BLT17 v Minister for Immigration

[2020] FCCA 2199

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLT17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2199

Catchwords:
MIGRATION – Application for judicial review – safe have enterprise visa – Immigration Assessment Authority – claim that failure to exercise jurisdiction or misconceived jurisdiction – claim that failure to consider claim or integer of claim – no matters of principles – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

[2003] HCA 71

ETA067 v The Republic of Nauru [2018] HCA 46

Applicant: BLT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 687 of 2017

Judgment of: Judge Riethmuller

Hearing date: 18 May 2020

Date of Last Submission: 18 May 2020

Delivered at: Melbourne

Delivered on: 11 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Barrington

Solicitors for the Applicant: Victorian Immigration Lawyers

Counsel for the First Respondent: Mr Solomon-Bridge

Solicitors for the First Respondent: Mills Oakley Lawyers Pty Ltd

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 687 of 2017

BLT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment (‘the IAA’) dated 15 March 2017. That decision affirmed the decision of a delegate of the Minister to refuse the applicant a Safe Haven Enterprise Visa (subclass 1790) (‘protection visa’).

Background

1. The applicant is a citizen of Iran who was born in 1987. He arrived in Australia in 2012 as an irregular maritime arrival. 

2. The applicant applied for a protection visa on 7 June 2016, supporting the application with a statutory declaration and copies of his identification cards. In the statutory declaration the applicant set out a number of events which he said led to adverse interest by the police and Basij and to his arrest on several occasions for breaching the Islamic code.  The applicant gave examples of holding his girlfriend’s hand in public, drinking alcohol, his personal appearance, and attending and organising house parties in June 2011 and June 2012: see Court Book page 60 to 63. The applicant said that after the house party in 2012, the police labelled his house a ‘house of corruption’ (which he heard from his neighbours), a result of which he stayed at a friend’s houses. However, the applicant said the Basij were questioning his friends and his parents and so he left Iran. The applicant also said that he feared harm on account of being returned as a failed asylum seeker from a western country.

3. In August 2016 when the applicant was interviewed by the delegate, he said that a court order had been served on his father just prior to his departure from Iran. That court order does not appear to have ever been produced to the delegate, the IAA or the court.

4. In September 2016, the delegate refused to grant the applicant a protection visa and the matter was referred to the IAA. The IAA affirmed the delegate’s decision to refuse to grant the applicant a protection visa as a result of the IAA having considerable doubts about the credibility of a number of the applicant’s claims: see paragraph [8] of the IAA decision. 

5. Importantly, the IAA noted some factual errors in the delegate’s decision and addressed them directly, saying (at paragraph [9] of the decision):

   9. I note that the applicant’s representative has identified some factual errors in the delegate’s decision. He has also identified some areas where he says there was miscommunication at the SHEV interview because an interpreter from Afghanistan was used. It is evident that there were some communication problems at the SHEV interview, but the applicant’s representative, a Farsi speaker, was present and only intervened on a few occasions when he saw that a translation error had occurred. He did not take the opportunity to clarify any matters at the end of the SHEV interview or to make oral or written submissions after the interview. The applicant’s representative has also submitted that while the delegate made some adverse findings about the applicant’s evidence because he viewed it as vague and lacking in detail, the delegate did not press the applicant for details at the interview. While this is also true to some extent, I consider the applicant and his representative had the opportunity to address this at the time. Overall, I have sought to take a fairly generous view of the information provided by the applicant at the SHEV interview, however, serious concerns about his evidence and credibility, as detailed below, remain.

6. The IAA considered, in some detail, the alleged raid on the applicant’s house party in 2012, where he said that someone had noticed the police approaching and he was able to jump out of a window and run away. The IAA noted that the first time the applicant claimed that his parents had been served with a court order was in his interview with the delegate and that previously he had only said that the police had been at his parents’ house looking for him:  see paragraph [10] of the decision.

7. The applicant said that after the raid on the house, he stayed in various other locations either with friends, or at a factory where he worked, or in empty houses where he was installing cabinets. After that, the applicant said he obtained a passport and left from the airport in the city in which he lived.  The applicant said that whilst he was prepared to bribe the contact of a friend, should he have been stopped at the airport, he was not stopped and was able to freely leave Iran: see paragraph [12] of the decision.

8. The IAA comprehensively considered the applicant’s submissions and rejected his credibility on a number of claims after giving detailed reasons (at paragraphs [13]-[20] of the decision):

   13. I do not accept that a court order or warrant was issued prior to the applicant’s departure from Iran, or that when he left Iran he faced outstanding charges or court proceedings. I am concerned that the applicant made no mention in his SHEV application that a court order had been served on his father before he left Iran, and that he raised this matter for the first time at the interview. Nor did he mention it at the entry interview. Particularly given that the applicant was legally represented when he completed his SHEV application, I do not accept that he would have omitted this crucial piece of information if it were true; he did not even mention in the written statement of claims that he actually faced court proceedings at the time of his departure. While he made a general claim that he is a “mofsed-e-filarz”, his written statement does not suggest that formal charges had been laid. When he subsequently claimed at the SHEV interview that a court order had been issued, he did not state or even suggest that it was in relation to this specific charge.

   14. He also gave inconsistent evidence about his parents’ response. He indicated at the SHEV interview that his father did not know why the court order was issued, and said that his father had asked him what he had done that he would be wanted in court. However, this is inconsistent with other statements at the SHEV interview when he stated specifically that his parents were aware of his circumstances, that they were very scared and indeed had become seriously ill as a consequence, and that his father had gone to the rented house to confirm that the notice had been placed on it. He also said that they had asked him “why did you do that”, implying that they knew what he had done. This inconsistent evidence further leads me to doubt that the applicant’s account is truthful, in particular as to the existence of a court order.

   15. I do not accept that if the claimed court order existed, the applicant would not have sought to obtain it from Iran to present in support of his application. I do not accept his explanation that he did not realise that it would be needed for his application, particularly in view of the fact that he was legally represented. In my view it is simply not credible that the applicant, even if unrepresented, would not have realised that a document which confirmed his key claim might be helpful.

   16. All things considered, I am of the view that the applicant fabricated the claim that his parents were served with a court order prior to his departure, and I consider that this casts doubt on his overall credibility, particularly as to his evidence about the events which he claims led to his departure.

   17. I have serious concerns about the applicant’s other claims about his circumstances following the claimed raid on the house. I have great difficulty accepting that through conversations with a friend, neighbours and his parents, he would have become aware that a lot of people were arrested on the night of the party, or that his possessions were seized including alcohol, his distillation equipment and his computers containing the photographs of the demonstrations. It seems highly unlikely, for example, that friends or neighbours would know what possessions the applicant had in the house in order to be able to say what was seized; or that they would be in a position to watch any such seizures taking place. His claims about the significance of the “house of corruption” notice being placed the house – that the authorities assumed it was a commercial or permanent party place and that he was therefore regarded as a “mofsed-efilarz” appear to be highly speculative; the applicant has not indicated how he became aware of this information, and indeed, I consider it highly implausible that he would have been able to obtain details of this kind from the sources claimed. I consider that the applicant’s claims about these matters go beyond speculation, and that in fact they are fabricated.

   18. Furthermore, if the applicant’s claims about his circumstances prior to his departure were true, and particularly if he had been or was going to be charged with a capital offence, I do not accept that he would have been able to avoid being located by the police for two or three months prior to his departure, particularly given that he continued to attend work, as he claims. Finally, given country information that Iranian courts can conduct and conclude criminal proceedings in absentia [FN: omitted], I do not find it credible that the applicant, via his parents, has apparently not been issued with any further documentation indicating the progress of the proceedings, if it really were the case that he faced charges or an investigation when he left.

   19. While the delegate relied on country information about security procedures at Tehran International airport in finding it implausible that the applicant would have been able to depart without difficulty if his claims about his circumstances prior to his departure were true, the applicant departed via Shiraz Airport and there is no information available about security procedures there. Nonetheless, I do have considerable difficulty accepting that a person who faced proceedings in relation to an offence which carries the death penalty would have been issued with a passport and been able to leave with no difficulty. While I could not rule out the possibility that he was able to do so, and this alone would not be a sufficient basis to reject the applicant’s account, in view of my other credibility concerns, I consider that this is another factor which undermines the overall plausibly and credibility of his account.

   20. Overall, I do not accept that a party at the applicant’s rented house was raided in June 2012, or that any of the claimed consequences flowed from that. I do not accept that the applicant is wanted in connection with operating a “house of corruption” or for the offence of “spreading corruption on earth”. I do not accept that he is wanted in connection with producing or drinking alcohol or because material was found that incriminated the applicant in relation to attendance at political demonstrations in 2009 and 2010. I do not accept that the applicant had an adverse profile or that he was wanted by the authorities for any reason claimed at the time of his departure, or that he faced or would face on return outstanding criminal or legal proceedings.

9. However, the IAA did not reject all of the applicant’s claims, accepting that the applicant had been detained for morality offences by the Basij, saying (at paragraph [23] of the decision):

   23.  The applicant thus appears to have changed his evidence as to whether there was a record of these infringements, stating at the entry interview that his contacts had deleted the record, but at the SHEV interview that while he had paid people to delete his records they had probably run away with the money. Although this inconsistency casts some doubt on his evidence, and although I consider that his overall credibility has been undermined by his willingness to fabricate evidence as outlined above, I am prepared to accept that the applicant was detained for these “morality offences”, given that he has consistently put forward this claim, including at the entry interview, and given that this broad claim is consistent with country information. I also accept that no record of his arrests or detentions exists, but consider it most likely that this is because none was made in the first place. The applicant’s own evidence was that the basij normally report a person who they detain to the police. In these circumstances, and given the applicant’s own inconsistent evidence about whether there was or was not a record of his arrests or detentions, I consider it likely that the basij who detained the applicant did not report him to the police and did not themselves record the offences. This conclusion is supported by the fact that the applicant never appears to have been subjected to more severe treatment for repeat offences - including when he was detained at the party in 2011 and was given a fine, when other attendees were given lashes. This further indicates, and I find, that there was no formal record of these infractions.

10. The IAA also accepted that the applicant was detained and fined for attending a mixed party in 2011 saying (at paragraphs [27] to [28] of the decision):

    2011 party

    27. I am prepared to accept that the applicant was detained and fined for attending a mixed party in 2011. He says that he was among ten people who had stayed overnight and were arrested the next morning. The security forces found and confiscated alcohol bottles, CD’s and a DJ mixer. Some of those arrested were given lashes and some, including the applicant, were fined.  He explained at the SHEV interview that he was given the more lenient treatment because he told the police that he was a cabinet maker and he had just been asked to go there.

    28. The situation he described is broadly consistent with country information and the claim is, on its face, plausible. I am not satisfied that the applicant’s brief detention and the imposition of a fine constituted serious harm amounting to persecution. Nor does the evidence suggest that the applicant thereby acquired a profile of such concern to the authorities that there is a real chance that he faces harm amounting to persecution now or in the reasonably foreseeable future as a consequence of, or arising from that incident.

11. Whilst the IAA found that these events occurred, they were not satisfied that the applicant was at risk of harm in returning to Iran either for these reasons or as a failed asylum seeker.

Grounds for Review

Ground One

1. The first ground for judicial review is framed as follows:

   1. The Second Respondent committed jurisdictional error by failing to exercise its jurisdiction, or by otherwise misconceiving the nature of its jurisdiction, inasmuch as it analysed the Applicant's claims in terms of past persecution and failed properly to address itself to whether there was a real chance of future persecution.

   Particulars:

   (a) The Second Respondent accepted that the Applicant had been detained and fined for attending a mixed party and that others in attendance were given lashes. The Second Respondent failed to consider whether, if the Applicant were similarly arrested in the future, whether there was a real chance of receiving lashes and, if so, whether that amounted to serious harm for a Convention reason.

   (b) The Second Respondent accepted that the Applicant brews his own alcohol, but did not accept that the Applicant had already been discovered by the authorities, or had otherwise faced charges, investigation or penalty for having brewed alcohol. The Second Respondent failed to consider whether there was a real chance the Applicant would in future be discovered for brewing alcohol and, if so, whether the punishment for such behaviour would amount to serious harm for a Convention reason.

2. The applicant argues that the findings of the IAA (in paragraph [28] of the decision, set out above) showed that the IAA only considered the matter from the perspective of the consequences of the incidents that had occurred, and not from the perspective of whether or not the applicant would continue to behave in the same way, and the potential consequences of any such conduct. 

3. When considering the nature of the case the applicant put forward, it is necessary to turn to his statutory declaration (at Court Book pages 60-62) where he relevantly said:

   4. I was not financially dependent on my parents since I was a teenager and I always tried to earn my own expenses. I was a sociable person and always had a lot of friends to socialise with. Although drinking alcohol and having relationship with the opposite sex outside marriage are considered as breach of Islamic Law (Sharia) in Iran, we used to drink together, go out with our girlfriends and enjoy our lives as ordinary teenagers.

   5. Accordingly, Basij and Police agents had arrested me several times on the ground of breaching the Islamic Code. I was arrested and detained in separate occasions because of drinking and carrying alcohol, holding my girlfriend's hand in public, attending private mixed parties and even because of my hairstyle and outfits.

   […]

   10. In early 2011, I rented a house and moved out of my parents' home. Although I used to stay at my parents [sic] home a few times a week. Since I was single, my place turned to a hangout point. Usually it was full of friends who used to come over for a drink and chill out after work. I was very passionate about making my home made wine and alcoholic beverages. I had distillation equipment at my place to make spirits and other alcoholic drinks. I often organised mixed parties at my place and had some good times with my friends.

   […]

   20. I cannot return to Iran because my life will be at risk. Police and Basij will target and arrest me if I return to Iran. I have no doubt that they will execute me on the ground of being a Mofsed-e-filarz. I am certain that the Iranian authorities will detain me, torture me and execute me as a person who was in charge of a 'house of corruption'.

4. The applicant argued that the IAA ought to have considered the risk to the applicant if he returned to Iran and continued to brew alcohol and arrange parties. However, it was not put to the IAA that the conduct concerned would continue. It is also notable that the relevant conduct took place when the applicant said he was a teenager through to 2012.  He is now a man aged in his early thirties. As Counsel for the Minister pointed out, the IAA is only required to consider claims that are the subject of substantial, clearly articulated argument, relying on established facts that will clearly emerge from the material: see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]. The limited nature of the claims are specifically set out in the applicant’s representative’s letter dated 11 October 2016 (at Court Book page 115), which said:

   2. This submissions argues why we disagree with the department’s decision and highlights any claim or matter our client presented to the department that was not considered.

1. In this submission, by way of letter, which runs for five pages, the point argued under ground 1 was not articulated. 

2. On the material before the IAA, it does not appear that a claim was put to it to the effect that the applicant would continue to brew alcohol, drink and party in such fashion. As such, the potential of future harm as a result of ongoing use of alcohol and partying was not an issue that had to be determined by the IAA.

3. Even if it had been put to the IAA that the applicant would have continued in this behaviour, it is not conduct that would ground a claim.  In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 Gageler J considered the ambit of the principle identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 and explained:

   35. GAGELER J. The definition of "refugee" in Art 1A(2) of the Refugees Convention [Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).] contains four cumulative elements: (1) the person concerned must fear "persecution" in the country of his or her nationality; (2) the persecution so feared must be "for reasons of race, religion, nationality, membership of a particular social group or political opinion"; (3) that fear of persecution for one or more of those Convention reasons must be "well-founded"; and (4) the person must be outside the country of his or her nationality "owing to" that well-founded fear.

   36. Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[(2003) 216 CLR 473; [2003] HCA 71] was concerned with the third element of the definition. The principle for which that case stands is that a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution. The rationale for the principle was encapsulated by Dyson JSC as a member of the Supreme Court of the United Kingdom which adopted the principle in HJ (Iran) v Secretary of State for the Home Department[[2010] UKSC 31; [2011] 1 AC 596 at 656 [110]]:

   “If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country." (emphasis in original)

   37. The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. The principle has no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution.

   38. The S395 principle similarly has no application to a person who would or could be expected to hide or change behaviour that is not the manifestation of a Convention characteristic. That is so even if the person would or could be expected to change that behaviour in order to avoid a real chance of persecution by reason of the perpetrators of persecution wrongly imputing a Convention characteristic to the person. The price that the person would be paying to avoid persecution in such a case would not be the sacrifice of an attribute of his or her identity that is protected by the Convention…

4. To the extent that it was said that the applicant had a profile that  rendered him at risk of harm on return, as a result of past issues, this was dealt with by the IAA at paragraph [29] of the IAA’s decision and again in paragraphs [37] to [40] where the IAA said:

   37. As set out above, I do not accept the applicant’s claims about the reasons for his departure from Iran or for fearing return. I do not accept that prior to his departure he was discovered by the authorities to have been producing and distributing alcohol, or to be in possession of digital images of the 2009 and/or 2010 political demonstrations. I do not accept that as a result of a party at his house having been raided he was viewed as a person who spread corruption on earth, or that he faced criminal charges or court proceedings of any. While I accept that he may have had adverse encounters with the authorities in the past due to “morality offences” and that he was fined in 2011 for attending a party in mixed company where alcohol was present, I do not accept that an adverse profile has thereby been established so that the applicant faces a real chance of harm on return, including at the airport.

   38. Having considered the circumstances of the applicant in the light of the country information before me, I consider that while he might be questioned on return, especially if he were travelling on a temporary travel document, there is no real chance that he would be subjected to adverse attention beyond this, let alone serious harm of any kind. I find that the applicant does not have a profile as a political activist or dissident, on the basis of activities within or outside Iran, including because of his participation in the 2009-2010 demonstrations. I am satisfied that this is not known to the authorities, but even if it were, the available country information indicates that it is highly unlikely to be of concern and I am not satisfied that the applicant would face a real chance of being seriously harmed even in those circumstances. I find that the applicant has not acquired an adverse profile because he was fined in 2011 for attending a party, or because of any recorded history of morality offences, and I am not satisfied that he face a real chance of harm on return for these reasons. I do not accept that the applicant faces criminal charges in Iran arising from raid on a party at his house in 2012. Even if the Iranian authorities suspect that the applicant sought asylum overseas, the available information does not suggest that this would cause problems amounting to serious harm. I accept that he may be subject to questioning for a short period of time at the airport because of the circumstances of his return, but I am not satisfied that such questioning would result in any mistreatment or harm beyond routine questioning. I am not satisfied that there is a real chance that the applicant faces harm on return if he were identified as a failed asylum seeker returning either on his own passport, or on a temporary travel document.

   39. I have considered the combination of the applicant’s circumstances as a person who was fined for attending a party in 2011 and who has spent a significant period of time in and applied for asylum in Australia. However, even considering these matters together and in the light of his other personal circumstances considered as a whole, I am not satisfied there is a real chance of the applicant suffering harm, whether immediately on return or in the reasonably foreseeable future, for these reasons.

   Refugee: conclusion

   40. The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

5. I therefore find that this ground has not been made out.

Ground Two

1. Ground 2 was framed as follows:

   2. The Second Respondent committed jurisdictional error by failing to consider the Applicant's claims or their component integers.

   Particulars:

   (a) The Second Respondent failed to consider the Applicant's express claim in relation to an incident in which a young group of Basijis physically fought with the Applicant and killed his pet dog.

   (b) The Second Respondent failed to consider the Applicant's implied claim that he stood to suffer persecution by reason of his lack of religious beliefs.

2. This ground relies upon the evidence given by the applicant in his statutory declaration (Court Book page 60 at paragraph [6]) where he said:

   6. I remember I had a dog when I was a teenager. One day when I took my dog for a walk, I was stopped by a young group of Basijis. They told me keeping dog is not acceptable in Islam because dog is Najes (untouchable/unclean) according to Quran and Islamic instructions. One of them took the dog away by force and my reaction led to a physical fight with them. During the fight they kicked the dog so brutally that the dog died after a few hours. Those Basijis were based in our neighbourhood. After that incident, they used to bully me and they had detained me a few times at the Basij base excusing my hairstyle or other similar excuses. They only released me after signing an undertaking each time.

3. To the extent that the grounds referred to the applicant’s religious persuasion, this was abandoned in the hearing before this Court.

4. Counsel for the applicant points out that the incident involving the applicant’s dog was not noted in the reasons of the IAA. The applicant therefore argues that the IAA failed to have regard to a relevant part of his claim or an integer of his claim.

5. The incident, in the circumstances of the case, was a relatively minor incident that occurred many years before the main incidents relied upon by the applicant.  The incident showed that the applicant was known to, or at least had attracted some attention from, the Basij in the past when he was a teenager, however, the foundation of his claims was clearly based upon the house parties.  It does not appear from the way in which the applicant’s case was put that the dog incident was the basis for a separate claim by the applicant that required specific discussion by the IAA.

6. It appears that this piece of evidence was effectively a background piece of evidence, and it is not open to draw the inference that the IAA failed to have regard to it in the context of the case. As Bell, Keane and Gordon JJ said in ETA067 v The Republic of Nauru [2018] HCA 46:

   13. The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal [FN: Minister for Immigration and Citizenship v SZGUR[2011] HCA 1; (2011) 241 CLR 594 at 605-606 [31]; [2011] HCA 1. See also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at 75 [34]. That is especially so when regard is had to the content of the obligation to give reasons [FN: s 34(4) of the Refugees Act] - , which, here, included referring to the findings on any "material questions of fact" and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

   14. Further, there is a distinction [FN: SZGUR[2011] HCA 1; (2011) 241 CLR 594 at 605-606 [31].] between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims [FN:  Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 [69]; [2001] HCA 30 quoted in SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 605-606 [31].], and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim [FN: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 447-448 [51]-[52].] or that would be dispositive of the review [FN: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604-605 [47].]

7. In the circumstances, I therefore find that this ground is not made out.

Conclusion

1. As I have not found that the applicant has made out a ground, I must dismiss the application.

2. The parties are agreed that costs should followed the event fixed in the sum of $7,467.00.  I make orders accordingly.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 11 August 2020