CZT17 v Minister for Immigration

[2018] FCCA 1507

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1507

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to consider all of the applicant’s claims and evidence – whether the Tribunal misapplied the law – whether the Tribunal misconstrued the applicant’s claims – whether the Tribunal misapplied the test of real and significant harm – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: CZT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2116 of 2017

Judgment of: Judge Street

Hearing date: 8 June 2018

Date of Last Submission: 8 June 2018

Delivered at: Sydney

Delivered on: 8 June 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2116 of 2017

CZT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 June 2017 affirming a decision of the delegate not to grant the applicant a protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country. The applicant was granted a subclass FA600 Visitors visa on 22 April 2014, however, it was not until 27 May 2014 that the applicant left Bangladesh and the applicant arrived in Australia on 28 May 2014. That visa was valid until 28 June 2014. It was not until 26 June 2014 that the applicant lodged an application for a protection visa. On 25 February 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

3. The applicant claimed to fear harm from the Awami League by reason of his support for the Bangladesh Nationalist Party (“BNP”) and his role in the BNP. The delegate made adverse credibility findings in relation to the applicant’s claims and did not accept the applicant’s claims that there were false charges against him, and was not satisfied that the documents he produced were genuine in relation to the charges. The delegate did not accept the applicant’s explanation for his delay in relation to obtaining funds for a bribe, and was not satisfied his delay in seeking protection is supportive of a genuine fear of persecution. The delegate found the applicant did not have a well-founded fear of persecution and that the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal

1. The applicant lodged an application for review to the Tribunal on 19 March 2015. By letter dated 18 October 2016, the applicant was invited to attend a hearing on 21 November 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal in its reasons identified the background of the application for a protection visa and identified the relevant law. The Tribunal summarised the applicant’s claims and evidence and made comprehensive adverse credibility findings in relation to the applicant’s claims.

2. The Tribunal in its reasons identified exploring with the applicant his claims of the Awami League and in relation to the alleged false charges against him. The Tribunal questioned the applicant as to why it took him over a month to depart Bangladesh after the Visitor visa was granted. The Tribunal referred to the applicant’s explanation that he was obtaining money to bribe officials and police so he could depart. The Tribunal did not accept this was the reason for his delayed departure and referred to the applicant having a well-paid job and was of the view that he would not have waited until 27 May 2014 to leave or organise payment for the reasons claimed if he was in hiding and in fear of his life.

3. The Tribunal referred to the applicant’s alleged claim that he was attacked in February 2014 and that he initially had said he was able to live at home. The Tribunal referred to questioning the applicant about the attack. The Tribunal raised with the applicant concerns as to inconsistencies with his evidence and the submitted medical report and raised other concerns with his evidence. The Tribunal referred to a document produced by the applicant that alleged he had been appointed a Joint Secretary of a Municipal Council. The Tribunal raised with the applicant the prevalence of fraud in relation to documentation in Bangladesh and also raised credibility concerns with the applicant.

4. The Tribunal did not accept the applicant as a credible witness and suffered the harm or difficulties in his country for the reasons that he claims, which led him to leave Bangladesh and why he fears return. The Tribunal did not accept the applicant was ever involved in the Jatiyatabadi Chattra Dal (“JCD”) or the Jatiyatabadi Jubo Dal or an active supporter of the BNP in the manner claimed or that he and his family were harassed, threatened and physically assaulted by members of the Awami League and police. The Tribunal found the applicant’s testimony to be inconsistent in relation to those claims and the Tribunal was of the view that the applicant had fabricated his claims and concocted evidence to achieve an immigration outcome.

5. The Tribunal referred to the applicant’s alleged involvement with BNP Australia and the inconsistencies in relation to his evidence and his alleged involvement, which the Tribunal found further undermined the applicant’s credibility. The Tribunal in that regard questioned the applicant as to why he had only been involved in the BNP since November 2016 when he had arrived in May 2014. The Tribunal raised with the applicant his alleged commitment to the BNP and the applicant’s claim that he associated with them in Bangladesh. The Tribunal found the applicant’s claims were inconsistent and implausible. The Tribunal referred to the applicant’s evidence that he was allegedly involved from the very beginning, but not officially as he was not sure how much time he could afford to put into it and whether he would like the BNP Australia branch. The applicant alleged he only became a member in November 2016 and not earlier as the President of the Australian branch had been watching him and assessing him.

6. The Tribunal raised with the applicant that he had previously said and confirmed he had only attended two BNP events, one in November 2016 and the other the day before the hearing. The Tribunal referred to the applicant then alleging that he had attended events prior to 2016 but not as a member. The Tribunal referred to the applicant alleging involvement in committees and raised with the applicant how he was able to attend these which seemed high level when he had not become a member until November 2016. The Tribunal referred to raising these issues of inconsistency and confusing evidence as to involvement in BNP Australia and the applicant’s explanation that he struggled to find a place to stay and employment, including that he initially did not know where to go but gradually over time came to know.

7. The Tribunal did not accept the applicant’s responses as explaining the inconsistent and confusing evidence as to involvement in BNP Australia. The Tribunal found the applicant’s involvement in the BNP Australia was not based on actual events but rather was fabricated to enhance his claims for protection. The Tribunal took this into account in finding the applicant has not ever been involved in BNP Australia in any manner whatsoever, and his evidence in that regard further impacted on the applicant not being a credible witness. The finding that the applicant had not been involved in BNP Australia, undermined the applicant’s evidence as to his alleged high level position in Bangladesh and to have been a supporter of BNP in Bangladesh for over 15 years. The Tribunal found that, if the applicant had been so involved, he would have been involved in BNP Australia soon after he arrived where there was no such danger and found that this further added to the want of credibility by the applicant.

8. The Tribunal referred to the applicant’s claim that he went into hiding in 2014. The Tribunal referred to the evidence that the applicant had initially given as to where he had lived and he continued to live from his home from 2009 until 1 April 2014. The Tribunal also referred to the inconsistent evidence that the applicant had given that prior to the attack in February 2014 he was able to live and work at home. The Tribunal also referred to the fact that in the applicant’s detailed statement in support of his claims there was no suggestion of him ever having gone into hiding. The Tribunal was of the view that if the applicant had gone into hiding in April 2014 or in January 2014, 18 months before making his detailed statement, he would have identified it in the same if it was true. The Tribunal found the applicant’s inconsistent evidence as to going into hiding further added to his want of credibility. The Tribunal found the applicant did not go into hiding for the reasons claimed and found the applicant not to be a credible witness.

9. The Tribunal referred to the applicant’s alleged continued commitment to BNP politics in Bangladesh. The Tribunal was of the view that if the applicant had held the profile and leadership positions he claimed, having been involved in BNP politics including student politics for over 15 years and if he was generally interested and involved, he would continue to be in contact with associates in Bangladesh or follow the same on the internet. The Tribunal found that was particularly so if the applicant continued to be involved despite the dangers in Bangladesh up to February 2014/March 2014. The Tribunal found the applicant’s lack of knowledge and lack of continued interest undermines his claim to have been involved in the manner he claimed in BNP politics. The Tribunal also took into account the applicant’s lack of credibility in that regard. The Tribunal also took into account the applicant’s inconsistent evidence as to when he was last involved in BNP politics in Bangladesh.

10. The Tribunal took into account the applicant’s delay in departure and did not accept his explanation in relation to arranging money for a bribe for the delay and found that further undermined his credibility. The Tribunal found that the applicant, despite his alleged claim of fear for his life and being in hiding, continued to work and be employed up until 15 May 2014. The applicant suggested that he worked from hideouts. The Tribunal identified having difficulty with accepting evidence that the applicant was in hiding and yet was continuing to work for a further six weeks. The Tribunal also referred to the absence of any such claim in the applicant’s statement.

11. The Tribunal referred to the medical reports provided by the applicant and identified inconsistencies between the applicant’s claims and the content of the medical reports. The Tribunal found the medical reports to be inconsistent with the applicant’s evidence as to the timing of the event and found this further added to the undermining of the applicant’s credibility. The Tribunal referred to the inconsistency in the applicant’s evidence in relation to continuing to live and work at home in relation to the attack alleged.

12. The Tribunal also referred to a new claim by the applicant that he attended a police station after the incident to make a complaint, and he alleged that the police threatened him. The Tribunal noted no such claim was made in the statement provided by the applicant. The Tribunal did not accept the applicant’s explanation for not including the same in his statement and was of the view that if the applicant was threatened by police and that a false case had been made against him on his visit to file a complaint in February 2014. The Tribunal found that when the applicant was making his lengthy and detailed statement prepared with the assistance of a representative, he would refer to this if it were true. The Tribunal considered the applicant’s claims cumulatively and found the applicant not to be a credible, truthful or reliable witness.

13. The Tribunal found the applicant had fabricated and concocted his evidence to achieve an immigration outcome. The Tribunal found the applicant was not a truthful witness as to his claims why he departed Bangladesh and why he fears return. The Tribunal took into account the applicant’s explanation and stress in relation to lapses of memory but found the applicant is not a credible witness in relation to his claims and did not accept that those factors explained or excused the credibility concerns identified by the Tribunal.

14. The Tribunal referred to the documents provided by the applicant and his alleged arrest warrants and referred to the prevalence of fraud and the adverse credibility findings and placed no weight on the documents as supporting the applicant’s claims. The Tribunal also took into account the medical documents, but again, in light of the adverse credibility findings, placed no weight on those documents. The Tribunal also referred to a letter provided in relation to the applicant’s alleged position in the BNP, but again, in light of the credibility concerns and prevalence of fraud, placed no weight on those documents.

15. The Tribunal did not accept the applicant and his family were ever threatened directly or indirectly or faced any of the difficulties he claimed at the hands of the Awami League and/or police, or Rapid Action Battalion in crossfire, or that he was a supporter, member, Joint Secretary or ever involved or held any position at any level with the JCD or BNP and/or Jubo Dal, or was ever perceived as a supporter of the JCD and/or BNP or Jubo Dal, and/or perceived as being opposed to the Awami League and the government. The Tribunal did not accept the applicant was ever involved as a joint secretary in the Municipal Council or on the committee or involved in leadership positions whilst at college or ever, as claimed. The Tribunal did not accept the applicant campaigned for the local BNP candidate at any time, including a particular candidate. Given the adverse credibility finding, the Tribunal did not accept as true that the applicant fled Bangladesh as he feared being harmed or killed by the Awami League members, activists or anyone acting on their behalf, including the police or Rapid Action Battalion, or that he would be caught in the crossfire or that there is a false case against him.

16. The Tribunal did not accept the applicant had ever been involved in BNP Australia as a member, attended any events or meetings, or undertook any activities for or with the BNP in Australia since his arrival in Australia. The Tribunal rejected the entirety of the applicant’s claims. The Tribunal did not accept that the applicant and his family faced a real chance of persecution involving serious harm if returned to Bangladesh in the reasonably foreseeable future at the hands of the Awami League or the youth arm of the Awami League or anyone acting on their behalf, or the police or the authorities, or Rapid Action Battalion, or anyone else due to his political opinion or imputed political opinion associated with BNP or JCD or Jubo Dal, including his support and membership, leadership position, active involvement in strikes, or meetings, or election campaigning, donations or on account of any other political activities, or because he will be viewed as in opposition to the Awami League or the government.

17. The Tribunal was not satisfied there is a real risk the applicant will suffer significant harm when he is returned to Bangladesh at the hands of the Awami League or the youth arm of the Awami League or anyone else on their behalf, or the police or the authorities or Rapid Action Battalion, or anyone else due to his political opinion or imputed political opinion associated with BNP or JCD or Jubo Dal, including his support and membership, leadership position, active involvement in strikes, or meetings, or election campaigning, or making donations or on account of any other political activities, or because he will be viewed as in opposition to the Awami League or the government.

18. The Tribunal did not accept that there is a real chance that the applicant will face serious harm for the reasons claimed by the applicant if he returns to Bangladesh in the reasonably foreseeable future. The Tribunal was not satisfied the applicant faces a real chance of serious harm for any of the reasons claimed arising on the evidence, either singularly or cumulatively, for a Convention reason in the reasonably foreseeable future. The Tribunal was not satisfied the applicant faces a well-founded fear of persecution in Bangladesh for a Convention reason in the reasonably foreseeable future. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

19. The Tribunal did not accept there are substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm. The Tribunal found that the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that the documents that he provided to the Tribunal were genuine and that his life would be in jeopardy upon return to Bangladesh. The applicant indicated that he had new material that he wished to tender to the Court in relation to his position in BNP Australia. The Court explained to the applicant that the Court is not in a position to receive fresh evidence in respect of the applicant’s claims and that the material proposed to be tendered by the applicant was not relevant and it could not be received into evidence. The applicant referred to his family and his concern in relation to what would happen to them if returned to Bangladesh. The Court again explained to the applicant it could not decide the matter on compassionate grounds and had no power to revisit the facts or merits. The Court explained that it could consider whether or not the adverse findings in relation to credibility were logical and reasonable and whether they were based on evidence before the Tribunal and whether the Tribunal complied with its statutory obligations.

2. The applicant maintained that he would be caught in the crossfire and that the material he had provided was genuine and that he had medical material in relation to the attack that supported his claims and that he had paid a bribe and had to arrange money for that bribe in relation to his delayed departure. All of the matters referred to by the applicant were the subject of consideration in the reasons of the Tribunal, as summarised above. Given the adverse credibility findings made by the Tribunal, it was open to the Tribunal to place no weight on the documents provided by the applicant, including the medical documents. The Tribunal’s reasons in support of the adverse credibility findings, as summarised above, were logical and rational and open on the material before the Tribunal. In particular, the Tribunal took into account inconsistencies in the applicant’s evidence in relation to going into hiding, the omissions from his statement made after his arrival, the introduction of new claims, the delay in his departure following the grant of a visa, and the delay in his application for protection and the inconsistencies, as summarised above. The adverse credibility findings were open to the Tribunal and gave rise to the rejection of the applicant’s claims. It was also open to the Tribunal, in these circumstances summarised above, not to place weight upon the applicant’s documents.

1. The applicant suggested from the bar table that the Tribunal had adopted a narrow approach in the conduct of the hearing, putting only negative propositions to the applicant. The Tribunal’s reasons are inconsistent with that proposition and reflect the Tribunal giving the applicant a real and meaningful hearing. It was a matter for the Tribunal to raise with the applicant his credibility, and the applicant’s credibility had been a live issue as a result of the adverse findings before the delegate. The raising with the applicant of concerns in relation to his credibility and the adverse findings by the Tribunal in the present case are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of the matter on its merits.

2. In substance, the applicant’s submissions from the bar table invited this Court to engage in impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant in his oral submissions identifies any jurisdictional error by the Tribunal.

The grounds

1. The grounds of the amended application are as follows:

   1. The applicant claims that he was denied procedural fairness and natural justice when the the AAT made decision on limited information and overlooked all the evidences of applicant's claims.

   2. The Tribunal erred in law and erred in making findings of well-founded fear from the Awami League Activists. The applicant claims that the AAT wrongly applied the law to the fact as found in relation to the serious ness of harm that constitute persecution as a member of a particular social group and due to the political opinion presented the applicant claims.

   3. Particulars: Section 91 R 910 9BO 79 C of the Migration Act requires the persecution to be of serious harm and systematic discriminatory. During Tribunal hearing the AAT adopted a line of questioning designed to establish harm from the perspective of the applicant persecute asking why be harmed rather than address as to the motive.

   4. The AAT made a jurisdictional error when it misconstrued the facts and made opinion without looking all of the evidences of claim that the applicant is not credible, truthful and reliable witness. The applicant claims that he was denied natural justice and procedural fairness when credibility test was not applied systematically and taking all of the evidences not on some of the evidences. Limiting the evidences for assessing the credibility is also against the Procedural fairness.

   Particulars

   The applicant claims that he was never confused about his involvement in BNP Australia. The applicant said h is attending a BNP event in Australia. (Please find attached a letter from Md Abdul Hassan, General Security of Bangladesh Jatiotabadi Dal Australia Inc). The letter confirms that he is attending all of the BNP events in Australia.

   The applicant claims that the AAT was biased when it did not give in details about the adverse credibility findings and made opinion that adverse credibility findings are immune from judicial review assessment.

   The AAT did not give full reasons why the applicant is not credible and why all evidences are bogus or fabricated.

   The AAT took contradictory approach towards establishing the credibility of the applicant. The Tribunal concluded “in making findings the Tribunal has allowed for possibility of discrepancies arising because of genuine lapses of memory, nervousness and manner in which response can differ depending on the nature manner of which a question is asked… The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicant is not reliable witness as to these claims” (Green book P 280 Para 57)

   The AAT erred in making decision when it used or implemented same factual findings for ‘Serious harm’ and a ‘significant harm’ for assessment of applicant’s claim for the Complementary Protection.

   Particulars: In the context of Refugee Convention, it is required by the Departmental Officer and the Reviewer to exercise caution in simply “importing” facts findings into complementary protection.

   The AAT used the same language for the Refugee Conventions “having carefully considered the cumulative effect of these factors and attributes in light of information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant could face serious harm for these reasons if he returns in the reasonably foreseeable future” Accordingly the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act

   Green Book Para 74 P283

   The AAT used the same language for Complementary Protection: “Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it. And given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A)” Green Book Para 77 Page 283

   The applicant claims that the AAT failed to assess the real risk cretario under the provision of complementary Protection Visa Provision s36(2)(aa).

   Particulars: In assessment the eligibility for Complementary Protection, the AAT took harsh approach. The applicant gave very details reasons of a significant harm from the Awami League Activists. If he is compelled to go back to his country (Bangladesh) he will be killed by the supporters of the Awami League. As he told to the Department he is failed asylum seeker who would be returning to Bangladesh on a special travel document. There is a risk he will be imprisoned and harmed by the Bangladesh Security forces in accordance with the procedures laid down in Emigration Act (1982) of Bangladesh. The applicant will face trial if he is compelled to go back to his country Bangladesh. This is a significant harm.

   The applicant claims the AAT did not consider this foreseeable significant harm when considering the applicant’s claim for the complementary protection.

2. The applicant also provided written submissions in support of the alleged grounds that in substance repeated the grounds in the amended application, as well as making reference to proposed other evidence in the nature of a transcript. Orders were made by a Registrar of the Court on 5 October 2017, giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No further affidavit evidence was put on by the applicant. It was for the applicant, if he wished to do so, to adduce the transcript of the hearing before the Tribunal. No such transcript was put into evidence. It was for the applicant to advance and establish any alleged want of jurisdiction. The reference by the applicant to proposing to put on the transcript does not give rise to any basis upon which any alleged error is made out in relation to the claims advanced by the applicant. No application for adjournment was advanced by the applicant when it was explained to the applicant that this was a final hearing, and the reference in the written submissions to the applicant’s proposal to put on the transcript are not grounds that warrant an adjournment in the interests of the administration of justice. The applicant had a reasonable opportunity to put on evidence as to the transcript.

3. The applicant’s written submissions otherwise take issue with the adverse findings. For reasons of the Tribunal summarised above, those adverse findings were open to the Tribunal for the reasons given by the Tribunal. The written submissions also suggest that the Tribunal was biased because it did not give details about adverse credibility findings. The Tribunal’s reasons reflect the Tribunal raising the credit issues with the applicant. For reasons earlier given, no such claim of bias is made out. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and made findings dispositive of the applicant’s claims that were open to the Tribunal.

Ground 1

1. In relation to ground 1, no evidence that was overlooked by the Tribunal has been identified and the Tribunal, on the face of its reasons, took into account the applicant’s claims and evidence and made dispositive findings. On the material before the Court the applicant was given a real and meaningful hearing. The Tribunal’s reasons identify raising with the applicant the credibility concerns and taking into account the applicant’s explanations and the Tribunal provided a logical and reasonable basis for rejecting those explanations as summarised above. There is nothing in the material before the Court to support the assertion that the applicant was denied procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the Tribunal, on the face of its reasons, correctly identified the relevant law and correctly applied the law. In rejecting the applicant’s claims concerning his fear of harm from the Awami League, the Tribunal made adverse credibility findings which were findings of fact which were open for the reasons given by the Tribunal. There is no substance in the proposition that the Tribunal wrongly applied the law. It was a matter for the Tribunal to determine whether it accepted the applicant’s claims and, on the face of the material before the Court, the Tribunal correctly identified the applicant’s claims and made findings dispositive of the applicant’s claims. The Tribunal’s reasons for rejecting the applicant’s involvement in BNP in Bangladesh were logical and rational and took into account the adverse credibility findings that were open for the reasons summarised above. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, there is nothing to support the assertion that the Tribunal adopted a line of questioning that was inappropriate or in any way biased. The Tribunal’s reasons reflect the Tribunal raising with the applicant credibility concerns and the taking into account of the explanations advanced by the Tribunal. On the face of the material before the Court, the Tribunal approached the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, this takes issue with the adverse credibility findings which have been addressed above for the reasons given by the Tribunal as summarised above. Those adverse credibility findings were open and ground 4 in substance invites the Court to engage in impermissible merits review. Further, insofar as the particulars to ground 4 advance an allegation of bias, no such claim is proved and the adverse credibility findings are, as earlier said, not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, the Tribunal correctly identified the relevant law. It was open to the Tribunal to take into account its comprehensive adverse credibility findings under the Refugee Convention in determining whether or not the applicant met the criteria for complimentary protection. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, as earlier identified, the Tribunal correctly identified the relevant law in relation to complimentary protection. Further, no claim has been raised by the applicant before the Tribunal that he feared harm as a failed asylum seeker, nor did any such claim fairly arise on the material before the Tribunal. The Tribunal’s reasons reflect taking into account the adverse credibility findings in considering whether the applicant met the criteria under s 36(2)(aa) of the Act. Those adverse findings were open for the reasons given by the Tribunal as summarised above. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, and as no jurisdictional error is made out by the oral or written submissions, accordingly the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 July 2018