Eih18 v Minister for Home Affairs
[2022] FedCFamC2G 460
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIH18 v Minister for Home Affairs [2022] FedCFamC2G 460
File number(s): MLG 2543 of 2018 Judgment of: JUDGE EGAN Date of judgment: 14 June 2022 Catchwords: MIGRATION – Whether the contravention by the Secretary of the Department of the provisions of s. 473CB of the Act (by failing to provide all relevant material to the Immigration Assessment Authority) constituted jurisdictional error – whether failure material – Authority deprived of opportunity to consider the consistency of claims made by the applicant – material jurisdictional error established – application granted. Legislation: Migration Act 1958 (Cth) ss. 473CB and 473DB.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 15.02.
Cases cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 24 May 2022 Date of hearing: 31 May 2021 Place: Melbourne Counsel for the Applicant: Mr J Gormly Solicitor for the Applicant: SWL Migration Lawyers Counsel for the First Respondent:
Solicitor for the First Respondent:
Mr J Barrington
Mills Oakley
Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2543 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIH18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
14 JUNE 2022
THE COURT ORDERS THAT:
1.The Amended Application for Review filed on 24 February 2021 be granted.
2.The decision of the Immigration Assessment Authority made on 20 July 2018 be quashed.
3.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
4.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, it be constituted by a different member than the member who handed down the decision on 20 July 2018.
5.The First Respondent pay the Applicant’s costs of and incidental to the Amended Application for Review, as agreed, or failing agreement, to be taxed pursuant to the provisions of r. 22.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
Judge Davis was a former Judge of this Court. He resigned his commission as a Judge effective as and from 13 May 2022.
On 31 May 2021, Judge Davis presided over applications for review in proceedings numbered MLG 2543 of 2018, MLG 2545 of 2018 and MLG 2551 of 2018 (for convenience those matters will be respectively referred to as EIH18, EII18 and EIJ18).
As at the date of the resignation by Judge Davis of his commission, His Honour had failed to deliver judgments in EIH18, EII18 and EIJ18.
On 24 May 2022, Chief Judge Alstergren made consent orders whereby it was recorded that each of the parties in EIH18, EII18 and EIJ18 had agreed that the respective applications for review in those proceedings would be determined on the papers by another Judge pursuant to the provisions of r. 15.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). This Court has assumed that responsibility in respect of each of those proceedings.
Father’s Amended Application for Review
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in September 2012. He married the applicant in EII18 in or about December 2015. The applicant child in EIJ18 was born of the union of the applicant and his wife in or about August 2016.
At the hearing on 31 May 2021 it was conceded by Counsel on behalf of the first respondent in each of EIH18, EII18 and EIJ18 that should the applicant in this matter be successful in his amended application for review, then the other applications for review in EII18 and EIJ18 would also be successful.
On 15 June 2017, the applicant made a combined application for a Safe Haven Enterprise Visa (SHEV) on behalf of himself, his wife and his son.
On 30 November 2017, a delegate of the Minister refused to grant the visa application. Separate decision records relate to such refusal in respect of each of the applicant, his wife and his son. The decisions of the delegate were referred to the Immigration Assessment Authority (the Authority) for review.
On 20 July 2018, the Authority affirmed the decision of the delegate.
On 23 August 2018, the applicant caused his lawyer to file an Originating Application for Review. On 24 February 2021, the applicant caused a different lawyer to file an Amended Application for Review the one ground of which was as follows:
“The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:
1.The Authority’s statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the
third respondentSecretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act.Particulars
a. The Secretary did not, at the time the delegate’s decision was referred to the Authority, consider or form a view on the relevance to the review of certain documents falling within the description of ‘other material’ in s 473CB(1)(c) then in the Secretary’s possession and control or take reasonable steps to locate this potentially relevant material.
b. This material included:
i.The applicant’s Application for Refugee Status Determination (RSD) on Nauru, his transfer interview, RSD application and submissions to the RSD officer, and the sound recording of the applicant’s RSD interview.
c. These documents were not before the delegate and were not part of the domain of the documents considered by the Secretary at the time of referral of the delegate’s decision.”
Section 473CB of the Migration Act 1958 (Cth) (the Act) relevantly provided as follows:
“473CB Material to be provided to the Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
By a letter sent by Mills Oakley on 24 March 2021 to the lawyers for the applicant, [1] it was conceded on behalf of the first respondent that the Secretary had breached the provisions of s. 473CB(1)(c) of the Act by failing to provide a copy of the applicant’s transferee interview and the applicant’s statement on the department’s file to the Authority. That letter relevantly provided as follows:
[1] Annexure DRT10 to the affidavit of David Taylor filed on 7 April 2021.
“Dear Mr Taylor
EIH18 v Minister for Home Affairs & Anor
Federal Circuit Court of Australia Proceedings number – MLG2543/2018
We are the solicitors for the first respondent Minister in the above proceedings.
We attach, by way of service, an electronic copy of the supplementary court book in this matter that was filed in the Federal Circuit Court of Australia on 24 March 2021. Due to its size this needed to be filed by emailing a copy to the Registry, with the result that we do not have a sealed copy.
The supplementary court book includes those documents from the Refugee Status Determination file CLF2012/18529 which my client considers to be relevant. However, we are instructed to separately provide to you all other documents from that file, and these are also attached.
We are also instructed by my client to make the following concession in relation to s 473CB of the Migration Act 1958 (Cth):
We refer to the attached documents from the Refugee Status Determination file CLF2012/18529. Some of these, specifically the transferee interview and the applicant's statement, have been included in the Supplementary Court Book. These documents were in the Secretary's possession and control at the time of the referral to the Authority and were identifiable by systems searches. On the facts and circumstances of this particular matter as known to the Minister at this time, the first respondent concedes that the transferee interview and the applicant's statement from this file were relevant to the review. It is therefore conceded that the Secretary breached s 473CB(1)(c) by failing to give these documents to the Authority. The first respondent intends to argue that this breach was not material to the Authority’s decision.
Finally, we acknowledge that an amendment ot the existing timetable for the filing of submissions is now required. Please let us know the date by which you will [“be” not contained in letter] in a position to file submissions and we will prepare proposed orders for your consideration.
Yours faithfully
Michelle Stone
Partner
Enc.”
By an email sent by Mills Oakley on 7 April 2021 to the lawyers for the applicant, [2] it was further conceded that the first respondent’s concession that the Secretary had breached the provisions of s. 473CB(1)(c) of the Act extended to the non-provision to the Authority of the recording of the RSD interview, namely the Refugee Status Determination interview.
[2] Annexure DRT11 to the affidavit of David Taylor filed on 7 April 2021.
Consideration of Documentation Not Provided to the Authority
It was also conceded on behalf of the first respondent that the 2013 RSD statement, the Transferee Interview, and the recording of the RSD interview were relevant to the review by the Authority, were in the Secretary’s possession and control at the time of the referral to the Authority, and were identifiable by internal system searches.
It was submitted on behalf of the applicant that the documents in question were corroborative of claims which had been rejected by the Authority on review, and that had the Authority been in possession of such documents before making a decision, the Authority could realistically have arrived at a different decision.
The applicant’s claims for protection were set out at [9]-[11] of the reasons of the Authority as follows:
“[9] The applicant's claims can be summarised as follows:
•The applicant is a Tamil male who was born in [place omitted], Mullativu District in Northern Province of Sri Lanka.
•When the applicant was young, his half-brother, BM was forcibly recruited by the LTTE. BM was with the LTTE for about 6 months before escaping. In 2007, his other half-brother, KM was also forcibly recruited by the LTTE. In 2009, KM was killed when fighting for the LTTE in the civil conflict.
•In 2006, the applicant was forcibly recruited by the LTTE and taken to an LTTE camp where he was forced to complete basic cleaning duties. Shortly after his arrival he was able to escape and return home when the Sri Lankan government security forces conducted a shell attack on the area.
•In 2007, a second attempt by the LTTE to forcibly recruit the applicant was made. He escaped this attempt by running into the paddy fields.
•In 2008, the applicant and his family became displaced and moved into a "safe zone" in the [place omitted] area in the district of Mullativu. In January 2009, the LTTE forcibly recruited him. He was taken to an LTTE camp where he was forced to complete physical training exercises and basic duties. He remained at the LTTE camp for approximately seven days before escaping and returning to [place omitted].
•In April 2009, Mata Ian was captured by the security forces. The applicant along with his family was taken to an Internally Displaced Persons Camp (IDP camp) known as "[name omitted]". At [name omitted] an announcement was made by the security forces that LTTE members needed to present themselves to the SLA. The applicant presented himself and was taken to a "rehabilitation centre" known as the [name omitted] camp. After approximately two months he was transferred to another "rehabilitation centre", known as the [name omitted] camp.
•In January 2010, the applicant was released from rehabilitation into the care of his brother-in-law and was taken to the district of Jaffna to live with his mother. Two weeks after arriving, the CID attended his home and questioned him. He was advised if summonsed he must check in with them at the CID office. One and a half months later the CID attended his home again but he was not home. He was also monitored and his movements restricted.
•In February 2011, the applicant and his mother returned to their home area in the district of Mullativu where they had to register with the local Grama Sevaka (GS). Within 15-20 days of returning the authorities visited the family home and took a photograph of the applicant, registered his details and reviewed the documents he had been provided with after he had completed his period of rehabilitation. He was advised if he travelled or moved to another area he had to seek permission. He had to sign in once per month at the CID office. Each time he signed in at the CID office he was asked questions about the LTTE and where he had travelled to. Sometimes he would be taken to the SLA camp and questioned there.
•In or around January 2012, arising from the applicant’s frustration with life and the monitoring and questioning by the authorities, he attempted to commit suicide.
•In July 2012, the applicant was abducted by three CID officers in a white van. He was taken to the Army camp and physically assaulted and accused of assisting the LTTE during the civil conflict. They told him they wanted him to assist them with their intelligence work and he was told to bring Tamil girls to the camp for sexual adventures. He was detained for 3 days before being released after agreeing to their demands. He was also threatened if he did not do what they say they would find him and kill him. He returned to his home and told his mother what had happened. His mother became upset and told him he had to leave. A few days later he went to Trincomalee and boarded the boat to Australia.
•Approximately one month after the applicant’s arrival in Australia, his mother told him that the CID had gone to the family home searching for him. His mother told the CID he had gone to Australia. He visits by the CID have continued to happen.
[10]The applicant fears on return to Sri Lanka he will be detained, physically assaulted, tortured or killed by the Sri Lankan authorities including the SLA and/or CID on the basis of his ethnicity and his failure to comply with the demands of the CID officers and because he has left Sri Lanka illegally and has sought asylum overseas.
[11]It has also been contended by the applicant's representatives' that the applicant will be harmed on return by the Sri Lankan authorities on the basis his ethnicity and/or an actual or imputed political opinion arising from his ethnicity, half-brother's involvement with the LTTE, former residence in a former LTTE controlled area in the Northern Province, former period of rehabilitation (former rehabilitee), failure to comply with reporting and sign in requirements, prolonged period of residence outside of Sri Lanka, illegal departure, and return after seeking asylum in a western country, Australia (failed asylum seeker). It was also contended that the arising from the vulnerabilities of the applicant, as recognised in the QPASTT report, his risk of harm on return is heightened.
At [41] of its reasons, the Authority did not accept that on the applicant’s return to his family home in the district of Mullativu he was subjected to any reporting or sign-in requirements by the authorities. However, in the RSD interview transcript (the interview took place in Nauru on 28 March 2013) at .522 - .530, the applicant did assert that he was subjected to reporting and sign-in requirements when he returned home. The transcript relevantly recorded the following:
“522 Case officer: Did anything happen to you between when you moved back to
523 Muthuiyankaddu in 2011, and July 2012 when the army came and took you that camp?
524 Interpreter: Very often they’ll come to my home, the CID’s will come, and they’ll ask the
525 questions and taking photos. They will say we have got to have some meeting,
526 you have to come, then we had to go to those meetings.
527 Very often it happened. And every twenty days, I had to go there to sign in their camp.
528 Case officer: So, every twenty days you had to go sign into the camp while
529 you were in Muthuiyankaddu? Or in Jaffna?
530 Interpreter: In Muthuiyankaddu”
At [47]-[48] of its reasons, the Authority did not accept that the applicant was a truthful witness regarding the 2012 claimed abduction of the applicant by three CID officers in a white van. However, the applicant had addressed such issue in his RSD statement, saying that he had been detained at an isolated army camp named Kiradamadu. That account was confirmed by the applicant in his 2017 SHEV statement. Further, the applicant had consistently made such claim as recorded in the RSD interview transcript at .482 - .521 where it was said as follows:
“482 Case officer: Okay, so since you were released from Poonthoddam in 2010, have you ever been
483 arrested or detained on account, sorry. Have you ever been arrested or
484 detained since then?
485 Interpreter: When I was in Muthuiyankaddu, they were, I was arrested.
486 Case officer: And when exactly was that?
487 Interpreter: 25th of, 21st of July 2012, [Case officer coughs] before I leave the country.
488 Case officer: Okay, and what happened on that occasion?
489 Interpreter: We are not arrested by the police; we are arrested by the army. And they took us, in
490 four kilometres from our place. It’s a forest area and there is a camp for
491 army, and that area called Vasanthapuram, they took us to that camp.
492 Case officer: And what happened at that camp?
493 Interpreter: They were asking, are you an LTTE? Do you know any bigshots in LTTE
494 movement? And do you know the place where the place, the weapon
495 bunkers or other things? If you show us those things, we will let you go.
496 Like that kind of thing, they will keep on asking those questions, and
497 beating me.
498 Case officer: And what did you tell them?
499 Interpreter: I begged them, and I cried, said please leave me alone, I’m not involved in those
500 things. Please show mercy on me, I keep on begging them. And they
501 said, don’t make any dramas here, we know you and your leader
502 Prabhakaran, so you have to told every, to whatever you know. And they
503 keep on beating me that time.
504 Case officer: Did, what did they say to you about Prabhakaran? [coughs]
505 Interpreter: They were saying, your leader Prabhakaran, the LTTE leader, he’s also same like
506 you guys, he’s always hiding here and there. So, you must know all the
507 truth. You should tell us whatever you knew about these things, and then
508 they start beating me.
509 Case officer: Okay, and what did you say to them?
510 Interpreter: Then I cried again, and I told them, I’ve been to that place for only seven days, and I
511 never touch any weapons or any, or seen anything, I have no idea about
512 those details. Please don’t hurt me or torture me like this, I want to go
513 home, please, please, please.
514 Case officer: And they released you?
515 Interpreter: After three days they released me, and that time they told me, now we are releasing
516 you, you may be thinking oh you are escape from us but still we are
517 looking on you. And anytime we get any further information, then we’ll
518 catch you and then you’re going to face all these problems, whatever
519 going to be after this.
520 Case officer: And who is they exactly?
521 Interpreter: Army.”
At [51] of its reasons, the Authority rejected the applicant’s claims that the authorities had continuously attended his family home and questioned his mother about him even though he had said that his mother had told them that the applicant had “gone to Australia”. However, in the Transferee Interview document (recorded at Nauru on 27 November 2012) at p. 10 under the heading “Why did you travel to Australia”, [3] the applicant had at that early time said that the authorities had gone to his house and had been looking for him. That claim was reiterated by the applicant in his RSD interview, and recorded in the RSD transcript at .696 - .709 as follows:
[3] Affidavit of David Taylor filed on 15 February 2020 – Annexure DRT4
“696 Interpreter: Even after I left the country, still they harassing my mother, that where I am staying
697 at the moment. And they warned her that if he returned back, you had to
698 let us know whenever he returned to the country. And after that, she’s
699 worried too much and getting sick. And I’m also worried here, because
700 on her old age I couldn’t be with her or support her to look after, and I’m
701 giving more and more burden for her. And after that she’s worrying too
702 much, and whenever I take a call, she’s always crying, and she said don’t
703 come back to this country, if you come back, they won’t let you to be
704 alive. And she advised me, better you explain everything properly when
705 they’re having the interview. Every time when they’re coming inside the
706 house with the weapons, she’s getting scared again, and getting more
707 scared. But I can only, say some few words to reassure her, don’t worry,
708 they won’t do any harm for you, so you don’t worry about those things.
709 But still, they keep on questioning, where is he? Why he left the country?”
It was submitted on behalf of the applicant that had the Authority been in possession of the relevant documents at the time of its review, it would have appreciated that the contents of such documents reflected prior consistent statements having been made by the applicant about significant aspects of his claims.
It was submitted on behalf of the first respondent that the failure on the part of the Secretary to provide the subject documents to the Authority was immaterial to the outcome of the review. It was submitted on behalf of the first respondent that the Authority had arrived at its decision on bases separate and distinct from the consistent claims of the applicant made over time, and that therefore the documents, if received and considered by the Authority, could not realistically have resulted in a different decision being made.
The Court accepts the submissions made on behalf of the applicant. Though the Authority formed its own view as to what was or was not a plausible claim made by the applicant, and though the Authority had recourse to, and relied upon, country information in its decision making process, the Court is not satisfied that a different decision could not realistically have been arrived at had the Authority had the benefit of considering further substantial material which indicated that the applicant had consistently adhered to claims made by him shortly after his initial detention. The consistency of claims made by applicants in matters such as the present is important for the purposes of the Authority in its assessment of the plausibility of such claims. To rob the Authority of the opportunity to make its decision having had the benefit of reading and assessing relevant material that bolstered the chance of the applicant being found to be a witness of credit was a serious breach of the provisions of s. 473CB of the Act.
It could not be said that the Authority would have arrived at the decision it did in any event even ifall of the material had been before it at the time of its review. In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [5] – [8], Kiefel CJ and Gageler J said as follows concerning the scheme of the Act relating to the provision of relevant material to the Authority:
“[5]The review material which the Secretary has a duty to give to the Authority is specified to include a statement that sets out the findings of fact made by the person who made the fast track reviewable decision, that refers to the evidence on which those findings were based, and that gives the reasons for the decision, together with all material provided by the referred applicant to the Minister before the fast track reviewable decision was made.
[6]By operation of s 473CB(1)(c), the review material which it is the duty of the Secretary to give to the Authority also includes "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review". To consider material that is in the Secretary's possession or control to be relevant to the review within the meaning of the provision, the Secretary (who can be expected ordinarily to act through a delegate obviously needs to form the opinion that the material is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. Compliance with the duty to provide such material to the Authority accordingly necessitates that the Secretary or delegate of the Secretary turn his or her mind to the range of material that is in the Secretary's possession or control which pertains to the referred applicant in order to determine whether or not to form that opinion in relation to the whole or some part of that material. The opinion of the Secretary that material is relevant to the review (so as to be required to be given to the Authority) or is not relevant to the review (so as not to be required to be given to the Authority) must be formed reasonably and on a correct understanding of the law.
[7]The requirement for the Authority then to consider the review material that is given to it by the Secretary is not a requirement for the Authority to adopt the Secretary's opinion of the relevance of the review material to the review of the merits of the referred decision that it is the duty of the Authority to conduct. The requirement is no more than that the Authority examine the review material provided to it by the Secretary in order for the Authority to form and act on its own assessment of the relevance of that material to the review of the referred decision. Within the bounds of reasonableness, it is open to the Authority to assess review material as probative of an issue of fact arising in the review, and give that material such weight as it thinks the material deserves in making the decision on the review. Alternatively, it is open to the Authority to assess review material as wholly irrelevant to the review and place no reliance at all on that material in making its decision on the review. What the Authority cannot do is to fail or refuse to turn its attention to any of the review material that is given to it by the Secretary.
[8]To the extent that the Authority treats review material as a basis for making a finding of fact that forms part of the reason for the decision that it makes on the review, the Authority is obliged to identify that material in the written statement of reasons that it is required to give for the decision as evidence on which that finding is based.”
In CNY17, the majority (Nettle, Gordon and Edelman JJ) found that the provision to the Authority of irrelevant but prejudicial material gave rise to a possibility that the Authority could subconsciously have been adversely affected by the prejudicial material, and that there was accordingly a reasonable apprehension of bias on the part of the Authority. The converse could apply here. Having been denied the opportunity of observing a consistent claim history on the part of the applicant, there was a reasonable apprehension that the Authority could have arrived at its decision by placing more weight on the possibility of the applicant being untruthful rather than his being truthful. The Court accepts the submission made on behalf of the applicant that the review before the Authority miscarried.
The Court finds that the failure on the part of the Secretary to provide to the Authority all relevant material was a jurisdictional error, and that such error was material. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46]Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The applicant has established jurisdictional error on the part of the Authority.
The decision of the Authority is quashed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 14 June 2022
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