AYD15 v Minister for Immigration

[2017] FCCA 1946

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYD15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1946

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider a claim – whether the Tribunal properly considered the applicant’s claims under the complementary protection criterion – the Tribunal found the ‘real risk test’ was equivalent to the ‘real chance test’ – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136

ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov   v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Ethnic Affairs v Wu Shan  Liang  & Ors  [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection & Anor [2016] FCA 216; (2016) 151 ALD 360

Applicant: AYD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1518 of 2015

Judgment of: Judge Nicholls

Hearing date: 28 March 2017

Date of Last Submission: 28 March 2017

Delivered at: Sydney

Delivered on: 18 August 2017

REPRESENTATION

Counsel for the Applicant: Mr J Mack

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Mr T Riley

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application made on 4 June 2015, amended on 13 August 2015 and further amended on 28 March 2017 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1518 of 2015

AYD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (“the Act”) on 4 June 2015, amended on 13 August 2015 and ultimately further amended on 28 March 2017 (leave was granted at the hearing on that date), seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which on 1 May 2015, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. The evidence before the Court is contained in a bundle of relevant documents filed by the Minister, and tendered by the applicant (“the Court Book” – “CB”, “AE1”).

Background

1. The applicant is a citizen of Sri Lanka (CB 32). He arrived in Australia by boat on 20 June 2012 (CB 33). He applied for a protection visa which was received by the Minister’s department on 13 November 2012 (CB 18 to CB 79). The applicant provided a written statement with his protection visa application (CB 46 to CB 48). He was assisted by a registered migration agent at that time (CB 18 to CB 19). The applicant was invited to attend an interview with the delegate on 15 April 2013 (CB 84 to CB 89). The delegate refused the visa on 11 July 2013 (CB 90 to CB 119).

2. The applicant applied for review to the Tribunal and the application was received on 16 July 2013 (CB 120 to CB 128). The applicant’s representative sent written submissions and country information to the Tribunal on 6 September 2013 (CB 133 to CB 144). The applicant attended a hearing before the Tribunal on 25 November 2014 (CB 157 to CB 159). His representative made further written submissions to the Tribunal, after the hearing, on 9 December 2014 (CB 163 to CB 173).

3. The applicant claimed to be a fisherman from the north of Sri Lanka. He claimed that he had been harmed in the past by the Sri Lankan authorities because he was restricted in his capacity to fish, in particular, from the use of a fishing permit system.

4. The applicant also claimed to have been attacked by Singhalese fishermen because he was a spokesman for Tamil fishermen. He feared that on return to Sri Lanka, he would face harm because he would be considered a “troublemaker” ([1] at CB 179). Further, the applicant claimed to fear harm from the Sri Lankan authorities because he was a Tamil, he had applied for asylum in Australia, and had departed Sri Lanka illegally ([19] at CB 181).

5. The Tribunal found that he was a Tamil fisherman ([30] at CB 184). However, it rejected his claims to have been a spokesperson for other Tamil fishermen or that he was a committee member of any fishing association ([30] at CB 184). The Tribunal also rejected that he had been harmed in the past by Singhalese fishermen ([30] at CB 184).

6. The Tribunal’s conclusions arose from the doubts it had about the credibility of the applicant’s claims, and that his claims were largely contrary to the available country information ([30] at CB 183). The Tribunal also did not accept, based on available country information, that the applicant faced a real chance of serious harm on the basis of his ethnicity ([32] at CB 184 to [38] at CB 186).

7. The Tribunal accepted he would be charged under the Sri Lankan emigration laws for illegal departure. However, it found that the outcome of such a charge would not amount to serious harm ([48] at CB 188 to [49] at CB 189). The Tribunal also addressed the complementary protection criterion. It found, for similar reasons, that the applicant would not face a risk of significant harm ([55] at CB 190 to [59] at CB 192). The Tribunal affirmed the delegate’s decision on this basis.

The Application to the Court

1. There are two grounds of the further amended application as follows:

   “GROUND ONE

   1. The Tribunal failed to conduct its review in accordance with the duties imposed upon it under the Act and therefore constructively failed to exercise its jurisdiction or ignored relevant material

   Particulars

   a. The Tribunal accepted that the Applicant was attacked by Singhalese Fishermen [5],[26]; and

   b. The Tribunal did not consider whether the Applicant was owed protection because he held an imputed political opinion, namely a Tamil fisherman activist.

   GROUND 2

   2. The Tribunal erred by disposing of the balance of the Applicant’s complementary protection claims on the basis that the ‘real risk’ test was equivalent to the ‘real chance:’

   Particulars

   a. The Tribunal considered the Applicant’s claims under s 36(2)(aa) in relation to Discrimination [56] and Illegal departure [57] and was not satisfied that the harm suffered under both these heads would amount to significant harm [56] and [57].

   b. The Tribunal then considered the balance of the Applicant’s claims made under s 36(2)(a) in relation to s 36(2)(aa) [58]

   c. The Tribunal found that the real chance test in s 36(2)(a) was equivalent to the real risk test s 36(2)(aa)

   d. The Tribunal found that because the test was equivalent, the reasons used in relation to the s 36(2)(a) claim could be imported into an analysis of the s 36(2)(aa) claims”

   [Errors in original.]

2. The applicant’s submissions in explanation of ground one were essentially as follows.

3. At the interview (“the entry interview”) when he first arrived in Australia, the applicant gave an account of why he left Sri Lanka. This account included a claim that “[e]ither on 26 or 27 March 2012”, “they”, presumably Singhalese “people”, stopped him while riding his motorbike and “bashed” him. He was taken to hospital by “some other people” (see CB 11.7).

4. In a written statement made by the applicant that accompanied his application for the protection visa, the applicant repeated the claimed events of March 2012 ([18] - [19] at CB 47).

5. At the interview with the delegate, the applicant repeated this claim. The delegate recorded (CB 98 to CB 99):

   “6-7 years ago, the Singhalese fishermen attacked him and beat him up. They injured his face with a knife and he still carries a big scar on his face.

   …

   The applicant claims on 26 or 27 March 2012, he was riding his motorbike to home and 5 Singhalese men stopped his bike and beat him badly. He received injuries on his face and his leg. The attackers fled as a car was approaching. The car stopped and took him to Chilaw hospital but as his injuries were bad, they transferred him to a bigger hospital in Udappu. He received treatment and was discharged shortly after. The applicant knew some of the attackers and reported them to the police but they did not take any action.”

6. The delegate set out at length the claims relevant to the “Incident with the Singhalese fishermen – March 2012” (CB 102 to CB 103). The delegate found that the applicant had been attacked by five Singhalese fishermen in the past (CB 103.3):

   “Considering all of the above, I find the following:

   …

   The applicant was targeted on 26 or 27 March 2012 by the Singhalese fishermen or the Sri Lankan authorities because he was outspoken about the situation of the Tamil fishermen.”

7. The Tribunal noted the above finding of the delegate in its decision record ([5] at CB 179). The applicant now submits that the Tribunal did not reject this finding. Rather, it found he had been attacked by other fishermen. Having accepted this, it follows, given the delegate’s finding, that the Tribunal found that the applicant was attacked by five Singhalese fishermen ([4] of the applicant’s written submissions).

8. The applicant submits that having made this finding, it was incumbent on the Tribunal to review the delegate’s decision on the basis that the applicant had a well-founded fear of persecution because of an imputed political opinion. The Tribunal’s failure to do so, reveals jurisdictional error as explained in such authorities as Htun  v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (“Htun”) ([4] of the applicant’s written submissions).

9. The applicant submits that his argument is further strengthened by submissions made by his representatives sent to the Tribunal, after the hearing, on 9 December 2014 (see CB 163.4 to CB 164.7):

   “At the hearing the Member indicated that the harm caused by the Singhalese fishermen to our client is result of a private dispute and could be considered under Complementary Protection. We respectfully submit that while our client’s claim could be considered as a private dispute, the ethnic divide that underlies the dispute, together with the complete lack of state protection available to our client as a result of his ethnicity, brings his claims well within the convention grounds.

   …

   The Member also raised concerns as to whether the harm suffered by the client would amount to ‘significant harm’. We submit that the client has been beaten by the Singhalese fishermen on two occasions and on one occasion his wounds were so significant that he had to be hospitalised. In addition he continues to be harassed by the Singhalese fishermen on a frequent basis: they steal his catch, damage his fishing nets and try to impose restrictions on the type of nets used for fishing. All these factors significantly affect our client’s ability to subsist thus falling under the definition of significant harm.”

10. Ground one, as pleaded, asserts a constructive failure by the Tribunal to exercise jurisdiction or that the Tribunal ignored relevant material.

11. In submissions before the Court, the applicant insisted his ground was to be understood as being that the Tribunal had failed to conduct the review of the delegate’s decision, and in doing so, failed to conduct the review in accordance with the duties imposed under the Act. When pressed to provide a more specific explanation, the applicant submitted that the ground was “probably best described as a Htun type error.”

12. I ultimately understood the applicant’s ground to seek to complain that the Tribunal failed to consider a claim to fear harm made by the applicant. That is, a claim expressly made or clearly arising in the circumstances presented. It is the case that a failure to deal with a claim expressly made or clearly arising may indeed reveal jurisdictional error on the part of the Tribunal (ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (“Applicant WAEE”), Htun and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1). It is also the case that where the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, jurisdictional error may be revealed (Dranichnikov   v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ).

13. In all therefore, the applicant’s complaint is that the delegate found that the applicant had been attacked by five Singhalese fishermen, and the Tribunal subsequently failed to deal with that claim. To make good this complaint, the applicant referred to specific parts of the Tribunal’s decision record. The applicant submits that the Tribunal made relevant findings at [5] (at CB 179) and at [26] (at CB 183) of its decision record in this regard.

14. It is trite to say that Tribunal decisions must be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan  Liang  & Ors [1996] HCA 6; (1996) 185 CLR 259). Of course, this does not mean that any ambiguity or omission can be excused or resolved in the Tribunal’s favour simply on this basis (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]).

15. The basis for the applicant’s complaint is understandable in the circumstances. While the delegate made a specific finding that the applicant had been attacked in March 2012, the Tribunal did not make a specific finding that this incident, of itself, did not lead to serious or significant harm. However, on a fair reading, this does not necessarily mean the Tribunal failed to deal with an integer of the applicant’s claims to fear harm.

16. Contrary to the applicant’s submissions now, at [5] (at CB 179) of its decision record (and see [16] above), the Tribunal did not make any finding that the applicant had been attacked by other fishermen. At this part of its decision record, under the heading, “History of Application for Review”, the Tribunal was clearly reporting on what the delegate had found. The reference at [5] (at CB 179) to the attack in March 2012, cannot be fairly read as a finding of fact that the applicant had been so attacked. The relevant finding is contained later in the Tribunal’s decision record at [30] (at CB 183 to CB 184) to [31] (at CB 184), and see further below.

17. To the extent that the applicant’s argument may seek to imply to the contrary, it is necessary to note that the Tribunal is not bound by findings made by the delegate. The Tribunal is required to make its own findings of fact “afresh”. Nor can it be said that at [5] (at CB 179) or elsewhere in its decision record, the Tribunal accepted the delegate’s finding that the applicant had been attacked by five Singhalese fishermen.

18. At [26] (at CB 183) of the Tribunal’s decision record, again, on a plain and fair reading, the Tribunal was reporting on what it had discussed with the applicant at the hearing. The Tribunal, fairly, exposed to the applicant, its preliminary view that the assaults in the past appeared to be private difficulties and not related to persecution for a Refugees Convention reason. I do not agree with the applicant’s submission now that what the Tribunal set out at [26] (at CB 183) contains findings made by the Tribunal.

19. The Tribunal’s decision record at [26] (at CB 183) may be reasonably read as saying that on the evidence, it appeared that the applicant had been assaulted because of his role as a “leader” among Tamil fishermen. However, it must be remembered that this was not a finding made by the Tribunal, but a report of what had been explained and described at the hearing before it.

20. The Tribunal’s relevant findings, on a fair reading of its decision record, are set out at [30] (at CB 183 to CB 184) to [31] (at CB 184). Based on earlier findings which were reasonably open to it, the Tribunal had rejected the credibility of central parts of the applicant’s claims. At [30] (at CB 183 to CB 184) to [31] (at CB 184) the Tribunal found that the applicant had not been “targeted for harm in the past by Singhalese fishermen”. The Tribunal’s finding, and the antecedent findings that informed it, were all reasonably open to it, and probative of the material before it.

21. The applicant’s ground has sought to “confuse”, or “conflate”, various parts of the Tribunal’s decision record. The Tribunal’s report of what the delegate found (that is, at [5] at CB 179), is not a finding made by the Tribunal. There is also nothing to suggest that the Tribunal adopted the delegate’s finding.

22. Similarly, the Tribunal reporting on what it discussed with the applicant at the hearing, is not a finding that led to the affirmation of the decision under review. The Tribunal was entitled, and indeed, in certain circumstances, obliged, to raise a number of matters with the applicant at the hearing that may not necessarily result in specific findings that ultimately go towards affirming the delegate's decision. After all, a purpose of the hearing is for the Tribunal to test the evidence before it.

23. The Tribunal’s decision did not turn on what the delegate found, and how this was subsequently tested at the Tribunal hearing. Rather, the Tribunal found, for the reasons given, including the absence of any relevant evidence, that the applicant had not been a target of the Singhalese fishermen ([30] at CB 184).

24. This finding was comprehensive of the applicant’s claim to fear harm. It is to be remembered that the essence of the applicant’s claim was that he was a Tamil fisherman who feared harm from Singhalese fishermen, and the Sri Lankan Army, and would be denied protection from the Sri Lankan state.

25. The Tribunal recognised that there were “several aspects to the applicant’s claims arising from his being a fisherman” ([22] at CB 182). These included, relevantly, as the Tribunal specifically noted: “he claims he has been assaulted in the past by Singhalese fishermen because of his being a leader of the fishermen in his home village” ([22] at CB 182).

26. Plainly, the Tribunal’s analysis of the “fishermen” claim makes no specific reference to “26 or 27 March 2012” or “five Singhalese fishermen” ([22] at CB 192 to [31] at CB 184). However, the Tribunal does make specific reference to the applicant having been assaulted by Singhalese fishermen in the past (at [22] at CB 182). When fairly read, this includes a reference to the claim of “conflict” between the applicant and Singhalese fishermen ([19] at CB 181), and that he had been “attacked in March 2012 by Singhalese who considered he was a ‘troublemaker’ because he spoke up for Tamil fisherm[e]n” ([5] at CB 179).

27. The Tribunal’s finding that the applicant was not credible in his claims of past harm because he was a Tamil fisherman was reasonably open to it. Relevantly, this finding, when the Tribunal’s decision is read contextually, and holistically, included the claim of the applicant being attacked in March 2012.

28. In my view, this circumstance falls squarely within what was said by the Full Federal Court in Applicant WAEE at [47]:

    “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”

1. In all, ground one is not made out.

2. Ground two asserts, in its terms, that the Tribunal fell into error because it disposed of some of the applicant’s claims against the complementary protection criterion on the basis that the “real risk test”, as it applies to complementary protection, was equivalent to the “real chance test”, as it applies to the Refugees Convention criterion for the grant of the visa (see [58] at CB 191).

3. The applicant’s ground, as pleaded, is not made out because there is no error in the Tribunal so finding, given what was relevantly said in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242] - [246] (“SZQRB”). The Tribunal made reference to this authority and applied what was relevantly said there to the circumstances before it ([58] at CB 191 to CB 192).

4. Before the Court, the applicant explained the ground with a different focus. This was as follows. There are relevantly two different criteria for the grant of a protection visa as expressed in ss.36(2)(a) and 36(2)(aa) of the Act. While they have the same standard of a “real risk”, each of the two criteria have different elements to which the Tribunal must have regard.

5. The applicant’s argument was that the Tribunal considered certain elements of the applicant’s claims under the Refugees Convention criterion (s.36(2)(a) of the Act), but it did not consider those elements of the applicant’s claims under the complementary protection regime (s.36(2)(aa) of the Act).

6. These elements were identified by the applicant’s submissions as follows. One, being a fisherman. Two, being a failed asylum seeker. Three, holding a political opinion. Four, being a member of a particular social group.

7. I pause to note that membership of a particular social group is usually identified as a Refugees Convention concept and not, of itself, as being part of the complementary protection regime.

8. In any event, the applicant drew attention to the Tribunal’s analysis under the heading of “Real risk of significant harm”, and as that related to the complementary protection criterion (see [55] at CB 190 to [59] at CB 192).

9. At [56] (at CB 190 to CB 191) of its decision record, the Tribunal considered the applicant’s claims to discrimination as a Tamil in the context of s.36(2)(aa) of the Act. At [57] (at CB 191) of its decision record, the Tribunal considered his illegal departure from Sri Lanka in the same context.

10. Before the Court, the applicant drew specific attention to [58] (at CB 191 to CB 192):

    “58. In relation to the balance of the applicant’s claims, The Tribunal found above the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB. Given the test is not the same, for the same reasons set out above in relation to real chance, the Tribunal is not satisfied the applicant has a real risk of significant harm.”

    [Emphasis added. Footnotes omitted]

11. A number of elements emerged from the applicant’s submissions.

12. First, it is important to note that findings of fact which do not, of themselves rely on any Refugees Convention concept, and as expressed earlier in the decision record, do not need to be restated by the Tribunal when it comes to specifically considering the complementary protection criterion (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 (“SZSHK”)). In short, the Tribunal was entitled to consider the complementary protection criterion in light of, and with reference to, its previous findings of fact (SZSHK at [30] - [34] and the Minister’s specific reference in [6] of his written submissions to SZUYK v Minister for Immigration and Border Protection & Anor [2016] FCA 216; (2016) 151 ALD 360 (“SZUYK”) at [36] ).

13. Second, and in this light, I agree with the Minister that at [58] (at CB 191 to CB 192) of its decision record, the Tribunal’s reference to “the balance of the applicant’s claims” as it appears in the context of the consideration of the complementary protection criterion, is a reference to the balance of the applicant’s claims that “survived” findings of fact expressed earlier by the Tribunal, in addition to claims of discrimination and illegal departure. These were that he was a Tamil fisherman and a failed asylum seeker.

14. Third, to the extent that the applicant’s ground seeks to re-agitate the factual claims of past harm as raised in ground one, this must also be rejected as a basis for ground two for the same reasons as set out above.

15. That is, the Tribunal found as not credible, the applicant’s claims to have suffered past harm for reasons of being a Tamil fisherman who was a “leader” of fishermen in his home village, at the hands of Singhalese fishermen and the Sri Lankan Army. That finding of fact, and the antecedent findings that informed it, were not dependent on any application of a Refugees Convention nexus. The Tribunal did not accept, for the reasons that it gave, the applicant’s factual assertions, as to what he said had relevantly occurred in the past (see especially [30] at CB 183 to CB 184).

16. In this analysis, the Tribunal made reference to the applicant’s

    
    

    post-hearing submissions. The submissions argued that the conflict between the applicant and the Singhalese fishermen “should be considered under the [Refugees] Convention”, on the basis of a failure of state protection ([29] at CB 183). However, the Tribunal’s findings at [30] (at CB 183 to CB 184) did not rely on any assessment of the Refugees Convention concept of state protection. It did not need to do so because its findings of fact stood, and were absent any references to the Refugees Convention. Once the factual basis for the applicant’s claimed fear was rejected, the Tribunal did not need to further consider any absence of state protection.

17. Fourth, in submissions before the Court, again with reference to, in particular, [58] (at CB 191 to CB 192) of the Tribunal’s decision record, the applicant’s articulation of legal error on the part of the Tribunal was, in part, based on the assertion that the Tribunal did not adequately, or sufficiently, distinguish between the concepts of “serious harm” and “significant harm”, as each applied respectively to the Refugees Convention (s.36(2)(a) of the Act) and the complementary protection criterion (s.36(2)(aa) of the Act).

18. Again, this argument is premised on an unfair reading of the Tribunal’s analysis. The Tribunal found that there was not a “real risk” or a “real chance” (as it applies to both ss.36(2)(a) and (aa) of the Act, and see SZQRB), of any future harm arising from the applicant being a fisherman or a failed asylum seeker (these being the “balance of the applicant’s claims” addressed at [58] (at CB 191 to CB 192) of the Tribunal’s decision record).

19. In this light, I agree with the Minister that the difference between the definitions of “serious harm” and “significant harm” does not, in the circumstances, reveal legal error in the Tribunal’s decision on this basis. That is because, given its findings of fact, absent reference to, or reliance on, either definition, there was no future conduct left that had a “real chance” or a “real risk” of occurring, that fell within either definition.

20. Fifth, in his submissions before the Court, the applicant referred to SZUYK at [14]. He submitted that, in that case, the Tribunal (as is evident from the extracts of the Tribunal’s decision record in that case set out at [14]), set out the applicant’s claims in a comprehensive fashion. In the current case, by comparison, there has been “a short circuiting” of the reasoning required of the Tribunal. That is, the Tribunal’s reasons were brief.

21. It is the case that the Tribunal’s conclusions on the complementary protection criterion as expressed at [59] (at CB 192) of its decision record may be, with respect, described as Her Honour did in SZUYK as being “a somewhat compressed consideration of the complementary protection claims” but are nonetheless “adequate in the circumstances” (SZUYK at [36]).

22. When [58] (at CB 191 to CB 192) is read with [59] (at CB 192) which, in context, is to be read fairly as set out above, the consideration is “adequate in the circumstances” (SZUYK at [36]). That is, the complementary protection findings are to be read in context of the factual findings expressed earlier in the Tribunal decision record.

23. In all, ground two is not made out.

Conclusion

1. Neither ground of the application is made out. It is appropriate to dismiss the application as further amended. I will make the appropriate order.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  18 August 2017