EKV18 v Minister for Home Affairs

[2018] FCCA 3802

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKV18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3802

Catchwords:
MIGRATION – Application for judicial review of a decision by the Immigration Assessment Authority – Applicant fears harm due to his Kurdish ethnicity and retribution from police due to bus burning incident if returned to Iran – whether the Authority identified a wrong issue, ignored relevant material or made an incorrect interpretation and/or application to the facts of the applicable law – no jurisdictional error established.

Legislation:

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

Cases cited:

WZAVW v The Minister for Immigration and Border Protection [2016] FCA 760

Applicant: EKV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2377 of 2018

Judgment of: Judge Baird

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Sydney

Delivered on: 27 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr McGovern, Clayton Utz

ORDERS

1. The application is dismissed

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2377 of 2018

EKV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. Before me today is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority dated 23 July 2018.  The Authority affirmed a decision dated 12 June 2018, of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minister for Immigration and Border Protection), not to grant the Applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV). 

2. The Applicant is a citizen of Iran, a Shia Muslim of Kurdish ethnicity.  He first arrived in Australia on about 17 July 2013 having left Indonesia, according to his arrival interview, on 15 July 2013.  He arrived as an unauthorised maritime arrival on Christmas Island.

3. On 22 September 2017 the Applicant applied for a SHEV.  At the time he made his SHEV application, the Applicant was detained in the Bathurst Correctional Centre on a charge of being in possession of prohibited substances.  He prepared his application with the benefit of a registered migration agent who obtained a telephone statement from him, dated 15 September 2017, which statement accompanied the SHEV application. 

4. The Applicant attended an interview with the Delegate on 4 April 2018, which is referred to as his SHEV interview.  That interview was conducted with the benefit of a Farsi (Persian) speaking interpreter, and with his migration agent linked into the interview by phone from Adelaide.  Since his release from the Bathurst Correctional Facility sometime in the period from September 2017 to March 2018, the Applicant has been in immigration detention at the Villawood Immigration Detention Centre and he attended his SHEV interview whilst at Villawood.

5. Ms Libby Hogarth, a migration agent, submitted a post-interview submission on 21 April 2018 on behalf of the Applicant and noted that Ms Ruth Nowlan, the agent who attended the Applicant’s SHEV hearing, had problems hearing the interpreter’s translations and the Delegate’s questions.  Ms Hogarth also noted that the Applicant presented information at the interview that he had not previously advised Ms Nowlan when preparing the SHEV application.

6. On 12 June 2018 the Delegate refused to grant the Applicant the SHEV.  On 18 June 2018 the Delegate’s decision was referred to the Authority for review on the papers under Part 7AA of the Act.

7. On 23 July 2018 the Authority affirmed the Delegate’s decision not to grant the Applicant a SHEV.  Completing the history, on 27 August 2018, the Applicant applied to this Court for judicial review of the Authority’s decision. 

The Applicant’s claims

1. I turn to the Applicant’s protection claims.  First, in his arrival interview, conducted on 20 August 2013, the Applicant raised the following claims:

   (a)he left his country because of his son to fulfil his future and because there was no job security.  He came to Australia to live;

   (b)his wife died in 2010 and they, by which I assume the legal system, did not chase it up legally, and he was tired from that.  The legal system did not take it seriously;

   (c)he has debt and trouble will come.

2. In his SHEV application statement, made in September 2017, the Applicant made the following claims, which I have summarised from the Delegate’s decision at page 2 (page 117 of the Court book) as follows:

   (a)in his arrival interview he was not asked to provide full details and he was not told that his statements would be used for protection assessment;

   (b)in Iran he suffered many problems and hardships due to his Kurdish ethnicity;

   (c)as a student he was abused by the teachers and the other students because he was Kurdish;

   (d)during his military service he was sent to a warzone for his entire compulsory service in the Iranian National Army.  The authorities did not care if Kurds were killed;

   (e)due to his ethnicity he was unable to obtain government employment;

   (f)he was not permitted to have insurance and he had to pay large fees to attend the doctor;  

   (g)around 2010 his wife was killed when she was hit by a government bus.  He was not given any support on the death of his wife.  He was not able to make a complaint.  The Applicant was left to look after his young son and did not receive assistance from the authorities. 

   (h)he has been constantly struggling since the death of his wife.  His intention was to come to Australia and then sponsor his son to come to Australia.  He hopes to bring his son to Australia; 

   (i)he is [at the time of making the statement] in Bathurst Correctional Facility, as he has been charged with possession of an illegal substance.  He is depressed about his current situation, but since he has been arrested, he has not had any assistance from a doctor or a psychologist;

   (j)he wants to be saved from the suffering and the persecution he will endure if he is forced to return to Iran.  He believes that he will be imprisoned and subject to serious harm if he returns to Iran as he is Kurdish.  He also fears return as a failed asylum seeker.

3. During his SHEV interview on 4 April 2018, and in a post-interview submission prepared by his then appointed migration agent dated 21 April 2018, the Applicant provided further additional claims (adapted these from page 3 of the Delegate’s decision):

   (a)after his wife was killed in 2010 he set fire to the vehicle that was involved in the accident as the police refused to investigate the accident due to his ethnicity;

   (b)as a result, the police raided his house.  On the day that his father’s home was raided he had left his son with his father.  Someone rang him to warn him not to return to the house.  The authorities persecuted him and he was required to go into hiding in Iran until he fled from Iran in May 2013.  He left Iran legally via the airport;

   (c)he fears he will be arrested and imprisoned on his return to Iran;

   (d)he suffers from mental health issues and, at times, has felt suicidal and has now requested a proper psychological assessment; 

   (e)he had a car accident in Australia and, since the accident, he has suffered memory loss.  He did not advise his migration agent of this prior to the SHEV interview. 

4. As to the Applicant’s request for a proper psychological assessment, his representative in post-interview submissions recommended that the Department of Immigration and Border Protection (as it was then known) arrange a full psychological assessment due to the deep depression and suicidal idealisation the Applicant has suffered since the death of his wife, and the representative noted that he has not been formally assessed since he came to Australia or since he was held by Corrective Services.  The migration agent also submitted country information about the treatment of Kurdish people in Iran.

5. I also note that the Applicant has had a medical assessment since he has been in Villawood, which identified a number of medical conditions but, (according to the Delegate) during those examinations the Applicant did not state that he was suffering from significant memory issues.  The medical issues reported in the assessment included an enlarged heart and a fatty liver. 

The Authority’s decision

1. The Authority had regard to new information, being the most recent DFAT country report for Iran published on 7 June 2018, which included updated country information regarding Iranians returning to Iran who have claimed asylum overseas.  The Authority was satisfied there were exceptional circumstances to justify considering, and it took into account, new information from the most recent DFAT country report.

2. The Authority accepted that the Applicant had faced discrimination from teachers and other students as a child, and could not obtain government employment due to his Kurdish ethnicity. 

3. The Authority accepted, on the basis of country information, that Kurds faced discrimination in employment opportunities, as well as societal discrimination.  However, the Authority noted the Applicant was able to work in a range of jobs, both self-employed and as an employee, while in Iran.  I note that those jobs included in the scrap metal industry, transporting scrap metal, and, in the period 1 January 2012 to 1 May 2013, driving a lift truck for “Mr Abdallah” at the metal market in Tehran on Azadegan Highway.

4. The Authority noted there was no indication in the country information that, as a Kurd, the Applicant would be denied insurance.  The Authority accepted that the Applicant may face discrimination as a Kurd should he return to Iran, but it was not satisfied that this would amount to serious harm. 

5. During the SHEV interview the Applicant had clarified that when he undertook military service the war was over and he did not fight in any conflict.  Because of this information the Authority did not accept the claim that, because the Applicant was Kurdish, he was sent to a warzone where he could have been killed.

6. The Authority accepted that the Applicant’s wife was killed when she was hit by a government bus, and that this occurred in 2010.  The Authority accepted that the Applicant was left to look after his young son.  However, (at [12] of the Authority’s decision) the Authority did not accept the Applicant’s claims that he set fire to the bus involved in the accident, nor that he was pursued by the police as a result.

7. The Authority placed significant weight on the Applicant’s failure to mention this alleged incident in the otherwise detailed statement of claim in the SHEV application dated 15 September 2017.  The Authority noted that that application was completed with the assistance of a migration representative and an interpreter.  I note that the SHEV interview was conducted by telephone.  However, the Authority found that there was significant detail in the SHEV application statement, and it was struck by the inconsistencies between that detail, and the failure or lack of mention about the burning of the bus.

8. In considering the Applicant’s claims, the Authority had regard to the claim by the Applicant regarding his memory loss.  The Authority accepted that he was in a car accident in Australia, but noted that, during a medical examination whilst he was at Villawood, he reported: “no medical or surgical conditions”.

9. The Authority did not accept that if the claim, regarding memory loss, was true, that the Applicant would have failed to mention it during the medical examination at Villawood on 20 February 2018 (Authority’s decision at [13]), noting that the Applicant did mention the car accident itself during the examination, which is the accident that the Applicant alleged caused the memory loss.  The Authority did, however, accept that the Applicant has experienced stress which may impede his memory. 

10. The Authority found that the absence of medical evidence to support the claim to memory loss did not exclude the possibility that the Applicant may have some difficulty with recalling events, that is, despite there was no documentary evidence of memory loss, the Authority was still prepared to accept that the Applicant may have some difficulty with recalling events.  At [13], however, the Authority considered that even if the Applicant’s failure to mention the bus burning incident and related claims earlier in his SHEV statement was due to stress or memory loss or not considering it was important, other aspects of the account cast doubt on the veracity, that is, the truthfulness, of his claims.

11. In particular, at [14], the Authority recorded that whilst in the SHEV interview, the Applicant had difficulty recalling what year his wife died.  Both in his arrival interview and in the SHEV application the Applicant consistently stated his wife died in 2010 and the other information that the Applicant provided, that he did not work between 2010 to 2012, as he was the sole supporter of his son after the death of his wife, supports 2010 as being when she was killed.  The Applicant had stated that he set fire to the bus a few months after her death and that the police came to look for him within 10 days of him doing so, after which he immediately went into hiding until he left Iran.  The Authority found that, on the basis of this account that the Applicant gave in his interview, the Applicant would have been in hiding from at least mid‑2011 until he left Iran in May 2013, which was 2 years. 

12. The Applicant had claimed that in this time he stayed with relatives and friends, moving around, due to avoid detection. The Authority, at [14] and [15] of its decision:

    (a) noted with concern that the Applicant gave varying and inconsistent accounts of how many people he stayed with and for how long and how he moved about in those 2 years;

    (b) had significant doubts that if the Iranian authorities had an interest in the Applicant, he would have been able to avoid them for so long;

    (c) was concerned that the claim to be in hiding was inconsistent with the Applicant’s SHEV application where he said he was working as a lift truck driver in the metal market in Tehran from 2012 to 2013, which was also consistent with what he said in his arrival interview;

    (d) did not accept that if the Applicant was of interest to the police for the bus burning incident, he would have been able to depart Iran legally via Tehran Airport, noting that country information advised there are sophisticated checks at the airport.  Furthermore, the Authority considered, at [15], that: “if the Applicant was concerned that he was wanted by authorities, I consider it implausible he would risk detection by leaving via the airport”. 

13. At [23], the Authority noted unemployment and underemployment in Iran but, as I have said, the Authority observed that although the Applicant may not have been able to obtain government employment, and found other employers were not interested in employing him because he is Kurdish, there is no indication that he has been denied the opportunity to earn a livelihood.  The Authority accepted that Kurds faced discrimination in employment opportunities and it noted the difficult economic situation, and accepted that the Applicant may face discrimination as a Kurd should he return to Iran, but it was not satisfied that this would amount to serious harm. 

14. Applying the definition, under s.5J of the Act, of “well-founded fear of persecution”, the Authority concluded (at [23]) that there was no threat to the Applicant’s life or liberty or capacity to earn a livelihood, and that there was no threat of physical harassment or ill-treatment or significant economic hardship, denial of access to basic services that threatens the Applicant’s capacity to subsist, or other forms of harm that may be serious harm.  The Authority found that the Applicant does not have a well-founded fear of serious harm on this basis.

15. In relation to the Applicant’s loss of his wife, the Authority stated that it had not accepted that the Applicant set fire to the bus involved in the accident as claimed, but the Authority did accept that the Applicant’s stress and sadness of the loss of his wife led to his frustration with the authorities after the accident and it accepted that he may have wanted to see the driver punished.  However, the Authority said it was not apparent from the information before the Authority that the driver was at fault or that any lack of action against him was for the reason of the Applicant and his wife being Kurds with no rights to complain as the Applicant fears.

16. The Authority accepted that the Applicant was left in a difficult situation when his wife was killed, and that caring for his young son without government support would have been demanding and stressful. It accepted that healthcare may have been expensive in Iran. However, by reference to the recent country information published on 1 January 2010 and 31 January 2017, the Authority noted that it indicated that access to health care is guaranteed for all citizens and that the social welfare for the vulnerable is also available. Whilst insurance is linked to employment, and citizens must pay for their own insurance if it is not covered by their employer, there is no indication that, as a Kurd, the Applicant would be denied insurance: see at [25].

17. The Authority noted the Applicant had medical conditions and may also require psychiatric support.  However, there was no indication that he would not be able to access treatment if required.  And notwithstanding the difficulties that he might face as a single father in Iran, the Authority was not satisfied he would experience harm that would be considered serious harm and, on that basis, the Authority found the Applicant does not have a well-founded fear of serious harm on the basis of his ethnicity.

18. The Authority noted the Applicant did not raise any protection claims relating to the criminal charges he faced in Australia.  Nonetheless, the Authority assessed whether the Applicant would face harm on that basis if returned to Iran.  The Authority noted that the Applicant had served a term of imprisonment, and it noted that Iran has harsh penalties for drug trafficking offences.  The information before the Authority, however, did not indicate that the Applicant would be punished in Iran for these offences, as the Applicant had served his time in Australia, and the Penal Code reinstated detailed provisions in 2013 with regard to counting sentences served abroad and the prohibition of double jeopardy, that is, Iran would not reimpose a sentence on the Applicant.  Furthermore, the Authority referred to the laws of Iran and noted, in practice, that no cases of double jeopardy have been reported in recent times.

19. The Authority then considered the Applicant’s concern whether as a returned asylum seeker and a Kurd he would be imputed as being anti‑government and imprisoned or harmed should he return to Iran.  The Authority found that he may be questioned for a few hours on return to Iran but was not satisfied that this amount to serious harm, and, on the country information before it (which is as at 2018), the Authority did not accept that the Applicant would face significant harm as a Kurdish asylum seeker returning from a western country.

20. Thus, based on its anterior findings, the Authority found, first, that the Applicant did not satisfy the refugee criterion under s.36(2)(a) of the Act.  The Authority then turned to consider the complementary protection criterion under s.36(2)(aa) of the Act.  The Authority referred to the provisions of s.36(2A) and the meaning of “significant harm”.  The Authority observed (at [32]) that it had accepted that the Applicant may face discrimination in Iran but did not accept that this would amount to serious harm, nor that he would be questioned on return to Iran.  The Authority, based on its anterior findings, also found that these consequences would not amount to significant harm, that is, the harm does not include, within the meaning of s.36(2A) deprivation of life, the death penalty or torture, nor was the Authority satisfied that the Applicant would be subject to cruel, inhuman or degrading treatment or punishment, noting his anterior findings and that the real risk test for complementary protection is the same standard as the real chance test.  Based on the same information, the Authority was also satisfied there is not a real risk that the Applicant would face significant harm for those reasons, and concluded that the Applicant did not meet the complementary protection provisions of the Act.

Grounds of review

1. In his application filed 27 August 2018, the Applicant pursued three grounds of review as follows (without alteration). 

   1. Identifying a wrong issue.

   2. Ignoring relevant material.

   3. an incorrect interpretation and/or application to the facts of the applicable law.

Proceeding before the Court

1. The Applicant, being in detention, appeared before me in person at a directions hearing on 19 September 2018, with the benefit of an interpreter.  The directions I then made included that the Applicant have leave to file and serve an amended application and give complete particulars of each ground of review relied upon, and to file and serve, by way of affidavit, any additional evidence to rely upon, including any hearing transcript in both instances by 31 October 2018.  No such amended application or evidence has been filed.

2. The Applicant appeared before me today unrepresented but with the benefit of a Persian interpreter.  Before the hearing, Mr McGovern, solicitor for the Minister, had previously provided the Applicant with the Minister’s written submissions, and I confirmed with the Applicant that they were translated to him before Court.  In addition, the Applicant was provided with a copy of the Court book (Exhibit 1), and a copy of his application and the affidavit in support annexed the Authority’s decision, which is also reproduced in Exhibit 1.

The Applicant’s submissions

1. Upon inquiry by me, the Applicant indicated that he did not have any documents today.  He said that he had some documents at Westmead Hospital after his car accident, but he was not able to obtain those documents from 3 or 4 years ago when he had the car accident. 

2. When I asked for submissions in relation to Ground 1, that is, that the Authority “identified a wrong issue”, the Applicant stated that he had been in prison, and 4 or 5 days after he had been released he was told he had an interview.  His mother was sick, he did not know what to do, and he had been in prison at Bathurst for 10 months.  During the interview he never saw his migration agent, as she was in Adelaide and on the phone to him, however, there was an interpreter present with him in Villawood. 

3. Upon my inquiry as to what was the wrong issue that he identified, the Applicant said he did not have a lawyer, and he did not know what to say at all and his mental status was not good.

4. In relation to Ground 2, “ignoring relevant material”, the Applicant said that there were documents he was supposed to obtain from hospital and from Iran.  He did not have any help at all, and he did not know what to say.  In answer to a question from me, he indicated that he had spoken once on the phone to the migration agent (located in Adelaide) while he was in prison, and that was 8 or 9 months prior to the interview.

5. In relation to whether he had told the Delegate anything about these documents, he said he had told the Delegate, but he could not recall whether he had told the migration agent during the interview.  I referred the Applicant to the orders I had made on 19 September 2018, and the Applicant then said that when he went into prison he lost all the documents, even the car that he was driving.  The documents might have been at home and he does not know what happened to them. 

6. Those documents were in relation to the accident and how he has lost his memory.  There were also some documents in relation to his wife being killed in Iran that were supposed to be sent to him from Iran, but they were not sent.  Before me, there are no documents.  There were orders made for the provision of those documents and there have been opportunities during the SHEV application process before the Delegate to identify such documents, and none have been identified.

7. In relation to Ground 3, the Applicant was not able to shed any light.  He said that he did not understand it, and he did not know anything.  He said:

   I don’t know about the lawyer.  I was released.  I don’t know what the interview was about because I’ve lost my memory and there are a lot of dates I can’t remember.

8. I confirmed with the Applicant that his son remains in Iran and is now 10 years old and is being looked after by the Applicant’s parents.

The Minister’s submissions

1. The Minister submits that no jurisdictional error is established on any of the Grounds.  The Minister notes that the 3 Grounds of review are unparticularised assertions of jurisdictional error, and submitted that they were incapable of a meaningful response, and that they ought to be dismissed due to their lack of particularisation.  He referred too WZAVW v The Minister for Immigration and Border Protection [2016] FCA 760 at [35].

Consideration

Ground 1

1. In relation to Ground 1, it is clear that the Authority took into account and considered the issues, as I have identified above, specifically, as to the Applicant’s Kurdish ethnicity, the incident claimed in relation to the bus burning and retaliation in relation to the death of the Applicant’s wife.  I find, by reference to the Authority’s decision, which I have outlined above, that the Authority considered the evidence relating to the Applicant’s claims.  Turning first to the claims and evidence as to the Applicant’s Kurdish ethnicity, the Authority considered his ethnicity, noted the instances and inconsistencies in relation to military service, at [10], and by reference to country information, at [22] and [23], concluded that the Applicant’s protection claims did not rise to the threshold of serious harm.  The selection and treatment of country information is a matter for the Authority, and I find that its conclusions were based on factors it identified as reasonable, and are cogently reasoned and, in the circumstances, considered.

2. In relation to the issue of the bus burning claim, which the Authority rejected, the Authority gave weight, as I have said, to the fact that it was not mentioned in the SHEV statement. At [14] the Authority identified inconsistencies in the Applicant’s evidence: that, in fact, the Applicant did have employment in the period he was purportedly in hiding, and referring back to evidence apparent in the Delegate’s decision, as did the Delegate, did not find it plausible that the authorities would not find the Applicant if, as he claimed, he was using a bank account whilst he was in hiding.

3. The Authority, as I have said, placed weight on the Applicant being able to depart Tehran legally and, having regard to those factors, did not accept that the Applicant had burnt the bus, as alleged, and was of adverse interest to the authorities.

4. These findings of the Authority, I conclude, are reasonable, and are based on probative evidence before it, and its consideration of that evidence is logical, cogent and considered.  There is no jurisdictional error.  Thus, I conclude that the Authority did not identify any wrong issues or take any irrelevant considerations into account, nor was there any misunderstanding or misapplication of the applicable law.

5. Looking both at the refugee criterion under s.36(2)(a) and the complementary protection criterion under s.36(2)(aa) of the Act, the Authority referred to the appropriate relevant law, and its consideration and conclusion do not reveal any error on that same information as it had found for the refugee considerations.

6. To the extent that the wrong issue might have been a reference to the Applicant having been in prison in Australia, the Authority dealt with that matter at [26], and I find that the Authority’s consideration of the consequences of prison, should the Applicant be returned to Iran, is a relevant issue, and was appropriately dealt with by the Authority.  There is no wrong issue identified and I dismiss Ground 1.

Ground 2

1. In relation to Ground 2, if it might be said to relate to documents that the Applicant says he attempted to obtain, I note that there were medical records that were both before the Delegate, as is clear from the Delegate’s decision at footnote 12 of its decision, and the Authority by reason that the Authority had the material provided by the Secretary that was before the Delegate as is required under s.473CB of the Act, and which is referred to at [3] of the Authority’s decision.

2. To the extent that there are other medical documents that the Applicant now wishes he had to refer to, they are not mentioned in the Delegate’s decision, and they have not been mentioned by the Applicant’s migration agent in their communications.  Specifically, I note in the Delegate’s decision, in Part 5 Findings of Fact, under the subheading “Memory Loss”, that the Applicant has not submitted any evidence of the memory loss or the car accident.  The Delegate records that the Applicant stated that he did not mention this information when he had a full health assessment when he was placed in Villawood after being released from criminal detention, that the Applicant claims he did not inform anyone about this condition when he was in remand or criminal detention, and stated that he was never assessed in a hospital, as he checked himself out, and he never undertook any scans.  The Delegate records that the Applicant claims that he was never unconscious and that he was taken to hospital by his friends in their car and not by ambulance (see page 4 of the Delegate’s decision and the paragraph which corresponds to footnotes 9, 10 and 11).

3. As Mr McGovern, for the Minister, has submitted, and I accept, if there are no documents before the Authority, it cannot be a failure on the part of the Authority to consider what has not been placed before it.  So too, in relation to the documents which the Applicant hoped would be sent from Iran.

4. Given the statements made by the Applicant in his SHEV interview, and noting that the migration agent had the benefit of the transcript of the SHEV interview (as is apparent from communications with the Applicant’s migration agent and sent also to the Applicant at Villawood by the Department’s letter of 27 April 2018), I am satisfied that Ground 2 is not made out.  There is no jurisdictional error disclosed.  Ground 2 is dismissed.

Ground 3

1. In relation to Ground 3, I have referred above to the Applicant’s statements in this Court in relation to this ground.  I accept Mr McGovern’s submissions that it is not apparent from the Authority’s decision that the Authority misunderstood or misapplied the applicable law.  The Authority set out the statutory requirements for the s.36(2)(a) refugee assessment, applied the relevant test to its findings about the Applicant's claims and circumstances, and stated its conclusion in terms consistent with the statutory test.  The Authority set out the statutory requirements for the s.36(2)(aa) complementary protection assessment, applied the relevant test to its findings about the Applicant's claims and circumstances, and stated its conclusion in terms consistent with the statutory test.  Ground 3 is not established, and I dismiss it.

Conclusion

1. It follows that the application does not identify any error capable of review by the Court, the grounds of review are not made out and, as I have said, I dismiss the application. 

2. Having regard to the Minister’s submission that there was an attendance for directions hearing, and that Mr McGovern has prepared written submissions, I award the Minister his costs as sought.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date:         21 December 2018