AAA18 v Minister for Immigration
[2018] FCCA 3091
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAA18 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3091 |
| Catchwords: MIGRATION – Application for judicial review – protection application – Immigration Assessment Authority – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 425, 473DA, 473DB, 473DD, 473DE, pt.7AA |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 |
| Applicant: | AAA18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1 of 2018
| AAA18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 27 November 2017 which affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa pursuant to s.65 of the Migration Act 1958 (Cth). The applicant is currently held in detention.
The applicant is a Pashtun Shia member of the Turi tribe from Pakistan. He arrived in Australia by boat on 30 May 2013. The applicant claimed to fear harm as a Muslim Shia. The applicant applied for a Safe Haven Enterprise (subclass 790) visa on 23 January 2017. He required the assistance of a Pashto interpreter.
On 12 October 2017, the delegate refused to grant the applicant a visa. The refusal was referred to the IAA on 18 October 2017. The IAA affirmed the decision of the delegate on 27 November 2017.
The applicant’s claims
The IAA summarised the applicant’s claims at [6] of its decision:
·He is a single male in his mid-twenties, a Shia member of the Pashtun Turi tribe, who was born and always resided in Perkho Colony near Parachinar, the capital of Kurram Agency in the Federally Administered Tribal Areas (FATA) of Pakistan. The applicant's birthplace is one kilometre north of the main Parachinar bazaar.
·The applicant completed school and then studied for a further two years at a private college where he claimed that he obtained a Bachelor of Science degree, although at the SHEV interview he said that he only studied botany and zoology. He worked as a labourer in the construction industry around Parachinar and tutored the neighbour's children in English. He speaks Pashto, Urdu and some English.
·Growing up, the applicant was always affected by sectarian conflict between the Taliban and the Shia population of Parachinar. When the applicant was two his father was killed in a Taliban bomb attack. In 2006 the applicant was travelling with other Shia in a vehicle that was stopped by Taliban on the Peshawar road. Four of the passengers were taken away and killed. In 2007 there was open conflict between Shias and the Taliban. Shia villages were shelled and Shias travelling to and from Parachinar were targeted. In this conflict, which lasted for four years, the applicant's uncle was killed along with three men from his village, many tribal elders and young Shias. Schools and markets were closed and locals were living in a state of siege. In 2011 the government sent a convoy of trucks carrying food and supplies but the convoy was attacked by Taliban and 85 Shias were massacred while 198 were kidnapped. After that Taliban suicide bombers started randomly targeting Shia villages. This is when the applicant' mother encouraged him to flee.
·There are numerous attacks on Shia throughout Pakistan — including in Quetta, Karachi, Peshawar, Lahore and Islamabad — by insurgent groups such as the Taliban, Lashkar-e-Jhangvi (LeJ), Sipaha Sahabe, Tehreeke-Taliban (UP) and others. Nowhere in Pakistan is safe for a Shia.
·In Australia the applicant committed a criminal offence which he explained at the SHEV interview involved the "grooming" and "procuring" of a minor on the internet. He said that his cousin in Australia has told his family in Pakistan about this and because he has brought dishonour on the family as a result of this "adultery" they have stopped contact with him and will kill him on return.
At [7] of the IAA’s decision, the IAA records the findings of the delegate. The delegate “accepted most of the applicant’s claims” however “did not accept that the real chance of harm related to all of Pakistan”. The delegate found “it would be reasonable for the applicant to relocate” within Pakistan.
The IAA’s decision
The IAA considered the applicant’s claim that he would face harm from honour killing because he had been convicted of sexual offences in Australia, namely grooming and procuring a minor on social media and served 14 months in prison. The IAA noted that the applicant claimed that his family may kill him because of this ‘adultery’: see [11].
At [12], the IAA considered ‘the applicant has exaggerated the extent of his family’s concern about his criminal record’ given the inconsistent evidence in the SHEV application and the SHEV interview. The IAA did not accept, ‘that there is a real chance that he would be killed by members of his family or extended tribe. Nor [was the member] satisfied that the family would take any other measures against him that would amount to serious harm’: see [13].
The IAA accepted (at [14]) that country information ‘broadly supports the applicant’s claims of past violence by Sunni extremist groups against Turi Shias in Kurram Agency’.
Having considered DFAT’s most recent country information report on Pakistan, the IAA concluded on this topic (at [16]) that:
16. I accept that the applicant lives close to Parachinar town. Given the recent escalation of sectarian violence in the form of attacks on Parachinar in 2017, and in view of the fact that these recent attacks have targeted busy commercial areas and a Shia place of worship in the town, I am satisfied that the applicant faces a real chance of being killed or seriously injured in an attack of this kind targeting Shias should he return to his home area of Kurram Agency now or in the reasonable foreseeable future.
The IAA considered whether the real chance of harm related to all areas of Pakistan. The IAA had regard to country information and concluded at [18] and [19]:
18. Although it is clear that some areas are more dangerous than others, the country information indicates, and I am satisfied that there areas in Pakistan where Shias and Turi Shias do not face a real chance of harm.
19. DFAT advises that credible sources state that Lahore and Islamabad are the safest places in the country for Shias, where they tend to be much more integrated with the Sunni population.
The IAA concluded on this topic at [23]:
23. While I am satisfied that the applicant faces a real chance of serious harm in Kurram Agency, his usual place of residence, for reason of his religion and arguably his ethnicity and imputed political opinion, I am not satisfied that the real chance of harm relates to all areas of Pakistan. I am satisfied that the applicant would not face a real chance of serious harm directed at him for any of the reasons in s.5J(1)(a) in Islamabad/Rawalpindi or Lahore. Accordingly, the real chance of persecution does not relate to all areas of the receiving country and s.51(1)(c) is not satisfied. The applicant does not have a well-founded fear of persecution within the meaning of s.5.1(1).
The IAA considered whether the applicant suffered a real chance of significant harm as a Shia Turis. It concluded that ‘there is a real risk that he will suffer significant harm’ in his usual place of residence but that ‘I am not satisfied that the applicant would face a real risk of harm of any kind in Islamabad/Rawalpindi or Lahore’: see [29].
The IAA considered whether the applicant suffered a real risk of significant harm as a result of his sexual offences in Australia, saying at [27]:
27. I am also not satisfied that there is a real risk that he would be killed in these circumstances. Nor am I satisfied that the applicant is at real risk of any other form of significant harm, as defined, from his family because of the criminal conviction for a sexual offence in Australia. While he claims that his family has stopped speaking to him, as noted above he stated that he remained in contact with his mother after his family had become aware of the criminal charges. The applicant has not made any specific claims about any harm he might face from his family on return, apart from the claim that they would kill him which I do not accept. In the absence of evidence of specific threats or concrete concerns about how his family might react upon his return, I am not satisfied that there is a real risk that the applicant would be subjected to any form of significant harm including cruel, inhuman or degrading treatment or punishment on return.
The delegate had asked the applicant whether it would be reasonable for him to relocate. The applicant’s answer is summarised at [31] of the IAA’s decision:
31. The applicant responded that the Sunni extremist groups that would harm him in Kurram Agency are present throughout Pakistan and he would be at risk of harm from them anywhere. He stated that he is easily identifiable as a Shia because of his name, his dialect and his identity documents. He also said that he has no relatives or community members living anywhere else in Pakistan; although he has separately claimed that his family would not help him anyway.
The IAA concluded at [33]:
33. Given his education, skills and personal attributes as a young able-bodied single male, and in the absence of any specific concerns expressed by the applicant himself as to the reasonableness of relocation, other than claiming that he is at risk of harm anywhere in Pakistan from extremist groups and his family - claims which I do not accept - I am satisfied that it would be reasonable for the applicant to relocate to an area of Pakistan such as Islamabad/Rawalpindi or Lahore.
Grounds of application
Pursuant to orders made 6 March 2018 by Registrar Luxton (as amended by orders made 23 July 2018), the applicant filed an amended application on 20 August 2018. That application and the accompanying submissions were prepared by his migration lawyers.
The applicant’s grounds of application are as follows:
1. The decision of the IAA is affected by legal unreasonableness.
Particulars
a. See applicant’s submissions [2]-[9].
2. The IAA failed to consider a claim.
Particulars
a. See applicant’s submissions [10].
Ground 1
The particulars of this ground are outlined in the applicant’s submissions at [2] to [9] as follows:
2. The applicant advanced a consistent claim through the protection visa process that, based on his criminal convictions in Australia, he was exposed to a risk of harm at the hands of his family if returned to Pakistan, by way of an honour killing for having shamed the family.
3. The evidence is set out at CB 95 [17] (the applicant’s statement), CB153 (the agent’s submissions on the point to the delegate), and at T11 and T13 of the transcript of the interview by the delegate, exhibited to the affidavit of Navid Koushke Baghi affirmed on 20 August 2018.
4. As is apparent from the interview by the delegate, no issue was raised by the delegate about the truth of this claim, and in the delegate’s reasons, favourable findings are made based on the applicant’s home region. However, the delegate resolved the case adversely to the applicant on relocation grounds (CB 166-179).
5. Without any notice to the applicant, and without having considered whether to seek out new information from the applicant on the point, the IAA rejected the factual basis of the applicant’s claim to fear harm at the hands of his family (CB 300-301, [11]-[13]).
6. In these circumstances, it is apparent that the IAA had identified a new issue about this claim, in circumstances where the delegate had not asked any questions on the topic, and where the applicant had no reason to think that he may need to give evidence to address the matters of concern identified by the IAA.
7. Needing to mould its procedure to ensure fairness to the applicant despite the strictures of Pt 7AA, it was legally unreasonable for the IAA not to give notice to the applicant of this new issue and not to consider seeking out new information from him about concerns with his narrative, given that he had not given evidence on those matters, but in circumstances where he could not be expected to have done so at any earlier stage as the truth of the narrative had not been doubted at any earlier stage.
8. That is an especially serious error given that the IAA did not undertake any relocation analysis, thinking that the applicant could safely return to his home area, where he would be exposed to any risk of harm from his family.
9. This also needs further contextualisation. The IAA failed to appreciate that a person’s mother would be most likely to have sympathy for her son, despite any shame he may have brought to the wider community (cf Reasons [11]), and wrongly stated that the applicant had not set out the basis of his family that his family may kill him (he had, being the shame that he would bring upon them).
The thrust of the applicant’s claims under ground 1 are that it was legally unreasonable for the IAA to make findings with respect to the applicant’s claim to fear harm at the hands of his family based only upon the material before the delegate. The evidence before the delegate included the applicant’s own statement where he said:
[17] For the applicant to have a well-founded fear of persecution within the meaning of s.5J(1), the real chance of persecution must relate to all areas of the country. The applicant claims that there is nowhere in Pakistan that he would be safe. He claims that Shias are targeted by insurgent groups which have a presence throughout the country. His adviser submitted that Shia Turis are distinguishable by their name, their accent, their identity documents and possibly their facial appearance. The applicant also claims that he would be at risk of harm from his family throughout Pakistan, however, as set out above I do not accept that there is a real chance that the applicant would be killed by his family, or that they would inflict any other kind of serious harm in Kurram Agency or elsewhere.
Together with this were the agent’s submissions on behalf of the applicant, made to the delegate, which appear at court book p.153 and relevantly state:
We submit that the above information on the security situation in the Kurram Agency demonstrates that [the applicant] is at risk of an arbitrary deprivation of his life. As a Shia Turi from the Kurram Agency, [the applicant] clearly faces a personal risk of harm over that of the general population of Pakistan (FN: See SZSRY v MIBP [2013] FCCA 1284). Accordingly, we submit that as a necessary and foreseeable consequence of being removed from Australia to Pakistan, [the applicant] faces a real risk of significant harm.
The submissions from the agent continued on beyond the quote set out above, setting out country information and reports, concluding with the statement:
In addition to the risks of being s Shia Turi in Pakistan, we further subs the [applicant] is at risk as a consequence of his condition in Australia. Our client advises that his conviction has been made known to his relatives and community back in Pakistan. [The applicant] fears he will be killed by his family for 'bringing shame' upon them. In a report on honour killings, Agence France-Presse notes that honour and the preservation of a family's good name are "highly valued" in Pakistan. Sources cite an "influential" religious cleric as stating that killing in the name of honour is "a local custom and a religious practice" in Kohistan (FN: Responses to Information Requests – Immigration and Refugee Board of Canada, Pakistan: Honour killings targeting men and women >
At the hearing before the delegate, the applicant was asked about these issues, as appears in the transcript at p.11. Through this section of the transcript, the applicant outlines that he was interacting with a female on social media and convicted of procuring or grooming (a total of three charges), and sentenced to prison for 14 months. It appears the applicant served the whole of the sentence, rather than being released after eight months on the basis of what appears to have been a recommendation for parole by the sentencing Judge (although it is not entirely clear from the transcript). At the end of this page, the applicant tells the delegate that his cousin in Australia informed the family and the whole tribe is aware of his conviction, saying:
Because of this, my whole family abandoned me, they are no more talking to me.
Thereafter, the delegate commences to explore relocation to other areas of Pakistan at the beginning of p.12. At p.13, the delegate said:
So before we break for the natural justice break, I’ll just mention some concerns that I have with the information you’ve given me. I don’t really think it’s a concern, to be honest, it’s just information that I need to consider. One of the things that I need to consider is I need to consider whether your return, whether it would be safe for you to return to Parachinar or the FATA in light of what you’ve just told me about the problems that you’ve got with your family, and also the problems – and the on-going problems that I’m aware of from the country information before me regarding the security situation in the FATA.
And if I decide that it would not be safe for you to return to Parachinar and the FATA, I then need to consider whether there’s another safe area in Pakistan where it would be reasonable for you to relocate to that area. So I need to consider whether you would incur harm from insurgents, as you claim, or your family, should you relocate to another area, such as Lahore, Karachi or Islamabad.
Thereafter, the delegate adjourned briefly, and upon the return to the hearing said:
Okay. So, [applicant], do you have any comments in response to what I stated earlier? Is there anything further information that you want to provide me with?
To which the applicant said there was nothing further and his adviser clarified the opportunity to provide further material.
The delegate made clear to the adviser that the delegate was ‘not looking to probe his identity any further’ (referring to the applicant) (see transcript p.14), and the delegate also indicated that he did not have any real concerns about a discrepancy with respect to the applicant’s evidence not related to the fear of harm from his family. The delegate did not agree with the proposition that the applicant might be identifiable by his facial appearance (presumably within an ethnic group), noting that the adviser would provide submissions on that issue.
Following the interview with the delegate, written submissions were provided on behalf of the applicant on 9 October 2017, as appear at court book pp.140 to 159. It is in these submissions that the above quoted passages appear.
Whilst the delegate did not explore the applicant’s offences, in detail, nor the detail of the threats from his family, it was clearly still a live issue, as is apparent from the further submissions provided by the applicant’s adviser, who framed the risk as being an ‘honour killing’ at the hands of the applicant’s family.
As a result, the applicant argues that in circumstances where he was not going to be accepted about the nature of the risk from his family, he ought to have had a form of oral hearing where he was either challenged on this claim, or at least questioned in sufficient detail to obtain from him a detailed version of the events. Thus, it is argued, the delegate failed to provide a proper hearing.
There is no contradictor in hearings before the delegate: it is not an adversarial process. There is no requirement to ‘put’ contrary propositions on the delegate. The delegate is to consider the evidence before the delegate as prosecuted by the applicant. The delegate is not required to state a preliminary view to the applicant.
The hearing before the IAA took place under Pt.7AA of the Act, which provides a unique hearing process for reviewing decisions of a delegate. Section 473DA states that the part is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, and s.473DB requires the IAA to consider review applications on the papers, without new information and without interview of the referred applicant. However, the IAA is not concerned with the correction of error on the part of the delegate that is engaged in a de novo consideration of the merits of the decision that has been referred to it: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17].
Whilst the IAA has closely prescribed powers to obtain new information or submissions (see ss.473DD and 473DE), it is apparent that this is not to be considered the ordinary course in the context of the statutory scheme. Importantly, as the Full Court said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]:
72. We do not consider that the fast track statutory regime of Part 7AA requires the authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, or the material considered by the delegate … the authority is not required to inform the visa applicant of specific reservations about the applicant’s case and to provide the applicant with an opportunity to respond.
The Full Court also noted that there is no requirement in Pt.7AA of the Act (equivalent to s.425) requiring the IAA to offer the visa applicant an opportunity to appear before it, give evidence or present arguments: see [75]. The Full Court said:
We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.
These principles flow from the fact that the principles of procedural fairness are largely excluded from the operation of Pt.7AA, and therefore to approach a review of the delegate’s process, or the IAA’s process, through the lens of the natural justice hearing rule would be an error. Rather, the conduct of the IAA must be approached through the lens of legal reasonableness, that is, whether or not the manner in which the IAA approached the case was legally reasonable or unreasonable in the context of the legislation and the particular circumstances.
In circumstances where the applicant has not been led to believe that the matter is not at issue by the delegate (as occurred with some other limited issues in this case, as discussed above) and the applicant has had an opportunity to provide some (albeit brief) oral evidence, and detailed written submissions setting out his evidence and arguments on an issue, it does not appear to be legally unreasonable for the IAA to proceed to hear and determine the matter on the papers. To conclude otherwise would effectively result in a requirement for the IAA to notify applicants when it is considering taking a different view that is adverse to them on the material considered by the delegate, unless the delegate clearly challenged the applicant’s version of events when the applicant appeared before the delegate. This does not appear to be the way in which the scheme was intended to operate, when one views Pt.7AA as a whole, as the Full Court explains in [72] of DGZ16.
This is not a case where any conduct of the officials prior to the matter reaching the IAA effectively led the applicant to believe that he need not provide any further information, and therefore acted in his disadvantage. Rather, it is a situation where he has provided such information as he chose, but (unlike a common law trial) was not challenged by a contradictor or had someone elicit further evidence as to this part of his version of events. The processes before the delegate and the IAA are not adversarial processes but inquisitorial. In the absence of the common law rules relating to procedural fairness, there does not appear to be any imperative to challenge an applicant or a witness as to their version of events (nor ask them to expand upon it), prior to rejecting, or placing little or no weight upon it, if such an assessment is otherwise made for appropriate reasons. If the reasons were a simple rejection of the evidence without any logical basis for that rejection, then the reasons would likely be inadequate.
The applicant develops the argument further by pointing out that in [12] of the decision, the IAA says:
12. The applicant has provided no evidence of specific threats by his family, or as to the basis of his belief that they would kill him.
It is argued by the applicant that this was because he was never asked about specific threats by his family, and that the belief that they would kill him was based upon cultural norms.
In substance, the applicant’s argument requires the IAA to attempt to elicit further evidence from the applicant to improve his case, despite the fact that he has had opportunities to put his material and evidence before the delegate, both orally and in writing.
I am not persuaded that in the whole of the circumstances of this case it could be said that the IAA had acted in a way that was legally unreasonable, and therefore I am not persuaded that the applicant made out this ground for judicial review.
Ground 2
In support of ground 2, the applicant argues that the IAA mischaracterised the claim by way of a narrowing of the claim to being one based solely upon adultery, rather than the fact that the applicant was convicted of a criminal offence (independent of the nature of the offence itself). The particular is framed as:
The IAA mischaracterised, and narrowed, the applicant’s claim as being based on adultery. That was not so. The relevant “shame” was based on the applicant having been convicted of an offence (independent of it’s sexual-based character), but the IAA assessed it only on the basis of the “adultery” country information. That failed to take consider the claim as advanced.: see [10] of applications submissions
This argument confronts two difficulties. Firstly, it is difficult to imagine that such a claim could realistically be put with respect to any criminal offence: for example, a simple assault charge that may have flowed from an argument or angry confrontation. Secondly, the applicant himself had characterised the nature of the offence as one of adultery in order to explain why it was that this particular offence had the grave consequences he alleged. This is apparent from the transcript where the applicant says (at transcript p.11):
Back home, the person who is an offender of adultery, his life is in – is definitely in danger, and the verdict will be to kill them.
Following this comment, the delegate actually asked the applicant:
Yes, but what was actually the criminal offence in Australia that you were convicted of?
The case as put was clearly on the basis that the applicant was at risk because of his conviction for an offence in the loose category of ‘adultery’ (according to his family’s social norms) rather than a criminal offence per se. It was this case that the IAA squarely considered at [13] when they said:
13. Country information provided by the applicant's representative' indicates that men as well as women are victims of honour killing in Pakistan. While an older source cited therein indicates that twice as many women are victims, more recent information from 2015 indicates that the number of men killed in honour killings is much smaller, with 88 male victims recorded as against 1096 female.' Although there is little information before me about the precise circumstances in which men are victims of honour killings, the available information indicates that honour killings most often occur when women, who are considered to carry the honour for their entire family, are considered to have brought shame on the family through sexual activity. The country information indicates that the primary burden of dishonour falls on women who are blamed for sexual conduct deemed inappropriate, no matter what the circumstances in which it occurred. The available information indicates that when men are killed because of sexual activity that is regarded as inappropriate, the killing tends to be carried out by the husband or family of the woman; or by the male's family in order to appease the woman's family. The information indicates that males who have "illicit" relationships are often able to flee, to make a cash payment to the female victim's family, or to provide a woman from their own family to the other family. The applicant has not claimed, and there is no information before me to suggest that the victim of the applicant's crime is a Pakistani woman or that she has any links with Pakistan. The available evidence therefore does not suggest that there is any imperative for the applicant's family to punish him in order to appease the female victim's family. Given the cultural propensity to hold women responsible for sexual crimes, as evidenced in the information that was before the delegate, and given the particular nature of the crimes committed by the applicant, where it is not clear whether he had any actual physical contact with the victim, I have serious doubts that the applicant would be viewed as having brought dishonour on his family, certainly to the extent that they would kill him. In so finding I have taken into account the recent figures indicating that the number of men killed in honour crimes is very small. I am willing to accept that if the fact that the applicant has committed a crime and served a prison sentence is indeed known to his family this may be a matter of shame and embarrassment. However, I do not accept that there is a real chance that he would be killed by members of his family or extended tribe. Nor am I satisfied that the family would take any other measures against him that would amount to serious harm. I consider that the possibility that they would refuse even to have contact with him on return is purely speculative. In the light of these findings it is not necessary to determine whether the harm inflicted by the applicant's family would be done for any of the reasons in s.5J(1)(a).
The IAA spent some time considering the nature of ‘adultery’ in Pakistan, effectively identifying that it was sexual relations outside of the bounds of wedlock, and that in cases where the misconduct was that of the male, the ‘honour’ retributions were ordinarily sought by the female ‘victim’. When men are killed because of sexual activity, the killing tends to be carried out by the family of the woman or to appease the family of the woman. In this case, on the facts before the IAA, there was no involvement of the family of the victim of the offences the applicant committed in Australia.
In these circumstances, I am not persuaded that the case was effectively advanced on the basis merely of a conviction of an offence in Australia. Rather, that the case was advanced on the basis of the nature of the offence for which he was convicted. To the extent that it is argued that a conviction simpliciter was able to cause risk to the applicant, this is taken up by the findings of generality made towards the end of the reasons at paragraph [13].
In the circumstances, I am not persuaded that the applicant has made out a ground for judicial review in this regard.
Conclusions
As I have not found a ground for judicial review in this application, I must, therefore, dismiss the application. The issue of costs was argued at the end of the hearing, where it was agreed that costs should follow the event at the scale fee. I therefore make orders accordingly.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 31 October 2018
3
2