CRR18 v Minister for Immigration
[2019] FCCA 2203
•17 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRR18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2203 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in China – applicant disbelieved in part and other claims found not to be well-founded – whether the Tribunal properly considered the risk of psychological harm, or misapplied s.5J of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Applicant A v Minister for Immigration (1997) 190 CLR 225 |
| Applicant: | CRR18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1451 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood, pro bono publico |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application as amended in submissions filed on behalf of the applicant on 25 July 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1451 of 2018
| CRR18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 April 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the supplementary submissions by the Minister filed on 5 August 2019.
The applicant is a female citizen of China who arrived in Australia on 21 September 2014 as the holder of a visitor visa.[1] She lodged a protection visa application on 19 December 2014[2] and set out her written claims for protection in an accompanying (undated) statement.[3]
[1] Court Book (CB) 13
[2] CB 1-26
[3] CB 27-28
The applicant claimed to fear harm from her local village officer, a Mr Wang, whom she said was corrupt and abused his power. In July 2013, Mr Wang held a meeting and informed the applicant and the village people that the Hebei provincial government was promoting the “construction of new countryside”. He informed them that homesteads would be appropriated by the government and villagers were to move into buildings to be constructed on the land. The government forced people to sign the relocation agreements and those who did not were threatened by “village cadres”.[4]
[4] CB 27
On 16 July 2013, the applicant’s home was demolished. Several of the villagers, including the applicant and her husband, petitioned to the Wenan County Letter and Visitor Bureau, reporting Mr Wang’s corruption and the demolition. They repeatedly applied unsuccessfully to the township government for a remedy. The applicant claimed several of the petitioners were beaten and threatened with knives.[5]
[5] CB 27
On 14 October 2013, the applicant and her husband and another petitioner (Mr Wu) were at a restaurant when Mr Wang arrived with other people. A heated argument and a fight ensued, instigated by Mr Wang. During the fight, someone hit the applicant’s husband on the head with a bottle and he later died from his injuries on 30 October 2013. The applicant went to the Wenan County government to make a report but received no response. She then petitioned to the Langfang Public Security Bureau and again received no reply.[6]
[6] CB 27-28
On 6 January 2014, the applicant went to Wenan County Government and was told by an official, “Don’t make trouble for us. We cannot solve your problem related to your husband”. The applicant became angry and yelled at the official. She was detained by the police for three days on a charge of “interference with public function”. “One night” in February 2014, Mr Wang came to her home, “took liberties” with her, threw her to the ground and tore her clothes.[7] This became referred to as “the February 2014 incident”.
[7] CB 28
On 11 January 2016, the delegate made a decision refusing to grant the applicant a protection visa.[8]
[8] CB 53-64
On 11 February 2016, the applicant lodged an application with the Tribunal to review the delegate’s decision.[9]
[9] CB 66-67
On 5 February 2018, the applicant was invited to attend a hearing before the Tribunal on 26 February 2018,[10] which the applicant attended with the assistance of a Mandarin interpreter.[11]
[10] CB 77-79
[11] CB 84-86; 95 at [6]
The applicant raised a new claim at the hearing. She said that Mr Wang had pursued her for many years and had wanted her to become his mistress. She claimed that during the February 2014 incident, Mr Wang told her that if she did not become his mistress, “she would end up like her husband”, and that he later sent someone to threaten her.[12]
[12] CB 98 at [18]
The applicant confirmed that the only claim she pressed was that she would be harmed by Mr Wang if she returned to China because she would continue to pursue him for killing her husband and because she would not become his mistress. She confirmed that she did not fear harm in relation to the resumption of her land, the demolition of her house, the protests made by her husband to the local and township governments, any actual or imputed political opinion, or for any other reason.[13]
[13] CB 98 at [19]-[20]
On 9 March 2018, the Tribunal wrote to the applicant, purportedly pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act) and invited her to comment on certain information. The information concerned identified inconsistencies in the applicant’s evidence about the land requisition and her pursuit of Mr Wang after her husband’s death; omissions in the applicant’s evidence at the delegate’s interview about her relationship with Mr Wang; and her delay after the claimed assault by Mr Wang in deciding to leave China and obtaining a visa to travel to Australia.[14] The applicant was required to respond by 23 March 2018,[15] but provided no response to the Tribunal.[16]
[14] CB 88-91
[15] CB 90
[16] CB 96 at [7]
Decision of the Tribunal
On 30 April 2018, the Tribunal affirmed the delegate’s decision.[17] The Tribunal found key aspects of her evidence were not credible and that she was “prone to embellishing her claims and changing her evidence where it best suits her claims”. The Tribunal did not believe that if the applicant returned to China she would continue to pursue Mr Wang and, even if she did, it was not satisfied there was a real chance he would harm her for that or any other reason in the foreseeable future.[18]
[17] CB 94-106
[18] CB 98 at [21]
The Tribunal had concerns that the applicant’s claim at the Tribunal hearing that Mr Wang had threatened she would “end up like [her] husband” if she did not become his mistress, was not raised in her protection visa application or during the protection visa interview, despite giving the delegate “extensive details” about the assault. The Tribunal also had concerns that the claim was not raised until late in the hearing and after it had expressed doubt about whether there was a real chance that her claims regarding Mr Wang would result in serious or significant harm in the foreseeable future.[19]
[19] CB 99 at [25]-[27]
Despite these concerns, the Tribunal gave the applicant the benefit of the doubt and accepted that:[20]
a)it was “not unlikely” that her property was expropriated and demolished by the government;
b)her husband was killed by “someone” in an altercation relating to complaints her husband made about the demolition; and
c)Mr Wang was ultimately responsible for the man’s death as the instigator of the altercation.
[20] CB 100-101 at [35]-[36]
In light of these findings, the Tribunal considered it “reasonable to accept” that the applicant and her father-in-law had approached several levels of government and police about suing Mr Wang and, despite providing inconsistent evidence, it found the applicant continued her pursuit of Mr Wang after the February 2014 incident. On this basis, the Tribunal found it was also reasonable to accept that the authorities did not have sufficient evidence regarding Mr Wang’s responsibility for the death of the applicant’s husband and he was never in any danger of being held accountable.[21]
[21] CB 101 at [37]
The Tribunal acknowledged it was “not outside the realm of possibility” that after the death of her husband she may have caused such a disturbance that she would be detained by the police for a short period of time. However, in light of its earlier finding that the applicant was inclined to embellish her claims when she felt it was beneficial to her case, the Tribunal found her claim that she had been detained for three days on a charge but then released without any bail or conditions and without the charge ever being pursued or finalised, was “implausible and a clear exaggeration”.[22]
[22] CB 101 at [38]
Due to the lateness of the claim, the applicant’s often changing evidence and its overall concerns with her credibility, the Tribunal rejected the applicant’s claim that Mr Wang would harm her if she did not become his mistress.[23]
[23] CB 101 at [39]
The Tribunal noted that Mr Wang “never followed through on any of the threats” he made and that, other than the claimed February 2014 incident, he never hurt anyone in connection with the applicant’s husband’s death.[24] Regarding the February 2014 incident, the Tribunal accepted that Mr Wang taunted and assaulted the applicant, but also accepted her evidence that Mr Wang never attempted to contact her before she left in September 2014 even though she continued to “sue” him.[25] The Tribunal found the February 2014 incident was “no doubt terrifying” and that the applicant could now feel scared of Mr Wang but, on the basis of the applicant’s evidence, found the incident was a one-off occurrence and there was no real chance that it would be repeated.[26]
[24] CB 102 at [41]
[25] CB 102 at [43]
[26] CB 103 at [45]
The Tribunal considered the applicant’s claim that she would continue to pursue Mr Wang if she returned and, as a result, he would kill her. It found the applicant could not provide any clear details about how she would seek to hold Mr Wang accountable for her husband’s death or what harm she might suffer.[27]
[27] CB 103 at [47]-[48]
The Tribunal also found there was no evidence proving that Mr Wang was directly responsible for the applicant’s husband’s death and it did not believe the Chinese authorities would conclude that Mr Wang could be held accountable for his death.[28] The Tribunal noted the applicant’s evidence that it was “fruitless” to seek to hold Mr Wang accountable. Considered cumulatively, the Tribunal rejected the applicant’s claim that she would pursue Mr Wang any further than she already had should she return to China.[29] The Tribunal also rejected the claim that the applicant would suffer any harm, even if she continued to pursue Mr Wang.[30] On the basis of these findings, the Tribunal found there was no real chance that, if the applicant returned to China, she would be persecuted by Mr Wang.[31]
[28] CB 104 at [50]
[29] CB 104 at [51]
[30] CB 104-105 at [52]-[55]
[31] CB 105 at [58]
The Tribunal considered the applicant’s claim that her village was “full of sorrow” and she did not want to go back.[32] This reasoning is important in the context of the grounds of review now advanced and is set out in full:
Whether [Mr] Wang was responsible for her husband’s death it is clear that [the applicant] was never going to succeed in her attempts to have him held responsible. Further, [the applicant] claims that “that place is full of sorrow and I don’t what [sic] to go back to that place, that home”. The Tribunal sympathises with [the applicant’s] situation. Losing a loved one to violence is extremely distressing particularly if there are feelings that it is accompanied by an injustice or lack of accountability. However, this is not harm that attracts Australia’s protection.
Section 5J(4) requires that for a fear to be well-founded the persecution must be serious harm resulting from conduct which is systematic and discriminatory. For the purposes of s.5J(4)(b), s.5J(5) provides that the following types of harm constitute serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment; (c) significant physical ill-treatment; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; and (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Even if it could be said that [the applicant] will suffer serious harm, and the Tribunal does not accept such harm falls within that contemplated by s.5J(5), it lacks the necessary intention in s.5J(4)(c). The pain [the applicant] suffers because she believes [Mr] Wang will get away with killing her husband or because of the painful memories of his violent death do not involve conduct that is systematic, in the sense of being deliberate and premeditated, and discriminatory, in that those responsible for her pain are acting to hurt [the applicant] personally. The fact is their motives are otherwise than to target her for any of the reasons set out in s.5J(1)(a) of the Act.
[32] CB 105 at [59]-[60]
The current proceedings
These proceedings began with a show cause application filed on 24 May 2018. The matter came before me for a show cause hearing on 25 March 2019. At that time, I made a show cause order in the following terms:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the Administrative Appeals Tribunal’s reasoning at [60] of its decision record that:
a. psychological harm does not constitute “serious harm” for the purposes of s.5J(4)(b) and (c) and s.5J(5) of the Migration Act 1958 (Cth); and
b. extends the application of the High Court’s decision in SZTAL v Minister for Immigration [2017] HCA 34 from the complementary protection criterion to the refugee criterion, if psychological harm is “serious harm”.
I also issued a certificate under Part 12 of the Federal Circuit Court Rules 2001 (Cth) and the applicant was represented at trial by Mr Burwood of counsel. The Court is grateful for the willingness of counsel to appear on this basis.
In his written submissions, Mr Burwood sought leave, consistently with paragraph 17(f) of the New South Wales Bar Rules, to argue amended grounds of application as follows:
Ground 1: The second respondent’s provision of the 424A letter to the applicant without translation into a language she could understand was legally unreasonable;
Ground 2: The second respondent was tasked with applying the Migration Act 1958 to the facts of this particular case and has made an error of law in the application of section 5 J(5) Migration Act 1958;
Ground 3: The second respondent applied the wrong test for systematic conduct;
Ground 4: The second respondent failed to apply s.5J(a) to the facts.
The Minister opposed leave being granted. In the result, Ground 1 was not pressed. Grounds 2 and 3 were pressed and Ground 4 was pressed to the extent necessary to support Grounds 2 and 3. I gave leave for the application to be amended in that manner.
The only evidence I have before me is the court book filed on 24 July 2018.
Consideration
Applicant’s contentions
From [59] onwards, the Tribunal deals with the “Mental Distress from the Death of [the applicant’s] Husband”. The Tribunal refers to the applicant’s grief in terms of “losing a loved one to violence” and “feelings that it is accompanied by an injustice and lack of accountability”. The Tribunal states that “however, this is not harm that attracts Australia’s protection”.
On the question of what harm does attract Australia’s protection, the Tribunal turns to s.5J(5) which the Tribunal states “provides the following types of harm constitute serious harm” and quotes (a) to (f) of the harms specified. The Tribunal states the serious harm that the applicant “will suffer” is harm that does not fall “within that contemplated by s.5J(5)”.
The Tribunal is said to have overlooked important phraseology in the section. First, the types of harm listed are “instances” or examples and the beginning of s.5J(5) reads:
Without limiting what is serious harm for the purposes of 4(b), the following are instances of serious harm for the purposes of that paragraph…
It is arguable that the section is more flexible than the interpretation put on it by the Tribunal member. Thus “serious harm” could include murder of one’s partner or wife in a situation where the alleged murderer is at large and influential. The consequence could be the satisfaction of 5J(4)(b), “the persecution must involve serious harm to the person” and (c), “involve systematic and discriminatory conduct”.
The Tribunal is said to have failed to apply the Migration Act to the facts. The Tribunal concluded that the harm that may come to the applicant did not “fit” the instances of harm provided in s.5(J)(5) and failed to consider that the legislation does not provide a check list but instead “instances” that are not exclusive; the section providing for other forms of “serious harm” and thus flexibility by decision makers in considering what constitutes serious harm.
The applicant submits that the Tribunal did not turn its mind to considering the serious harm the applicant might suffer, instead considering the instances as a formula or exclusive check list, which they are not. This it is submitted was an error of law.
Ground 3: Mental distress, serious harm, the requirement of systematic conduct
The High Court decision of SZTAL v Minister for Immigration[33] examined the circumstances in s.36(2A) that constituted “significant harm” and considered the phrase in s.5(1), “severe pain and suffering, whether physical and mental” that is “intentionally inflicted”.
[33] [2017] HCA 34
The Tribunal looked at serious harm and intention at [60] of its decision and concluded that any serious harm the applicant may suffer did not fall within s.5J(5), putting aside that the types of serious harm listed is not an exclusive list. The Tribunal opined that serious harm “lacks the necessary intention in s.5J(4)(c)”.
The Tribunal states that the “pain [the applicant] suffers … [does] not involve conduct that is systematic in the sense of being deliberate and premeditated, and discriminatory”.
The Tribunal cites VSAI v Minister for Immigration[34] in a footnote. That decision at [52] examines the meaning of “systematic” and states that it does not require organised or methodical conduct. At [53] the Court states that it may be conduct that is random and oppressive.
[34] [2004] FCA 1602
The applicant submits that the Tribunal has fallen into error by asking itself the wrong question. It should have asked, having found that the applicant’s husband was murdered, whether the conduct was premediated and deliberate, then applied the test in Chan v Minister for Immigration[35]. Instead the Tribunal asked itself the question whether the harm was serious.
[35] (1989) 169 CLR 379
Ground 4: Misapplication of s.5J(a)
Finally, the applicant submits that the Tribunal conclusion at the end of [60] that, “the fact is their motives [for killing the applicant’s husband] are otherwise than to target her for any of the reasons set out in s.5J(a) of the Act” is a conclusion open to challenge.
Given the context outlined at [10] and [11] of the reasons, the applicant submits that it was an error on the part of the Tribunal not to treat the application as falling into that involving “membership of a particular social group”.
Minister’s contentions
Mental distress as serious harm
By Ground 2, the applicant contends that the Tribunal misapplied s.5J of the Migration Act in finding that the applicant’s claim to feel sorrow or emotional harm did not amount to “serious harm”.
The following matters are not in contest.
First, it is impossible to define exhaustively the types of conduct that will constitute persecution within the meaning of s.5J(4).[36]
[36] Applicant A v Minister for Immigration (1997) 190 CLR 225 at 258; Minister for Immigration v WZAPN (2015) 254 CLR 610 at [35]
Secondly, the types of harm listed in s.5J(5) are not exhaustive of the types of harm that may constitute “serious harm”. Nevertheless, the examples are instructive in giving meaning to what conduct may amount to serious harm.
Thirdly, in a sufficiently serious case, it may be that psychological harm is serious harm.[37] The Revised Explanatory Memorandum to the Migration Legislation Amendment Bill (No.6) 2001 (Cth) which introduced the predecessor to s.5J gives the example of a person subjected to “mock execution” as the type of psychological harm which might constitute serious harm.[38]
[37] Minister for Immigration v SZQOT (2012) 206 FCR 145 at [64] and [77]; MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620 at [46]-[47]
[38] see [25] of the Revised Explanatory Memorandum
Accepting these matters, the Minister contends that there was no error in the Tribunal’s approach. Although the Tribunal had regard to the examples of s.5J(5), a fair reading of the reasons does not support the contention that the Tribunal treated the examples as exhaustive. Rather, the Tribunal was responding to the specific claim made. The applicant felt her home village was “full of sorrow” as a result of her husband’s death. The Tribunal acknowledged that the death of a loved one can be distressing, but that this was not the type of harm which engaged Australia’s protection obligations. That conclusion is not surprising on the facts. The Minister submits that to suggest the finding involved misapplication of s.5J is to read the reasons of the Tribunal with an eye too finely attuned to the detection of error.[39]
[39] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Ground 3: systematic and discriminatory conduct
The Tribunal made a finding that the harm claimed by the applicant lacked “the necessary intention in s.5J(4)(c)”. That was clearly a reference to the requirement in s.5J(4)(c) that the harm “must involve systematic and discriminatory conduct”. The Tribunal went on to find that conduct would be “systematic” where it was “deliberate and premeditated”.
Section 5J(4)(c) requires that persecution involve “systematic and discriminatory conduct”. In VSAI (cited by the Tribunal), Crennan J stated that the requirement for “systematic conduct” did not require the conduct in question to be habitual, regular or even organised; rather it was sufficient to show that the conduct was “deliberate or premeditated”.[40]
[40] at [50]-[53]
To similar effect, in SZTEQ v Minister for Immigration[41] at [72], the Full Federal Court stated that both the requirements that conduct be systematic and discriminatory “directs the decision-maker’s attention to the motivation of the alleged persecutor” and that the words connote “deliberate behaviour on the part of the alleged persecutor, rather than behaviour that is random or accidental”.
[41] (2015) 229 FCR 497
These authorities establish that the intention of the perpetrator is a relevant matter for the Tribunal to consider when determining whether the harm faced by an applicant amounts to persecution. Indeed, in this regard there is a connection between the intention of the perpetrator and the requirement that there be a well-founded fear of harm of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.[42]
[42] Perampalam v Minister for Immigration (1999) 84 FCR 274 at [16]
It is said to have been open for the Tribunal to reject the claim on the basis that the persons responsible for the applicant’s husband’s death did not intend to target the applicant. Indeed, although the claimed harm was a consequence of the death of the applicant’s husband, there was nothing to suggest that the killers (or the persons who allegedly assisted the killers to escape justice) intended that she be subjected to any particular type of harm, let alone discriminatory harm.
The applicant’s submissions are said to misstate the relevant claim. The Tribunal was not considering the harm suffered by the applicant’s husband, but the harm claimed by the applicant, namely the sorrow caused by her husband’s death. The Tribunal was required therefore to consider whether that psychological harm met the requirements of s.5J of the Migration Act. That is what the Tribunal did.
Ground 4: application of s.5J(1)(a)
Ground 4 alleges an error in the application of s 5J(1)(a).
The Tribunal held those responsible for her pain (i.e. the persons said to have killed her husband) were not acting to hurt the applicant for any reason related to a characteristic protected by s.5J(1)(a) of the Migration Act. That is, the Tribunal was not satisfied that the conduct in question was motivated by a desire to cause harm to the applicant for a Convention related reason.
The only submission made in support of this ground is to the effect that the matters stated in the Tribunal’s reasons should have caused it to treat the application as involving the applicant’s membership of a particular social group. The Tribunal referred to the applicant’s claim to have had her land resumed by authorities and house demolished. The Minister does not understand why those matters are said to give rise to error and disputes that this ground can support the other grounds. In any event, as noted above, the applicant disclaimed any separate reliance on these matters.[43]
[43] CB 98 at [19]-[20]
Resolution
I prefer the Minister’s submissions in relation to the grounds of review now advanced. When I made the show cause order on 25 March 2019, I was concerned that it appeared arguable that the Tribunal had reasoned at [60] of its decision that psychological harm does not constitute “serious harm” for the purposes of s.5J(4)(b) and (c) and s.5J(5) of the Migration Act.
Those provisions state as follows:
5J(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b)the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
The Minister concedes that psychological harm can constitute serious harm and the examples of serious harm set out in the legislation are not intended to be, and are not, exhaustive.
Having reflected on the matter, I am satisfied that the Tribunal was not, at [60], foreclosing the possibility of psychological harm constituting serious harm. Rather, the Tribunal was not persuaded that the particular psychological harm apprehended by the applicant would constitute serious harm. Further, the Tribunal’s alternative findings that the harm feared by the applicant lacked the necessary intention and was not systematic, in the sense of being deliberate and pre-meditated, and discriminatory, was open to the Tribunal on the material before it, taking account of the claims which were accepted by the Tribunal.
The predicament confronting the applicant on her return to China was her own reaction to her inability to bring the alleged perpetrator of the death of her husband to account. The Tribunal did not accept that the applicant had a well-founded fear of harm at the hands of that perpetrator and she made no claim of a fear of harm from the Chinese authorities (whether that be by acts of commission or omission).
Viewed in this light, and not with an eye keenly attuned to error, the reasoning of the Tribunal did not involve jurisdictional error.
At the time I made the show cause order, I was also concerned that the reasoning in relation to the refugee criterion may have been infected by the Tribunal’s reliance upon the decision of the High Court in SZTAL. Again, on reflection, I am satisfied that while the Tribunal was implicitly relying upon that decision in its reasoning at [63] in relation to complementary protection, it was not relying upon that decision in dealing with the refugee criterion. Rather, it was interpreting the relevant provisions relating to the refugee criterion and applied those provisions lawfully.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 September 2019
0
11
3