BSI15 v Minister for Immigration

[2016] FCCA 1969

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1969

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether credibility findings were founded on an incorrect approach by the Tribunal – whether the Tribunal failed to properly consider the applicant’s claims to complementary protection – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R

Convention Relating to the Status of Refugees 1951

Cases cited:

Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
MZZNK v Minister for Immigration & Border Protection [2015] FCA 217
NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Applicant: BSI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1941 of 2015

Judgment of: Judge Smith

Hearing date: 13 July 2016

Date of Last Submission: 13 July 2016

Delivered at: Melbourne

Delivered on: 13 July 2016

REPRESENTATION

Counsel for the Applicant: Mr A. McBeth

Solicitors for the Applicant: Wimal & Associates

Counsel for the Respondents: Ms C. Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1941 of 2015

BSI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 30 July 2015. The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa. There are two grounds in the proceedings. First, that the Tribunal applied the incorrect approach to its credibility findings, and secondly, the Tribunal erred by failing to properly consider the applicant’s claims to complementary protection. In order to understand those grounds and the arguments in support of them, it is necessary first, to set out a brief background of the Tribunal’s decision.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 22 July 2012. On 14 January 2013 he lodged an application for a protection visa. The following summary of his claims in support of that application are taken from the applicant’s written submissions to this Court at [2] – [12], which are set out below.

   2.The applicant is a Tamil of Hindu religion who previously lived in the Jaffna district in the Northern Province of Sri Lanka. The applicant sought protection on the basis of a well-founded fear of persecution based on:

   a.his race or ethnicity as a Tamil;

   b.his imputed political opinion as a presumed supporter of the LTTE;

   c.      his membership of a particular social group, namely failed Tamil asylum seekers;

   d.his membership of a particular social group, namely young male Tamils from the Northern Province.

   3.     The applicant also sought complementary protection due to a real risk of torture or cruel, inhuman or degrading treatment as a consequence of his return to Sri Lanka.

   4.The applicant gave evidence of three separate occasions when he was arrested and interrogated by authorities on the basis of his ethnicity and/or imputed political opinion and/or membership of a social group between October and December 2006, before fleeing Sri Lanka in January 2007.

   5.The second such occasion in November 2006 followed an incident the previous evening in which a bomb had exploded and killed two army officers. The applicant gave evidence that he and four other young Tamil men had been interrogated and beaten, to be “made an example of because of those officers that had been killed by the Tamils the previous night”.

   6.Of the four others involved in that incident, two were later abducted. The body of one of the applicant's friends had been shot and he had apparently been tortured and his body mutilated. The other friend has never been found.

   7.The third arrest in December 2006 involved assault of the applicant by three army officers. The applicant was made to hold a grenade and told to admit that he had been found with the grenade in his possession, or they would detonate the grenade. The applicant was beaten and subjected to sexual assault during this incident, which lasted for approximately four hours.

   8.Following these incidents, the applicant fled Sri Lanka for India in January 2007. He remained there until August 2008, when he returned to Sri Lanka, working in Colombo until September 2009.

   9.In July 2009, the applicant was arrested for a fourth time and was released when his employer paid a bribe.

   10.Having discovered that the threat to his safety had not dissipated as he had hoped, the applicant then departed Sri Lanka for the final time in September 2009, heading for Malaysia, where he was registered with the UNHCR. He then went to Indonesia, where he was detained in immigration detention, before travelling by boat to Australia in November 2011.

   11.The applicant gave further evidence at the Tribunal hearing that his brother had sought asylum in the United Kingdom and returned to Jaffna in 2014 when his claim was unsuccessful. The applicant told the Tribunal that his brother had been interrogated in Jaffna “about his activities overseas, why he came back, and his siblings, his contact with his siblings”. The applicant said that his brother had been beaten and tortured, requiring him to be hospitalised.

   12.The applicant produced a photograph of his brother's injuries to the Tribunal, along with medical records, after the hearing.

2. On 6 September 2013 a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal for a review of that decision. The functions of that Tribunal were taken over by the Administrative Appeals Tribunal on 1 July 2015, and so it was the Administrative Appeals Tribunal which ultimately completed the review.

3. After a hearing on 8 July 2015, the Tribunal made its decision to affirm the decision of the delegate on 30 July 2015. In light of the nature of the two grounds in this application, it is convenient to state the applicant’s arguments on each and then to refer to the parts of the Tribunal’s reasons that relate to each ground, rather than summarising them in advance.

Consideration

First Ground

1. The first ground relates to the credibility findings. As I understand them, the applicant’s argument proceeded as follows:

   i)the most significant event in the applicant’s claims were those which occurred in November and December 2006;

   ii)those and all other claims made by the applicant were rejected on the basis of the Tribunal’s credibility findings; and

   iii)the Tribunal gave 11 reasons for those findings.

2. Of those 11 reasons, all but two related to the brief period when the applicant returned to Sri Lanka from India before deciding to flee permanently from that country in 2009. Most of those relate to either minor inconsistencies, or to the Tribunal’s disbelief that the applicant would have sought to return to his family when the civil war was still going on. Further, the remaining two reasons, and particularly the tenth reason given by the Tribunal, were minor.

3. Next the Tribunal’s credit findings were then used to disbelieve other aspects of the applicant’s claims, as well as certain documents relied upon by him to corroborate those claims. The applicant argued that credibility findings are vulnerable to judicial review and relied upon the statement by Beach J in MZZNK v Minister for Immigration & Border Protection [2015] FCA 217 (“MZZNK”) at [22] – [23]: set out below:

   22Now this may not be an unusual circumstance. But an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:

   (a)First, commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.

   (b)Second, engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.

   (c)Third, viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties (particularly when an interpreter has been used) or due to reticence to be forthcoming with people or bodies perceived to be in authority; inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability.

   (d)Fourth, viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal.

   (e)Fifth, discounting documentary material put forward by the applicant without good reason.

   (f)Sixth, placing an onus on the applicant to establish that he was truthful.

   (g)Seventh, failing to assess all material before reaching a view as to whether the applicant’s version of events was rational or indeed probable.

   23Whether such an error could amount to a jurisdictional error need not be debated here. Having reviewed the Tribunal’s reasons in the present case, I am satisfied, as was her Honour no doubt, that the Tribunal had not performed its task in an impermissible fashion. Moreover, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not presently to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it did engage (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [133] per Crennan and Bell JJ). In my view, it was so open.

4. The applicant argued that the Tribunal engaged in a combination of these errors in its treatment of the applicant’s credibility and other evidence. However, that it is neither a fair nor an accurate assessment of the Tribunal’s reasons. In my view, the Tribunal’s factual findings were all based upon logical grounds. Before dealing with those findings, it is necessary to broadly say something about credit findings.

5. First, while it is undoubtedly true that credit findings may be open to judicial review, in my view it is not correct to say that the matters identified by Beach J in MZZNK were, without more, examples of jurisdictional error. I do not take the applicant to have said as such, I simply make the point. Indeed, Beach J did not say that and to do so, in my view, would be inconsistent with a long and consistent line of High Court authority.

6. The first of those is the decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (“Aala”), where Gleeson CJ said at [4]:

   Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.

7. Next, in the decision of applicant NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 (“NAAF”), Kirby J said at [81]:

   … decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

8. Finally, the issue of credit findings was an important aspect of the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 (“Applicant S20/2002”). In that case the Gleeson CJ said, at [12]:

   It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

9. His Honour continued at [14]:

   Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all the issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

10. In my view those comments are particularly apt in this case. In the same matter McHugh and Gummow JJ said, at [49]:

    It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.

11. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal’s reasoning that because the applicant cannot be believed it cannot be satisfied with the alleged corroboration. A similar conclusion might be drawn, as will be seen, about the Tribunal’s reasoning about certain corroborative documents in this case. In my view, in effect, the applicant’s argument in ground 1 goes no higher than an attack on the merits. That said, given the careful argument presented on behalf of the applicant today and in his written submissions, it is necessary to consider the Tribunal’s reasons.

12. As noted, there were 11 separate or particular reasons given by the Tribunal for its conclusion that it did not accept what the applicant claimed to have happened to him in the past in Sri Lanka. The first of those was set out at [26] and [27] of the Tribunal’s reasons. The logic apparent in those paragraphs was self-evident. On the applicant’s evidence he had fled in the face of horrific treatment and the fear that he would, like two others in his circumstances, be mutilated and killed. Against this, it was open for the Tribunal not to accept the applicant’s reason for returning that is, that he missed his family. It was rational to infer, in the circumstances, that a person facing torture and death might put up with loneliness in a foreign country.

13. The second reason given by the Tribunal is set out at [29] and [32] of its reasons. Here there were two concerns. Firstly, that the applicant did not check whether he could actually reach his family when he got back to Sri Lanka. His family was in Jaffna, an area often in the control by the LTTE during the civil war, and in all of those circumstances it is reasonable to infer that if the only reason for returning to Sri Lanka was to see the family left behind that a person might first ascertain whether he would be able, in fact, to do so. Otherwise the journey could reasonably be said to have been wasted.

14. Secondly, the applicant did not apply for sanctuary or a job in India. Again, the logic behind the Tribunal’s concerns was clear. A person who flees for his or her safety might be expected to follow through and actually apply for recognition so as to avoid being returned to harm. I might add at this point, while I am pointing out the logic of the Tribunal’s reasons that is not to say that this Court or any other decision-maker might apply the same logic to disbelieve the applicant. The only real question is whether it was open for the Tribunal to engage in the reasoning that it did.

15. The third point raised by the Tribunal was at [33] to [36] of its reasons. In these paragraphs the Tribunal examined various inconsistencies in the evidence given by the applicant about what occurred to him upon arrival at the airport in Colombo on return from India. The applicant did not deny there was such inconsistencies and it does not appear that the applicant takes any issue with the Tribunal’s reasoning at least in this respect.

16. The fourth concern is set out at [37] to [39] of the Tribunal’s reasons. The gist of the concern in these paragraphs was that in spite of fearing grave harm and death from the authorities, the applicant went to those authorities in order to leave Sri Lanka again and also stayed in Colombo for 13 months. There is an inherent contradiction in those facts that once again provides a logical basis to doubt the truth of the claims.

17. The fifth matter is set out at [40] to [43] of the Tribunal’s reasons. The concern here was that even though the applicant said he was arrested on suspicion of LTTE support he was never, in fact, asked questions by the police about that. In my view, it is logical that the police would ask questions about the basis for the arrest of a person, and for that reason it was open to infer that there was no such basis if there were no such questions.

18. The sixth element of the Tribunal’s concerns about credibility were set out at [44] to [47]. The Tribunal here questioned the authority’s suspicion of the applicant in circumstances where he crossed many checkpoints for his work as a three-wheel driver and yet nothing had occurred to him in all of that time. Once again it was open to infer, in my view, that someone suspected of LTTE involvement in the middle of a civil war, in regular contact with the authorities, would at least, at some stage, have had some negative incident, if I can put it neutrally, occur to him.

19. The seventh point made by the Tribunal is set out at [48] to [49]. Here the reasoning of the Tribunal can be broken down as follows:

    i)the police in Colombo knew where the applicant was;

    ii)if they wanted to find him they could;

    iii)they did not look for him;

    iv)thus they did not want to find him;

    v)there was no particular reason they wanted to find him.

20. Once again, although other decision-makers might disagree about the outcome of these matters, there is nothing wrong with either the premise nor the outcome of the reasoning.

21. The eighth basis is set out at [50] and concerned the fact that the applicant left legally from Sri Lanka via the airport in 2009. In my view, it is obvious that the fact that a person is allowed by the authorities to leave a country legally can support the conclusion that those authorities have no adverse interest in that person, and that is the inference drawn by the Tribunal.

22. The ninth point was at [51] to [53]. Here the Tribunal returns to the claim that the applicant feared that he would be taken, mutilated and killed by the authorities in Jaffna after that had happened to several others in 2006. The Tribunal found that such a grave fear was inconsistent with what he did namely, to stay in Jaffna and to continue to go to work. That is, taking no steps at all in that period to avoid the harm he feared. Once again, that inference was clearly open on the material.

23. The tenth point made by the Tribunal is at [54] to [56]. Here the Tribunal was concerned with several minor inconsistencies in the applicant’s evidence. As the applicant properly submits, the Tribunal recognised that these might not be significant but, it added, in light of the other matters they further undermined the applicant’s credibility. In my view there is no error here. As noted in both Aala and NAFF, issues of credit are complex and can turn on what seem to others to be quite trivial matters. To go further and say that they are evocative of jurisdictional error is, in my view, to mistake the proper role of the Court and to ask it to trespass into the forbidden field of merits review.

1. The eleventh point made by the Tribunal is at [57] to [58] of its reasons. In this passage the Tribunal dealt with the claim about his brother and documents said to corroborate his claim. It is really only necessary to focus on the latter. There are two reasons why there is no error in this respect. First, as the Tribunal noted, the photos and medical reports do not indicate how the injuries were sustained, thus they were hardly cogent evidence of that aspect of the applicant’s claim. And secondly, there is nothing wrong at all with rejecting corroborative evidence on the basis of strong credit findings, and I refer in this respect to the decision in Applicant S20/2002, and in particular the judgment of McHugh and Gummow JJ.

2. Finally, under the heading “Other Matters”, the Tribunal set out its consideration of matters that might be said to have been supportive of the applicant’s credibility, including a number of documents that were relied upon as corroborative of the applicant’s claims. The applicant argues that it was erroneous for the Tribunal simply to reject those documents on the basis of its significant credibility concerns that it had elucidated in the previous paragraphs and I have summarised above.

3. Once again, there are two answers to this. First, contrary to the applicant’s argument, it is open to a decision-maker to reject corroborative documents simply on the basis of strong credit findings, and I again refer to Applicant S20/2002. Secondly, it is clear from [65] of the Tribunal’s reasons that the Tribunal found in the alternative: that even if those documents were what they were and said what they said, they did not have any bearing on the applicant’s claims, and for the reasons that are disclosed there. I note in this respect that unlike the decision in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 the Tribunal here did actually consider the corroborative material rather than setting them to one side or simply overlooking them and so did not fall into the same error identified by Robertson J in that decision.

4. The Minister submitted that the Tribunal’s reasons concerning credibility in this case were, perhaps unusually, very detailed and comprehensive. I accept that that is an accurate description of those reasons. This was not, unlike many decisions that come before the Court, one that included a high-level throwaway line about some inconsistency or general demeanour at a hearing, but rather it was evocative of a carefully considered and detailed set of reasoning taking into account both negative and positive aspects of the material before the Tribunal before arriving at the ultimate conclusion, set out both at [25] and [66] of the Tribunal’s reasons, that the applicant had fabricated his account of events.

5. For those reasons, I conclude that there is no jurisdictional error exhibited in the way in which the Tribunal dealt with the credit of the applicant, and I reject the first ground.

Second Ground

1. The second ground is that the Tribunal failed to consider the complementary protection claim. There is no dispute that such a claim was, in fact made, although there was some dispute about the extent of that claim. In my view that dispute is not necessary to the resolution of the issue. Nor was it disputed by the Minister that a failure by the Tribunal to consider the complementary protection claim would have amounted to jurisdictional error in the circumstances of this case. However, in my view the answer is that the Tribunal plainly considered the claim as it arose in the material and dealt with that claim.

2. There are two reasons that I come to that conclusion. The first is that to a large extent the applicant’s argument relied upon the submission that the extent of the Tribunal’s consideration of complementary protection was found in [162] to [173] of its reasons. While it is true that those paragraphs were preceded by the heading “Complementary Protection” and did, indeed, deal with that issue, in my view the Tribunal, throughout its reasons, reveal that it had dealt with those issues.

3. The second point, as will become clear when I go through the Tribunal’s reasons, is that the applicant’s complaint that what occurred prior to [162] was purely and wrongly through the focus of the Refugee Convention criterion found in sub-s.36(2)(a) of the Migration Act1958 (Cth). It is important to understand that the two criterion, while similar in some respects, are worded quite differently, and it is the use of the different words throughout the Tribunal’s reasons that has led me to conclude ultimately that the Tribunal was dealing with both the complementary and Refugee Convention claims throughout its reasons.

4. In order to understand that, it is necessary to set out those criteria found in s.36 of the Act:

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   It is important to understand, in respect of sub-s.36(2)(a) that a person will be a refugee or will be owed protection obligations as such under the Refugee Convention if he or she is found to have a well-founded fear of persecution for one of the nominated reasons in article 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the protocol in 1967.

5. In turn, the question of persecution is ordinarily considered through the focus of the words “serious harm”, which at one point was found in s.91R of the Act. By contrast, the criterion in sub-s.36(2)(aa) refers to “significant harm and real risk”. Significant harm is a term defined in turn in paragraph sub-s.36(2)(a), as well as in s.5 of the Act. Thus while there is apparently some overlap between the notion of what amounts to persecution for the purpose of the Refugee Convention and significant harm for the purposes of sub-s.36(2)(aa), it is important to note for the following discussion that the words and the entirety of the concepts are distinct.

6. Turning back then, to the Tribunal’s decision, it is first necessary to note that in an annexure to its lengthy decision it sets out a summary of the relevant law. Importantly, it separately considers there the summary of the refugee criterion in sub-s.36(2)(a) and the complementary protection in sub-s.36(2)(aa). In respect of the latter, it expressly sets out its understanding of the meaning of the term “significant harm”. I take from that that, it was aware of the distinction between significant harm, serious harm and also the difference between well-founded and real risk, at least the use of the terms.

7. In its reasons, the Tribunal started off at [1], by stating that the applicant sought a protection visa on the ground that he was a refugee or entitled to protection under Australia’s complementary protection provisions. This reveals that from the beginning of its reasons the Tribunal was cognisant of that claim. That cognisance, in my view, translated into consideration of the claim. At [22], in dealing with credibility claims, the Tribunal said:

   Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”.

8. At one point in the oral argument, counsel for the applicant suggested that the reference to significant harm there was an error, and that what the Tribunal meant to say was “serious harm”. He stood back a little from that argument ultimately. If he had have maintained it, I would have rejected it simply because it says what it says and, indeed, at the end of [21], that is the paragraph immediately preceding that statement, the Tribunal refers to the assessment of the applicant’s complementary protection claims.

9. Next, insofar as the applicant’s claims were based upon past events, that is, claims concerning complementary protection were based upon past events, and the adverse interests of authorities. Those were comprehensively rejected at [66] of the Tribunal’s reasons. There it found that the applicant was not a witness of truth and that he had exaggerated and fabricated accounts of events, as well as claimed fears “upon which he based his protection claims”. In the context I find that the reference to protection claims includes a reference to both complementary and refugee protection claims.

10. That conclusion is fortified by [47] in which the Tribunal says that it was not satisfied the applicant faces a real chance of serious harm or a real risk of significant harm in this respect. That is referring to a particular claim as to being Hindu, but it following so closely on [66] the Tribunal must be taken to have been cognisant of the difference between those two claims when making its credibility finding in that paragraph.

11. Next, at [88] and [89], the Tribunal again refers disjunctively to the concept of real chance and real risk, again highlighting and bringing into its reasoning the distinction between the two criteria in sub-s.36(2)(a) and sub-s.36(2)(aa). The Tribunal then turned to consider what might happen upon return to the applicant more generally. It found that the applicant had not departed illegally from Sri Lanka but dealt with the claim that the applicant would be returning as a failed asylum-seeker, and it was in this context, it dealt with what might happen to the applicant at the airport.

12. One of the applicant’s complaints in this case was that the Tribunal’s sole focus in connection with the complementary protection criterion was that it only dealt with the airport claim, but in the passages I have referred to earlier that is clearly not the case. In any event, at [98] it is clear that the Tribunal, by using the words “and risk” is referring, in this connection, to the complementary protection criterion. Similarly, in [122] the Tribunal uses the phrase, again disjunctively, “from real chance of serious harm to real risk of significant harm”.

13. At [130] and [131] it again refers disjunctively to real chance and real risk, and again persecution disjunctively from real risk of significant harm. At [140] and [141] the Tribunal again refers both disjunctively to real chance and real risk, as well as turning to the question of significant harm by reference to deliberate mistreatment. I should explain that deliberate mistreatment comes from the definition in s.5 of a number of the particular aspects of significant harm that are defined in section sub-s.36(2)(a).

14. Finally, the Tribunal does deal, and the applicant accepts, with complementary protection in [162] to [173]. I accept the Minister’s submission that at [163] what the Tribunal is doing is to summarise the factual claims that survived the Tribunal’s finding that the applicant had fabricated his claims, and that it proceeded to deal with the balance of the complementary protection claim on the basis of those facts. The fact that it did so is highlighted by a number of paragraphs, as well as the heading, including [166], [167], [170] and [173].

15. For those reasons, I consider that the Tribunal comprehensively understood and dealt with the applicant’s complementary protection claims under sub-s.36(2)(aa) of the Act, and for that reason the second ground is rejected.

16. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 9 August 2016