EWQ17 v Minister for Immigration
[2019] FCCA 3439
•2 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWQ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3439 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether there was a failure to comply with s.437CB – whether inadequate translation – whether failure to afford procedural fairness in relation to a certificate – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5H, 36, 46A, 473CA, 473CB, 473DB, 473DC, 473EA, 473GB, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | EWQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 588 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 26 June 2018 and 18 March 2019 |
| Date of Last Submission: | 18 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 2 December 2019 |
REPRESENTATION
| Applicant: | In person Mr J L Cameron (written submissions) |
| Solicitors for the Applicant: | AUM Legal (written submissions) |
| Counsel for the First Respondent: | Mr P R Macliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 588 of 2017
| EWQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 6 November 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 13 October 2017.
The IAA affirmed a decision made by a delegate of the then Minister for Immigration and Border Protection (the “Minister”) on 9 February 2017 not to grant the applicant a Safe Haven Enterprise Visa (the “visa”).
The applicant seeks judicial review in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must satisfy the Court that the IAA fell into jurisdictional error.
The Court had before it the following materials:
a)the application for judicial review;
b)an affidavit of Jodie Ellen Coomber affirmed on 21 February 2018;
c)a Court Book (“CB”) numbering 213 pages (marked as Exhibit 1);
d)an affidavit of Sara Anicic affirmed 14 March 2019;
e)written submissions from the Minister dated 5 June 2018;
f)written submissions from the Minister dated 17 July 2018;
g)written submissions from the Minister dated 8 April 2019;
h)written submissions from the applicant dated 29 April 2019;
i)written submissions from the applicant dated 5 November 2019;
j)written submissions from the Minister dated 18 November 2019;
k)a transcript of the hearing held on 26 June 2018; and
l)a transcript of the hearing held on 18 March 2019.
Background
The Minister’s submissions dated 5 June 2018 (at [3]-[9]) accurately summarise the factual background to this matter. The summary provided was not disputed. The Court adopts that summary as its own. It provides as follows.
The applicant is an Afghani citizen (CB 3).
On 15 November 2012, the applicant arrived in Australia at Christmas Island as an “unauthorised maritime arrival” (CB 53).
On 16 February 2013, the applicant took part in an irregular maritime arrival entry interview with an officer of the Minister’s Department (“entry interview”) (CB 1-22).
By letter dated 11 May 2016 the Department advised the applicant that the Minister had lifted the bar under s.46A of the Act to allow him to apply for the visa (CB 23-27).
On 30 September 2016, the applicant applied for the visa (CB 28-97). The applicant’s claims were summarised by the IAA at [8] of its decision as follows:
• The applicant is an Afghan citizen of Hazara ethnicity who was born in Dumjoy in Jaghori district, Ghazni province in approximately 1981 and practises Shia Islam. The applicant’s mother, brother, wife and children and one sister live in Jaghori; another married sister recently moved to Kabul, and his younger sister is living and studying at a university in Kabul.
• In 2010 the applicant’s father was killed in a bomb blast at the provincial office in Kandahar. In 2011-2012 the applicant’s brother, who was a transport driver for the American forces, went missing while travelling to Herat.
• Between 2003 and 2005 the applicant worked as a driver for the United Nations (UN). He was based in Jaghori and drove foreigners between Jaghori and Ghazni and sometimes from Ghazni to Kabul or Paktiya. He also carried equipment for the UN staff. When the applicant was carrying passengers he always had security escorts with the vehicle.
• After he finished working for the UN the applicant commenced work in his father’s bakery in Kandahar in mid-2006. Between 2006 and 2008 the applicant worked in Kandahar and occasionally travelled to Jaghori. In 2008 he moved to Kandahar permanently with his family, where he continued working in the bakery.
• Many organisations used to visit the bakery to buy bread, including people working for foreign organisations based in Kandahar. After the applicant obtained a contract to supply bread to the army camp he received threats from the Taliban on 3 occasions over a two month period. The applicant did not pay attention to the threats on the first two occasions. However when the Taliban on the third occasion indicated that they were aware the applicant had worked for the UN the applicant took the threat seriously and closed the shop, took his family back to Jaghori and departed Afghanistan.
• The applicant fears being killed by the Taliban as he is perceived to be anti-Taliban due to his employment and he has not followed the restrictions imposed by the Taliban. He fears that his adverse profile arising from him being personally targeted will be enhanced by his return from a western country. He also fears serious harm as a Shia Hazara particularly when travelling on the roads.
The applicant attended an interview with a delegate of the Minister on 27 January 2017 (CB 113 and 151).
On 9 February 2017, the delegate made a decision refusing to grant the applicant the visa (CB 147-159).
The delegate’s decision was referred to the IAA on 14 February 2017 in accordance with s.473CA of the Act (CB 165).
On 6 March 2017 the applicant’s agent provided a submission to the IAA in relation to the delegate’s decision. A photograph and links to information sources were included with the submissions (CB 181-188).
On 13 October 2017 the IAA affirmed the decision not to grant the applicant the visa (CB 199-213).
The IAA’s Decision
It is not disputed that the applicant here satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. The Court will consider this section in more detail below when considering ground 1.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are provided in s.473DD of the Act.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The Minister’s submissions of 5 June 2018 (at [15]-[19]) accurately summarises the IAA’s decision. The Court adopts the summary provided as its own. With some additions, it provides as follows.
In this matter, the IAA noted that it had had regard to the material given by the Secretary under s.473CB of the Act (CB 200 at [3]).
The IAA noted that it had received a submission from the applicant’s agent and, to the extent that that submission was argument, it could also be considered (CB 200 at [4]).
To the extent that the submissions contained “new information”, the IAA noted as follows:
5. The submission also states that in 2012 the applicant secured a contract to supply bread to foreign organisations on a weekly basis. He claimed that his bakery was one of the few that provided sliced bread which was liked by the foreigners and photos of the type of bread supplied to foreigners and of the Afghani flat bread were included with the submission to illustrate the difference between the two breads. Although the issue regarding the contract to supply bread to the army/foreigners was before the delegate, these other details, including the photos, were not and are new information. The applicant, who attended the SHEV interview with his legal representative, stated at the SHEV interview that he had a contract with the foreign forces to supply bread which he obtained when he was running the bakery after his father’s death but did not elaborate further. Although the representative submits that the delegate did not thoroughly examine the applicant’s claims at interview, I am satisfied that the applicant was aware of the importance of providing all information to the delegate and was given an opportunity to do so during the interview. The applicant made an oral submission at the end of the interview and the legal representative also made some further comments. I am not satisfied that the information could not have been provided prior to a decision. Although I accept that it is credible personal information, which provides further detail regarding the type of bread supplied by the applicant I am not satisfied that had it been known to the Minister, it may have affected consideration of the applicant’s claims. Nor am I satisfied that there are exceptional circumstances for considering it.
6.The submission refers to a number of documents which predate the delegate’s decision. These include:
• Excerpts from a Canadian immigration and Refugee Board (IRB) report dated 22 February 2016 and a European Asylum Support Office (EASO) report dated December 2012 which the representative claims have been provided in response to the delegate’s adverse credibility findings, and are said to be supportive of the applicant’s claims to have an ongoing adverse profile due to his employment. Both documents predate the delegate’s decision, were not before the delegate and are new information. The delegate discussed the applicant’s claims to have been threatened at the interview but did not raise any credibility concerns in regard to these or other aspects of the applicant’s claims and when asked by the representative if there were any concerns which the representative should address the delegate indicated there were none. The delegate subsequently made credibility findings that the applicant was not subject to threats as claimed. I am satisfied that the applicant was not on notice and therefore may not have been aware of the potential relevance of this information prior to the decision being made and in the circumstances, this information could not have been provided prior to the delegate’s decision and that there are exceptional circumstances for considering the documents.
• Citing of five reports which the representative states are indicative of the deteriorating security conditions for Shia Hazaras in Afghanistan. All five reports were published in 2015 and predate the delegate’s decision. Two reports regarding the abduction of Hazaras were cited by the representative in a submission that was before the delegate, are not new information and I have considered them. The other three reports which refer to the targeting of Hazaras by Islamic State were not before the delegate and are new information. I note that the representative provided a written submission dated 22 September 2016 which addressed the targeting of Hazara Shias including by Islamic State. I also note that the documents are dated and there was more recent information before the delegate in respect to Islamic State. I am not satisfied the articles could not have been provided to the delegate prior to a decision or that they are credible personal information that may have affected consideration of the applicant’s claims. Nor am I satisfied that there are exceptional circumstances for considering them.
• List of reports of various attacks between 2015 and March 2017 which the representative submits is evidence of the real risk of harm to the applicant in other parts of Afghanistan to which the delegate found he could relocate. With the exception of the report of a March 2017 attack in Kabul all other reports predate the delegate’s decision and were not before the delegate. I note relocation to Kabul was discussed at interview with the applicant, and the security situation in Afghanistan was addressed by the representative in a submission of 22 September 2016. I am not satisfied that this information could not have been provided prior to a decision or that it is credible personal information. Nor am I satisfied that there are exceptional circumstances for considering it. The media report of a suicide attack on a police headquarters in Kabul in March 2017 is new information which postdates the delegate’s decision and as such, I am satisfied it could not have been provided to the delegate prior to a decision. The attack is indicative of the security situation in Kabul and the targets of such attacks and is relevant to the consideration of the applicant’s relocation to Kabul. I am satisfied that there are exceptional circumstances for considering it.
• A Blue Mountains Refugee Support Group report regarding the viability of relocation to Mazar−e−Sharif. Although predating the delegate’s decision, this report was not before the delegate and is new information. The delegate discussed relocation to Kabul at the SHEV interview with the applicant; however Mazar−e−Sharif was not mentioned by the delegate as a possible place of relocation. The delegate subsequently made findings that the applicant could relocate to Mazar−e−Sharif as well as Kabul. I am satisfied that the applicant was not on notice that return to Mazar−e−Sharif was a relocation option and in the circumstances am satisfied that this information could not have been provided prior to the delegate’s decision and that there are exceptional circumstances for considering it.
The IAA also obtained new country information regarding the security situation in Afghanistan for Hazara Shias generally. The IAA found there to be “exceptional circumstances” to justify considering this information (CB 202 at [7]).
The IAA then outlined the applicant’s claims (as extracted above).
The IAA accepted that the applicant had worked as a driver for the United Nations (“UN”) in Jaghori and that he was not targeted on the roads when transporting officials. The IAA noted that the applicant did not claim to have personally been subjected to threats or intimidation during or after this employment. The IAA stated that, generally, if a person quit their job or ceased activities of adverse interest, the Taliban would not further target or threaten a person (CB 203 at [12]).
The IAA was not satisfied that the local Taliban were aware of the applicant’s work for the UN or that they considered him to be of adverse interest due to this work (CB 203-204 at [13]).
At [14]-[15], the IAA summarised the applicant’s evidence regarding his claim to have received threats as he was supplying bread to foreign forces.
At [16], the IAA found:
16. I accept that the applicant worked for his father in the bakery from 2006 until 2010 and after his father’s death in 2010 he took over the business which he ran until he closed the business in 2012. I also accept that the applicant obtained a contract to supply bread to foreigners at the local army camp near Kandahar, and that the Taliban became aware of the arrangement and made threats against him. This is supported by country information indicating that insurgents were intimidating and targeting civilians including low profile people such as locally contracted food suppliers due to their perceived collaboration with the Afghan government with threat letters usually being used in the south of Afghanistan (where Kandahar is located) to instruct individuals to stop an activity. It was also reported that the Taliban had a strong presence in Kandahar city and were identifying residents who were collaborating with the government and targeting them.3 I am not satisfied that the Taliban in Kandahar were aware of the applicant’s previous UN employment, particularly given the applicant was not of interest to the Taliban when he was working for the UN in Jaghori, and had not been threatened or harmed in Jaghori or after he moved to Kandahar despite country information indicating there was evidence of occasional intimidation and targeting of UN staff. Additionally when the applicant received the threats in Kandahar he had not worked for the UN for over seven years and had lived in Kandahar for approximately six years without attracting any adverse interest arising from his previous employment or for any other reason. Country information also indicates that those who ceased activities of adverse interest to the Taliban were not usually targeted afterwards. After consideration of the applicant’s account and supporting country documentation I accept that the applicant was of adverse interest to the Taliban due to his local contract arrangements with the army camp and was threatened by the Taliban in Kandahar for this reason. I also accept that the applicant closed the bakery and left Kandahar due to a fear of being killed. However I am not satisfied that the applicant was of adverse interest to the Taliban in Kandahar due to his former work with the UN and targeted for this reason.
The IAA noted that the applicant had not worked for the UN for approximately 12 years and there was no evidence that he had had any ongoing association, any offer of employment or was likely to be employed by a similar organisation upon his return. The IAA was not satisfied that the applicant would be perceived to be collaborating with the international community and, as such, be considered to hold anti-Taliban views due to his former employment with the UN (CB 206 at [20]).
The IAA noted that, while it accepted that the applicant was of adverse interest to the Taliban in Kandahar when he left Afghanistan in 2012 (due to his supplying bread to foreign forces), the country information indicated that “low profile people” such as locally contracted food suppliers who quit their employment or who stopped their activities and left the area were generally not further targeted by the Taliban. In circumstances where the applicant had closed the bakery and left Kandahar in 2012 (over five prior to the IAA’s decision) and he had not indicated that he would return to Kandahar, the IAA was not satisfied that the applicant would be targeted for that reason (CB 206 at [21]).
The IAA then referred to DFAT and country information and stated that, in general, returnees from western countries were not specifically targeted on the basis of being failed asylum seekers (although there were occasional reports of kidnappings). The IAA noted that there was no evidence of recent incidents on the roads or of returnees being targeted in Jaghori (where the applicant travelled for work and where his family lived) (CB 206 at [22]).
On the evidence before it, the IAA was not satisfied that returnees like the applicant were targeted in Jaghori by insurgents or that the applicant would be targeted on his return as pro-western or a perceived collaborator with the international community due to his former employment (CB 206 at [23]).
At [24], the IAA referred to country information concerning Hazaras and Shias. The IAA stated that it was satisfied that the applicant could reside in Jaghori safely without a real chance of harm as a Shia Hazara. Although the IAA accepted that there were a number of incidents during 2015 where Shia Hazaras were targeted on the roads, it found that there was no evidence that Shia Hazaras were targeted in Jaghori itself. The IAA noted that there had been few security incidents and little insurgent activity within Hazara dominated Jaghori (CB 207 at [25]).
The IAA was not satisfied, having considered the applicant’s history and profile, including his ethnicity and religion, his former employment, and his residence in Australia, that there was a real chance that the applicant would be harmed in Jaghori in the reasonable foreseeable future (CB 207 at [26]).
At [28]-[31], the IAA considered the applicant’s claim to fear harm as a Shia Hazara travelling between cities:
28. As noted above, country information indicates that Hazaras were targeted in Pashtun areas on roads between Kabul and Hazarajat during 2015.There were reports in 2014 of two returnees from Australia being targeted on the roads when returning to Ghazni. However there is no recent evidence of Hazaras being targeted on these roads in 2016 or more recently due to their ethnicity or religion. Nor have there been any further reports of the targeting of returnees on the roads since 2014.
29. Given the absence of evidence regarding the targeting of returnees since 2014 or of Shia Hazaras on the roads to Jaghori in 2016 or more recently, and the applicant’s lack of profile due to his previous employment, or as a returnee I am satisfied that the applicant does not face a real chance of harm on the roads when returning to Jaghori.
30. I also note that there is a regular flight connection. between Kabul and Bamiyan. The applicant is therefore not restricted to road travel when accessing Hazarajat, and would be able to return to Jaghori from Bamiyan airport on roads through adjoining Hazarajat areas which are considered safe. Given that the applicant’s return via air would be a single journey and his demonstrated ability to send money transfers to his family in Afghanistan I am satisfied that the applicant would be financially able to travel by air to Bamiyan.
31. On the evidence, I am not satisfied that the applicant would face a real chance of harm in Jaghori or in travelling to his home area either on the road from Kabul or via Bamiyan airport and on roads through adjoining Hazarajat areas which are considered safe, as a returnee Shia Hazara, or due to any profile arising from his former employment, other associations or for any other reason. I am not satisfied there is a real chance the applicant will be harmed in Jaghori or when travelling on the roads to return to his home area.
The IAA then concluded that the applicant did not meet the definition of a refugee in s.5H(1) of the Act. As such. the applicant did not meet the requirements of s.36(2)(a) of the Act.
In relation to the complementary protection criterion, the IAA (relying on its findings in relation to the refugee criterion) found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia there was a real risk that the applicant would suffer significant harm. As such, the IAA determined that the applicant did not meet the criteria in s.36(2)(aa) of the Act (CB 208-209 at [33]-[37]).
Proceedings in this Court
In his application to this Court the applicant relies on two grounds of review as follows:
1. The decision of the Immigration Assessment Authority(IAA) to affirm the decision not to grant the applicant protection visa and dated 13 Oct 2017is affected by jurisdictional error because the IAA carried out the review in circumstances where the Secretary had not provided all of the material it was required to give the IAA i=under (sic) s473 CB of the Migration Act 1958 (Cth)(Migration Act)
Particulars
The IAA does not set out the material provided to it by the Secretary under s473CB of the Migration Act in its reason for decision and it is to be inferred thereby that the Secretary did not provide all the material it was required to provide.
2. The decision of the Immigration Assessment Authority(IAA) to affirm the decision not to grant the applicant protection visa and dated 13 Oct 2017is affected by jurisdictional error because contrary to s 473DB(1) of the Migration Act 1958 the IAA did not consider all of the material given to it by the Secretary under s 473CB of that Act.
3. Particulars
The IAA does not set out the material provided to it by the Secretary under s473CB of the Migration Act in its reasons for decision and it is to be inferred thereby that the IAA did not consider all of that material.
(Without alteration)
On 8 December 2017, a Registrar made orders programming the matter to a final hearing. Those orders required the applicant to file and serve any amended application giving complete particulars of each ground of review as well as any affidavit containing any additional evidence by 9 February 2018.
On 23 February 2018, the applicant (through his Direct Access Counsel, Nicholas Poynder) filed an affidavit from Jodie Ellen Coomber (affirmed on 21 February 2018) which annexed a transcript of the audio recording of the applicant’s entry interview and the interview with the delegate. Despite the affidavit having been filed late, no issue was taken with the Court receiving the affidavit into evidence.
The applicant did not file and serve any amended application or any written submissions in accordance with the Registrar’s orders.
This matter was first heard on 26 June 2018. The applicant appeared without legal representation.
The Court notes the remarks of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is appropriate in a protection visa hearing for an unrepresented applicant to be given an opportunity to explain orally the matters they believe give rise to any grounds of review.
At the 26 June 2018 hearing, the Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT (2013) 212 FCR 99 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that this Court cannot undertake a “merits review” of the IAA’s decision and cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
At the hearing on 26 June 2018 the applicant raised concerns about the quality of the entry interview held on 16 February 2013 and his interview with the delegate on 27 January 2017. His main concern seemed to be that either the translation provided was inadequate and/or the questions directed to him lacked substance/detail, such that the information before the IAA was incomplete/inadequate.
The Court adjourned the hearing and made orders as follows:
1. On or before 17 July 2018 the first respondent advise the Court that the recordings or transcripts from the applicant’s arrival interview dated 16 February 2013 and the applicant’s Temporary Protection Visa Interview dated 27 January 2017 were before the Immigration Assessment Authority.
2. On or before 17 July 2018 the first respondent has leave to file submissions in relation to the applicant’s interviews of 16 February 2013 and 27 January 2017.
3. On or before 7 August 2018 the applicant has leave to file and serve written submissions in response to the first respondent’s written submissions.
4. The matter be listed for a resumed hearing on a date to be fixed.
On 27 June 2018, the Minister confirmed by email to Chambers that the IAA did have the audio of both the arrival interview and the interview before the delegate. Written submissions were then received from the Minister in accordance with the Court’s orders. No further submissions were received from the applicant.
The matter returned for hearing on 6 March 2019. Unfortunately, the interpreter arranged for the hearing did not appear. The Court adjourned the hearing to 18 March 2019.
The matter returned on 18 March 2019. The applicant was assisted by a Hazaraghi interpreter. The applicant was, again, not legally represented.
In the course of the hearing, the Minister alerted the Court to the fact that, in this matter, the IAA had received material the subject of a s.473GB certificate. The Minister provided the Court with an affidavit of Sara Anicic affirmed 14 March 2019 which annexed the documents which were the subject of the certificate.
Noting that the applicant was unrepresented, the Court made orders at the conclusion of the hearing requiring the Minister to file and serve written submissions relating to the certificate issue. The applicant was provided an opportunity to respond.
The Minister filed submissions in accordance with those orders on 8 April 2019. The applicant then obtained legal representation. On 29 April 2019, the applicant’s legal representatives filed written submissions.
At a directions hearing on 7 May 2019, the Court ordered that the matter be adjourned pending delivery of the High Court’s reasons in BVD17 v Minister for Immigration & Border Protection [2019] HCA 34 (“BVD17”).
Following judgment being delivered in BVD17 in October 2019, the Court made orders for the parties to file written submissions in light of that judgment. Those submissions were received on 5 November 2019 and 18 November 2019 from the applicant and respondent respectively.
Consideration
The Court notes that, at the hearing on 18 March 2019, the applicant was asked if there were any other concerns he had in relation to the IAA’s decision. The applicant explained that he was afraid to return to Afghanistan and detailed how hard he had worked to build a life in Australia. The applicant was visibly emotional and the Court adjourned to allow him time to compose himself.
The Court is not unsympathetic and does not doubt that the applicant genuinely fears returning to Afghanistan. Unfortunately, the applicant’s oral submissions do not identify error in the IAA’s decision. They appeal only to the merits of the applicant’s claims for protection.
The application for judicial review contains two grounds of review (noting that the third point on the judicial review application merely references the particulars relevant to ground 2). The Court will address these grounds below. The applicant (at hearing on 26 June 2018) also raised issue with the adequacy of the translation and the quality of the questioning at the entry interview and interview with the delegate. The Court will address this issue as “ground 3” below. Finally, the Court will address what, if anything, arises from the failure to disclose the certificate to the applicant as “ground 4”.
Ground 1
1. The decision of the Immigration Assessment Authority(IAA) to affirm the decision not to grant the applicant protection visa and dated 13 Oct 2017is affected by jurisdictional error because the IAA carried out the review in circumstances where the Secretary had not provided all of the material it was required to give the IAA i=under (sic) s473 CB of the Migration Act 1958 (Cth)(Migration Act)
Particulars
The IAA does not set out the material provided to it by the Secretary under s473CB of the Migration Act in its reason for decision and it is to be inferred thereby that the Secretary did not provide all the material it was required to provide.
The basis of this ground seems to be that the IAA fell into error because the Secretary failed to provide all of the material required under s.473CB of the Act.
Section 473CB of the Act states:
(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;
…
(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.
As can be gleaned from this provision there is no requirement that the Secretary provide every document on the Department file to the IAA. Here the IAA stated:
I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (Cth).
To the extent that the applicant is suggesting that the IAA was required to itemise the materials that the Secretary provided pursuant to s.473CB of the Act, the Court notes that s.473EA of the Act requires the IAA to produce a written statement that:
a)sets out the decision of the IAA on the review; and
b)sets out the reasons for the decision; and
c)records the day and time the statement is made.
As held by the Full Court of the Federal Court in BVD17 v Minister for Immigration & Border Protection (2018) 261 FCR 35 at [45]-[49], s.25D of the Acts Interpretation Act 1901 (Cth) supplements s.473EA. As such, the IAA’s decision should also set out findings on material questions of fact and refer to the evidence or other material on which those findings were based.
These provision are not, however, of any assistance to the applicant in this case. Neither provision requires the IAA to specifically set out all of the evidence before it.
Here, to the extent that the applicant is saying that the IAA erred in failing to itemise or set out the material provided by the Secretary, this argument must fail.
The Court also notes that in the Court Book materials there is a “Disclosure Checklist” which specifies the materials that were referred to the IAA (CB 160-163). The documents referenced on that checklist suggest that the Secretary complied with s.473CB.
The Court also notes that the IAA’s decision complies with s.473EA of the Act. The material findings of fact that the IAA made referred to the evidence that was relied upon. The Court refers to the “Factual Findings” at [9]-[16] whereby the IAA made findings on a number of the applicant’s claims and, in doing so, referred to the applicant’s own evidence or country information. On the basis of those factual findings the IAA assessed whether the applicant met the refugee or complementary protection criterion.
There is no evidence before this Court to suggest that the Secretary did not provide all of the material it was required to provide under s.473CB of the Act.
Further, in circumstances where the applicant bears the onus of satisfying the Court that a particular document was not provided (and he has provided no evidence that this has occurred), the Court cannot be satisfied that there has been any error. Even if the Court was satisfied that a document had not been provided this, in itself, is not sufficient to establish jurisdictional error. If a document is omitted by the Secretary which is inconsequential, the IAA will not be disabled from performing its statutory duty.
Ground 1, accordingly, fails.
Ground 2
2. The decision of the Immigration Assessment Authority(IAA) to affirm the decision not to grant the applicant protection visa and dated 13 Oct 2017 is affected by jurisdictional error because contrary to s 473DB(1) of the Migration Act 1958 the IAA did not consider all of the material given to it by the Secretary under s 473CB of that Act.
3. Particulars
The IAA does not set out the material provided to it by the Secretary under s473CB of the Migration Act in its reasons for decision and it is to be inferred thereby that the IAA did not consider all of that material.
In circumstances where the applicant is unable to identify the evidence the IAA is said to have failed to consider or explain how material not provided to the IAA affected its decision, this Court cannot be satisfied that the IAA erred.
For the reasons stated in ground 1, it is the Court’s view that the IAA’s statement that it had had regard to the material given by the Secretary is direct evidence that the IAA referred to and considered the relevant documents. The IAA is not obligated to list all of the material provided to it by the Secretary.
As noted in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], it is not necessary for the IAA to refer to every piece of evidence and every contention made by an applicant in its written reasons. As identified above, the IAA referred to the evidence that it relied upon when making the material findings of fact.
It is apparent that the IAA had regard to the material given by the Secretary. It referred to the interview before the delegate, the applicant’s identity documents and the claims and arguments that arose in the materials that were before the delegate throughout.
There is no evidence to suggest that the IAA did not consider all of the material provided to it by the Secretary.
Ground 2, accordingly, must be dismissed.
Ground 3
In relation to the applicant’s suggestion that the interviews dated 16 February 2013 and 27 January 2017 were defective or inadequate (such that the IAA did not have all relevant information before it) the Court notes the Minister’s detailed submissions as follows:
4.The transcripts of the applicant’s interviews held on 16 February 2013 and 27 January 2017 do not reveal any difficulties or inadequacies with the standard of interpretation such as could give rise to jurisdictional error.
5 It is accepted that inadequacies in interpretation can amount to jurisdictional error in decisions by the Administrative Appeals Tribunal (“the Tribunal”), if, as a result of those inadequacies, the Tribunal’s obligation to invite the applicant to a hearing pursuant to s 425 of the Migration Act is not applied in fair and just manner (see BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at [49]).
6. However, in contrast to the review of a decision by the Tribunal under Part 7 of the Migration Act, the IAA is not required to invite an applicant to a hearing in the event that the IAA should decide the review adverse to the applicant. There is no duty imposed on the IAA under Part 7AA of the Migration Act that corresponds to s 425. To the contrary, ss 473DB(1) of the Migration Act provides that, subject to Part 7AA, the IAA must review a fast track reviewable decision “(b) without interviewing the referred applicant”.
7. The applicant seeks to review the decision of the IAA, and the Court has no jurisdiction to review the delegate’s decision: see ss 476(2)(a) and 476(4)(c) of the Migration Act.
8.Even if the delegate’s decision is affected by jurisdictional error by reason of procedural unfairness due to errors of interpretation in the applicant’s interview with the delegate on 27 January 2017, it does not follow that the IAA made a jurisdictional error. Section 69(1) of the Migration Act in effect “preserves the validity” of the delegate’s decision, at least to allow review by the IAA. The jurisdictional limits to the performance of the IAA’s function on review are to be ascertained from Part 7AA.
9. Further, the IAA’s obligations in relation to the requirements of natural justice in carrying out a review are prescribed by s 473DA(1) of the Migration Act, which provides that Division 3 of Part 7AA and ss 473GA and 473GB are taken to be an “exhaustive statement” of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
10.Additionally, the IAA has a capacity to receive and (in appropriate circumstances) consider new information given to it by an applicant: ss 473DC and 473DD. And, in this case, it advised the applicant of this capacity in the information sheet which it provided to the applicant (CB 168). So, the applicant might, for example, have requested a fresh interview with the IAA if he considered that there were defects of interpretation in his interview with the delegate. But the applicant did not do this, and he raised no complaint at all with the IAA about the quality of interpreting in that interview. In those circumstances, the IAA cannot have made a jurisdictional error by failing (in effect) to exercise its available powers to “cure” any alleged defects in the translation of the applicant’s interview with the delegate which were known to the applicant but not identified to the IAA.
11.Further, and in any event, jurisdictional error on the basis of a deficiency in the standard of interpretation cannot be established in the absence of any cogent evidence: see Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44]; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788; MZART v Minister for Immigration and Border Protection [2017] FCCA 63 at [29]-[31]. The onus is on the applicant to establish a link between any errors in the interpretation and the review decision: see SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [31].
12.If a review applicant provided evidence to the IAA establishing the inadequacy of the interpretation at his or her interview with the delegate, the IAA could receive that “new information” pursuant to s 473DC(1) of the Migration Act, but subject to Part 7AA. Further, in light of such evidence, the IAA could exercise its discretion under s 473DC(3) and invite the applicant to an interview.
13.No such evidence was provided by the applicant to the IAA in this matter, and accordingly, the IAA was under no obligation to consider whether to invite the applicant to an interview as a result of any alleged deficiencies in the standard of interpretation of his interview with the delegate on 27 January 2017.
14.Nor does the transcript of the applicant’s interview with the delegate on 27 January 2017 reveal any other possible procedural unfairness to the applicant in the manner in which the interview was conducted. The transcript of that interview records, amongst other things, that the applicant was told that if he had not provided some information to the Department, or if he wished to correct some information provided previously, he could do so during the interview. The applicant was then asked if there was anything in his application that he might like to add or change, and the applicant responded “No”.
15.Further the transcript of the delegate’s questions and the applicant’s answers at pages 3-29 does not indicate that the applicant was prevented by the delegate from providing any answers which he wished to give to the delegate in response to the delegate’s questions.
16.The transcript also shows, at page 29, that at the conclusion of the delegate’s questions she advised the applicant that he would be given some time to consider what had been discussed, and that he was to take this time to make sure that everything that he wished to talk about had been covered, and also to talk to his representative. When the interview resumed the applicant provided further information to the delegate, at the conclusion of which the delegate asked whether that was all, and the applicant’s representative answered “Yes”: see transcript at pages 29-32.
The Court agrees with the Minister’s submissions.
There is no evidence before this Court that the translation services in question were inadequate or that procedural fairness was not provided.
At the commencement of the interview the delegate stated as follows:
… If you do not understand the interpreter, or you think the interpreter does not understand you, please let me know immediately by raising your hand. Do you understand the interpreter?
The applicant responded “Yes”.
This indicates that the applicant was able to understand the interpreter and that the applicant was advised that if he felt the interpretation was lacking, he must indicate this to the delegate. He did not do so.
Further, the applicant was represented by a migration agent. That migration agent provided written submissions to the IAA which made comments, or criticisms, relevant to the way in which the delegate’s interview was conducted. Specifically, the agent submitted:
We request the delegate to refer to the audio recording of the interview conducted at DIBP Office wherein the applicant was asked questions regarding the claims for only 11 minutes out of a total of one hour and 20 minutes.I firmly believe that the case officer did not take time to examine the claims of the applicant thoroughly.The applicant gets only one chance for a direct face to face interaction with the delegate.It appeared that the delegate was in a hurry to conduct the interview and to take the decision which was communicated within very few working days indicating an apprehended bias in taking the decision.
…
The applicant had difficulty in comprehending the question the first time it was asked by the delegate. He gave a general answer the first time but the second time was more specific. The applicant had already mentioned the letters received from Taliban in his statement of claims. The fact that the delegate mentions that a particular answer has to be given in response to a question at a particular time during the interview is not according to DIBP Policy wherein all information given during the interview should be considered. The comprehension of one question by the applicants should not cast doubt on his statements during the interview.
At no time did the applicant’s agent raise issue with the standard of interpretation. Further, at no time did the applicant’s agent ask for the applicant to be re-interviewed. At [5], the IAA addressed the submissions about the shortcomings alleged in the interview. The IAA was “satisfied that the applicant was aware of the importance of providing all information to the delegate and was given an opportunity to do so during the interview. The applicant made an oral submission at the end of the interview and the legal representative also made some further comments.”
Had it been the case that the applicant had taken issue with the interpretation and raised this issue before the delegate or the IAA, then the Court would need to assess whether the IAA should have exercised its discretion under 473DC of the Act. But that did not occur here.
Having reviewed the transcript of the interview, the Court is satisfied that there was no issue in relation to translation. The applicant’s responses to the questions asked were direct. They do not indicate that the substance of what was asked and what was translated was inadequate. Further, the Court does not accept that the substance of the interview was lacking. The applicant was given the opportunity to discuss his claims.
No jurisdictional error arises in relation to ground 3.
Ground 4
Ground 4 argues that the IAA erred in failing to consider exercising the discretion to under s.473GB(3)(b) of the Act by failing to reveal to the applicant (and invite him to comment upon) the certificate.
An affidavit of Sara Anicic affirmed 14 March 2019 annexed a copy of the documents the subject of the certificate. The documents contain AUSTRAC records which indicate that the applicant made a number of international money transfers between 12 April 2016 and 1 December 2016.
Applicant’s Submissions
The applicant obtained the assistance of a legal representative to assist him with his submissions on this issue. These submissions can be summarised as follows:
a)the certificate here purports to certify, although expressed as a notification, that the disclosure of the AUSTRAC documents would be contrary to the public interest. The notification is said to be given under the provisions of s.473GB(5), and claims that the information is covered by s.473GB(3) and (4) of the Act;
b)it is not immediately obvious in this case how revealing that the Department or IAA were aware of the applicant’s remittances of modest amounts to relatives could ‘prejudice the security, defence or international relations of Australia’. It would be naïve to suppose that financial transactions with the Middle East are not monitored by AUSTRAC, or that such tracking is not widely known or assumed;
c)the IAA drew a long bow in assuming that the applicant would have the resources to fund airfares for himself and his family if returned to Afghanistan at some indeterminate time, perhaps years later. Procedural fairness required that he have an opportunity to describe his present financial circumstances if these were to form part of the reasons for the IAA’s decision;
d)the reasonable exercise of the discretion reposed in the IAA by s.473GB(3) could only have led it to reveal to the applicant that it was aware of his remittances and to invite him to comment on them, and the affordability of the future airfares involved if those were considered relevant;
e)while BVD17 is distinguishable, the reasonable exercise of the discretion in s.473GB(3), having regard to the content of the documents subject to the certificate, required that the IAA reveal to the applicant, without necessarily revealing the source, that it was aware of the remittances and inviting him to comment on his financial resources; and
f)in failing to exercise the discretion, and in failing to give the applicant an opportunity to comment on the AUSTRAC material, the IAA fell into jurisdictional error invalidating its decision to affirm the delegate’s refusal of a visa.
Minister’s Submissions
The Minister’s submissions in relation to ground 4 can be summarised as follows:
a)the delegate questioned the applicant about the international money transfers referred to in the AUSTRAC report (without revealing the source of the information) during the interview with the applicant on 27 January 2017;
b)the IAA’s reasons show clearly that its analysis was in no way affected by the documents and information the subject of the s.473GB certificate. For the reasons which it set out, the IAA was not satisfied that there is a real chance that the applicant would be harmed in Jaghori in the reasonably foreseeable future or that he faced a real chance of harm on the roads when returning to Jaghori (at [26] and [29]). For the same reasons, the IAA was also not satisfied that there was a real risk of the applicant suffering significant harm in Jaghori itself or in returning to Jaghori (at [35]);
c)having regard to the IAA’s reasons, the failure of the IAA to disclose the s.473GB certificate could not have deprived the applicant of the possibility of a successful outcome. The IAA’s failure to notify the applicant of the s.473GB certificate was not material, as it could not realistically have resulted in a different decision;
d)it is accepted that the IAA exercised its discretion under s.473GB(3)(a) and had regard to AUSTRAC information regarding the applicant transferring money to his family in Afghanistan; however, there is insufficient evidence from which it can be inferred that the IAA failed to consider exercising the discretion conferred by s.473GB(3)(b): BVD17 at [37]-[40];
e)nor did the IAA’s failure to exercise its discretion in s.473GB(3)(b) (by not advising the applicant of the material the subject of the certificate and notification) amount to jurisdictional error;
f)the IAA’s failure to exercise its discretion under s.473GB(3)(b) by not disclosing the AUSTRAC material to the applicant was not material;
g)even if the IAA had advised the applicant of the notification regarding the AUSTRAC financial information, had provided that information to the applicant and the applicant had then provided evidence to satisfy the IAA that he would be unable to afford future airfares to travel between Kabul and Jaghori, that could not realistically have resulted in a different decision by the IAA; and
h)irrespective of the applicant’s ability to be able to pay for airfares to fly from Kabul to Jaghori, the IAA concluded at [29] that it was satisfied that the applicant does not face a real chance of harm on the roads when returning (from Kabul) to Jaghori. Accordingly, any error by the IAA by failing to exercise its discretion in s.473GB(3)(b) and not advising the applicant of the AUSTRAC financial information was not a jurisdictional error, as exercising the discretion in the manner contended by the applicant could not realistically have resulted in the IAA making a different decision.
Consideration
The fact that the applicant was not notified that a certificate was issued was not a denial of procedural fairness: BVD17 at [2]. As noted by the High Court in BVD17 at [34]:
…the entirety of the content of the Authority’s obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3).
Section 473GB(3) of the Act provides that:
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
The Minister has conceded that the IAA exercised the discretion under s.473GB(3)(a) to have regard to the documents (see [30] where the IAA refers to the “demonstrated ability to send money transfers to his family in Afghanistan”). There was, therefore, a duty on the IAA to consider whether to exercise the discretion conferred by s.473GB(3)(b): BVD17 at [10].
There is no express indication that the IAA had considered exercising the discretion, but there does not need to be: BVD17 at [40].
The applicant bore the onus of establishing that the IAA failed to consider exercising the discretion conferred by s.473GB(3)(b) and that it was unreasonable for the IAA not to have done so.
The Court is not satisfied the applicant has discharged this onus and, furthermore, accepts the Minister’s submissions that, in light of the IAA’s findings, the failure to disclose the AUSTRAC documents to the applicant was not material and could not have realistically resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [49]-[50].
One must read the IAA’s decision in context. The IAA appears to have relied on the AUSTRAC records at [30]. However, this needs to be read with [27]-[31] which provide:
26. Considering the applicant’s history and profile, including his ethnicity and religion, his former employment, and his residence in Australia, I am not satisfied there is a real chance he will be harmed in Jaghori in the reasonable foreseeable future.
27. The applicant also fears harm as a Shia Hazara while travelling between cities and claims that Hazaras have been abducted on the routes from Kabul.
28. As noted above, country information indicates that Hazaras were targeted in Pashtun areas on roads between Kabul and Hazarajat during 2015.There were reports in 2014 of two returnees from Australia being targeted on the roads when returning to Ghazni. However there is no recent evidence of Hazaras being targeted on these roads in 2016 or more recently due to their ethnicity or religion. Nor have there been any further reports of the targeting of returnees on the roads since 2014.
29. Given the absence of evidence regarding the targeting of returnees since 2014 or of Shia Hazaras on the roads to Jaghori in 2016 or more recently, and the applicant’s lack of profile due to his previous employment, or as a returnee I am satisfied that the applicant does not face a real chance of harm on the roads when returning to Jaghori.
30. I also note that there is a regular flight connection between Kabul and Bamiyan. The applicant is therefore not restricted to road travel when accessing Hazarajat, and would be able to return to Jaghori from Bamiyan airport on roads through adjoining Hazarajat areas which are considered safe. Given that the applicant’s return via air would be a single journey and his demonstrated ability to send money transfers to his family in Afghanistan I am satisfied that the applicant would be financially able to travel by air to Bamiyan.
31. On the evidence, I am not satisfied that the applicant would face a real chance of harm in Jaghori or in travelling to his home area either on the road from Kabul or via Bamiyan airport and on roads through adjoining Hazarajat areas which are considered safe, as a returnee Shia Hazara, or due to any profile arising from his former employment, other associations or for any other reason. I am not satisfied there is a real chance the applicant will be harmed in Jaghori or when travelling on the roads to return to his home area.
(Emphasis added)
The IAA’s findings as they relate to the AUSTRAC material constitutes an alternative finding. The IAA had already found (at [29]) that the applicant could return to Jaghori safely by road. The IAA (at [31]) appears to assume that the applicant will return to Jaghori by road from Kabul or that he will fly to Bamiyan and travel by road from there. On any view, however, the IAA was satisfied that the applicant could travel safely to Jaghori without having to “fly”.
The need to assess the financial capacity to travel by air was not material because the IAA also concluded that the applicant could safely return by road: BML17 v Minister for Immigration & Border Protection [2018] FCCA 3160 at [38].
Here, the information the subject of the certificate was discussed with the applicant. He was thus on notice that information regarding his financial circumstances was available. While the Court accepts that the applicant was not on notice about how the IAA would use this information (i.e., to make the conclusion it makes at [30]), for the reasons expressed above there is no practical unfairness resulting from the failure to disclose the materials to the applicant under s.473GB(3)(b): Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [96]-[100].
The Court is not satisfied that the IAA failed to consider the exercise of the discretion in s.473GB(3)(b) or that it was unreasonable in all of the circumstances not to exercise the discretion. In any event, given that the conclusion the applicant relies upon was expressed in the alternative, it cannot be said that any error in relation to the certificate (valid or invalid), if there was one, was material to the IAA’s decision.
Ground 4, accordingly, is dismissed.
Conclusion
Having assessed the applicant’s grounds of review and other concerns raised during the course of the proceedings, the Court does not accept that the IAA engaged in any jurisdictional error.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 2 December 2019
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