MZZTW v Minister for Immigration - [2014] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTW v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2083

Catchwords:
MIGRATION – Application for judicial review of Independent Merits review – detailed criticism of reviewer’s decision – whether reviewer applied wrong test and/or failed to apply correct test – whether reviewer’s decision open on the materials – whether reviewer properly considered applicant’s claims – whether reviewer properly considered claim under complementary protection regime – whether jurisdictional error established.

Legislation:

Migration Act 1958, ss.36(2)(aa), 91R(1)(b)

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632
SZSON v Minister for Immigration & Anor [2003] FCCA 1153
Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9

Applicant:

MZZTW

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MS WENDY BODDISON IN HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number:

MLG 1642 of 2013

Judgment of:

Judge Burchardt

Hearing date:

11 July 2014

Date of Last Submission:

11 July 2014

Delivered at:

Melbourne

Delivered on:

19 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr Stanton

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Pursuant to r.16.01of the Federal Circuit Court Rules 2001 the application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646..

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1642 of 2013

MZZTW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MS WENDY BODDISON IN HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introductory

By an amended application filed on 2 May 2014, the applicant seeks judicial review of a decision of the second respondent (“the Reviewer”) dated 4 May 2012. The Reviewer conducted a review of a negative assessment made by a delegate of the first respondent on 17 May 2011. The Reviewer recommended to the Minister that the applicant not be recognised as a person to whom Australia had protection obligations.
The amended application lists three grounds all of which, as counsel said, to an extent interrelate. They all relate to the applicant’s status as a young woman who did not abide by strict Islamic protocol with respect to dress and appearance.
For reasons that follow, I do not think that the criticisms advanced by the applicant are made out and it follows that the application will be dismissed with costs.
Because the grounds of application and the submissions made in support of them involve inter alia a relatively detailed analysis of the Reviewer’s decision, it is appropriate to look at, in the first instance, of what materials were, in fact, before the Reviewer.

The Applicant’s Materials as disclosed by The Court Book

The applicant’s irregular maritime arrival entry interview is at Court Book (“CB”) 1-26. At CB10 the applicant gave reasons why she had left Iran. She referred to being an Arab and being the subject of discrimination based on this ethnicity. She also referred to the fact that she had a dog and had been beaten very badly while walking. She referred to danger to her life and when asked what was the nature of it responded, “Because I am a woman, I cover my hair but they see my hair, I was not allowed to walk my dog”.
At CB18 the applicant gave reasons for not wishing to return to Iran. She said she did not have freedom, that her photos were on the internet and that this would cause a lot of problems, she would be put in prison and beaten if she returned because she had left illegally and she had sought to seek refuge in another country.
At CB19, the applicant went on to say (I note these are matters of course recorded by the interview):
“There was no danger to my life. It was a physical and verbal abuse.”
The applicant said this was done by the police nearly two years ago, and many days after that. The applicant said that the police beat her and pulled her hair when she was shopping. She referred to the fact that she was walking, that her hair was obvious, and that she had makeup on.
She went on to give further details at CB20-21 of the assaults that took place on this occasion. She further referred to prejudice suffered by her as an Arab.
It seems to me to be a fair paraphrase of what the applicant said to the interviewer, that she was the subject of mistreatment because of her style of dress (leaving her hair uncovered), her dog, her makeup, and also because of her Arab ethnicity.
I note that at CB24, the applicant confirmed that she had left Iran lawfully. She repeated, however, at CB26, that she would face discrimination and abuse because she had left the country. Although the applicant gave some details of her husband’s involvement in political activities at CB35, the gravamen of what she had to say is set out in her statutory declaration at CB43-46.
She referred at CB43 to her husband’s political activities. She asserted a fear of returning to Iran because of her husband’s political anti-government profile.
At CB44, she referred again to her Arab ethnicity and resultant discrimination and prejudice. At paragraph 7 on CB44, the applicant said:
“I have been singled out by the Bassiji because I am Arab and also because I have a dog. On one occasion in 2009, the Bassiji singled me out because I was not wearing my hijab correctly, in their view. They hit and scratched me and hit me several times, in front of everyone. Just a few months ago, the Bassiji attacked my dog in a park and we had to run before they attacked me.”
At paragraph 13 (CB45), the applicant said:
“I fear returning to Iran. When we left Iran, we only had permission to leave the country for about one and a half months (I think, but I’m not really sure). I do know that the time to return has expired and I will definitely be in danger if I return. I fear going to gaol, being lashed or having to pay a fine, as these are the usual punishments. If I was to return, I would not be able to leave the country again, because the Government would keep a record of the fact that we were out of Iran for too long. They will ask questions about where we have been.”
She went on to elaborate on these matters in the rest of her statutory declaration. She repeated her fear that photographs had been taken of her in Christmas Island when she arrived, and that she had seen these on the internet. She was concerned that this Iranian Government could now see her on the internet. At paragraph 17 (CB46), the applicant said:
“I want an opportunity to live in a country like a normal person – not being fearful of walking around without my hijab, being different or for exercising my political views or supporting my husband who wants to live in freedom. This has not been our experience in Iran for all of my life. I am scared to return to Iran and need the protection of another country.”
The applicant’s migration agent forwarded submissions that are set out at CB71-79. These submissions covered not only the applicant but seven other Iranian applicants. The submission commenced by referring to the sur place claim, arising from the photographs taken of the applicants arriving at Christmas Island. At CB72, the submission asserted that the publication of the personal images of the applicant on the internet would give rise to an imputed political opinion of seeking asylum in a western country, this being inherently political, and membership of a particular social group, being failed asylum seekers from the west.
The submission referred in some detail to country information, and strongly submitted that the photographs on the internet gave rise to a serious risk of harm if the applicants were to be returned to Iran.
The matter was considered by a delegate of the first respondent, whose Refugee Status Assessment (“RSA”) Record is at CB89-102.
The delegate noted the claims made by the applicant, which were paraphrased at CB90-91. The paraphrase of the entry interview claims seems to me to be accurate, and I note that the claims advanced, it would appear, at the RSA interview and through the applicant’s statement of claims, were slightly more expanded.
It is sufficient for these purposes to say that the delegate accepted that the “abhorrent” conduct of the Basij, in kicking her dog and physically assaulting the applicant occurred, found that these were not sufficiently repeated to constitute serious harm for Convention purposes. The delegate found that the harm feared needed to be systematic and discriminatory (CB99).
The delegate also declined to accept the sur place claim arising from the photographs of the applicant, as the delegate did not accept that such matters would, in the context of the known country information, be likely to expose the applicant to the risk of persecution.
The applicant’s lawyers forwarded a submission in support of her application for Independent Merits Review (“IMR”), which runs from CB109-159. The claims for protection were threefold. The first was persecution arising from race as an Arab. The second was persecution arising from membership of a particular social group, this being (CB110):
“The applicant instructs that her main fear of persecution is based on her membership of a particular social group; namely as an owner of a dog in Iran as well as being a young woman who did not abide by strict Islamic protocol with respect to dress and appearance.”
The third ground asserted was a fear of imputed political opinion, arising out of her seeking asylum in a western country, this being interrelated with the photographs uploaded onto the internet. The applicant also asserted (CB111):
“The applicant instructs that this fear will be simply compounded by her fears of persecution described above; namely being a young woman who owned a dog and did not abide by the strict Islamic law with respect to dress and appearance.”
The remainder of the submission consists, as far as I can see, essentially of country information, all put as being supportive of the matters to which the applicant had previously referred. At CB158, under the heading “Conclusion”, it is asserted:
“Accordingly, on the facts before us and the Applicant’s submission of the events surrounding her case, we submit that there is little doubt she holds a well founded fear of persecution should she be forced to return to Iran.”
The only other matter forwarded to the Reviewer was a letter dated

13 January 2012 from BMA Lawyers (CB161) on behalf of the applicant, which referred to, relevantly, the fact that her brother had been killed by the Basij. The matter was not put with any great degree of emphasis (and it scarcely needed emphasis) but the letter did relevantly state, “The Applicants instruct that the body found dead and full of injuries and signs of torture”.
I note that a Case Support Officer wrote to BMA Lawyers on 20 April 2012, inviting them to comment on the complementary protection regime (CB163), and the submissions in reply are set out at CB168-173.
I note that the applicant relied on her statement of claims submitted on her behalf in support of her application for the RSA together with the submissions and letters previously sent. Although the written submission necessarily addressed the applicant’s circumstances by reference to the complementary protection regime, no additional factual matters were asserted on the applicant’s behalf.

Decision of the Reviewer

The Reviewer, typically in decisions of this sort, commenced by setting out a brief introduction of the matter together with the relevant law.
At CB179-183, the Reviewer paraphrased the materials previously submitted by the applicant and the submissions forwarded by her agents. The recitation does not seem to me to be materially inaccurate.
The Reviewer went on to record the interview that had taken place with the applicant in Hobart on 19 January 2012 at CB183-188. As I understand it, there is no suggestion that the matters recorded by the Reviewer are inaccurate as to what was said. It is clear that the Reviewer traversed the applicant’s evidence with her and that she provided to an extent some more detail of various matters previously asserted.
The Reviewer traversed the post hearing submissions in relation to the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (“the Act”) at CB187-188.
The Reviewer set out country information at CB188-190 dealing with Islamic dress code and dog ownership in Iran. The country information noted the very considerable restraints on the clothing that women were entitled to wear in Iran and the criminal consequences of breaching such laws. The Reviewer also noted the fact that Islam by custom considered dogs unclean and that notwithstanding there were thousands of dog owners in Tehran alone, law-makers in Tehran were considering a law that would criminalise dog ownership altogether.
At CB191-199, the Reviewer considered the applicant’s claims pursuant to the Convention. At paragraph 103 CB191, the Reviewer said:
“The claimant submitted that she had a well-founded fear of persecution for reasons of:
·Her ethnicity as an Arab Khamseh
·Imputed political opinion as a result of her husband’s political activities and as a result of applying for asylum in Australia
·Being imputed with being anti Islamic as a result of owning a dog and not dressing appropriately
· Her membership of the particular social groups of:
o Women in Iran
o Dog owners in Iran
o Divorced/separated women in Iran
o Failed asylum seeker-accused of being an infidel, spy and traitor
o Young women who did not abide by strict Islamic protocol with respect to dress and appearance (would be dealt with harshly under Islamic law)”
The Reviewer first dealt with the question of the applicant’s Arab ethnicity. Put shortly, the Reviewer found that a neighbour who had harassed the applicant did so because of the way she dressed, and that this was also what made the police unsympathetic towards her. In part, this was based upon the evidence given directly by the applicant to the Reviewer. While the Reviewer accepted in paragraph 108 (CB192) that Khamseh Arabs are the subject of discrimination, this did not amount, as the Reviewer found, to serious harm as envisaged by s.91R(1)(b) and was not persecution within the meaning of the Convention.
The Reviewer then went on to deal with the question of the imputed political opinion arising from the applicant’s husband’s and brothers’ political activities. In part, the Reviewer, for reasons that seem to me cogent (see paragraph 111 CB193) did not accept the applicant’s account of events. The Reviewer found that the applicant had not been imputed with a political opinion or suffered any detriment in the past as a result of her husband and her brothers’ political activities and found, therefore, that there was no likelihood of the same in the future.
The Reviewer next dealt (CB194-195) with the question of the applicant’s dress. The Reviewer did not accept that being required to wear modest Islamic clothing amounted to serious harm as envisaged by s.91R(1)(b) of the Act and did not amount to persecution within the meaning of the Convention (paragraph 116 CB194).
The Reviewer went on to say in the same paragraph:
“Further the requirement to wear Islamic clothing applies to all persons in Iran. The evidence before the Tribunal does not indicate that these laws would be discriminatorily applied, implemented or enforced against the claimant for a Convention reason. Therefore punishment for breach of the dress regulations is the implementation of a law of general application and the punishment is not persecution within the meaning of the Convention.”
While the Reviewer accepted that the applicant had been verbally abused on one occasion and on another had been beaten and kicked, the Reviewer was of the view that “this isolated incident although clearly distressing did not amount to significant physical harassment or significant physical ill-treatment so as to amount to serious harm and persecution within the meaning of the Convention.”
A similar finding was made in relation to the applicant’s dog in as much as the Reviewer accepted that on one occasion the applicant’s dog had been kicked by the Basij but not injured. The Reviewer did not accept that this amounted to serious harm and persecution as envisaged by s.91R of the Act. The Reviewer also noted that:
“119. … if the law banning the ownership of dogs is passed it would be law that applies to all persons in Iran. The evidence before the Tribunal does not indicate that this law would be discriminatorily applied, implemented or enforced against the claimant for a Convention reason. Therefore punishment for breach of this law would be the implementation of a law general application and the punishment would not be persecution within the meaning of the Convention.
120. Although the way the claimant dressed and the fact she had a dog meant that she might have been perceived as being anti Islamic or at least not a strong adherent of Islamic values, the reviewer does not accept based on her past experiences that this perception would lead to a real chance that she would be persecuted in the reasonably foreseeable future and her fear of persecution is not well-founded.”
The Reviewer then went on to consider the applicant’s claims as a divorced/separated woman at CB195-196. The Reviewer noted that the applicant’s sister was divorced and found that, based on her sister’s experiences, there was no real chance the applicant would be persecuted on these grounds (paragraph 121, CB196).
The Reviewer then dealt with the dispute with the neighbour. It found that the matters concerned did not give rise to serious harm, as envisaged by the Act, and did not amount to persecution (paragraphs 123-125, CB196-197).
A similar finding was made in relation to the local Basij member who lives near the applicant (paragraph 126, CB197).
The Reviewer went on to consider the applicant’s claims as a failed asylum seeker at CB197-199 and concluded that, in the applicant’s circumstances, “there is no real chance that the claimant would be seriously harmed in the reasonable foreseeable future if she returned to Iran on account of overstaying her exit permission and there is no real chance of being accused of being a spy, traitor or infidel due to the fact she was a failed asylum seeker from a Western country or for a reason of any other imputed political opinion being opposed to the Iranian regime and her fear of persecution is not well-founded” (paragraph 135, CB199).
The Reviewer went on to consider the applicant’s claims cumulatively and found, nonetheless, that there was not a well-founded fear of persecution (paragraph 136, CB199).
The Reviewer then considered the applicant’s claims against the complementary protection provision at paragraphs 138-149 and concluded that the applicant did not satisfy the s.36(2)(aa) criterion.

Ground 1 of the amended application

Ground 1 - The second respondent erred in failing to properly consider the applicant’s claim with regard to her membership of a particular social group.

Particulars

A. The applicant claimed that she feared persecution because of her membership of a particular social group of “young women who do not abide by strict Islamic Protocol with respect to dress and appearance”.

B. The applicant gave evidence that she had been beaten and harassed due to her appearance, and relied on country information that women who do not abide by strict Islamic Protocol with respect to dress and appearance were subject to persecution.

C. The second respondent found that being required to wear modest Islamic clothing does not amount to serious harm, and that although a restriction on freedom it does not amount to persecution. Further, it was found that the requirement to wear Islamic clothing applies to all persons in Iran.

D. The second respondent failed to properly consider whether there was a particular social group as claimed by the respondent, whether members of that particular social group were at a real risk of serious harm, and whether the applicant was part of that particular social group.

In both oral and written submissions, the applicant contended that the Reviewer asked the wrong question. It was submitted that the real issue was what would happen if the applicant had in fact not worn the hijab. It was pointed out that in her statutory declaration at CB 46, the applicant had indicated she did not wish to wear the hijab, and it was submitted that the applicant’s claim of belonging to a particular social group of young women who do not abide by strict Islamic protocol with respect to dress and appearance was clearly articulated. It was submitted that the Reviewer’s reference to the law being one of general application was a distraction. It was submitted that the particular social group was established by the applicant’s materials and the Court was referred to CB 125, 126, 127 and 171 in this regard. It was further submitted (paragraph 20, applicant’s written submissions) that there was no country information cited by the respondent to show whether the purported law was indeed one of general application and how it was applied to different social groups in practice.
Counsel for the first respondent referred the Court to CB 188 and paragraph 97 of the Reviewer’s judgment, which, in my view, clearly shows that a particular form of clothing (modest as it would be) is prescribed for all women in Iran under the Penal Code and sets out the penalties that are prescribed for violation. In these circumstances, the proposition that this was indeed a law of general application, as the Reviewer found, seems to me to be, at the very least, clearly open. If one looks at the detailed reasons given by the Reviewer at paragraphs 114-118 (CB194), it seems to me that on a fair reading the Reviewer was well aware what the applicant was saying had occurred to her in relation to her breaches of the dress code, and concluded that this was not likely to give rise to persecution within the meaning of the Convention.
The first respondent referred in written submissions at paragraph 22 and 23 to a number of authorities touching upon this matter. These are to the effect that it may not be necessary to consider the steps set out in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 in circumstances where the basis of the claim in terms of the Refugees Convention had already been rejected. I note that in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632, Finkelstein J at [23]-[29], in particular, analysed past cases and noted that, at [25]:
“It is entirely proper to avoid identifying the appropriate “particular social group” if it is unnecessary to do so. Dranichnikov does not demand otherwise.”
The purport of his Honour’s observations was to the effect set out at [29], where his Honour said:
“This is the same reasoning as employed by the Tribunal in this case. It held that the appellant’s fear is based on his individual action and not on his affiliation with any particular group. Having made that finding, there was no need to address the test set out in Dranichnikov.”
Similar authorities to the like effect were set out by Judge Barnes in SZSON v Minister for Immigration & Anor [2003] FCCA 1153 at [34]-[38].
While I accept the submission of counsel for the applicant that the particular cases relied upon by the Minister referred to by Judge Barnes (and in Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9 at [67] per Gyles J) may necessarily involve different factual circumstances, in my view the Reviewer considered the applicant’s case in the light of what had actually occurred to her. The matters which she said gave rise to a real risk of serious harm upon possible return to Iran, while they may well have affected other people of like mind, were all inherently personal to her. The Reviewer found that the applicant would not face a risk of serious harm on this basis.
In my view, in the particular circumstances of the case, the Reviewer well understood the claim the applicant was making. I accept that it was not necessary in the particular circumstances for the Reviewer to consider the claim of a particular social group, albeit that it was advanced as a discrete matter because of the nature of the facts and the circumstances that the Reviewer confronted. The Reviewer, in my view, did not fall into jurisdictional error in dealing with it in the way that she did.
Furthermore, there was in fact material before the Reviewer which would properly have entitled the Reviewer to find, as she did, that this was a law of general application that would not be described in a discriminatory way in any event.

Ground 2 - The second respondent erred with regard to the assessment as to whether the applicant was at a real risk of serious harm.

Particulars

A. Asylum seekers are not required to take reasonable steps to avoid persecutory harm.

B. The second respondent found that being required to wear “modest Islamic dress” does not amount to serious harm.

C. The second respondent failed to properly consider the correct question, which was whether the applicant was at a real risk of serious harm if she was perceived to be dressing immodestly.

D. The applicant’s claim that it was “routine” for her and other women to be harassed due to their appearance and that she had been beaten due to her appearance.

E. Serious harm encompasses significant physical harassment of the person and significant personal ill-treatment of the person.

F. The second respondent did not take issue that the applicant had been beaten and accepted that Iranian women can be subject to detention if they are perceived to dress incorrectly.

G. Even if the applicant’s past experiences did not constitute serious harm, that did not mean that she was not at risk of serious harm in the future.

H. The applicant claimed to be at a real risk of serious harm due to her membership of a particular social group. The applicant’s past experiences of harm were not determinative of her claim.

I. The second respondent failed to consider whether detention can amount to serious harm as a threat to the person’s liberty.

J. The second respondent failed to properly assess whether the applicant was at a real risk of serious harm.

This ground was elaborated in both written and oral submissions and it encompassed more than one part. In part, it was submitted (the applicant’s written submissions, paragraph 27) that the Reviewer asked the wrong question. It was submitted that the applicant was not required to take reasonable steps to avoid persecutory harm. The question was that if she did not wear such a dress whether she would suffer such harm.
In part, the ground constitutes an assertion that the Reviewer misunderstood the evidence, but in my view this may be disposed of shortly. Even if this were so (and to my mind the Reviewer’s findings were open to her) it would be an error of fact within jurisdiction.
Finally, it was submitted (paragraph 35 and following of the applicant’s written submissions) that the second respondent accepted that persons who dressed immodestly could be subject to a brief period of detention and failed to consider whether this could amount to serious harm.
The applicant referred the Court to country information at CB190 which shows that individuals who commit repeated offences against the dress code may be detained for longer periods of time, brought to court, and forced to attend guidance classes.
Counsel for the first respondent referred to the Reviewer’s reasoning generally at paragraphs 114-118 (CB194). It was submitted, correctly in my view, that the Reviewer was aware that the applicant might undergo “a brief period of detention” (paragraph 118).
The Reviewer relevantly found at paragraph 118:
“… The Reviewer does not accept that she would be dealt with harshly under Islamic law. The reviewer finds based on the claimant’s evidence and the country information that there is no real chance that the claimant would be killed (or seriously harmed) in the reasonably foreseeable future for not wearing appropriate Islamic dress and that any fear of persecution she has is not well-founded.”
It was, in my view, open to the Reviewer to find on the facts as they stood that the applicant’s past experiences were such that there was not a real chance that she would suffer serious harm, if returned to Iran, on the basis of noncompliance with the dress code. The applicant’s own evidence suggested that over a not inconsiderable period of time the applicant had suffered only isolated mistreatment, which itself was not sufficient to amount to serious harm. The Reviewer did not, in my view, fall into jurisdictional error in concluding on a prospective basis that serious harm would not occur.
It is true that the Reviewer did not refer in terms to the likelihood of longer periods of incarceration, but it was the Reviewer who quoted the country information that indicated this was a possibility for repeat offenders, and the Reviewer can reasonably be taken to have been aware of it. In the circumstances, the finding of the Reviewer, when read fairly and as a whole, is not open to this criticism that the applicant advances.
In so far as the applicant complains that it was her case that she ought not be required to wear modest Islamic dress, I refer to the finding that the law was one of general application. I also accept the submission of the first respondent at paragraph 28 of the written submissions:
“Persecution for reasons of one of the Convention grounds excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law or a law of general application. The law with respect to Islamic dress patently seeks to promulgate Islamic value in Iranian society. Iran is an Islamic state and Islamic law obviously applies to all Iranians.”
It follows that this ground is not made out.

Ground 3 - The second respondent erred in failing to properly consider whether or not the applicant was exposed to a real risk of significant harm pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth).

Particulars

A. The applicant had been beaten and harassed due to her appearance.

B. The second respondent accepted that women who are perceived to dress immodestly could be detained.

C. The second respondent failed to properly consider whether the applicant was at a real risk of significant harm pursuant to the new and separate criterion provided for by s.36(2)(aa) of the Migration Act1958.

D. The second respondent conflated the test for persecution with the test for complementary protection.

E. The second respondent did not consider how the test for complementary protection pursuant to s.36(2)(aa) of the Migration Act1958 (Cth) was different to the test for persecution and how this impacted upon the applicant’s claims.

F. The second respondent failed to properly consider, through careful analysis and full reasons whether the real risk of the applicant being beaten, harassed or detained could amount to cruel, inhumane or degrading treatment or punishment.

The written submissions of the applicant add, in truth, but little to the assertions made in the grounds themselves, although I note that it is asserted at paragraph 47 that the second respondent failed to refer to degrading treatment, and it was submitted that this was a separate criterion to cruel and inhuman punishment.
In oral submissions, counsel submitted that the Reviewer had applied the test relating to the Convention, rather than the criterion set out in s.36(2)(aa), and that the Reviewer should have considered the prospects of the applicant’s arrest and its sequelae.
Put equally shortly, counsel for the first respondent’s submissions were to the effect that indeed the Reviewer did carry out the required jurisdictional task, and had not conflated the two tests.
It is certainly the case that the Reviewer was aware of the different test under s.36(2)(aa), because the same is referred to in some detail at paragraphs 15-17 of the decision (CB178-179). I accept that it was not necessary for the Reviewer to repeat that distinction when the Reviewer came to deal with the particular question of the complementary protection regime at CB199 and following. It is reasonable to infer that the Reviewer had in mind the correct test unless the terms of the decision reveal otherwise.
Ultimately, as both parties submitted, it is a matter of reading the Reviewer’s decisions fairly and as a whole. In my view, read fairly and as a whole, the Reviewer was aware of the relevant test, as she had already set it out earlier in her reasons, and applied herself conscientiously to an examination of each of the subparts of the applicant’s claims against that criterion. The Reviewer also considered the claims cumulatively (see paragraph 149, CB201).
There is nothing in the Reviewer’s decision-making, as revealed by the reasons for decision, which in my view shows any want of proper application to the jurisdictional task before her, namely to conduct a review of the case on the merits by reference to the relevant applicable law. The findings by the Reviewer were, at the very least, open to her on the materials, and her prospective analysis, based on those findings, seems to me one that does not give rise to jurisdictional error.

Conclusion

In the circumstances, in my view, the criticisms advanced of the Reviewer’s decision are not made out and the application will be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate:

Date: 19 September 2014