SZQYW v Minister for Immigration
[2012] FMCA 444
•30 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQYW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 444 |
| 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. ADMINISTRATIVE LAW – Allegation that the Reviewer denied the applicant procedural fairness by not advising him of information relevant to review and by failing to address one of his claims. |
| Migration Act 1958, ss.5, 36, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 Kioa v West (1985) 159 CLR 550 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZQNO v Minister for Immigration & Citizenship [2012] FCA 326 SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZQYW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | L M BLACKLOW IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2890 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 April 2012 |
| Date of Last Submission: | 4 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.F. Gormly |
| Solicitors for the Applicant: | KTG Lawyers |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2890 of 2011
| SZQYW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| L M BLACKLOW IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan who arrived at Christmas Island by boat on 30 April 2010. He lodged an application for a Refugee Status Assessment (“RSA”) on 8 October 2010 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 17 January 2011 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 “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 10 November 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 detention at the time of the RSA and the subsequent review.
The applicant had no visa when he entered Australia at Christmas Island and so he is an “offshore entry person” as defined by s.5(1) of the Migration Act 1958 (“Act”) who cannot make a valid application for a protection visa. Nevertheless, ss.46A and 195A of the Act provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings 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 M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: see SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
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 were set out on pages 3 to 8 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 12 May 2010:
a)he owned a shop in Ghazni selling stationary items and books including “books about Jesus”;
b)each year the Kuchis visited his home area where he had a farm. When he asked them to stop, they hit him with stones and sticks;
c)one of the Kuchis who beat him passed by his shop in Ghazni and recognised him. The Kuchi man was accompanied by a bearded man in a turban. The two of them returned to the shop two or three days later. The Kuchi man said that the applicant was selling English books and supporting the government. They accused him of being a Christian and of supporting Christianity and he was warned and told to stop selling the books. The man with the turban shouted and swore at him saying that his punishment for selling the books would be death;
d)he told his family what happened and they advised him to sell the shop;
e)about fifteen days later the man with the turban returned to the shop and asked him why he had not left the area. The man held a pistol to the applicant’s chest and said he would “fix” him that night. He left the shop that night, went to a hotel and then travelled to Pakistan; and
f)the same Kuchis who were active around his village were also active where he lived in Pakistan. A Baluch man and a Taliban member went to his house in Pakistan and asked for him by name but he was not at home. He thought that someone had followed him home from the bazaar.
RSA application
In a statutory declaration declared on 8 October 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)he was born in a village in the Jaghori district of Ghazni Province in Afghanistan and was a Hazara Shia;
b)the Kuchi forcibly grazed their stock on his land and he ended up being beaten;
c)when the Kuchi and the bearded man returned to his shop for the second time they had guns and he ran away;
d)he lived illegally in Pakistan. One day a Baluch and a Taliban man came to his house so he moved his family the next day as he felt scared;
e)he returned to Kabul because the people smuggler said that it would be better for him to leave from there than from Pakistan; and
f)if he returned to Afghanistan he would be killed, harmed or mistreated by the Taliban, Kuchi, Baluch and Al Qaeda. He had no family or support in Kabul.
Proceedings before the Reviewer
Prior to the applicant’s interview with the Reviewer, his representatives sent an undated submission to the Reviewer. It was said that the applicant’s fear of persecution was based on his Hazara ethnicity and Shia religion and that the Taliban and Kuchi had persecuted him because they believed that he supported the promotion of Christianity. The submission also said that until it was brought to his attention by the Kuchis and Taliban who came to harass him, the applicant was unaware that the book about Jesus was in his shop. It was submitted that the government could not protect the applicant and that relocation would be unsuitable.
The applicant was interviewed by the Reviewer on 4 September 2011 at which point he made the following additional claims:
a)the book about Jesus had been in his shop since he bought the shop but he had never used it and no one had asked for it. He had not known that the Kuchi or Taliban would come and find it;
b)on the first visit, the bearded man said that the applicant was a Shia infidel, beat him and threatened to kill him. He screamed and shouted and they left. The bearded man had said “according to our law you are a Shia and an infidel”. He did not identify himself as Taliban but had said that “according to Taliban law” the applicant was an infidel and that his possession of the book proved it;
c)when the Kuchi man visited his shop the second time, he was accompanied by two other men. He only saw one pistol but the others must have had guns too. They were there to kill him but he shouted and screamed and ran out of the shop. The next morning he went to Pakistan;
d)even if he returned to his farm the Taliban could kill him as they were powerful and worked for the government. He could not relocate elsewhere in Afghanistan because the Taliban had taken a photo of him and they knew everything about him; and
e)the Kuchi, Taliban and Al Qaeda were all the same. They were all terrorists.
The applicant’s agent submitted that the applicant had committed apostasy by having a Christian book and that his claim was for “imputed religion” given that he had not actually preached Christianity.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa 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. That recommendation was based on the following findings and reasons:
a)the Reviewer referred, among other information, to a United States State Department Country Reports on Human Rights Practices - Afghanistan and to the United Nations (“UN”) Secretary General’s Report of December 2009 and accepted that there had been a deterioration of the security situation in Afghanistan in 2009 and 2010. However, he found that whilst the applicant’s agent’s submissions relied on various reports in relation to increases in violence and lawlessness in that period, when other relevant information was taken into account they did not support a finding that there was a general and systematic persecution of Hazaras in Afghanistan. After referring to further country information the Reviewer accepted that many Hazara and Shia had been intimidated, beaten and killed by the Taliban but did not conclude that they had been targeted on a systematic basis because they were Hazara and/or Shia. The Reviewer thus did not accept that a person’s identity as a Hazara Shia was sufficient of itself for such a person to have a well-founded fear of persecution for reasons of their ethnicity or religion;
b)the Reviewer accepted that the applicant had a bookshop in Ghazni city but did not find elements of the applicant’s accounts of the confrontations he alleged had happened there to be credible. In this regard:
i)the Reviewer found that it was possible, although unlikely, that the Kuchi who assaulted the applicant at his farm was the same Kuchi who recognised him in his bookshop;
ii)the Reviewer noted that the applicant’s agent stated in submissions that the applicant had been unaware that the book about Jesus was in his shop until it was brought to his attention by the Kuchi and Talibs, which was at odds with the applicant’s evidence at his review interview that he had known that the book was in his shop and that it had been there since he purchased the shop;
iii)the Reviewer concluded that the applicant was concocting a story about armed men visiting his shop. This was because of the Reviewer’s impression that at the review interview the applicant had forgotten that he previously mentioned that persons with guns had visited his shop. The applicant’s presumption that the other men who visited his shop must also have had guns, even though he did not see them, added to the Reviewer’s concern that the applicant was fabricating the story of the visits to his shop and the confrontations he said occurred;
iv)the applicant did not mention until his review interview that his photo had been taken by the men who visited his shop. Whilst accepting that the applicant might have forgotten to mention this aspect of his claims at his entry interview, the Reviewer did not find it credible that he would have omitted to mention it at all the other stages of his application. The Reviewer found this aspect of the applicant’s evidence to be an embellishment concocted to bolster his claims;
v)the Reviewer found that the applicant had included Al Qaeda in his statutory declaration in another attempt to bolster his claims, noting that he had not mentioned it in his initial interview and had only mentioned it during his RSA application in relation to fearing harm in Pakistan;
vi)the Reviewer found it difficult to appreciate the applicant’s response that he knew he had the book but did not expect anyone to come into his shop and find it. The Reviewer found that if the applicant had had the book, he would have known the risk of keeping it on his shelves; and
vii)the Reviewer noted that it was only after repeated questioning that the applicant said that the bearded man had said that such a book was against Taliban law. The Reviewer concluded that the applicant added this only to try to establish that the bearded man was Taliban. The Reviewer also said that the applicant’s account of his escapes was not believable, especially the account of his second escape given that he said he was confronted with three men, one of whom had a gun;
c)the inconsistencies between the applicant’s initial interview, his statutory declaration, the RSA report and the review interview and the implausibilities in his evidence led the Reviewer to conclude that the applicant had fabricated a story upon which to base a claim of persecution. The Reviewer found that the applicant did not have a Christian book about Jesus in his shop and was not visited by persons who accused him of being an infidel or a Christian. Having made those findings, the Reviewer did not accept that the Taliban knew of the applicant or his shop or that an encounter where a gun was pointed at his chest actually occurred;
d)the Reviewer accepted that the applicant was a farmer in his village, that the Kuchi visited his area regularly for many years and that he may have been beaten by them on one occasion when he protested about them grazing their stock on his land. After referring to a Department of Foreign Affairs report of 21 February 2010 and to the UN Guidelines, the Reviewer found that such conflicts as there had been between the applicant and nomadic Kuchis were about access to grazing land. The Reviewer thus found that any harm which the applicant might face from the Kuchis would not be for a Convention reason; and
e)as the Reviewer found that the applicant had not come to the attention of the Taliban, he gave no weight to the assertion that the applicant’s return would confirm the Taliban’s belief that he was an infidel. The Reviewer noted that there were reports of deaths of returnees to Afghanistan but none of the instances he was aware of indicated that the victims were harmed on the basis of an adverse view of them because they had been overseas or in Australia. The Reviewer further noted that it seemed that the victims had been targeted in relation to the matters which had led them to flee Afghanistan in the first place. The Reviewer did not find that the applicant would be seen as an infidel were he to return to Afghanistan from Australia and did not find that the applicant had a well-founded fear of persecution on the basis of his return from a Christian country.
Proceedings in this Court
In the amended application the applicant alleged:
1.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information which was credible, relevant and significant and from which the reviewer drew conclusions adverse to the applicant’s claims.
Particulars
· The information is of the reasons for those “instances” of harm, “deaths of returnees to Afghanistan” and “targeting” of returned asylum seekers from Western countries including Australia referred in IMR [48].
· The information was used decisively in relation to the applicant’s claims relating to his fear of persecution as a returned failed asylum seeker from a Christian country.
· The substance of the information relied on by the reviewer was that “in most instances it seems that they have been targeted in relation to matters which led them to flee Afghanistan initially, eg the report from the Netherlands that a returnee had been killed on return to Kabul in 2006, being a person known as an opponent of the Taliban”: IMR [48].
· The reviewer did not put the substance of the information relied upon to the applicant either in the course of the review or at any time prior to the recommendation.
· Annexure D of the Independent Merits Review Guidelines (IMR Guidelines) are a source of the requirements of procedural fairness in relation to this ground of review.
2.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on an issue which was critical to the reviewer’s assessment of the applicant’s claims relating to his fear of persecution as a returned failed asylum seeker from a Christian country.
Particulars
· The issue concerned the reasons for the “instances of harm”, “deaths of returnees to Afghanistan” and “targeting” of returned asylum seekers from Western countries including Australia referred in IMR [48].
3.The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not address a claimed basis for the applicant’s fear of persecution, that is that the applicant feared persecution as a Sayed Hazara of the Shia sect of Islam.
The second allegation was not pressed.
Failure to advise applicant of information
The applicant alleged that the Reviewer had failed to supply to him for comment information which the Reviewer had relied upon when reaching his conclusions on the review. The relevant passage is found in para.48 of the Reviewer’s reasons. That paragraph is set out below and the passage containing the information in question appears in bold type:
The agent’s suggestion that the claimant’s return to Afghanistan from a Christian country would further affirm the Taliban’s belief that the claimant was an infidel is noted. The claimant had, through his agent, his attention drawn to the fact that the Reviewer was unaware of any authoritative evidence that returnees to Afghanistan would be considered by the Taliban to be spies or Christian converts, as no organisations or contacts with which the Australian Embassy had discussion appeared to believe this to be the case – see the DFAT report of September 2010 which was mentioned in the post-interview email sent to Florin Burhala by the IPAO. I have found that the claimant has not come to the attention of the Taliban so I give no weight to the assertion that his return would further affirm the Taliban’s belief of the claimant being an infidel. There are some reports of deaths of returnees to Afghanistan but none of the instances of which I am aware indicate that the victims were harmed on the basis of an adverse view of them because they had been overseas or in Australia. In most instances it seems that they have been targeted in relation to matters which led them to flee Afghanistan initially, eg. the report from the Netherlands that a returnee had been killed on return to Kabul in 2006, being a person known as an opponent of the Taliban. I do not find that the claimant would be seen as an infidel were he to return to Afghanistan from Australia and I do not find the claimant has a well founded fear of persecution on the basis of his return from Christian country.
The applicant submitted that although, as noted in the quoted passage, after their interview the Reviewer advised him that he was unaware of any authoritative evidence that returnees to Afghanistan would be considered to be spies and/or Christians, the Reviewer had given no indication that he had (the highlighted) information that some returnees had been harmed or the reasons for that harm. The applicant submitted that although the fact of the deaths of those returnees did not need to be disclosed because they did not represent information which was adverse to his claim, the reasons for those deaths did.
A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. The party affected is entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]. Plaintiff M61 demonstrates that an independent merits reviewer such as the Reviewer must afford a claimant such as the applicant procedural fairness.
However, the applicant was not denied procedural fairness as he alleged. To the extent that the Reviewer did not have authoritative evidence that returnees to Afghanistan would be considered to be spies and/or Christians, any disclosure obligation which he may have had in this connection was discharged by his email sent to the applicant after the hearing. Further, notwithstanding the applicant’s allegation to the contrary, no such obligation existed concerning the information cited by the Reviewer which indicated that returnees with pre-existing profiles might face a risk of harm, but that those who did not would not. This was because the Reviewer’s rejection of the applicant’s claim to fear persecution because his return from Australia would confirm the Taliban’s view of him as an infidel was a conclusion based on the Reviewer’s earlier rejection of the applicant’s claim to have been so perceived by the Taliban before he left for Australia. The information in the bolded passage of the quoted paragraph only added some emphasis to the Reviewer’s very logical finding that the applicant’s return from Australia could hardly confirm an opinion which did not exist in the first place.
In this regard, the applicant referred to SZQNO v Minister for Immigration & Citizenship [2012] FCA 326 but that case is distinguishable from this one. Rather, the facts of this matter are more akin to the situation seen in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58, where McKerracher J said at [94], Reeves J agreeing:
The Federal Magistrate was correct in concluding that the anonymous letter was relied upon but simply added satisfaction to the view already reached by the third Tribunal. It confirmed findings already made. The substance of the anonymous letter was not integral to the subsequent reasoning of the third Tribunal that the newspaper reports did not truthfully recount events. That conclusion had already been determined by the matters referred to by the third Tribunal prior to consideration of the anonymous letter.
Moreover, to the extent that some of the information was new and unknown to the applicant, namely that a return from Australia or overseas would not, simpliciter and without more, expose him to harm, it concerned an issue in respect of which the applicant had made no claim. In his statutory declaration of 8 October 2010 the applicant expressed his fear of return solely on the basis that the Kuchi and Taliban considered him to be an infidel because a book about Jesus had been found in his shop. He made no claim to fear persecution in Afghanistan for any other reason. At his interview with the RSA assessor on 11 October 2010, the applicant claimed for the first time that the Taliban would think of him as an infidel because he had been in Australia. Apparently, according to the Reviewer’s reasons, at the review interview the applicant’s agent also suggested that were the applicant to return from Australia he would be accused of being a spy and/or a Christian. In their subsequent written submissions of 21 September 2011 the applicant’s advisers expressed that claim in the following terms:
Furthermore it may not be documented in exact terms that a person returning from the west will be assumed and accused of being a spy/and or Christian. However our client fled because he had Christian books and was accused of confirming that as such he as a Shi’a is an infidel.
It will not be difficult for the Taliban to discover our client has returned from a Christian country which will only further affirm their already belief our client is an infidel and as such will attract adverse attention from them. That attention is highly likely to be in the form of severe persecution as was and is feared by our client.
As can be seen, the information which was new was not material to a claim which the applicant had made. Consequently, it was not information which procedural fairness required be provided to him.
For these reasons, the applicant has not demonstrated that he was denied procedural fairness in the manner alleged in the first ground of the amended application.
Failure to address claim
The applicant submitted in relation to his third allegation that his claim was partly based on the fact that not only was he a Hazara but he was also a Sayed and that the Reviewer failed to consider that aspect of his claims. He pointed to his advisers’ undated submission in support of his application for independent merits review, reproduced at pages 88-136 of the Court Book which was exhibit B, where on the second and third pages it was stated:
The Applicant fears returning to Afghanistan due to persecution from the Taliban and the Kuchis based on his ethnicity and religion. As a Sayed Hazara, the Applicant cannot be differentiated visually from a regular [sic] Hazara, and therefore is subject to the same level of persecution and disdain …
The Applicant claims to be a Hazara, and refers to himself as a Sayed because he belongs to the Sayed tribe. However, his ethnicity is Hazara and his religion is Shia Muslim.
Those submissions also stated:
Position of Sayed Hazara in Afghanistan
The Applicant confirms he is a Sayed Hazara. He indicates he is part of the Hazara community, but also believes to be a direct descendent of the Prophet Mohammad. This position in fact places the Applicant at a higher risk level than regular [sic] Hazaras which are already being heavily persecuted by the Taliban and Pashtuns.
The Pastun [sic] and Taliban believe that people who belong to the Shia Muslim faith are ‘infidels’. For a Hazara to also claim that they are Sayed, and therefore hold themselves out as direct descendants of the Prophet Mohammad, they are further angering those of the Sunni faith.
While those of the Sayed background are sometimes afforded some social status, Sayed Hazaras are not persecuted because they are Sayed. Persecution occurs because they belong to the Shia sect of Islam.
Despite ethnic differences, given that Sayed people come from all ethnic groups, Sayed Hazara people are widely recognised as being part of the Hazara community due to their religious beliefs and because they tend to live in Hazara communities. They are therefore targeted by the Taliban and other Sunni Muslims (such as the Pashtuns) in the same way as those of Hazara ethnicity.
The applicant submitted that his claim to be a Sayed could be considered to be an integer of his claim based on his Shia religion, videHtun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42], and yet the Reviewer made no mention of his claim of increased fear of religious persecution as a Sayed Hazara or indeed of his Sayed Hazara identity at all. The applicant said that the Reviewer’s disposition, at paras.31 and 32 of his reasons, of his claim based on being a Hazara Shia did not also dispose of that part of his claim resting on his Sayed identity.
The applicant also submitted at the hearing of this application that the Sayed were ethnically distinct, although whether this meant anything more than lineal descent from the Prophet Mohammed was not made clear.
It is difficult to agree that the applicant had claimed at the RSA stage or before the Reviewer that his Sayed identity was, of itself, a basis for his alleged fear of persecution. As the quotations above at [24] and [25] indicate, he submitted to the Reviewer that as a Sayed Hazara he could not be differentiated from an ordinary Hazara and was thus subject to the persecution allegedly suffered by Hazaras. He went on to say that notwithstanding his claimed Sayed tribal kinship, his ethnicity was Hazara and his religion Shia Islam. He submitted that Sayed faced a higher level of risk than ordinary Hazaras but, contradictorily, were not persecuted because they were Sayed but because they were Shia and were targeted by the Taliban and Sunni Muslims in the same way as those of Hazara ethnicity.
Although expressed to be a differentiating factor, I find that the applicant’s Sayed identity was not advanced by the applicant in his claims for protection as a factor which was independent of his Hazara ethnicity or his Shia religion. At the highest, it was presented as no more than a factor which might aggravate any persecution which he might suffer as a result of those two other characteristics. However, as the Reviewer rejected the proposition that the applicant had a well-founded fear of persecution based on his Hazara ethnicity or his Shia religion, there was no need for the Reviewer to embark on a separate, but ultimately irrelevant, inquiry into the applicant’s Sayed identity.
As the Reviewer’s conclusions on the applicant’s principal claims were such as to render his claim of Sayed identity immaterial to the disposition of the review, the fact that that claim was not specifically mentioned or discussed by the Reviewer does not satisfy me that the issue was overlooked. It rested on a factual premise which was rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47] and thus it is not surprising that it did not merit individual mention in the Reviewer’s reasons.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 30 May 2012
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