BAS18 v Minister for Immigration and Anor (No.2)
[2020] FCCA 1729
•10 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAS18 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1729 |
| Catchwords: MIGRATION – Temporary Protection Visa application – review of Immigration Assessment Authority decision – whether Authority made a cumulative assessment of its findings – whether Authority erred in failing to cumulatively consider its findings of remote chances of harm – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 476 |
| Cases cited: BAS18 v Minister for Home Affairs & Anor [2018] FCCA 1940 CED17 v Minister for Immigration and Border Protection [2018] FCA 877 Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 41 ALD 1 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 SZQFC v Minister for Immigration and Citizenship [2012] FCA 409; (2012) 126 ALD 530 |
| Applicant: | BAS18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 570 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 2 April 2019 |
| Date of Last Submission: | 26 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Stamford Law Firm |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
ORDERS that the further amended application dated 18 July 2019 be dismissed.
ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $6,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 570 of 2018
| BAS18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant seeks judicial review of a decision of the Immigration Assessment Authority made on 21 November 2017, affirming a decision of the Delegate of the First Respondent, the Minister for Home Affairs (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 5 September 2017 to refuse to grant the Applicant a Temporary Protection (subclass 785) Visa.
On 3 March 2018, the Applicant lodged an application for extension of time in which to seek judicial review of the Authority’s decision in this Court. On 16 July 2018, having heard both parties, I granted the extension of time: see BAS18 v Minister for Home Affairs & Anor [2018] FCCA 1940, and granted leave to the Applicant to file and serve a further amended application. That further amended application was filed 18 July 2018.
Background
The Applicant is a Shia Faili Kurd, and a national of Iraq. He entered Australia by boat in September 2012, as an unauthorised maritime arrival. On 29 November 2012, he attended an “Irregular Maritime Arrival Entry Interview” with officers of the Department of Immigration and Citizenship (as it then was).
On 29 June 2016, the Applicant lodged the application for the Visa, and provided a statement in which he made claims for protection under the Act. On 17 July 2017, he participated in an interview with the Delegate, and on 5 September 2017, the Delegate refused to grant the Applicant the Visa.
On 8 September 2017, the Delegate’s decision was referred to the Authority for review as a fast track reviewable decision under Part 7AA of the Act. On 21 November 2017, the Authority affirmed the Delegate’s decision.
The Applicant’s claims
The Applicant’s protection claims are summarised at [6] of the Authority’s decision. In sum, the Applicant claims:
(a)his family participated in the March 1991 uprising against Saddam Hussein’s regime and fled to Iran for several years before returning to Al-Imara, Maysan governorate, in 1994;
(b)two of his uncles, who were officers in the Ministry of Defense, were wounded during an explosion at a military parade on an unspecified date. One later died of his wounds and the other was disabled;
(c)in 2006 the Applicant was shocked to learn that he had two step‑sisters and that his ‘parents’ and ‘brothers’ were in fact his grandparents and uncles;
(d)as a result of this revelation about his origins, his family and local people said hurtful things and treated him unfairly;
(e)on an unspecified date he asked a girl to marry him but was refused and then beaten by her cousin when he was caught meeting secretly with her. His girlfriend’s cousin also threatened to kill him if he continued to see her (I note that this relationship has ended, and both parties have since entered new relationships);
(f)his family and tribe(s) did not like him wearing Western clothes or having a Western style haircut;
(g)he is a Shia Faili Kurd and fears harm as a result of his religion and ethnicity and the security situation in Iraq; and
(h)(as set out in the final dot point of [6]) “as a returnee from the West he will be regarded by Sunni and Shia fundamentalists as a secularist and an apostate”.
The Authority’s decision
The Authority accepted that the Applicant is a Shia Muslim. It broadly accepted the Applicant’s claims concerning his uncles, and noted that the Applicant had not claimed he fears harm as a result, or explained how or why their difficulties are relevant to him. The Authority was satisfied that the chance was remote that the Applicant will suffer serious harm as a result of his uncles’ circumstances (at [12]).
The Authority accepted aspects of the Applicant’s claim about his family circumstances. However, the Authority did not accept that he has no family in Iraq or was abandoned or seriously abused by them, or that he is estranged from them. The Authority noted that his family helped to support him when he was unemployed prior to coming to Australia, and that in his Visa application he said he was in regular contact with his family and identified an uncle as his emergency contact (at [17]).
The Authority was not persuaded that the Applicant’s only employment option on return to Iraq will be to join the PMF or the Iraqi army and considered this claim to be speculative (at [18]). The Authority did not accept that the Applicant has been disowned by his family and will not have a place to live if he returns to Iraq. The Authority was satisfied that the Applicant could safely return to Al-Imara (at [19]).
The Authority noted that when asked by the Delegate whether the Applicant thought he would be harmed in any way on return to Iraq, the Applicant provided a vague and general response. Having considered all the evidence, the Authority was satisfied that the chance was remote that the Applicant will suffer serious harm as a result of his family origins being revealed in 2006 (at [20]).
In respect of the Applicant’s claim that he feared for his safety after being targeted by the family of a girl whom he had asked for in marriage, the Authority noted that the Applicant confirmed at his interview with the Delegate that their relationship had ended. The Authority was satisfied that the chance is remote that he will suffer harm as a result of his former or current relationships (at [23]).
In respect of the Applicant’s claim that he feared harm due to his way of dress, the Authority stated at [24] to [25]:
[24]I accept that Iraq is a more conservative country than Australia. I also accept that in 2017 a male model was thought to have been murdered in Baghdad by radical Islamists because of his appearance, and that barbers in Mosul were threatened by Islamic State over the way they dressed and cut their hair. However I find that the applicant’s profile is not consistent with that of the model or the barbers and that he lived in the south, rather than in either Mosul or Baghdad where there is a real chance of harm by Islamic State.
[25]I accept that the PMF has banned certain unspecified hair styles in the south; that some people in the applicant’s family and tribe(s) may have expressed verbal disapproval of his style of dress and haircut; and that the applicant may prefer the less restrictive Australian lifestyle. I also accept that there is a real chance that on return to Al-Imara the applicant may face some low level social disapproval about his choice of clothing and hairstyle. However I do not accept that such treatment amounts to serious harm and I am satisfied that the information before me does not suggest a real chance of serious harm in the south for wearing western clothes or hairstyles.
The Authority cited country information about the circumstances of Faili Kurds at [28], and at [29] accepted that the Applicant and his family were Faili Kurds. However, the Authority continued at [29]:
[29]… I note the applicant has not claimed that he is a stateless Faili Kurd and he possesses an Iraqi citizenship certificate. Nor has he claimed that he personally, or his family, have suffered any harm because of their ethnicity since the fall of Saddam Hussein's regime. While it is not implausible that the applicant may experience some low level discrimination as a Faili Kurd on return to Iraq, I am satisfied that the chance is remote now or in the reasonably foreseeable future that the applicant will suffer serious harm as a result of his Faili Kurd ethnicity. (The Applicant draws attention to the passage emphasised.)
At [31], the Authority considered country information in southern provinces of Iraq, including Maysan. It referred to the risk of being caught up in intra-Shia violence, as:
… predominantly borne by those who are actively involved in the militia or tribal group, rather than ordinary civilians who may be perceived to be part of a militia or tribal group’s constituency. Overall, DFAT assesses that official and societal discrimination against Shias is low, particularly in Shia areas. Shias in Baghdad face a moderate risk of violence, whereas Shias in other Shia areas (such as the south) face a lower risk of violence. Southern Iraq has been and remains more secure than other parts of the country.
At [32], the Authority found:
I accept that Shias have been subject to isolated attacks in Maysan governorate. I also accept that a lower risk of harm in an area does not necessarily preclude there being a real chance of harm in that area. However in this case, not only is there a lower risk of harm in the Maysan governorate but having regard to the nature and frequency of incidents in that governorate, I am also not satisfied that there is a real chance of serious harm. I am satisfied that while there is some violence in the south of Iraq, the level of harm is such that the chance of harm does not rise to a real chance and I consider the chance remote that now or in the reasonably foreseeable future the applicant will suffer serious harm as a result of his Shia religion or the security situation in Maysan governorate.
The Authority did not accept that on return to Iraq the Applicant will be regarded as secularised or an apostate. At [33], the Authority stated:
I do not accept that on return to Iraq the applicant will be regarded as secularised or an apostate. Apart from a relationship with girl that her family did not approve of, expressing a preference for wearing casual Western style clothing and styling his hair in a particular way, and being a returnee, he has not articulated how or why he would be identifiable as a secular. I note that when the applicant lived in Iraq he travelled on two occasions to the holy shrines in Iran and he has not claimed that he has renounced his Shia Muslim religion while in Australia. Apart from general claims put forward by his representative, the applicant himself did not otherwise claim to have had any interaction with, or previously suffered any harm from, either Shia or Sunni militants. Having carefully considered the evidence before me, I am satisfied that the chance is remote now or in the reasonably foreseeable future that the applicant will suffer serious harm because of his Faili Kurd ethnicity, because of his Shia religion, because of any perceived secularisation or because of the security situation in Maysan governorate.
At [34], the Authority stated it was not satisfied that there is a real chance that the Applicant will suffer serious harm as a failed asylum seeker and returnee from a western country:
DFAT indicates there is evidence that shows a number of Iraqis return to Iraq, sometimes only months after securing residency in Australia to reunite with families, establish and manage businesses or take up or resume employment. The practice of seeking asylum and then returning to Iraq once conditions permit is well accepted amongst Iraqis, as evidenced by the large numbers of dual nationals from the US, Western Europe and Australia who return to Iraq. DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties in assimilating back into their communities. I am not satisfied there is a real chance now or in the reasonably foreseeable future that the applicant will suffer serious harm as a failed asylum seeker and returnee from a western country.
The Authority then stated:
[35]The applicant's representative claims the cumulative effect of his status creates a heightened profile for him that increases the risk of severe persecutory treatment against him at the hands of both the Shia radical armed groups and Daesh jihadists. I have carefully considered all of the applicant's claims but I do not accept that the applicant has any form of heightened profile. I accept that he is a Shia Faili Kurd. However I do not accept that he was of adverse interest to either Shia or Daesh militants when he departed Iraq. Nor do I accept there is a real chance now or in the foreseeable future that he will suffer serious harm because of his ethnicity, religion, membership of a particular social group or his political opinion.
The Authority concluded that the Applicant did not meet the requirements in s.36(2)(a) of the Act. The Authority then turned to consider the complementary protection criteria in s.36(2)(aa) of the Act, and for the same reasons concluded that the Applicant did not meet the requirements for complementary protection.
At [39] and [40], the Authority found:
[39]I have concluded that the applicant does not face a real chance of harm as a result of his uncles’ employment in the Ministry of Defense; his family or tribal circumstances; his former or current relationships with females; his Shia religion; the security situation in Maysan governorate; or from being a returnee from a western country. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.
[40]I have accepted there is a real chance that on return to Al-Imara the applicant may face some low level social disapproval from some of his family or tribe(s) about his choice of clothing and hairstyle. I have also accepted there is a real chance he may face some low level societal discrimination, such as feeling unwelcome in communities dominated by other groups, because of his Faili Kurd ethnicity. However I find the level of discrimination he may face does not rise to the level of pain, suffering or humiliation required by the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment in s.5(1). It does not amount to torture, arbitrary deprivation of life or the death penalty. I am not satisfied there is a real risk the applicant will face significant harm on this basis.
Ground of review
The Applicant relies on the following ground of review as set out in his further amended application dated 18 July 2018 (without alteration, the underlining being amendments foreshadowed at the hearing for extension of time):
1. The Authority failed to take into account the cumulative effects of persecution. Specifically, the Authority found that the applicant may face low levels of harm for at least three separate reasons (at [25], [29] and [31]), and there was country information before the Authority that some voluntary returnees from the West face difficulties in assimilating back into their communities (at [34])). The Authority attempted to consider the applicant’s claims cumulatively at [35], but limited its consideration to whether the cumulative effect of the applicant's status created a heightened profile. However a separate aspect of a "cumulative" assessment is whether the low levels of harm the subject of the findings at ([25], [29] and [31], as well as the evidence at ([34] that some voluntary returnees from the West face difficulties in assimilating back into their communities, when combined, amount to "serious harm" within the meaning of this term in s.51(4) of the Migration Act 1958 (Cth). The Authority failed to consider this aspect of the cumulative assessment. This is a jurisdictional error.
Proceeding before this Court
On 2 April 2019, I heard the Application. Before me, Mr Zipser of counsel appeared for the Applicant, and Mr Reilly of counsel appeared for the Minister, both of whom had appeared before me on the extension of time application.
The Applicant’s submissions
Mr Zipser refers to four matters identified by the Authority. He submits that each of the four matters may be a finding of a low level of discrimination, or some evidence of violence, but that the Authority did not consider the matters cumulatively. Mr Zipser identifies these four matters as follows.
First, the Authority’s consideration and finding at [24]-[25] that the applicant may face some low level social disapproval about his choice of clothing and hairstyle (see above at [12]).
Secondly, at [26]-[29], in relation to the Applicant’s ethnicity as a Faili Kurd, where the Authority said:
[28]… Credible in-country contacts suggest that societal discrimination against Faili Kurds continues to occur ... DFAT also assesses the risk of Faili Kurds experiencing societal discrimination, notably not being welcomed in communities dominated by other groups, to be moderate.
Mr Zipser submits that in the last sentence of [29] (see above at [13]), by the double negative “not implausible”, the Authority made a finding that it is plausible that the Applicant may experience some low level discrimination as a Faili Kurd on return to Iraq, although not amounting to serious harm.
Thirdly, Mr Zipser points to the finding at [32] that the Authority was satisfied that there is some violence in the south of Iraq, specifically in the Maysan governorate, to which the Applicant will return.
Fourthly, Mr Zipser refers to the Applicant’s claim, at the last dot point in [6] of the Authority’s decision (set out above at [6(h)]) that:
●As a returnee from the West he will be regarded by Sunni and Shia fundamentalists as a secularist and an apostate.
Mr Zipser argues that the Applicant’s claim of fear of harm due to being a failed asylum seeker was clearly before the Delegate, and that it was appropriate and necessary for the Authority to consider the claim, as one squarely arising on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
Mr Zipser argues that the cumulative consideration he says was attempted by the Authority in [33] (see [16] above) does not take into account the Applicant’s claimed fear of harm as a returnee from the West, although it was listed as the fourth matter set out in the heading above [26] in the Authority’s decision “Feared harm due to Faili Kurd ethnicity, Shia religion, the security situation and as a returnee from the West”.
Mr Zipser says that at [34] the term ‘difficulties in assimilating” includes a form of harm to the Applicant, and submits that the fear of harm as a returnee from the West was not irrelevant as the Authority had not factually discharged that claim.
Mr Zipser submits that the Authority’s consideration of the Applicant’s claims at [35] is limited to a consideration of the cumulative effect of the status of the Applicant as creating a heightened profile for him, which the Authority rejects. It is not a cumulative consideration by the Authority of the cumulative effect of its individual findings on the four matters Mr Zipser identifies. Rather, the Authority considered the claim of harm as a returnee from the West separately at [34].
Accordingly, Mr Zipser argues that the Authority failed to properly complete its task of considering whether, combined, the findings of low levels of harm at [25], [29], [32], and [34] of its decision, may in their totality, rise to a level of serious harm within s.5J of the Act. The finding in [35] is not an effective cumulative finding that cures the error that arises from [33] and [34] of the Authority’s decision. And in that failure lies jurisdictional error.
Mr Zipser notes that the Authority made another cumulative finding at [40] (see above at [20]). He submits the finding in [40] similarly fails to consider the findings at [34].
The Minister’s submissions
Mr Reilly submits that the Applicant’s contention rests on a reading of the Authority’s decision that is contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 41 ALD 1 at [272], and is not a fair reading of the decision.
It is not necessary that the Authority explicitly state (e.g., by using the word “cumulative”) that it had considered the cumulative effect of its factual findings that the Applicant may face some “low level social disapproval” about his choice of clothing and hairstyle (at [25]), “low level discrimination” as a Faili Kurd (at [29]), and a remote chance of violence as a result of his Shia religion or the security situation (at [32]). It is clear that the Authority considered the total effect of all its factual findings as it concluded at [33] that the Applicant did not face a real chance of serious harm, and at [40] that the Applicant did not face a real risk of significant harm for any of the reasons claimed: Faili Kurd ethnicity, Shia religion, perceived secularisation, or security situation.
Mr Reilly submits that it would be a perverse reading of the Authority’s decision to suggest the Authority at [33], and at [40], was considering each factual finding in isolation. It is clear from the Authority’s reasons that, as a matter of substance, it did consider the cumulative effect of the Applicant’s circumstances: see SZQFC v Minister for Immigration and Citizenship [2012] FCA 409; (2012) 126 ALD 530 at [65].
The Authority at [33] considered the Applicant’s claim as a returnee as it was presented at [6] of the Authority’s decision. In the first sentence of [33] the Authority found that “I do not accept that on return to Iraq the applicant will be regarded as secularised or an apostate.” The Applicant’s claim to fear harm as a returnee from the West was in connection to Sunni and Shia fundamentalists regarding the Applicant as a secularist and an apostate (see decision at [6], last dot point, and see [6(h)] above). The Authority’s reference to “perceived secularisation” in the last sentence of [33] further shows that the Authority considered the Applicant’s claim.
He submits that the Authority’s consideration at [34] of the Applicant’s position as a failed asylum seeker and returnee from the West was independent of the Applicant’s claim to fear harm. The Authority’s consideration of whether the Applicant faces a well‑founded fear of harm was simply because he is a returnee from a Western country.
The Authority’s finding at [34] that “DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties in assimilating back into the community”, does not mean that voluntary returnees from the West will face difficulties, nor that the Applicant may do so. Mr Reilly submits that contrary to the Applicant’s assertion, a fair reading of the Authority’s finding at [34] is that the evidence is limited, and therefore supports the conclusion that there is not a real chance of harm.
The Authority only found two instances where the Applicant may suffer some form of harm. First, at [25], when the Authority found that the Applicant may face some low level social disapproval about his choice of clothing and hairstyle, and secondly, at [29], that it is not implausible that the Applicant may experience some low level discrimination as a Faili Kurd on return to Iraq. Mr Reilly maintains that other than those two findings, the Authority did not make findings of any likelihood or possibility of harm to the Applicant. The finding at [34], therefore, did not constitute a finding that was required to be included in the Authority’s cumulative assessment of the Applicant’s claims. That cumulative assessment was limited to the matters at [25] and [29] of the Authority’s decision: see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, e.g., at [32], [34], and [38]; CED17 v Minister for Immigration and Border Protection [2018] FCA 877.
Lastly, Mr Reilly submits that, even if the Court was of the view that, contrary to the Minister’s submissions, the Authority had not considered the cumulative effects of its factual findings at [25], [29], and also at [32], they could not thereby cumulatively amount to a real chance of serious harm or a real risk of significant harm: see DDK16; CED17.
Consideration
A fair reading of the Authority’s decision at [33] (see above at [16]) shows that the Authority considered the cumulative effects of the Applicant’s claims to fear harm, including as a returnee from the West, and its factual findings on those claims.
Mr Reilly’s submissions are correct, the various risks said to confront the Applicant on return to Iraq were found not to give rise to a real chance of serious harm, and the Authority considered the whole of the case put forward by the Applicant. The Authority considered each of the claims relied upon by the Applicant in respect of both his refugee and complementary protection claims on a cumulative basis, at [33], and at [40], respectively. Fairly read, the Authority was not in either of those paragraphs considering each factual finding in isolation.
At [33], the Authority first identified, and did not accept, the Applicant’s claim as encapsulated in the last dot point of [6] of the Authority’s decision that on return to Iraq the Applicant will be regarded as secularised or an apostate (see above at [6(h)]). The Authority then proceeded to consider each of the matters which the Applicant claimed as providing a basis for this regard to be “secularised or an apostate” on his return: (i) the former relationship with the girl, (ii) his expression of preference for wearing casual Western style clothing and hairstyle, and (iii) being a returnee. Continuing its consideration in [33], the Authority then referred to the further matter of the Applicant’s Muslim Shia religion, noting that he had not claimed to have renounced it, and that the Applicant had not otherwise claimed to have any interaction with or suffered harm from Shia or Sunni militants.
In this context, I consider the Authority’s statement in the last sentence of [33] of “having carefully considered the evidence before me” brings together all of the Applicant’s claims and evidence before the Authority, the Authority’s separate findings on each of those claims, and its consideration in the preceding paragraphs, and that the conclusion then expressed addresses the Applicant’s claims and the Authority’s findings cumulatively with a finding of satisfaction that “the chance is remote …”, repeating the matters addressed in the preceding sentences in paragraph [33], including by the phrase “any perceived secularisation” the claim rejected in the first sentence of the paragraph, and also the security situation in Maysan governorate.
I accept Mr Reilly’s submission that in the concluding sentence at [33] the Authority considered and addressed the cumulative effect of its factual findings of “low level social disapproval” about the Applicant’s choice of clothing and hairstyle (at [25]), “low level discrimination” as a Faili Kurd (at [29]), a remote chance of violence as a result of the Applicant’s Shia religion or the security situation in Maysan governorate (at [32]), and additionally, that as a returnee from the West the Applicant will not be regarded as secularised and an apostate (at [33], in the preceding sentences).
I reject Mr Zipser’s submission that the Authority’s finding at [34] that “DFAT has limited evidence to suggest that voluntary returnees from the West face difficulties assimilating back into their communities” includes a finding by the Authority of a form of harm to the Applicant. To the contrary, I consider that the Authority at [34] is not expressing a finding that voluntary returnees, such as the Applicant, will face difficulties.
Fairly read, I consider that the Authority is there stating that the evidence that there are any such difficulties in assimilating is limited. In the light of this limitation of evidence of difficulties on return, the Authority expresses its state of non-satisfaction that there is a real chance that the Applicant will suffer serious harm as a failed asylum seeker and returnee. That is, the tenor of the Authority’s consideration is that there is insufficient evidence to support a conclusion of a real chance of serious harm.
I find the Authority did not err by failing to consider its findings at [34] in its cumulative consideration at [33]. The Authority’s consideration in [34] was independent of the claim of the Applicant to fear harm as a returnee, which claim was addressed, and dismissed, both as a separate claim, and cumulatively, in [33].
In relation to the Authority’s consideration of the Applicant’s complementary protection claims, I accept Mr Reilly’s submission, referring to DDK16 (at [32] and [34]) that no obligation to make a cumulative assessment arises where individual claims have been rejected as a factual matter, or dismissed as not giving rise to a real or significant risk of harm upon return. In these circumstances, that the Authority’s cumulative assessment at [40] was limited to the matters at [25] and [29] of the Authority’s decision does not give rise to error.
The Applicant’s ground of review is not made out. The Authority did not fall into jurisdictional error.
Conclusion and Orders
I have concluded that the ground of review is not made out. It follows that the further amended application should be dismissed, with costs.
I will so order.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 10 July 2020
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