MZZKS v Minister for Immigration - [2015] FCCA 532

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 532

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – whether complementary protection criteria fully considered – application dismissed.

Legislation:

Act Interpretation Act 1901 (Cth), s.15AB(1)(b)(i)

Migration Act 1958 (Cth), ss.5(1), 36(2)(aa) 46A(2), 91R

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
East African Asians v United Kingdom (1973) 3 EHRR 76
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Khan & Ors v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211
Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Pretty v United Kingdom (2002) 35 EHRR 1
Republic of Ireland v United Kingdom (1978) 2 EHRR 25
SGBB v Minister for Immigration and Multicultural and IndigenousAffairs (2003) 75 ALD 411
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZSVT v Minister for Immigration & Anor [2014] FCCA 768
Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388

Applicant:

MZZKS

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 650 of 2013

Judgment of:

Judge Lloyd-Jones

Hearing date:

1 May 2014

Delivered at:

Sydney

Delivered on:

18 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Counsel for the First Respondent:

Mr D Hughes

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

The application filed 13 May 2013, as further amended, be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 650 of 2013

MZZKS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed in the Federal Circuit Court on 13 May 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 8 April 2013. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The application was originally commenced in the Melbourne Registry of the Court and was transferred to Sydney by orders of Judge O’Dwyer to facilitate the appearance of the applicant’s counsel.
The matter was transferred into my docket and on 3 March 2014 orders were made in chambers, by consent, setting the matter down for final hearing and giving the parties leave to file and serve written submissions.
By orders made on 24 July 2013 by Registrar Allaway of the Melbourne Registry, the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing, by 30 October 2013. The volume of material was provided, has been identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
By orders made by Registrar Allaway on 24 July 2013 the applicant was granted leave to file and serve an amended application and any additional affidavits upon which he wished to rely by 6 December 2014. On 3 March 2014, by consent, the Court ordered that the applicant was granted leave to file and serve an outline of written submissions fourteen days before the hearing. The applicant filed a further amended application (the “Further Amended Application”) on 18 December 2013. The applicant filed an outline of written submissions on 16 April 2014.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a 28 year old Afghani national of Hazara ethnicity and Shia religion. He arrived in Australia on 2 June 2012 as an irregular maritime arrival to Christmas Island.
On 8 September 2012 the Minister notified the applicant that he had exercised his power under s.46A(2) of the Migration Act to allow the applicant to apply for a Protection visa (CB 20). On the same day the applicant applied for a Protection visa with the assistance of migration agents (CB 21-93).
On 2 January 2013 a delegate of the Minister refused to grant the applicant a Protection visa (CB 106-123).
On 8 April 2013 the Tribunal affirmed the delegate’s decision.

Applicant’s Claims

In the original Statement of Claims (CB 78-81) the applicant stated he lived most of his life in the majority Hazara area of Jaghori and was able to obtain a high school education. He claimed to fear persecution from the Taliban who targeted Hazara Shia and that it was not safe travel outside Jaghori because of the Taliban threat.
The applicant claimed that during the summer holidays in 2006 while he was on his way to Kabul the Taliban stopped car he was travelling in. They forcibly took the applicant and other Hazara men in the car away to be interrogated for an hour. The Taliban treated them harshly, then let them go. The Taliban were unaware he was a student or they would have seriously harmed him (CB 79).
In 2010, the applicant claimed he helped in the campaign of an election candidate, despite threats by the Taliban to harm those who participated in the election (CB 80).
In 2011, while travelling back to Kabul, where he attended university, from Jaghori, where his parents resided, the applicant claimed that the Taliban stopped the car he was travelling in and interrogated and insulted the applicant and other Hazaras in the car, calling them infidels. The Taliban allowed the applicant and the other Hazaras to go later that day (CB 80).
The applicant claimed that after this incident the security situation deteriorated in Kabul, such that it was no longer safe to travel to his parents’ residence in Jaghori (CB 80).

The delegate’s decision

The delegate found that Kabul was the applicant’s home and that it was reasonable for him to relocate there, as he had lived there for two to three years while he studied at university. The delegate also found he had a maternal uncle and his family as well as a brother-in-law living in Kabul (CB 114). The delegate found that as the applicant’s family resided in Jaghori he was satisfied that Jaghori could be considered to be his home region (CB 113). The delegate found that applicant did not suffer any harm while he was living in Kabul and that recent attacks on Shias in Kabul were opportunistic and isolated. The delegate concluded that Kabul was a safe place for Hazaras to live in with the authorities there being able to provide a reasonable level of protection and safety (CB 119).
The delegate found that the applicant did not have enough of a political profile to attract the adverse interest of the Taliban or other extremist groups, despite his support for the 2010 election candidate, Dr Sajadi (CB 119).
The delegate cited country information that failed asylum seekers are not targeted on return to Afghanistan and found the applicant’s lack of a profile to attract the adverse interests of the Taliban meant he would not face a real chance of serious harm as a consequence of having resided in a Western country or as a failed asylum seeker (CB 121).
The delegate said that the applicant had not made claims for complementary protection other than those already discussed under the Refugees Convention, and as there was not a real chance of serious harm from those claims, he could not be satisfied the applicant faced a “real risk” of significant harm (CB 123).

Claims for Complementary Protection made to the Tribunal

The applicant’s advisers wrote extensive submissions to the Tribunal, making additional claims for complementary protection.
The submissions claimed complementary protection obligations were enlivened by the “marginalisation and discrimination” suffered by Hazaras for reasons of their ethnicity and religion, including the “denial of social and economic right” (CB 202), being the denial of access to “food, shelter, employment and medical treatment, to the extent that his ability to subsist or survive would be at risk” (CB 204). The social and economic rights denied were “access to education, healthcare, or employment to such an extent that is dignity, autonomy and survival are threatened, amounting to ‘cruel and inhuman’ or ‘degrading’ treatment or punishment’ (CB 206).”
The submissions expanded on the degrading nature of the denial of social and economic rights (CB 208-201).
Significantly, for the remaining ground of review, the submission cited the decision of the (former) European Commissioner of Human Rights in East African Asians v United Kingdom (1973) 3 EHRR 76 (the “East African Asians Case”) 3 EHRR 76 in support of the claim that the racial basis of the discrimination itself rendered it “degrading treatment or punishment” (CB 211).

Tribunal’s Refugee and Complementary Protection Assessment

At the Tribunal hearing the applicant added a claim that he had been stopped a second time in 2011 when the Taliban took away his car which contained identifying and incriminating documents. The Tribunal regarded this claim as a fabrication as it was made late and was inconsistent with the applicant’s earlier statement that he never carried identifying documents when travelling between Jaghori and Kabul for fear of the Taliban.
The Tribunal accepted that the applicant was stopped twice in 2006 and 2011, but found that, as the applicant was let go each time and had no documents identifying him as a student teacher, he did not have a profile with the Taliban (CB 253 at [65]). The Tribunal also rejected that the applicant had an adverse profile from his involvement in the 2010 elections and support for the candidate, Dr Sajadi (CB 254 at [66]). The Tribunal found the chance of the applicant being targeted for reason of his past study to be remote (CB 254 at [67]). The Tribunal relied on country information to find there was not a real chance that the applicant would be targeted as a failed asylum seeker (CB 254 at [68]).
The Tribunal found that Kabul was the applicant’s home region and relied on country information “to conclude that Kabul is relatively secure and that Hazara Shias are generally safe from persecution” (CB 253 at [63]). The Tribunal found that if it was wrong to consider Kabul as the applicant’s home region, he could still reasonably relocate to Kabul to avoid persecution (CB 254 at [70]).

Tribunal’s Consideration of Discrimination Claims

Relevant to the ground of review was the Tribunal’s consideration of the applicant’s claims of discrimination as a Hazara Shia. The applicant elaborated on these claims in the hearings in response to questioning by the Tribunal. He referred to university research that stated 85% of Hazara students suffered discrimination and his own personal experience of a university professor dressing him down as a Hazara and threatening him with failure. The applicant stated “you can always feel it (discrimination), such as when you go to the market, or to a government department” (CB 248 at [38]).
The Tribunal did not accept that the applicant “faces discrimination amounting to serious harm for reason of his religion and ethnicity should he return to Afghanistan”. The Tribunal came to this conclusion after “noting” that the applicant was a “relatively well off person, owning property and land with his brother, and able to study at university”. The Tribunal did not accept that being threatened with a fail at university amounted to “serious harm” as required by s.91R of the Migration Act (CB 253 at [64]).
The Tribunal also found that it would be reasonable for the applicant to relocate to Kabul, because the time he had already spent in Kabul was “indicative of the applicant’s ability to live there and the social and familial networks he would have established there” (CB 254 at [70]).
The Tribunal said that it considered the “application of s.36(2)(aa) to the applicant’s circumstances” (CB 255 at [71]). The Tribunal acknowledged the ongoing conflict in Afghanistan, but found that Kabul was a relatively safe area with a population of five million, including one million Hazaras. The Tribunal concluded “[t]he Tribunal does not accept that the risk of the applicant suffering significant harm if removed from Australia to Kabul in Afghanistan is a “real risk’” (CB 255 at [72]).

Current Proceedings

The orders sought in the Further Amended Application state as follows:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. That the first respondent pay the applicant’s costs.
The one ground of the Further Amended Application relied upon by the applicant pleads as follows:
1. The decision of the second respondent was affected by jurisdictional error in that:
The second respondent (the Tribunal) constructively failed to exercise its jurisdiction in that it did not consider an integer of the applicant’s claims for complementary protection, namely that the discrimination against Hazara Shias experienced by the applicant of itself amounted to “degrading treatment or punishment” as defined in s 5(1) Migration Act because this discrimination was on the basis of race is and therefore and in the circumstances inherently degrading. This is to be distinguished from the differential treatment actually meter out to Hazara Shias and to the applicant, considered in isolation from its racial basis, to which the Tribunal limited it review.
Particulars
The Tribunal made no finding and did not say that it did not accept that Hazara Shias were not or would not be discriminated against in Kabul on the grounds of their race and religion as claimed by the applicant.
The Court was advised that Ground 2 had been abandoned.

Applicant’s Submissions

The applicant claims that in reaching its conclusions on complementary protection the Tribunal did not explicitly address or purport to address the claim that the discrimination the applicant faced as a Hazara Shia in Kabul would in the circumstances be degrading because it was on the basis of race.
The applicant claims that the case put to the Tribunal sufficiently raised the claim such that the Tribunal should have dealt with it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; following SGBB v Minister for Immigration and Multicultural and IndigenousAffairs (2003) 75 ALD 411
at [18] per Selwyn J. The applicant’s advisers made the “Racial Basis Through Degrading Treatment” claim in their submissions at CB 211. The claim was “…a substantial clearly articulated argument relying on established fact”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24].
The applicant’s claim that the Tribunal’s failure to address or otherwise resolve the claim amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: NABE (supra), citing Dranichnikov (supra) at [24] and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 per Allsop J (as he was then) . His Honour stated at [42]:
…The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration …
The applicant claims that the severity of discrimination was an integer of both the refugee and complementary protection claims, so there could be no similar overlap on the complementary protection claim that the racial basis of differential treatment against Hazara rendered that treatment “degrading” within the definition provided by s.5(1) of the Migration Act.
The Tribunal’s findings that discrimination did not amount to “serious harm” under s.91R did not address or otherwise resolve complementary protection claim that the discrimination the applicant faced as a Hazara Shia in Kabul would, in the circumstances, be degrading because it was on the basis of race.
The consideration of the “applicant’s circumstances” (CB 255 at [71]) does not of itself support a reading that the Tribunal also thereby considered the “Racial Basis Through Degrading Treatment” claim. The “applicant’s circumstances” refers back to his own individual circumstances as an educated property owner who lived in Kabul (see CB 248 at [38], CB 253 at [64] and CB 254 at [70]).
The applicant submits that it is wrong to read back into the conclusion “[t]here is no real risk he will be subject to degrading treatment or punishment… in Kabul” (CB 255 at [72]) a consideration of the “Racial Basis Through Degrading Treatment” claim. This is because the conclusion also supports the contrary reading that there was no discrimination or real risk of discrimination against Hazara Shia in Kabul at all. Because the conclusion supports both conflicting readings it cannot be said to be a finding of greater generality into which the claim was subsumed: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47].
To attempt to read back into the Tribunal’s reasons either consideration (or the applicant’s race as one of his “circumstances”) is to embark on an impermissible “exercise in divination” spoken of by Kenny J in Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362 at [55] where her Honour stated:
55. …In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision…To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so…
The applicant submits that the legal basis of the racial basis – degrading treatment claim was that discrimination based on race may, in certain circumstances, of itself amount to “degrading treatment” as defined in s.5(1) of the Migration Act. The effect of the proposition is that the racial basis of certain differential treatment may render the treatment degrading. It is conceded by the applicant that if this legal basis is not valid there may be no utility in granting relief.
The “Degrading Treatment Through Racial Discrimination” claim comes from the decision of the (former) European Commissioner of Human Rights in the East African Asians Case at [207], which concluded that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the European Convention on Human Rights. The Commissioner there said at [207]:
… [A] special importance should be attached to discrimination based on race; that publicity to a single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question.

The claim envisaged a distinction alluded to by the European Commissioner of Human Rights between the differential treatment meted out to the applicant as a Hazara Shia, (which was considered by the Tribunal), and the basis for that different treatment, for example, the race or ethnicity of the applicant. The makes the distinction between a person having to sit at the back of the bus because they were African Americans or not being able to swim in a public pool at a certain time based on a person being an Indigenous Australian. The applicant submits that the Tribunal did not draw this distinction and consequently did not consider whether, in the circumstances of the case, the racial basis of the discrimination rendered the discrimination against Hazara Shias to be “degrading treatment”. In the alternative, the Tribunal limited it assessment of “degrading treatment” to the differential treatment suffered by the applicant, for example, in the “applicant’s circumstances”.
The applicant states that “degrading treatment or punishment”, the real risk of which would engage complementary protection obligations under the Migration Act, is defined in s.5(1) of the Migration Act. Section 5(1) relevantly states:
…
“degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The Covenant is the International Covenant for Civil and Political Rights (the “ICCPR”), Article 7 of which provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
The double negative in the s.5(1) definition raises questions as to the extent to which the Migration Act has adopted Article 7 of the ICCPR in relation to “degrading treatment”.
The applicant argues that s.15AB(1)(b)(i) of the Act Interpretation Act 1901 provides for the use of “any material not forming part of the Act” to determine the meaning of a provision when the provision is ambiguous or obscure.
The Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 clarifies the ambiguity at item 3, [23]-[24] and states:
23. The term “degrading treatment or punishment” covers acts or omissions which, when carried out, would violate Article 7 of the Covenant. It is not intended to include those acts or omissions that would form part of a lawful sanction that is carried out in accordance with accepted international human rights standards set out in the Covenant.
24. This definition derives from the non-refoulement obligation implied under Articles 2 and 7 of the Covenant. This term is relevant when considering under new paragraph 36(2A)(e) whether a non-citizen will be subjected to degrading treatment or punishment (see item 14).
The applicant argues that the Explanatory Memorandum makes clear that “degrading treatment” is defined with reference to a relevant international law, for example Article 7 of the ICCPR. This is to be contrasted with the definitions in s.5 of the Migration Act of “torture” and “cruel or inhuman treatment or punishment” as considered by the Full Federal Court in Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211 at [18].
In SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 his Honour Allsop CJ stated at [59]:
59. It is now well settled that if the language of legislation is susceptible of a construction which is consistent with the terms of an international instrument and the obligations it imposes on Australia, that construction should prevail (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20;(1995) 183 CLR 273 at 287 per Mason CJ and Deane J). The relevant principles were described by Kiefel J in Plaintiff M70/2001 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [247] as follows (omitting footnotes):
In Polites v Commonwealth it was accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J took the proposition to apply to favour the construction of a statute which is in conformity, and not in conflict, with Australia's international obligations, at least so far as the language of the legislation permits. The ambiguity, to which such a construction was relevant, should not be viewed narrowly, in their Honours' view.
Independently of s.15AB the common law permits a court “to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context”: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112. This context is to be considered at first instance and not merely at some later stage when ambiguity might be thought to arise. “Context” is used in its widest sense to include such things as the existing state of law: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, cited in Newcastle City Council v GIO General Ltd (supra) at 112.
The reference in the s.5(1) definition to Article 7 of the ICCPR and the similarity in language between Article 7 of the ICCPR and Article 3 of the European Convention on Human Rights (“ECHR”) makes the jurisprudence of the International Court of Justice, European Court of Human Rights and the European Commission of Human Rights on Article 3 of the ECHR part of the context for ascertaining the meaning of “degrading treatment” in s.5(1) of the Migration Act.
Article 3 of the European Convention on Human Rights 1950 provides:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The identity between the Australian legislation and Article 3 of the ECHR is apparent from the decision of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 at [52] where the Court stated:
Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3.
The qualification of “extreme humiliation” in the Australia legislation is the same qualification of severity found by the European Court of Human Rights: Republic of Ireland v United Kingdom (1978) 2 EHRR 25 at [162]:
…ill-treatment must attain a minimum level of severity if it is to fall within the scope if Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case…
The applicant contends that the UN Human Rights Committee has avoided defining what constitutes Article 7 “degrading treatment”: Office of the UN High Commissioner for Human Rights, General Comment No. 20, 10 March 1992.

Minister’s Submissions

The Minister submits that the applicant is incorrect to assert that the Tribunal did not consider his claim to fear significant harm, being ‘degrading treatment or punishment’, arising from discrimination against Hazara Shia. It raised the issue with the applicant at the hearing, and asked him for his personal experience of discrimination against Hazara Shias. In response, the applicant referred to a university professor who threatened to fail him for something he said, but then did not fail him (see CB 248 at [38]). At [64] of the Tribunal’s Decision Record (CB 253) it stated:
38. The Tribunal notes the applicant was a relatively well-off person, owning property and land with his brother, and able to study at university. The Tribunal does not accept being threatened with a fail at university. The Tribunal does not accept being threatened with a fail at university, and then not being failed, amounts to ‘serious harm’ as required by s.91R. The Tribunal does not accept he faces discrimination amounting to serious harm for reason of his religion and ethnicity should [he] return to Afghanistan in the reasonably foreseeable future.
The Tribunal dealt with the complementary protection claim at [16]-[18] (CB 245) and then at [72] (CB 255). It noted at [72] that the applicant claimed that he would be at risk of significant harm including ‘degrading treatment or punishment’. That was a reference to the claim that the applicant says was not considered. The Tribunal then found at [72] that it did not accept that there was a real risk that the applicant will be subjected to “degrading treatment”. That was a determination of the claim that the applicant contends was not considered.
It may be accepted that the Tribunal did not repeat, at [72], its findings at [64] about the risk that the applicant would face discrimination in Afghanistan. There was no obligation for the Tribunal to do so. There is plainly an overlap in the consideration relevant to the question whether discrimination amounts to significant harm for the purposes of a complementary protection claim. In circumstances where the Tribunal expressly addressed the discrimination claim, and also the complementary protection claim, the Court should not draw an inference that the Tribunal did not consider the applicant’s claim as it related to complementary protection: see ApplicantWAEE (supra) at [47].

Consideration

I am satisfied that both integers of the complementary protection claim were addressed by the Tribunal. The integer focused on treatment of the applicant based on his race was acknowledged and referred to in the submission supplied by his then representatives. These claims were referred to in the Decision Record and dealt with as set out below.
Mr Gormly, representing the applicant on a direct access basis, indicated at the hearing that the applicant sought to abandon Ground 2 of the Further Amended Application. Mr Gormly contends that the question is whether in assessing complementary protection the Tribunal addressed the claim that the discrimination the applicant faced as a Hazara in Kabul would, in the circumstances, be degrading because of its racial basis.
Mr Gormly contends that it is not in issue that the definition of “degrading treatment” at s.5(1) of the Migration Act admits the proposition that the racial basis of differential treatment might render that treatment degrading when the same treatment on some other ground would raise no question. The basis for that is East African Asians Case which provides that to single out a group of persons for differential treatment on the basis of race might constitute a special form of affront to human dignity and that differential treatment might therefore be capable of constituting degrading treatment.
Mr Gormly took the Court to the decision of her Honour Judge Barnes in SZSVT v Minister for Immigration & Anor [2014] FCCA 768. Her Honour proffers her view on s.5(1) of the Migration Act and at [62] she stated:
62. …[I]n my view the s.5(1) definition could encompass differential treatment of a kind that caused and was intended to cause extreme humiliation because of the racial basis for that treatment, even if the same treatment on some other ground would not satisfy the definition. However it is not necessary in these proceedings to determine whether, and if so the extent to which, it is to be accepted as a legal principle that the racial nature of differential treatment would render that treatment degrading in certain circumstances. It is not contended that all racial discrimination of itself amounts to degrading treatment or that all claims of racial discrimination necessarily include, as an integer of the claims, a claim to that effect. The difficulty that faces the Applicant is that it has not been established that the asserted claim was raised squarely or clearly on the material before the Tribunal.
The issue in the matter before this Court is whether the Tribunal actually dealt with the claim in its decision, which is distinguished from the issue before her Honour Judge Barnes in SZSVT (supra), which focused on whether or not a claim had been raised. The argument advanced on behalf of the applicant in this matter is that there are two types of complementary protection claims made. One is the straight discrimination claim in that the applicant was being denied social and economic rights and he could not subsist as a result, therefore he would be unable to subsist because of that treatment constituted degrading treatment.
The other complementary protection claim is degrading treatment on a racial basis, also referred to as the East African Asians Case claim. Consequently, the submission is that the factual difference between the discrimination part and the racial basis part of the complementary claim depends on different factual bases. It is acknowledged on behalf of the applicant that there is some overlap in that the racial basis claim depends on and derives from the discrimination claim, so if there was a finding that there was no discrimination then that would be the end of the racial basis claim.
Mr Gormly referred the Court to the submissions made by the applicant’s migration agent, Craddock Murray Neumann Lawyers, dated 20 February 2013 addressed to the Tribunal, emphasising the passages that identify the two claims being made:
a)CB 203 at paragraph 104: - “…that the risks of harm (through both physical violence and the denial of social and economic rights) raised by Mr [MZZKS] in Afghanistan may suffice to qualify him for complementary protection”;
b)CB 204 at paragraph 115: - “Mr [MZZKS] fears that, upon his return to Afghanistan, he would be denied access to food, shelter, employment and medical treatment, to the extent that his ability to subsist or survive would be at risk. He further fears that he would be denied the socio-economic rights be account of his Hazara race and Shi’a faith:
a. We submit that this inability to provide for Mr [MZZKS]’s basic need will amount to persecution.”;
c)CB 208 at paragraph 136: – “… Mr[MZZKS] would suffer ‘degrading treatment’, and hence ‘significant harm’ through denial of social and economic rights insofar as:
a. he would be denied ‘human dignity’, and ancillary services necessary for the enjoyment of ‘human dignity’; and
b. he would be denied ‘basic needs’ through his inability to access, through the state, such services as are necessary for his healthy and safe survival.”; and
d)CB 211 at paragraph 142: – “Given the above, it is our submission that Mr [MZZKS], were he to return to Afghanistan, would experience denial of human dignity and basic needs in the following manners;
a. he would be unable to access shelter, healthcare or state services; and
b. he would be unable to access employment or other means by which he could provide for himself.”
Counsel then referred the Court to the Tribunal’s decision with particular emphasis on [38] where the Tribunal stated:
38. The Tribunal asked the applicant if he had suffered any discrimination or disadvantage because he is Hazara Shia. He said for as long as he knows, Hazaras have been discriminated against. The Tribunal put to him he had a family home and land, and was able to study at university, so what disadvantage had he had. He said his university had done research and found 85% of Hazara students suffered discrimination. The Tribunal asked if he had any personal experience of it. He said one day before class he had mentioned about the Mujahedeen leadership and that some of them were Pashtuns, not just Hazaras. His professor got angry and told him to report to his office. The next day he attended the office and the professor told him as a Hazara he was having his golden time now, studying at university, so why was he saying such things. The professor threatened to fail him. The Tribunal asked if he failed, and the applicant said no, he had pleaded with him not to fail him. When asked if he had suffered any other discrimination the applicant sad you can always feel it, such as when you go to the market or to a government department.
(CB 248)
The submission on behalf of the applicant is that if there was a finding of no discrimination then the racial basis claim would fail. However, the applicant claims there was no such finding and the Tribunal considered discrimination, in particular, that evidence at [38] above and the relevant conclusions at [64]:
64. The Tribunal has considered the applicant’s claim that he was discriminated against in Afghanistan because he was Hazara Shia. The Tribunal notes the applicant was a relatively well-off person, owning property and land with his brother, and able to study at university. The Tribunal does not accept being threatened with a fail at university, and then not being failed, amounts to ‘serious harm’ as required by s.91R. The Tribunal does not accept he faces discrimination amounting to serious harm for reason of his religion and ethnicity should be (sic) return to Afghanistan in the reasonably foreseeable future.
(CB 253)
It is submitted by the applicant that the Tribunal in the above passage is limiting its findings to the persecution claim.
The Tribunal then draws its conclusions on the claim for complementary protection at [72] where it stated:
72. The applicant claims that should he be returned to Afghanistan he would be at risk of significant harm including arbitrary deprivation of life, torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal acknowledges the ongoing conflict in Afghanistan, however, country information from the Danish Immigration Service and the European Country of Origin Information Network indicate Kabul is a relatively safe area in Afghanistan, with a population of 5 million including 1 million Hazara. The Tribunal does not accept that the risk of the applicant suffering significant harm does not accept there is a real risk that the death penalty will be carries out, or that he will be arbitrarily deprived of his life, or subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if he returns to Kabul. If the Tribunal is wrong in treating Kabul as his home area, for the reasons given above the Tribunal considers it is reasonable for the applicant to relocate to Kabul where there would not be a real risk that he will suffer significant harm.
(emphasis added) (CB 255)
The argument advanced on behalf of the applicant is that the above is a reference to the statutory terms but it is not sufficient as a proper, genuine or realistic consideration of the racial basis claim. The claim is that the above passage shows that the Tribunal has considered the racial basis claim because the factual substratum between the discrimination claim and the racial basis claim is not identical, and the racial basis claim requires additional particular findings of fact which concern the circumstances that need to exist for racial discrimination to be degrading in the sense described in the East African Asians Case. It is acknowledged that not all differential treatment on the basis of race will be degrading.
The applicant argued that the question of what are the circumstances in which racial treatment can be degrading remained. The applicant’s submission is that the East African Asians Case does not give the answer, but it is an issue that needed to be addressed by the Tribunal. It can be drawn from the Tribunal’s conclusion that the Tribunal Member had considered this particular part of the applicant’s claim, but Mr Gormly contends that further factual findings needed to be made by the Tribunal because the harm envisaged by the two claims is quite different in character.

Section 91R of the Migration Act talks of physical harm where the complementary protection provisions referred to degrading treatment. The discrimination claim as it is put in this case is that if there is an denial of social and economic rights, then that of itself constitutes degrading treatment and the Court is invited to isolate the treatment in that way. However with the racial basis claim the harm is quite different, essentially being a kind of moral harm. The argument advanced here is that the conclusion reached in [72] of the Decision Record cannot be taken as proof of a conclusion of the racial basis claim because that conclusion supports contradictory factual findings.
It is argued on behalf of the applicant that if the Tribunal does not accept that the applicant would be subject to degrading treatment, in light of the claims he has made that can mean either that there is no discrimination which is a determination both of the discrimination and the racial basis claim, where in fact there was discrimination which is in conflict with the other finding that the claim advanced on the racial basis was not degrading. Consequently, jurisdictional error occurs when the Tribunal fails to refer to evidence or other material on which findings of fact were based because of the provisions of s.430 of the Migration Act and the way that the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and the Federal Court in SZLSP (supra) have found.
In Yusuf (supra) per McHugh, Gummow and Hayne JJ at [69], their Honours stated:
69. It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
(emphasis added) (footnotes omitted)
In SZLSP (supra) per Kenny J at [55], her Honour stated:
55. In a case such as the present, it will always be possible to speculate that the Tribunal has relied on absent and unidentified probative material, but it will rarely be possible to establish that fact with any degree of confidence. In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision; and the evidence and other material referred to therein is in fact the evidence and material on which the Tribunal based those findings. To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so. I conclude that there is no such reason here.
(emphasis added)
Then, as can be seen in Yusuf (supra) at [69] (reproduced in SZLSP (supra) at [48]) it could be concluded, because of the obligation, that the Tribunal did not regard findings of fact which were not in the decision as being material that would:
69. … [Entitle] a court to infer that any matter not mentioned in the s430 statement was not considered by the Tribunal to be material... The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
(footnotes omitted)
The thrust of the applicant’s argument is by looking at [72] of the Decision Record that to be required to make a choice between two conflicting bases is not what was intended by the legislation. There is no complete factual identity between the discrimination claims, both for complementary protection on the refugee status and alternatively the racial basis.
There is an overlap between the discrimination claim and the complementary protection claim, to the extent that the complementary protection claim depends upon the existence of discrimination against Hazaras. Therefore if there is a finding of no discrimination, the complementary protection claim fails. However, there is a different factual basis to the racial basis claim and these further factual findings are of the nature that render the different treatment degrading. The applicant’s argument is that none of these findings are contained in the Tribunal’s Decision Record.
The claim is that is not a matter of fair reading, but rather the findings are just not there in the way that is consistent with the decisions in Yusuf (supra) or SZLSP (supra). That leaves an assertion at [72] of the Decision Record by the Tribunal that it did not accept that there was a real risk of degrading treatment through punishment and nothing to indicate the consideration of the racial basis element. A proper, genuine and realistic consideration is what is required according to his Honour Gummow J in Khan & Ors v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at [25] and his Honour Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 where Toohey J stated:
…That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account…
Mr Hughes, appearing for the Minister, referred the Court to the decision in Applicant WAEE (supra) which he submits sets out the right approach to take in interpreting the Tribunal’s decision. The relevant principle appears at [46]-[47] where the Full Court of the Federal Court stated:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(emphasis added)
The submission on behalf of the Minister is that the “applicant claims that should he be returned to Afghanistan he would be at risk of significant harm including arbitrary deprivation of life, torture, cruel and inhuman treatment or punishment or degrading treatment or punishment” is expressly raised by the Tribunal at [72] of the Decision Record. The earlier parts of the Tribunal’s decision show that, in context, at [72] the Tribunal has clearly considered the claim. The Minister again referred the Court to the submissions prepared by Craddock Murray Neumann, dated 20 February 2013 as the representatives acting for the applicant. The Court was referred to [31] (CB 184) of the submissions of Craddock Murray Neumann which the Minister contends is the beginning of the claim under the Convention grounds of the Protection visa application, that relates to the persecution of Shia Hazaras in Afghanistan based on discrimination and prejudice, and it is expressed as serious harm within the meaning of the Migration Act. Paragraph [31] states:
31. Furthermore, we submit, with respect, that the Delegate’s finding that Mr [MZZKS] is unlikely to be targeted for sectarian violence in Afghanistan impermissibly fails to take into account broader manifestations of serious harm. Mr [MZZKS], as a Shi’a Hazara, will experience serious discrimination because of his race and religion. This discrimination will amount, in tis extent and effect, to ‘serious harm’; Mr [MZZKS], excluded from the mainstream of Afghan society, denied state protection and unable to access essential services or networks of assistance and patronage, will suffer ‘significant economic hardship’, ‘denial of access to basic services’ or ‘denial of capacity to earn a livelihood of any kind’, sufficient to threaten his ability to subsist (as defined by s91R(2) of the Migration Act).
Within the same submissions at CB 206, the applicant’s claims under the complementary protection are addressed at [126]-[127]. This is immediately followed at CB 207 where it describes what forms of harm constitute significant harm at [128]-[129] of those submissions.
The Minister submits that the concept in the Migration Act of what degrading treatment or punishment is, for the purposes of the question of whether something is significant harm, requires extreme humiliation and that it be unreasonable. Mr Hughes acknowledged that in an appropriate extreme case, racial discrimination might meet that test which was the same conclusion reached by her Honour Judge Barnes in SZSVT (supra) which addresses the bounds of when serious harm is found for the purposes of the Migration Act and, as a general proposition, was not resisted by the Minister. Mr Gormly also referred to this decision, indicating that he led a similar argument before her Honour as he advanced in this matter.
The Minister argued that the issue addressed by her Honour in SZSVT (supra) did not arise in the matter before this Court because this particular claim focused on degrading conduct. This issue arises in the Craddock Murray Neumann submissions at CB 208 under the heading Degrading Treatment through Denial of Social and Economic Rights. The gravamen of that claim is summarised at [136] (CB 208) of the applicant’s submissions to the Tribunal, where it states:
136. We submits that Mr [MZZKS] would suffer ‘degrading treatment’ and hence ‘significant harm’, through the denial of social and economic rights insofar as:
a. he would be denied ‘human dignity’, and ancillary services necessary for the enjoyment of ‘human dignity’;
b. he would be denied ‘basic needs, through his inability to access, through the state, such services as are necessary for his healthy and safe survival.
The Tribunal addressed the details of the denial of social and economic rights, together with basic needs continues at [137]-[141] of the applicant’s adviser’s submissions where there is reference to “…internally displaced Afghans facing significant subsistence-based threats, particularly in circumstances where they are forced to relocate to refugee camps in Kabul”. There the applicant submitted at [141]:
141. Independent country information clearly indicates that internally displaced Afghans face significant subsistence-based threats, particularly in circumstances where they are forced – by their subjective fear of persecution in their home areas – to relocate to refugee camps in Kabul. We have provided independent information which indicates that:
a. Hazaras continue to suffer from widespread deprivation in Afghanistan, including a lack of access to employment, shelter, healthcare, education, and other socio-economic rights necessary for the full enjoyment of human dignity;
b. this deprivation results, at least in part, from longstanding attitudes of prejudice and discrimination directed against the Hazara community;
c. the inability of many Hazaras to receive and access socio-economic rights also results from widespread insecurity in Afghanistan, including violence directed against the Hazara community by the Taliban;
d. these circumstances of instability, discrimination and violence are unlikely to improve within the reasonably foreseeable future, and may in fact be exacerbated in coming years; and
e. the requisite element of ‘intent’ is satisfied, as noted in our submissions below.
These paragraphs raise further degrading treatment claims which is one of the issues raised by Mr Gormly on the basis that they were not considered, being degrading treatment through racial discrimination. There is a reference to the East African Asians Case and there is a submission that the applicant will face serious racial and religious discrimination upon his return on account of his Shia faith and his Hazara ethnicity. Those are the claims that were put.
The Minister then referred to the Tribunal’s decision. The complementary protection criteria were addressed at [16]-[18] (CB 245) where the Tribunal correctly set out the relevant provisions of the complementary protection regime. At [17] of the Decision Record, significant harm is defined in s.36(2)(aa) and in s.5 of the Migration Act. In addition, “degrading treatment or punishment” has a further definition in s.5.
In the Tribunal’s decision under the heading “application for review” at [38], it states:
38. The Tribunal asked the applicant if he had suffered any discrimination or disadvantage because he is Hazara Shia…
(CB 248)
Mr Hughes contends that the above statement indicates that the Tribunal was alive to the claim about discrimination and the applicant was specifically asked about it. The applicant’s response was:
38. … for as long as he knows, Hazaras have been discriminated against.
The Tribunal’s next question to the applicant was:
38. …The Tribunal put to him he had a family home and land, and was able to study at university, so what disadvantages had he had…
The applicant’s response was:
38. … He said his university had done research and found 85% of Hazara students suffered discrimination…
The Tribunal’s next question was:
38. …The Tribunal asked if he had any personal experience of it…
The response was:
38. …He said one day before class he had mentioned about the Mujahedeen leadership and that some of them were Pashtuns, not just Hazaras. His professor got angry and told him to report to his office. The next day he attended the office and the professor told him as a Hazara he was having his golden time now, studying at university, so why was he saying such things. The professor threatened to fail him. The Tribunal asked if he failed, and the applicant said no, he had pleaded with him not to fail him. When asked if he had suffered any other discrimination the applicant said you can always feel it, such as when you go to the market or to a government department.
(CB 248 at [38])
Mr Hughes submits that the above passage records where the issue of discrimination was raised during the hearing and the Tribunal then considered that evidence against the convention claim at [63]-[64]:
63. The tribunal relies on information from the US Department of State, the Danish Immigration Service and the European Country of Origin Information Network to conclude that Kabul is relatively secure and that Hazara Shias are generally safe from persecution. The Tribunal notes the main targets of the Taliban in Kabul are Afghan military personnel, police officers and political figures, as well as government buildings, hotels and embassies, as reported by the European Country of Origin Information Network. None of these groups are applicable to the applicant. The Tribunal finds the chance of him being targeted simply for being Hazara Shia is remote in Kabul and finds it does not amount to a real chance.
64. The Tribunal has considered the applicant’s claim that he was discriminated against in Afghanistan because he was Hazara Shia. The Tribunal notes the applicant was a relatively well-off person, owning property and land with his brother, and able to study university. The Tribunal does not accept being threatened with a fail at university, and then not being failed, amounts to ‘serious harm’ as required by s.91R. The Tribunal does not accept he faces discrimination amounting to serious harm for reason of his religion and ethnicity should be return to Afghanistan in the reasonably foreseeable future.
Mr Hughes submits that the above passages is a finding made about the convention ground but the finding of fact is obviously plainly capable of being applied to the finding that the applicant would not suffer extreme humiliation which is unreasonable, being the complementary protection test. The Tribunal at [72] of the Decision Record deals with the complementary protection aspects of the claim.
The Decision Record at [72] has been reproduced at [70] above and Mr Hughes draws the Court’s attention to two particular aspects of that paragraph, the first being:
72. The applicant claims that should he be returned to Afghanistan he would be at risk of …degrading treatment or punishment…
Mr Hughes contends that the above statement can only be a reference to the two claims about degrading treatment. The Tribunal then notes that Kabul is a relatively safe area and then makes the finding:
…the Tribunal does not accept that the real risk of … degrading treatment or punishment if he returns to Kabul…
I agree with the Minister’s submissions that the above passage can be interpreted as an acknowledgment and consideration of the claim that the applicant made in this respect. I acknowledge that the Tribunal at [72] of the Decision Record has not repeated all of the claims, together with all of the factual findings, that it made against the persecution claim, but it has no obligation to do so as discussed in Applicant WAEE (supra) which is considered at [80] above. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 271-272 their Honours stated:
30. When the Full Court referred to “beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued:
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
(footnotes omitted)

I am satisfied that the Tribunal was clearly alive to the discrimination issue and made findings capable of disposing of the complementary protection claim by referring to the claim, to the specific aspects of the claim that is in question and deposed of it. On the material before me the Tribunal considered the two complementary protection claims identified by the applicant and no jurisdictional error arises. Therefore, the sole ground of review pleaded by the applicant cannot be sustained.
Further, on a fair reading of the Court Book and Decision Record, no error is apparent. Accordingly, the application, as further amended, should be dismissed with costs awarded to the Minister.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate:

Date: 18 March 2015