SZQRW v Minister for Immigration & Citizenship - [2012] FMCA 191

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRW v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 191

MIGRATION – Persecution – review of recommendation made by Independent Merits Reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer denied the applicant procedural fairness, considered irrelevant material and failed to consider relevant material.

The Constitution, s.75
Migration Act 1958, ss.5, 36, 46A,195A, 196, 474, 476

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1

Applicant:

SZQRW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

ROSA GAGLIARDI IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 2214 of 2011

Judgment of:

Cameron FM

Hearing date:

9 February 2012

Date of Last Submission:

9 February 2012

Delivered at:

Sydney

Delivered on:

15 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr B. O’Donnell

Solicitors for the Applicant:

Legal Aid Commission

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2214 of 2011

SZQRW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ROSA GAGLIARDI IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, who claims to be stateless, arrived at Christmas Island by boat on 20 July 2010. On 29 August 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 19 October 2010 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 26 August 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in immigration detention at the time of the RSA assessment and the subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer failed to observe the requirements of procedural fairness, considered irrelevant material and failed to consider relevant material. He also seeks an injunction restraining the Minister from relying on the Reviewer’s recommendation.
This proceeding was underpinned by an assumption that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
In Plaintiff M61 the High Court considered the lawfulness of keeping offshore entry persons in detention under s.196 of the Act pending decisions on their requests to be assessed to be refugees. It held that such continued detention was lawful because the Minister had made a decision to consider exercising his powers under ss.46A and 195A, meaning that Plaintiff M61 was not being detained at the pleasure of the Crown. Nevertheless, that detention was prolonged by the Minister’s decision to consider the exercise of his powers under ss.46A and 195A and the independent merits review was part of that process of consideration. Because the prolongation of the detention took place for the purpose of informing the Minister, by means of the review, of matters that were relevant to the decision whether to exercise one of those powers in favour of the claimant, the review thereby affected an interest or privilege of Plaintiff M61, namely a right to liberty. As a consequence, the High Court held that the independent merits reviewer had to afford Plaintiff M61 natural justice by conducting a review which was procedurally fair and which also correctly addressed the relevant legal question or questions.
However, the legal foundations of this proceeding are different from those of Plaintiff M61. In Plaintiff M61 the High Court’s jurisdiction arose out of s.75(iii), s.75(v) and “even, perhaps, s.75(i)” of the Constitution: at 345 [51]. Also, the High Court was concerned with why the claimant’s detention was lawful, together with the consequences for an independent merits review of the fact that it was part of the decision making process which not only validated continuing detention but also, importantly, prolonged it. By contrast this Court’s relevant jurisdiction is not conferred by the Constitution but by the Act, which provides that the Court has jurisdiction to determine a migration dispute only if it involves a “migration decision”, as defined by s.5 of the Act, in respect of which the High Court has original jurisdiction pursuant to s.75(v) of the Constitution: s.476(1).
Additionally, s.474 of the Act provides that certain “migration decisions” are “privative clause decisions” and may not be reviewed by a court. Because in Plaintiff M61 the High Court was not considering a particular “migration decision” it was not necessary that it consider the privative clause provision in the Act: Plaintiff M61 at 337 [17]. However, because a migration law proceeding in this Court must identify a “migration decision” which attracts the Court’s jurisdiction, such a proceeding necessarily also involves an inquiry into whether the decision under review is a privative clause decision and, if it is, whether it is affected by jurisdictional error. It is only if jurisdictional error is identified that a privative clause decision may be set aside: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
As noted earlier, the applicant seeks an injunction against the Minister, an officer of the Commonwealth, and thus the proceeding is one over which the High Court has original jurisdiction pursuant to s.75(v) of the Constitution. Secondly, as the applicant was in detention at the time of the Reviewer’s inquiry and report, there is no doubt that the latter’s review was of the same statutory character as the ones considered in Plaintiff M61. Further, because the substance of the relief sought by the application is for an injunction to prevent the Minister from making a decision pursuant to ss.46A or 195A, the proceedings concern a future migration decision, albeit one that it is also a privative clause decision of the sort referred to in s.474(2) of the Act: SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26.
The Court therefore has jurisdiction to consider the applicant’s application, although for him to succeed it is necessary that he demonstrate that the potential decision of the Minister would be affected by jurisdictional error. As the basis of the Court’s jurisdiction was not put in issue in the amended application or in the response and was not the subject of submissions, for the purposes of this case I will presume that a finding of future jurisdictional error on the part of the Minister could be based on his assumed reliance on the Reviewer’s recommendation if her review was procedurally unfair or if she failed to conduct the review by reference to correct legal principles correctly applied: see Plaintiff M61 at 354 [78].
For the reasons which follow, I conclude that the applicant has not demonstrated that the Reviewer’s review is affected by error of that nature.

Background facts

The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out on pages 2-19 of those reasons and are relevantly summarised below.

Entry interview

The applicant made the following claims during his entry interview on 20 August 2010:
a)he is a Sunni Muslim;
b)he was born in Kuwait but lived there as a stateless resident (“Bidoon”), as did his family. They were not recognised as Kuwaiti citizens because they were Bidoon;
c)in 1992 his family was expelled from Kuwait. They were granted permission to live in Iraq but were not able to obtain Iraqi citizenship;
d)the situation in Iraq was “getting bad”, particularly for Sunni Bidoons who were easily identifiable by their dress. They could not go out at night;
e)his family owned a mobile phone shop in Iraq. He would open it daily at 9am and at 12pm one of his brothers would replace him. One day, the shop was broken into. They re-opened a month later;
f)about six months after this incident he received a phone call from one of his neighbours asking him why he had left the shop unattended. When he went back to the shop to check, he could not find any sign of his younger brother;
g)his younger brother was returned later that evening, having been kidnapped and beaten. He said that the assailants had come in utes, a vehicle usually used by political groups, and that they were looking for the applicant. Because of this threat, his father closed the shop and moved the family to Basra;
h)the assailants wanted to harm him “because we are Sunnis using the nearby mosque”;
i)he did not want to return to Iraq because he did not feel that it was his home country. He was not entitled to Iraqi citizenship and had no future there; and
j)were he to return to Iraq he would be killed because of his religion. Also, the men who kidnapped his brother would kill him.

RSA application

The applicant provided a statement in support of his application for an RSA in which he made the following additional claims:
a)in June 2008 three men came to the shop while it was being attended by his brother and asked about his whereabouts. When his brother told them that the applicant was not at the shop, they beat him and forced him to go with them;
b)his brother told him that the kidnappers were looking for him (the applicant). He also said that they were Shia and “were against Sunni people”;
c)he ceased operating the shop because he was scared of being kidnapped and harmed;
d)during his detention, the kidnappers forced his brother to identify the family home. Subsequently, their house was watched and they often saw trucks moving past slowly. Men would also knock on their door and ring the bell. When things became too difficult to ignore, they decided to protect themselves by running away;
e)he feared harm in Iraq from political parties. They were against him because he was Sunni and Bidoon; and
f)the authorities would not protect him because he was Bidoon. His rights were routinely denied in Iraq and he could not take any real action against the threats.

Proceedings before the Reviewer

The applicant was interviewed by the Reviewer on 2 April 2011. During that interview, he submitted a letter from the “Sunni Committee in Southern Iraq” which stated that he had been targeted by militia and criminal groups. He also made the following additional claims:
a)his family did reasonably well in Iraq. After the fall of Saddam Hussein trade with Kuwait – where they obtained their stock – became easier and the shop began to flourish. However, the situation in Iraq had become tense and difficult. His siblings were living under threat in Basra and were hiding from the militia;
b)he received ten years of schooling in Iraq. He could not continue with his studies for economic reasons;
c)finding work in Iraq was very difficult because he needed someone to sponsor him and the only jobs available were the ones that no one else wanted to do. His lack of Iraqi citizenship also prevented him from getting better jobs;
d)as a non-citizen in Iraq, he could not own property or obtain a passport and did not have any rights;
e)their shop was burnt down in early 2008, prior to his brother’s kidnapping, and was closed for nearly a month and a half. He did not know if the two events were linked;
f)he did not know why he was being targeted; he was a peaceful person and had never committed any atrocities. It might have been because he was Sunni and/or Bidoon or because he was the main supporter of the family;
g)his brother told him that the kidnappers came to the shop and hit him three or four times. They then took him to a house where, for the next six or seven hours, they just talked and told him that they were after the applicant. Nothing much happened;
h)his family moved to Basra after the kidnapping incident where they lived in hiding. The chief of their suburb, the mukhtar, asked his father for their previous address but his father refused to provide it as he was worried that the mukhtar would pass this information to the groups who were chasing them; and
i)the letter from the Sunni Committee was written at his father’s request. The letter had nothing to do with any particular incident; it was just to show that he was Sunni.

Reviewer’s findings and reasons

After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Reviewer accepted that the applicant was a stateless Bidoon of Sunni religion who was born in Kuwait but habitually resided in Iraq, the country against which his claims were assessed. However, the Reviewer had serious concerns about the applicant’s credibility, the implausibility of his account and his inability to spontaneously engage in a discussion about the alleged events in a manner which would lead her to find that they had occurred. She noted in this connection that the applicant’s account was laboured, marked by many lacunae and the key events he narrated appeared to have occurred in a vacuum. Further, he was not able to reasonably discuss the causes and effects of the events he claimed had occurred.
In particular, the Reviewer noted that the applicant was not able to say with any conviction who the claimed protagonists (i.e. his brother’s assailants) were, referring to them only as Shia/political militia. While the Reviewer conceded that it was plausible that persons could be assaulted without knowing the motivation of the assailants or who they were, in her view there must have been some reason for such an attack and it seemed incongruent that the alleged militia or political groups would not have clearly enunciated to the applicant what they hoped to achieve by persecuting him and why. The Reviewer also noted in this connection that the applicant had not been able to provide a reasonable response to questions about why the militias would want to target him. While he implied that it might have been his Sunni background, he also stated that he did not know why these groups would specifically target him. He said that he did not have a profile of any sort in his community, did not have enemies and was a very peaceful person.
The Reviewer found it implausible that suddenly and for no specific reason the applicant would become the target of Shia or political militia groups simply because he did not go to the mosque to pray and concluded that the applicant had never been targeted for a Convention reason.
The Reviewer stated that her findings in this respect were reinforced by the fact that the applicant was unable to provide a plausible explanation for why his would-be assailants proceeded to kidnap his younger brother for “several days” [sic] even though they were able to obtain their home address from him and could have thereby taken the applicant, the claimed target, instead. Furthermore, the applicant argued that his would-be assailants were driven to find him at all costs and yet, on his account, they appeared to take no real action to apprehend him for reasons that remained unexplained.
Another basis for the Reviewer’s finding that the kidnapping incident did not occur was the applicant’s inability to discuss in a realistic manner the discussions he had had with his brother about what happened while the latter was detained. The applicant claimed that his brother was hit and was taken to a house but could provide no further details about his brother’s circumstances. The Reviewer found it implausible that the applicant would not have been anxious to know about the ordeal that his brother had undergone given that his brother had been taken instead of him. Further, the Reviewer expected the applicant to have been curious about such details, if for no other reason than that the treatment of his brother might have given him some insight into what he might expect in terms of the kidnappers’ plans to abduct or harm him. The Reviewer also found it implausible that the applicant’s brother would have been detained for “seven days” [sic] without a mention of what the Shia/political group were hoping to achieve by persecuting the applicant.

The Reviewer did not accept that the applicant’s family shop had been burnt or broken into for a Convention reason or, indeed, that those events had occurred, noting that:
a)at his RSA interview the applicant claimed that the shop had been broken into on one occasion and then burnt on another. However, in his entry interview he referred only to the former incident and in his RSA submission he had referred to neither;
b)his discussion about the burning of the shop was vague and general and he was not able to discuss realistically what had happened to the shops next door. The Reviewer found it implausible that the applicant would not have consulted with his neighbours given his claim that they took an interest in his business to the point of being concerned when it was unattended; and
c)the applicant did not provide any plausible linkage between these claimed events and the claimed targeting of him by militia groups.
In light of these findings, the Reviewer did not accept that the applicant’s family was hiding in Basra for a Convention reason or, accordingly, that the local Mukhtar had been demanding to know his previous address with the possible intention of letting his claimed persecutors know his whereabouts. The lateness of this claim also detracted from the applicant’s credibility.
The Reviewer placed little weight on the letter from the “Sunni Committee” in Basra, noting that it had been written at the request of the applicant’s father to enhance the applicant’s claims after he had been unsuccessful at the RSA stage. The Reviewer found that the letter was only indicative of what the applicant’s father had asked the Sunni Committee to write and was not based on their own immediate knowledge of the applicant’s circumstances.
The Reviewer did not accept that the applicant would be persecuted in Iraq because of his religion or that he had an adverse profile within the Shia community for any Convention reason.
The Reviewer noted that the applicant made general claims regarding his statelessness and his lack of ability to access services in Iraq, as well as other statements about his younger siblings having had an interrupted education. However, the Reviewer found, based on the applicant’s past experiences, that he and his family had not been subject to deprivations that would amount to serious harm on account of their Sunni religion, Bidoon ethnicity or membership of a particular social group, i.e. stateless Bidoons in Iraq. The Reviewer noted the following in this connection:
a)even were she to accept that the applicant’s family was treated differently in Iraq because they were non-citizens, not all forms of discriminatory treatment amounted to persecution;
b)being stateless and unable to return to one’s country of former habitual residence was not, of itself, sufficient to attract refugee status;
c)the applicant was able to obtain ten years’ schooling without difficulty;
d)in terms of subsistence, his family appeared to have a flourishing business and there was no reason why they would not be in a position to open a new shop in Basra;
e)the applicant had been able to mix in the community by going to school and setting up a profitable business;
f)while lack of citizenship might limit the applicant’s ability to find work that would enable him to advance his status in a significant way, he had not been prevented from working in the past or from earning a living such that he would be unable to subsist. As such, his experiences in finding work that might be considered less secure than that of Iraqi citizens did not constitute serious harm;
g)the inability to own property because one is a stateless person does not of itself amount to serious harm for a Convention reason; and
h)the applicant’s inability to obtain a passport was not specifically because he was Bidoon or Sunni or an undocumented Bidoon, but because his resident status did not permit him to have one.

Proceedings in this Court

The grounds of the amended application were pleaded as follows:
1.The Second Respondent failed to afford the Applicant procedural fairness, in that she:
(a)failed to address one of the claimed bases for the Applicant’s fear of persecution; and
(b)failed to put to the Applicant that, had his brother been held by his kidnappers for “several days” or “seven days”, his brother would have been able to tell the Applicant what his kidnappers had hoped to achieve by threatening the Applicant.
2.In recommending to the First Respondent that the Applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and Protocol, the Second Respondent considered irrelevant material.
3.In recommending to the First Respondent that the Applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and Protocol, the Second Respondent failed to consider relevant material, being an integer of the Applicant’s claims to refute [sic] status.

Applicant’s submissions

The applicant submitted that the Reviewer rejected his claims and found that he had not been targeted for a Convention reason because, at the hearing, he had not been able to posit a plausible theory about why the assailants wished to kill him.
The applicant submitted that the Reviewer came to this conclusion because she found it implausible that, after having been held for “several days” or “seven days”, the applicant’s brother could not tell him why the kidnappers were targeting the applicant. He submitted that the Reviewer erred in doing so because she failed to address the claim which he had actually made, namely, that his brother had been kidnapped and released “later that evening” and thus had only been detained for several hours. The applicant submitted that it had never been part of his claims that his brother had been detained for seven days or several days or for any period longer than a few hours. He submitted that the Reviewer’s error as to the period of his brother’s detention was a key part of her reasoning process.
The applicant submitted that the Reviewer did not make a mere typographical error in her written reasons but had, instead, misremembered the evidence before her. He conceded that in her summary of the applicant’s claims the Reviewer had correctly recorded that the applicant had said that his brother had been released on the evening of the day of his kidnapping. However, in that part of her decision headed “Findings and Reasons”, which the applicant submitted revealed the Reviewer’s reasoning processes, all of the Reviewer’s references to this issue contained the error as to the timeframe. In para.141 the Reviewer stated:
… the claimant was unable to provide a plausible explanation as to why his would-be assailants proceeded to kidnap the claimant’s younger brother for several days …
Then, in para.143, the Reviewer said:
I also find it implausible that his brother would have been detained for seven days without a mention of what the Shia/political group were aiming to achieve by persecuting the claimant. I therefore reject the claimant’s claims in relation to his brother ever having been kidnapped and detained for seven days.
The applicant submitted that the Court could not be confident that the Reviewer had made a typographical error because the error appeared three times in two separate paragraphs and in two different word forms, both of which referred to the relevant timeframe in terms of days, not hours. The applicant also referred to the affidavit of Justine Conaty affirmed 8 February 2012 which annexed a copy of the Reviewer’s decision and a covering letter addressed to the applicant. He submitted that that version of the Reviewer’s decision was different from the version reproduced in the Court Book in that the latter contained an additional paragraph citing country information. Both versions were signed and dated 26 August 2011. The applicant submitted that it could be inferred that the Reviewer had read and revised her reasons at least once after signing them and read them sufficiently closely that she decided to add or subtract the paragraph on country information. He submitted that, having taken the trouble to revise her decision, the Reviewer did not correct any of the identified errors in the critical “Findings and Reasons” section of her decision. The applicant submitted that the preponderance of the evidence indicated that the Reviewer had misremembered the evidence and thus failed to consider the claims the applicant actually made and instead considered a claim he did not make.
The applicant submitted that because of the temporal nature of the argument used by the Reviewer it was not impossible that she might have come to a different decision had she realised that the applicant’s brother had been held “for one twenty-fourth as long as she had thought”. The applicant submitted that the Reviewer “got the period of detention wrong by an order of magnitude” and that this may have deprived him of the possibility of a successful outcome.
The applicant also submitted that the Reviewer never put to him the proposition that, since his brother had been held by the kidnappers for “several days” or “seven days”, he would have been able give a better account of why the kidnappers were targeting him. The applicant submitted that the Reviewer was obliged to give him a reasonable opportunity to comment on information which was adverse to his case.

Minister’s submissions

The Minister conceded that the applicant had alleged that his brother’s abduction had only been a matter of hours. He submitted that the Reviewer was wholly aware of this time period and that the reference to days in her decision was a mere typographical error. He submitted that this was apparent from paras.49, 53, 59 and 61 of the Reviewer’s decision where, in her summary of the applicant’s claims and evidence, she made extensive reference to the correct period.
The Minister also submitted that nowhere in the transcript of the interview was the Reviewer recorded as using the words “several days” or “seven days”. He submitted that the Reviewer’s intended meaning was clear, namely, that the abduction was a matter of hours, not days. The Minister submitted that the Reviewer’s reasons made perfect sense and were completely plausible if the references to days were read as if they were intended as references to hours. He submitted that it was this timeframe which, in truth, grounded the Reviewer’s findings as to the implausibility of the central claim that the applicant’s brother had not been kidnapped. He submitted that the typographical error did not constitute jurisdictional error in the circumstances.
The Minister submitted that, in any event, on the material provided by the applicant there was no possibility of a different outcome and any error was therefore inconsequential. He submitted that the applicant had elevated the importance of the misstated timeframe in the Reviewer’s reasons when it was plain that there were a number of reasons for that recommendation. The Minister submitted that those reasons would stand regardless of the supposed misapprehension as to time.

Consideration

Relevant and irrelevant considerations

The applicant’s allegations that the Reviewer took irrelevant considerations into account and failed to take relevant considerations into account are, in essence, an allegation that the Reviewer reached conclusions based on a fallacious understanding of the evidence and that this amounted to jurisdictional error.
A Reviewer must consider an applicant’s claims in light of the facts as disclosed by the evidence in the Reviewer’s possession at the time of deciding whether he or she is satisfied that the applicant meets the criteria for the grant of a protection visa. If the Reviewer fails to consider evidence which might have a bearing on the outcome of the review, in that the evidence is not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. However, an error of fact will not generally ground judicial review and, even if amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome of a review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53], 20 [63].
The manner of the Reviewer’s expression of her reasons for her recommendation satisfies me that she did intend to refer to periods of days rather than hours and I do not accept the Minister’s submissions that the references to days was only a typing error. Although I accept that a Reviewer’s reasons should not be scrutinised with an eye keenly attuned to the perception of error I also accept the applicant’s submissions that the Reviewer’s comments concerning his response to his brother’s alleged abduction make more sense when the length of that abduction is expressed to be a period of days rather than hours. Moreover, having first made the error in para.141 of her reasons the Reviewer went on to repeat it twice in para.143 and then reinforced it by reissuing a second version of her reasons in relevantly identical terms. I think the Reviewer must be taken to have meant what she said.
However, although the Reviewer’s error is a large one in terms of the time periods involved, it does not appear to me to have had any significance for her ultimate conclusion or her recommendation. In this regard, the comments in para.141 were expressed to be only reinforcement of conclusions expressed in preceding paragraphs, in particular paras.139 and 140. It is apparent that the Reviewer would have reached those conclusions even if she had not mistaken the length of his brother’s abduction. Similarly, the incorrect reference to “seven days” in para.143 supported a conclusion which was expressed in that sentence but which was no more than supplementary and effectively irrelevant to the substantive conclusion reached earlier in that paragraph, namely that the Reviewer did not accept that the alleged abduction had occurred because the applicant had not been able to discuss in a realistic way with her his own discussions with his brother about what had happened to him. The reference to the length of the abduction was introduced, presumably for completeness, in the second last sentence of the paragraph but by that point the conclusion that the story of the abduction was not to be accepted already stood on other foundations.
It is apparent that the Reviewer did mistake the evidence when she came to make her recommendation and to express her reasons for that recommendation. However, I do not find that it was a mistake which was of any consequence to the outcome of the review or which deprived the applicant of the possibility of a successful outcome to his request for an independent merits review. As such it was not a mistake which caused the review to be affected by jurisdictional error.

Denial of procedural fairness

The applicant submitted that the question of his brother having been abducted for a period of days was material which in fairness should have been put to him so that he could address it with further evidence and submissions. However, this argument proceeds on a false footing because a mistaken appreciation of the evidence does not amount to information or material which procedural fairness requires be advised to a person likely to be affected by an administrative decision. But even if the mistaken fact recited in the Reviewer’s reasons is to be considered material which was credible and relevant and ordinarily ought to have been advised to the applicant, if the notional information which it represented could have had no bearing on the outcome of the review then any failure to provide it to him would not amount to a denial of procedural fairness. In this case, for the reasons already given, namely that her conclusions were reached without reliance on the mistaken fact, I am not of the view that the correction of the Reviewer’s mistake could have had any bearing on those conclusions. Consequently, even if the mistaken fact should be considered information, procedural fairness did not require the Reviewer to put or provide it to the applicant.

Conclusion

Jurisdictional error on the part of the Reviewer has not been demonstrated
Consequently, the application will be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 15 March 2012