AKX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 4 AKX18 is a citizen of Sri Lanka who arrived in Australia on 25 April 2013. 5 On 2 January 2017, he applied for a SHEV along with his wife, AKY18, and their five children. 6 The foundation of his claim for protection was that, if he returned to Sri Lanka, he would be persecuted by Sri Lankan authorities by reason of an imputed connection to the Liberation Tigers of Tamil Eelam (LTTE). He alleged that his older stepbrother had gone missing in 1986 or 1987, and he believed that the stepbrother had been killed by security forces. He also said that, in or around 1995, a cousin with whom he had a close relationship joined the LTTE and, on one occasion when they were together at home, they were both arrested by the police. He claimed that he was held for 14 days and was only released when his mother paid a bribe, but that his cousin was detained for some two and a half years. 7 He further alleged that he was subject to round-ups and checking by authorities, which caused him to leave for Colombo. However, he was arrested there as well and held in prison for 10 days. 8 In 2000, AKX18 married AKY18. Shortly thereafter, he went to work in Kuwait. 9 AKX18 claimed that, in or around 2001, his two younger brothers joined the LTTE as fighters. In 2005, during the ceasefire period, one of them went to live in Kuwait and has remained there since. His other brother continues to live in Trincomalee. 10 In around 2005 or 2006, AKY18 and his daughter joined him in Kuwait. Whilst there, he and his wife had two more children. 11 AKX18 claimed that he returned to Sri Lanka in 2010 to visit family, at which time he was arrested in Trincomalee. He says that he was again released after payment of a bribe. He returned to Kuwait that month. 12 He claimed that he visited Sri Lanka again in 2011, at which time he was concerned that people were informing on him, and that he would be taken. He accordingly went back to Kuwait. 13 He further claimed that he returned to Sri Lanka in 2013, at which time he was approached by police while waiting at a bus stop, detained, and later released after his mother paid a bribe. He says that he was required to report to the police the next day, but that he did not do so. Instead, he travelled with his family to Colombo and booked a flight to India. AKX18 and his family subsequently travelled by boat to Australia. 14 On 2 June 2017, the Minister's delegate refused to grant a SHEV to AKX18.

The decision of the Authority 15 The Minister's decision was referred to the Authority for review, in accordance with the Migration Act 1958 (Cth) (Migration Act). 16 The Authority's decision and reasons were published on 10 January 2018. 17 At the outset of its reasons, the Authority expressly listed the information that had been before it. This included, amongst other things, a submission made on behalf of AKX18 and certain country information reports. 18 It was noted that the submission had "trust[ed]" that the Authority would call AKX18 for an interview if required. However, the Authority declined to conduct such an interview, citing the fact that it generally did not hold such interviews and the fact that it could only consider new information in exceptional circumstances. That position was consistent with its duties under Part 7AA of the Migration Act. 19 After setting out the factual background to AKX18's case in some detail, it turned to the specific allegations on which the claim for protection was based. 20 It accepted that AKX18's older stepbrother went missing in 1986/1987 and was killed, possibly by the security forces. 21 It also accepted that AKX18: (a) was displaced for several months in 1990; (b) was detained in 1995 along with his cousin who was a member of the LTTE, and was then held for 14 days and released after his mother paid money to secure that release; (c) was subjected to regular security round-ups and checks; and (d) was arrested in Colombo and detained for 10 days - though it was noted that he was released without any charge and was able to continue to live openly in Sri Lanka, albeit subject to regular, routine security checks. 22 The Authority further accepted that two of AKX18's brothers had jointed the LTTE as fighters in 2001. 23 Whilst the Authority accepted that AKX18 returned to Sri Lanka in 2010, and that it was plausible that he had come to the attention of the police at that time, it was not satisfied that he had been arrested by reason of any suspected LTTE connections. This was particularly so because, on his own account, he was able to re-enter the country unimpeded at the airport in Colombo and did not come to the attention of police until he reached his local area in the eastern part of Sri Lanka. When he was later detained, he was asked where he had been and what he had been doing, but was not questioned at all about any LTTE connections. 24 The Authority noted that AKX18 had an unspecified "problem" on his visit to Sri Lanka in 2011, and that he was concerned that people were informing on him. However, it also noted that he was not prevented from leaving the country and returning to Kuwait. 25 The Authority was not convinced that AKX18 had been detained by police on his return to Sri Lanka in 2013. However, giving him the benefit of the doubt, it accepted that he had been detained briefly and then released on the payment of a bribe of 10,000 rupees. This was consistent with the country information available to the Authority, to the effect that it had credibly been reported around the same time that the authorities did abuse and harass the general Tamil population with impunity. 26 The Authority was of the view that, as AKX18 did not have any difficulty entering and leaving the country before and after that incident, it could not be taken to raise any concern that he would face a real chance of harm if he was to return to Sri Lanka. 27 On the basis of the foregoing points, which were addressed in greater detail in its reasons, the Authority was not satisfied that AKX18 was imputed with an LTTE or other profile of concern when he departed Sri Lanka in 2013, or that he would be imputed with such a profile if he was now to return. 28 It also addressed a substantial amount of country information relating to the general improvements in the treatment of Tamils that had taken place in Sri Lanka since the change in government in 2015. It was not satisfied that AKX18 fell within any of the categories of persons who might still be targeted by the authorities, as identified in a 2016 report prepared by the United Kingdom Home Office. This was particularly so given his ability to enter and leave the country without hindrance and through legal channels. In that latter respect, the Authority did not accept that he had departed Sri Lanka illegally in 2013, as he had declared in his SHEV application. Instead, he had flown legally from Colombo to Tamil Nadu in India. 29 Overall, the Authority was not satisfied that he would be subject to mistreatment if he was to return to Sri Lanka. It considered that, even if he returned as a failed asylum seeker and was perceived to have money, that would not mean that he would be harmed. 30 As a result, the Authority was not satisfied that AKX18 met the criteria for a protection visa in either s 36(2)(a) or s 36(2)(aa) of the Migration Act. He did not meet the requirements necessary to fall within the s 5H(1) definition of "refugee", nor were there substantial grounds for believing that there was a real risk that he would suffer "significant harm", as defined in s 36(2A). It affirmed the delegate's decision to refuse to grant a SHEV to AKX18.

The decision of the Federal Circuit Court 31 Before the Federal Circuit Court, AKX18 advanced three grounds of appeal, which were identified as items nine, ten and eleven in a further amended application filed on 24 January 2020. 32 The first ground of appeal raised a question of fact, being whether the Authority had erred in concluding that the Sri Lankan authorities did not view AKX18 as an LTTE member like his cousin. It was contended that the Authority had committed jurisdictional error when it did not consider relevant matters or apply an intellectual process, misunderstood the evidence and made a finding that was unreasonable. That contention was rejected by the Court below because no claim had ever been made that AKX18 was an LTTE member, and all that the Authority had done was contrast his treatment upon his arrest in 1995 with that of his cousin. The Authority accepted that AKX18 had been released after his mother had paid a bribe, and concluded that he would not have been released if he had been perceived to be an LTTE member. The learned primary judge did not detect any unreasonable, irrational or illogical reasoning by the Authority. His Honour found that it had been entitled to come to the conclusion that it did, and it was clear that it had undertaken an active intellectual process. No jurisdictional error was established. 33 The second and third grounds of appeal related to the Authority's consideration of the country information before it. 34 It was alleged by way of the second ground that the Authority had erred in concluding that there had been a "significant change" in the security situation and in the circumstances in Sri Lanka since 2015, such that it could not be satisfied that AKX18 would experience harm or be subjected to extortion upon his return to the country. 35 The third ground drew specific attention to the Authority's consideration of the aforementioned 2016 report of the UK Home Office. That report recognised that the United Kingdom's Upper Tribunal (Immigration and Asylum Chamber) had, in a 2013 country guidance determination, identified four classes of persons who were at risk of persecution or serious harm in Sri Lanka. As summarised by the Authority, those categories were: "those with a significant role in post-conflict Tamil separatism", "journalists/human rights activists", "people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces", and "those whose name appears on a 'stop' list of those against whom there is an extant court order or arrest warrant". It was alleged by AKX18 that the Authority had erred in considering the four categories, and in finding that he did not fall within any of them, because the 2016 UK Home Office report was "not relevant to the decision". Instead, so it was contended, the Authority should have considered a later 2017 report by the Australian Department of Foreign Affairs and Trade (DFAT), which set out different categories of persons who may require protection. 36 The primary judge held that these grounds merely cavilled with the Authority's evaluation of the country information. The Authority had clearly considered that country information, including the 2017 DFAT report. It was entitled to weigh and assess the information for itself. His Honour concluded that the grounds merely asked the Court to engage in impermissible merits review, and did not disclose any jurisdictional error.

The appeal to this Court 37 The notice of appeal to this Court was lodged in mid-2020. It stated that AKX18 appealed from the whole of the judgment of the Court below, and that he relied on "the grounds and particulars being already stated in [his] FCC Application". The grounds of appeal were identified as being that: The Federal Circuit Court failed to find that the [Authority] declined its jurisdiction to me. The Federal Circuit Court erred when it found the Authorities' [sic] decision is not affected by jurisdictional error 38 Unfortunately, AKX18's written submissions in support of these grounds were not filed in accordance with the directions of the Court. Instead, they were filed belatedly, approximately ten days before the hearing, such that the Minister was not afforded sufficient time to prepare a written response. 39 Mr Johnson, as Counsel for the Minister, nevertheless indicated that he was able to deal with the submissions orally on the basis that they were much the same as those advanced before the Federal Circuit Court. It was apparent on the face of the written submissions ultimately filed on behalf of AKX18 that this was indeed the case: the submissions substantially repeated the three grounds relied upon in the Court below. Those grounds may now be address in turn.

Ground 1 - the contrast between the treatment of AKX18 and that of his cousin 40 It was contended by this ground of appeal, as it was below, that the Authority had erred by not treating AKX18 as being in a similar position to his cousin, who was an LTTE member. It was submitted that the Authority had not carefully considered the material before it, and that its reasoning, by which it differentiated AKX18 from his cousin, was unreasonable, irrational, or illogical. The Authority's findings on this point were expressed in paragraph [15] of its reasons, as follows: 15. I accept that the applicant was detained in 1995 while in the company of his cousin who was an LTTE member. I accept that the applicant was held for 14 days before being released and it is plausible that his mother paid some money to help secure his release. I note the differentiation between his experience and his cousin who was detained for an extended period, which indicates that the authorities did not view him as an LTTE member like his cousin. 41 The Authority thereby accepted that AKX18 had been "detained in 1995 while in the company of his cousin who was an LTTE member" and that AKX18 "was held for 14 days before being released and it is plausible that his mother paid some money to help secure his release". It differentiated his experience from the extended detention of his cousin, who was an LTTE member. From its observation as to the difference in the treatment of the two, it reasoned that the authorities in Sri Lanka had not perceived AKX18 to be an LTTE member like his cousin. 42 The Authority further accepted, in paragraph [16] of its reasons, that AKX18 was arrested for a second time while residing in Colombo and held for ten days. However, it was noted that he was then released without charge, and was thereafter able to live openly in Sri Lanka, albeit subject to regular, routine security checks. It concluded that the Sri Lankan authorities had no ongoing adverse interest in him. 43 The gravamen of the submissions made on behalf of AKX18 before this Court was that the Authority had erred in finding that the difference in the treatment afforded to AKX18 and his cousin was to be regarded as a consequence of the fact that the cousin was viewed by the authorities as an LTTE member while AKX18 was not. The Authority's reasoning was described as "mere speculation". It was contended that the Authority should have found the difference in treatment to have resulted only from the fact that AKX18's mother paid a bribe to secure his release. This was said to be the "obvious reason" why he was released earlier than his cousin. The implication of this contention was that it ought to have been concluded that the Sri Lankan authorities did believe that AKX18 was an LTTE member. This conclusion, so it was said, was supported by AKX18's own claim that he was arrested on account of being suspected to be an LTTE member, and by the Authority's finding that his older stepbrother had earlier been killed, potentially by security forces. 44 However, far from being illogical, the Authority's conclusion that the Sri Lankan authorities did not view AKX18 as an LTTE member was entirely appropriate. The fact that he was released after 14 days, following the payment of a bribe, is a rational consequence of the conclusion drawn by the Authority: that is, that the Sri Lankan authorities did not view him as an LTTE member. Using the language of an appeal, this finding was "open" to the Authority, in the sense of being an inference that arose from the facts that had been established. The finding was also logically open, in that the different treatment afforded to AKX18 and his cousin was reasonably attributable to the fact that the cousin was, or was perceived to be, a member of the LTTE in contrast to AKX18, who was not. 45 In circumstances where AKY18 was arrested with his cousin who was an LTTE member, and was then released after a relatively short time upon payment of a bribe, while his cousin was held for substantially longer, there is a fair inference to be drawn that the authorities were prepared to release him, at least in part, because they did not perceive him to be a member of the LTTE. That inference is reinforced by the fact that AKX18 did not claim to be a member of the LTTE. It is not undermined to any material degree by his own assertion that he was arrested on account of being suspected to be an LTTE member, or by the fact that his stepbrother had earlier been killed, potentially by security forces. 46 The difficulty for AKX18 is that this ground of appeal, though couched in the language of jurisdictional error, merely asks the Court to review the inferences drawn by the Authority from the facts before it, as well as the Authority's application of those inferences to draw conclusions as to his circumstances. The Authority simply found, as a matter of common sense and logic, that because the Sri Lankan authorities had not treated AKX18 in the same way that they had treated his cousin - a person who, on AKX18's own case, was a member of the LTTE - then those authorities must not have regarded AKX18 as also being a member of that organisation. These were matters of fact that the Authority was entitled to decide for itself. There was nothing unreasonable, irrational, or illogical in the conclusion that it reached. On the contrary, there was a rational path of reasoning disclosed in its decision. 47 As was submitted on behalf of the Minister, the findings made by the Authority in relation to AKX18's detention in 1995 need to be considered in the context of the other findings made in connection with his status or imputed status. The Authority found that he had been detained on occasion but released without charge after a relatively short amount of time, sometimes with the payment of a bribe. It recognised that, around the time that he was arrested, young Tamil men were subject to scrutiny, that two of his brothers had joined the LTTE, that he had lived in Kuwait during the civil war, that a brother who was a member of the LTTE had been allowed to leave Sri Lanka in 2005, that no members of his family who remained in Sri Lanka had come to harm because of his brothers' activities, that one brother who had been a member of the LTTE continued to live openly there and had not come to harm, that when AKX18 was questioned by police in 2010 they did not accuse him of being a member of the LTTE or ask him about his links to the organisation, and that he had been able to enter and leave the country through regular channels without hindrance. These facts gave rise to the Authority's conclusion that it was "not satisfied that the applicant was imputed with an LTTE or other profile of concern when he departed Sri Lanka in 2013, or that he would be on return". There was, by contrast, little basis for the Authority to conclude that AKX18 was, or was perceived to be, a member of the LTTE like his cousin. 48 The Authority's conclusion was based on a rational analysis of AKX18's circumstances and the events that he had described. There is nothing illogical in that conclusion. The Authority's decision accordingly has a reasonable foundation. 49 The Authority then turned to consider the country information before it. Specifically, it noted that there had been a more proactive approach to human rights and reconciliation under the Sirisena government, which took power in 2015. Whilst torture and other cruel, inhumane or degrading treatment was still used by police in their regular criminal investigations, there had been a decrease in the number of Tamils held in detention. Torture in Sri Lanka, perpetrated by either military, intelligence or police forces, was not systemic. Moreover, it was noted that the security situation in the east of the country had greatly improved since the end of the conflict, that monitoring of Tamils from former LTTE areas had decreased, that there were significant moves to progress reconciliation, that the Sri Lankan government was now concerned only with specific types of person who were working for Tamil separatism or to destabilise the unitary Sri Lankan state (which AKX18 was not), and that the Sirisena government had curbed the excesses of military power that were exercised under the previous government. For these reasons, the Authority concluded: 27. Noting the improvement in the security situation in Sri Lanka since the applicant's departure I am not satisfied that he would experience harm, or be subject to extortion, as a Tamil or for other reasons, on return to Sri Lanka. 50 This was a further reason provided by the Authority as to why AKX18 would not be harmed in the event that he was returned to Sri Lanka. That reason was derived logically from an analysis of the country information that was before the Authority. 51 It is arguable on this basis that, even if there was some error in the Authority's findings in relation to the reason for AKX18's release from detention in 1995, its findings in relation to the subsequent period and the country information before it would have rendered that error immaterial to the overall conclusion. Whatever may have been the position in 1995, the circumstances for AKX18 at the time of the decision in 2018 were radically different. 52 Ultimately, there is no sufficient basis for challenging the Authority's conclusion that AKX18 was not perceived by the Sri Lankan authorities to have any material LTTE connections. 53 For the foregoing reasons, there was no demonstrable error in the Authority's conclusion that there was no real risk that AKX18 would suffer significant harm. That conclusion was open to it, either as an inference from how AKX18 had been treated previously, or from the available country information. The primary judge was correct not to detect any such error. 54 It follows that the primary judge was also correct not to detect any error by the Authority in relation to the different treatment afforded to AKX18 and his cousin upon their arrest in 1995. The first ground of appeal must fail.

Ground 2 - the "significant" changes and the improvement in the security situation in Sri Lanka 55 The second ground of appeal was that the Authority had erred when it found, on the basis of the country information before it, that there had been "significant" changes in the country circumstances in Sri Lanka since the change of government in 2015, and that the security situation had improved, such that it could not be satisfied that AKX18 would experience harm or be subject to extortion as a Tamil, or for any other reason, upon his return to the country. 56 AKX18 submitted that, whilst the Authority had referred to certain facts in the country information that indicated that there had been "significant" changes in Sri Lanka and that the security situation in the country had improved, it had also referred to other facts in the country information that weighed against any such conclusion. It was essentially contended that, in light of those latter negative facts, the positive facts relied upon by the Authority could not support its finding that there had been a "significant" change in the country circumstances or an improvement in the security situation. The finding was accordingly said to be unreasonable. 57 Again, this is a challenge to a finding of fact. It is for the Authority to consider the country information, weigh it, and accord it an appropriate degree of relevance in its determination. AKX18's written submissions assert that the Authority erred by failing to understand and to balance the positive aspects of the country information against the negative aspects and that, if it had properly undertaken this balancing exercise, it could not logically have concluded that there had been a "significant" change or an improvement in the security situation. This reflects a fundamental misunderstanding of administrative decision making when compared to the cognate process in a curial setting. The administrative decision-maker is only required to consider the relevant material. In the absence of any specific statutory direction, it is not obliged to give any part of it any particular weight. It may accord large portions of the material little or no weight and give great weight to small portions. It is not bound to give similarly sourced material the same relative weight, nor is it required to find any fact on the balance of probabilities after giving appropriate weight to all of the evidence. It is for these reasons that, apart from legal "unreasonableness", a jurisdictional error may arise in relation to a finding of fact only if there is "no evidence" to support it. The "no evidence" rule also applies where the only evidence before the decision-maker is contrary to the fact found. Necessarily, this ground might overlap with the ground of unreasonableness. 58 In relation to the question of the absence of evidence, it is appropriate to repeat what was said by Jessup J in Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 at 324 [65], referring to the observations of Baston JA in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15, as follows: [65] Basten JA again mentioned the no evidence ground, and the contention which attends its exact limits in the context of jurisdictional error, in L & B Linings Pty Ltd v WorkCover Authority (NSW) [2012] NSWCA 15 at [34]. The setting for what follows was a party's reliance upon the judgment of Mason CJ in Bond. Basten JA said: Four points of caution should be made. First, this passage indicates that the "no evidence" ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term "no evidence", as an administrative decision-maker is usually entitled to take into account material which would not count as "evidence in a judicial context". In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a "no evidence" ground of review. 59 The last point is especially relevant in the present circumstances. If the issue is merely that the administrative decision-maker has formed a view based on their judgment as between conflicting indicators, then it will be especially difficult to demonstrate that any relevant jurisdictional error has arisen. 60 The Authority in the present case was entitled to evaluate the country information before it and attribute such weight to the various relevant parts as it saw fit. There was sufficient material to support the conclusions that it drew, such that no error can be perceived in its reasoning or its decision. For the Court to embark upon a weighing exercise of its own so as to ascertain whether or not it would reach a different view would be for it to stray impermissibly into the territory of merits review. The primary judge made precisely this point. 61 The Authority committed no error in identifying the "significant" change and the improvement in the security situation in Sri Lanka. The primary judge did not err by failing to detect any such error on the part of the Authority. It follows that the second ground of appeal must also fail.

Ground 3 - the four categories of at-risk persons 62 The third ground of appeal is somewhat similar to the second. The complaint, as expressed in AKX18's written submissions, is that: The IAA erred when it considered that 4 categories set out in the Upper Tribunal report applied to the Applicant and finding he did not fit within any of them, when the report was not relevant to the decision. 63 The complaint initially appeared to be that the Authority had referred to the Upper Tribunal decision that was cited in the 2016 UK Home Office report, which identified four categories of people who remained at risk in the post-conflict era in Sri Lanka, when it ought not to have done so, given that the report was allegedly irrelevant to the Authority's decision. However, when AKX18's written submissions are considered in full, the real complaint appears to be that the Authority considered the information concerning the four categories of at-risk persons and did not consider the 2017 DFAT report, which was said to be more relevant than the 2016 UK Home Office report since it came later in time. It was further submitted that "the DFAT report confirms that a person's real or perceived links with the LTTE may give rise to a need for international protection, which may include 6 enumerated categories (into which the Applicant may fall)". The Authority was said to have erred by failing to refer to these six categories, in the sense that it thereby failed to take into account relevant matters. AKX18's position was perhaps put most squarely in the following submission: The date of the UK report (2013) was relevant to the Authority's finding (as being early), as were the categories set out in the DFAT report … (as catching the Appellant). The failure to have referred to these aspects means the Authority took into account irrelevant matters, and failed to take into account relevant matters, and making [sic] a finding which was unreasonable. 64 There are two immediate problems with this submission. 65 First, the suggestion that the information concerning the four categories of at-risk persons referred to in the 2016 UK Home Office report was "early", or outdated, is difficult to sustain. Although the report sourced those categories from an Upper Tribunal determination made in 2013, the same information was picked up and adopted by a later UK Home Office report dated 31 March 2017. So much was recognised by the Authority in its reasons at footnote 11. The information had therefore, it seems, been treated as current less than one year prior to the Authority's decision. 66 Secondly, even if the information concerning the four categories of at-risk persons was considered to be outdated, the information in the 2017 DFAT report to which AKX18 drew attention was even more outdated - and therefore, by his own reasoning, less relevant. Specifically, it was observed by Counsel for the Minister in the hearing before this Court that the information in the 2017 DFAT report concerning the six categories, upon which AKX18 relied, was itself taken from the UNHCR Eligibility Guidelines for Sri Lanka, dated December 2012. 67 Ultimately, it was not contended by AKX18 that the Authority had failed to take the 2017 DFAT report into account. Indeed, that contention could hardly have been made because the report was referred to expressly in the Authority's decision. The argument advanced by AKX18, instead, was that the Authority had fallen into error by referring to the information in the 2016 UK Home Office report concerning the four categories of at-risk persons in preference to the information in the 2017 DFAT report concerning the six categories. However, it is well established that, absent any statutory indication to the contrary, it is generally for the decision-maker to determine what weight is to be given to particular evidence, or to the considerations that might bear upon a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 281 - 282, 291 - 292. It was submitted on behalf of AKX18 that this statement of principle was erroneous, and had led the primary judge into error. However, no authority was cited to demonstrate that it did not still represent the law. 68 This principle should be applied. In determining issues of fact, it is for the decision-maker to assess what weight is to be given to particular aspects of the material before it. By this third ground of appeal, the Court has effectively been invited to engage in merits review of the Authority's decision, which it is not permitted to do. Again, this was recognised by the primary judge, who was correct to reject this ground also. 69 It follows that the third ground of appeal also fails.

Conclusion 70 For the foregoing reasons, none of the grounds of appeal can succeed. The appeal must be dismissed. 71 No reason was advanced as to why the usual order for costs should not be made in this case. The appellant should accordingly pay the Minister's costs of the appeal. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.