SZQWE v Minister for Immigration
[2012] FMCA 292
•17 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 292 |
| MIGRATION – Application to restrain the Minister from relying upon a report and recommendation of an Independent Merits Reviewer in respect of an offshore entry person – applicant claiming racial, political and particular social group persecution in Sri Lanka – Reviewer finding that the applicant’s fear was not well-founded – whether the hearing conducted by the Reviewer was fair because part of it was not interpreted considered – whether the Reviewer overlooked relevant material considered. |
| Migration Act 1958 (Cth), ss.5, 36, 46A, 474, 476 |
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Chen v Minister for Immigration [2011] FCAFC 56
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration v SZNPG (2010) 115 ALD 303
Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323
MZLYF v Minister for Immigration & Anor [2011] FMCA 621
Minister for Immigration v MZYLF (No 2) [2011] FCA 1468
| MZYPE v Minister for Immigration & Anor [2011] FMCA 973 NAHI v Minister for Immigration [2004] FCAFC 10 Perera v Minister for Immigration (1999) 92 FCR 6 Plaintiff M61/2010E & Anor v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133 Singh v Minister for Immigration [2001] FCA 73; (2001) 183 ALR 531 SZEHN v Minister for Immigration [2005] FCA 1389 SZOZU v Minister for Immigration [2011] FCA 1005 SZQRW v Minister for Immigration & Anor [2012] FMCA 191 WACO v Minister for Immigration (2003) 131 FCR 511 |
| Applicant: | SZQWE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2654 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 11 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms G Wilkinson |
| Solicitors for the Applicant: | Rodney Lewis |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The amended application filed on 1 March 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2654 of 2011
| SZQWE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER GACS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to restrain the Minister from relying upon a report and recommendation of an Independent Merits Reviewer (“the Reviewer”) in respect of the protection claims of an offshore entry person. The report is dated 6 October 2011. The Reviewer found that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”). The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Protocol.
The Reviewer’s report and recommendation was notified to the applicant by letter dated 10 October 2011. The present judicial review proceedings were commenced on 21 November 2011. The parties agree that no issue of a need for an extension of time for the application arises[1].
[1] SZQDZ v Minister for Immigration [2012] FCAFC 26
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Tamil and a national of Sri Lanka[2].
[2] Court Book (CB) 2
The applicant was born in 1978 in the village of Inuvil in Jaffna[3]. The applicant lived and worked in Sri Lanka until 2005 when he moved to Saudi Arabia[4]. The applicant worked in Saudi Arabia until 2006 when he returned to Sri Lanka[5]. The applicant went to India in 2007 and lived there in a refugee camp until April 2010 when he departed for Australia[6].
[3] CB 2
[4] CB 2
[5] CB 2, CB 19
[6] CB 2
The applicant married his wife in 2007 and has three children[7]. The applicant’s wife and children remain in India[8].
[7] CB 4, CB 16
[8] CB 4
The applicant asserts that while he lived in Sri Lanka he was detained by the army and denied state protection on one occasion, and he was detained by the police and denied state protection on a further occasion[9].
[9] CB 21, CB 32, CB 33
The applicant arrived in Australia and was taken to Christmas Island on 11 May 2010[10]. An entry interview was conducted on 28 May 2010[11].
[10] CB 1
[11] CB 2-34
On 8 August 2010 the applicant made a request for a Refugee Status Assessment (RSA)[12]. On 27 September 2010 the applicant was notified that he had been assessed as not meeting the Convention definition of a refugee[13]. On 10 October 2010 the claimant applied for an Independent Merits Review (IMR)[14].
[12] CB 35-77
[13] CB 89-102
[14] CB 103-104
The applicant claims that he fears persecution for reason of race, imputed political opinion and membership of a particular social group[15].
[15] CB 36-38; CB 108-116
The applicant claimed to fear harm in Sri Lanka for reason of his Tamil race, imputed pro-LTTE political opinion and membership of an alleged social group of failed asylum seekers returned to Sri Lanka. He claimed he had been arrested and detained by the army for two days in 2001, and questioned in 2006. He lived in India since 2007[16]. The Reviewer found the arrest and questioning of the applicant was routine, that he was released after denying he was involved with the LTTE, and concluded that he was not suspected of having LTTE links[17]. The Reviewer rejected a “generic” submission that all Tamils from the north of Sri Lanka are suspected of having LTTE links[18]. The Reviewer rejected the applicant’s claim to fear harm as a failed asylum seeker, finding that there was no real chance of this occurring[19]. The Reviewer also rejected a claim that the applicant would express anti-government political opinions in future and be persecuted for this reason[20]. Accordingly the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
[16] See generally CB 137-145
[17] CB 147 [84], CB 147-148 [87]-[88]
[18] CB 147 [84]-[86]
[19] CB 148-149 [89]-[93]
[20] CB 149-150 [94]-[97]
On 6 October 2011 the Reviewer’s decision was published, recommending that the applicant does not have a well-founded fear of persecution for any Convention reason[21].
[21] CB151
The present application
The applicant relies upon an amended application filed on 1 March 2012. There are three grounds in that application:
That the decision of the Independent Merit Reviewer (Reviewer), was affected by legal error in that:
Grounds of Review
1. In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to observe the requirements of procedural fairness by reason that he failed to provide an adequate interpreting service, so that the recommendation was not made in accordance with law.
Particulars
The second respondent directed the translator not to translate a significant part of the interview, comprising a discussion between the decision maker and the applicant’s legal adviser.
2. In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to assess all relevant evidence in applying the real chance test, so that the recommendation was not made in accordance with law.
Particulars
The second respondent failed to take into account material that is credible, relevant and up to date in failing to take into account material attached to an email dated about 31 May 2011 from the applicant’s agent to the first respondent, including a media article entitled “Re-examine claimed safety of refugee returnees, AI appeals to Australia” dated 3 September 2010.
3. In recommending to the first respondent that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent failed to deal with an essential integer of the applicant’s claims and make requisite findings of fact, being whether the applicant’s detention by the army was for a Convention-based reason.
Ground 3 was not pressed.
I received as evidence the court book filed on 18 January 2012 as well as the affidavit of Rodney Selwyn Lewis made on 29 March 2012, to which is annexed a transcript of a hearing conducted by the Reviewer on 6 October 2011.
The applicant contends that the Reviewer failed to provide an adequate interpreting service at the hearing he conducted and, secondly, that the Reviewer failed to assess all relevant evidence in considering whether the applicant faced a real chance of persecution in Sri Lanka, so that his recommendation was not made in accordance with law.
The Minister contends that the Reviewer did not fall into error. In relation to the first ground, the Minister contends that there was no inadequacy in the interpretation at the hearing. What occurred was that the Reviewer had a conversation on a legal issue with the applicant’s advisor which was not interpreted following the agreement by the applicant to that course. Secondly, the Minister notes that the second ground focuses on an alleged failure to take into account a media report[22]. The Minister contends that there is no basis to conclude that the report was overlooked and that, even if it had been, overlooking an item of evidence (as opposed to an element or integer of the claim) would not be a legal error.
[22] at CB 122
Reasoning
I accept the applicant’s submissions concerning the general principles to be applied to his case.
The applicant invokes the jurisdiction of the Court pursuant to s.476 of the Migration Act.
For the purposes of s.5(1) of the Migration Act, the applicant is an “offshore entry person”(OEP) because he:
a)entered Australia at an excised offshore place (Christmas Island) after the excision time for that offshore place; and
b)became an unlawful non-citizen because of that entry.
The effect of being categorised as an OEP means the applicant is an unlawful non-citizen, and is precluded from making a valid application for any visa as a result of s.46A of the Migration Act (subject to a limited “public interest” exception).
Section 46A of the Migration Act provides that:
(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.
(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned--the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.
(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.
In order to assess whether OEPs may have a claim by which they might otherwise be owed protection obligations under the Convention (for the purpose of making a recommendation to the Minister) the Minister established a claims processing system for claimants known as the RSA. The Commonwealth also established a process by which OEPs could seek an independent merits review of recommendations (IMR) made under the initial RSA process.
The lawfulness of the process was reviewed by the High Court in Plaintiff M61/2010E & Anor v Commonwealth of Australia.[23]
[23] (2010) 243 CLR 319; [2010] HCA 41 (Plaintiff M61)
An analysis of the impact of the principles laid down by the High Court in Plaintiff M61 is concisely set out in MZYLF v Minister for Immigration & Anor[24] as follows:
[24] [2011] FMCA 621 (MZYLF). This aspect of the Court’s reasoning was not disturbed on appeal: Minister for Immigration v MZYLF (No 2) [2011] FCA 1468
8. In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 the High Court identified the purpose of the refugee status assessment processes, saying:
[41] The purpose of the RSA process was described in the RSA Manual as being "so that the Minister ... can be advised whether Australia's protection obligations under the Refugees Convention are engaged". It was said that "[c]onsideration of the exercise of the Minister's power under s 46A to allow a visa application to be made will occur following assessment of protection obligations as outlined in this manual".
9. Importantly, if the refugee status assessment process was favourable to an applicant, the Department would make a submission to the Minister “advising the Minister that Australia’s protection obligations are engaged and seeking his/her agreement to lift the bar under s.46A of the Act” (see paragraph [44]). The Independent Merits Reviewer process was a review system in place with respect to the refugee status assessment.
10. The fact that the Independent Merits Reviewer is not an officer of the Commonwealth resulted in the conclusion (at paragraph [51]):
...that a claim for mandamus, prohibition or injunction against those persons would not, standing alone, found the original jurisdiction of this Court under s 75(v) of the Constitution.
11. The High Court continued (at paragraph [51]) stating that:
The jurisdiction of the court is found in section 75(iii) (as matters in which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party), section 75(v) (as matters in which mandamus and injunction are sought against the Minister and either a departmental officer or the Secretary of the Department – all officers of the Commonwealth) and even, perhaps, section 75(i) (as matters arising under any treaty – the Refugees Convention and the Refugees Protocol).
12. The Federal Magistrates Court has, with respect to migration decisions, the same original jurisdiction as the High Court has under s.75(v) of the Constitution: see s.476(1) of the Migration Act. This is a case where the applicant seeks not only a declaration, but also an injunction restraining the Minister, by himself or his department, officers, delegates or agents from relying upon the Independent Merits Reviewer’s recommendation, however for the same reasons as set out in M61/2010E it appears that a declaration is sufficient relief. All the parties agreed that this Court had jurisdiction in the matter.
13. Once it is accepted that this Court has jurisdiction as a result of s.476(1) of the Migration Act in like breadth to the original jurisdiction of the High Court under s.75(v), the effect of the provisions of the Federal Magistrates Act 1999 giving accrued and associated jurisdiction would result, in this particular matter, in the court having accrued and associated jurisdiction of like breadth under ss.75(i) and 75(iii) of the Constitution. As a result I conclude that the Federal Magistrates Court has, in this particular matter, the same breadth of jurisdiction that the High Court was able to exercise in M61/2010E.
14. In Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 (at paragraph [77]) the High Court made clear that:
...it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions.
15. The High Court went on to state:
The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power [either under section 46A or section 195A] will be exercised.
16. The consequence is that the independent merits review process was a step taken to inform the Minister’s considerations in determining whether or not to exercise the statutory power (see paragraph [78]).
17. The practical result is that:
78. ... Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.
As a result of Plaintiff M61, as applied in the Full Federal Court in SZQDZ and in this Court in MZYLF, it is clear that the privative clause criteria contained in s.474 of the Migration Act do not apply to the process of the assessment of OEPs’ claims by the RSA and the IMR systems[25].
[25] Plaintiff M61 CLR at 353-354 and 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.78 and 91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
As a result of the principles set out in Plaintiff M61, this application involves the application of common law principles of procedural fairness and “not those that have been refined and attenuated under the various and many amendments to the Migration Act”[26]. Thus, the Reviewer in considering whether to make a recommendation as to whether or not an applicant is a person to whom Australia has protection obligations under the Convention, is required to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
[26] SZOZU v Minister for Immigration & Citizenship & Anor [2011] FCA 1005 Rares J at [3]
Alleged failure to provide an adequate interpreting service
The first ground of review provides that in recommending to the Minister that the applicant not be recognised as a person to whom Australia owed protection obligations, the Reviewer failed to observe the requirements of procedural fairness by reason that he failed to provide an adequate interpreting service, so that the recommendation was not made in accordance with law.
A translation service was provided to the applicant for the majority of the interview. However, during the interview the Reviewer suggested that the translator stop translation of the interview[27]. He asked the applicant for permission to stop the translation and that the legal adviser could explain what she had discussed with the decision maker later[28].
[27] Transcript (“T”) pages 13-14
[28] T, page 14, lines 22-36
The Reviewer then had a substantial discussion with the legal adviser of the applicant about the process of returning asylum seekers to Sri Lanka, the treatment of returned asylum seekers to Sri Lanka and the applicant’s membership of the social group of failed Tamil asylum seekers who have been involuntarily returned to Sri Lanka[29]. This discussion was not translated.
[29] T, pages 15-18
After that discussion occurred, and translation began again, the Reviewer told the applicant: “[Your adviser] answered my question but in very technical terms and so I think it would be better for you if she explains to you afterwards, if she gives you a summary of what she just told me.”[30]
[30] T, page 18, lines 38-40
The Reviewer then had a discussion with the applicant regarding the treatment of returned asylum seekers to Sri Lanka. The substance of that discussion was that the Reviewer cited a number of pieces of country information in relation to the treatment of returned asylum seekers. At one point the applicant attempted to make a comment and the Reviewer told the applicant “[J]ust let me read a little bit more and then I’ll invite you to make a comment.” A further piece of country information was then cited[31].
[31] T, page 20, line 32
The translator translated the applicant’s response as “[W]ell he cannot come go back because he is very afraid and he’s afraid of himself what will happen to him and also that he’ll not be able to live with his family probably and he does not accept what the government is doing to the Tamils….Anything could happened and he cannot go back and do..”[32]
[32] T, page 21, lines 1-4
A key element of procedural fairness is the principle that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision maker. When conducting an investigation in relation to a complaint it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations[33]. The Minister concedes that errors in interpretation that effectively prevent an applicant giving evidence, or are material to conclusions adverse to an applicant, may constitute a denial of a fair hearing[34]. The Minister contends, however, that, as is apparent from Appellant P119/2002 and WACO v Minister for Immigration[35], errors in interpretation that do not have this effect are unlikely to constitute a denial of a fair hearing.
[33] MZYPE v Minister for Immigration & Anor [2011] FMCA 973 (20 December 2011) at [11]
[34] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]-[18]
[35] (2003) 131 FCR 511 at [66]-[69]
The difficulty with the ground is that it does not identify any errors in interpretation, but rather an approach whereby the Reviewer first asked whether discussion of the meaning of a particular social group with the applicant’s adviser could be explained to him later by the adviser[36]. Both the applicant and the adviser agreed[37]. Given this explicit agreement with the procedure suggested it is difficult to see how there can be a breach of procedural fairness. The applicant’s submissions rely on Perera v Minister for Immigration[38], but Perera was a case where the interpretation provided was manifestly inadequate and effectively prevented the applicant from presenting his case[39]. There is no evidence in this case that there was any error in interpretation, let alone that the applicant was effectively prevented from presenting his case.
[36] T, page 14, lines 22-23, 33-34
[37] T, page 14, lines 36-39
[38] (1999) 92 FCR 6 (Kenny J)
[39] Perera at [38]-[50]
The applicant’s submissions[40] assert that it should be inferred from the “confused and non-responsive” response of the applicant[41] that there was some error in interpretation. I reject that contention. The applicant’s response is responsive and coherent in that he plainly disagreed with the position put to him that he is not at risk of persecution. The country information the Reviewer referred to was translated to him, as the transcript indicates[42]. All that was not interpreted was some legal discussion about the meaning of a particular social group, a procedure which both the applicant and his adviser expressly agreed to. The Reviewer had no basis to think that the applicant’s adviser would not explain this part of the interview to the applicant later, as she said she would (and there is no evidence that she did not). If the process occasioned some unfairness to the applicant then it might reasonably be expected that neither he or his adviser would have agreed to it, or they would subsequently have told the Reviewer that they no longer agreed. The suggestion in the applicant’s submissions that there must have been unfairness simply from the applicant’s response to the country information read to him by the Reviewer has no logical connection to the interruption of interpretation. The first ground fails.
[40] at [41]
[41] at T, page 21, lines 1-4 and page 22, lines 5-13
[42] T, pages 19-20. The applicant was evidently listening to the translation as he initiated a wish to comment, through the interpreter at T, page 20, line 31
Failure to assess relevant evidence
The second ground of review asserts that in recommending to the Minister that the applicant not be recognised as a person to whom Australia owed protection obligations, the Reviewer failed to assess all relevant evidence in applying the real chance test, so that the recommendation was not made in accordance with law. The relevant application of the real chance test was in relation to the Reviewer’s determination that failed asylum seekers returned involuntary to Sri Lanka do not face a real chance of Convention based harm[43].
[43] [93] CB 149
In Yusuf, the High Court determined that for a tribunal to ignore relevant material in a way that affects the exercise of power is to make an error of law which constitutes jurisdictional error[44]. Relevant material is evidence before the tribunal at the time that the decision is made[45]. Such evidence, if accepted, should be capable of leading the Tribunal to make a different finding of fact[46] and should not be “so insignificant that the failure to take it into account could not have materially affected the decision.”[47] These principles have been applied in relation to decisions in relation to proceedings concerning IMR and I accept that they should be applied in the present proceedings[48].
[44] Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82]
[45] Singh v Minister for Immigration [2001] FCA 73; (2001) 183 ALR 531 at 542 [49]
[46] SZEHN v Minister for Immigration [2005] FCA 1389 at [72]
[47] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71
[48] SZQRW v Minister for Immigration & Anor [2012] FMCA 191 at [38].
The applicant contends that, in his consideration of the applicant’s claim for protection as a member of the particular social group of returned asylum seekers, the Reviewer did not refer to material attached to an email dated about 31 May 2011 from the applicant’s agent to the Reviewer, including a media article entitled “Re Examine Claimed Safety of Refugees, AI appeals to Australia” dated 3 September 2010[49] at the hearing or in his report and recommendation. The applicant contends that it can be inferred from the date of the email and the fact that the email is contained in the court book that the article was before the Reviewer at the time he completed his report and recommendation.
[49] CB 122
I agree with the Minister’s submission that the second ground fails at an evidentiary level. The Reviewer may have referred to the article at CB 139[50] where he refers to “several media reports about human rights violations by the Sri Lankan government”. I do not accept the applicant’s submission that the Court should infer from the lack of express reference to the article by the Reviewer that he overlooked it. The mere fact that the Reviewer ultimately concluded that the applicant’s claims to fear harm as a failed asylum seeker were not well-founded certainly does not support such an inference. The Reviewer states at CB 148[51] that he has considered the applicant’s evidence on that issue “and that submitted on his behalf” which logically ought to include the report at CB 122. I prefer the submission of the Minister that, ultimately, the Reviewer preferred the views of the independent country information on the issue to that relied upon by the applicant[52]. The choice and interpretation of country information is a factual matter for the Reviewer[53]. I reject the contention that the Court should conclude from the available material that the report at CB 122 was overlooked.
[50] at [35] of his report and recommendation
[51] [90] of the report and recommendation
[52] CB 148 at [91]-[92]
[53] NAHI v Minister for Immigration (2004) FCAFC 10 at [11]-[13]
Further, even if the report had been overlooked, there is force in the Minister’s submission that this would not constitute a reviewable legal error in the circumstances of this case.
A failure by the Reviewer to consider a claim will be a legal error; a failure to have regard to particular evidence in support of a claim will generally not, so long as the claim itself is addressed[54]. Here the claim to fear harm as a failed asylum seeker was clearly addressed, and the report at CB 122 is no more than an item of evidence in support of that claim.
[54] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 (FCAFC) at [46]-[47]; Minister for Immigration v SZNPG (2010) 115 ALD 303 (FCAFC) at [28] per North and Lander JJ; Chen v Minister for Immigration [2011] FCAFC 56 at [51]
Consistently with my observations at [38] above, I do not rule out the possibility that an item of evidence may weigh so heavily in one direction or another that it might be determinative of an issue and hence a failure to take an item of evidence into account may constitute a reviewable legal error. Here, however, there was an abundance of material available to the Reviewer both for and against the conclusion reached by the Reviewer and the report at CB 122 could not have been determinative of the issue of whether the applicant had a well-founded fear of harm in Sri Lanka as a failed asylum seeker returning involuntarily to Sri Lanka.
I conclude that the applicant has failed to establish a case of legal error by the Reviewer. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 17 May 2012
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