Eed16 v Minister for Immigration

[2019] FCCA 851

FEDERAL CIRCUIT COURT OF AUSTRALIA

EED16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 851

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal erred in failing to consider the cumulative risk to the applicant as a Tamil failed asylum seeker with an adverse profile – whether the Administrative Appeals Tribunal considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act1958 (Cth) – whether the Administrative Appeals Tribunal’s findings were open to it – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – application dismissed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

MZYXS v MIC [2013] FCA 614

Applicant: EED16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3764 of 2016

Judgment of: Judge Emmett

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Sydney

Delivered on: 3 April 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3764 of 2016

EED16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 1 December 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 24 October 2014 refusing the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).

2. The applicant is a citizen of Sri Lanka and of Tamil ethnicity, who fears harm from the Sri Lankan authorities and supporters or members of the Liberation Tigers of Tamil Eelam (“LTTE”).

Background

1. The applicant arrived in Australia on 31 July 2012 as an illegal maritime arrival having departed illegally from Sri Lanka on 16 July 2012.

2. On 17 December 2012, the applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (“the Department”).

3. On 24 October 2014, the Delegate refused the applicant’s application for a Protection Visa.

4. On 27 October 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 1 December 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.

6. On 30 December 2016, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative Framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a Protection Visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

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

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a Protection Visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. The applicant’s claims and the Tribunal’s decision are accurately summarised in the first respondent’s submissions as follows:

    “Applicant’s claims

    4. The applicant’s claims were extensive and were set out in a number of statements and submissions to both the delegate and Tribunal.

    5. In a statutory declaration made on 11 December 2012 and attached to the applicant’s protection visa application (CB1, 72-80), the applicant advanced the following claims:

    5.1 The applicant had a brother, “S”, who was kidnapped and killed by the Sri Lankan Army (SLA) in 1989 because he was a Tamil. S’s death was covered up by the Sri Lankan authorities. The applicant and his family were displaced on numerous occasions during the civil war. The applicant travelled to Qatar in 2007, and again in 2009, in order to escape the civil war. The applicant's other brother, "U", fled to India in 1985, where he remained until 2012. In June 2012, U boarded a boat to Australia, and had not been seen since.

    5.2 On 19 January 2006 (during the civil war), there was a bomb blast near the applicant's home (January bombing). The SLA investigated the blast and rounded up a group of 15 Tamils, including the applicant. The group was detained for five days, during which time the SLA soldiers regularly beat the detainees. The applicant worked for the Department of Education at the time, and showed the SLA his ID in order to escape the worst mistreatment. The family members of the detainees begged the SLA soldiers to release them, which they eventually did.

    5.3 On 3 July 2006, there was another bomb blast at the Karuna Group's offices, near the applicant's home (July bombing). SLA soldiers came to investigate the bombing, and attended the applicant’s home. The applicant was assaulted by the soldiers. Following these incidents, and fearing for his life, the applicant obtained a work visa for Qatar, where he worked for two years. 

    5.4 Upon return to Sri Lanka, the applicant opened a soup restaurant, which he operated from his home. On 15 July 2010, police came to the applicant's house at approximately 11.30pm.The applicant was taken into custody, where he was interrogated, accused of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE), and assaulted. The applicant's wife was successful in getting the police to give an undertaking to take the applicant to Court the following day. The applicant was taken to Court on the condition that he would not tell the judge of his mistreatment and would tell the judge that he was detained on 16 July 2010, that he would not seek medical assistance, and that he would not complain to human rights organisations of his mistreatment. The applicant agreed to these conditions, and was taken before a judge. The judge ordered the applicant's release. Following his release, the applicant secretly sought medical attention (collectively, the July 2010 incident).

    5.5 Since opening his soup restaurant, the applicant experienced trouble on a few occasions with the Sri Lankan Home Guard (SLHG), who would come to his shop and demand free food. In May 2012, the applicant was approached by members of the SLHG, who demanded free food. The applicant told them that he could not afford to give them free food. The SLHG members hit the applicant, broke a radio that the applicant kept in his shop, and took the food that they had demanded. As the SLHG members left, they told the applicant "you just wait. We know what to do with you" (May 2012 incident). Following the May 2012 incident, the applicant began sleeping at his neighbour's house.

    6. In a submission to the delegate, dated 22 January 2013 (CB1, 156-157), the applicant claimed that on 14 January 2013, a member of the Criminal Investigation Department (CID) made inquiries of the applicant’s whereabouts with his wife. The following day, a Tamil boy (whom the applicant suspected was associated with the CID) made further inquiries of the applicant's wife. On 21 January 2013, the SLA and police raided houses in the applicant's home area. The applicant had previously been asked to report his whereabouts to the CID.

    7. In a submission to the Tribunal, dated 26 October 2015 (CB2, 232-255), the applicant claimed that he had a neighbour named Raju who was arrested in April 2012 and who now resides in Canada. The applicant also claimed that, because he had provided the SLHG members with food, he would be imputed with a pro-government opinion by members of the LTTE.

    8. In a statement made on 6 September 2016 (CB2, 539-540), the applicant's wife (who remained in Sri Lanka) claimed that on 12 June 2016, five intoxicated persons entered her house and beat her son. They were the same people who had previously caused problems at the applicant's shop. The applicant's wife also stated that her house had been searched by the SLA and police in 2013 and 2015.

    9. At the Tribunal hearing, the applicant claimed that the SLHG had been monitoring him at his soup shop between his release from custody in July 2010 and the May 2012 incident (CB2, 533 at [17]). The applicant further claimed to the Tribunal that upon his return to Sri Lanka from Qatar in 2009, he was detained and questioned at the airport by Sri Lankan authorities for seven hours about his involvement with the LTTE (CB2, 558-560 at [38]-[44]).

    Tribunal decision

    10. At the outset of its decision, the Tribunal noted that having had the benefit of the applicant's evidence, as well as the independent country information before it, it held “significant, cumulative concerns regarding the truth of central aspects of the applicant's circumstances” (CB2, 550 at [10]).

    11. The Tribunal considered the applicant's claims regarding his brothers S and U, finding that neither the death of S nor the disappearance of U contributed to the applicant having a heightened profile or otherwise greater risk of harm (CB2, 554-555 at [19]-[21]). Nor did the Tribunal accept that the kidnapping of the applicant's neighbour, Ragu, heightened the applicant's risk profile in any way (CB2, 567 at [73]-[74]).

    12. In respect of the January bombing, the Tribunal accepted that the applicant had been rounded up by the SLA with a number of other Tamil boys, but did not accept that he was suspected of having been involved in the bombing in any way (CB2, 555 at [25]). Nor was the Tribunal satisfied, on the basis of the applicant's evidence, that he had ever been a true suspect in the July bombing (CB2, 556-557 at [26]-[30]). The Tribunal rejected the applicant's claim to have been detained and questioned for seven hours at the airport upon his return from Qatar in 2009, noting that his evidence appeared in part to have evolved over time (CB2, 560 at [44]). The Tribunal also had regard to the applicant's evidence at hearing that he was not required to ever report to the CID, and on this basis rejected the claim (CB2, 564-565 at [58]-[59]).

    13. In respect of the July 2010 incident, the Tribunal noted that the applicant's evidence regarding his medical treatment was “vague”, his evidence regarding his release on bail was inconsistent with the information contained in his wife’s affidavit, and his introduction of new claims at the hearing suggested that he had (and continued to have) no adverse profile with the Sri Lankan authorities (CB2, 561-562 at [50], [52]-[54]). Having regard to these inconsistencies, and to its general concerns as to the applicant's credibility, the Tribunal did not accept that the July 2010 incident ever occurred (CB2, 563 at [57]). 

    14. The Tribunal considered the applicant’s evidence regarding his interactions with the SLHG, finding that the applicant's evidence cumulatively did not support his claim to have ever been personally targeted or monitored by the Sri Lankan authorities for any reason (CB2, 564 at [63], 566-567 at [72]). The Tribunal did not consider the applicant's evidence to have continued to operate his soup restaurant following the May 2012 incident to be consistent with his claimed fear of the SLHG, such as to require him to sleep at his neighbour's house (CB2, 565 at [68]). The Tribunal considered that the May 2012 incident reflected a “one-off escalation in tension” between the applicant and drunk members of the SLHG, and did not accept on balance that the incident resulted in the applicant being of adverse interest to the Sri Lankan authorities (CB2, 565-566 at [72]).

    15. The Tribunal did not accept, on the applicant’s evidence, that he would be targeted by the LTTE were he to return to Sri Lanka (CB2, 570 at [87]-[89]). Nor did the Tribunal accept, on the basis of the country information before it, that the applicant would face harm for reason of his Tamil ethnicity or for being a failed asylum seeker (CB2, 570-574 at [90]-[106]). The Tribunal accepted that the applicant had departed Sri Lanka illegally (CB2, 574 at [108]). The Tribunal also accepted that upon return to Sri Lanka, the applicant may be held on remand while awaiting a bail hearing (CB2, 575 at [110]) and may be required to pay a fine for reason of his illegal departure (CB2, 575-576  at [111]). However, the Tribunal was not satisfied that any treatment that the applicant may face upon return to Sri Lanka would give rise to serious harm, nor was the Tribunal satisfied that this treatment (including the prison conditions to which the applicant may be exposed) would constitute significant harm (CB2, 576 at [112], [114]).”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of an interpreter. 

2. On 11 May 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

3. At the commencement of today’s hearing, the applicant confirmed that he has not filed any further document in this proceeding and has no further documents to give to this Court this morning.

4. The applicant confirmed that he relied on the grounds contained in the Application, filed on 30 December 2016, as follows:

   “Ground-1

   I seek judicial review of the AAT’s decision of 2 December 2016 as the AAT has declined its jurisdiction which is apparent in the AAT’s notification of decision where there is independent and reliable information before the AAT as to a Tamil like me in my similar circumstances being at real risk and serious harm if I were to return to Sri Lanka on arrival mainly as a failed asylum seeker who departed Sri Lanka illegally cumulatively with the facts that I am Tamil with a real/suspected profile said in my refugee claims for Protection.

   Particulars

   The AAT has accepted that my central refugee claims as credible but it does not accept there is a real risk to me on my arrival and/or later mainly at the hands of Sri Lankan authrorties.

   If I am forced to return to Sri Lanka I will be detained at the airport and held for security and identity checks. The authorities in the airport in my home areas will be contacted and my suspected profile including that I fear being seriously harmed Sri Lankan authorities, because, including cumulatively: my Tamil ethnicity; my imputed support for the LTTE/Tamil Separatism; direct accusations made against me in the past that I was suspected for hiding weapons for the LTTE; my attempts at seeking asylum in Australia; my previous torture and mistreatment by the Sri Lankan authorities. I face serious threats/harm from the Sinhalese Home Guard will come to light.

   If I were to return to Sri Lanka on my arrival and if I am allowed to return to my home town I will be interrogated and that means will mistreat me first and then ask questions as they had done to me in the past.

   I will be arrested and questioned at the airport for my identification. My suspected and own profile will come to light through the airport authorities and my home town's authorities and that 1 will really face a short term imprisonment and as a consequence mistreatment whilst imprisoned.

   The AAT erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me pursuant to section 36(2)(aa).

   Particulars

   The Respondent has declined its jurisdiction as it has failed to consider/take into account the country information and facts before it as AAT has accepted that I will be held on remand whilst the identity, character and security checks are completed. Based on the (illegible) country information reports before the AAT there is a real chance that on my return to Sri Lanka when questioned by the authorities, as all returnees are, my profile will come to light and that I face a real chance of more than short term imprisonment and as a consequence mistreatment whilst imprisoned.

   The independent and reliable country information before the AAT maker is not indicating with confidence/certainty that a Tamil like me is safe and/or will not be seriously harmed in Sri Lanka.

   I have stated my grounds of review in my Court Application and I will provide the further particulars of my grounds with my Amended Application when required after I have obtained and listened the AAT hearing CD.”

1. Before inviting the applicant to address the grounds of his Application, I explained to him that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

2. The grounds were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds and in support of the application generally.

3. I understood from the applicant’s oral submissions that because he was a Tamil and had an adverse profile and because he had two brothers in the army, one of whom was killed, if he returned to Sri Lanka those facts would be discovered and he would be killed. The applicant submitted that the Tribunal had not accepted the past harm he had suffered or that he was at risk of harm in the future. The applicant said that if he returned he would be arrested and tortured when the authorities become aware of his profile.

4. The applicant’s grounds were a mixture of restatement of claims and general disagreement with the Tribunal’s conclusions that the applicant was not a person to whom Australia has protection obligations pursuant either to s.36(2)(a) or s.36(2)(aa) of the Act.

5. The applicant confirmed that the first respondent’s understanding of his grounds of complaint was accurately disclosed in the first respondent’s written submissions in which the first respondent summarised each ground of complaint.

6. The first complaint is a contention by the applicant that the Tribunal failed to consider the cumulative risk to the applicant if returned to Sri Lanka as a Tamil failed asylum seeker with an adverse profile.

7. In assessing the applicant’s profile, essentially the Tribunal rejected the applicant’s claims and the reasons for such a profile. The Tribunal discussed with the applicant at the hearing the circumstances of the death of one brother in 1989 and the fleeing of another brother from Sri Lanka in 1985. In particular, the Tribunal found that any adverse profile arising from the deaths of his brothers to be speculative and not to give rise to a real chance of serious or significant harm to the applicant in Sri Lanka in the reasonably foreseeable future.

8. The Tribunal accepted that the applicant’s family were displaced during the civil conflict in 1990 and 2006. However, the Tribunal found that there was no evidence before it that the displacement was connected or gave rise to any profiles specific to the applicant.

9. The Tribunal considered in some detail the applicant’s claim to have been taken away for interrogation in July 2010 because of his support for the LTTE. The Tribunal noted that applicant’s claims to have been tortured during the interrogation, although the applicant was released to his wife after undertaking not to tell of his mistreatment or to seek medical assistance. The Tribunal noted the applicant’s claim that he was secretively admitted to hospital following this incident and noted that the applicant provided a “Diagnoses Ticket” in support. However, having regard to country information before it identifying the high prevalence of fraudulent documents from Sri Lanka and the detail of the document itself, the Tribunal determined to give it no weight. Otherwise, the Tribunal found the applicant’s claims about his hospital stay to be vague and was ultimately not satisfied about their veracity.

10. The Tribunal found the applicant’s claims to have had an adverse personal profile with Sri Lankan authorities to have evolved. Having regard to its concerns about anomalies and inconsistences, which it identified and found to be significant, the Tribunal did not accept that the events of July 2010 occurred. Accordingly, the Tribunal was not satisfied the applicant had an adverse profile in Sri Lanka with such events and was therefore not at risk of serious or significant harm if returned to Sri Lanka.

11. At the heart of the applicant’s complaints to the Court today, was the applicant’s disagreement with those findings by the Tribunal. However, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

12. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

13. In the circumstances, the grounds do not identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

14. To the extent that the grounds assert that the Tribunal failed to “consider in full” complementary protection, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered whether the applicant met the alternative criterion in s.36(2)(aa). However, relying on its reason as to why the applicant did not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal was not satisfied that the applicant met the criterion in s.36(2)(aa) of the Act. The Tribunal concluded that the applicant was not at a real risk of significant harm. That conclusion was based on the findings of fact made by the Tribunal in considering whether the applicant met the refugee criteria in s.36(2)(a) of the Act. The Tribunal found that the applicant made no other claims. It is well established that the Tribunal is entitled to rely on its findings that there was no real chance of the relevant harm alleged for Convention reasons in assessing whether there was a real chance of significant harm for complementary protection when the same essential claims and facts are relied upon (see MZYXS v MIC [2013] FCA 614 at [31] per Marshall J).

15. Further, the Tribunal attached to its decision record a summary of the relevant law relating to the refugee criterion in s.36(2)(a) and the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal also referred to Ministerial Direction No.56 made under s.499 of the Act and the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers in Sri Lanka, dated 21 December 2012. The Tribunal also identified country information to which it had regard, including persons charged under the Sri Lankan Immigrants and Emigrants Act.

16. In the circumstances, to the extent that the applicant’s grounds assert that the Tribunal failed to take into account country information relating to the return to Sri Lanka of failed asylum seekers, such a complaint is not made out.

17. To the extent that the applicant’s grounds complain that the Tribunal erred in failing to make a positive finding that the applicant would not be seriously harmed in Sri Lanka, such a complaint misunderstands the obligations of the Tribunal. It was not for the Tribunal to make a positive finding that the applicant would not face harm in Sri Lanka. Rather, it was for the applicant to satisfy the Tribunal that he was owed protection obligations (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). Section 65(1)(b) of the Act states that if the decision maker, in this case the Tribunal, is not so satisfied it must refused the applicant a visa.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 3 April 2019