the Authority accepted that there were reports of Tamils being abducted, detained and harmed by security forces but noted that, on an analysis of reports over the last few years, that information did not support a conclusion that Tamils, including those from former LTTE-controlled areas, are being systematically targeted and subjected to serious harm amounting to persecution because of their race or area of origin.

12. Once again, the focus on race and area of origin, which reflects the last sentence of [25], does not entirely encapsulate the bases for the applicant’s claim to fear harm.  His claim was not based simply on the fact that the applicant was a Tamil or that he came from the north of Sri Lanka which had been controlled by the LTTE during the civil war.  It was also because during that time, and this was accepted by the Authority, he had been a driver delivering goods and fighters and their weapons.  The Authority appears to have accepted, by its reference to the country information at [25], that that would give rise to the existence of tenuous links.  Nevertheless, it sought to distinguish that information for reasons which I have found did not logically deal with the applicant’s claims as they were made.

13. The applicant argued that this reveals unreasonableness in the Authority’s decision.  Unreasonableness may be a label given to a jurisdictional error which could be categorised in other ways, such as the failure to consider a material claim or to make a finding of fact without any logical basis:  see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; DAO16 v Minister for Immigration & Border Protection (2018) 353 ALR 641 at [30]. Essentially, the question is whether there was jurisdictional error: see Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J.

14. No matter how what the Authority did or did not do in [25] is characterised, it reveals jurisdictional error.  Although it was cognisant of the extent of the applicant’s claim, it set that claim to one side for reasons which did not, in fact, logically address the claim.  Thus it was either making a finding of fact not logically based upon inferences available to be drawn from the material before it or, more simply put, it just failed to consider the claim.

Conclusion

1. For those reasons, I am satisfied that the Authority did not properly conduct a review of the delegate’s decision.  It constructively failed to exercise its jurisdiction and so the decision must be set aside.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  28 November 2018