MZANB v Minister for Immigration

[2016] FCCA 2108

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZANB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2108

Catchwords:
MIGRATION – Application for review of decision of Independent Merits Reviewer – whether Reviewer failed to address clearly articulated risk of harm on basis of Hazara ethnicity – consideration of matters before the Reviewer and what the Reviewer’s decision said about the claims – decision to be read fairly and as a whole – Reviewer not failing to address claim – application dismissed.

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant: MZANB

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: MLG 2279 of 2014

Judgment of: Judge Burchardt

Hearing date: 12 July 2016

Delivered at: Melbourne

Delivered on: 30 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Smietanka

Solicitors for the Applicant: Lander & Rogers

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application filed on 27 November 2015 be dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 2279 of 2014

MZANB

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The matter before the Court is an amended application filed on 27 November 2015.  The applicant seeks judicial review of the recommendation of an Independent Protection Reviewer (this being the title the parties have adopted) dated 29 October 2012.  The Reviewer recommended that the applicant not be recognised as a person in respect of whom Australia has Protection obligations or as a member of the same family unit as such as person. 

2. The amended application essentially asserts that the Reviewer’s decision was affected by legal error or a constructive failure to exercise jurisdiction in that the Reviewer failed to consider a substantial, clearly articulated argument on the part of the applicant, namely his Hazara ethnicity.

3. For the reasons that follow I do not think that the Reviewer fell into error as alleged and the application will be dismissed.

What did the applicant assert?

1. When, as in this instance, an applicant asserts that a tribunal or a reviewer has failed to consider a sufficiently clearly articulated claim it is necessary to see what the applicant actually said.  In his record of irregular maritime arrival the applicant recorded at CB15 that his religion was Shia and his ethnic group was Hazara. 

2. At CB18 the applicant asserted in relation to a missing sibling:

   “When I escaped Afghanistan, I was in contact until Malaysia.  I called his phone in Indonesia and I couldn’t get a hold of him.  I asked his son back home, and he said he hasn’t called them either.”

3. At CB21 in answer to the question “Why did you leave your country of nationality (country of residence)?” the applicant gave an extensive answer relating to his work with an organisation described as being sufficiently associated, or likely to be regarded as associated, with the government to put him at risk.  The risk was of harm from the Taliban.  He described fleeing from Afghanistan by hiding himself on the top of a bus and said that he risked death by the Taliban, who would have come to Angori Bazaar (where the applicant lived and where his wife and family still live) and killed him. 

4. At CB27 the applicant recorded:

   “If I am returned to Afghanistan I will be killed by them in Afghanistan.  My life was in danger when I left Afghanistan.  Who will take care of my family if I am killed? Q: Who is going to try and kill you? The Taliban are after me, and they will kill me, they are really bad people. Q. Why do they want to kill you? I told you the story earlier, and why I left Afghanistan.  The Taliban will kill me because we were working with that organisation. If they were Pashtuns, the Taliban might negotiate with them.  Because I’m Hazara, the Taliban would never give us a chance.”

5. The applicant applied for a Protection Obligations Determination and his statutory declaration in support is at CB65 - 70.  At para.2 he described being born in Aowdola Village, Angori, Jaghori, Ghazni, Afghanistan, and said:

   “I am Hazara ethnicity and I speak Hazaragi.”

6. The statutory declaration went on to detail the applicant’s work with the non-government organisation to which reference has already been made and threats arising therefrom to him and his brother.  He asserted that his brother had been abducted by the Taliban.  Following this, there was discussion with the village elders who said (para.21) “We are all Hazaras.  Whoever they abduct they never return.  Even if we go and speak to them, they will not listen to us.”

7. At para.30, CB68 the applicant repeated what he had earlier said in his arrival interview, to the effect that because he is Hazara the Taliban would never have given him a chance.  He also asserted at para.31 a lack of state protection, and at para.33 he said:

   “I cannot relocate to another area in Afghanistan.  First of all, I am Hazara and it is very difficult to live anywhere in Afghanistan.  I am in danger because of my work with the organisation, because we refused to do work for the Taliban, and because my brother escaped from them.  I don’t have any family living anywhere to support me so that I could try to hide from the Taliban.  I have never been to Kabul; how would I find work or a place to live.  Also, anywhere I went the Taliban would recognise me.  They are everywhere.  I cannot return to Afghanistan.”

8. The Refugee and Immigration Legal Centre Inc. forwarded a written submission in support of the applicant’s case dated 24 February 2012.  It is at CB97 - 162 (including annexures).

9. At CB97 the applicant’s case (which was advanced together with others) was summarised as:

   The applicants fear that, if returned to Afghanistan, they will suffer persecution in the form of abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the Kuchi or the Taliban and/or anti-Hazara extremists and/or members of the Pashtun, Tajik, Hazara community on account of either cumulatively or separately (variously):

   i) Their Hazara ethnicity; 

   ii) Their Shi’a religion;  

   iii) Their imputed political opinions;

   iv) Their membership of particular social groups;

   v) Their imputed political opinion, ‘supporter of the Karzai government and/or the international forces, or pro the West”;

   vi) As well as separate claims made by the applicants in each of their separate applications.”

10. The submission went on to refer to country information in support of the deteriorated security situation in Afghanistan and lack of State protection in part arising out of discrimination against Shia Muslims and Hazaras (CB98). 

11. The submission went on to refer copiously to country information and at CB118 and following set out the risks for Hazaras in general in Afghanistan and in Ghazni Province in particular.  At CB124 and following the submission referred to risks for Hazara Shias in Jaghori Ghazni. 

12. The Protection Obligations Evaluation Decision is at CB166 - 184.  The officer dealt with the particular claims put forward by the applicant and, it should be noted, found the applicant was not credible.  The officer was, however, aware of and recited the material claims for risk at CB171.

13. It is not necessary to deal further with that officer’s decision as the matter was then the subject of an application for Independent Protection Assessment.  The applicant forwarded a statement in support of the application which is at CB199 - 204.  The statement essentially responded in some detail to observations made by the reviewing officer, although I note that at para.4, CB199 he said “I do not intend to repeat the claims that I have made in my POD request.”

14. I note that at paras.21 and 22 the applicant referred to the risk of harm to Hazaras and Shias both in Jaghori and in Afghanistan generally.

15. At CB205 - 240 the applicant’s agent set out a further written submission to the reviewer.  The submission stated at CB205:

    “The applicant is a 26 year old Afghan national of Hazara ethnicity and Shi’a Muslim faith.  He was born in Aowdola village in Anghori, Jaghori District, Ghazni.  The applicant’s occupation was running an excavating business with his brother Ezatullah.”

16. The submission continued:

    “In 2011 the applicant and his brother were contracted for five and a half months under a government scheme called Hambastagi Melli, or in English, ‘National Solidarity Program’ (NSP).”

17. The submission went on to refer to threats arising from that activity and the applicant’s inability to return to Afghanistan because he fears for his safety.  At CB206 the submission asserted:

    “The applicant cannot return to Afghanistan because he fears for his safety.  His life will be at risk in Afghanistan from Taliban and/or other extremist groups operating at his home province of Ghazni.  The applicant fears harm because he and his brother worked for the National Solidarity Programme and also, they refused to work for the Taliban, and lastly because his brother escaped from Taliban custody.  The applicant is of Hazara ethnicity and Shi’a religion and also fears harm on the basis of his religion and his ethnicity, Ghazni Province and in general in Afghanistan.” 

18. The submission went on to say that the applicant feared persecution and/or substantial discrimination at the hands of the Taliban and/or other anti-Hazara, anti-Shia extremists on account of either cumulatively or separately “(i) his Hazara ethnicity and his Shi’a religion… (other matters omitted as not presently relevant).”

19. As with the earlier written submission the submission contained substantial country information generally referring to Hazara ethnicity and Shia religion at the same time. 

What did the Reviewer make of it?

1. The Reviewer set out an introduction and the relevant law at CB247 - 249.  No objection has been taken to these aspects of the Reviewer’s decision.

2. The Reviewer noted personal details in a biodata form completed on arrival at para.22, CB249, and noted inter alia “his religion is Shia Muslim.  His ethnic group is Hazara.”

3. The Reviewer again noted the applicant’s ethnic group and religion at para.24, CB250.  The Reviewer then traversed the applicant’s history of the difficulties deriving from his work with Hambastagi Melli, and the applicant’s description of his flight to Pakistan at CB250 to 251.

4. The Reviewer set out the applicant’s statement in full at CB252 - 255.  He noted again at para.32 “he is a Hazara and Shia Muslim.”  The Reviewer traversed various possible difficulties with the applicant’s case, including that no NGO called Hambastagi could be found in Afghanistan.  The Reviewer clearly traversed with the applicant the prospect that he might be able to move to Kabul and work there (para.51, CB258).  The Reviewer traversed the submission dated 24 February 2012 which clearly nominated, whether cumulatively or separately, these risk factors of the applicant’s Hazara ethnicity and Shia religion.  There are other references to the applicant’s Hazara ethnicity and Shia religion, but it would become somewhat unnecessarily pedantic to set them out in full.

5. In the ultimate, the Reviewer did not actually accept the claimant’s story.  At para.204, CB297 the Tribunal said:

   “In sum, my concerns with his evidence lead me to conclude the claimant is not a witness of truth.  Whilst I accept the claimant was involved in the brother’s soil removal business in Angori, and that the business performed work in the Jaghori district, I do not accept the narrative he has built around the business.  I do not accept that the soil removal business was contracted in 2011 to work for some 5 months for the NSP or that the business undertook work on the organisation’s behalf.  I do not accept that the claimant and brother were threatened by the Taliban, or that the Taliban were actively seeking them or enticed them to do work at a Taliban centre in Guwar, or that the brother was abducted by the Taliban before later escaping.  I do not accept the Taliban then visited the claimant’s home looking for him, or that he fled to Ghazni and then to Kandahar and Quetta.  I do not accept the brother escaped to Quetta for the reasons the claimant has given, and so I do not accept the brother has disappeared from Quetta soon after the claimant departed Pakistan.  I do not accept the claimant had come to the Taliban’s adverse attention for the reasons he claims before he departed Afghanistan, or to Bashi Habibullah’s adverse attention, or that the Taliban now has any adverse interest in him for such reasons.

   In the light of the foregoing I considered whether the claimant is able to reside in his home area without facing a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future.  The claimant, a Hazara Shia man, lived and operated a soil removal business with his brother in the Jaghori district for many years.  I acknowledge that Angori is close to the edge of Jaghori, that Pashtuns are reported to live and shop there, and that some years ago the Taliban once attacked the former police chief’s family there.  Nonetheless, Angori and the other villages referred to by the claimant are located within the Hazarajat, which is a Hazara dominated area.  Additionally, country information shows the Hazarajat is generally secure, in large part due to the majority Hazara population and dominant Hazara militias, with the Nasr faction of the former Hizb-I Wahdat (Khalili), being most influential and dominant.  Despite pervasive Taliban influence in Ghazni province, the Taliban remain at the outskirts of Jaghori district.”

6. Having noted difficulties as to getting to his home area, the Reviewer continued at para.207, CB298:

   “Should he return to his home area, and resume his work in the soil removal business, based on his evidence of the business work in the Jaghori district since 2004, I conclude he will not travel outside the Hazarajat.  Indeed, his evidence is that until he departed Afghanistan he had not travelled outside the Hazarajat.”

7. At para.209, having referred to the fact that the applicant’s wife and children and other family members are still at his home and in the Jaghori district, the Reviewer continued: 

   “At my interview when I discussed his return to Jaghori, he stated it is not safe for him or indeed for Hazara Shias anywhere in Afghanistan.  Nonetheless, other than his story which I reject, despite ample opportunity, he has not specified that his relatives face any particular harm living there either for reason of their ethnicity, religion, politics, family history or any other reason.”

8. At para.211, CB299, the Reviewer went on to say: 

   “I find that the claimant will not face now and in the reasonably foreseeable future, a real chance of serious harm amounting to persecution in travelling to and residing in his home area.  I find that he can return to or resume his household in his home area, where he continues to have personal and family links.  The claimant does not claim despite ample opportunity that he is unable or hindered from following his religion in his home area which is Hazara Shia dominated. He does not claim, despite ample opportunity, that he is un-Islamic in his behaviour, and at interviews he states he continues to be a Shia Muslim.  I do not accept he is Westernised and un-Islamic in his behaviour such that he will face persecution.  I do not accept there is a real chance he will face persecution in his home area or travelling to it for any of the reasons claimed either when looked at individually or cumulatively:  his Hazara ethnicity and Shia religion;  his family history;  the business.  I do not accept there is a real chance in his home area or travelling to it he will face abduction or arbitrary arrest and detention, imprisonment, extortion, a physical assault and torture, and possible death, at the hands of the Kuchi and/or anti-Hazara extremists and/or members of the Pashtun, Tajik, and/or Hazara communities.

   In sum, in light of the foregoing and my findings concerning the claimant’s particular circumstances both viewed individually and cumulatively and the country information concerning Afghanistan, I find that if he returns to Afghanistan, now and in the reasonably foreseeable future there is not a real chance he will face serious harm amounting to persecution in travelling to and residing in his home area, and he will not require state protection.”

9. The Reviewer went on to consider relocation to Kabul in the alternative and determined that CB301, para.218: 

   “Based on the material before me and in light of the foregoing, when I consider individually and cumulatively his particular circumstances, his past experiences, and country information about Afghanistan, I conclude that relocation to Kabul is reasonable for the claimant.  In sum, I consider that as a male aged about 25, he is a person who is able to establish himself in Kabul.  Although he complains of ulcers and a stomach problem, there is no medical information before me that he is unable for medical reasons to live in Kabul, where hospitals continue to operate.” 

10. The Reviewer then expanded upon these matters at paras.219 - 221, referring to the sizeable and significant Hazara population in Kabul.

The submissions of the parties

The submissions of the applicant

1. Counsel for the applicant took the Court to the applicant’s statutory declaration at CB68 and more particularly paras.30 - 33 thereof in which the applicant articulated his fears of persecution and harm as a result of his Hazara ethnicity.

2. Counsel confirmed that the applicant does not seek the relief set out in final orders 2 and 4 in the amended application (certiorari and mandamus).  Counsel confirmed that what the applicant seeks is a declaration that the recommendation of the second respondent is unlawful, void and of no force and effect and prohibition directed to the first respondent prohibiting him from acting upon or giving effect to the recommendation. 

3. Counsel gave a commendably thorough review of the authorities, but it should be noted that I cut this somewhat short.  It was clear from the first respondent’s written submissions that the debate in this case is not as to what the applicable law is.  Rather, it is whether the Reviewer in fact had addressed the clearly articulated claim of fear of harm of the applicant based on his Hazara ethnicity.

4. Counsel took the Court to para.211 of the Reviewer’s decision (CB299).  She submitted that the Reviewer had conflated the discrete risk of harm of being a Hazara and of being a Shia.  Counsel referred to the negative credit findings made by the Reviewer and the fact that he had not accepted the applicant’s account of how he had been dealt with and had left Afghanistan.  She submitted, however, that the claim of possible harm on the basis of Hazara ethnicity was not one that necessarily fell to be rejected simply because the applicant’s story had not been believed.

5. Counsel submitted that the country information referred to in the Reviewer’s decision was all set out before the findings made and there was no specific reference made to the applicant or his circumstances.  It was submitted that the treatment of country information was copied and pasted and included frequent reference to Jaghori and Ghazni but only two references to Angori where the applicant actually lives.  Counsel submitted that the Reviewer had failed to deal with the risk arising from the applicant’s ethnicity. 

6. Counsel referred to CB207 and the extract from the applicant’s advisor’s submission that the applicant faced risk of harm as a result of his imputed political opinion in support of the Afghan Government and/or the International Security Assistance Force in opposition to the Taliban on account of his ethnicity and religion.  Counsel submitted that para.209 of the Reviewer’s decision (CB298) disclosed no consideration of the risk of political opinion based on simply being Hazara. 

The submissions of the first respondent

1. Counsel for the first respondent submitted that the Reviewer did indeed deal with the claim of Hazara ethnicity.  He expressly conceded that the claim of risk of harm on the basis of Hazara ethnicity alone was sufficiently clearly articulated.  Counsel submitted that the decision of the Reviewer should be read fairly and as a whole.  In his written submissions, counsel referred to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“WAEE”) at [47].  What the Full Court there said was:

   “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

2. Counsel referred to the extensive recitation of claims and evidence at paras.20 - 136 (CB249 - 276) of the Reviewer’s decision.  Counsel referred to various passages, to which I shall return, in which he submitted the Reviewer did indeed deal with the ethnicity claim.  I will return to those passages in my consideration of the matter.  Counsel finally submitted that the applicant could relocate and referred to paras.213 - 221 of the Reviewer’s decision in this regard.   (CB 299 -301).

3. In reply, counsel for the applicant submitted that regard should be had to para.130 (CB 275) where the reviewer said:

   “I indicated I would look at his claims separately and cumulatively.  Based on country information I indicated it is not likely I would find that merely being a Hazara and Shia would mean that he would face persecution throughout Afghanistan.  In that regard, it would be important where he returned to, and in the light of his particular situation.

4. Counsel submitted that the applicant’s individual circumstances were not considered.  She pointed to the fact that the country information recorded at para.177 (CB290) contains no reference to the village where the applicant lived. 

5. Turning to the relocation issue, counsel submitted that the Reviewer’s failure to consider ethnicity likewise infected the decision on relocation.  She submitted that there was no consideration in the passages dealing with relocation of the applicant’s Hazara ethnicity.  Counsel submitted that the reference to the applicant’s capacity to practice his religion in Kabul at para.221 (CB301) was simply insufficient to address this aspect of the claim.

Consideration

1. When the Reviewer has issued a decision, as here, that runs from CB247 - CB303 and contains 230 paragraphs, the observations of the Full Court in WAEE are plainly potentially applicable.  The Reviewer has set out a very detailed and considered set of reasons.

2. It is important to remember that the Reviewer was conducting a review of the case that the applicant himself advanced.  While I note and am prepared to accept the concession made by counsel for the first respondent that the claim of risk of harm on the basis of Hazara ethnicity alone was sufficiently clearly articulated to require consideration, the fact is that in the vast majority of occasions where the applicant raised this issue, it was coupled with his Shia faith. 

3. Since Shia faith is a cornerstone of the reasons that the Hazara community claims risk of persecution, it is scarcely surprising that the applicant is both a Hazara and of the Shia faith and that he should raise these matters as interlinked.  To an extent, the Reviewer clearly dealt with them in that way but that was the way in which the case itself was largely propounded.  At para.54 (CB259), the Reviewer recorded the applicant’s agent as asserting relevantly:

   “He has a real chance of persecution because of his ethnicity and religion.  Although from Jaghori and the Hazara area – his area borders on Pashtun land.  There are ways in for the Taliban.” 

4. At para.55(1)(a), as earlier detailed, the applicant nominated his Hazara ethnicity and his religion as separate matters (albeit in the context of the submission being made on behalf of other applicants also). 

5. At CB276 and following and in particular from para.137 at CB276 -277, it is apparent that the Reviewer had before him a very substantial amount of country information.  The information included the possibility of risks to members of minority ethnic groups (paragraph 138(x)). It included that the Hazara community continues to face some degree of discrimination but noted the comparatively stable security situation in provinces and districts where the Hazara constitute a majority or a substantial majority including the Jaghori which is where the applicant comes from (CB279). 

6. The country information included detailed information about the Jaghori District and I note that at CB292, country information included:

   “Despite the risk of future ethnic conflict between the Taliban and Hazara, the risk of this is likely to be lower in Jaghori than elsewhere in the Hazarajat.  This is because in the past the people and elders of this district demonstrated unique negotiation and proactive peacebuilding strategies towards the Taliban in the 1990’s.” 

7. I have already set out the extract at para.204 (CB297) in which the Reviewer failed to believe what the applicant actually said about what happened to him in Afghanistan and how he came to leave to Pakistan.  I repeat again the finding made at para.205 (CB298):

   “In light of the forgoing I considered whether the claimant is able to reside in his home area without facing a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future.  The claimant, a Hazara Shia man, lived and operated a soil removal business with his brother in the Jaghori District for many years.  I acknowledge that Angori is close to the edge of Jaghori, that Pashtuns are reported to live and shop there, and that some years ago the Taliban once attacked the former police chief’s family there.  Nonetheless, Angori and the other villages referred to by the claimant are located within the Hazarajat, which is a Hazara dominated area.  Additionally, country information shows the Hazarajat is generally secure, in large part due to the majority Hazara population and dominant Hazara militias …”

8. Counsel for the Minister submitted that this paragraph did indeed address the issue of the applicant’s ethnicity, as it were, simpliciter.

9. At para.209, the Reviewer recorded:

   “At my interview when I discussed his return to Jaghori, he stated it is not safe for him or indeed for Hazara Shias anywhere in Afghanistan.  Nonetheless, other than his story which I reject, despite ample opportunity, he has not specified that his relatives face any particular harm living there either for the reason of their ethnicity, religion, politics, family history or any other reason.”

10. At para.211, to repeat, the Reviewer found:

    “I find that the claimant will not face now and in the reasonably foreseeable future, a real chance of serious harm amounting to persecution in travelling to and residing in his home area.  I find that he can return to or resume his household in his home area, where he continues to have personal and family links.  The claimant does not claim despite ample opportunity that he is unable or hindered from following his religion in his home area which is Hazara Shia dominated. He does not claim, despite ample opportunity, that he’s un-Islamic in his behaviour, and at interviews he states he continues to be a Shia Muslim.  I do not accept he is westernised and un-Islamic in his behaviour such that he will face persecution.  I do not accept there is a real chance he will face persecution in his home area or travelling to it for any of the reasons claimed, either when looked at individually or cumulatively: his Hazara ethnicity and Shia religion;  his family history;  the business.  I do not accept there is a real chance in his home area or travelling to it he will face abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the Kuchi and/or anti-Hazara extremists and/or members of the Pashtun, Tajik, and/or Hazara communities.” 

11. In the end, despite the ample submissions made by counsel, the issue raised in this case is a short one which can only be expressed in relatively economical terms. 

12. First, it is important to remember, as I indicated earlier, that the Reviewer was obliged to assess the applicant’s claims in the fashion in which they were put.  To the extent that some extracts in the reasons do conflate the applicant’s ethnicity and religion (see for example para.211 immediately above), that is because that is the way the applicant himself put the matter.

13. Nonetheless, and reading the decision fairly and as a whole, I think that the passages earlier referred to and most particularly in para.205 do show a real consideration of the applicant as a Hazara to the extent that the claim was advanced on an independent basis on that footing.  The various observations the Reviewer made do not, as it were, stand alone and separate.  Like the applicant’s claims, they traverse a number of different areas and from time to time mix up various different elements of the claim.  The claims themselves intermingle these issues. 

14. The task for this court is to see whether the way in which the Reviewer exercised his function involved a proper discharge of the function itself.  I do not think it can be said that the process of reasoning shown by the Reviewer’s reasons for decision showed a constructive failure to exercise jurisdiction and/or a failure to deal adequately with a sufficiently articulated claim.

15. This being the case, it follows that the application must fail and I will dismiss the application with costs. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 30 August 2016