AWL15 v Minister for Immigration - [2018] FCCA 1597

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWL15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1597

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal made an irrational finding – whether the Tribunal failed to actively consider a complementary protection claim.

Legislation:
Migration Act 1958, ss.36, 438, 477(1), 477(2)

Cases cited:
CDY15 v Minister for Immigration and Border Protection [2018] FCA 175
DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1; [2017] FCAFC 194
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7
SZSXE v Minister for Immigration and Border Protection (2014) 145 ALD 79; [2014] FCA 867
SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465; [2015] FCA 562

First Applicant:

AWL15

Second Applicant:

AWM15

Third Applicant:

AWN15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 1205 of 2015

Judgment of:

Judge Riley

Hearing date:

20 April 2018

Date of last submission:

20 April 2018

Delivered at:

Melbourne

Delivered on:

19 June 2018

REPRESENTATION

Counsel for the applicants:

Alexander Solomon-Bridge

Solicitors for the applicants:

Victoria Immigration Lawyers

Counsel for the first respondent:

Natalie Campbell

Counsel for the second respondent:

No appearance

Solicitors for the respondents:

Sparke Helmore Lawyers

ORDERS

The decision of the Refugee Review Tribunal made on 24 March 2015 in matters numbered 1313883, 1313923, 1313924 be set aside.
The matter be remitted to the Administration Appeals Tribunal for determination according to law.
The first respondent pay the applicants’ costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1205 of 2015

AWL15

First Applicant

AWM15

Second Applicant

AWN15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicants protection visas.
The applicants needed an extension of time in which to bring their application to this court. However, the extension of time was granted without opposition on 20 April 2018.
On 12 April 2018, a little over a week before the hearing in this court, the Minister filed an affidavit in which he disclosed for the first time that a certificate under s.438 of the Migration Act 1958 (“the Act”) had been issued in this matter. Due to the timing of the service of the affidavit, the applicants were unable to formulate a proposed amended application prior to the hearing. In view of the then impending special leave application from the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1; [2017] FCAFC 194, the applicants sought an order that, in the event that the court intended to reject both of the existing grounds of review, the matter be listed for a directions hearing for the applicants to seek leave to further amend the application to raise a ground regarding the s.438 certificate. The Minister did not oppose such an order being granted and an order was made to that effect on 20 April 2018. Since the hearing, special leave to appeal was granted by the High Court in CQZ15. The appeal is yet to be heard.
The first applicant is the mother of the second and third applicants, who are her adult sons. Each of the applicants made a separate application for a protection visa on 21 November 2012. However, by consent, the three applications were heard by the Tribunal at the same time. The Tribunal made a single decision in respect of all of them.
The first applicant’s husband and another of their now adult sons were granted protection visas by a decision of a delegate of the Minister with effect from 15 April 2010. The present applicants applied from Iran for Special Humanitarian visas on family reunion grounds. However, they left Iran and arrived in Australia before that application was finally determined. As a result of those circumstances, it seems that the present applicants ceased to be eligible for Special Humanitarian visas on family reunion grounds.

The applicants’ claims

The Tribunal summarised in paragraphs 23 to 26 of its reasons for decision the applicants’ claims as follows:
23.The applicants’ claims centre on their fears of harm at the hands of Iranian authorities and society due to their Faili Kurdish identity, their statelessness and lack of identity documents. They further claim that they will face harm, be imputed with anti-government sentiments and seen as spies in Iran due to having departed the country illegally and for having claimed asylum in a western country.
24.The applicant mother’s specific claims, as set out in her application to the department are as follows:
a.The applicant mother was born in Baghdad and claimed that her family lived illegally in Iraq. In 1980 her family was expelled to Iran and eventually settled in Tehran.
b.The applicant mother’s family was initially given green cards which were taken away at the end of the Iran-Iraq war and the family told to return to Iraq. They did not and remained in Iran.
c.The applicant mother has had no access to medical care or insurance and had to deliver her children in a private hospital. She lost one child after birth because of a lack of access to medical services.
d.The applicant mother wanted to study but was not allowed to attend public school. She was scared to leave the house and only able to work at home as a dress maker. She was not able to travel within Iran without documentation.
e.Her family were unable to uphold their Faili Kurdish culture in that they were not allowed to learn in their native language, wear native dress or partake in traditional events.
f.She was unable to register her marriage to her husband and only had a religious ceremony.
25.The second named applicant’s specific claims as told to the department are as follows:
a.He believes in God but not the Islamic faith or the prophets.
b.He was able to attend school but not get a qualification. Students and teachers ostracised him and were sarcastic towards him.
c.He was able to gain entry to tertiary studies with the help of his father’s friend and after paying a large sum of money. He was unable to continue his studies when his father’s friend changed positions.
d.Because he did not have a high school certificate he was unable to obtain employment but occasionally assisted his father in his work as a street vendor.
e.One day his father was unable to go to work so the second named applicant and the third named applicant went to his stall. They were approached by Basiji who told them they had to leave and started beating them.
f.The second named applicant was beaten on the chest. He escaped and had to rescue his brother who had fallen into a creek with bad injuries to his face.
g.He will be considered an apostate because he no longer believes in Islam and has come to a western country.
26. The third named applicant’s specific claims are as follows:
a.He was regularly required to move schools because he was not considered ‘worthy’ to stay at schools. He had to pay a lot of money to attend and was not able to gain recognition of his studies.
b.He was constantly bullied by teachers and students due to his ethnicity and lack of documentation.
c.He was unable to access employment due to fear of being detected without documents by the authorities
d.The third named applicant referred to the same incident with Basij as the second named applicant. He was hit on the head and suffered a broken nose and teeth and vision impairment. He went to an unregistered doctor for treatment.
e.After this incident he felt he could no longer work and spent most of his time at home.
f.He fears he may be considered as a member of the Kurdish Party currently fighting against the government.

The Tribunal’s reasons

The Tribunal noted that the applicants did not meet the family reunion criteria for protection visas because the first applicant’s husband and son had obtained Australian citizenship after being granted protection visas. The Tribunal said at [200] in its reasons for decision that:
… s.36(2) of the Act states that an applicant may satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa), being a non-citizen in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds and who holds a protection visa. Given that [the first applicant’s husband] and his son are Australian citizens and do not satisfy s.36(2)(a) or (aa), it follows that the applicants do not satisfy the criterion in s.36(2).
The Tribunal did not find the applicants to be credible witnesses, due to their evidence being vague, lacking in detail, inconsistent with country information and internally inconsistent. The Tribunal accepted that the applicants were Faili Kurds. However, the Tribunal did not accept that the applicants were undocumented and stateless, or that they left Iran on false passports. In fact, the Tribunal considered that the applicants were Iranian citizens. The Tribunal considered that the attack by the Basij was an isolated event and was not perpetrated for the reasons claimed. The Tribunal considered that the applicants did not face a real chance of serious harm for reasons of their nationality or membership of a particular social group. The Tribunal did not accept that the second applicant faced a real chance of serious harm on account of his religious views. The Tribunal did not accept that the applicants were entitled to protection on complementary protection grounds.

Ground 1

The first ground of review in the application filed on 28 May 2015 and amended on 1 December 2016 is:
The Second Respondent committed jurisdictional error by coming to an irrational or illogical conclusion.
Particulars
A.Given the Second Respondent accepted that the husband of the First Applicant and father of the Second and Third Applicants had successfully claimed protection in Australia ([22], [44], [146]), it was irrational or illogical for the Second Respondent to conclude that the Applicants’ close relatives in Australia did not hold a profile that would be of interest to the Iranian authorities that would warrant further action ([187]).
This ground particularly concerns paragraph 187 of the Tribunal’s reasons for decision, which is as follows:
As discussed with the applicants at hearing, while the applicants may be questioned upon their return to Iran, the tribunal does not consider any such questioning to in and of itself constitute serious or significant harm. Furthermore, on the evidence before it the tribunal does not accept that any of the applicants, nor the applicants’ close relatives in Australia, hold a profile that would be of interest to the Iranian authorities that would warrant further action.
The leading case on irrationality is Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16, where Crennan and Bell JJ said at [130]:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
The applicants acknowledged that irrationality is to be distinguished from reasoning about which reasonable minds may differ, as explained by Crennan and Bell JJ at [131] of SZMDS, which is as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The applicants also noted that the court may set aside a decision for irrationality even though the reasoning on the ultimate jurisdictional fact was not irrational, if the irrationality occurred “on the way” to the final conclusion: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [54] per Wigney J.
The applicants argued that the Tribunal made a logical leap and non sequitur in finding that the first applicant’s husband and one of her sons had been granted protection visas in Australia, and thereby inherently accepting that they faced persecution in Iran, and then finding at paragraph 187 of its reasons for decision that:
the applicants’ close relatives in Australia … [do not] hold a profile that would be of interest to the Iranian authorities that would warrant further action.
The applicants noted that the Tribunal accepted that they may be questioned upon their return to Iran. The applicants argued that, in the context of any such questioning, it was irrational to conclude that it would not be of interest to the Iranian authorities that the first applicant’s husband and one of her sons had been granted asylum in Australia.
In his written submissions, the Minister argued that the two relevant findings made by the Tribunal were plainly not irrational, and the applicants were simply seeking merits review. The Minister noted that the applicants had conceded that they had not been questioned about the whereabouts of their husband or father since they were granted asylum in 2010. However, the Minister did not explain in his written submissions how that circumstance made the Tribunal’s conclusion rational, especially in circumstances where the Tribunal accepted that the applicants may be questioned upon return to Iran.
In oral submissions, the Minister said that paragraph 186 of the Tribunal’s reasons for decision had to be read in conjunction with paragraph 187. Paragraph 186 of the Tribunal’s reasons for decision is as follows:
It was also claimed that the applicants would face harm because their close family members, the witness Mr [X, the first applicant’s husband] and his son, have previously been granted protection in Australia. The tribunal notes that Mr [X] and his son were granted protection in 2010 and at no time have the applicants claimed that they faced harm or were ever questioned about their family members’ whereabouts or circumstances. At hearing and in her post-hearing submissions the representative referred to decisions of this tribunal, differently constituted, in which the tribunal accepted that individuals could be questioned on return and the authorities would realise that other family members had not returned to Iran. The tribunal has considered the tribunal decisions referred to in the representative’s submissions, noting that it is not bound by any such decisions. The country information referred to in those decisions refers to interrogations of returnees to Iran to ascertain whether they have been politically active in Iran or abroad.
The Minister argued that paragraph 186 of the Tribunal’s reasons for decision noted that the applicants had not been questioned in Iran since the husband and father had been granted asylum in Australia. The Minister argued that that circumstance made rational the Tribunal’s finding at paragraph 187 of its reasons that:
the applicants’ close relatives in Australia… [do not] hold a profile that would be of interest to the Iranian authorities that would warrant further action.
The Minister also emphasised that the Tribunal did not simply find that none of the applicants’ close relatives had a profile that would make them of interest to the Iranian authorities. Rather, the Tribunal found that none of the applicants’ close relatives had a profile that would make them of interest to the Iranian authorities that would warrant further action. The Minister did not articulate the effect of the distinction that he sought to draw. I am unable to discern any relevant effect.
It is not enough to say that the applicants were not questioned by the authorities in the time since the first applicant’s husband and one of her sons had been granted protection visas in Australia. Obviously, the authorities may not have noticed that the first applicant’s husband and one of her sons had been out of the country for many years and had been given asylum in a Western country. If the applicants are questioned upon return to Iran, as the Tribunal accepted they may be, they will be within the gaze of the Iranian authorities, and the applicants may find it difficult to convincingly explain the absence of the first applicant’s husband and one of her sons.
In other words, I do not accept the Minister’s argument that, by noting that the applicants had not already been questioned since the first applicant’s husband and one of her sons were granted asylum, there was a logical link between the Tribunal’s acceptance that the first applicant’s husband and one of her sons had been granted asylum and its finding that none of the applicants’ close relatives had a profile that would make them of interest to the Iranian authorities that would warrant further action.
However, that is not the end of the matter. The Tribunal also said at paragraph 146 of its reasons for decision that:
The tribunal acknowledges that Mr [X] and his son were found by the department to be owed protection in 2010 on the basis of their profile as stateless Faili Kurds. The tribunal has considered this finding but notes that it is not bound by it in its assessment of the applications for review before it. The tribunal further finds that the concerns set out below outweigh the department’s findings regarding Mr [X] and his son.

That is, although the Tribunal noted that the first applicant’s husband and son had been granted protection visas, the Tribunal did not actually accept that their profiles would lead to them facing a real chance of persecution upon return to Iran. The Tribunal clearly considered that the bare fact of having been granted asylum in Australia, without any underlying basis for them to be persecuted in Iran, did not mean that the first applicant’s husband and son have profiles:
that would be of interest to the Iranian authorities that would warrant further action.
That was a view on which reasonable minds may differ, but it was not irrational in the relevant sense. For these reasons, the Tribunal did have a rational basis for simultaneously accepting that the first applicant’s husband and one of her sons had been granted asylum in Australia and finding that none of the applicants’ close relatives had a profile that would make them of interest to the Iranian authorities that would warrant further action.
Therefore, this ground is not made out.

Ground 2

The second ground of review in the application filed on 28 May 2015 and amended on 1 December 2016 is:
The Second Respondent committed jurisdictional error by failing to consider the Applicants’ complementary protection claims, in the sense of failing to engage in an active intellectual process in which those claims received its genuine consideration ([198]).
This ground concerns paragraph 198 of the Tribunal’s reasons for decision, which is as follows:
Having concluded that none of the applicants meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
It is well established that the Tribunal’s failure to consider a claim or an integer of a claim for protection is a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; (2001) 194 ALR 244; [2001] FCA 1802 at [42]. It is also well established that consideration of a claim requires an active intellectual process: SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465; [2015] FCA 562 at [17]. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114 at [38], this requirement was elaborated upon as follows:
[The Tribunal’s task] could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant … .
It was not disputed that the applicants made complementary protection claims. The applicants argued that the Tribunal spent 197 paragraphs explaining why the applicants were not refugees, but set out in only one paragraph its conclusion that they were not owed complementary protection. The applicants further argued that the solitary paragraph dealing with complementary protection did not contain any reasoning. The applicants argued that it should be inferred that the Tribunal did not actively engage with the applicants’ complementary protection claims.
The applicants argued that the Tribunal did not impliedly deal with the complementary protections claims anywhere in its reasons other than at paragraph 198. In fact, the applicants argued that the Tribunal on several occasions accepted that there were instances of harm, but dismissed them on the basis that there was no Convention nexus.
The applicants relied on SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7 where Judge Driver said:
89.The reasoning of the Reviewer in relation to complementary protection appears at [72]-[75]118, in particular at [75], and the claim for complementary protection was rejected because “such claims are based on the same evidence as his refugee protection claims” and that “on the basis of the evidence provided by the claimant, country information as discussed above and the findings set out above” the complementary protection claim was not made good.
90.The problem with this reasoning is that the Reviewer makes no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa). This is particularly problematic in the present case, where the Reviewer has accepted claims of detention and assault, but rejected a number of the claims on the basis of the absence of a Convention nexus or for some other reason peculiar to the Convention.
118 CB 105-106.
The examples the applicants gave in their written submissions of the Tribunal relying on the lack of a Convention nexus to dismiss a claim were at paragraphs 175 and 178 of the Tribunal’s reasons for decision.
Paragraph 175 of the Tribunal’s reasons for decision is as follows:
Despite the inconsistencies in their evidence, given that all applicants and the witness in his own 2010 protection claims referred to the same incident, the tribunal is willing to accept that at some stage in the past the second and third named applicants were involved in a fight with members of the Basij. However, given its findings that the applicants are not undocumented or stateless and its general concerns about their credibility, the tribunal does not accept that the fight was for the reasons the applicants have claimed. The tribunal notes that the second and third named applicants provided inconsistent evidence in relation to how the Basij knew they were Faili Kurds; the second named applicant claimed it was because they had no documents and the third named applicant stated it was because he spoke to his brother in Faili Kurdish. Given this and its general concerns regarding the applicants’ credibility, the tribunal does not accept that any derogatory remarks were made in relation to the applicants’ Faili Kurdish ethnicity nor does it accept on the evidence before it that their ethnicity or their speaking of Faili Kurdish was the essential and significant reason for their beating. As put to the applicants, this was the one incident of harm that they were able to give any detailed evidence about despite having lived in Iran their whole lives. None of the applicants claim that they faced any further harm after this incident in the three or more years they remained in Iran. The tribunal therefore finds that this was an isolated event.
The Tribunal rejected the claim that the reason for the fight with the Basij was related to ethnicity. However, the Tribunal did not dismiss this claim solely on the basis of the lack of a Convention nexus. The Tribunal also dismissed the claim on the basis that it was an isolated event. That reasoning applies with equal force to the complementary protection regime. As the harm was found to be an isolated event, the Tribunal implicitly found that there was not a real chance of it happening again. Therefore, the past harm did not engage either the Refugees Convention or the complementary protection regime.
Paragraph 178 of the Tribunal’s reasons for decision concerned an additional claim that the applicants made at the hearing. The Tribunal said at paragraph 178 of its reasons for decision:
At the hearing, the applicants made reference to country information indicating that the situation for Kurds in Iran was ‘getting worse’, that the applicant mother had several relatives who were hanged for being Kurds and that her cousin was recently hanged, although the third named applicant referred to a cousin being kidnapped rather than hanged. As put to the applicants, these claims run contrary to country information discussed with them at hearing. Furthermore, the applicants’ claims regarding the alleged death of the applicant mother’s cousin were vague and lacking in detail; none of them were able to explain why the cousin would have been kidnapped or put to death. As such, the tribunal gives this claim little weight and does not accept the applicant mother’s cousin, or any of her relatives, were ever kidnapped or hanged by the Iranian authorities for any reasons relating to their ethnicity.
In paragraph 178 of its reasons for decision, the Tribunal did not in terms refer to the nexus. However, by referring to any reasons relating to their ethnicity, the Tribunal was clearly referencing a Convention ground.
The Minister argued that the Tribunal was clearly cognisant of the complementary protection regime, as it set out its understanding of it in its reasons for decision as follows:
Complementary protection criterion
18.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
19.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
20.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
However, being aware of the correct test is not in itself sufficient to indicate that the Tribunal correctly applied it. That is clear from paragraph 60 of DZADQ v Minister for Immigration and Border Protection (2014) 143 ALD 659; [2014] FCA 754, where Mansfield J said:
It may well be that the tribunal, by the use of that word [that is, “necessary”], misdirected its attention from the test to be applied or, more probably having regard to the “template” part of its reasons at [13], simply failed to address the country information properly and with genuine consideration to that test. Counsel for the appellant did not argue that there had been a misdirection as to the applicable law by the use of that word, so the second of those alternatives is the more probable. (I do not use the expression “template” in any pejorative sense; it is simply to recognise that the early part of most tribunal decisions contain the same, or almost the same, summary of the relevant principles under the heading “Relevant Law” — there is no need to re-invent the wheel).
The Minister then argued that it is permissible for the Tribunal to rely on its findings of fact in relation to the Convention aspect of the claims to dismiss the complementary protection aspect of the claims. For that proposition, the Minister relied on paragraph 37 of CDY15 v Minister for Immigration and Border Protection [2018] FCA 175, where Derrington J said:
There is no jurisdictional error in the Tribunal applying its earlier findings (being the rejection of the appellants assertions as to why harm was inflicted upon him) for the purposes of determining whether or not he would face a real risk of harm if returned to Malaysia for the purposes of s 36(2)(aa). The rejection of the appellants’ assertions as to the motivations for the attacks and their assertions of the circumstances surrounding them which suggested a motivation for the attacks, had the effect that the fact of the attacks having occurred carried with it no suggestion that similar harm would be suffered in the future.
It can be seen that, in CDY15, Derrington J did not say that, in all cases, it would be open to the Tribunal to find that the complementary protection criteria were not met for exactly the same reasons as the Convention criteria were not met. On the contrary, Derrington J explained why, in the circumstances of that case, the finding under the Convention grounds could properly be applied to the complementary protection grounds as well. The Minister did not explain why that would be the case in the present matter.
The Minister also referred to paragraph 33 of SZSXE v Minister for Immigration and Border Protection (2014) 145 ALD 79; [2014] FCA 867, where Wigney J said:
Having set out the terms of the complementary protection criterion, the reviewer then noted (at paragraph [130] of his reasons) that the appellant’s claim that he met the criterion essentially relied on the same facts and circumstances that he relied on in relation to his claim to be entitled to protection as a refugee. That observation is neither particularly surprising nor controversial. One might reasonably expect a person in the appellant’s position to advance a single story or body of evidence about their past persecution or mistreatment and the resulting fear and belief that they will be harmed if returned to the country from which they had fled. The application of the facts to the separate criterion in section 36(2)(a) and 36(2)(aa) is, however, a separate matter. It is for the decision-maker to apply the facts to the statutory criteria.
In my view, the Tribunal in the present matter failed in the task of applying the facts to the statutory criteria in relation to the claim set out at paragraph 178 of its reasons for decision. The reasoning in that paragraph concerned ethnicity. The reasoning did not deal with how the complementary protection provisions applied to the claims made. Although the Tribunal advanced reasons for giving the claim in paragraph 178 little weight, the Tribunal did not give that claim no weight. Therefore, it remained a live claim that the Tribunal was required to deal with under the complementary protection provisions. The Tribunal did not actively engage with the claim by reference to the complementary protection criteria, and thereby fell into jurisdictional error.
There were numerous other claims made by the applicants that arguably the Tribunal did not deal with under the complementary protection provisions. However, as the parties did not deal with them specifically, I will refrain from dealing with them as well.

Ground 3

The third ground of review in the application filed on 28 May 2015 and amended on 1 December 2016 was not pressed by the applicants at the final hearing. I take it no further.

Conclusion

As one of the applicants’ grounds has been made out, the Tribunal’s decision will be set aside with costs. In view of that result, it is unnecessary to list the matter to enable the applicants to seek leave to amend the application to raise a ground relating to the certificate under s.438 of the Act.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 19 June 2018