DSH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 16
•29 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DSH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 16
File number(s): SYG 2610 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 29 January 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – cancellation of a protection visa – applicant claiming a fear of harm in Iraq as a stateless Bidoon – applicant believed and protection visa granted – applicant subsequently returned to Iraq twice and seeking to sponsor his wife and children, claiming to be an Iraqi citizen – whether the Tribunal misapplied the statutory scheme for cancellation of the visa, overlooked evidence or an issue in the review considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth), ss 101, 107, 108 and 109
Migration Regulations 1994 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration & Indigenous Affairs (2004) 236 FCR 593
BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094
Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 11
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51
Singh v Minister for Home Affairs (2019 FCR 200
WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319
Number of paragraphs: 90 Date of hearing: 24 November 2020 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 2610 of 2017 BETWEEN: DSH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
29 JANUARY 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 21 July 2017 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine according to law the review before it.
REASONS FOR JUDGMENT
JUDGE DRIVER
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 July 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s protection visa.
The following statement of background facts is derived from the submissions of the parties.
On 18 January 2011 the applicant arrived in Australia as an irregular maritime arrival.[1]
[1] Court Book (CB) 213 at [1]
On 25 February 2011[2] the applicant made a request for a refugee status assessment.[3] The request was accompanied by a statutory declaration of the applicant dated 20 February 2011.[4]
[2] CB 50 and 67 at [3]
[3] CB 1-49
[4] CB 36-39
On 25 February 2011 the applicant attended an interview for the purpose of the refugee status assessment.[5]
[5] CB 53
On 18 May 2011 a delegate of the Minister accepted that the applicant was a stateless Bidoon, but found that the applicant did not face a real chance of persecution if required to return to Iraq.[6]
[6] CB 52-65
On 2 June 2011[7] the applicant applied for an Independent Merits Review (IMR), by a reviewer (the Reviewer), of that delegate’s decision.
[7] CB 67 at [3]
On 12 January 2012[8] the Reviewer received from the applicant’s agent:
(a)a submission by the agent;[9] and
(b)a statutory declaration of the applicant.[10]
[8] CB 69 at [12]
[9] CB 72 at [14]
[10] CB 69 at [12]
On 16 January 2012 the applicant attended an interview with the Reviewer.[11]
[11] CB 78 at [29]
On 21 January 2012 the Reviewer found that the applicant met the definition of a refugee.[12]
[12] CB 66-88
On 23 May 2012 the applicant lodged an application for a protection visa.[13]
[13] CB 89-118
On 2 July 2012 the applicant was granted a protection visa.[14]
[14] CB 119
The applicant subsequently visited Iraq as follows:[15]
(a)15 January 2013 to 11 April 2013; and
(b)7 March 2014 to 25 May 2014.
[15] CB 215
In June 2013 the applicant’s wife applied for a partner visa,[16] with the four children of the applicant and wife as members of the family unit.[17] In connection with the application:
(a)the applicant signed a sponsorship form in support of the application in which he stated that his wife and children were Iraqi;[18]
(b)the applicant’s wife and children provided copies of Iraqi passports issued in April 2013 in support of their applications[19] and stated in their applications that they were Iraqi citizens;[20] and
(c)in addition to identifying the applicant's wife and children as Iraqi citizens, the application stated that the applicant was an Iraqi citizen,[21] and the applicant completed a Form 40SP in which he answered the question, "Which citizenship do you hold?" by stating "Iraqi".[22]
[16] CB 123-142
[17] CB 153-170
[18] CB 143-158
[19] CB 171, 174, 180, 183, 187
[20] CB 124, 153, 159, 165
[21] CB 128
[22] CB 143
On 11 January 2017 the Minister’s Department sent the applicant a notice of intention to consider cancelling his visa under s 109 of the Migration Act 1958 (Cth) (Migration Act) (NOICC).[23] The “Notification of intention to consider cancellation under s.109 of the [Act]” (s 107 Notice) outlined instances of possible non-compliance with s 101 of the Migration Act, which are listed at CB 216-217.
[23] CB 212-224
On 3 February 2017 the applicant, by his agent, provided in response to the NOICC:
(a)an English translation of a statement of the applicant titled “Clarifications made by [applicant]” (“the Clarification Statement”);[24]
(b)a written submission;[25] and
(c)supporting documents.[26]
[24] CB 235-239
[25] CB 229-234
[26] CB 240-269
In a letter dated 17 February 2017 an officer of the Minister’s Department, after considering the applicant’s response to the NOICC, found that Australia did not have a non-refoulement obligation to the applicant under the Refugees Convention.[27]
[27] CB 270-272
On 9 March 2017 the delegate made a decision to cancel the applicant’s visa.[28]
[28] CB 278-292
On 17 March 2017 the applicant applied to the Tribunal for review of the delegate’s decision.[29]
[29] CB 293-294
On 21 June 2017 the applicant, by his agent, provided to the Tribunal:[30]
(a)a written submission by the agent;[31]
(b)the English translation of the Clarification Statement, and what appears to be a version of the Clarification Statement originally written by the applicant in Arabic.[32]
[30] CB 307
[31] CB 308-314
[32] CB 315-324
On 6 July 2017 the applicant attended a hearing before the Tribunal.[33]
[33] CB 404
As noted above, on 21 July 2017 the Tribunal made a decision affirming the delegate’s decision to cancel the applicant’s visa.[34]
[34] CB 423-441
The Tribunal decision
The Tribunal noted the background of the matter and found that there was non-compliance in the way described in the s 107 Notice in relation to the answers given to question 11 of Form 866B and questions 22, 23 and 47 of Form 866C. In reaching that finding, the Tribunal noted that:
(a)while the applicant maintained that he had provided correct information in the visa application, his evidence in relation to his and his family's Iraqi nationality was internally inconsistent, evasive, and lacking in details, which raised doubts about the truthfulness of the evidence he was giving before the Tribunal;[35]
(b)the passports and Iraqi identity cards of the applicant's wife and children were “strong evidence” that they are Iraqi nationals. Notwithstanding the applicant's response to the s 107 Notice, it is likely that they were Iraqi nationals when the applicant applied for the visa;[36]
(c)it discussed with the applicant his returns to Iraq. The Tribunal found it was difficult to accept that, within six months of being granted the visa, the applicant would return to the country where he had claimed he would immediately be executed. The applicant's evidence raised doubts about his credibility and the truthfulness of the evidence he was giving;[37]
(d)there were inconsistencies in the documentary evidence before the Tribunal regarding the applicant and his family's nationality;[38]
(e)in view of the totality of information before it, including country information, the Tribunal found that the applicant and his family are registered Bidoons and Iraqi nationals, contrary to his claim that they are stateless Bidoons with no nationality.[39]
[35] CB 427 at [14]-[17]
[36] CB 428 at [18]-[19]
[37] CB 430 at [20]-[22]
[38] CB 431 at [24]-[25]
[39] CB 431-433 at [26]-[31]
The Tribunal then considered and found that the s 107 Notice was valid. While the Tribunal found that the applicant's answers to questions 23 and 42 of Form 866C of his visa application were essentially correct, it was satisfied that they did not affect the validity of the s 107 Notice as the applicant was given a meaningful opportunity to respond to the adverse information. The Tribunal found that the applicant provided incorrect answers to question 11 of Form 866B, and questions 20, 22 and 47 of Form 866C, as alleged in the s 107 Notice.[40]
[40] CB 433 at [32]-[33]
In deciding to exercise its discretion to cancel the applicant's visa, the Tribunal referred to the applicant's response to the s 107 Notice and the prescribed circumstances under regulation 2.41 of the Migration Regulations 1994 (Cth) (Regulations). It relevantly found that:
(a)the grant of the applicant's visa was wholly or partly based on the incorrect information provided by the applicant, which weighed significantly in favour of cancelling the visa;[41]
(b)the applicant's voluntary return to Iraq on two occasions supported its earlier finding that the applicant had provided incorrect information about his nationality and his claims of harm;[42]
(c)in light of country information and the fact that the applicant had returned to Iraq on two occasions after the grant of the visa, there was not a real chance or real risk that the applicant would suffer serious or significant harm in Iraq for any reason.[43]
[41] CB 436 at [49]-[54]
[42] CB 436 at [55]-[56]
[43] CB 437-438 at [66]-[73]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 18 August 2017. The matter was initially docketed to Judge Barnes but, at a callover on 12 March 2019, her Honour transferred the matter to my docket. The matter was listed for a final hearing on 13 October 2020 but, due to my unavailability, that was deferred until 24 November 2020. At the trial on that day I granted leave for the applicant to rely upon an amended application filed on 4 August 2020. The grounds in that application are:
1.The statutory scheme in ss 101 to 109 of the Migration Act 1958 (Cth) creates a distinction between a first stage of making a finding concerning the scope of incorrect answers or noncompliance: and a second stage of, based in part on the finding concerning the scope of incorrect answers or non-compliance, deciding whether or not to cancel the visa. If the decision-maker does not make a finding that a particular answer in the visa application was incorrect as part of the first stage, at the second stage the decision-maker:
a) cannot find that the particular answer was incorrect in a manner adverse to the applicant; and
b) must proceed on the basis that the particular answer is correct.
The Administrative Appeals Tribunal ("the Tribunal"), in considering whether to exercise its discretion to cancel the applicant's visa as part of the second stage, in breach of the proper construction of the statutory scheme explained above:
a) found at [55] of its decision, in a manner adverse to the applicant, that some answers the applicant gave in his protection visa application were incorrect, although the Tribunal did not find that the answers were incorrect as part of the first stage; and
b) at [67]-[71] of its decision erroneously failed to have regard to some answers the applicant gave in his protection visa application, not found by the Tribunal as part of the first stage to be incorrect, which were material to an assessment at the second stage.
2. The Tribunal at [33] and [34] of its decision found that the applicant provided incorrect information or answers in his protection visa application and did not comply with s 10l(b) of the Act "in the way described in the s 107 notice". If the Tribunal's finding of incorrect answers and non-compliance extended to all or most of his claims of harm in his protection visa application, the Tribunal made the finding without having regard to or giving proper and genuine consideration to, the evidence before the Tribunal in support of the claims. This was a jurisdictional error.
3.The Tribunal found at [55] of its decision that "the applicant has provided incorrect information about ... his claims of harm." The Tribunal, in making this finding, placed sole weight on the fact that the applicant returned to Iraq in 2013 and 2014 and did not consider the large amount of evidence before the Tribunal, provided by the applicant in 2011 and 2012 in support of his claims. The Tribunal thereby:
a) overlooked or failed to have regard to this evidence, which is a jurisdictional error;
b) failed to give proper and genuine consideration to this evidence, in a manner which involved jurisdictional error.
4.The Tribunal found at [32]-[33] of its decision that the applicant provided incorrect answers in his protection visa application because he stated that he was "stateless" when he was in fact an Iraqi national. A question relevant to the discretionary matter of whether the Tribunal should cancel the applicant's visa was whether the applicant knew this answer was incorrect at the time he gave it. Although this issue arose on the materials before the Tribunal, the Tribunal did not consider the issue. Where a decision-maker does not consider an issue which arises on the materials before the decision-maker, this may involve jurisdictional error, and did so in the present case.
5.The Tribunal at [67]-[71] of its decision considered whether, if the applicant were to return to Iraq, he faced a real chance of serious harm. The Tribunal found at [71] that "the Tribunal is not satisfied that if the applicant were to return to Iraq, there is a real chance, or a real risk of serious or significant harm occurring to the applicant on any of the claimed bases". The Tribunal, in the course of considering this issue, considered at [68]-[69] the 26 June 2017 DFAT country information report on Iraq. The DFAT report stated in part that Sunnis located in non-Sunni areas (such as ... the south) face a high level of societal discrimination and violence". The Tribunal did not refer to, engage or deal with this part of the DFAT report which was most critical to an assessment of whether the applicant faced a real chance of serious harm if required to return to Iraq. This was a jurisdictional error.
In addition to the book of relevant documents (court book) filed on 22 December 2017, I have before me as evidence the affidavit of Ali Alkafaji made on 4 August 2020, to which is annexed a Department of Foreign Affairs and Trade (DFAT) country information report for Iraq published on 26 June 2017 (DFAT report).
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.
CONSIDERATION
Legislative scheme
Sections 101, 107, 108 and 109 of the Migration Act (at the time of the application to the Tribunal) relevantly provided:
101 Incorrect answers
A non-citizen must fill in or complete his or her application form in such a way that …
(b) no incorrect answers are given or provided.
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance--shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; …
108 Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non-compliance by the visa holder in the way described in the notice
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
Section 368(1) of the Migration Act provides:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based;
…
Regulation 2.41 of the Regulations relevantly provides in part:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C
...
(k) any contribution made by the holder to the community.
Grounds 1 and 2 – did the Tribunal err in its finding concerning indirect answers or non compliance at [33] and [34]?
Applicant’s submissions
The statutory scheme under ss 101, 107, 108 and 109 of the Migration Act requires that:
(a)if the Minister considers that a visa holder may have provided “incorrect answers” in their application form, the Minister must give the visa holder particulars of the possible non-compliance and an opportunity to respond (s 107);
(b)if the Minister, after considering the applicant’s response, decides that the applicant provided incorrect answers, the Minister must so find (s 108); and
(c)once the Minister has made a finding concerning the scope of the incorrect answers or non-compliance, the Minister must decide, after considering prescribed circumstances, whether or not to cancel the visa (s 109).
The statutory scheme creates a distinction between:
(a)a first stage of making a finding concerning the scope of incorrect answers or non-compliance; and
(b)a second stage of, based in part on the finding concerning the scope of incorrect answers or non-compliance, deciding whether or not to cancel the visa.
If the decision-maker does not make a finding that a particular answer in the visa application was incorrect as part of the first stage, at the second stage:
(a)the decision-maker cannot find that the particular answer was incorrect in a manner adverse to the applicant;
(b)the decision-maker must proceed on the basis that the particular answer is correct.
The Tribunal, standing in the shoes of the Minister, is bound by the statutory scheme.
Further, taking into account the Tribunal’s obligation to give reasons under s 368(1) of the Migration Act, in relation to the material questions of fact arising in relation to each of the first stage and second stage, the Tribunal must:
(a)set out the findings on the material questions of fact; and
(b)refer to the evidence or any other material on which the findings of fact were based.
In the present matter, the scope of the Tribunal’s finding under s 108 concerning incorrect answers in the visa application or non-compliance by the applicant is said to be unclear. Specifically:
(a)one possibility is that the scope of the Tribunal’s finding of incorrect answers and non-compliance was limited to the applicant’s answers in his protection visa application that, at the time he applied for a protection visa in 2011/2012, he was “stateless” with no nationality (the Narrow Scope)
(b)a second possibility is that the scope of the Tribunal’s finding of incorrect answers extends beyond his claim to have been stateless with no nationality, and comprises all of his claims of harm in his protection visa application (the Wide Scope);
The ambiguity is said to arise from the Tribunal’s decision at [31]-[34], [55] and [67]-[71]. Specifically:
(a)the focus of the Tribunal’s decision at [31]-[34], as well as the preceding paragraphs, is on whether the applicant was or was not an Iraqi citizen at the time he applied for a protection visa in 2011/2012.
(b)the Tribunal at [31] and [33] found:
[31] In considering the evidence as a whole … the Tribunal accepts as plausible that the applicant and various members of his family had lived in Kuwait. However … the Tribunal does not accept that the applicant and/or his family did not acquire Iraqi nationalities. In considering the evidence as a whole … the Tribunal finds that the applicant and members of the family are registered Bidoon and that they are Iraqi nationals, contrary to the applicant’s protection claims that they are stateless Bidoon – with no nationality.
…
[33] Given the findings about the applicant’s nationality and that of his family and in consideration of the evidence as a whole, the Tribunal finds that the applicant has provided incorrect information when seeking Australia’s protection and that he provided incorrect answers to question 11 of form 866B, questions 20, 22, 47 of form 866C.
The applicant submits that, on a fair reading of these findings, the scope of incorrect answers appears to be limited to the applicant’s answers that he was stateless with no nationality, ie the Narrow Scope.
(c)However, the Tribunal at [34] added:
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
The NOICC appears at CB 212-219. One allegation of non-compliance described in the NOICC was that the applicant provided incorrect answers in response to question 47 of the protection visa application because a combination of the author’s belief that the applicant was an Iraqi citizen, together with the applicant’s voluntary returns to Iraq:[44]
demonstrate that you may not hold the adverse profile claimed in Iraq. It undermines your claims in your protection visa application.
On one interpretation of the Tribunal’s decision at [34], the Tribunal was intending to find that all of the applicant’s claims in his protection visa application involved incorrect answers, ie the Wide Scope.
(d)The Tribunal at [55] found:
His returns also support the findings that the applicant has provided incorrect information about his nationality and his claims of harm.
(e)The Tribunal at [67]-[71] considers whether, if the applicant returns to Iraq, he faces a real chance of serious harm. The Tribunal does not indicate whether it accepts or does not accept the applicant’s claims of past harm in his protection visa application.
[44] CB 217.2
The applicant’s complaint is that, whether or not the scope of the Tribunal’s findings of incorrect answers was the Narrow Scope or the Wide Scope, the Tribunal fell into jurisdictional error.
Error if Narrow Scope
The applicant contends that, if the Tribunal’s finding of incorrect answers and non-compliance at [31]-[34] was the Narrow Scope, the applicant’s complaint is that the Tribunal, in considering whether to exercise its discretion to cancel the applicant’s visa as part of the second stage:
(a)found, in a manner adverse to the applicant, that some answers the applicant gave in his protection visa application were incorrect, although the Tribunal did not find that the answers were incorrect as part of the first stage; and
(b)did not have regard to some answers the applicant gave in his protection visa application, not found by the Tribunal as part of the first stage to be incorrect, which are material to an assessment at the second stage.
Specifically, first, the Tribunal at [55] found:
His returns also support the findings that the applicant has provided incorrect information about his nationality and his claims of harm.
Thus, the Tribunal found, in a manner adverse to the applicant as part of the second stage, that “his claims of harm” in his protection visa application involved the provision of incorrect information or answers. Yet the Tribunal did not find at the first stage that the applicant provided incorrect answers in relation to his claims of harm in his protection visa application.
The applicant’s complaint is that, if the Tribunal does not make a finding that a particular answer in the protection visa application was incorrect as part of the first stage, at the second stage the decision-maker cannot find that the particular answer was incorrect in a manner adverse to the applicant. The reason is that, as stated at [30] above, the statutory scheme creates a distinction between:
(a)a first stage of making a finding concerning the scope of incorrect answers or non-compliance; and
(b)a second stage of, based in part on the finding concerning the scope of incorrect answers or non-compliance, deciding whether or not to cancel the visa.
In the circumstances, the Tribunal is said to have misconstrued the statutory scheme.
Secondly, the Tribunal at [67]-[71] considered whether, if the applicant returns to Iraq, he faces a real chance of serious harm. The Tribunal does not indicate whether it accepted or did not accept the applicant’s claims of past harm in his protection visa application.
The applicant’s complaint is that, if the Tribunal does not make a finding that a particular answer in the protection visa applicant was incorrect as part of the first stage, at the second stage the Tribunal must proceed on the basis that the answer is correct. In this circumstance, the events which occurred to the applicant as set out in his protection visa application, with the Tribunal did not find to be incorrect (the Past Events), are material to an assessment, at the second stage, of whether the applicant faces a real chance of serious harm if required to return to Iraq. As the Tribunal correctly stated at [67], “past harm could be a reasonable guide to future harm”. Thus, in Minister for Immigration and Ethnic Affairs v Guo[45] at 575 the High Court stated:
In determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events
[45] (1997) 191 CLR 559
The applicant asserts that, although the Past Events are material to an assessment, at the second stage, of whether the applicant faces a real chance of serious harm if required to return to Iraq, the Tribunal did not have regard to them, or give them proper and genuine consideration.
Where a decision-maker overlooks or fails to have regard to material or significant evidence, this constitutes jurisdictional error. See for example WAFP v Minister for Immigration & Multicultural & Indigenous Affairs[46] at [21] where the Full Federal Court stated:
However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction…
[46] [2003] FCAFC 319
Alternatively, where a decision-maker fails to refer to material or significant evidence or issues in its statement of reasons, the court may conclude that the decision-maker failed to give proper and genuine consideration to the evidence or issue. In Singh v Minster for Home Affairs[47] the Full Federal Court stated:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
[47](2019) 267 FCR 200 at [30]
The Full Federal Court added at [36]-[37]:
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1)First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
To similar effect, in NAJT v Minister for Immigration & Multicultural & Indigenous Affairs[48] at [212] (Madgwick and Conti JJ agreeing) stated:
Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.
[48] (2005) 147 FCR 51
The applicant contends that, for the reasons explained above, the Tribunal fell into jurisdictional error.
Error if Wide Scope
If the Tribunal’s finding of incorrect answers and non-compliance at [31]-[34] was the Wide Scope, the applicant contends that the Tribunal does not provide reasons to support the finding. For example, the Tribunal does not explain:
(a)why the Tribunal did not accept any of the applicant’s claims in his protection visa application; or
(b)if the Tribunal accepted some claims but not others, which it accepted and did not accept; or
(c)why the Tribunal did not accept the evidence which the applicant gave at the IMR interview in January 2012 in circumstances where the reviewer made positive findings concerning the credibility of the evidence as follows:[49]
The reviewer has found the claimant to be a credible witness given the consistent and forthright manner in which he has recounted his life experiences since his arrival in Australia …
[49] CB 86 [56]
The applicant submits that, while a failure to provide reasons is not a jurisdictional error, the failure by a decision-maker to mention a matter in the s 368 statement:
(a)may “entitle a court to infer that any matter not mentioned … was not considered by the tribunal to be material”;[50]
(b)may thereby entitle a court to infer that the decision-maker overlooked or failed to have regard to the matter, which is a jurisdictional error; or
(c)may entitle a court to infer that the decision-maker failed to give proper and genuine consideration to the matter, which may be a jurisdictional error.
[50] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]; see also Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 593 at [47]; Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [53]-[54]; Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 at [100]-[106] and [121]-[123]
The applicant contends that, if the Tribunal’s finding was the Wide Scope, on application of the above principles, the Tribunal fell into jurisdictional error by finding that the applicant’s claims in his protection visa were not true, without actually considering the evidence before the Tribunal in support of the claims.
Minister’s submissions
The Tribunal found that the applicant had given incorrect answers to several questions on his protection visa application form. These questions concerned his family composition, nationality, and what he feared would happen to him if he returned to Kuwait or Iraq.[51]
[51] see the s 107 Notice at CB 216-217
The s 107 Notice made it clear to the applicant that his claim of being stateless was incorrect as he had subsequently provided evidence that he was, in fact, an Iraqi citizen. It explained that, as his claimed statelessness was central to the grant of the protection visa, it appeared that he might not have engaged Australia’s protection obligations. It further informed the applicant that his claims of being harmed in Iraq upon his return to that country was inconsistent with his voluntary return to that country on two occasions.[52] The Tribunal at the hearing discussed the applicant’s claims for protection,[53] his voluntary returns to Iraq,[54] his citizenship status[55] and found that the applicant had provided incorrect information relating to his and his family’s claimed statelessness and his alleged reasons for fearing harm on his return to Iraq.[56]
[52] CB 215-217
[53] CB 425 at [11]
[54] CB 428-430 at [20]-[23]
[55] CB 430-433 at [24]-[31]
[56] CB 433 at [33]
The applicant asserts error by the Tribunal at [55][57] finding that the applicant has provided incorrect information about his nationality and claims of harm. The Minister submits that the Tribunal is there doing no more than repeating what it has already found at [33], that the applicant’s claims as to what he feared on return to Iraq were incorrect. On a fair reading this is said not to indicate that the Tribunal has failed to have regard to any part of the applicant’s claims as raised in Ground 1. Rather, the Tribunal is said to have found that the applicant’s claims in his protection visa application as to why he feared to return to Iraq were incorrect. Necessarily therefore they could not be taken into account by the Tribunal when considering whether any international obligations would be breached by the visa cancellation.[58] The Tribunal nevertheless took into account the applicant’s claims at the hearing as to why he feared to return to Iraq, but found that the applicant did not have a well-founded fear of harm there.[59] The Minister contends that no error as alleged in Grounds 1 or 2 is made out.
[57] CB 436
[58] CB 437 [66]
[59] CB 438 [67]-[71]
Resolution
Grounds 1 and 2 concern the Tribunal’s reasoning at [31]-[34][60] where the Tribunal stated:
In consideration of the evidence as a whole, and despite the credibility concerns, the Tribunal accepts as plausible that the applicant and various members of his family had lived in Kuwait. However, in consideration of the evidence as a whole, the Tribunal does not accept that the applicant and/or his family did not acquire Iraqi nationalities. In consideration of the evidence as a whole including, but not limited to, the Iraqi passports and identity cards, the Tribunal finds that the applicant and members of his family are registered Bidoon and that they are Iraqi nationals, contrary to the applicant's protection claims that they are stateless Bidoon -with no nationality.
Essentially the applicant was found to have provided incorrect answers to question 11 of form 866B, questions 20, 22, 23, 42, and 47, of form 866C. In relation to questions 23 and 42 and given the finding that the applicant is an Iraqi national, the Tribunal has concerns as to whether the responses to those questions amount to incorrect answers. Question 23 asks "Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?", the applicant ticked "No" which appears to be correct. Question 42 asks "I am seeking protection in Australia so that I do not have to go back to (give name of country or countries), the applicant responded "Kuwait and Iraq". Although his returns to Iraq undermine his claims for protection, the response itself is arguably correct.
Given the findings about the applicant's nationality and that of his family and in consideration of the evidence as a whole, the Tribunal finds that the applicant has provided incorrect information when seeking Australia's protection and that he provided incorrect answers to question 11 of form 866B, questions 20, 22, 47, of form 866C.
For these reasons, the Tribunal finds that there was non-compliance with s.101 (b) by the applicant in the way described in the s.107 notice.
[60] CB 432-433
These grounds assert error by the Tribunal in finding that the applicant had given incorrect answers in the way described in the s 107 Notice and impermissibly taking certain information into account when exercising its discretion.
The applicant is in the unenviable position of having to base his case on the question of which of his untruths enlivened the power to cancel his visa and which of his untruths were material to the exercise of discretion to cancel.
Nevertheless, the cancellation of a visa is a serious matter and the Migration Act sets out a formal procedure for dealing with it.
I accept the applicant’s core contention that, unless the Tribunal finds that particular answers to particular questions given by the applicant were incorrect, amounting to non compliance for the purposes of s 101 of the Migration Act, as described in the s 107 Notice, the Tribunal’s power to cancel the visa is not enlivened.
Further, if the Tribunal finds that a particular answer to a particular question was incorrect but is silent about an answer given to another question notified under s 107, the Tribunal cannot then proceed as if the answer was incorrect, for the purposes of considering its discretion to cancel. This is the nub of the problem in the present case.
The Tribunal identifies the incorrect information at [31]-[34]. The incorrect information there identified was limited to the issue of the applicant’s Iraqi nationality. The Tribunal did not mention there the question of the applicant’s return trips to Iraq and the genuineness of his claim to fear harm. The Tribunal refers to that at [55] but in the context of the Tribunal’s exercise of discretion. It is not enough that the Tribunal referred to the “consideration of the evidence as a whole” at [33]. The finding of non compliance at [34] was specific and limited to the issue of nationality. It was that which enlivened the discretion to cancel and it was not open to the Tribunal to rely on answers to other questions which the Tribunal had not found were incorrect for the purposes of exercising its discretion adversely to the applicant.
It follows, and I find, that the Tribunal’s finding of incorrect answers and non compliance at [31]-[34] was the narrow scope, as set out in the applicant’s submissions and the Tribunal fell into error in the manner asserted by the applicant in relation to that interpretation of the Tribunal’s reasons.
Ground 3 – did the Tribunal err in its finding at [55]?
Applicant’s contentions
On one reading of the Tribunal’s decision, the finding that the applicant “has provided incorrect information about … his claims of harm” is significant because:
(a)it is material to the Tribunal’s consideration at [55]-[56] of the matter in regulation 2.41(d); and
(b)it is material to the Tribunal’s assessment at [67]-[71] of whether the applicant faces a real chance of serious harm if required to return to Iraq.
The applicant submits that, although the applicant’s two returns to Iraq in 2013 and 2014 are relevant to whether his claims of harm in his protection visa application are true, they are not determinative. Where a decision-maker is considering whether the applicant’s claims of harm in his protection visa application are true, the decision-maker must consider all the evidence before the Tribunal, including the written statements before the Tribunal in which, and interviews before the Tribunal during which, the applicant made his claims of harm.
The applicant’s complaint is that the Tribunal at [55] did not consider these matters. Instead, the Tribunal placed sole weight on the fact that the applicant returned to Iraq in 2013 and 2014 and, for this reason and without considering the large amount of evidence before the Tribunal, provided by the applicant in 2011 and 2012 in support of his claims, found that the claims were not true. The applicant contends that the Tribunal thereby:
(a)overlooked or failed to have regard to this evidence, which is a jurisdictional error; and
(b)failed to give proper and genuine consideration to this evidence, which may be a jurisdictional error.
Minister’s contentions
This ground is said to involve a misreading of the Tribunal’s finding at [55]. As already submitted by the Minister, the finding at [55] refers back to those at [33]. Those findings are themselves based on all the reasons the Tribunal gives at [10]-[34].[61] Those reasons include but are not limited to the applicant’s two returns to Iraq and provide no foundation for the assertion that all the claims in his protection visa application were not taken into account as asserted by this ground. Indeed those claims are specifically referred to and quoted by the Tribunal at [13].[62]
[61] CB 424-433
[62] CB 426
Resolution
This ground contends that in finding the applicant had provided incorrect information about his nationality and his claims of fearing harm in Iraq at [55], the Tribunal erred by not considering the documents and information he provided in support of his visa application.
At [55] the Tribunal stated:[63]
As outlined earlier, subsequent to the grant of the protection visa on 2 July 2012, the applicant returned to Iraq for the first time on 15 January 2013. On the evidence before it and for the reasons explained above, the Tribunal is satisfied that his returns to Iraq indicate that he did not fear harm as claimed. His returns also support the findings that the applicant has provided incorrect information about his nationality and his claims of harm.
[63] CB 436
I also agree with the applicant’s submissions that the Tribunal fell into error as alleged in Ground 3. This is related to the error identified in respect of Grounds 1 and 2. The Tribunal proceeded at [55] on the basis that the applicant had provided incorrect information about his nationality and his claims of harm when the Tribunal had only found that he had provided incorrect information about his nationality. That incorrect assumption by the Tribunal led it into error by failing to consider properly whether the applicant continued to face a well-founded fear of harm in Iraq for the reasons he claimed.
Ground 4 – did the Tribunal err in the exercise of its discretion by failing to consider whether the applicant knew his answers were incorrect?
Applicant’s contentions
If the Tribunal's finding of incorrect answers and non-compliance at [31]-[34] was the Narrow Scope, that is the Tribunal's finding of incorrect answers and non-compliance was limited to the applicant's answers in his protection visa application that he was "stateless" with no nationality, a question relevant to the discretionary matter of whether the Tribunal should cancel the applicant's visa was whether the applicant knew the answers were incorrect at the time he gave them. For example:
(a)if the applicant knew the answers of “statelessness” and “no nationality” were incorrect at the time he gave them, this supports a conclusion that the applicant's visa should be cancelled;
(b)alternatively, if the applicant did not know that the answers of “statelessness” and “no nationality” were incorrect at the time he gave them, this is a mitigating factor which counts against a conclusion that the applicant's visa should be cancelled.
The applicant's complaint is that, although this issue arose on the materials before the Tribunal, the Tribunal did not consider the issue.
Matters said to be in support of the above contention that the issue arose on the materials before the Tribunal are:
(a)the applicant states in the Clarification Statement at CB 235-239 that he genuinely believed that he was a stateless Bidoon in Iraq and was not an Iraqi citizen;[64]
(b)the applicant stated in a statement to the IMR that he believed that "we don't hold Iraqi citizenship and do not have the same rights as citizens".[65] The applicant added that "the treatment we receive as Kuwaiti-born Bidoons is very different to that of Iraqi citizens …".[66]
[64] see for example at [6], [8]-[10], [12]
[65] CB 69.8
[66] CB 70.3
Where a decision-maker does not consider an issue which arises on the materials before the decision-maker, this may involve jurisdictional error.[67] In SZRKT, Robertson J, in the course of reviewing authorities, noted at [111] that "there is no clear distinction in each case between claims and evidence" and "the fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error".
[67] see for example NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 11 at [55]-[63]. See also Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [71]-[122] per Robertson J
Minister’s contentions
By this ground, the applicant asserts that, in considering the exercise of its discretion to cancel the visa, the Tribunal should have considered whether the applicant knew his answer that he was stateless was incorrect at the time of the visa application. However, it is said to follow from the Tribunal's findings at [31] that the applicant had acquired Iraqi nationality prior to his claim to be stateless, and so must have been aware that his claim to be stateless was untrue.
Resolution
I also agree with the applicant’s submissions in relation to this ground. It is true that at [31] the Tribunal found that the applicant and his family had acquired Iraqi nationality. It did not find that the applicant knew that he and his family had acquired Iraqi nationality at the time he made his protection visa claims. The applicant had expressly raised in his Clarification Statement the proposition that he genuinely believed he was stateless. This was a matter bearing on the exercise of discretion by the Tribunal (noting that whether the applicant knew it or not, his answer to the question on nationality was incorrect) and it was not considered. It should have been. By failing to consider whether the applicant had a genuine belief in his claimed statelessness at the relevant time, the Tribunal fell into jurisdictional error.
Ground 5 – did the Tribunal err in finding there was no real chance of harm if the applicant is required to return to Iraq?
Applicant’s contentions
The Tribunal at [67]-[71] considered whether, if the applicant were to return to Iraq, he faced a real chance of serious harm. The Tribunal found at [71] that “the Tribunal is not satisfied that if the applicant were to return to Iraq, there is a real chance, or a real risk of serious or significant harm occurring to the applicant on any of the claimed basis”.
The Tribunal, in the course of considering this issue, considered at [68]-[69] the DFAT report, which relevantly states:
3.39 Overall, DFAT assesses that official and societal discrimination and violence towards Sunnis is increasing and tolerance for Sunnis in non-Sunni areas has declined. Sunnis located in non-Sunni areas (such as Shia areas of Baghdad and the south) face a high level of societal discrimination and violence. In Sunni areas, the risk is lower. However, in ISIL-controlled areas, Sunnis who refuse to support ISIL face a high risk of discrimination and violence.
5.18 A wide range of ethnic and religious minority groups reside in southern Iraq. The overwhelming majority is Shia, although there are approximately 400,000 Sunnis ...
(emphasis added)
The Tribunal accepted that the applicant is Sunni[68] from Basra.[69] As accepted by the Tribunal,[70] Basra is in the south of Iraq. A question of obvious significance is said to have been whether the applicant, as a Sunni, faced a real chance of serious harm if returned to the south of Iraq where “the overwhelming majority is Shia”. As stated above, the Tribunal at [68]-[69] considered the DFAT report. It is clear that the Tribunal had regard to [3.39] of the DFAT report, because the Tribunal quoted part of [3.39] at [68]. Yet the Tribunal did not refer to that part of [3.39] which stated that “Sunnis located in non-Sunni areas (such as … the south) face a high level of societal discrimination and violence” (emphasis added). Thus, the applicant submits that the Tribunal did not refer to, engage or deal with that part of the DFAT report which was most critical to an assessment of whether the applicant faced a real chance of serious harm if required to return to Iraq.
[68] see at [68]
[69] see at [67]
[70] see at [69]
The applicant’s complaint is that the Tribunal, by not engaging or dealing with that part of the DFAT report which was most critical to an assessment of whether the applicant faced a real chance of serious harm if required to return to Iraq, committed a jurisdictional error. He acknowledges that, as stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[71]
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.
[71] [2004] FCAFC 10 at [11]
Thus, if there is conflicting country information, the Tribunal may choose one item of country information over the other and, so long as the Tribunal explains its choice, there is no jurisdictional error.[72] But, there is said to have been no conflicting country information in the present case. The applicant contends that the Tribunal ignored or failed to deal with that part of the DFAT report which was most critical to an assessment of whether he faced a real chance of serious harm if required to return to Iraq.
[72] cf BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094
Minister’s contentions
It is said to be apparent from a fair reading of [68][73] that the Tribunal was aware of the applicant’s position as a Sunni in a majority Shia area, but at [67]-[70] placed weight on the applicant’s voluntary returns to Iraq and the lack of harm that he experienced on those trips, and the fact that the applicant’s family continued to live in Iraq without suffering harm, and the reasoning in the negative International Treaties Obligations Assessment assessment[74] to find that the applicant would not face a real risk or real chance of serious or significant harm by reason of his religion in Iraq.
[73] CB 438
[74] CB 270-273
Resolution
The fifth ground concerns the Tribunal’s reasoning at [67]-[71] CB 438 where the Tribunal stated:
The Tribunal asked the applicant why he does not wish to return to Iraq and he stated he was threatened. The Tribunal asked him how he was threatened and he stated that pieces of paper were left under the door. He said they were threats relating to his sons who were working for the British Security Company. Although he was not sure, he said that his sons had to leave the company in 2007. The Tribunal asked him the whereabouts of his sons and he stated that they live with their mother some 13 km away from Basra. The Tribunal noted that there is no evidence and he is not claiming that they have suffered any harm. The Tribunal is of the view that the fact that his sons and other members of his family continue to live in Iraq without suffering harm suggests that they do not hold any adverse profile of interest to anyone. The Tribunal is satisfied that the applicant's returns to Iraq without facing harm also suggest that he does not have a profile of adverse interest. The Tribunal recognises that past harm is not the relevant question, however, past harm could be a reasonable guide to future harm.
The Tribunal has decided to give the applicant the benefit of the doubt and accepts as plausible that the applicant is of the Sunni faith. The Tribunal discussed with the applicant information about Sunnis in Iraq. The Tribunal acknowledged that Sunnis could face violence and that DFAT's report of June 201713 refers to an increase in societal discrimination and violence. The Tribunal has carefully considered the situation in Iraq, however, and for the reasons stated the Tribunal is not satisfied that the applicant has a profile that could potentially mean that he would be targeted on the basis of his Sunni faith, or for being a Bidoon (registered as found by the Tribunal), or for having lived in Kuwait, or on any other basis.
Although the situation as reported in DFAT's most recent report of 2017 is somewhat different to when the applicant went to Iraq on the previous two occasions, it does suggest that the applicant does not have an adverse profile. The fact that no harm has come to the applicant's family, particularly his sons in Iraq is further evidence of low risk of future harm. The Tribunal acknowledges that no one can guarantee the personal safety of the applicant and that the security situation in Iraq is somewhat volatile. DFAT's report of 2017 refers to the south of Iraq as being more secure than other parts of the country, although there have been suggestions of deterioration of law and order in Basra.
The Tribunal discussed with the applicant the information contained in the delegate's decision record relating to the International Treaties Obligations Assessment (ITOA) completed on 16 February 2017. The Tribunal noted that the assessment found that the applicant is not a person in respect of whom Australia has non-refoulement obligations. Although the Tribunal has to make its own assessments, the Tribunal gives significant weight to the findings of the ITOA.
The Tribunal has carefully considered the applicant's circumstances and in consideration of the evidence as a whole, the Tribunal is not satisfied that if the applicant were to return to Iraq, there is a real chance, or a real risk of serious or significant harm occurring to the applicant on any of the claimed basis.
This ground contends that the Tribunal failed to engage with [3.39] of the DFAT report, ie that Sunnis in non-Sunni areas such as the south of Iraq face a “high level of societal discrimination and violence”.
I prefer the Minister’s submissions in relation to this ground. It is tolerably clear that the Tribunal was focused on not just country information but the actual experiences of the applicant and other members of his family. In that regard, I accept that it was open to the Tribunal to find that the applicant’s family had continued to live in Iraq without suffering harm and that the applicant had been able to travel to and from Iraq safely. That is not to say that a different decision maker might not have come to a different decision on that issue, by reference to the country information or otherwise.
This is, of course, an important issue that should be considered further on remittal.
CONCLUSION
The applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. The applicant should receive the relief he seeks. I will make orders for the issuing of writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 29 January 2021
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