DZABM v Minister for Immigration
[2012] FMCA 1092
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZABM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1092 |
| MIGRATION – Judicial review – independent merits review – whether failure to consider a claim of well founded fear of persecution – whether failure to consider whether adequate state protection – whether principles concerning adequacy of state protection misapplied. |
| Migration Act 1958 (Cth), ss.36(2), 476 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 AZAAR v Minister for Immigration & Citizenship (2009) 111 ALD 390; [2009] FCA 912 Darabi v Minister for Immigration & Citizenship& Anor (2011) 250 FLR 301; [2011] FMCA 371 DZABK v Minister for Immigration & Citizenship & Anor [2012] FMCA 1035 Minister for Immigration & Citizenship v SZMDS& Anor (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration & Citizenship v SZONJ & Anor (2011) 194 FCR 1; [2011] FCAFC 85 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1; [2002] HCA 14 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff M61/2010E & Anor vCommonwealth of Australia& Ors (2010) 243 CLR 319; [2010] HCA 41 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Razai v Ministerfor Immigration & Citizenship & Anor [2011] FMCA 777 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 150 FCR 448; [2006] FCA 3 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691 |
| Applicant: | DZABM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 48 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 November 2011 |
| Date of Last Submission: | 25 November 2011 |
| Delivered at: | Perth (by telephone to Darwin) |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson with Ms R Sharkey |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the First Respondent: | Mr T Anderson with Ms M Hawkins |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 48 of 2011
| DZABM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DOMINIC LENNON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.476 of the Migration Act 1958 (Cth)[1] for a declaration and injunction in relation to a decision[2] of Dominic Lennon, in his capacity as an independent merits reviewer.[3] The IMR found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]
[1] “Migration Act”.
[2] “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 130-162.
[3] “IMR”.
[4] “Convention”.
Relief sought
The applicant seeks the following relief:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
4.Any other orders which the Court thinks fit;
5.Costs.
Jurisdiction
The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[5]
[5] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).
Background facts
The applicant:
a)is an offshore entry person, as that term is defined in s.5 of the Migration Act;
b)arrived at Christmas Island on 23 March 2010; and
c)submitted claims in support of a request for a Refugee Status Assessment[6] on 5 June 2010.[7]
[6] “RSA”.
[7] CB 27-66.
On 14 September 2010, the RSA found that Australia did not owe the applicant protection obligations.[8]
[8] CB 76-88 (“RSA Decision”).
On 22 September 2010 the applicant requested an independent merits review of the RSA Decision.[9] The applicant made a 34 page written submission to the IMR on 25 October 2010.[10] The IMR conducted an interview with the applicant on 20 March 2011. On 24 July 2011 the IMR recommended that the applicant not be recognised as a person to whom Australia has protection obligations.[11]
[9] CB 89-92.
[10] CB 96-129 (“Applicant’s 25 October 2010 Submission”).
[11] CB 162 at para.130.
IMR Recommendation
The IMR accepted that there were a number of Convention bases for the applicant’s alleged fear of persecution.[12] The IMR then considered whether there was real chance of persecution on any of those bases. The IMR determined that there was not a real chance of persecution on the basis of the applicant’s:
a)race;[13]
b)religion;[14]
c)particular social group - Iranian accent and residency;[15] and
d)particular social group - failed asylum seeker.[16]
[12] CB 157 at para.98.
[13] CB 159 at para.110.
[14] CB 159 at para.114.
[15] CB 160 at para.116.
[16] CB 161 at para.122.
The IMR found the applicant faced a real chance of serious harm (muggings and theft) as a “returnee from the West”, but that the applicant could access State protection from such harm.[17] On the basis of his findings the IMR determined that the applicant did not meet the criterion for a protection visa.[18]
[17] CB 160 at paras.117-119.
[18] CB 162 at paras.128-129.
Affidavit of Ms Hawkins
The Minister sought to have admitted into evidence an affidavit of Mary Hawkins, a solicitor acting for both respondents in these proceedings, sworn on 21 November 2011. The affidavit annexed the decision of an independent merits reviewer in the matter which became, on an application for review in this Court, DZABK v Minister for Immigration & Citizenship & Anor.[19] The Minister sought to rely upon the recommendation of the independent merits reviewer in that matter, which was delivered two days after the IMR Recommendation, to support an assertion that the IMR must have had in his mind the relevant legal principles set out in the recommendation delivered two days later. There was no evidence before the Court of whether or not the relevant legal principles (and cases) referred to in the later independent merits review were, or were not, in the mind of the IMR at the time the IMR Recommendation was delivered. It is, for example, entirely possible that the reference to the relevant legal tests, which appear in four paragraphs of the later independent merits review might not have been considered and inserted in the later independent merits review until the day after the IMR Recommendation was delivered. The Court is simply not prepared to infer that the authorities and principles with respect to State protection referred to in the later independent merits review, were in the IMR’s mind at the time of the delivery of the IMR Recommendation. It is equally possible to infer that they were not, because they were not included in the IMR Recommendation.
[19] [2012] FMCA 1035 (“DZABK”).
For those reasons the affidavit of Ms Hawkins was not admitted into evidence at hearing.
The applicant’s submissions
As to what errors were reviewable the applicant submitted that:
… in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.[20]
[20] VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 at para.16 per Wilcox, Gray and RD Nicholson JJ (“VAT”). See also Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 (2003) (“S157”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 (“S134”) cited by the applicant.
In introducing its submissions as to the errors said to have been made by the IMR, the applicant submitted that:
a)it was important when approaching the Convention test and whether any fear of persecution is well-founded, that what the IMR says, and the language which he uses, must be taken as constituting the basis of his understanding of the various principles which are to be applied; and
b)in the present case there is no antecedent statement of fundamental principles regarding how the IMR should go about his jurisdictional task in interpreting the Convention (as there usually is with a Refugee Review Tribunal decision). The Court is, therefore, entitled to take what appears on its face in the relevant parts of the IMR Recommendation as the IMR’s understanding of the principles to be applied in its consideration of whether the applicant is someone to whom Australia owes protection obligations.
As to what it described as the misconstruction point, that is, the failure to consider the inability of the State to protect an applicant where a Convention nexus was found to exist derived from private criminal acts, the applicant submitted that:
a)the treatment of the claim of membership of a particular social group of returnees from the West once the IMR accepted the existence of a Convention nexus reflects a misunderstanding of the Convention test as regards State protection;
b)the IMR found, on the basis of a Department of Foreign Affairs and Trade[21] report concerning risks of harm affecting returnees as a member of a particular social group,[22] that the applicant faced a real chance of persecution constituted by muggings and theft as someone identifiable as “a returnee from the West” and that a Convention nexus existed;
[21] “DFAT”.
[22] CB 160 at para.118.
c)the error lies in the approach the IMR then took in making a finding that the applicant would not be denied State protection “on Convention or other grounds”.[23] The IMR stated:
[23] Applicant’s Contentions of Fact and Law, para.28.
Having found that the claimant might face a chance of serious harm by reason of his being a returnee from the West I have considered if he could access state protection. Bamiyan is a district in which the Hizb-i-Wahdat party has a strong presence and is primarily Hazara. I do not accept that the claimant would be denied (on Convention or other grounds) access to State protection against any persecutory conduct. I note the country information about Bamiyan indicates that the PRT is supporting the Afghan government’s lead in governance, development and security in Bamiyan province including community safety and an effective police force.[24]
[24] CB 160 at para.119.
d)the IMR then stated that despite having a well-founded fear the applicant could, as a Hazara in Bamiyan, access State protection. This approach reflects a misconstruction of the test of adequacy of State protection in case of non-state agents. The same approach of stating “denial” of protection as the test was taken in another context;[25]
[25] CB 156 at para.94.
e)the error is two-fold:
i)the confining of the issue of State protection to denial, that is, unwillingness; and
ii)the reference to denial “on Convention or other grounds” when the Convention nexus has already been supplied and found to be present;
f)the principal error is not considering or applying a test of inability to provide protection, aside from unwillingness, where there is a well-founded fear with a Convention nexus,[26] but in effect imposing a more onerous standard or a failure to deal with a relevant consideration. The present situation is one where a well-founded fear of private persecutors has been established, which according to the analysis in SZONJ engages the issue of whether the State is unable to afford protection to the applicant;
[26] Minister for Immigration & Citizenship v SZONJ & Anor (2011) 194 FCR 1 at 8-10 per Emmett, Rares and Perram JJ; [2011] FCAFC 85 at paras.28-33 per Emmett, Rares and Perram JJ (“SZONJ”).
g)it is clear from SZONJ that a reviewer is to consider the inability of the State to protect in a situation where it has found that a fear of private elements is well-founded for a Convention reason;[27]
[27] SZONJ FCR at 9-10 per Emmett, Rares and Perram JJ; FACFC at paras.30-33 per Emmett, Rares and Perram JJ.
h)despite the reference to the New Zealand PRT[28] (an international non-state entity) and to information about its projects,[29] involved in capacity building and institutional development building, including in relation to police and regional security, there is no reference to the government and its role in the context of the ability of the State to protect, nor to the test set out in S152. There is similarly no reference anywhere to factual material concerning the ability or capacity to protect against theft and robbery by criminal elements;
[28] “PRT” stands for “Provincial Reconstruction Team”.
[29] CB 161 at para.123.
i)the source of the information regarding Hizb-i Wahdat party having a “strong presence” in Bamiyan[30] is not apparent, nor its relevance from the standpoint of accessing State protection;[31]
[30] CB 160 at para.119.
[31] CB 161 at para.123.
j)the reasoning in Razai v Minister for Immigration & Citizenship & Anor[32] insofar as it considered the role of non-state entities like Hazara political parties or groupings, is distinguishable, as in that judgment there was:
[32] [2011] FMCA 777 (“Razai”).
i)an unimpeachable finding of absence of well-founded fear on return to the applicant’s home region; and
ii)no issue of the adequacy or otherwise of State protection, and, no need for the IMR to consider the issue;
k)due to its focus on denial of access the IMR failed to examine the principles in S152, which need to be applied in order determine whether State protection was adequate;
l)in S152 their Honours held that the nature of the case sought to be made and the case it was addressing was not one of the inability of the State to afford protection, but rather one of instigation or encouragement or condonation by the State authorities of the harm suffered. The majority set out the principle that the State was obliged to “take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.”[33] In S152, the country information gave no cause to conclude that there was any failure of State protection in the sense of a failure to meet the standards of protection required by international standards;
[33] S152 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
m)regarding the “inability of the State to protect where there is non-Convention related persecution”, the following principles apply:
i)it is the obligation of a State to provide an adequate or reasonable armoury of laws and other mechanisms capable of providing international standards of protection[34] against the perpetration of violence on its citizens;[35]
ii)those standards cannot provide an “absolute guarantee” of protection; the measures taken to protect the lives and safety of citizens must be “reasonable”;[36] but they cannot be expected to protect against “individual and random” incidents of harm;[37]
iii)there must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence,[38] and this may necessitate examining how State agents act at a “local level” regardless of the State’s “leaders’ good intention”;[39] and
iv)if the State or its agents condone, approve, tolerate,[40] or are indifferent to the criminal conduct concerned:[41]
... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents].[42]
n)on the above bases, the IMR, apart from misunderstanding the law regarding State protection, has additionally failed to state and apply the correct principles, and has made a jurisdictional error.
[34] S152 CLR at 11-12 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.27 per Gleeson CJ, Hayne and Heydon JJ.
[35] S152 CLR at 11 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.26 per Gleeson CJ, Hayne and Heydon JJ.
[36] S152 CLR at 40 per Kirby J; HCA at para.117 per Kirby J.
[37] S152 CLR at 41 per Kirby J; HCA at para.119 per Kirby J.
[38] S152 CLR at 9 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.21 per Gleeson CJ, Hayne and Heydon JJ.
[39] SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 150 FCR 448 at 460 per Madgwick J; [2006] FCA 3 at para.37 per Madgwick J.
[40] Minister for Immigration & Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1 at 13 per Gleeson CJ; [2002] HCA 14 at para.31 per Gleeson CJ (“Khawar”).
[41] S152 CLR at 41 per Kirby J; HCA at para.119 per Kirby J.
[42] Khawar CLR at 13 per Gleeson CJ; HCA at para.26 per Gleeson CJ.
Minister’s submissions
The Minister submits that:
a)the applicant complains that the IMR failed to properly consider whether there was adequate State protection, in that he failed to consider whether the State was able, as opposed to willing, to provide protection;
b)on a fair reading of the IMR Recommendation the IMR gave proper consideration to the adequacy of State protection from muggings and theft;
c)the applicant contends that the IMR’s use of the word “denied”[43] demonstrates that the IMR only considered “unwillingness” and did not turn his mind to “inability”, that is, whether the State had taken reasonably adequate measures, when considering State protection.[44] The applicant’s case rests on the use of a single word. In context, the word “denied” does not convey a failure by the IMR to consider whether reasonably adequate measures were in place. The IMR said:
[43] CB 160 at para.119.
[44] Applicant’s Contentions of Fact and Law at paras.32-33.
Having found that the claimant might face a chance of serious harm by reason of his being a returnee from the West I have considered if he could access state protection…. I note that the country information indicates that the PRT is supporting the Afghanistan Government's lead in governance, development and security in Bamiyan Province including community safety and an effective police force (see paragraph 75). I therefore find… allowing that the claimant would have a well founded fear of robbery and theft on the basis of being such a returnee that he could as an Hazara in Bamiyan, access state protection.[45]
and
I do not accept that the claimant would be denied (on Convention or any other grounds) access to state protection against any such persecutory conduct.[46]
d)the only fair reading of the IMR Recommendation, bearing in mind the High Court’s warning against construing administrative decisions with an eye focused on the perception of error,[47] is that the IMR considered that the applicant would have access to reasonably adequate State protection in the sense discussed in S152;
e)the important word used by the IMR was “access”, not “denied”. While the finding that the applicant would not be denied access might be said to convey a determination that the State was willing, or at least not unwilling, to provide protection, it can also carry the broader meaning that protection was available. Further, the IMR positively found that the applicant could access State protection. That determination must convey that protection was available;
f)the IMR has not failed to apply the principles summarised in AZAAR v Minister for Immigration and Citizenship,[48] to the extent they have survived the judgment in SZONJ;[49] and
g)the way in which the IMR expressed his conclusions could, with the benefit of hindsight, be characterised as “unhappy phrasing”, but nothing more.[50] The applicant’s approach to the matter requires an “overzealous or overcritical” reading of the IMR Recommendation, which the Court should guard against.[51]
[45] CB 160 at para.119 (Minister’s emphasis). The reference to para.75 of the IMR Recommendation should be to para.74.
[46] CB 160 at para.119 (Minister’s emphasis).
[47] Citing Minister for Immigration & Citizenship v SZMDS& Anor (2010) 240 CLR 611 at 634, fn 73 per Heydon J; [2010] HCA 16 at fn 73 per Heydon J.
[48] (2009) 111 ALD 390; [2009] FCA 912.
[49] See Applicant’s Contentions of Fact and Law at para.41.
[50] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[51] S152 CLR at 42 per Kirby J; HCA at para.123 per Kirby J.
Consideration
The applicant argues that the IMR’s consideration of the issue of State protection was confined to a denial of the provision of State protection.
A reading of the IMR Recommendation does not, in the Court’s view, bear out the applicant’s argument. True it is that the IMR starts by saying that he does not accept that the applicant “would be denied … access to state protection”, but he then goes on, to refer to governance and security development, including “community safety and an effective police force” within Bamiyan Province being led by the Afghan government.[52] The IMR then goes on to find that, in relation to muggings and theft on the basis of being a returnee from the West, that the applicant “could as an Hazara in Bamiyan, access State protection”.[53] There were, therefore, positive findings by the IMR that:
a)there was an effective police force in Bamiyan Province; and
b)the applicant could access State protection in relation to his well founded fear with a Convention nexus.
[52] CB 160 at para.119.
[53] CB 160 at para.119.
The finding with respect to the effectiveness of the police force is sustainable on the basis of country information referred to by the IMR concerning:
a)the current period being the best in several hundred years for Hazaras in terms of “human security”;[54] and
b)the development of effective local policing, particularly in Bamiyan.[55]
[54] CB 142 at para.57.
[55] CB 151-152 at para.74.
The finding that there is an effective police force is a finding of fact for which there was an evidentiary basis in the country information, and in the circumstances, is not a finding susceptible to judicial review, as to review that finding would be to slip into impermissible merits review.[56]
[56] Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 585 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
The applicant has focussed on the reference to what it asserts to be the “denial” of State protection in the IMR Recommendation. To do so, however, ignores the positive findings set out above.
The applicant’s construction of the “denial” is also somewhat artificial and does not bear more detailed analysis. What the IMR said was that he did “not accept that the claimant would be denied … access to state protection.”[57] This is not a statement confined to denial of State protection. It can equally be read as an affirmation, albeit negatively expressed, of the fact that the applicant had the ability to access State protection. In any event, for reasons set out above, the IMR did make positive findings that the applicant could access State protection in relation to his well founded fear of persecution for a Convention reason.
[57] CB 160 at para.119.
When regard is had to the finding that the applicant can access State protection, and the country information concerning levels of security and development of an effective local police force, it can safely be said that the IMR did not find an absence of power, or an absence of will, by the Afghan State to protect the applicant from the persecution which was the subject of his well founded fear of that persecution.[58] It is implicit in the IMR’s consideration of the country information, his findings with respect to State protection for the applicant as a returnee from the West, and the ultimate disposition of the matter by the IMR, that there was for a returnee from the West to Bamiyan Province adequate State protection able to be provided in relation to a fear of persecution by way of muggings and theft. The weight to be given to evidence generally, and in relation to the country information, was entirely a matter for the IMR.[59] This view is reinforced because there was also no positive finding by the IMR that the State was unwilling or unable to provide State protection from persecution based on Convention reasons to returnees from the West, and, in particular, in relation to this case, by way of muggings and theft.
[58] S152 CLR at 6 per Gleeson CJ, Hayne and Heydon JJ; HCA at para.14 per Gleeson CJ, Hayne and Heydon JJ; CLR at 35-36 per Kirby J; HCA at para.101 per Kirby J; Razai at para.57 per Nicholls FM.
[59] Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 per Gummow and Hayne JJ; [1999] HCA 14 at para.195 per Gummow and Hayne JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberelin and Lander JJ.
The applicant also asserted that the IMR’s reference to denial of access to State protection “on Convention or any other grounds”[60] was an error when the Convention nexus had already been supplied and found to be present. This is to read too much into the phrase used by the IMR. The words “or any other grounds” are simply surplusage. The IMR appears to be saying that the applicant would not be denied access to State protection, or would have access to State protection, from the effective local police force, no matter what the motivation for the persecutory conduct.[61] To read more into this phrase is to over analyse the IMR Recommendation in a manner not supported by authority.[62]
[60] CB 160 at para.119.
[61] CB 160 at para.119.
[62] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
To arrive at the view that the applicant’s argument was correct would require this Court to act contrary to authority which requires that the IMR Recommendation not be scrutinised “in any over zealous or over critical way or to allow unsuccessful applicants to turn an application for judicial review into an attempted reconsideration of the factual merits.”[63]
[63] S152 CLR at 42 per Kirby J; HCA at para.123 per Kirby J.
In the circumstances, there is no jurisdictional error, or any other discernable relevant legal or procedural error, in the IMR Recommendation. In the circumstances, the application must be dismissed.
Conclusions and orders
The Court has concluded that the applicant has failed to establish the alleged jurisdictional error, or any other relevant error, and that the application must therefore be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 30 November 2012
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