MZZVS v Minister for Immigration

[2014] FCCA 2310

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2310

Catchwords:
MIGRATION – Application for judicial review of RRT decision – whether Tribunal failed to consider applicant’s claims cumulatively – whether Tribunal failed to consider applicant’s claim to fear persecution as a Tamil – whether Tribunal failed to consider applicant’s claim to fear persecution arising from having sought asylum discretely – Tribunal’s decision to be read fairly and as a whole – criticisms not made out – application dismissed.

Legislation:  

Migration Act 1958 (Cth), s.36(2)
1951 Convention Relating to the Status of Refugees

Applicant: MZZVS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1933 of 2013

Judgment of: Judge Burchardt

Hearing date: 12 August 2014

Date of Last Submission: 12 August 2014

Delivered at: Melbourne

Delivered on: 16 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Amended Application filed 7 July 2014 be dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1933 of 2013

MZZVS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an amended application filed on 7 July 2014, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 October 2013.  The Tribunal affirmed the decision of the Delegate of the first respondent not to grant a application a Protection (Class XA) Visa.

2. The amended application has three grounds, each of which asserts that the Tribunal failed to consider an aspect of the applicant’s claims.  It will be necessary to return to these grounds of application in due course.  Consideration of each of them involves a detailed consideration of the materials before the Tribunal.

3. For the reasons that follow however, I have come to the conclusion that none of the criticisms advanced are made out and it follows that the application will be dismissed with costs.

The Materials before the Tribunal

1. Each case requires to be considered in the light of its own particular circumstances, but when detailed criticisms are advanced of factual findings made by the Tribunal, and it is asserted the Tribunal has failed to consider some sub-aspect of the applicant’s claims, there is in my view very frequently no means of avoiding a detailed consideration of what the Tribunal actually had before it and what it made of it.

2. The applicant’s irregular maritime arrival entry interview is at Court Book (“CB”) 1-24.  At CB 9, the applicant reported that his father had been kidnapped because he used to go to the Liberation Tigers of Tamil Eelam (“LTTE”) controlled area in January 2011 and the Criminal Investigation Department (“CID”) suspected the applicant as an LTTE supporter as a result.  The applicant reported that CID had started looking for him three months after the disappearance of his father.  The applicant confirmed this was the only reason he left Sri Lanka and that he was never captured or arrested.  He confirmed that his father was an LTTE supporter but that he himself was not.  He said he did not know what form of support his father had ever provided to the LTTE.

3. At CB 16, the applicant confirmed he sought protection in Australia and gave us the reason:  “I want protection for my life, because they think I am LTTE.”

4. The applicant’s completed application form for a protection visa is at CB 28-42.  It adds nothing for present purposes.

5. The applicant did however set out his claims in more detail in a statement of claims at CB 81-83.  At paragraph 5, the applicant relevantly said:

   “5.    I left Sri Lanka because of my father’s alleged involvement with the LTTE.  He used to visit the LTTE controlled area in Mullaitheevu in January 2011.  He worked in Mullaitheevu as a fisherman.  He was away for 2-3 months at a time working as a fisherman.  I said in my entry interview that my father is an LTTE supporter only because he used to go to Mullaitheevu which is an LTTE controlled area so maybe he was an LTTE supporter.  I didn’t say he was an LTTE supporter as written in my entry interview.  I know that my father was against the army because of their behaviour raping women in my area.”

6. The applicant went on to depose to persons searching for his father and his father’s disappearance on 11 January 2011.  He further deposed to persons coming to his house to search for him, and that he subsequently effectively went into hiding (apart from a visit to India) until his departure from Sri Lanka.

7. The applicant also deposed at paragraph 15:

   “15.  During the usual round up, I was detained overnight by the army in April 2008.  They pushed me against the lorry and when I fell, I injured my left knee.  I cannot play soccer but can manage a cricket game.  My leg has become a bit better.” 

8. At paragraphs 16-18 (CB 82), the applicant explained his fear of return to Sri Lanka:

   “16.  I believe if I return to Sri Lanka I will be tortured and killed because firstly, I am a Tamil and secondly, they suspect I am an LTTE supporter and because of my father’s alleged support of the LTTE.  I fear for my life and cannot live in Sri Lanka.  I don’t know when this will happen.  If I return, maybe they won’t do anything for 6 months but then they will start.  When I think of my country, I think of death. 

   17.  I believe if I return to Sri Lanka, I will be harmed/mistreated by the army and CID for the above reasons. 

   18.  The authorities in Sri Lanka cannot or will not protect me as we are Tamils, we don’t get any assistance.”

9. The applicant went on to explain why relocation in Sri Lanka was not possible and confirmed that the army have continued to search for him.

10. The applicant’s representative wrote to the Department providing written submissions at CB 96-105.  The refugee claims were characterised at CB 96 as:

    “1.    his ethnicity as a Tamil

    2.    his actual/imputed political opinion including of being an ‘actual/perceived sympathizer/supporter of the LTTE’ or as being against the Sri Lankan government due to his father’s perceived support of LTTE

    3.    his membership of the following social group:

    ·Young Tamil men from the North returning to Sri Lanka as failed asylum seekers;  or

    ·Tamil Fishermen from the North or Tamil fishermen from an area with a history of an LTTE presence and/or LTTE recruitment.”

11. The factual narrative repeated the allegation that the applicant had been detained overnight by the Sri Lankan army and injured when assaulted in 2008.  It also added a claim (at CB 96) that:

    “In 2010, (the applicant) was ‘rounded up’ and questioned by the Sri Lankan army on two separate occasions.  On one of these occasions, he had a gun pointed to his shoulder.  He was released after 15 minutes but does not know the reason for his release as the men spoke in Sinhalese.”

12. The following submission was made at CB 97:

    “In assessing his claims, (the applicant’s) past persecution is probative of the possible future harm he faces in Sri Lanka.  Moreover his claims must be considered cumulatively when assessing whether the totality of his circumstances supports the real risk of persecution.  We submit there has been no material change in the circumstances in Sri Lanka which warrants the decision that (the applicant) does not face a well-founded fear of persecution if he were returned to Sri Lanka.”

13. I further note that at CB 99 it was asserted that:

    “Additionally, it is claimed that (the applicant’s) risks of harm on his return to Sri Lanka would be further heightened due to his travel to Australia as an asylum seeker.”

14. The submission went on to give instances from country information of such harm upon return.

15. In CB 100, the matter was further articulated as:

    “An assessment needs to be made from the perspective of the future risks to (the applicant) taking into account the totality of his circumstances.  This would include determining the risk he faces on return as a young Tamil male from the North of Sri Lanka who would return as a failed asylum seeker and as someone who is already known to the Sri Lankan authorities in his area.”

16. The written submission went on at CB 102 to address the complementary protection criterion. This articulated a risk of significant harm within the meaning of s.36(2) of the Migration Act 1958 (“the Migration Act). It was put that this risk arose on the applicant’s return as a failed Tamil asylum seeker including (CB 103) arrest and prolonged detention after arrival at the airport in Colombo and a risk of punishment owing to his illegal departure.

17. The decision of the Delegate is relevantly at CB 111-129.

18. The delegate noted that the applicant had been detained overnight by the Sri Lankan army in April 2008 and noted that he had been questioned by army personnel on two occasions in 2010 (CB 114),  on one occasion for 15 minutes and on another for 30 minutes.  On one of these occasions, a gun was pointed at his head.  The delegate accepted that these incidents occurred (CB 117).  Nonetheless, the delegate did not consider that in the circumstances, the applicant had a well-founded fear of persecution if he was returned to Sri Lanka.  What he had suffered in 2008 and 2010 was either too long ago (2008) or not sufficient to be regarded as persecution (2010).  The delegate also rejected the applicant’s claims, put more generally, as a young Tamil man from the North or East of Sri Lanka returning to his country as a failed asylum seeker. 

19. The applicant forwarded a statement via his migration agent to the Tribunal in response to the delegate’s decision, which is at CB 169-170.  In my view, it does not take the matter further. 

20. The applicant’s migration agent also forwarded a written submission, which at CB 172-194.  This submission does not seem to me to advance any further facts but I note that at paragraph 2.8 CB 174, the submission asserted: 

    “2.8  Moreover, the Applicant fears that he will face significant harm if he is returned to Sri Lanka as a failed Tamil asylum seeker.  He fears the Sri Lankan authorities will detain and torture him during their investigations as to why he left Sri Lanka because he has departed Sri Lanka illegally, as well as being a young Tamil man from the North West, suspected of being a LTTE supporter.” 

21. I note further that at CB 183, the written submission defined the social group to which the applicant belong as: 

    ·   They are young Tamil men from the North West of Sri Lanka;

    ·   Their family have been marked as LTTE supporters;

    ·   They are viewed as having LTTE associations;

    ·   They left Sri Lanka illegally;

    ·   They were forcibly returned after their applications for asylum failed;

    ·   They are perceived to be escaping suspicions of the Sri Lankan government, CID or associated paramilitary groups. and

    ·   They are suspected of having spoken unfavourably about the Sri Lankan government while seeking asylum.

22. The submission responded in detail to the delegate’s decision and set out substantial material arising from country information. 

23. Following the hearing before the Tribunal, the applicant’s migration agent sent further material responding to country information put to the applicant at the hearing.  The written submission is at CB 218-225and was accompanied by a statutory declaration from the applicant, CB 226-229.  The written submission referred ( at CB 218) to:

    “the number of accumulative risk factors identifiable in this case, including: 

    ·   his Tamil race,

    ·   his illegal departure from Sri Lanka,

    ·   his non-voluntary return to Sri Lanka,

    ·   his suspected failed asylum claim in Australia,

    ·     once he is handed over to the CID and SIS he would be questioned and his identity checked against intelligence data bases.  Checks would be made against police data bases, fingerprints would be taken and he would be photographed.  As it is likely he would be held until checks are made with his local police station in Udappu and the Director of Military Intelligence, any number of these checks could disclose his father’s details and that he is wanted by the CID or army.

    In such circumstances this may lead to indefinite detention, torture and other forms of irreparable harm at the hands of authorities that would amount to serious harm under s 91R of the Migration Act 1958.

    We also submit that there are risks for our client given he would be charged on return for having left the country illegally in circumstances in which bail is not assured.” 

24. The applicant’s statutory declaration confirms that at no time has he supported or helped the LTTE, but repeats his claims of risk because of the belief on the part of CID and army that his father was involved with the LTTE.

25. The statutory declaration gives further details of the applicant’s movements before he left Sri Lanka and asserts further that he went to India for protection. 

26. The statutory declaration does not otherwise add to the applicant’s claims. 

The Tribunal’s Decision

1. Having set out the application for review in relevant law, the Tribunal came to deal with the applicant’s claims and evidence CB 238-251.  The Tribunal set out the materials previously filed by the applicant and recorded the decision of the delegate.  At paragraphs 42 and following, the Tribunal recorded what transpired at the hearing before it (CB 242-251).  The Tribunal clearly had an extensive interchange with the applicant and his advisor that traversed in some detail the matters the applicant had previously asserted. 

2. The Tribunal’s findings and reasons are at CB 253-260.  The Tribunal noted at paragraph 113, CB 254, that: 

   “113.     That neither the applicant, nor any member of his family came to the adverse attention of the authorities despite these ruthless and brutal detentions is a strong indication that they were, as the applicant has claimed, not aligned to the LTTE in any way and, more importantly, not imputed to have been involved.” 

3. The Tribunal accepted the applicant’s accounts of events in 2008 and 2010.  At paragraph 117 (CB 254), the Tribunal noted that the 2008 incident, bearing in mind that the applicant was released, was “a random check or scrutiny but with no ongoing consequences and indicated that the authorities found him not to be of concern.”

4. At paragraphs 118-119 in respect to the 2010 incident, the Tribunal found: 

   “118.     …However, against a backdrop of arrests and detentions for anyone suspected of actual LLTE links, it is obvious that he was not considered to be of even low-level concern to them and released after relatively two short demeaning periods of abuse. 

   119.     Such abuse being short lived and no further instance of abuse, leads me to find that it was not at a level that constitutes serious or persecutory harm.”

5. The Tribunal next dealt with the question of the applicant’s father’s imputed support of the LTTE.  The Tribunal noted that the applicant’s assumption that he would be of interest to the authorities because of his association with his father was not valid when other issues were taken into account.  These included (paragraph 134, CB 256) the fact that the authorities would have been able to find the applicant had they decided to do so and the fact that the applicant went to India in January 2012 without difficulty (paragraph 135). 

6. The Tribunal concluded on the evidence before it that the applicant did not face a real chance of persecution and if he had remained in Sri Lanka, he would not have faced a real chance of persecution in a reasonably foreseeable future (paragraph 144, CB 257).

7. The Tribunal went on to consider as a separate matter the consequences of the applicants having left Sri Lanka illegally.  Having set out the applicant’s claims inter alia at paragraph 153 (CB 258), the Tribunal asserted at paragraphs 154 and following: 

   “154.    I accept that he is a young Tamil male, I accept that he is from a fishing village and was involved in the agriculture and fishery industry.  His location is from the North West of Sri Lanka rather than from the North or the North East.  He is not from an area with a history of an LTTE presence.  As discussed above I do not accept that he has or has ever had an imputed association with the LTTE. 

   155.    I have reservations concerning the composition of some of the suggested social groups but, even if I accept that he was a member of some of those groups I find, as discussed above, that he did not face a real chance of serious harm for any of those reasons or his membership of any of those groups while he was in Sri Lanka and, having regard to the independent material before me, would not in the reasonably foreseeable future. 

   156.    The only issue that has shifted is that he left Sri Lanka illegally.

   157.    Having considered all of the above claims and made a finding that he does not face a real chance of serious harm for any of those reasons now or in the reasonably foreseeable future I have turned my attention to claims that he will be treated disproportionately for his illegal exit. 

   158.    It has been submitted that he will be disproportionately treated for reasons of his ethnicity, Tamil, his illegal departure, his non-voluntary return and his suspected failed asylum claim. 

   159.    I give greater weight to and prefer the advice from DFAT, the UNHCR and the Upper Tribunal of the UK, cited above.

   160.    I find that the applicant does not face a real chance of harm disproportionately for any of the reasons submitted.”

8. At paragraph 168 (CB 259), the Tribunal concluded: 

   “168.    In summary, having considered the totality of the applicant’s circumstances in light of all information before the Tribunal I am not satisfied that the applicant faces a real chance of serious harm for any Convention reason now or in the reasonably foreseeable future, when his claims are considered both individually and cumulatively of his Tamil ethnicity, his imputed political opinion or association with the LTTE or his membership of a particular social group.  He has made no claim to fear harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal.”

9. At paragraphs 174-176 (CB260), while considering the complementary protection regime, the Tribunal said:

   “174.    Further, I have found, having considered the applicant’s claims individually and cumulatively, that he does not face a real chance of serious harm. 

   175.    For the same reasons as discussed above I find that he does not face a risk of significant harm.  Neither am I satisfied that he would be disproportionately treated for the offence of having departed the country illegally. Nor, having regard to the independent advice, would he face a real risk of significant harm subsequent to his return to Sri Lanka.

   176.    Having considered the circumstances of the applicant’s circumstances, in totality in Sri Lanka I am not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka as the receiving country, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.” 

10. Having set out, admittedly at somewhat laborious length, the materials before the Tribunal and the brief paraphrase of the Tribunal’s decision, I now come to the amended grounds of application. 

Ground 1: The Tribunal failed to consider an aspect of the applicant’s claims and/or misapplied the legal test for determining whether the applicant is a person to whom Australia has protection obligations under the Convention, by failing to consider the cumulative effect of his having left Sri Lanka illegally and sought asylum on the possibility of him being subsequently persecuted on the basis of attributed links to the LTTE (including on account with his relationship with his father).

1. The gravamen of the applicant’s submissions in respect of ground 1 is to the effect that the Tribunal’s consideration the applicant’s risk of persecution had been assessed by the Tribunal as things stood prior to the applicant fleeing Sri Lanka illegally and making a claim for asylum in Australia (paragraph 4 written submissions). It asserts failure to consider how those matters that took place before the applicant left Sri Lanka might now be assessed in light of his departure to Australia and his having sought asylum in Australia.  Paragraphs 17-21 in the written submissions say:

   “17.  What is lost between the Tribunal’s description of the cumulative claims of paragraphs 147- 156 and its consideration of cumulative claims at paragraphs 157-163, is the authorities’ interest in his family in 2011, and any imputed association with the LTTE.  That is because the Tribunal considered its previous findings on those matters, in isolation, to have already disposed of the question a priori:

   ‘As discussed above I find that the applicant is not, and never has been, a person of concern in regard to involvement with the LTTE. 

   As discussed above, I do not accept that he has or has ever had an imputed association with the LTTE.’

   18.  In regard to the question whether (the applicant’s) punishment for having departed the country illegally would be different on account of the previous events of 2011, that process of reasoning might well be valid.  But the claim put before the Tribunal was the other way around – that the risks arising from the authorities’ interest in his family in 2011 would be affected by the later facts of both he and his father having disappeared shortly afterwards and he then having fled the country and made a claim for asylum in Australia. 

   19.  As such, the claim could not be disposed of simply by the shortcut of referring back to a finding that (the applicant) and his father were not of ‘genuine interest or concern to the authorities’ in 2011; or that he would not be of ‘genuine interest or concern to the authorities now’, solely on account of the events of 2011. 

   20.  His illegal departure and asylum claim affect the manner in which the authorities might view those events now, that effect was specifically put to the Tribunal in submissions, and the Tribunal could not fully address (the applicant’s) refugee claim in accordance with the correct test without giving substantive claim to that potential effect. 

   21.  Moreover, even if the Tribunal’s approach could be considered an adequate assessment of how (the applicant’s) illegal departure might now have a bearing on the risks arising from the authorities’ interest in his family in 2011, it would still not be an assessment of how his asylum claim would bear upon that risk – because the asylum claim was not considered at all, for the reasons discussed below under ground 3.”

2. The oral submissions made in respect of this ground essentially made the same point although the Court was taken to the sections of the judgment where the Tribunal dealt with these matters. 

3. Counsel for the first respondent’s submissions were essentially to the effect that when read fairly and as a whole, the Tribunal’s decision had indeed addressed all of the applicant’s claims. 

4. It seems to me the Tribunal dealt fairly and squarely with the applicant’s claims insofar as they arose from matters that had occurred before the applicant left Sri Lanka.  The finding at paragraph 144 CB 257 that:

   “154.    Having considered the evidence before me I find that, prior to leaving Sri Lanka the applicant did not face a real chance of persecution and, had he remained in the country, I am satisfied that he would not have faced a real chance in the reasonably foreseeable future.”

   seems to me to have been open to it, and if I understand the matter correctly, that finding of itself is not challenged before this Court.

5. Although, as counsel for the first respondent conceded, paragraph 145 of the decision is not well-expressed, if one looks at the remainder of the decision at paragraphs 146-168 and reads them fairly and as a whole, it seems to me the Tribunal did indeed consider the applicant’s claims cumulatively.  The Tribunal expressly said so in paragraph 153 (CB 258).  It said so again at paragraph 155.

6. The Tribunal also dealt with the cumulative effect of involuntary return on his treatment as an illegal departee (see paragraph 163 CB 259).

7. The Tribunal observed at paragraph 168 (CB 259):

   “168.    In summary, having considered the totality of the applicant’s circumstances in light of all information before the Tribunal I am not satisfied that the applicant faces a real chance of serious harm for any Convention reason now or in the reasonably foreseeable future, when his claims are considered both individually and cumulatively of his Tamil ethnicity, his imputed political opinion or association with the LTTE or his membership of a particular social group.”

8. In my view, read fairly as a whole, that observation, dismissed as a ‘boilerplate’ observation by counsel for the applicant, may reasonably be taken to say what it means.  I do not think this ground is made out.

Ground 2: The Tribunal failed to consider an aspect of the applicant’s claims, namely the risk of persecution arising from his Tamil race in his particular circumstances as a young male and regardless of whether the Sri Lankan authorities have had any specific past interest in him personally. 

1. Here, the gravamen of the claim is that the applicant’s claim based on his Tamil race, articulated in his written submissions, was not dealt with.  At paragraph 25 of the written submissions  the applicant asserted:

   “25.  There is nothing in the Tribunal’s reasons which could be read as an assessment of his claim based on race, and certainly nothing which could be read as an assessment of the risk of persecution arising from the ongoing discrimination and human rights abuses against the Tamil population generally.”

2. In my opinion, the Tribunal’s reasons at paragraphs 153-155 (CB 258) did deal with this question.  The Tribunal said:

   “153.  I have considered the various claims by the applicant’s advisers that he will be disproportionately treated for reasons of his Tamil ethnicity, his imputed associated with the LTTE, his membership of various formations of social groups, young Tamil men from the North or East of Sri Lanka as failed asylum seekers, Tamil fishermen from the North or Tamil fishermen from an area with a history of an LTTE presence.  The more recent claims that he will be treated disproportionately for reasons of his Tamil race, his illegal departure from Sri Lanka, his non-voluntary return to Sri Lanka, his suspected failed asylum claim in Australia. 

   154.  I accept that he is a young Tamil male, I accept he is from a fishing village and was involved in the agriculture and fishery industry.  His location is from the North West of Sri Lanka rather than the North or the North East.  He is not from an area with a history of an LTTE presence.  As discussed above I do not accept that he has or has ever had an imputed association with the LTTE. 

   155.  I have reservations considering the composition of some of his suggested social groups but, even if I accept that he was a member of some of those groups I find, as discussed above, that he did not face a real chance of serious harm for any of those reasons or his membership of any of those groups while he was in Sri Lanka and, having regard to the having regard to the independent material before me, would not in the reasonably foreseeable future.”

3. In my view, that passage, taken with the terms of the reasons of the Tribunal as a whole, makes it clear the Tribunal was seized of the applicant’s claims as a Tamil and gave proper consideration to the claim.

Ground 3: The Tribunal failed to consider an aspect of the applicant’s claims, namely the risk of persecution arising from his having sought asylum as distinct from (and cumulative to), the risk arising from his illegal departure from Sri Lanka.

1. The applicant’s written submissions point correctly to the fact that the applicant sought asylum as a 1951 Convention Relating to the Status of Refugees (“Convention”) claim and as a complementary protection claim, and illegal departure likewise as a complementary protection claim.  What was submitted was that illegal departure and seeking asylum are different things and that they were required to be dealt with separately, a task it was submitted the Tribunal had not addressed.  In paragraph 39 in the written submissions:

   “39.  The Tribunal considered complementary protection in a separate section of its reasons.  That section does not contain any substantive reasoning but simply supports its finding by reference to an unspecified ‘as discussed above’.”

2. The first respondent’s submissions assert at paragraph 28:

   “28.  The applicant draws attention to the Tribunal’s use of the words “as discussed above” to impugn the Tribunal’s reasons.  However, on a fair reading of those reasons, the phrase refers to the Tribunal’s consideration of the country information dealing with the profile of returning asylum seekers who are at real risk of persecution in [148]-[152] CB 257-8 and its conclusion that the applicant’s treatment whilst in Sri Lanka that was not persecutory…”

3. The Tribunal expressly referred to the applicant’s possible treatment as a result of a failed asylum claim in Australia at CB 258 paragraph 153 and at paragraph 158.  The Tribunal made it plain these matters were not persuasive because of the advice from DFAT, the UNHCR and the Upper Tribunal of the UK.  That material is paraphrased at paragraph 149 and sets out those who were considered by the Tribunal to be of concern.  It is clear that the Tribunal found that the applicant did not meet those criteria, and in my view, that finding was open to the Tribunal.  While both in relation to the Convention claim and in relation to the complementary protection claim the Tribunal’s reasoning that the asylum seeker claim is glancing and brief, it is clear in my view on a fair reading of the decision the Tribunal was seized of this claim and gave it consideration.

4. I accept the submission for the first respondent that the phrase in paragraph 172 “as discussed above” does indeed refer to the general conclusions set out earlier and is not limited in any fashion asserted by the applicant.

Conclusion

1. As none of the grounds of application have been made out, the application must be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  16 October 2014