WZAQB v Minister for Immigration & Anor
[2012] FMCA 688
•17 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAQB v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 688 |
| MIGRATION – Judicial review – independent merits review recommendation – no injunction sought – whether application competent – no grounds of review filed – whether legal or procedural error. |
| Commonwealth of Australia Constitution, s.75(v) Federal Magistrates Act 1999 (Cth), s.16(1) Migration Act 1958 (Cth), ss.5, 36(2), 91S, 476(1) |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Minister for Immigration & Ethnic Affairsv Wu Shan Liang & Ors (1996) 185 CLR 259 Plaintiff M61/2010E vCommonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26 SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284; [2012] FMCA 235 Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691 |
| Applicant: | WZAQB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JILL BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 366 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 3 August 2012 |
| Date of Last Submission: | 3 August 2012 |
| Delivered at: | Perth (by video-link to Sydney) |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First and Second Respondents: | Mr T Reilly |
| Solicitors for the First and Second Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 366 of 2011
| WZAQB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JILL BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Application
By application dated 6 December 2011, the applicant, who is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth),[1] sought judicial review in respect of a recommendation by the second respondent, the Independent Merits Reviewer.[2] The application seeks a declaration that the IMR Recommendation was not made in accordance with law, by reason of the grounds of the application, but the application contains no grounds. The application does not seek an injunction restraining the Minister from relying upon the IMR Recommendation.
[1] “Migration Act”.
[2] “IMR Recommendation” and “IMR” respectively.
Orders were made on 6 February 2012 permitting the applicant to file and serve:
a)an amended application by 16 April 2012;
b)any affidavit evidence by 16 April 2012, and
c)any legal submissions 14 days prior to hearing.
The applicant has not filed and served any documents in compliance with the orders, or otherwise.
Background facts and applicant’s claims
The applicant is a citizen of Iraq born in March 1982 in Basra, where he resided for almost all of the time from his birth until departure for Australia on 20 May 2010.[3]
[3] Court Book (“CB”) 3-4 and 149.
The applicant entered Australia as an unauthorised boat arrival[4] and was taken to Christmas Island on 18 June 2010.[5]
[4] CB 74.
[5] CB 34 and 148 at para.2.
An entry interview was conducted with the applicant on 16 August 2010.[6]
[6] “Entry Interview”; CB 1-30 and 149-150 at paras.11-19.
In his Entry Interview the applicant claimed that:
a)he was a Shia Muslim of Arab ethnicity;[7]
[7] CB 6.
b)his brother had worked for the Al Badr Army, and in 2008 this brother[8] was killed when members of the Al Mahdi Army stormed the offices of Al Badr;[9]
[8] “First Brother”.
[9] CB 11.
c)although his First Brother joined the Al Badr Army, “he joined just in order to get a job, not for ideological reasons”;[10]
[10] CB 12.
d)in 2008, after his First Brother was killed, the applicant’s nephew[11] was kidnapped by members of Al Mahdi who demanded a ransom of 24 million Iraqi dinar;[12]
[11] “Nephew”.
[12] CB 11.
e)after the exchange of money for the Nephew, the exchange being made by another of the applicant’s brothers[13], two of the three kidnappers were killed by police officers, and the Second Brother escaped to an unknown place, and the applicant lost contact with him;[14]
[13] “Second Brother”.
[14] CB 21.
f)he did not suspect Al Mahdi of being involved in the kidnapping, but thought “[m]aybe it was a criminal gang.”;[15]
[15] CB 25.
g)in September 2009 three people came to the applicant’s shop and asked him whether he was the Second Brother’s brother. The applicant believed that these people were members of either the Shaghanbe or Bani Najjar tribes, and he was subsequently beaten and threatened by these men;[16]
[16] CB 21-22.
h)three days after he was beaten the men returned to his shop but left after a police officer also entered the shop;[17]
[17] CB 22.
i)yet another brother of the applicant[18] was also beaten by these men on his way home from school;[19]
[18] “Third Brother”.
[19] CB 23.
j)subsequently, because of the beatings he, and his family, left the family home, and he lived with a friend, while his wife and children lived in his father-in-law’s house;[20]
[20] CB 24.
k)in Iraq he:
i)was not a member of any particular social or religious group;
ii)had not served with a police, security or intelligence organisation;
iii)was not impacted on a day to day basis by the police, security or intelligence organisations;
iv)had never been arrested or detained by police or security organisations;
v)was not in contact with any armed, political or religious groups; and
vi)had never participated in any armed conflict or fighting, nor received training in preparation for conflict, but had paid money to be exempted from military service;[21] and
l)he was persecuted in Iraq, “but not because of political opinion”.[22]
[21] CB 12-14.
[22] CB 11.
On 27 August 2010 the applicant applied for a Refugee Status Assessment.[23] The applicant appointed a migration agent, who was also a solicitor, to assist him with his RSA application.[24] To support his RSA application the applicant provided a statutory declaration.[25] The statutory declaration essentially repeated the claims made by the applicant in his Entry Interview.[26] However, one or two matters are clarified, including the following:
a)the Al Badr Army and the Al Mahdi Army are both Shia Muslim political groups;
b)of the three abductors involved in the kidnapping of the Nephew, the two who were killed belonged to the Shaghanbe and Bani Najjar tribes respectively, whilst the tribe of the third, who escaped with the ransom money, was unknown; and
c)the applicant feared persecution by the Shaghanbe tribe and the Al Mahdi Army because the First Brother belonged to the Al Badr Army.[27]
[23] “RSA”; CB 31-48.
[24] CB 52-55; see also CB 51 which indicates that the migration agent was a New South Wales solicitor.
[25] CB 67-71.
[26] CB 150-151 at paras.20-29.
[27] CB 68-69.
The RSA interview took place on 30 August 2010.[28]
[28] CB 75.
The applicant was notified on 9 January 2011 that he had been assessed as not meeting the Convention definition of a refugee.[29] Accordingly, the RSA officer was not satisfied that the applicant was a person to whom Australia owed protection obligations.[30] The RSA Officer found that:
a)on the basis of the applicant’s own evidence it did not appear that the First Brother held a position of any significance with the Al Badr Army;[31] and
b)the abduction of the Nephew appeared to be a criminally motivated act of extortion, rather than being due to any perceived affiliation with the Al Badr Army,[32]
and therefore, whilst the RSA officer accepted that the First Brother had been killed while working for the Al Badr Army, he was not satisfied that the applicant would be targeted because of any imputed opposition to the Al Mahdi Army owing to the First Brother’s employment in the Al Badr Army.[33]
[29] CB 72-84 (“RSA Decision”).
[30] CB 84.
[31] CB 81.
[32] CB 81.
[33] CB 82.
The RSA officer therefore found that the applicant did not have a genuine fear of harm and that there was no real chance of persecution occurring, and that the applicant’s fear of persecution for Convention purposes was not well-founded.[34] Thus, RSA officer was satisfied that the applicant did not meet the definition of a refugee set out in the Convention, and was therefore not someone to whom Australia owed protection obligations.[35]
[34] CB 83.
[35] CB 84.
Independent Merits Review
On 31 January 2011, the applicant applied for an independent merits review of the RSA Decision.[36]
[36] CB 85-89.
On 23 March 2011 the applicant’s solicitor/migration agent provided a written submission[37] to the IMR summarising the applicant’s claims to fear persecution in Iraq,[38] and in particular, claiming that:
a)the applicant feared persecution on returning to Iraq on the basis of:
i)his imputed political opinion, being opposition to Shia extremism; especially because of his support for the Al Badr Army, persecution by the Al Mahdi Army (a rival Shia paramilitary force); and
ii)his religion, being a Shia Muslim who feared harm from Sunni Muslim insurgents;[39] and
b)following the applicant’s RSA interview, he was informed by his wife that his father[40] had been killed after he was threatened by members of Al Mahdi to reveal the location of his sons.[41]
The submissions also referred to country information in support of the applicant’s claims.[42]
[37] “March 2011 Submission”.
[38] CB 90-117.
[39] CB 94.
[40] “Father”.
[41] CB 95.
[42] CB 96-108.
The first two pages of a copy of the March 2011 Submission were hand-annotated by the applicant.[43] The applicant’s case manager sent the Annotated Submission to the IMR on 7 April 2011.[44] The Annotated Submission clarified that the Nephew’s kidnapping occurred in April 2009, and not 2008.[45]
[43] “Annotated Submission”.
[44] CB 118-120.
[45] CB 120. See para.6(d) above.
On 11 July 2011 the applicant’s solicitor/migration agent provided the IMR with:
a)copies of the identity cards belonging to the applicant and his wife, and photographs of the applicant’s two children;[46] and
b)a one page letter written by the applicant, asking that “those who hear my call, to those who can help, please have mercy on me”, and setting out a general plea for mercy based upon the suffering and anxieties being suffered by his family.[47] None of the matters in this plea were Convention related, and the applicant made no mention of the matters referred to in the March 2011 Submission.
[46] CB 121-127.
[47] CB 128-129.
A further written submission was provided to the IMR by the applicant’s solicitor/migration agent on 7 October 2011.[48] The October 2011 Submission:
a)referred to additional country information in support of the applicant’s claims;[49] and
b)annexed untranslated copies[50] of:
i)two death certificates relating to the First Brother and the Father; and
ii)a letter from the Al Talha Police indicating that the First Brother was an employee of the Police Directorate of Basra Province from 16 January 2006 “to the date of his martyrdom” on 8 December 2008, had attained the rank of First Lieutenant, and “for being a member of Badr Organisation, he was killed by some terrorist armed militias while he was defending the Great Iraq.” [51]
[48] “October 2011 Submission”: CB 132-136.
[49] CB 134-136.
[50] The untranslated copies do not appear in the Court Book.
[51] CB 132.
The IMR interviewed the applicant on 12 October 2011.[52] Translated copies of the death certificates and police letter were subsequently provided to the IMR on 26 October 2011.[53]
[52] CB 151-155 at paras.30-53.
[53] CB 137-140.
At the IMR interview with the applicant on 12 October 2011 all relevant claims of the applicant were canvassed. In particular, the IMR dealt with:
a)the rank of the First Brother in the Iraqi Police, and the circumstances of his death, including why he was working at the Badr Party Office when murdered, and the investigations into those circumstances, which led the applicant to indicate that the First Brother was killed by “a terrorist gang that broke into the office.”;[54]
[54] CB 152 at para.35.
b)whether the killing of the First Brother, and the kidnapping of the Nephew, were motivated by revenge in relation to the killing of two people at, or shortly after, the time of the Nephew’s release from his kidnapping;[55]
[55] CB 153 at paras.38 and 39.
c)violence in Iraq often being the result of “freelance” criminal activity;[56]
d)the circumstances of the Father’s death, included that the applicant did not know the identity of the killer, and that there were no witnesses to the killing;
e)the fact that the applicant, during the IMR interview placed considerably greater emphasis and significance on the circumstances and importance of the First Brother’s murder than he had in the past. The IMR particularly referred to the applicant’s Entry Interview in which the applicant indicated:
i)that he was not persecuted by reason of political opinion; and
ii)that the First Brother was an army officer (not a police officer), and that he joined just in order to get a job and not for ideological reasons;
which was to be contrasted with what was now being said that he was a member of the Al Badr Army with a high position, and was a superintendent in the Iraqi Police at the time of joining them in 2006;
f)the circumstances of the Nephew’s kidnapping, which indicated to the IMR that the kidnapping was for monetary gain; and
g)the fact that the police intervened immediately after the Nephew’s release and killed two of the kidnappers, which the IMR thought was not supportive of the applicant’s claim that no police protection was available to him or his family.[57]
[56] CB 153 at para.44.
[57] CB 155 at paras.51-53.
The IMR invited the applicant, by email dated 9 November 2011, to comment on country information relating to a claim made in the March 2011 Submission to the effect that the applicant feared harm from Sunni Muslim insurgents due to his Shia Muslim religion.[58] The IMR noted that the applicant had not articulated this claim during the interview.[59] A two page written response to the IMR’s invitation was provided by the applicant’s migration agent on 14 November 2011. The response corrected a number of factual errors in earlier submissions to the IMR.[60]
[58] See para.12(a)(ii) above.
[59] CB 141 and 155.
[60] CB 142-144 and 156.
The IMR Recommendation
On 15 November 2011 the IMR issued the IMR Recommendation, which recommended that the applicant not be recognised as a person to whom Australia owed protection obligations.[61] The IMR:
[61] CB 147-165.
a)did not make adverse findings as to the applicant’s credibility but observed that it was not necessary to accept uncritically any and all claims made by the applicant, and went on to observe that there were variations in aspects of the applicant’s claims, and that the applicant’s responses were at times “avoidant” or “circuitous”.[62]
b)accepted, having regard to country information, that the First Brother had worked for the Al Badr Army and the Iraqi Police force,[63] and had been killed in 2008 “as a consequence of a targeted and politically motivated killing”,[64] in that the First Brother was known to be supportive of the Badr Organisation or to be an officer of an Iraqi State authority;[65] and that the applicant’s fear of persecution as a member of the First Brother’s family was therefore not excluded by the operation of s.91S of the Migration Act;[66]
c)was not satisfied that applicant, or other members of his family, had been targeted for a Convention reason following the murder of the First Brother;[67]
d)did not accept that the attacks on the applicant and the Third Brother, or the killing of the Father, were because of the First Brother’s former employment with the Al Badr Army or the Iraqi Police;[68]
e)did not accept that any of the past harm suffered by the applicant or his family was due to the First Brother’s former employment in the Al Badr Army or the Iraqi Police;[69]
f)accepted that the applicant and his family were targeted for the reason of “personal revenge”, after the Iraqi Police had become involved in relation to the kidnap of the Nephew;[70]
g)was satisfied that the applicant would not be attributed with any political opinion, or face harm as a member of a particular social group (designating the family as a social group for that purpose) in the future, because he was the First Brother’s brother;[71]
h)was satisfied on the basis of the applicant’s own evidence that neither he nor his family (other than the First Brother) held any political opinions, or were associated with any political groups;[72] and
i)on the basis of country information provided by the applicant’s solicitor/migration agent, was satisfied that the applicant did not have a profile that would cause him to be targeted by members of Al Mahdi in the future, and was therefore not satisfied that the applicant would face Convention related harm from members of the Al Mahdi Army or the Shaghanbe or Bani Najjar tribes.[73]
[62] CB 157 at para.56.
[63] CB 157 at para.56.
[64] CB 158 at para.61.
[65] CB 158 at paras.59-61 (the quote is from para.61).
[66] CB 159 at para.162. Section 91S of the Migration Act provides as follows:
[67] CB 164 at para.79.
[68] CB 159-161 at paras.64-70.
[69] CB 160 at para.71.
[70] CB 160 at para.71.
[71] CB 161 at para.73.
[72] CB 161 at para.72 and 164 at para.80.
[73] CB 161-163 at paras.74-75 and 164 at para.81.
In relation to the alleged kidnapping of the Nephew, the IMR:
a)found on the basis of country information that kidnappings and assassinations were “common occurrences” in Basra;[74] and
b)was satisfied that the kidnapping was not related to the First Brother’s former employment, but was done for “opportunistic monetary gain on the part of his kidnappers”.[75]
[74] CB 159 at para.63.
[75] CB 159 at para.63.
The IMR also had regard to:
a)the Father’s killing not being witnessed;
b)the death certificates for the First Brother and Father being able to be produced, the former not having been burnt during the fire which destroyed the family home in Basra, and the latter being issued the day after the Father’s death, which the IMR considered to be unusual; and
c)an alleged threat from the Al Mahdi Army to the Father, and the family home being burnt down, not being mentioned by the applicant during his IMR interview, and only being raised subsequently in a written submission from the applicant’s solicitor/migration agent.[76]
[76] CB 160 at para.69.
The IMR further found that:
a)any generalised harm suffered by the applicant, such as being caught in an explosion in a public area, would not be motivated by factors particular to the applicant;[77]
b)there was no evidence that State protection would be withheld from, or denied to, the applicant for a Convention reason, but as the harm that the applicant feared was from non-State actors for non-Convention reasons the adequacy and effectiveness of State protection did not arise for consideration;[78] and
c)on the basis of accepted country information, rejected the claim that the applicant would face harm from Sunni Muslim extremists due to his Shia Muslim religion.[79]
[77] CB 163 at para.76 and 164 at para.82.
[78] CB 164 at para.81.
[79] CB 163-164 at paras.77-78 and 80.
Having regard to the applicant’s evidence, and particularly that given in the Entry Interview and in support of his RSA application, the IMR was not prepared to accept that the applicant or any of his family members were associated or involved with any political group or organisation, or that any person would attribute to the applicant now or in the reasonably foreseeable future any political opinion whatsoever. The IMR concluded that both past harm, and any possible future persecution, of the applicant were not by reason of any Convention related reason.[80]
[80] CB 161 at paras.72-73.
The IMR was therefore not satisfied that the applicant had a well-founded fear of persecution for a Convention reason, and accordingly found that the applicant did not meet the criterion for a protection visa, as set out in s.36(2) of the Migration Act.[81] The IMR therefore recommended that the applicant not be recognised as a person to whom Australia owed protection obligations.[82]
[81] CB 165 at para.83.
[82] CB 165 at para.84.
Hearing in this Court
At hearing:
a)the applicant, who appeared in person with the assistance of an interpreter, was invited by the Court to make submissions in support of the application. The applicant said that he had no submissions to make;
b)the Minister’s Counsel, during the course of submissions, indicated that the Minister would have no objection if the applicant sought to amend the application to include injunctive relief; and
c)asked by the Court whether there was anything he wished to say or do in reply to what had been said by the Minister, the applicant made a heartfelt, but general, plea to stay in Australia, but which was unrelated to any Convention related ground.[83]
[83] Transcript, 3 August 2012, page 3.
At hearing, therefore, no amendment to the grounds or relief was sought, and no submissions in support of the application (which was made without grounds) were made.
The Minister argued that:
a)as the applicant had not sought an injunction, the application was incompetent, as the applicant had not properly invoked the Court’s jurisdiction under to s.476(1) of the Migration Act;
b)the application did not contain any grounds of review and the application therefore raised no case to answer;
c)the IMR was not required to accept the applicant’s claims at face value, and the weight to be given to the applicant’s claims and evidence was a matter for the IMR as part of the fact-finding function;[84] and
d)the IMR considered and assessed the evidence and weighed it in the balance of the other evidence presented, as it was supposed to do.[85]
Consideration
[84] Citing Minister for Immigration & Ethnic Affairsv Wu Shan Liang & Ors (1966) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
[85] Citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30.
Injunctive relief
Section 476(1) of the Migration Act provides as follows:
Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Section 75(v) of the Commonwealth of Australia Constitution[86] provides that:
[86] “Constitution”.
In all matters –
…
(v)In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction.
The jurisdiction given to this Court in migration matters is therefore the original jurisdiction of the High Court under s.75(v) of the Constitution to issue a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth.
In Plaintiff M61/2010E v Commonwealth of Australia & Ors[87] an analysis of the High Court’s Reasons for Judgment leads to the conclusion that an application which seeks injunctive and declaratory relief is valid and competent, but an application that merely seeks a declaration, but does not seek an injunction restraining the Minister from relying on an IMR recommendation, is not competent.[88]
[87] (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”).
[88] Plaintiff M61 CLR at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. See also Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at paras.30-31 per Nicholls FM (“Darabi”).
Following Plaintiff M61, the Full Court of the Federal Court, the Federal Court and this Court, have each found that it is the application to this Court for injunctive relief, in relation to the still to be completed decision-making process by the Minister arising from an independent merits review recommendation, that enlivens this Court’s jurisdiction for relief in relation to a migration decision.[89] Whilst the High Court in Plaintiff M61 ultimately granted a declaration, but no injunction, injunctions grounding jurisdiction under s.75(v) of the Constitution were sought in Plaintiff M61.[90] Thus, it may be that this Court can grant a declaration alone as a remedy in relation to an independent merits review recommendation, but only where an injunction grounding jurisdiction is sought. The declaration is then made pursuant to this Court’s statutory capacity to make a declaration of right in respect of the matter in which it has the same original jurisdiction as the High Court.[91]
[89] See, for example, Darabi FLR at 308 per Nicholls FM; FMCA at paras.30-31 per Nicholls FM; SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207 at 220 per Keane CJ, Rares and Perram JJ; [2012] FCAFC 26 at para.45 per Keane CJ, Rares and Perram JJ (“SZQDZ”); SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 at paras.72-74 per Barker J (following SZQDZ cited above); WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284 at 292-293 per Lucev FM; [2012] FMCA 235 at para.25 per Lucev FM.
[90] Plaintiff M61 CLR at 334 and 359-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.7-8 and 103-104 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[91] Migration Act, s.476(1) and Constitution, s.75(v); see also Federal Magistrates Act 1999 (Cth), s.16(1).
The applicant has had opportunities to amend the relief sought to include injunctive relief grounding jurisdiction. Apart from the initial application, the Court’s orders of 6 February 2012 allowed an amended application to be filed, although one was not filed. Further, at hearing, the Minister indicated that there would be no objection if the applicant sought to amend the relief sought to include an injunction. The applicant did not seek to do so. There is, therefore, no application for injunctive relief in these proceedings. It follows, therefore, that the application is incompetent, and must be dismissed.
No grounds for review
As indicated above,[92] the application contains no grounds for review. No advantage was taken of the opportunity to file an amended application afforded by the 6 February 2012 orders to include grounds for review. Notwithstanding the opportunity to make submissions afforded to the applicant at hearing, both in support of the application and in reply, the applicant said nothing relevant by way of submission, and, therefore, nothing by way of anything that could constitute grounds for review. It follows that there are no grounds for review, and that the Minister effectively had no case to answer. Thus, even if the application were competent, which it is not, the application would have been dismissed as raising no grounds for review which the Minister was required to answer.
[92] See para.1 above.
No procedural or legal error
The IMR sifted and weighed the evidence, and had regard to inconsistencies in the applicant’s versions of events, before making findings which were open on the evidence. None of the findings are unreasonable on the available evidence, and whilst another decision-maker might have determined some or all matters differently, or arrived at a different ultimate conclusion, it is not for this Court to interfere with considered findings open to be made on the evidence before the IMR as an administrative decision-maker, and which are otherwise made in accordance with the law.[93] Were the Court to do so in these circumstances it would cross the “vigorously policed” line between merits review and judicial review.[94]
[93] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v The Commonwealth of Australia (1999) 197 CLR 510.
[94] Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
It follows, therefore, that no procedural or legal error is disclosed by the IMR Recommendation, and the application would have had to have been dismissed, in any event.
Conclusion and order
For the reasons set out above the application is incompetent and must be dismissed. Even if the application was not incompetent:
a)it raises no grounds for review, and would have been dismissed as raising no case to answer; and
b)as the IMR Recommendation discloses no procedural or legal error, the application would have had to have been dismissed.
There will, therefore, be an order dismissing the application.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 17 August 2012
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person's family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
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