CSR15 v Minister for Immigration
[2019] FCCA 28
•17 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSR15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 28 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – whether applicant would be harmed in Sri Lanka because of imputed association with the LTTE or because of race – whether Tribunal’s decision was vitiated by jurisdictional error – applicant’s claim to have been abducted by EPDP rejected by Tribunal – Tribunal had no obligation to undertake cumulative assessment of complementary protection where applicant’s claims had been rejected at factual level – issue of the applicant’s illegal departure from Sri Lanka was considered in detail by Tribunal – whether asserted inability to pay fine had been advanced as a basis upon which the applicant had a well-founded fear of harm – whether adequate consideration given to complementary protection – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 476 |
| Cases cited: Applicant A v Minister for Immigration (1997) 190 CLR 225 ANA18 v Minister for Home Affairs [2018] FCA 1854 |
| Applicant: | CSR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2801 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 5 June 2018 |
| Date of Last Submission: | 5 June 2018 |
| Orders pronounced: | 5 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 17 January 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Maloney |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application filed on 17 December 2015 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2801 of 2015
| CSR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 17 December 2015, judicial review is sought of a decision of the second respondent (Tribunal) made on 24 November 2015 affirming a decision of a delegate of the first respondent (Minister) made on 10 December 2013 refusing to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
Before me, the applicant submitted that the Tribunal failed to consider whether his inability to pay a fine upon a period of temporary detention was such as to support a conclusion that he had a well-founded fear of persecution or that there were substantial grounds for believing that as a necessary result of being returned to Sri Lanka there was a real risk that he would suffer significant harm. I have concluded that the application must be dismissed, in particular, as I am not persuaded that the asserted inability to pay a fine was advanced as an integer of the claim which had been made.
Background
The applicant, a Sri Lankan national, aged 26 years, is of Tamil ethnicity and Hindu faith. The applicant travelled to Australia by boat arriving on Christmas Island on 8 August 2012 as an illegal maritime arrival. On 22 November 2012, he was granted a Bridging visa E. The applicant currently resides in the State of Victoria.
On 18 December 2012, the applicant lodged a Protection visa application. The applicant supplied a statutory declaration in which he explained the basis of his claims to protection and requested asylum in Australia. By his statutory declaration the applicant claimed to face a real chance or risk of serious or significant harm owing to: his having been abducted; he and his family subsequently being threatened; his Tamil ethnicity and Hindu faith; actual or imputed links to the Liberation Tigers of Tamil Eelam (LTTE), and; the prospect of his being harmed on return to Sri Lanka by reason of his having departed unlawfully and for having returned as a failed asylum seeker.
On 10 December 2013, a delegate of the Minister refused the Protection visa application. By her decisional record, the delegate summarised the applicant’s history and the circumstances giving rise to his claims and noted that his primary claim related to his abduction by Sri Lankan authorities who had continued to harass and threatened him.
The delegate expressed concerns in relation to the applicant’s credibility upon issues which were raised with the applicant in the course of a Protection visa interview. In particular, the delegate:
a)questioned the applicant’s inability to offer a rational explanation as to why he claimed the authorities had continued to pursue him following his abduction. It was put to the applicant that it did not make sense that the applicant would be released by abductors and then continually pursued and threatened;
b)questioned the veracity of the applicant’s claim to having been abducted in February 2012 in circumstances where he had not departed Sri Lanka until July 2012 and, in the intervening period, had continued to live in his home village and maintained regular employment. The delegate considered that those matters indicated the applicant was not wanted by the authorities as he claimed;
c)observed that the applicant had applied for a Sri Lankan passport in March 2012. The delegate considered it highly unlikely that the applicant would apply for a passport through government authorities from whom he claimed to fear harm by reason of his abduction and subsequent threats and harassment;
d)noted the applicant’s statement that he had observed one of his abductors speaking to an army officer and speculated that the abductor was affiliated with the Sri Lankan Army. The delegate noted that the applicant was otherwise unable to explain how his abductors were related to the Sri Lankan authorities.
The delegate was not satisfied that the applicant was a credible witness and attached particular weight to the applicant’s inability to explain why authorities were pursuing him and why, in such circumstances, he had continued to stay in his home village and maintained his regular employment. The delegate concluded that the applicant had fabricated the supposed abduction for the purposes of his visa application.
When considering the applicant’s claims based on his Tamil ethnicity and the imputation of LTTE links, the delegate placed weight on country information indicating that being a male Tamil did not of itself give rise to a presumption that protection was required. The delegate noted that persons having family links to the LTTE may have a heightened risk of harm but placed significant weight on the applicant’s evidence that he had never experienced any problems due to the apparent LTTE involvement of two of his relatives.
The delegate took into account the applicant’s evidence of the conduct by the Sri Lankan government in destroying Hindu temples, constructing roadblocks so that Hindus were unable to reach their temples for worship and the imposition of curfews which interfered with their ability to participate in Hindu prayers. The delegate also considered country information which evinced some religious discrimination against Hindus. However, having regard to the country information which suggested a measure of religious tolerance in Sri Lanka coupled with the absence of any evidence that the applicant had in fact experienced serious harm as a result of his religion, the delegate was not satisfied there was a real chance of serious harm to the applicant due to his Hindu faith.
The delegate accepted that the applicant may be questioned and fined upon return to Sri Lanka. However, she concluded that the applicant’s treatment would be a function of a law of general application.[1] The delegate concluded that this would not, in any case, amount to serious harm or mean that the applicant faced a real risk of significant harm.
[1] Citing Applicant A v Minister for Immigration (1997) 190 CLR 225.
The decisional record of the delegate dealt in detail with issues arising in relation to the applicant’s illegal departure from Sri Lanka. The delegate concluded:
After careful consideration of the applicant’s circumstances and the available country information, I find it likely the applicant would be questioned upon return to Sri Lanka in relation to his illegal departure. It is likely the applicant will receive a fine for departing the country in an illegal manner.[2] It is also likely a police records check would be conducted by the authorities which may take a few hours. As the applicant does not appear to have a current real or perceived link to the LTTE and the applicant claims to never have been convicted of a crime, I find it highly likely the applicant will be free to depart the airport after completion of the relevant checks by the authorities.
[2]Citing CX297471: Sri Lanka: RRT Country Information Request – LKA 40999 [Issues covered: Illegal departure from Sri Lanka; Treatment of Tamils including women and returned internally displaced people; Security situation in the Northern and Eastern Provinces]
By reason of those findings the delegate was not satisfied that the applicant faced a real chance of persecution or had a well-founded fear of persecution for a Convention reason.
Tribunal decision
The applicant applied to the Tribunal for a merits review of the delegate’s decision and was assisted in the presentation of his application by a migration agent.
On 3 February 2015, the Tribunal invited the applicant to a hearing to give evidence and present arguments relating to the issues arising upon the decision under review.
The Tribunal conducted a hearing on 16 April 2015. The applicant attended that hearing where he was assisted by an interpreter and represented by his migration agent.
On 24 November 2015, the Tribunal affirmed the delegate’s decision to refuse the applicant a Protection visa, providing a statement of its reasons for doing so (Reasons).
After reciting the history of the application for review and the criteria upon which a Protection visa would be considered, the Tribunal examined the circumstances of the applicant’s claim.
The Tribunal considered that the issue in the case was whether the applicant would be harmed in Sri Lanka by an influential member of the Eelam People’s Democratic Party (EPDP) or by the authorities because of an imputed association with the LTTE or because of race.
(1) EPDP
The Tribunal’s reasons suggest that the applicant may have advanced his claim before the Tribunal somewhat differently from the manner in which it had been put to the delegate. For example, while the applicant conceded before the delegate that he did not fear harm from the EPDP, before the Tribunal the applicant asserted that the men who had abducted him may have been from the EPDP and suggested that the EPDP was the only group who would do this: Reasons, [15].
The Tribunal was not satisfied that the applicant’s attackers were members of the EPDP by reason of country information which indicated that the EPDP would not have perpetrated an abduction of this kind. The Tribunal doubted that the applicant had been abducted by mistake and did not accept the applicant’s claim that he had been abducted: Reasons, [25]-[26]. Nor did the Tribunal accept that the applicant’s claim that people had called on his mother’s home looking for him or that he had been threatened on several occasions.
The Tribunal considered it unlikely that several men had later warned him against making any report of his abduction and had threatened to kill him and had done so unmasked. The Tribunal regarded this evidence as being inconsistent with the applicant’s claim that he was being threatened to prevent him from revealing the identity of one of the abductors.
(2) LTTE links
The Tribunal noted the applicant’s claim that two of his cousins had been killed and two others had gone missing. It found that more than 40,000 Sri Lankans had gone missing at the end of the Sri Lankan war. It also found that the applicant had not been questioned or detained as an LTTE affiliate after the war. It did not accept that the applicant would be suspected of having LTTE links by reason of his having left Sri Lanka illegally or his having claimed asylum in Australia: Reasons, [29]-[30].
(3) Tamil ethnicity
The Tribunal considered and discussed with the applicant country information which indicated a decline in the mistreatment of Tamils in northern Sri Lanka following the cessation of conflict in 2009: Reasons, [36]. It noted that the security situation in Sri Lanka had much improved since 2009.[3] The Tribunal also discussed with the applicant advice from the UNHCR in 2012 that Tamils from the north of Sri Lanka were no longer presumed to be in need of protection because of their race or location. It concluded that developments indicated an improved situation for Tamils in northern Sri Lanka and was satisfied the applicant did not face a real chance of serious harm as a Tamil or a real risk of significant harm for that reason.
[3] DFAT, 2015, DFAT Country Report Sri Lanka 16 February 2015.
(4) Hindu religion
The Tribunal referred to the applicant’s evidence that he had been able to practice his religion by attending a nearby temple. It also had regard to country information which indicated, for example, that the Sri Lankan Constitution guaranteed religious freedom. It noted country information that there was little official discrimination: Reasons, [39].
(5) Failed asylum seeker
The Tribunal considered the entry procedures for involuntary returnees to Sri Lanka and set out in detail the procedures which were likely to apply to the applicant upon return. The Tribunal concluded that these procedures did not amount to serious or significant harm: Reasons, [44].
The Tribunal accepted that Sri Lankan authorities may have enquired of the applicant’s whereabouts by reason of a suspicion that he had left Sri Lanka illegally: Reasons, [27]. The question of illegal departure was considered by the Tribunal in detail: Reasons, [45]-[60].
The Tribunal accepted that it was an offence for persons to depart Sri Lanka irregularly.[4] The Tribunal’s analysis disclosed that it had regard to country information which, citing the Sri Lankan Attorney General’s Department had informed DFAT that no returnee who had been a passenger on a people smuggling venture had been given a custodial sentence for having departed Sri Lanka illegally but that they had been fined as a deterrent towards further participation in future like boat ventures. The Tribunal noted the fine ordinarily imposed was ~50,000 Sri Lankan rupees. It found that thousands of asylum seekers had returned to Sri Lanka since 2009 and that there were relatively few allegations of mistreatment.
[4] s 45, Immigrants and Emigrants Act 1945.
The Tribunal found that s 45 of the Immigrants and Emigrants Act 1945 was a law of general application and did not give rise to persecution within the meaning of the Refugees Convention.
The Tribunal was satisfied that the applicant may be held on remand for short period of between one and several days, but that he would be fined and could be granted bail. The Tribunal reasoned that under Australian law poor prison conditions involving inadequate resources and overcrowding did not give rise to significant harm and found that a short period of detention on return to Sri Lanka did not rise to the level of providing substantial grounds for believing that the applicant faced a real risk of significant harm in the form of torture or cruel or inhumane or degrading treatment or punishment.
The Tribunal concluded that the applicant did not satisfy the criteria contained in ss 36(2)(a) or 36(2)(aa) and accordingly affirmed the delegate’s decision not to grant a Protection visa to the applicant.
Procedural history
As noted, the application was filed in this court on 17 December 2015.
The applicant’s affidavit affirmed in support of the application exhibited a copy of the Reasons but adduced no further evidence in relation to the application.
By a Response filed on 4 January 2016, the Minister opposed the grant of relief on the ground that no arguable case was raised. The Response contended that, as the grounds of review were wholly unparticularised, they disclosed no arguable case for concluding that the Tribunal’s decision was affected by jurisdictional error.
Orders were made on 25 May 2016 and 2 March 2017 regulating the preparation of the application for trial. Whilst the applicant had retained lawyers in relation to his application for judicial review a notice of withdrawal of practitioner was filed.
As the applicant had not filed submissions in accordance with the orders made in 2016, the Minister’s submissions were necessarily responsive to the application and the Tribunal’s Reasons.
Consideration
Being a privative clause decision[5], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[6] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[7] Judicial review is not a procedure in the nature of an appeal which permits a general review of the decision or a substitution of the decision which the court considers ought to have been made.[8] The judicial review of an administrative decision is confined to an examination of the legality of the decision under review. The applicant bears the onus of demonstrating that the approach taken by the decision-maker manifested a legally erroneous view as to what the application for merits review was about such that the decision-maker thereby lacked authority to make the decision that was made.[9]
[5] Section 474(2).
[6]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[7] Sub-s 476(2).
[8]Plaintiff M64/2015 (2015) 258 CLR 173 citing Craig v Sought Australia (1995) 184 CLR 163, 175; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.
[9]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [24] citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [55] (Gleeson CJ and McHugh J).
The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[10] and, where appropriate to order that the matter be remitted and reconsidered according to law.
[10]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[11] Where the Minister is not satisfied that the criteria prescribed for such visa have been satisfied, the application must be refused: s 65(1)(b). Conversely, where the Minister is satisfied that the criteria prescribed for such visa have been satisfied, the application must be granted: s 65(1)(a).
[11]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
The application contained two wholly generalised grounds of review:
The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
As the applicant did not take the opportunity to file a supplementary court book or any submissions, the Minister and in turn the court was left to discern the existence of jurisdictional error from grounds which were devoid of particulars. In WZAVW v Minister for Immigration and Border Protection,[12] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed (Citations omitted)
See also MZARG v Minister for Immigration and Border Protection.[13]
[12] [2016] FCA 760, [35].
[13] [2018] FCA 624 at [25], (McKerracher J).
The applicant appeared before me with the assistance of an interpreter and I recognise that he was unfamiliar with court process: cf AMF15 v Minister for Immigration and Border Protection.[14] Nonetheless, he demonstrated to me, both at this hearing and at the earlier hearing conducted on 29 January 2018, that he was an articulate man with a strong command of written and spoken English. Although the application was open to dismissal on the basis that the grounds of review were devoid of particulars, as the applicant was self-represented, I have examined the Reasons and the materials comprising the court book.
[14] (2016) 241 FCR 30, [44(g)] (Flick, Griffiths and Perry JJ).
In my view, neither of the grounds of review had any merit. The Reasons disclose that the Tribunal stated and applied the correct legal principles and disclose no reason for concluding that there had been any want of procedural fairness.
However, at the commencement of the hearing, the applicant was granted leave to file an outline of submissions which I have considered. The submission refined the applicant’s grounds of review contending that the Tribunal had reached the wrong decision due to its assumption that the Sri Lankan government would impose a fine and by reason of its treatment of the issue of complementary protection.
The applicant submitted that he had no ability to pay a fine and that the assumption he would “merely be given a fine due to my illegal departure from Sri Lanka” was unwarranted.
I discern no error in the reasons of the Tribunal. The issue of illegal departure was considered in detail by the Tribunal. The country information to which the Tribunal had regard, including available DFAT information and information provided by the Sri Lankan Attorney General’s Department provided ample justification for a conclusion that no returnee who had been a passenger on a people smuggling venture had been given a custodial sentence but had been fined as a deterrent towards future people smuggling boat ventures.
I consider that the Reasons of the Tribunal amply supported a conclusion that if the applicant was detained for a short period of remand upon return to Sri Lanka this would not give rise to substantial grounds for believing that he would face a real risk of significant harm in the form of torture or cruel or inhumane or degrading treatment or punishment as to constitute significant harm.
I also consider that the Reasons provided support for its conclusion that if the applicant was subjected to a period of temporary detention, he would be released on bail and that the imposition of a fine would not give rise to a real risk of significant harm. As noted above, the nature of the applicant’s claims before the delegate and the Tribunal appeared to change. The application and statutory declaration which were completed with the assistance of a migration agent, made no mention of an inability to pay a fine as surety for bail as a reason why or basis for a claim upon which the applicant sought protection. The delegate’s decisional record addressed the consequences of illegal departure and concluded that the applicant would likely be fined after being questioned and released from detention at the airport. The applicant’s migration agent attached a copy of the delegate’s decisional record to the application for review. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising upon the decision on review. The applicant filed no submissions before the hearing. The applicant appeared at the hearing and did so with the assistance of an interpreter and his migration agent. The hearing was of ~ three hours duration. The Tribunal recorded the applicant’s claim to mistreatment upon detention by reason of his being an illegal asylum seeker: Reasons, [40], [45]. The Reasons contain no suggestion that the applicant advanced his inability to pay a fine as a reason to support a well-founded fear of persecution. The Tribuinal concluded at [60]:
The fine to be imposed on the applicant is between 5,000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between $51AUD and $511AUD. The applicant is a young man with past employment experience and the Tribunal is satisfied that he will be able to find employment and pay a fine on return to Sri Lanka. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a risk of significant harm.
The Reasons do not indicate that the applicant raised his impecuniosity as a reason why the imposition of a fine would constitute significant harm. The applicant was at all times represented before the Tribunal so that he had a full opportunity to present evidence and raise arguments in relation to the issues arising on the delegate’s decision. I am not satisfied that the applicant raised the issue of impecuniosity as an element of his claim to fear harm as a returned asylum seeker.
In S395/2002 v Minister for Immigration and Multicultural Affairs, Gleeson CJ stated that “this court has insisted that on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers at some later stage in the process.”[15] A conclusion that the Tribunal has failed to consider a claim which is not expressly advanced is not to be made lightly: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship.[16]
[15](2003) 216 CLR 473, [1] citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte, Applicants S134/2002 (2003) 2111 CLR 441, [31].
[16][2013] FCA 774, [44]-[52] (Robertson J); see also SZSJB v Minister for Immigration and Border Protection [2017] FCA 229 at [24]-[30] (Perry J).
I consider that the Tribunal considered the issues arising in relation to the consequences of the applicant’s illegal departure in detail: Reasons, [45]-[61]. The Tribunal noted that there was no evidence before it that the applicant’s family were unable to provide surety for his bail: Reasons, [50]. In the circumstances of this case, I do not consider that the Tribunal was obliged to consider the issue now sought to be raised in this court by the submission filed at the hearing.[17]
[17] cf ANA18 v Minister for Home Affairs [2018] FCA 1854, [55]-[56] (Derrington J).
Complementary protection
The applicant’s written submission identified several features of his claim to having been abducted and tortured. He stated that the EPDP followers were those who had affected the abduction and that he was in a position to identify them and had been continuously harassed and placed under continuous surveillance receiving death threats which had caused him to leave Sri Lanka. He submitted that the EPDP followers would now be on alert and as to whether he would be tipping them off for further abduction cases. For those reasons he submitted that he was vulnerable as a target of the EPDP due to his identity and, for that reason was owed complementary protection. Relying upon Minister for Immigration and Multicultural Affairs v Yusuf,[18] the applicant submitted that the Tribunal’s failure to mention the matters on which he now relied indicated that it had failed to consider these arguments or claims. The difficulty in the approach taken by the applicant before this court is that the claims as put to the Tribunal were squarely identified in the Reasons at [10]. Apart from the submissions filed on the day of the hearing before me, there was no suggestion that these issues had been raised by him before the Tribunal. At [15], the Tribunal noted that the applicant had claimed that one of the six persons who, he claimed, had kidnapped him in 2012 had been unmasked but that he did not know him or where he lived but had seen him at a market on a few occasions. The applicant said that he had not reported his abduction because he had been warned against doing so and in any event said that he would not get justice. Reasons, [17]. The applicant expanded upon his clams to contact with his abductors: Reasons, [18]-[24]. The Tribunal rejected his claims to having been abducted: Reasons, [25]. Nor did it accept that anyone had come looking for the applicant in the manner claimed: Reasons, [26]-[27].
[18] (2001) 206 CLR 323 at [5], [35] and [69].
In my opinion, the foregoing Reasons of the Tribunal confirm that proper consideration was given to this issue.
The Tribunal found in relation to complementary protection as follows:
Having regard to all of the circumstances in findings above, the Tribunal also finds that there are not substantial grounds for believing there is a real risk the applicant will suffer significant harm arising from his race or his religion or an imputed link with the LTTE, his status as a refugee or failed asylum seeker or person who may be charged with departing Sri Lanka illegally. The Tribunal finds that there are not substantial grounds for believing that is, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm: Reasons, [63].
The applicant also submitted that the brevity of the Tribunal’s treatment of complementary protection assessment demonstrated that the Tribunal had not properly considered the matter. The Tribunal had no obligation to undertake a cumulative assessment where the applicant’s individual claims had been rejected at a factual level.[19]
[19]Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, [32]-[38] (Gilmour, Markovic and O’Callaghan JJ).
The Tribunal was clearly entitled to deal with the issue of complementary protection as an adjunct to its consideration of the claim for protection as a refugee under para 36(2)(a).[20] The Tribunal considered the alternative criterion for a Protection visa prescribed by s 36(2)(aa) and was not satisfied the applicant was a person in respect of whom Australia owed protection obligations: Reasons, [65].
[20]SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, [54]-[57] (Robertson J); SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125, [32], [35] (Robertson, Griffiths and Perry JJ).
Conclusion
As the grounds of review are not made out and as I discern no error which would support the grant of relief sought in this application, the application must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 17 January 2019
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