EPD19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 866

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EPD19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 866

File number:

MLG 4051 of 2019

Judgment of:

JUDGE GOSTENCNIK

Date of judgment:

11 September 2024

Catchwords:

MIGRATION – protection visa – application refused – whether Tribunal decision was illogical, irrational or unreasonable – whether Tribunal made inconstant findings – whether Tribunal misconstrued or misunderstood the meaning of the phrases ‘serious harm’ and ‘significant harm’ - jurisdictional error not established – application for judicial review dismissed

Legislation:

Migration Act 1958 (Cth) ss 5H, 5J, 36

Migration Regulations 1994 (Cth) sch 2

Cases cited:

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577

SZNKO v Minister for Immigration and Citizenship [2013] FCA 123

SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566; (2013) 135 ALD 276

SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of hearing:

26 August 2024

Place:

Melbourne

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr M Plitsch

Solicitor for the First Respondent:

Australian Government Solicitors

Counsel for the Second Respondent:

The second respondent filed a submitting appearance

ORDERS

MLG 4051 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EPD19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEAL TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GOSTENCNIK
DATE OF ORDER:	11 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

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 Gostencnik

1. The applicant is a Malaysian national who arrived in Australia on an Electronic Travel Authority (Class UD) (Subclass 601) visa on 31 August 2016: Court Book (CB)35, CB37.  On 28 November 2016, the applicant applied for a protection visa: CB11-CB52, claiming protection because he left Malaysia for Australia to “save his life”, fearing that he would be caught and tortured or killed by money lenders to whom he was indebted and unable to repay the debt: CB46.  The applicant claimed:

   (a)he had been beaten in the face and kicked in the stomach by the money lenders: CB47;

   (b)he did not make a police report because he was afraid, and because Malaysian authorities considered his circumstances a personal matter and would not take any action had he made a police report: CB47;

   (c)Malaysian authorities could not protect him: CB48; and

   (d)he could not relocate, because the money lenders had informers everywhere and that they would catch him one day: CB48.

2. A delegate of the then Minister for Immigration and Border Protection refused the applicant a protection visa on 21 March 2017, concluding:

   (a)the applicant was not a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) (Act) in respect of whom Australia has protection obligations as outlined in s 36(2)(a);

   (b)there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk he would suffer significant harm as defined in s 36(2A) of the Act. Consequently, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa): CB67-CB74.

3. Thereafter, by application made on 31 March 2017, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision: CB80-CB86. By correspondence to the applicant dated 6 April 2017, the Tribunal informed the applicant that it had requested the Department of Immigration and Border Protection to provide the Tribunal with all documents and files which the Department considered to be relevant to the applicant’s application. The applicant was also informed that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible: CB88.

4. On 14 June 2019 the Tribunal wrote to the applicant inviting him to attend a hearing scheduled for 3 July 2019 at which he could appear, give evidence and present arguments relating to the issues in his case: CB92.  The applicant was also requested to read and return an enclosed ‘Response to Hearing Invitation’, and to attach any additional or new information which he would like the Tribunal to consider: CB92-CB93.  The Tribunal hearing was conducted over three days - 3 July 2019, 1 October 2019 and 24 October 2019: CB94, CB104, CB106, CB110 and CB114 – at which the applicant was assisted by a Malay interpreter.

5. At the Tribunal hearing on 3 July 2019 the applicant provided some documents to the Tribunal including a letter signed by the applicant addressed to the Tribunal and dated 21 June 2019: CB97-CB102. In that letter the applicant alleged that:

   (a)back in his hometown he was facing some issues including that he owed a person money, repayment of which was overdue, and the lender came to compel and harass him to make the repayment;

   (b)he was not advanced by his employer - a company in Malaysia - beyond the level at which he commenced employment despite having worked for the company for more than 4 years - because the company did not see his work performance and was being racist;

   (c)he had been framed by an unknown person and arrested by Malaysian authorities one night when returning home, after his car was stopped and inspected.  The authorities found marijuana in the applicant’s car, which the applicant said was for personal use.  The applicant alleges the authorities demanded that he pay RM5,000.00 to avoid arrest;

   (d)he borrowed money from “some people” to pay the authorities;

   (e)he made the payment that night, he was released, and he returned home;

   (f)he was frightened the authorities would return and demand more money; and disturb the family; and

   (g)the authorities returned to the applicant’s house and visited his workplace looking for him for “weeks”, and so he decided to “go abroad and move [his] mother to a safer place to [his] sister[‘s] house”.

   THE TRIBUNAL’S DECISION AND REASONING

6. By a decision made on 29 October 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa: CB119, CB125 at [24]. In its Statement of Decision and Reasons, the Tribunal set out at [3]-[7] the criteria for a protection visa by reference to s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Regulations).  At [8] the Tribunal set out that it has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, in accordance with Ministerial Direction No. 84.

7. At [9] of its Statement of Decision and Reasons, the Tribunal set out the applicant’s claims contained in his written application for protection.  At [10] the Tribunal reproduced the content of the applicant’s earlier mentioned letter given to the Tribunal on 3 July 2019.  The Tribunal summarised the applicant’s oral evidence given at the hearing at [11] as follows (reproduced verbatim):

   •He departed Malaysia in 2016 because he had been working for five years and wasn’t earning enough money. He was helping his single mother and sisters and the income was not enough for him. He heard it was easy to get a better job and make a living in Australia.

   •He purchased a house in 2015 with his sister. This was the family home, and he lived there on his own before leaving Malaysia. They borrowed from a bank. The house is in Kota Kinabalu. The applicant also had a car loan.

   •He borrowed the money in 2016 from a money lender to meet his house and car bills in around March or April. He got into trouble after about three months. He had tried to pay his debts before leaving Malaysia but made not much progress. He got harassed by the money lenders who demanded he pay up. He was worried they may hurt him or his family. He moved his mother to his sister’s house- she lives in Kota Kinabalu also.

   •When he was late by a few months, the money lenders came and said he needed to pay half of the money otherwise it was ‘not good for him’. This happened a few times. They came to his workplace, spoke roughly to him, warned him to pay early. They went to his house and scared his mother. They did not assault him or his family.

   •The applicant said that he didn’t report it to police but later said that he made an ‘informal report’ and they told him ‘they needed evidence’.

   •A few months before he left Malaysia, he travelled to stay with a sister in Peninsular Malaysia in Selangor.

   •The applicant told the tribunal that he was no longer in fear of harm from the money lenders because he has managed to reduce the debt by more than half from his earnings in Australia. He only owes around 10,000MR currently and it is ‘no longer a problem from the money lender’ if he returns.

   •In relation to his being ‘framed’ by police, that was when he was in Selangor for 4 months living with his sister before coming to Australia. It was not so much a ‘frame up’ as a ‘dob in.’ The marijuana was for his own use but he does not know who tipped off the police – he thinks that perhaps it was the dealer. The police offered to let it slide if he paid them. So he did.

   •If he returns to Malaysia, he would prefer to live somewhere near family, either Selangor or Sabah. He fears the police in Selangor will renew their demands for corrupt money or arrest him. The applicant confirmed that the police have been seen near his sister’s house a couple of times but have not ever approached her to ask about him. There are no outstanding matters against him because of the drugs but he is fearful that it might ‘start again.’

   •The applicant had mentioned that racism was a problem in Malaysia. I asked the applicant what ‘racism’ he referred to in Malaysia and why that was a concern for him. He responded that there is some anti-Sabah racism in Selangor (where the accent is different to his own) and he would rather not be stressed by that. He said it is not really a concern but it affects his capacity to ‘fit in’ there. He agreed that he found work there whilst living with his sister.

   •He considers it may be difficult to find work in Sabah. When he was in Selangor, he worked in a hotel. He agreed that he could live and work throughout the country but would prefer to be near family.

   •The applicant agreed that not all police in Malaysia are corrupt and also with my noting that the country information reflects a number of police operations (including some in Sabah) in recent years, aimed at taking action against money lenders who use violence to recover money. He agreed that if he got into trouble in the future with the money lender, he could seek support from police and protection from violence. He responded that he would rather stay in Australia.

8. The Tribunal noted at [12] of its Statement of Decision and Reasons that the applicant did not produce any documents referrable to the loans or his financial situation. At [13], the Tribunal identified that the issues in the case were whether the applicant had a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk the applicant will suffer significant harm.

9. The Tribunal made several findings. It accepted that the applicant:

   (a)borrowed money from an illegal money lender in Malaysia and that he had some difficulty maintaining the loan to the lender’s satisfaction: at [14];

   (b)and his mother faced demands which may have suggested he would come to harm if he did not pay when he defaulted on his loan: at [14]; and

   (c)was fearful that the money lender might resort to violence at [14].

10. The Tribunal did not accept:

    (a)the applicant’s written claims that he or any member of his family were ever attacked or physically harmed by the money lender: at [14];

    (b)that a fear of serious harm from the money lender was the reason the applicant left Malaysia: at [14]; nor

    (c)that there was a real chance that the applicant will face serious harm from the money lender on return: at [14].

11. The Tribunal also noted at [14] that the applicant had:

    (a)agreed with the proposition that he had overcommitted financially and was not making enough money to resolve his financial problems and came to Australia to earn money to remedy that situation, not because he was in fear of harm; and

    (b)stated that he was no longer concerned about the money lender problem because he had substantially repaid the debt.

12. At [15] the Tribunal rejected the applicant’s claim that there was a real chance that he would face serious harm from the money lender were he returned to Malaysia, either based on the situation that existed at the time of the Tribunal hearing – the applicant having substantially repaid the debt – or in the event he fell back into arrears.  The Tribunal noted that the applicant considers he now has no such risk as he has ‘got on top of’ his financial situation during his time in Australia, and that he could go to the police if the money lenders became threatening or aggressive.

13. At [16] and [17] the Tribunal deals with the applicant’s claims about his interaction with police over his possession of marijuana. The Tribunal:

    (a)accepted that shortly before the applicant left Malaysia, he was intercepted by police and was found to be in possession of marijuana but was never charged with any offence after he paid a bribe;

    (b)did not accept that Police questioned or approached the applicant’s sister about him or his whereabouts since he left Malaysia;

    (c)found that although the applicant’s sister may have seen police in the vicinity of her home on one or two occasions, this was not a plausible link to the applicant;

    (d)was not satisfied that police had shown nor maintain any current interest in the applicant at all;

    (e)did not accept that the applicant’s one encounter with police in 2016 when paying a bribe caused the applicant serious harm - he was not subjected to assault, lengthy unlawful detention, or to any other harm apart from a financial penalty that did not cause him significant economic hardship; and

    (f)did not accept the applicant’s claim there is a real chance that he would suffer harm from the police or authorities, whether serious or not, because he had been found in possession of cannabis in 2016 and because he had bribed police.

14. At [18], the Tribunal did not accept that there is a real chance that the applicant would suffer serious harm in any part of Malaysia because of racism, concluding on the evidence the applicant would not face more than low-level inconvenience and adjustment difficulties because of ‘anti-Sabah’ racism in Selangor. The Tribunal concluded at [19] – [23] that:

    (a)There was not a real chance the applicant would suffer serious harm were he returned to Malaysia, whether because of money lenders, corrupt police or racism.  And the applicant’s fear of persecution in Malaysia was not well-founded;

    (b)Accordingly, the applicant was not a refugee within the meaning of s 5H(1) of the Act and so was not a person in respect of whom Australia has protection obligations under s 36(2)(a);

    (c)There were no substantial (or any) grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of him being removed to Malaysia; and

    (d)The applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    REVIEW GROUNDS AND CONSIDERATION

15. The judicial review application sets out one ground with particulars as follows (reproduced verbatim):

    (1)The Tribunal erred in law by making a finding that was illogical or by misconstruing the meaning of ‘serious harm’ and ‘significant harm’.

    (a)The Tribunal accepted that the applicant 'borrowed money from an illegal money lender in Malaysia and that he had some difficulty maintaining the loan to the lender's satisfaction', further accepting that 'he and his mother faced demands which may have suggested he would come to harm if he didn't pay when he defaulted on his loan; and that he was fearful that the moneylender might resort to violence': Tribunal's reasons, para [14].

    (b)The Tribunal nonetheless found that 'I consider that his own evidence suggests rather that he overcommitted himself financially and was not making enough money to resolve his financial problems and came to Australia to earn money to remedy that situation, not because he was in fear of harm': Tribunal's reasons, para [14].

    (c)The Tribunal’s findings that the moneylender might resort to violence if the applicant was unable to repay the loan, but that the applicant's desire to 'remedy that situation' was not motivated by a fear of harm, were inconsistent and its ultimate conclusion illogical.

    (d) Further, the Tribunal purported to consider 'whether, if [the applicant] fell into arrears again in future, he might face serious harm', finding that he would not on the basis of 'his own evidence about what actually happened to him and his family before he came to Australia': Tribunal's reasons, para [15].

    (e)The Tribunal's approach betrayed its view that demands amounting to a threat of violence could not — in the absence of the direct application of physical force — amount to serious or significant harm.

16. In substance the ground of review makes two complaints.  First, the Tribunal’s decision was illogical because the Tribunal found inconsistently that on the one hand, the money lender might have resorted to violence had the applicant been unable to repay his loan, but on the other, the applicant did not come to Australia because he was in fear of harm.  Second, the Tribunal’s decision was illogical because its finding that there was not a real chance the applicant would face persecution involving serious harm were he returned to Malaysia rested on the erroneous understanding that a threat of violence absent the application of physical force could not amount to serious or significant harm.  In other words, the Tribunal is said to have misconstrued or misunderstood the meaning of the phrases ‘serious harm’ and ‘significant harm’.

17. In considering whether a decision of the Tribunal is “illogical”, or for that matter “irrational or unreasonable” it must be borne in mind that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality, irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, at [131], per Crennan and Bell JJ.

1. Therefore, if the applicant’s "illogicality" complaint is to give rise to jurisdictional error, the decision to which the Tribunal came must be one at which no rational or logical decision maker could have arrived on the same evidence: SZMDS at [130].

2. Wigney J summarised the principles relevant to determining whether a decision is vitiated for jurisdictional error because of illogical or irrational findings of fact or reasoning in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 as follows:

   52.As Robertson J put it in Minister for Immigration and Citizenship v SZRKT[2013] FCA 317; (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship[2012] FCAFC 58; (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

   …

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

   55.Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT[2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]- [84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship[2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship[2013] FCA 566; (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

   56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection[2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection[2015] FCA 1089; (2015) 233 FCR 451 at 455-456 [14]- [15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

3. The applicant erroneously asserts the Tribunal found that the money lender might have resorted to violence had the applicant been unable to repay the loan. It did not. Instead, as the applicant notes correctly in paragraph (a), of the particulars to the sole review ground, the Tribunal accepted at [14] of its Statement of Decision and Reasons that the applicant and his mother ‘faced demands which may have suggested he would come to harm if he didn’t pay when he defaulted on his loan’ and that the applicant ‘was fearful that the money lender might resort to violence’. Acceptance by the Tribunal of these matters is not inconsistent with a finding that a fear of serious harm from the money lender was not the reason the applicant left Malaysia. The Tribunal’s finding was based on its assessment of the applicant’s oral evidence which the Tribunal noted suggested the applicant financially overcommitted himself, did not make enough money in Malaysia to resolve his financial problems and so came to Australia to earn money to remedy that situation, rather than because he was in fear of harm. Indeed, the applicant agreed with that proposition when it was put to him by the Tribunal: CB124 at [14]. A person can at the same time have a fear of harm, but not be motivated by that fear to act or act in a particular way. That is what the Tribunal here found and that finding was open to the Tribunal on the evidence described above.

4. The Tribunal’s conclusion that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act in respect of his claims about the money lender was, in the case of the criterion in s 36(2)(a), based on its findings at [15] and [19] of the Statement of Decision and Reasons – being that there was not a real chance the applicant would suffer serious harm were he returned, based on his experiences before he left Malaysia, the fact he had substantially discharged his debt, and the fact that he could go to the police if the money lenders became threatening or aggressive. As to the criterion in s 36(2)(aa), the conclusion was based on the Tribunal’s finding at [21] that there was not a real risk of the applicant suffering significant harm for substantially the same reasons earlier set out in this paragraph, were he returned to Malaysia.

5. Accordingly, there is nothing about the impugned findings of fact which is illogical or irrational.

6. As the first respondent correctly notes, the Tribunal did not expressly rely on any proposition that a threat of violence absent the application of physical force is incapable of amounting to serious harm.  Such a construction was not employed by the Tribunal and does not arise as a matter of necessary inference.

7. The applicant contends that the Tribunal purported to consider 'whether, if [the applicant] fell into arrears again in future, he might face serious harm', finding that he would not, based on 'his own evidence about what actually happened to him and his family before he came to Australia'.  He contends the Tribunal's approach betrayed the Tribunal’s view that demands amounting to a threat of violence could not — in the absence of the direct application of physical force — amount to serious or significant harm.  These contentions are erroneous.  The Tribunal concluded the applicant would not face serious harm if returned to Malaysia and fell into arrears again, not because he had previously only been threatened with violence rather than being subject to physical violence, but because of a combination of:

   (a)that which actually happened to him and his family before he came to Australia; and

   (b)the fact the applicant considered:

   (i)that he now has no such risk as he has ‘got on top of’ his financial situation in his time in Australia; and

   (ii)that he could go to the police if the money lenders became threatening or aggressive: CB124 at [16].

8. Moreover, that the Tribunal did not consider that physical harm is integral to finding serious or significant harm, as the applicant contends, is evident in its discussion of the applicant’s one encounter with police in 2016 at [16] of the Statement of Decision and Reasons. There, the Tribunal considered whether that encounter and paying a bribe amounted to causing the applicant serious harm. The Tribunal notes the applicant was not subjected to assault and then notes he was not subject to lengthy unlawful detention, or to any other harm apart from a financial penalty which did not cause the applicant significant economic hardship threatening his capacity to subsist. Having regard to the Tribunal’s reasoning, it seems plain that the Tribunal did not consider physical violence was a necessary element of serious or significant harm. That this is so, is underscored by its reference at [21] to s 36(2A) of the Act that a non-citizen will suffer significant harm if the non-citizen will be arbitrarily deprived of his or her life, the death penalty will be carried out on the person, the non-citizen will be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

9. For these reasons the sole ground of review is not made out and fails.

10. As the applicant was unrepresented before the Court, I have reviewed the Tribunal's Statement of Decision and Reasons and the material in the Court Book filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the sole ground of review the applicant advanced.  I have not identified any arguable case of jurisdictional error.

11. The application for judicial review is dismissed.

12. I will hear the parties on costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       11 September 2024