Federal Court Allows Appeal in Immigration Judicial Review Case

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

COZ16 v [NAME] [NAME] [2018] FCA 46 Appeal from: COZ16 v [NAME] [NAME] & Anor [2017] [NAME] 979

File number: NSD 858 of 2017

Judge: [NAME] J

Date of judgment: 6 February 2018

Catchwords: [NAME] – appeal from a judgment of the Federal Circuit Court of Australia – whether the brevity and content of the [NAME] judge's reasons amounted to jurisdictional error by a constructive failure to exercise jurisdiction

Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1)(d) [NAME] 1958 (Cth), s 476

Cases cited: ARG15 v [NAME] [NAME] [2016] FCAFC 174 Assistant Commissioner [NAME] v [COMPANY] [2013] HCA 7; 252 CLR 38 BKL15 v [NAME] [NAME] [2016] FCA 802 CQG15 v [NAME] [NAME] [2016] FCAFC 146 DAO16 v [NAME] [NAME] [2018] FCAFC 2 [NAME] v [NAME] Immigration and [NAME] Affairs [2003] HCA 26; 77 ALJR 1088 [NAME] v Commissioner of Police [2010] NSWCA 239 [NAME] v Commissioner of Police [2012] NSWCA 379 Housing Commission of [NAME] v [NAME[NAME]. [COMPANY] [1983] 3 NSWLR 378 [COMPANY] v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 Mifsud v Campbell (1991) 21 NSWLR 725 [NAME] Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 NADH of 2001 v [NAME] Immigration and [NAME] Affairs [2004] FCAFC 328; 214 ALR 264 Pettitt v Dunkley [1971] 1 NSWLR 376 [NAME] v [NAME] Immigration and Citizenship [2008] FCA 735; 247 ALR 582 [NAME] v [NAME] [NAME] [2017] FCA 954 [NAME] v [NAME] [2011] HCA 24; 243 CLR 181

Date of hearing: 5 February 2018

Registry: [NAME]: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 62

[NAME]: [APPELLANT]

[NAME]: [RESPONDENT]

[NAME]: [RESPONDENT]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS NSD 858 of 2017

BETWEEN: [APPELLANT]16 Appellant

AND: [APPELLANT] FOR [NAME] First Respondent

IMMIGRATION ASSESSMENT AUTHORITY [RESPONDENT] Respondent

JUDGE: [NAME] J DATE OF ORDER: 6 February 2018

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders dated 15 May 2017 of the Federal Circuit Court of Australia be set aside.

3. The application for judicial review dated 12 September 2016 be remitted to the Federal Circuit Court of Australia for reconsideration according to law by a Judge of that Court other than the [NAME] judge.

4. The first respondent pay the [NAME] costs of and incidental to the appeal and the proceedings in the Federal Circuit Court of Australia below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR [APPELLANT] J: 1 The appellant appeals against a judgment dated 6 June 2017 of the Federal Circuit Court of Australia ([NAME]). The decision is reported as COZ16 v [NAME] [NAME] [2017] [NAME] 979. The [NAME] judge dismissed the [NAME] judicial review application which challenged a decision dated 16 August 2016 of the Immigration Assessment Authority (the [NAME]) under Pt 7AA of the [NAME] 1958 (Cth) (the Act). The [NAME] affirmed a decision of the Minister's delegate not to grant the appellant a protection visa.

Summary of background facts 2 The appellant claims to be a citizen of Sri Lanka. He left that country illegally by boat in August 2012 and entered Australia as an unauthorised maritime arrival on 10 September 2012. He lodged an invalid application for a protection visa in 2013. In December 2015 he lodged a valid application for a Safe Haven Enterprise (subclass 790) visa, which application was refused by the delegate on 12 July 2016. The matter was referred to the [NAME] for review under Pt 7AA of the Act. The [NAME] affirmed the delegate's decision and gave detailed reasons for decision dated 16 August 2016. 3 The [NAME] summarised the [NAME] claims for protection as follows at [4] of its reasons for decision: He is a [NAME] from Kilinochchi district, Northern Province, Sri Lanka. From his birth until 2009 he resided in Liberation Tigers of [NAME] ([NAME]) controlled areas in the Vanni. Towards the end of the war, as the [NAME] ([NAME]) were advancing, his family were constantly moving around to stay within the [NAME] controlled areas. In April 2009, the [NAME] captured his area and he and his family were transferred to the Omanthai check point in the Vavuniya where their personal details were recorded. While at the Omanthai checkpoint, two of his [NAME] (an [NAME] and an [NAME]) were suspected to be [NAME] and were taken from the family. His family were told his [NAME] would be questioned and released. After a few days, he and his family were transferred to an [NAME] camp without his two [NAME]. He was detained there for approximately six months. Although he was not physically harmed, he feared he would be, particularly as he was interrogated on three occasions by Criminal Investigation Department (CID) officers. The CID officers repeatedly asked if he was a member of the [NAME] and if he had connections or links to the [NAME]. On 16 November 2009, he was released with some of his other family members who were in the camp but the two [NAME] remain missing to this day. The family now believe both [NAME] are being held in a secret prison somewhere in Sri Lanka due to their perceived involvement with the [NAME]. On 3 August 2010, the appellant lodged a complaint regarding his [NAME]' disappearance with the Human Rights Commission ([NAME]) office in Colombo. Around November 2010 the family received a written response from the [NAME] stating that the [NAME] were taken into the [NAME]'s custody. Approximately one month later, CID officers came and interrogated him at their house for approximately one hour and then left. They repeatedly asked if he was a member of the [NAME], if he helped the [NAME] and if he knew of anyone in the area who was connected to the [NAME]. From then on, the CID would return and ask those same questions every two to three months. During these interrogations the men spoke aggressively, but he was not physically harmed. During August 2012, a few weeks prior to fleeing Sri Lanka, four men claiming to be CID officers came to the family house in search of him. He had never met these men previously and, unlike previous occasions, they did not show their identity cards. They asked the same questions as he had been asked before but also threatened to harm him if he continued to pursue the disappearances through organisations such as the [NAME] and the [NAME] ([NAME]). They said if he did not do as told he would suffer the same fate as his missing [NAME]. He feared the authorities would carry out these threats and departed Sri Lanka in August 2012. The [NAME] continues to search for his missing [NAME] to this day. He fears being abducted and killed by the [NAME] for reasons of his suspected involvement with the [NAME] (because he originates from the [NAME], he has family members perceived to be [NAME], he was already suspected and regularly interrogated and has sought asylum in Australia). He also fears being harmed in relation to the threat he received in response to his [NAME] complaint and because he left illegally. He also fears harm from armed [NAME] paramilitary groups who remain active in the Northern Province and work closely with the [NAME]. 4 The [NAME] explained why it rejected the [NAME] claim for protection under both the Refugees Convention and complementary protection criteria. The [NAME] accepted that the appellant was a credible witness and that he had provided "a genuine reflection of his recollections" (at [7]). It accepted that neither the appellant, nor his family (including the two [NAME]), had any actual involvement with the [NAME] and that any interactions with that organisation resulted from the family residing in [NAME] controlled areas (at [9]). The [NAME] accepted that the two [NAME] were separated from the family and taken for interrogation and also that it was "plausible" that they may have been singled out due to their age, and because [NAME] were among the mingling crowds at the checkpoint where they were taken. The [NAME] also found that as the [NAME] were never released, the suspicion relating to them never lifted (at [9]). 5 The [NAME] accepted at [11] that, subsequently, the remainder of the family was taken to a [NAME] camp for several months and that the appellant was interrogated on suspicion of [NAME] links and support, but was not harmed. It found that, because he was not harmed or formally charged or detained for a longer period, the authorities did not believe as at December 2009, when he was released, that he was engaged in [NAME] activity. 6 The [NAME] accepted at [12] that the appellant had complained to the [NAME] concerning his [NAME]' disappearance and that, shortly thereafter, he became subject to ongoing home visits by the CID every two or three months and was interrogated for approximately one hour. The [NAME] found that the visits and questioning during the period 2010-August 2012 was a result of "routine ongoing monitoring by authorities commonly conducted against Tamils in the Northern Province at that time". 7 The [NAME] also found at [13] that the visits were "intimidating" and that the appellant started to look for opportunities to leave Sri Lanka to avoid these "problems". Nevertheless, the [NAME] was satisfied that the appellant "was never physically harmed, formally arrested, detained, or taken away for rehabilitation or any other purpose which would indicate that authorities believed he was engaged in [NAME] activity or that they imputed him with [NAME] membership or support on account of his familial links to his [NAME]". 8 At [14], the [NAME] found that the last home visit and questioning of the appellant which occurred in August 2012 was "different to the previous occasions" in that the persons who interrogated him at that time were unknown and did not identify themselves, even though they asked the same questions about the [NAME] suspected involvement with the [NAME] and also the issue of his [NAME] complaint. The [NAME] also found at [14] that the appellant was threatened not to pursue the [NAME] matter. 9 Despite all these findings, which might be described as favourable to the [NAME] case, the [NAME] concluded at [15] that the situation in Sri Lanka had changed considerably during the four years that the appellant had been in Australia, particularly in respect of the support being provided by the government to families affected by enforced disappearances. This included the fact that the Sri Lankan government had in December 2015 signed the [NAME] and committed to criminalise enforced disappearances. The [NAME] noted at [16] that although the [NAME] had lodged numerous complaints with relevant authorities regarding the missing [NAME], she had not been threatened or harmed because of this conduct, nor had any of the [NAME] family been approached by the authorities or unknown men at other times. 10 It is desirable to set out [10], [13], [17]-[19], [24] and [37] of the [NAME]'s reasons for decision as they bear upon important issues raised in the appeal (footnotes omitted):

10. I note the UNHCR does include persons with family links to former [NAME] combatants or [NAME] among its risk profiles. However, UNHCR also advises that the issue of whether a person with an identified profile is [sic] need of protection depends on the specifics of the individual case. … 13. I accept these visits were intimidating and that the applicant started looking for an opportunity to leave Sri Lanka to avoid these problems. Nevertheless I am satisfied the applicant was never physically harmed, formally arrested, detained, or taken away for rehabilitation or any other purpose which would indicate that authorities believed he was engaged in [NAME] activity, or that they imputed him with [NAME] membership or support on account of his familial links to his [NAME]. … 17. The circumstances suffered by the applicant's family are tragic and while I accept that unknown persons threatened the applicant on one occasion, I find it was reflective of harassment and intimidation against some [NAME] complainants at that time. The applicant lodged the [NAME] complaint six years ago and his mother has continued to agitate with continued pursuits [sic] and no threats or harm has come to her or any other members of the family. The applicant's mother's experience (including in the almost four years he has been in Australia) and the country information above indicates a more transparent environment has developed in Sri Lanka to address the thousands of unresolved enforced disappearances and support the families of missing persons.

18. I am satisfied that while the applicant was interrogated at the end of the war and was subsequently subject to monitoring, he was not himself perceived as being an [NAME] member and did not have a profile that led him to being physically harmed, arrested, or detained by authorities. I find that the threat in August 2012 was an isolated incident in his numerous interactions with authorities over the previous two years. While I note that the government has kept a close watch on the situation in former [NAME] controlled areas including the applicant's Northern Province, the changes in Sri Lanka since the applicant's departure including for persons of the applicant's profile are significant.

19. The situation has markedly improved for Tamils in the broader political landscape. The Sri Lankan constitution provides for race equality and DFAT assesses there are currently no official laws or policies that discriminate on the basis of ethnicity or language. Recent developments in Sri Lanka's political landscape are significant and indicative of a more positive future for Tamils. DFAT considers the [NAME] government has a more proactive approach to human rights and reconciliation than the previous government. Since taking power in 2015, the [NAME] government has, inter alia, established a new reconciliation taskforce mandated with 'healing the wounds of mistrust and social and cultural stress generated from extended conflicts between different communities in Sri Lanka', replaced military governors with civilians governors in the Northern and Eastern Provinces, reduced high security zones, released land formerly held by the military, released some individuals held under the Prevention of Terrorism Act 1979 (PTA) and engaged constructively with the [NAME] National Alliance (TNA) and the international community. The August 2015 parliamentary election was deemed credible by international and domestic observers. The [NAME] National Alliance (TNA), contesting under the Ilankai Arsu Kachchi (ITAK) won 16 seats, enhancing [NAME] representation and the TNA leader, [NAME] has been formally appointed opposition leader. … 24. I accept the applicant fears becoming victim to an enforced disappearance like his [NAME] however, as noted above, the security situation for Tamils and others in Sri Lanka has improved. DFAT's assessment is that since the war's end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably. DFAT reports that no particular group has been the targeted of kidnapping attacks and they do not appear to be ethnically-based. … 37. I have considered the applicant's circumstances in their totality. I am not satisfied that the applicant, as a [NAME] from the Northern Province, who was not previously considered to be an [NAME] member or supporter, even with his family links to suspected [NAME], and who was monitored and questioned by the authorities, and threatened once by unknown persons, would result in a real chance that he will be harmed upon return, even though he would be returning to his home region having been charged under the I&E Act and as a failed asylum seeker who spent considerable time in Australia. I do not accept the applicant's claims either individually or cumulatively give rise to a well-founded fear of persecution in the reasonably foreseeable future upon return. 11 In the light of these matters, the [NAME] was not satisfied that the appellant faced a real chance of harm from authorities on the basis on his [NAME] race, or his [NAME] race and origins from the North, nor for familial links to his [NAME] or complaints to the [NAME]. It found at [25] that the appellant was not considered a [NAME] member and was not considered to meet an [NAME] supporter profile. 12 For substantially similar reasons, the [NAME] rejected the [NAME] claims for complementary protection.

The proceedings below 13 The appellant sought judicial review of the [NAME]'s decision. He was represented by a solicitor. He raised two grounds. The first was that the [NAME] had fallen into error by failing properly to consider an integer of his claim. This was particularised by reference to the alleged failure of the [NAME] "adequately or at all [to] consider the risk to the [appellant] by virtue of his [NAME]' suspected links to the [NAME]". 14 Ground 2 alleged that the [NAME] had failed to give reasons or adequate reasons as to why there was no risk to the appellant, relying upon the same particulars as for ground 1. 15 The [NAME] judge gave ex tempore reasons for dismissing the judicial review challenge. A substantial portion of [NAME]'s reasons for judgment (39 of 54 paragraphs) is directed to summarising the [NAME]'s decision. Only eight of the total of 54 paragraphs are directed to explaining why both grounds of judicial review were rejected by the [NAME] judge. It is desirable to set out those paragraphs in full (i.e. [46]-[53], emphasis added): Ground 1 46 In relation to ground 1, Mr [APPELLANT] took the Court to the material provided by the applicant in support of his application for a protection visa and in particular the details relating to the brother and sister, who were identified by the applicant as missing. It was that brother and sister that the applicant identified in the statutory declaration whom he believed continued to be detained in some secret prison. 47 Mr [NAME] also took the Court to the submissions provided to the Authority dated 30 July 2016 and in particular paragraph 6 of those submissions, in which it was argued that it was irrelevant that the [NAME] were not members of the [NAME] or had real [NAME] involvement. 48 Mr [RESPONDENT] drew attention to [RESPONDENT] sentence in paragraph 6 of the applicant's submissions, identified in bold, saying that: What appears to be relevant is that both [NAME] were arbitrarily detained separated from their family and taken supposedly for 'questioning' by the authorities immediately after the war and both [NAME] remain missing to this date. 49 Mr [NAME] took the Court to certain findings of the Authority, including the acceptance of the disappearance of the brother and sister, that the family had been detained for several months, that they had never been released, and the reference by the Authority to accepting the suspicion was never lifted. Mr [NAME] went through the reasoning of the Authority and contended that the Authority had failed to properly address the applicant's fears due to the continued missing status of his [NAME]. 50 Mr [NAME] drew attention to the fact that whilst the Authority referred to there being no threats or harm having come to the applicant's mother or other members of the family, the brother and sister remained missing. Mr [NAME] submitted that the Authority did not adequately or at all, consider the risk to the applicant by virtue of the [NAME]' suspected links to the [NAME]. I reject these submissions. It is apparent that the Authority took into account the [NAME]' suspected links to the [NAME] in considering the applicant's claims. The Authority expressly did so in its reasons as summarised above. 51 There was no failure by the Authority to consider the familial connection of the applicant to his [NAME] in relation to the applicant's claims. Further, it is apparent that the Authority expressly referred to having considered the applicant's circumstances in their totality and expressly referred to having considered the applicant's claims individually and cumulatively. No jurisdictional error as alleged in ground 1 is made out. Ground 2 52 In relation to ground 2, Mr [NAME] sought to take issue with the adverse findings made by the Authority in respect of the applicant not being a person at risk. The Authority identified the applicant's mother as having made complaints to the Human Rights Commission and having [sic] the applicant's mother and family continuing to reside in Sri Lanka in the absence of harm to those persons since the applicant's departure of [sic] Sri Lanka. 53 The adverse reasoning of the Authority in relation to the applicant's claims was open on the material and cannot be said to lack an evident and intelligible justification. There is no substance in the contention that the Authority failed to give reasons or adequate reasons as to why there is no risk to the applicant. The Authority explained the significance of the release of the applicant and that he suffered no harm in relation to the interrogations that then subsequently took place and the absence of harm to his mother and other family since his departure from Sri Lanka. On the face of the Authority's reasons, the Authority correctly identified and applied the relevant law. Ground 2 is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by ground 2.

The appeal 16 The appellant, who was represented by the same solicitor both below and on the appeal, relied upon two grounds in his amended notice of appeal. Ground 1 was that the [NAME] and the [NAME] judge erred in finding that the appellant would not be at risk due to his family connections to persons with imputed or real [NAME]. Ground 2 was that the "brevity and content of the [NAME] judge's reasons amounts to a constructive failure to exercise jurisdiction". The two grounds overlap in large measure. It might also be added that the error raised by [RESPONDENT] ground of appeal is not commonly raised. 17 In support of ground 1, the appellant submitted that both the [NAME] and the [NAME] judge had failed to engage in an "active intellectual process" with respect to his reliance on the [NAME] for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012 ([NAME]), citing [NAME] v [NAME] [NAME] [2017] FCA 954. He contended that the "risk profile" identified in the [NAME] relating to persons with family links did not require the appellant to be imputed with [NAME] or sympathies, and simply required a family link with a person imputed with [NAME]. 18 In his outline of written submissions on the appeal, and in support of his contentions concerning the [NAME], the appellant made express reference to sub-paragraphs 2 and 6 of the [NAME]. It appears that the [NAME] were not in evidence, either below or on the appeal. This was pointed out in the Minister's written outline of submissions on the appeal. The Minister also claimed that neither before the delegate nor the [NAME] did the appellant make a submission that he came within the [NAME]. As Mr [RESPONDENT] (who appeared for the Minister on the appeal) acknowledged in oral address, that claim is incorrect. There is a direct reference to the [NAME] in the written submissions dated 30 July 2016 which were provided to the [NAME] by the [NAME] [NAME] agent. The [NAME] agent claimed there that although neither the appellant nor his [NAME] were members of the [NAME], his claims fall "squarely within the risk profiles mentioned in the [NAME] and the more recent DFAT report dated 18 December 2015". The DFAT report included the following material at paragraph 3.35, which was set out in the [NAME] agent's written submissions to the [NAME] (emphasis in original): Imputed membership of the Liberation Tigers of [NAME] ([NAME]) 3.35 The UNHCR's December 2012 [NAME] for Sri Lanka note that a person's real or perceived links with the [NAME] may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include: 1) persons who held senior positions with considerable authority in the [NAME] civilian administration, when the [NAME] was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; 2) former [NAME] combatants or '[NAME]'; 3) former [NAME] combatants or '[NAME]' who, due to injury or other reason, were employed by the [NAME] in functions within the administration, [NAME], 'computer branch' or media (newspaper and radio); 4) former [NAME] supporters who may never have undergone military training, but were involved in sheltering or transporting [NAME] personnel, or the supply and transport of goods for the [NAME]; 5) [NAME] fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the [NAME]; 6) persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. 19 Thus the [NAME] written submissions to the [NAME] gave clear emphasis to sub-paragraph 6 of the [NAME]. 20 In addition, in his oral submissions to the [NAME] judge, the [NAME] drew attention to sub-paragraph 5 of the [NAME] in support of the [NAME] judicial review application. The solicitor emphasised the numerous favourable findings made by the [NAME] which supported the [NAME] claims. 21 The [NAME], in his outline of written submissions on the appeal, submitted that although the [NAME] noted at [10] of its reasons for decision that the [NAME] included persons with family links, it did not make a finding in relation to the appellant specifically. While acknowledging that the [NAME] stated at [10] of its reasons for decision that the issue of whether a person with an identified profile was in need of protection depends on "the specifics of the individual case", the appellant contended that the [NAME] did not in fact consider his case individually. 22 As to Ground 2, the appellant claimed that the [NAME] judge had failed to provide clear reasons for his decision. He cited the High Court's decision in [NAME] Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25]. This passage refers to the duty of the Refugee Review Tribunal to review a decision and that a failure to make an obvious inquiry about a critical fact could, in some circumstances, amount to jurisdictional error by a constructive failure to exercise jurisdiction. 23 The appellant here contended that the [NAME] judge had the same duty as the Tribunal to review a decision in order to determine whether a "jurisdictional error" has been made. He said that this duty required the [NAME] judge to make findings on any "substantial, clearly articulated argument relying upon established facts", citing [NAME] v [NAME] Immigration and [NAME] Affairs [2003] HCA 26; 77 ALJR 1088 ([NAME]) at [24] per [APPELLANT] and [NAME] ([COUNSEL] J agreeing). 24 The appellant relied upon his solicitor's oral submissions to the [NAME] judge relating to the detention of the two [NAME]. While acknowledging that the [NAME] found that none of the family had any actual [NAME], the solicitor submitted that as the [NAME] were still in captivity, the appellant might be at risk "for some random reason that has no foundation of fact". On the appeal, it was submitted that the [NAME] judge rejected this ground by stating at [50] that the [NAME] took into account "the [NAME]' suspected links to the [NAME] in considering the [[NAME]] claims". The appellant contended that the [NAME] judge failed to give any consideration to his solicitor's submissions as summarised immediately above. 25 Similarly, the appellant contended that the [NAME] judge failed to consider his solicitor's "substantial and clearly articulated submission in relation to the interrogation" in August 2012 and that it was "incumbent" on him to consider the effect of the difference between that interrogation and earlier interrogations.

Accordingly, it was contended that the [NAME] judge failed to engage with the substance of the [NAME] submissions below. 26 A copy of the transcript of the [NAME] proceeding below was in evidence on the appeal. After noting that the [NAME] did not make any findings as to why the two [NAME] had been detained (in circumstances where it found that none of the family had actual, or any, [NAME]), the appellant submitted to the [NAME] judge that, in assessing the possible risk to him if he were returned to Sri Lanka, the [NAME] had to consider the possibility that, similar to his [NAME] (who remain missing), the appellant might be at risk in circumstances where it was clear that the [NAME] "were taken for convention reasons". The solicitor submitted that the first ground of the [NAME] judicial review application was to the effect "that the circumstances of the [appellant] fall within the profile, which is constantly referred to in the Sri Lankan cases, that my client is family – person with a family link to persons with the above profiles". The solicitor drew the [NAME] judge's attention to the fact that one of the risk profiles in the [NAME] is "persons perceived as having had links to the Sri Lankan diaspora that provided funding and other support to the [NAME]". This is an apparent reference to sub-paragraph 5 of the [NAME], which was included in the extract set out in the [NAME] [NAME] agent's written outline of submissions to the [NAME] (see [18] above). The solicitor submitted to the [NAME] that the detention of the two [NAME] was "random" and that, in assessing the possible risk to the appellant, the [NAME] had to consider the possibility that the appellant might be at risk for some similar random reason, as had occurred with his [NAME] and who remained missing. 27 The transcript records the [NAME] judge as observing that the Minister contended the [NAME] had expressly addressed the [NAME] familial links to his missing [NAME], having regard to the contents of [13] of the [NAME]'s reasons for decision (which is set out in [10] above). [NAME] also drew attention to [37] of the [NAME]'s reasons for decision as containing a reference to the [NAME] having considered "the [[NAME]] circumstances in their totality" (which is also set out in [10] above). In response to those observations, the [NAME] submitted below that the appellant never complained that he suffered harm because of his perceived [NAME]. Rather, the [NAME] explained that his client relied on the events relating to the disappearance of his [NAME]. Thus, the crux of his submission was that it was no answer that the [NAME] considered that the appellant personally did not face harm due to perceived [NAME] because he previously had never been physically, harmed, arrested, detained or taken away. 28 In oral submissions in reply below, the [NAME] reinforced his contention that, because the [NAME] remained missing after eight years without explanation and, given the [NAME] familial links with those [NAME], the appellant was fearful that he would meet a similar fate if he were returned to Sri Lanka notwithstanding the significant changes which had occurred since he left that country. 29 The [NAME] also made oral submissions below as to why the appellant contended that the visit by the unknown men in August 2012 was "different" from the earlier occasions. He submitted that this was because the men "did not show their identification or disclose who they were, and clearly in that situation, the threat was much more ominous".

Disposition of the appeal 30 As noted above, the two grounds of appeal overlap. In particular, both grounds raise the question whether the [NAME] judge failed adequately to explain why he rejected the [NAME] two judicial review grounds and, also, whether [NAME] addressed the [NAME] [NAME] submissions in support of his judicial review challenge. These matters raise the issue whether there was a constructive failure on the part of the [NAME] judge to exercise his judicial review jurisdiction. In circumstances where this issue is directly raised by ground 2 of the amended notice of appeal, it is convenient to deal with that ground first whilst also noting the overlap with ground 1.

Ground 2 on the appeal: constructive failure to exercise jurisdiction 31 The appellant relied upon two [NAME] matters in support of his contention that there was a constructive failure by the [NAME] judge to exercise jurisdiction. Those matters are, first, the claim that the [NAME] judge failed to provide "clear reasons" for rejecting the [NAME] judicial review application. [RESPONDENT] matter is the [NAME] claim that the [NAME] judge failed to make findings on a "substantial, clearly articulated argument relying upon established facts", citing [NAME]. 32 The Minister accepted that a failure by a judge to give adequate reasons may amount to an error of law, citing authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of [NAME] v [NAME[NAME]. [COMPANY] [1983] 3 NSWLR 378 at 386 per [NAME]; Mifsud v Campbell (1991) 21 NSWLR 725 and [NAME] v [NAME] Immigration and Citizenship [2008] FCA 735; 247 ALR 582 ([NAME]) at [26] per Flick J). In [NAME], Flick J identified the following reasons for requiring judges to provide adequate reasons for their decisions: (a) the obligation arises as a matter of judicial duty and enables an appeal court to determine whether or not the [NAME] judge's decision was or was not affected by error of law or an appealable error (at [19]); (b) the failure to provide adequate reasons may lead to a real sense of grievance by the unsuccessful party who does not know or understand why the decision was made (at [19]); and (c) the need to maintain public confidence, respect and faith in the judicial system, recognising that lower courts play an important role as they have to deal with so much work and usually come into contact with more litigants than do higher courts (at [20]). 33 In [NAME] [NAME] J said the following at [26] with respect to the requirements of the reasons of a [NAME] judge in exercising a judicial review jurisdiction: 26 Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant – or this Court – is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision. 34 Justice Flick repeated and expanded upon these matters in BKL15 v [NAME] [NAME] [2016] FCA 802 at [8]-[16]. It is important to note what [NAME] said at [16] concerning ex tempore reasons for judgment: 16 But the standard is not a standard of perfection. The judicial context in which decisions are made must necessarily be recognised - including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. Indeed, the very prospect that ex tempore reasons may not adequately address the issues under consideration should sound a note of warning to the [NAME] judge about the need to reserve a decision for greater consideration. When an ex tempore judgment is delivered, however, it "should not be picked over" and "appropriate allowance should be given for the pressures under which judges… are placed by the volume of cases coming before them": Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; [NAME] v [NAME] of the late [NAME] [2014] NSWCA 278 at [140] per Ward JA ([NAME] agreeing); [COMPANY] v [COMPANY] [COMPANY] [2015] NSWCA 402 at [24] per Leeming JA (Gleeson JA and Emmett AJA agreeing). Matters of complexity requiring "judicial reflection" do not usually lend themselves to ex tempore reasons for judgment: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [102] per Bergin CJ in Eq. See also: [2015] NSWCA 373 at [180] per Emmett AJA. The understandable desirability, especially in a high volume jurisdiction such as [NAME], of delivering ex tempore reasons may sometimes achieve expedition in decision-making at the expense of justice. The "overarching purpose of the civil practice provisions" found in s 37M of the Federal Court of Australia Act 1976 (Cth), it should constantly be recalled, includes as an objective "the just determination of all proceedings" and not merely a determination which is quick and inexpensive. No procedure should be encouraged, be it by way of ex tempore judgments or otherwise, which sacrifices the need for any Court to achieve a "just determination" of a proceeding before it and a determination "according to law". 35 I respectfully agree with Flick J's observations in both [NAME] and in BKL15. It is also apposite to note French CJ's statement in Assistant Commissioner [NAME] v [COMPANY] [2013] HCA 7; 252 CLR 38 at [67], where [NAME] described the provision of reasons for a court's decision as one of the "defining characteristics which mark a court apart from other decision-making bodies" (to similar effect see the observations of French CJ and Kiefel J in [NAME] v [NAME] [2011] HCA 24; 243 CLR 181 at [54], where their Honours described the public explanation of reasons for final decisions as central to the judicial function). Adequate reasons must be given by judges so as to reassure litigants and the public that the judicial function is being properly performed. 36 On the issue of the adequacy of a judge's reasons in a judicial review context, reference should now also be made to the very recent decision of the [ADDRESS] in DAO16 v [NAME] [NAME] [2018] FCAFC 2 (DAO16) at [46]-[48] per [NAME] and [NAME] JJ. At [47]-[48] their Honours made the following obiter observations on the obligation of a judge to provide adequate reasons for his or her decision: 47 The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of [NAME] v [NAME] (1986) 159 CLR 656 at 667 (Gibbs CJ). As [NAME] stated in [NAME] v [NAME] ([COMPANY] (1987) 10 NSWLR 247 at 273: Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted. 48 However, the reasoning on the basis of which the [NAME] judge reached his decision in this case is not revealed by his reasons. The [NAME] judge addressed the grounds of judicial review by stating his conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed; nor do the reasons disclose that the [NAME] judge considered fundamental aspects of the [NAME] case such as, for example, the challenge to the dismissal by the [NAME] of the evidence of the 16 witnesses. To find, for example, that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion: see above at [25]. 37 In DAO16, the [ADDRESS] considered that the [NAME] judge had not only failed to provide adequate reasons for his decision, but also that the reasons which were provided did not reveal that fundamental aspects of the [NAME] case had been considered. 38 The failure to address fundamental aspects of a party's case may give rise to procedural unfairness or, in an appropriate case, be characterised as a constructive failure to exercise jurisdiction. For example, in [NAME] and [NAME] (with whom [NAME] J agreed) accepted that a failure by the then Refugee Review Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" could amount to a failure to provide natural justice or "as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction". Their Honours held that the Tribunal had failed to determine a matter which was put to it, namely that Mr [NAME] feared persecution for a Convention reason (being his claimed membership of a social group which was described as entrepreneurs and/or [NAME] who publicly criticised law enforcement authorities for failing to take action against crime or criminals), whereas the Tribunal determined the matter on the basis of his membership of a broader social group, which the Tribunal described as "[NAME]". Their Honours considered that this amounted to a constructive failure to exercise jurisdiction which entitled Mr [NAME] to constitutional writ relief under s 75(v) of the Constitution. 39 Justice Kirby adopted a similar view in [NAME] at [88]. While noting that not every mistake in reasoning to a conclusion will amount to a constructive failure to exercise jurisdiction, [NAME] added that where the mistake amounts to "a basic misunderstanding of the case brought by an applicant" the flaw may be so serious as to undermine the lawfulness of the decision in a fundamental way. 40 [NAME] involved a constructive failure to exercise jurisdiction by a statutory administrative tribunal. It is clear, however, that similar principles apply to the exercise of jurisdiction by a court of law. The failure of a judicial officer to provide adequate reasons is sometimes expressed as an error of law but is also described in other cases as a constructive failure to exercise jurisdiction. This is illustrated by the decision of the Court of Appeal of [NAME] in [NAME] v Commissioner of Police [2012] NSWCA 379 ([NAME]) per Allsop P, [NAME] and [NAME]. 41 In an earlier decision of that Court ([NAME] v Commissioner of Police [2010] NSWCA 239), a judgment of the District Court was set aside and the matter was remitted for reconsideration by the same [NAME] judge. The matter came again before the Court of Appeal by way of an appeal under s 142N of the District Court Act 1973 ([NAME]) (which requires there to be an error "in point of law"). The appellant claimed that the [NAME] judge conducting the remitted hearing was ostensibly biased and constructively failed to exercise jurisdiction. The basis for the claimed constructive failure to exercise jurisdiction related to the [NAME] judge's failure to take into account relevant and uncontested evidence going to [NAME] issues for determination (namely whether the plaintiff was suffering from PTSD and, if so, whether his major depression was a consequence of that disorder), and by making findings that were not open on the evidence. The leading judgment in the Court of Appeal was given by [NAME], who analysed some previous authorities concerning the notion of a constructive failure to exercise jurisdiction. [NAME] noted at [22] that acting without evidence or without giving reasons may lay the basis for a finding of error, which can be expressed in various ways, citing the [ADDRESS]'s decision in NADH of 2001 v [NAME] Immigration and [NAME] Affairs [2004] FCAFC 328; 214 ALR 264 at [12] per Allsop J, with whom [NAME] and [NAME] agreed. [NAME] stated at [22] in [NAME] that it was apparent that "a range of circumstances may lead a decision to be clothed in a variety of pejorative epithets, all of which describe a failure to exercise jurisdiction, sometimes called "a constructive" failure, because the tribunal has purported, but failed to do that which is required". 42 Reference was also made in [NAME] at [23] to another decision of the [ADDRESS] in [COMPANY] v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166. There the [ADDRESS] noted at [5] that the [NAME] had simply reproduced as its reasons the submissions of one party without attribution, which gave rise to "a serious concern that the Tribunal has failed to bring its own mind to bear on the issues before it and thus it had constructively failed to exercise its jurisdiction". 43 At [25] of [NAME], [NAME] stated that where an appellant alleges error in fact-finding by a [NAME] judge, the appeal court in performing its statutory appeal function had to "engage with the evidence in relation to the area in dispute". [NAME] observed at [25] that the same principle applies to a trial court. 44 In [NAME], the [NAME] judge's reasons for judgment were closely examined and analysed by the Court of Appeal. Various issues, which were described by [NAME] at [105] as being "critical" to the disposition of the plaintiff's claim, were found not to have been addressed by the [NAME] judge "in a fashion which considered, let alone determined, their significance". This was so notwithstanding that the [NAME] judge had produced what was described as "a lengthy judgment". Moreover, [NAME] found at [106] that the [NAME] judge appeared to have accepted the evidence of a medical expert on relevant matters relating to the plaintiff's claim that he was entitled to relief because of PTSD and depression, yet then ignored that evidence. [ADDRESS] of Appeal's essential reasons for upholding the [NAME] claim that there had been a constructive failure by the [NAME] judge to exercise jurisdiction is reflected in [108] of [NAME]'s judgment: 108 In the circumstances, there has been a constructive failure to exercise the jurisdiction conferred on the Court. There was a failure to deal with central elements of the [NAME] case. Rather, a conclusion was reached which was inconsistent with facts and opinions which were recounted and not rejected. It was also reached without any coherent analysis of the [NAME] own evidence as to the effects of the traumatic events on him. 46 [NAME] helpfully identifies some of the relevant principles concerning the ground of a constructive failure to exercise jurisdiction, but each case necessarily will turn on its own particular facts and circumstances. An important matter which must be taken into account in considering the application of this ground relates to the nature of the jurisdiction being exercised by both the trial court and the appeal court. In [NAME], the trial court was exercising original jurisdiction and the ambit of the statutory right of appeal in that case was expressed by reference to there being a grievance "in point of law". In the present appeal, which is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), the issue is whether the [NAME] judge fell into appealable error in exercising the [NAME]'s original jurisdiction under s 476 of the [NAME] 1958 (Cth) in dismissing the [NAME] claim that the [NAME] had fallen into jurisdictional error. It is also relevant to take into account the fact that, because the [NAME] was exercising a judicial review jurisdiction, it was not a matter for that Court to make findings of fact. Generally speaking, that is the province of the administrative body whose decision is being judicially reviewed. That is not to deny, however, that such a body's factfinding may itself be amenable to judicial review on various grounds (see, for example, CQG15 v [NAME] [NAME] [2016] FCAFC 146 at [36]-[38] per [NAME] and [NAME] JJ; ARG15 v [NAME] [NAME] [2016] FCAFC 174 at [44]-[47] per [NAME] JJ and DAO16 v [NAME] [NAME] [2018] FCAFC 2 at [30] per [NAME] and [NAME] JJ). 47 In my respectful view, for the following reasons there has been a constructive failure to exercise jurisdiction in this case. First, the brevity of the [NAME] judge's substantive reasoning for rejecting the two grounds of judicial review has already been noted. The [NAME] judge explained in six short sentences in [50] and [51] as to why ground 1 was rejected (see [15] above). The [NAME] judge's reasons for rejecting ground 2 are set out in [53] of [NAME]'s reasons for judgment. In both instances, the [NAME] judge's reasons amount to little more than assertions or conclusions. In particular, in respect of ground 1, the [NAME] judge found that the [NAME] had taken into account the [NAME]' suspected links to the [NAME]. [NAME] said that this matter had been expressly taken into account in the [NAME]'s reasons "as summarised above". No specific cross-reference was given to any particular part of the [NAME]'s reasons for decision which the [NAME] judge considered supported his conclusions. In particular, no specific cross-reference is given for [NAME]'s conclusions that: (a) the [NAME] took into account the [NAME] [NAME]' suspected links to the [NAME]; and (b) there was no failure by the [NAME] to consider the familial connection of the appellant to his [NAME]. 48 These difficulties are not overcome by the fact that in [37] of the [NAME]'s reasons for decision it stated that it had considered the [NAME] circumstances "in their totality". It seems, however, that the [NAME] judge viewed this statement as determinative (see [51] of [NAME]'s reasons). Whether in fact the [NAME] considered the [NAME] circumstances in their totality fell to be determined not by a mere assertion to that effect by the [NAME], but by a careful objective analysis of the [NAME]'s reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant. The [NAME] judge conducted no such analysis or evaluation and simply accepted and acted upon the [NAME]'s bald assertion. 49 Similar difficulties are presented by the inadequacy of the [NAME] judge's reasons for rejecting ground 2. In [52] of [NAME]'s reasons for judgment, the [NAME] judge referred to the [NAME]'s identification of the [NAME] as a person who had complained to the [NAME], yet she and other members of her family continued to reside in Sri Lanka in the absence of any harm during the period since the appellant left Sri Lanka. [NAME] then said at [53] that the [NAME]'s adverse reasoning "was open on the material and cannot be said to lack an evident and intelligible justification". As the [ADDRESS] observed in DAO16 at [48], to simply state that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion. 50 As to the [NAME] complaint that the [NAME] failed to give adequate reasons as to why he was not at risk, the [NAME] judge referred at [53] to the significance which the [NAME] attached to the [NAME] release and its finding that he suffered no harm from the interrogations. Reference was also made to the [NAME]'s findings that neither the mother nor other members of the [NAME] family been harmed since he left Sri Lanka. What is missing from the [NAME] judge's reasons, however, is any attempt to address the [NAME] reliance on the [NAME], or the significance of his uncontested evidence that his [NAME] were still missing. 51 Nor does the [NAME] judge adequately explain why he did not accept the significance in the [NAME] case of his claim that he had been threatened in August 2012 with the same fate if he were to continue to complain to the authorities about their disappearance. This threat, which the [NAME] found had been made, arguably put the appellant in a different position from his mother. It is possible that the [NAME] judge had this claim in mind in [53] of his reasons for judgment and the reference there to the appellant having "suffered no harm in relation to the interrogations that then subsequently took place…". But it is far from clear that this is what [NAME] had in mind, bearing in mind that the [NAME] complaint was not that he had suffered harm in relation to the August 2012 interrogation, but rather that he was threatened with harm on that occasion if he persisted with his complaints concerning his [NAME]' disappearance. This ambiguity further exposes the inadequacy of the [NAME] judge's reasons. 52 These matters were relied upon by the appellant before the [NAME]. They were also prominent in his judicial review challenge before the [NAME]. In my respectful view, the matters had to be directly addressed by the [NAME] judge, but they were not. Both the appellant and any reader of [NAME]'s reasons for judgment is left to speculate as to why these matters were not viewed to be relevant and significant, and arguably provided some support for the [NAME] judicial review challenge. 53 Secondly, and related to the first matter, the [NAME] judge never grappled directly with important elements of the [NAME] [NAME] claim. That claim was that the [NAME] fell into jurisdictional error in failing to consider the risk to the appellant by virtue of his imputed links to the [NAME] by reason of his family association with the two missing [NAME]. At the forefront of this claim the appellant relied on three paragraphs in the [NAME] which identified "risk profiles", in particular sub-paragraph 6. The [NAME] judge made no reference at all to the [NAME]. Nor did he explain why the [NAME] reliance on them was misconceived. 54 It may well be that there is an adequate explanation as to why the [NAME] did not apply. But, if that is so, it is not evident from a fair reading of the [NAME] judge's reasons for judgment. The appellant (and, indeed, any other reader of the reasons) is simply left to speculate as to why relevant parts of the [NAME], which the appellant squarely raised before both the [NAME] and the [NAME] judge, did not indicate that he had a risk profile. The [NAME] judge found that the [NAME] had taken into account the [NAME]' suspected links to the [NAME] and also that it did not fail to consider the familial connection. But, as noted above, the [NAME] judge made no express cross-reference to any part of the [NAME]'s reasons for decision to underpin these assertions. One rhetorically asks whether [NAME] had in mind the [NAME]'s reasons at [10] and/or [13] of its reasons for decision. If so, a related question arises as to how these paragraphs provide an adequate response to the [NAME] claims. It was an important part of his case that, in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two [NAME] remained missing and that he was threatened with the same fate if he continued to complain about their disappearance. 55 It goes without saying that these ambiguities and shortcomings in the [NAME] judge's reasons for judgment are not resolved by reference to what was said in the transcript. Reasons for judgment should speak for themselves. They are directed not only to the parties but to the community at large who will not have easy access to the transcript. 56 It is proper to acknowledge that the [NAME]'s [NAME] jurisdiction is a high volume and challenging jurisdiction. Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided. Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties' respective cases. Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party's case. It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court's reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.

Ground 1 on the appeal: the [NAME] risk profile 57 Strictly speaking, having regard to the [NAME] success on ground 2 of the appeal, it is not necessary to determine ground 1 (although it is reiterated that there is some overlap between the two grounds). 58 In essence, the appellant complains in ground 1 of the appeal that both the [NAME] and the [NAME] judge erred in rejecting his claim that he was at risk of harm due to his familial connections with his two missing [NAME]. As has been repeatedly emphasised, in advancing this claim the appellant relied heavily on sub-paragraph 6 of the [NAME]. 59 The [NAME] were referred to by the [NAME] in [10] of its reasons for decision, albeit indirectly. In substance, however, by ground 1 of his judicial review application below, the appellant contended that the [NAME] had fallen into jurisdictional error because it had misapplied the [NAME]. This alleged misapplication was said by the appellant to be evident in [13] of the [NAME]'s reasons for decision. His complaint was that [13] suggested that the [NAME] believed that, for the family link profile to arise, the appellant had to be imputed with [NAME] or support whereas, on the [NAME] case, sub-paragraph 6 of the [NAME] merely required there to be a family link with another member of the same family who themselves were imputed with [NAME]. Resolution of this complaint required the [NAME] judge to address and construe the terms of the relevant part of the [NAME] and to determine whether the [NAME] had fallen into jurisdictional error in its construction and application. As noted above, there is no express reference to the [NAME] in [NAME]'s reasons for judgment. Nowhere does [NAME] directly address the detailed [APPELLANT] argument raised by the appellant in support of ground 1 below. Although the [NAME] judge found that the [NAME] had in fact taken into account the familial connection, [NAME] failed to address the issues raised by the appellant concerning the proper construction and application of the [NAME]. This failure is best characterised as contributing to why the [NAME] judge constructively failed to exercise his jurisdiction. It is unnecessary to give the error any other characterisation. On the remitter, it will be necessary for the [NAME] [APPELLANT] contentions concerning the proper construction and application of the [NAME] to his circumstances to be addressed and determined.

Conclusion 60 For these reasons, the appeal should be allowed. The orders dated 15 May 2017 should be set aside and the matter remitted to the [NAME] for reconsideration according to law. In the circumstances, it is appropriate that the matter be reconsidered by a judge other than the [NAME] judge, as sought by the appellant. In resisting such an order, the Minister relied upon [NAME]. In my view, however, that case is distinguishable on this issue having regard to the absoluteness of the [NAME] judge's findings (or perhaps, more accurately, assertions) in the present case. Considerations of apprehended bias based on prejudgment suggest that the preferable course is to have another judge conduct the reconsideration. 61 It is not appropriate that the matter be remitted to the [NAME] for reconsideration according to law, as sought by the appellant. It is not the function of this Court to step into the shoes of the [NAME] and determine the judicial review application as though this Court was exercising the [NAME]'s original jurisdiction. It is essential to the proper administration of justice in this country that the [NAME] properly discharge its important jurisdiction involving judicial review of [NAME] decisions. This is a different but no less important jurisdiction to that of an appellate court. 62 The Minister did not contest that costs should follow the outcome of the appeal. The appellant sought an order for costs in respect of this appeal and the below proceedings in the [NAME]. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 6 February 2018