DQE21 v Minister for Immigration, Citizenship and Multicultural Affairs

Legislative framework

1. Protection visas are a class of visa which are specified by s 35A of the Act. Provision is made for criteria specific to a grant of a protection visa in s 36 of the Act which supplement the general criteria identified in s 65(1). Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a protection visa must satisfy one of the alternative criteria in s 36(2)(a), (aa) or (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa in the same class. If satisfied of all of the relevant criteria for the grant of a visa, the Minister must grant a visa under s 65 of the Act. The Minister's power to grant (or refuse to grant) a visa under ss 29, 36 and 65 may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.
2. At the relevant time, the decision of the delegate, to refuse the appellant a protection visa, was a Part 7-reviewable decision within the meaning of that expression in s 411(1) of the Act. Subject to the Minister issuing a conclusive certificate relating to national interest that is not presently relevant, if a valid application is made under s 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision: s 414. Here, the appellant made a valid application under s 412 of the Act, and therefore, the Tribunal was obliged to review the decision of the delegate.

Tribunal's reasons

1. The Tribunal identified the overarching issue as whether the appellant meets the refugee or complementary protection criteria set out in the Act (T [8]). The Tribunal directed itself to the relevant provisions of the Act that described what was required to satisfy the refugee and complementary protection criterion (T [10]-[20]). The Tribunal noted that, in accordance with Direction 84 - Consideration of Protection Visa Applications­, the Tribunal was required to take into account the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade, to the extent that material was relevant to the decision under consideration (T [21]).
2. The Tribunal then summarised in detail the evidence and submissions that the appellant provided to the Department of Home Affairs in support of his application including, but not limited to, evidence about the appellant's life in Sudan, his fear of harm if he were to be returned to Sudan and the sentencing comments Garling J made in the criminal matter before the Supreme Court of New South Wales (T [26]-[77]). The Tribunal made the following observations about the sentencing remarks:
3. In sentencing the [appellant] for manslaughter of his wife, the court found the facts of the matter, which were consistent with the findings of the jury were that the [appellant] had been covertly recording his wife's conversations prior to her death at the age of 24. She was in her nightclothes in bed when attacked. According to the sentencing remarks, 'he brutally attacked' his wife with a large knife, stabbing her at least 14 times.
4. Garling J found that the [appellant] was an 'unimpressive witness'. The judge found the provocation to be at the lower end of the scale and the attack to be vicious and brutal and completely excessive. He said that: Frequently, he gave answers which were inconsistent with evidence which he had earlier given, he gave answers which were evasive, and I thought deliberately so, on some occasions, and he displayed a degree of resentment in having to answer questions which challenged any answer or explanation which he had given. For example, in one account in evidence, he said that on the evening of her death, his wife attempted to commit suicide, and that he sustained his arm injury trying to stop her. Another account suggested that she attacked him whilst he was asleep and he sustained the injury when he was defending himself and prior to removing the knife from her. These accounts cannot stand together. Accordingly, I am not able to accept his evidence simply because he has given his account of what happened. To the extent that objectively, or else independently, established facts contradict his evidence, I have generally accepted those facts. In following this course, I bear in mind that any finding which is adverse to (the [appellant]) must be one of which I am persuaded beyond a reasonable doubt.
5. The Tribunal then identified the key issues as whether the incidents the appellant described in Sudan took place, whether there was a real chance of serious harm or risk of significant harm from either the members of the Muslim Brotherhood, the Sudanese authorities or his wife's family members, and whether the appellant could relocate within Sudan (T [80]).
6. After considering in detail the evidence and submissions presented by the appellant, the Tribunal concluded that it was not satisfied that the appellant had suffered any harm from the Muslim Brotherhood or Sudanese authorities prior to his departure from Sudan (T [93]-[116]). The Tribunal gave five main reasons for rejecting the appellant's claims. First, his account about his experiences with the Muslim Brotherhood was inconsistent with the account provided in his application to the Department to the extent that the Tribunal was satisfied that the evidence had been fabricated for the purposes of the refugee claim (T [96]-[101]). Second, the sentencing judge had indicated that the appellant had a propensity to give different accounts of evidence (T [102]-[104]). Third, the appellant was unable to provide any details about the Muslim Brotherhood that would be expected if he had been targeted by them (T [105]). Fourth, there was evidence to suggest that he was living in one place rather than regularly moving suggesting stability rather than fear of the Muslim Brotherhood (T [106]-[109]). Last, there was information provided to the sentencing judge that suggested that his life in Sudan had been fairly safe, he lived in a safe area, had a good job and was without any major problems (T [110]-[112]). Relevantly, regarding the sentencing remarks, the Tribunal said:
7. The Tribunal is not satisfied that the Muslim Brotherhood targeted the [appellant] for harm on the basis of being married to a Christian or because he refused to join them. The Tribunal is not satisfied that he was threatened, shot at or detained on numerous occasions or that he was placed on a blacklist or moved houses to avoid them. The reasons for this are set out below. …
8. A second consideration in reaching a finding that the [appellant] was not targeted for harm by the Brotherhood, when considering his inconsistencies in evidence, was that [Justice] Garling has indicated that the [appellant] has a propensity to provide different accounts of evidence. … The Tribunal cited again relevant parts of the sentencing comments set out at para [9] of these reasons (T [52]) and continued.
9. The Tribunal put these comments to the [appellant] at the Tribunal hearing for comment pursuant to the natural justice provisions, noting that they suggest a propensity to produce different accounts of evidence as needed, which may lead the Tribunal to conclude that the evidence adduced to the Tribunal is not true and accurate. The [appellant] responded that 'at the end of the day, the truth remains to be the truth.' He said that he is only human and can make mistakes. He said that he can remember certain things and not others. He said that he is 'not a computer' and 'sometimes forgets details'.
10. The Tribunal does not have the full transcript of the trial before it but notes that Garling J concluded that the [appellant] provided different accounts of the evidence and was an unimpressive witness. The [appellant] told the Tribunal that he did not have a 'single charge' in gaol and has done courses on domestic violence. The Tribunal accepts that he may have made some positive changes in his life, but notes that before this Tribunal as well, different accounts have been provided as discussed earlier. An example of the [appellant] providing evidence which was not credible, was him telling the Tribunal that he did not know that his wife was aged 16 when he married her, even though he also told the Tribunal that his wife's family did not accept the marriage because the other sister had also married young. When asked by the Tribunal if there was a marriage certificate which indicated her date of birth he agreed there was, then said that he was not sure if it was true. While not central evidence in regard to this application for review, this evidence does indicate a propensity to present inaccurate evidence. The Tribunal accepts as claimed by the [appellant] that memory is generally very imperfect, and people make mistakes, but does not accept that he would forget significant events such as detention, or that he would provide a number of different accounts of evidence, unless he was trying to advance his case, without adhering to the truth of what took place. …
11. When considering the evidence cumulatively as referred to above, the Tribunal is not satisfied that the [appellant] suffered any harm from the Muslim Brotherhood or from the authorities in Sudan prior to leaving Sudan. The Tribunal is not satisfied that he was threatened, shot at, detained, arrested or placed on a blacklist. In light of these findings, the Tribunal is also not satisfied that 'spies in the government' or others have said that they are awaiting his return.
12. The Tribunal then set out its findings of fact in relation to the appellant's claims that his late wife's family members in Sudan had made threats against his safety (T [117]-[120]).
13. Having regard to those findings of fact, the Tribunal assessed whether the appellant had satisfied the refugee criterion (whether there was a well-founded fear of persecution within the meaning of the Act). The Tribunal considered, amongst other things, whether there was a real chance of serious harm from the Muslim Brotherhood and the appellant's wife's family members. The Tribunal concluded that it was not satisfied that there was a real chance of serious harm from either of those sources and observed that the other considerations such as harm through civil conflict or crime in Sudan was not a satisfactory reason for a well-founded fear of persecution under the Act. Therefore, the Tribunal concluded that the appellant did not satisfy the refugee criterion (T [121]-[150]).
14. The Tribunal went on to consider whether the appellant had satisfied the complementary protection criterion (whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed to Sudan there is a real risk that he will suffer significant harm). For the same reasons canvassed in considering the refugee criterion, the Tribunal was not satisfied that the appellant met the complementary protection criterion (T [151]-[156]).

Primary judge's reasons

1. By the time of the hearing before the primary judge the appellant was legally represented. However, the grounds of review were not amended from the form in which the appellant, presumably when not legally represented, had drafted them. As formulated before the primary judge, the appellant advanced two grounds of review by which he asserted that the Tribunal fell into jurisdictional error: (a) by failing to consider an integer of the appellant's claim that arose on the materials; and (b) by failing to give adequate reasons for its decision.
2. The primary judge was not greatly aided by such general grounds of review and, evidently, received minimal additional assistance from the appellant's legal representative. The primary judge took the view that, in the circumstances, he should, in effect, treat the appellant as unrepresented and read the grounds as broadly as possible and remain astute and alert in his own right to the possibility of jurisdictional error. The primary judge then examined each of the grounds through that prism (PJ [92]-[106]).
3. As to the first ground of review, the primary judge examined the Tribunal's reasons and its consideration of the appellant's protection claims, which included the appellant's claims of fearing harm from the Muslim Brotherhood and his late wife's family members in Sudan. The primary judge found that the Tribunal had considered the appellant's claims in full and that no error arose as contended by the appellant (PJ [108]-[118]).
4. As to the second ground of review, the primary judge accepted that the Tribunal was bound by s 430(1) of the Act (a requirement that the Tribunal provide a written statement of reasons for its decision) and that it was required to explain why it was not satisfied that the appellant met the criteria for the grant of the visa (PJ [120]-[123]). The primary judge concluded that the Tribunal had complied with its obligation to provide written reasons (PJ [124]-[129]).
5. For completeness, the primary judge also addressed an aspect of the appellant's written submissions that appeared to advance a different ground of review. The appellant had submitted that the Tribunal erred by failing to give sufficient weight to the appellant's evidence that he had a genuine and real fear of persecution from the Muslim Brotherhood and that he feared serious harm from his wife's family in Sudan. After summarising that submission (PJ [130]) the primary judge rejected it and gave the following reasons for so doing. 131 Unfortunately, no details have been provided (either in writing or orally) about what evidence, specifically, was not given sufficient weight. 132 The Tribunal is required to give "proper, genuine and realistic consideration" to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33]. 133 As outlined above, the Tribunal summarised the evidence considered in its review in some detail (at [26]-[77]). It then made findings of fact, based on that evidence, in relation to the Muslim Brotherhood and authority involvement (at [93]-[116]) and threats from the [appellant's] late wife's family (at [117]-[120]). 134 The Tribunal is entitled to accept or reject or give such weight to an applicant's evidence as it thinks appropriate in all of the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. This is entirely a matter for the Tribunal as a part of its fact-finding function: [Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6] at 281-282. 135 Here, the Tribunal's findings flow logically from the evidence before it and were entirely open to be made. It cannot be said to that no reasonable person could have made the same findings. The question this Court must answer is whether, on the evidence, the Tribunal's conclusions are "clearly unjust" or "arbitrary" or "capricious" or "unreasonable". Given the nature of the evidence before the Tribunal and the Tribunal's forensic assessment of that evidence, the Tribunal's approach and ultimate findings were legally reasonable. 136 No error arises in relation to the Tribunal's consideration of the evidence before it.
6. Ultimately, the primary judge concluded that the appellant had failed to identify any error on the part of the Tribunal and the primary judge had not been able to do so. Accordingly, the application was dismissed (PJ [137]-[138]).

Proposed grounds of appeal

1. The appellant's draft notice of appeal contains proposed grounds that are drafted in general and broad terms as follows:
2. The Court relied on summarised general reports that have been published by various intelligence organisations that are not specific to my case.
3. The nature of my crime played a part in the decision of a protection visa. My crime should have been partial, and the merits should have been decided on my safety.
4. Egypt was central to my application, but my circumstances have changed, and I might not be able to enter Egypt. This will further compromise my safety.
5. These proposed grounds do not comply with r 36.01 of the Rules. None of them identifies an asserted error on the part of the primary judge. Even if read as an assertion that the primary judge erred for failing to conclude that the Tribunal had made errors of the kind identified in the proposed grounds, none of them asserts a recognisable ground of judicial review for jurisdictional error.
6. The appellant's written submissions filed in support of his proposed appeal included the following submission: … The [Tribunal] and the Federal Circuit Court, in their adjudication of my protection claims, exhibited undue zeal in their findings against me. It is patently evident that Sudan is a region fraught with instability, a factor not adequately weighed in their assessment. They argued for the viability of my relocation, yet the Minister bears a solemn obligation to ensure the repatriation of potential deportees to a safe country. The overriding focus on societal expectations within Australia overshadowed an objective evaluation of my potential persecution in Sudan. As elucidated, my flight from Sudan stemmed from religious conflict, specifically due to the religious differences between my Christian wife and the predominantly Muslim environment of North Sudan, mirroring the religious discord that precipitated South Sudan's independence from the North. My claims were summarily dismissed, leading to the spectre of indefinite detention. …
7. Again, these submissions do not identify any recognisable error on the part of the primary judge or the Tribunal. Giving them a beneficial construction and attempting to understand the substance of the appellant's complaint of 'undue zeal' in the Tribunal's findings against him, the appellant's evident complaint centres on the Tribunal's rejection of his claim of fear of harm from the Muslim Brotherhood and his wife's family. If 'undue zeal' is understood as reflecting the appellant's submission to the effect that the primary judge had given insufficient weight to his evidence, the proposed ground or submission fails to identify any arguable error on the part of the primary judge in his treatment of that issue. However, 'undue zeal' may be understood as a complaint of legal unreasonableness or bias or a reasonable apprehension of bias. The only conceivable ground for such a contention is the manner in which the Tribunal reasoned that the appellant's evidence was not credible and rejected his claims about the Muslim Brotherhood because it was influenced by or had accepted the sentencing judge's finding to the effect that the appellant was not a credible witness. The Minister's written submissions interpret these submissions as an allegation that the Tribunal had taken into account an irrelevant consideration; namely, the mere fact of his conviction of manslaughter as a factor taken into account in making adverse findings about the credibility of the appellant's claims. The Minister's submissions conclude that there is 'otherwise nothing in the Tribunal's decision to suggest any actual or apprehended bias'.
8. During the course of the parties' oral submissions, the Court raised that the substance of the complaint of 'undue zeal' may be interpreted as the Tribunal having taken into account adverse findings of credit that Garland J had expressed in his sentencing remarks on 14 March 2014 and that the Tribunal's decision was 'unduly' influenced by the opinion another decision-maker had expressed in relation to a different subject matter and on different evidence. Further, taking such an opinion into account may involve elements of illogical, irrational or unreasonable decision-making and (or) pre-judgment or a reasonable apprehension of pre-judgment.
9. Having regard to the fact the appellant represents himself and that he is not proficient in written or oral English, I am prepared to approach his application for an extension of time on the basis that he wishes to advance a ground of appeal to the following effect: The primary judge erred in law at PJ [131]-[136] in failing to conclude that the Tribunal fell into jurisdictional error by taking into account: (a) that the appellant had been convicted of manslaughter in the New South Wales Supreme Court as a matter that was relevant to the Tribunal's consideration of whether the appellant satisfied the refugee criterion or complementary protection criterion under s 36(2)(a), (aa) or (b) or (c) of the Migration Act 1958 (Cth), when the appellant's conviction for that offence was to be disregarded in the formation of that state of satisfaction; further, or alternatively (b) the adverse findings of credit that his Honour Justice Garling made against the appellant in his sentencing remarks of 21 March 2014 at T [52], [95], [102]-[104], [116] and, thereby, the Tribunal: (i) took into account information or evidence that was not logically, rationally or reasonably probative of the matters in question arising from the appellant's claims; and (or) (ii) involved an element of pre-judgment or a reasonable apprehension of pre-judgment as to the appellant's credit, and consequently, the Tribunal failed to perform the review it was required to perform under s 414 of the Migration Act 1958 (Cth).
10. The ground as so formulated reflects the substance of the appellant's complaint about the Tribunal's decision as best as can be distilled from the proposed grounds, the appellant's written submissions and the characterisation of the asserted error that emerged during the oral hearing. As already mentioned, the Minister understood and identified the appellant's contentions to include taking into account an irrelevant consideration and bias and made written submissions on those contentions. However, neither the appellant nor the Minister had formulated the ground or contention in the manner described in subparagraph (b). Therefore, at the conclusion of the oral hearing, I directed the parties to file and serve written submissions on the following questions:
11. whether the substance of ground 2 of the proposed notice of appeal, as formulated in subparagraph (b), raises a 'new' ground of judicial review that was not raised before the primary judge;
12. if so, the extent to which the appellant should be permitted to raise that ground on appeal;
13. in any case, whether the Tribunal fell into error in the manner alleged in the substance of ground 2; and
14. if so, the extent to which such error was material or otherwise a jurisdictional error.
15. The Minister filed written submissions on 2 April 2024. The appellant filed written submissions in reply on 5 April 2024.

Extension of time to appeal

1. Relevantly, an appellant must file a notice of appeal within 28 days after the date on which the judgment appealed from was pronounced: r 36.03(a)(i) of the Rules. The Court has a general power to extend the time fixed by the Rules: r 1.39. The manner in which a person is to apply for an extension of the time to file a notice of appeal is governed, specifically, by r 35.14 of the Rules. Here, the appellant had until 8 July 2022 to file his notice of appeal within the 28-day period. He did not do so and applied for leave to extend the time on 17 August 2022. That is, he applied about 40 days after the time for filing his notice of appeal had expired.
2. The principles applicable to the exercise of the Court's discretion to extend the time to file a notice of appeal are well-settled. In general, although formulated under an earlier version of the rules that were in different terms, the Court has treated the principles and factors Wilcox J identified in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 as relevant and applicable to the exercise of the discretion to extend the time in which to appeal under r 36.05 of the Rules: see, e.g., Fualau v Minister for Home Affairs [2020] FCAFC 11 at [6] (Murphy, Davies and O'Bryan JJ) and the authorities there cited. The usual factors taken into account are: the length of delay and the explanation for it; any prejudice to the respondent if the extension is allowed; and whether there is sufficient merit in the proposed appeal to justify an extension of time. However, like any discretion, it must be exercised judicially and having regard to any factors that are relevant by reference to the purpose for which the power is conferred. Therefore, the factors to which I have referred are not exhaustive, but a guide, and the outcome of an application for an extension of time always depends on the particular circumstances of the case in question. In this case, I regard the usual factors as relevant and no other factor was brought to my attention in favour or against the exercise of the power.
3. The appellant's explanation for his failure to file a notice of appeal within time is that the legal practitioner who had represented him before the primary judge had said he was going to file a notice of appeal, but he 'pulled [out] on the last minute', English is the appellant's second language and he is not proficient in the use of a computer. I infer from these matters that the appellant was aware that there was a time limit within which to file his notice of appeal, but he was not able to file it within time as result of the loss of his legal representation and, then, his self-representation and lack of language and computer proficiency delayed him until the application for an extension of time was made. I accept that explanation. Further, the relatively short period of delay and the absence of any evident prejudice to the Minister are factors that, all other things being equal, favour the grant of an extension of time. However, I am not prepared to grant the appellant an extension of time to file a notice of appeal that raises proposed grounds 1 and 3 of the draft notice of appeal as these grounds are hopeless and fail to identify any reasonably arguable error on the part of the primary judge. On the other hand, I am prepared to grant the appellant an extension of time to file a notice of appeal that pleads the substance of proposed ground 2 of the draft notice of appeal, as articulated earlier in these reasons, subject to the Minister's right to object to part of that ground on the basis that it purports to raise a new point of law in the appeal.

Further evidence on appeal

1. The appellant filed two affidavits in support of his application to extend time. The appellant's written submissions also purport to refer to aspects of the evidence deposed in his second affidavit and he requests that the Court receive that further evidence in the appeal.
2. The Court has power to receive further evidence in the appeal under s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Rules. The power is not limited to receiving 'fresh' evidence. The power should be construed liberally, although it is not unfettered, and is to be exercised having regard to the subject matter, scope and purpose of s 27. That includes having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M. The power, a discretion, must be exercised judicially and s 27 should not be construed in such a way as to obliterate the distinction between original and appellate jurisdiction. The power is remedial. An important consideration in determining whether to exercise that power is whether, if the further evidence had been available at trial, it would have produced, or at least would be likely to have produced, a different result: see, e.g., CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; 294 FCR 318 at [32]-[34] and the authorities there cited.
3. The further evidence upon which the appellant seeks to rely concern events that have taken place in 'Khartoum in North Sudan' since the Tribunal's decision and the primary judge's judgment. As a consequence of these events, the appellant deposes 'I do not have a place to go and I face the prospects of indefinite detention.' That evidence relates to proposed grounds 1 and 3 of the draft notice of appeal. As leave to extend time to file a notice of appeal containing those grounds will be refused, the application to receive further evidence will also be refused. That is, the application to receive further evidence is not relevant to any ground of appeal.

New ground of review on appeal

1. As to the question of whether the substance of ground 2 raises a new ground of review on appeal the Minister accepts that sub-ground 2(b)(i), as formulated, does not raise a new point in the appeal, but he contends that sub-ground 2(b)(ii) is new and leave is necessary. I accept the Minister's submissions in that regard. There is nothing in the primary judge's reasons to suggest that any assertion of bias on the part of the Tribunal was raised before him. The Minister's written submissions also appear to suggest that sub-ground 2(a) raises a new point and, in effect, leave to advance that ground should be refused because there is no merit in the ground as the Tribunal's reasons expressly state that, while the sentencing remarks were taken into account with respect to the appellant's background and the assessment of the appellant's credibility, the fact of the appellant's criminal conviction for manslaughter had not been taken into account in making the negative findings the Tribunal made about the appellant's protection claims.
2. The principles applicable to permitting an appellant to raise a new ground are also well-established. The Court should grant leave to raise the new point if it is expedient in the interests of justice. Generally, that test is met where the new point is a question of law and could not have been met by evidence in the court below which has merit and an explanation is given as to why it was not raised below: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ).
3. Relying on TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 (at [22]-[24]), the Minister submits that there can be significant prejudice in permitting an appellant to raise a point for the first time in an appeal in circumstances where the appellate court, due to the requirement for special leave to the High Court of Australia, is practically the final court of appeal. Particularly where a party is represented, as the appellant was before the primary judge, the Court should be careful to avoid primary proceedings becoming preliminary skirmishes. Nonetheless, the Minister has not made any substantive submissions as to whether or not leave should be granted or refused in this case except as to the merits of the points sought to be raised. Otherwise, the Minister has addressed the substance of the ground and submits that the Tribunal has not made the error of bias or taking into account irrelevant considerations as asserted.
4. There is sufficient merit in the point of law the appellant wants to raise regarding pre-judgment on the part of the Tribunal to warrant granting him leave to raise it in the appeal. While there is an element of the generalised prejudice the Minister has identified, the point can be dealt with without the need for further evidence and on the basis of the Tribunal's reasons. It is related to the complaints that the appellant raised before the primary judge concerning the Tribunal placing inappropriate weight on the sentencing judge's remarks and is, in substance, the same complaint characterised in a different manner. Therefore, I am prepared to grant the appellant leave to raise the 'new' point about pre-judgment in the appeal even though it was not squarely raised before the primary judge. I am also prepared to allow the appellant, to the extent necessary, leave to raise the assertion that the Tribunal had regard to the appellant's conviction for manslaughter and, in substance, took into account as an irrelevant consideration the need to protect the Australian community from the appellant when considering his protection claim.

Was the appellant's criminal conviction taken into account and was that an irrelevant consideration?

1. For the purposes of this appeal I am willing to accept, without deciding, that if the Tribunal had taken into account the appellant's criminal conviction for manslaughter or the protection of the Australian community as a matter that was relevant to the question of whether the appellant met a criterion for a protection visa described in s 36(2)(a) or s 36(2)(aa) of the Act, then taking one of those considerations into account may involve jurisdictional error. However, I observe that conviction for a serious crime may be relevant to and result in ineligibility for the complementary protection criterion in s 36(2)(aa) if the Minister is satisfied that because of that conviction, an applicant for a protection visa is a danger to the Australian community: s 36(2C)(b)(ii) of the Act.
2. I accept the Minister's submissions to the effect that the Tribunal did not take the fact of the appellant's conviction for manslaughter of his wife into account when considering whether the appellant satisfied the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act other than to inform his claim of fearing reprisals from members of his wife's family. In this respect that Tribunal said:
3. The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the [appellant], sentencing comments of Garling J in the criminal matter before the Supreme Court of NSW, evidence to this Tribunal and independent sources about Sudan. While the sentencing comments in his criminal matter have been considered in regard to information provided to the Supreme Court about the [appellant's] background, and in regard to credibility (discussed further below), the fact of his criminal conviction is not a factor relevant to whether he meets the criteria for a protection visa (other than in regard to his fear of family members) has not been taken into consideration in making negative findings in this matter.
4. The Tribunal considered the killing of the appellant's wife in the context of his claims of fearing revenge from members of her family (T [117]-[120], [141]-[146]). The Tribunal's consideration of those matters uses the killing and manslaughter of the appellant's wife as necessary background to the appellant's protection claim. There is nothing erroneous in that approach to that subject. Otherwise, there is nothing in the Tribunal's reasons to suggest that it took into account the fact of the appellant's conviction for manslaughter, except as to the sentencing judge's remarks referred to later, in its assessment of his protection claims. There is also nothing to suggest that the Tribunal considered the need to protect the Australian community from the appellant due to his conviction for a serious offence in its assessment of his protection claims.
5. I do not accept that '[t]he nature of [the appellant's] crime played a part in the [Tribunal's] decision [to affirm the delegate's decision to refuse the grant] of a protection visa' as is apparently asserted in ground 2 of the appellant's draft notice of appeal. Nor do I accept that there was an 'overriding focus on societal expectations within Australia' that 'overshadowed an objective evaluation of [the appellant's] potential persecution in Sudan' as contended in the appellant's written submissions. There was no focus, let alone one that could be described as overriding, on the expectations of the Australian community in the Tribunal's reasons.
6. It follows that no error on the part of the Tribunal or the primary judge has been demonstrated on the ground that the Tribunal had regard to the fact of the appellant's conviction for manslaughter and that was an irrelevant consideration resulting in jurisdictional error.

Were the sentencing remarks not logically, rationally or reasonably probative evidence?

Irrational jurisdictional fact-finding

1. In the grant or refusal of a protection visa under s 65 the Minister must be satisfied (or in the case of refusal, not satisfied) of a number of matters including that the applicant meets the refugee or the complementary protection criteria. The state of satisfaction (or non-satisfaction) is a precondition to the authorised exercise of power under s 65 and, as such, may be described as a 'jurisdictional fact': Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37] (Gummow J) citing Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [183] (Gummow and Hayne JJ). As explained in the erudite reasons of Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 (at [55]-[61]), the formation of the state of satisfaction (or non-satisfaction) through an illogical or irrational process of jurisdictional fact-finding may result in jurisdictional error because the state of satisfaction (or non-satisfaction) has not been formed in accordance with the Act and, therefore, an essential precondition to the authorised exercise of the power in s 65 has not been met.
2. There is a conceptual difference between the formation of a state of satisfaction as a precondition to the exercise of power and the exercise of the power once the precondition is met: EHF17 at [57]-[61]. Where formation of a state of satisfaction is a precondition to the exercise of power, apprehensions about 'merits review' are not present because the relevant question is whether the decision-maker had jurisdiction to embark upon determination of the merits. Thus, the same degree of caution as to the scope of judicial review does not apply where the question is whether the jurisdictional threshold has been crossed: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [37]-[38] (Gummow A-CJ and Kiefel J); see, also, EHF17 at [62]-[64]. Relevantly, a subjective jurisdictional fact does not exist if it is founded upon findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [145], [147] (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; 198 ALR 59 at [34]-[37], [52] (McHugh and Gummow JJ); SGLB at [38] (Gummow and Hayne JJ); SZMDS at [40] (Gummow A-CJ and Kiefel J), [102]-[105], [121]-[131] (Crennan and Bell JJ).
3. The assessment of the fulfilment of a subjective jurisdictional fact involves determining whether the state of mind of the decision-maker was formed as the legislature requires and, implicitly, that means in the absence of illogical or irrational reasoning and (or) fact-finding. If the state of mind actually reached could be reached by a logical or rational person on the same material and complies with other legislative requirements, it is a state of mind that will enliven the relevant power. That will be so even though the material and other legislative requirements could result in a different outcome by a logical and rational decision-maker. But, if the actual state of mind was reached by a path of reasoning that was illogical or irrational the required state of mind will not have been obtained even if that outcome could have been reached by a logical and rational process of reasoning. In substance, the person affected by the decision has lost the opportunity to obtain a decision of the kind the legislature mandated and, instead, has been subject to a capricious or arbitrary decision that equates to a 'toss of a coin': EHF17 at [84]. A similar approach applies to subjective jurisdictional fact-finding as to which Derrington J observed. 85 … If there is only one conclusion which can be drawn from the material before the person whose state of mind is relevant, a conclusion to the contrary will be illogical and not based on probative material. However, where there is room for logical persons to reach the finding actually reached by the repository of power, the state of mind formed is effective. Some doubt remains as to the circumstances in which an alleged inadequacy of material to support a finding of fact by the repository of power will suffice to vitiate the state of mind formed. In S20/2002, McHugh and Gummow JJ suggested that the decision in [R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100] supported the view that inadequacy of material to support a finding was, alone, insufficient to warrant the grant of a writ of prohibition, but it may support an inference that the wrong test is being applied or the repository of power is not in reality satisfied of the requisite matters.
4. It is also important to emphasise that not every lack of rationality or lapse of logic results in an error in subjective jurisdictional fact-finding. An illogical or irrational decision is of the same order as a decision that is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the legislature imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. 'A court should be slow, although not unwilling, to interfere in an appropriate case': SZMDS at [130]-[131] (Crennan and Bell JJ). Further, describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J). Likewise, it must mean more than that on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ).

Relevance of previous adverse findings of credit

1. There is authority for the proposition that, at least in curial criminal proceedings, answers to questions about comments that other judges have made about the evidence the witness has given in earlier unrelated proceedings are not admissible to discredit the witness in later proceedings: Humphries v The Queen (1987) 17 FCR 182 at 186 (Fox J, Forster J agreeing). On the other hand, Kelly J, in the same case, while agreeing that the questions in that case should not have been permitted because they were not fairly put to the witness, that was not to say that witnesses may not be attacked on the basis that they had frequently been disbelieved in the past by other courts and tribunals (at 195-196). The learned authors of Cross on Evidence suggest that there is also South African authority in favour of the proposition that questions about other courts disbelieving the witness are permissible: S v Damalis [1984] 2 SA 105; Cross on Evidence at [19-015]. In general, questions about discreditable conduct may be put to a witness, but the extent to which evidence of the discreditable conduct may be tendered to contradict a denial depends upon whether it is able to be brought within one of the exceptions to the inadmissibility of evidence about collateral issues where the discreditable conduct is not directly relevant to an issue in question in the proceeding: see, Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; 63 CLR 533 at 545 (Latham CJ). For example, an exception arises where the evidence sought to be tendered to contradict the denial is to the effect that the witness is a notorious liar.
2. The Tribunal was not bound by the rules of evidence: s 420 of the Act. However, within the exhaustive statement of the requirement of the natural justice hearing rule in Pt 7 Div 4, the Tribunal was required to give the appellant particulars of any information it had that would be the reason or part of the reason for affirming the decision that is under review, to ensure the appellant understood why the information was relevant, and invite the appellant to comment or respond to it: s 424A, s 422B.
3. Nonetheless, the Tribunal was bound to consider only evidence or material that was relevant, in the sense of being capable of logically affecting the assessment of the probability of the existence or non-existence of a material fact: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 (Diplock LJ). Further, the Tribunal was entitled to accept, as evidence, the reasons for judgment given by a judge in other proceedings provided that it did not merely adopt the decision of the judge on the same issue. The Tribunal was required to decide the matter for itself, but in so doing it was entitled to have regard to the judge's findings and give such weight to them as it considered appropriate having regard to the material and submissions before the Tribunal: Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126 at [17]-[19] (Finkelstein J). Also, before relying on findings of the judge, consistently with s 424A of the Act, as a matter of procedural fairness, it may be necessary for the Tribunal to give notice of the potential relevance of those findings and afford the applicant person an opportunity to make submissions about them: Secretary of the Department of Veterans' Affairs v Studdert [2001] FCA 1642 at [26] (Moore J). These principles apply equally to a finding of fact on an issue that is directly relevant in the proceeding before the Tribunal and a finding on a collateral relevant fact such as the general credit of the applicant.

Consideration

1. The Tribunal's consideration of the sentencing judge's remarks did not involve taking into account evidence or material that was not relevant or that was not logically or rationally probative to the question of the appellant's credit. While significantly prejudicial and, depending on the circumstances, potentially of little relevance, evidence that a person has been disbelieved by a court or tribunal in other earlier proceedings is clearly of potential relevance to the credit of the person. Further, the policy of curial courts against the admissibility of evidence that is purely to contradict a witness' testimony about a question of credit does not have any direct application to an administrative tribunal. Accordingly, subject to the question of procedural fairness, the Tribunal was entitled to have regard to evidence of comments or findings that the sentencing judge had made about the credibility of the appellant's evidence in the criminal proceedings.
2. The Tribunal's use of the sentencing remarks was limited. The Tribunal's reasons also do not reveal that it placed undue weight or emphasis or was in any way zealous in its use of that material. Nor do they indicate that the appellant was denied procedural fairness before the Tribunal took them into account in its reasoning. The sentencing remarks and the appellant's response to them was one of five reasons given for rejecting the appellant's claims.
3. The Tribunal's reasons record that it put to the appellant that the sentencing remarks suggest a propensity to produce different accounts of evidence as needed, which may lead the Tribunal to conclude that the evidence adduced to the Tribunal is not true and accurate and that it gave the appellant an opportunity to comment on that issue. The Tribunal's reasons record the appellant responded and that the Tribunal considered his response and accepted, in part, his explanation for the differing versions of events given to the sentencing court. But, the Tribunal did not accept that it provided a compelling explanation for the inconsistent evidence given to the Tribunal in respect of his protection claims (T [102]-[104]).
4. In short, neither the ultimate rejection of the appellant's claims nor the process of reasoning by which the Tribunal arrived at that rejection infer or reveal any illogical or irrational reasoning indicating that the Tribunal's state of mind (non-satisfaction of the s 65 criteria) was not reached according to law.

Did the Tribunal's use of the sentencing remarks involve pre-judgment?

1. There are at least two possible ways in which the Tribunal's use of the sentencing remarks could result in actual pre-judgment or a reasonable apprehension of pre-judgment of the appellant's credit. First, the Tribunal could accept or adopt the sentencing judge's view about the appellant's credit without independently considering his credit. That is, the Tribunal member may have failed to bring an independent mind to the consideration of the credibility of the appellant's claims. Second, the Tribunal could be so influenced by the sentencing judge's view as to create a reasonable apprehension of bias. That is, that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question the member was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The appellant made no real submissions directed to these issues and the Minister's submissions tended to focus on the first and not the second possible way that pre-judgment could result in jurisdictional error in the circumstances of this case.
2. The Minister submits that the Tribunal was entitled to take into account the sentencing remarks of Garling J in its decision. The Minister contends that the sentencing remarks of Garling J formed part of the materials the Tribunal had been provided and that it could be found both publicly and in the Department's file on the appellant. As such, relying on s 424(1) of the Act (that the Tribunal must have regard to information it receives that it considers relevant), the Tribunal was required to consider the sentencing remarks in making its decision. The Minister submits, in effect, that the Tribunal, in conducting a merits review, was entitled to have regard to matters which have gone before such as a judicial officer's remarks about the appellant's credibility in a past matter: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154 at [60] (Tracey, Murphy and Mortimer JJ).
3. The Minister submits that the Tribunal's actual consideration of the sentencing remarks was neither erroneous nor impermissible for a number of reasons.
4. The Tribunal was required to assess the appellant's credibility based on the material before it and, whilst not immune to judicial review, credibility is a matter for the Tribunal par excellence in the sense that detailed reasons are not required in relation to credibility: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [36]-[38] (McKerracher, Griffiths and Rangiah JJ) citing Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67]-[68] (McHugh J); and MZZZW at [56] (Tracey, Murphy and Mortimer JJ).
5. The Tribunal must conduct a review and make its own findings, merely copying and pasting previous findings can give rise to an apprehension of bias or a failure to carry out a review. Put another way, previous findings can be taken into account, but they are not determinative of any issue before the Tribunal: CHZ19 v Minister for Home Affairs (No 2) [2019] FCA 1112 at [51] (Colvin J); and MZZZW at [56]-[60] (Tracey, Murphy and Mortimer JJ).
6. This is not a case where previous credibility findings were merely copied into the decision without attribution or independent analysis: Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2023] FCAFC 23; 297 FCR 143 (Thawley, McElwaine and Hespe JJ). The Tribunal in the present matter did not treat the sentencing remarks as determinative in relation to the appellant's credibility as the Tribunal:
   1. set out, and had regard to, a comprehensive summary of authorities, policies, and guidelines in relation to the assessment of credibility in refugee proceedings (T [84]-[92], [99]);
   2. referred to the fact that it did not have the 'full transcript' of the hearing before Garling J before it, in noting his Honour's comment in relation to the appellant's credibility and, this also led the Tribunal to limit the weight it gave to some matters arising out of the sentencing remarks (T [104], [112]);
   3. put the comments of Garling J to the appellant who made submissions in response to them, notably that he accepted mistakes can be made and that he did not necessarily remember everything (T [103]) and that inconsistent evidence or evidence that has not been raised earlier is a common and reasonable consideration in determining the credibility or reliability of an applicant's claim: see e.g., ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 at [62] (Wigney J);
   4. had regard to the appellant's evidence given to the Tribunal that it considered was not credible and gave cogent reasons for that conclusion (T [104]); and
   5. did not merely rely on the findings of Garling J to the effect that the appellant was an 'unimpressive witness', rather, it gave comprehensive consideration to the specific inconsistencies and issues in the appellant's evidence, including issues arising from the appellant's interview with the delegate (T [96]-[101], [104]-[112]).
7. In MZZZW the visa applicant had succeeded on an application for judicial review of a decision a member of the Refugee Review Tribunal made affirming a decision of a delegate of the Minister to refuse an application for a protection visa. On remitter another member of that Tribunal again affirmed the decision under review. In the second member's reasons large parts of the first member's reasons were copied including findings about credibility and whether the visa applicant's claims were accepted. The Full Court observed that the asserted error of the second member could be characterised in a number of ways: denial of procedural fairness; constructive failure to exercise jurisdiction; bias; or failure to discharge the tribunal's statutory function: MZZZW at [30] and the authorities there cited.
8. Regarding the nature of the RRT's statutory task, which is materially the same as the Tribunal's task in this case, the Court made the following relevant observations: 56 It has been said many times that the Refugee Review Tribunal (as it then was), in common with bodies such as the [Tribunal], operates in an inquisitorial manner, and is under a duty to arrive at the correct or preferable decision on review according to the material before it, determining the substantive issues which arise on that review without restricting itself to any "case" put by an applicant: see for example Grant v Repatriation Commission (1999) 57 ALD 1 at [17]-[18], referring to Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10] and [93], also referring to Bushell at 425. 57 If it were not already obvious from the nature of the task imposed on the Tribunal by Pt 7 of the Migration Act, the terms of s 421 of the Act make it plain that the task is discharged by a specific member of the Tribunal who is constituted to deal with that review. The Act deals in some detail with the constitution of the Tribunal, and its reconstitution in given circumstances. Some of those provisions are relevant to other grounds relied on by the appellant on this appeal. Those provisions also show that the statutory task is intended by Parliament to be performed by a particular member to whom that task is allocated. It is non-delegable. It is not to be performed by adopting the views of a differently constituted tribunal about the same applicant. Whatever the criticism might be of a decision-maker transferring across findings by another decision-maker about a different applicant and applying them to the applicant before the decision-maker, those criticisms pale against the wholesale adoption of the opinions of a previously constituted tribunal about the same applicant. 58 The emphasis of the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32] that a tribunal on review must consider "for itself" whether it is satisfied a person meets the prescribed criterion for a protection visa is, with respect, an appropriate emphasis. The nature of the task was described by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [71]-[73]: In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision. The Tribunal's written statement of its reasons and, in particular, its statement of the findings on any material questions of fact, must be understood in this way. Indeed, so much follows from Minister for Immigration and Multicultural Affairs v Yusuf, where six members of the Court held that the Act's requirement for the Tribunal to set out findings of fact was a requirement that focused upon the subjective thought processes of the Tribunal, not some objectively determined set of "material" facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made. Necessarily, the findings that are recorded in the Tribunal's written statement of its decision and reasons will reflect the matters that the applicant for review will have sought to agitate. No less importantly, the findings that are recorded will reflect what the Tribunal considered to be material to the decision which it made on the review. And what was material to that decision will depend upon the view that the Tribunal formed about the relevant legal questions that the review presented. (Emphasis added; citations omitted.) 59 It need hardly be said that the extraordinary circumstances of the present appeal would not have been in the contemplation of their Honours when they described the nature of the review task and the purpose of discharging the reasons obligation under s 430. What the extract does reveal is the underlying assumption in a scheme such as Pt 7 (or for that matter any merits review scheme which has similar features, including constitution of a body by particular members) that the member constituted to the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language. 60 As Beazley J stated in Huluba, merits review involves considering an application for review, and the arguments and claims put forward in it, "afresh". In SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at [20] - to which we refer below - Flick J spoke of a reconstituted tribunal being called upon to "resolve afresh the claims made". That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process. In our opinion "afresh" is simply a shorthand way of saying "with fresh eyes", and is intended to encapsulate the essence of merits review, and indeed its strength in any robust process of administrative decision-making: namely, that within the limits of the applicable law, a new decision-maker brings her or his own perspectives, approach and reasoning to the claims made by an applicant for review.
9. Having regard to these principles and the contents of the Tribunal's reasons, I largely accept the Minister's submissions about the nature and effect of the Tribunal's reasons. The Tribunal's reasons do not reveal that it had not brought an independent mind to the consideration of the appellant's claims merely because it had regard to the sentencing judge's remarks and observations about the credibility of the appellant's evidence in his criminal proceedings. As explained earlier in these reasons, the Tribunal's reasons record that it gave the appellant notice of the potentially adverse conclusions about his credibility that it could draw from the sentencing remarks and gave the appellant an opportunity to make submissions about that issue, which he did and the Tribunal took his submissions into account. Therefore, the Tribunal's reasons do not reveal that it had a closed mind to the credit of the appellant based on what the sentencing judge had said in the criminal proceedings. I am not able to detect any reason to think that the Tribunal failed to consider the appellant's protection claims 'afresh', in the sense described in MZZZW, from the manner in which it dealt with the sentencing remarks.
10. For similar reasons, there is nothing to suggest a reasonable apprehension of bias. There is nothing in the Tribunal's reasons that suggest or that would give rise to a reasonable apprehension in a fair-minded lay observer that the member had reached such a level of pre-judgment that the member might be so committed to a conclusion already formed that the member might be incapable of altering its conclusion having considered whatever evidence or arguments may have been presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. The question is not whether the decision-maker's mind is blank, but rather whether it is open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71]-[72] (Gleeson CJ and Gummow J).

Disposition

1. The appellant should be granted an extension of the time within which he had to file a notice of appeal raising ground 2 of the draft notice of appeal in the form referred to earlier in these reasons. To the extent necessary, the appellant should have leave to raise all aspects of ground 2, as formulated earlier in these reasons.
2. The appeal should be dismissed. The appellant should also pay the Minister's costs of the appeal. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.