SZRXA v Minister for Immigration
[2013] FCCA 265
•17 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRXA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 265 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether issues raised by complementary protection criteria were addressed – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3), 91X, 424A |
| Cases cited: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 |
| First Applicant: | SZRXA |
| Second Applicant: | SZRXB |
| Third Applicant: | SZRXC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2205 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 13 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2013 |
REPRESENTATION
| The Applicants: | The First Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the First Respondent: | Mr C. Barlow of Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The application filed on the 8 October 2012 is dismissed.
The applicants pay the first respondents costs and disbursements of and incidental to the application.
The applicants in these proceedings are not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and have been given the pseudonym SZRXA, SZRXB and SZRXC.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2205 of 2012
| SZRXA |
First Applicant
| SZRXB |
Second Applicant
| SZRXC |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court’s orders made on 30 October 2012, the solicitors for the first respondent, the Minister for Immigration and Citizenship (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. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit “A” and is the only evidence before the Court.
At the first court date directions hearing the applicants sought to participate in the NSW RRT Legal Advice Scheme. This referral was made and written advice was provided after their conference with their allocated Panel Advisor. The applicants were granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 4 December 2012. The applicants elected not to file an amended application.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1112842, a decision of Tribunal Member L. Nicholls dated 14 September 2012 affirming the decision of a delegate of the first respondent, the Minister, to refuse the applicant a Protection (Class XA) visa.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The three applicants are citizens of the People’s Republic of China (“China”) (CB 11 at [37] and [44]). The first and second applicants are a de facto couple and the third applicant is their infant son.
On 17 August 2011 the first applicant applied for Protection (Class XA) visa (CB 1-54). The first applicant was the primary visa applicant and the second and third applicants made their application on the basis of their being members of the first applicant’s family unit.
On 13 October 2011 the first applicant attended an interview before a delegate of the Minister (CB 81). On 24 November 2011 the delegate of the Minister refused the Protection visa application (CB 78-92).
On 29 November 2011 the applicants applied to the Tribunal for review of the delegate’s decision (CB 93-96).
On 27 March 2012 the Tribunal invited the applicants to appear before it to give evidence and present arguments (CB 107-113). On 27 April 2012 the first and second applicants attended the hearing to which they had been invited (CB 117). At the hearing the applicants provided copies of their passports, the third applicant’s birth certificate, a letter from the Local Church in Sydney dated 22 April 2012 and two photographs (CB 120-132).
On 10 May 2012 the applicants submitted further material to the Tribunal in the nature of a letter and a medical certificate indicating that the first applicant was then approximately four or five weeks pregnant (CB 133-136).
On 2 August 2012 the Tribunal invited the applicants to a second hearing (CB 137-143). On 3 September 2012, the first and second applicants attended the second hearing to which they were invited (CB 147). The applicants again submitted copies of their passports and the medical certificate referred to at [10] above. Further medical documents indicating that the first applicant had miscarried and other medical documents relating to a pregnancy were also submitted at the hearing (CB 150-180).
The Tribunal notes on the issue of the first applicant’s miscarriage and subsequent pregnancy the following:
69. I noted that the applicant mother was expecting a second child. She agreed and pointed to the medical documents set out above [at CB 161-180]. When questioned about the 2 pregnancies and how she could have fallen pregnant in the week following the miscarriage she states that the doctor had not explained it to her. She gave evidence that she has been quite ill during the second pregnancy and was concerned whether the pregnancy would continue.
(CB 211)
On 5 September 2012 the applicants submitted more material to the Tribunal in the form of bank statements (CB 183-196).
On 14 September 2012, the Tribunal notified the applicants that it had affirmed the Minister’s delegate’s decision to refuse the grant of a Protection (Class XA) visa to the applicants.
The Applicants’ Claims
In a written statement provided with the Protection visa application (CB 27-35) the first applicant claimed to fear persecution in China on the basis of:
a)Her membership of the Local Church in China. She claimed that she was introduced to the Local Church through her mother. After her mother passed away the applicant and her father conducted Local Church gatherings from their home in Fujian Province. She claimed that in 2006 the “Village Government” had attempted to stop such a gathering and she and her father retaliated, following which they were arrested and detained. After their release, the applicant and her family determined that she would leave China to avoid further punishment and she decided to study in Australia. While in Australia she sent gospel material to her father. She wishes to remain in Australia to enjoy religious freedom; and
b)Her social status as an unmarried mother of one son. She claimed that financial support had ceased from her partner’s family because they did not accept her due to her “Christian faith”. She claimed that her son would face discrimination because his parents were unmarried and that they would be penalised for breaching the “Family Planning Law”.
After the first hearing before the Tribunal, the first applicant claimed to be expecting her second child. In relation to the unborn child, the applicants reiterated their claims to fear “social bias, punishment imposed by family planning and [the] impact of [their] family’s denial [of the first and second applicants’ relationship]” (CB 133).
The Delegate’s Decision
The applicants were invited to attend an interview before a delegate of the Minister via letter dated 20 September 2011 and set down for 13 October 2011.
The applicants were notified by letter dated 19 November 2011 that their application for a Protection (Class XA) visa had been refused. The delegate of the Minister in the “Assessment” section of the Decision Record found the first applicant to be an unreliable witness and that she fabricated much of her evidence to fear harm in China (CB 88). The delegate noted the applicant stated at the interview that if her father had not ceased financial support she would not have applied for a Protection visa (CB 89). The delegate found that the social contribution or family planning fee would be payable for a breach of the family planning laws. However, the delegate found that the family planning laws in China are of general application. The delegate found that the first applicant’s son would not face discrimination because he was of an unwed woman or because he was unregistered (CB 89-90). The delegate accepted that, in China, there are limitations on religious freedom. The delegate formed the view that there was not any reliable evidence before her that the applicant had been subjected to persecution in the past or will face persecution in the future on the basis of her religious beliefs or for any other Convention reason (CB 90).
The Tribunal Decision
The Tribunal summarised the first applicant’s claims referred to above, including those concerning the third applicant (child). It also noted that, whilst he had made no claims to fear persecution in his own right, the second applicant gave evidence that he joined the Local Church in Sydney and is the father of the third applicant. As such, the Tribunal considered whether the second applicant would face persecution in China on his own account.
Persecution Due to Religion
In relation to the first applicant’s fear of persecution by reason of her religious activities, the Tribunal found that she had not established a well-founded fear of persecution because her claims of past activities in China lacked credibility.
In particular, the Tribunal rejected the first applicant’s claims that she was a member of the Local Church or any family church known as “Shouters” in China before her departure for Australia on the basis of the following relevant findings:
a)She did not have a knowledge of the Bible before attending the Local Church in Australia, even though she claimed to have attended the Local Church in China as a child;
b)She did not attend the Local Church in Australia until July 2011, even though she arrived in Australia in 2006;
c)She made an earlier inconsistent claim that she had found a suitable church in Australia in 2010;
d)Her claim that she did not seek out a suitable church until 2011 because she was focusing on her studies was not consistent with someone who claimed to be a faithful adherent of the Local Church or some other family church;
e)Her account of her and her father’s arrest was vague and lacked plausible detail, and her account of her father’s further mistreatment by the Chinese authorities because of his religion was confused, contradictory and vague; and
f)Her claim to have been detained by the Chinese authorities was inconsistent with the fact that she was able to obtain travel documents to leave China and being allowed to leave, despite these documents bearing her personal details being checked by officials.
In relation to the second applicant, the Tribunal accepted that he was baptised at the Local Church in Australia and attended services on occasion, but did not accept that he was a “genuine adherent” or that he would join the Local Church congregation if he were to return to China.
The Tribunal was not satisfied that the first and second applicants engaged in religious activities in Australia for any reason other than to strengthen their claims for protection. Pursuant to s.91R(3) of the Migration Act, the Tribunal disregarded their attendance at the Local Church in Australia when assessing their claims.
As a result of the third applicant’s parents’ claims on the basis of religious activity failing the third applicant’s claims in this respect also necessarily failed.
Persecution Due to Unmarried Status and Having Child Out of Wedlock
The Tribunal made the following relevant findings:
a)The family planning laws in China are laws of general application, enacted to meet a legitimate national objective of co-ordinated population growth;
b)The first and second applicants would be liable to pay a social compensation fee in the order of $667 - $1,112 AUD because the third applicant was born out of wedlock and would be liable to pay a further more onerous social compensation fee in the order of $2,200 - $3,300 AUD if their second child was also born out of wedlock;
c)The first and second applicants would be able to meet the fees based on the fact that they had lived in Australia and paid tuition fees of $27,000 over four years, had been working and supporting themselves without assistance from the first applicant’s father for some time (including maintaining monthly mobile phone accounts), debts they claimed they owed were not supported by any evidence, their prospects of obtaining work in China were good and they had family on which they could rely for some support;
d)The prospects of a forced abortion in the first applicant’s home district in China were not high;
e)To the extent that the applicants do not or cannot pay the social compensation fee such that their child or children will be unregistered, any consequences would be minimal as one of the main benefits of registration, education, was available privately at a reasonable cost and medical care was provided privately, in any event; and
f)Any social discrimination that may be suffered by the child, children or the parents as a result of the child or children being born out of wedlock or being unregistered would not amount to serious harm.
Accordingly, the Tribunal concluded that the applicants did not have a well-founded fear of persecution for a Convention reason.
The Tribunal found that the applicants did not meet the complementary protection criterion in s.36(2)(aa) of the Migration Act on the basis of:
a)Its disbelief that the applicants were genuine adherents to the Local Church and accordingly would be unlikely to seek out the Local Church in China; and
b)It not being satisfied that significant harm would arise through any social discrimination as a result the first and second applicants’ children being born out of wedlock or that the applicants would face financial difficulties if they were to return to China.
Proceedings before the Federal Circuit Court
The applicants filed an application for judicial review in the Federal Circuit Court on 30 October 2012. Pursuant to the application, the orders the applicants sought were as follows:
I think Tribunal’s decision is unfair without considering me special and compelling situation.
Tribunal failed to consider the risk due to my commitment with Local Church, which regarded as cult in China and persecuted.
Tribunal fails to consider the interest of my Australia born child and the harms due to our breach of family planning law in China and non-support of family.
The application pleads the following grounds:
As a committed Christian with Local church, I had hard experiences in my origin and my fears to return still remains as my religion has not legally recognized by Chinese authority and church practice are underground and repressed.
Tribunal did not well consider the fact of my physical involvement with Local Church in Australia and my commitment in preaching wherever I go.
Tribunal did not make a thoroughly consideration to the evidence of my financial hardship indicating my child and I as unmarried mother, will be the victims of socially discriminated and harm in rural area of origin, in particular in respect of medical services, education, and employment.
Tribunal ignored my explanation in and of (sic) the hearing and prejudiced my comment to the outstanding issues discussed in the hearing.
The Minister’s solicitor distilled the applicants’ grounds in his written submissions and identified them as:
Ground A
(A) the Tribunal failed to consider:
(i) the applicants’ “special and compelling situation”;
(ii) the risk from the claims concerning the Local Church;
(iii) the interests of the first and second applicants’ unborn second child and harm arising due to the breach of family planning law and lack of support from the applicants’ families;
(iv) the applicants’ evidence of financial hardship; and
(v) that the first and third applicants would suffer social discrimination in the “rural area of origin”, in particular in respect of medical services, education and employment.
Ground B
(B) the Tribunal “ignored the [applicants’] explanation in and of (sic) the hearing and prejudiced [their] comment to the outstanding issues discussed in the hearing”
Applicants’ Submissions
After the first applicant confirmed at the hearing that she had not filed written submissions, an invitation was extended to her to make any oral submissions in support of her application. She indicated that she thought the conclusion of the Tribunal was unfair because it did not ask her to submit additional information and it did not ask her any questions relating to religion. The first applicant stated that the Tribunal said it did not believe her. Although the Tribunal indicated that it had provided her with two hearings, the second hearing only occurred because she wrote a letter to the Tribunal asking for sympathy after the first hearing. The Tribunal only gave her a second hearing because of her pregnancy. The applicant also complained that the Tribunal only required her to provide additional information regarding her bank balances and did not request anything further. The applicant suggests that the second hearing was supposed to have been of a duration of approximately three hours, however, it ceased in half that time with the Tribunal limiting its questioning to her family background and her programme of study undertaken while she held a student visa. It did not ask her any questions about her religion and then rejected the claim on the basis that the Tribunal did not believe her involvement in church activities.
The first applicant stated that she had participated in the Local Church in Australia and produced some documents of certification to the Tribunal, but the Tribunal did not ask her to submit any further information to prove that she was involved in church activities, it just stated that it did not believe her without asking for any additional papers to support her claim.
At the completion of the submissions made by the Minister’s representative the interpreter confirmed that she had read the Minister’s written submissions to the applicants prior to the commencement of the hearing. The first applicant confirmed that she understood the contents of that document. When asked whether she wished to comment on the contents of those submissions she stated that she was still participating in church activities, but the Tribunal did not ask her any questions about her knowledge of religion. She stated that she was not totally ignorant of religion and at the hearing before the delegate had been asked about aspects of the bible to which she provided answers.
The Minister’s Submissions
The Minister submits that in order for the Court to grant constitutional relief, the applicants must establish that the Tribunal’s decision is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In the absence of relief specified in the application filed on 8 October 2012, the Minister assumes that the applicants seek constitutional writ relief in the nature of mandamus and certiorari in respect of the Tribunal’s decision.
In respect of Ground A, as reiterated by the Minister’s solicitors at [30] above, it is not clear by what is meant by “special and compelling situation” as identified in Ground A(i).
As to Ground A(ii) to A(v) as reiterated by the Minister’s solicitors at [30] above, the complaints are not made out on the face of the Tribunal’s Decision Record. The Tribunal’s “Findings and Reasons” shows a detailed consideration of the claims referred to in Ground A, as summarised at [19]-[27] above. If Ground A is in fact an expression of disagreement with the Tribunal’s decision, disagreement in and of itself is not a ground in which the Court can grant constitutional writ relief: Plaintiff S157/2002 v Commonwealth of Australia (supra).
The Tribunal’s rejection of the claims referred to in Ground A(ii), as reiterated by the Minister’s solicitors at [30] above, was the result of an adverse credibility finding. Such a finding is the exclusive function of the Tribunal and was open to be made on the basis of the matters summarised at [20] above: Re Minster for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. In relation to Grounds A (iii) to (v), the Tribunal’s findings were the result of a lack of satisfaction that any claimed harm would befall the applicants and would amount to serious harm in the Convention sense. In the Minister’s respectful submissions, those findings were open for the Tribunal to make.
The Minister submits in respect of Ground B the jurisdictional error claimed by the applicant is not clear. If the applicants complain that they were denied procedural fairness, the material overwhelmingly refutes that complaint. The applicants were afforded two hearings before the Tribunal at which, on the face of the Decision Record, their claims were discussed in detail. The applicants were given further opportunity to submit material following the second hearing, an opportunity which they seized by providing evidence of their financial situation. That evidence was considered by the Tribunal. The Tribunal’s decision was not based on information which attracted the operation of s.424A(1) of the Migration Act (its decision having been based on country information and the applicants’ own evidence).
The Minister argues that to the extent that Ground B complains that the Tribunal’s proposed reasons should have been provided in advance if its decision, that complaint in misconceived. The Tribunal is under no obligation to reveal its “mental processes”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152.
Consideration
At the time of the hearing before the Tribunal the applicant was pregnant with her second child and there were numerous references during the hearing to that second child which is recorded in the Decision Record. By the time that the matter came before this Court the second child had been born. Importantly, the second child is not a party to these proceedings.
As a point of clarification in respect of the first applicant’s history, I refer to the Tribunal’s Decision Record dated 14 September 2012 at [24]-[27] where it states:
24. The applicant mother claims she is a citizen of People’s Republic of China and was born and educated in the Fujian Province. She is 23 years of age, speaks Mandarin and states that she is a Christian. She described her occupation as student.
25. The applicant mother has never mother has never married and lives with the applicant father and applicant child in Australia.
26. Prior to her arrival in Australia she lived in a rural village in Gaoshan Town, Fuqing City, Fujian.
27. The applicant mother arrived in Australia on 9 December 2006 travelling on a Chinese passport and entered Australia on a subclass 571 Student visa granted in China on 10 November 2006. The applicant mother was granted a subsequent 571 Student visa with permission to work on 8 January 2007. The visa was valid until December 2010.
(CB 204)
In the Decision Record at [28] there is a series of dot-points and the one that is relevant to this chronology states:
She met her boyfriend [SZRXB] in Australia. After living together, she fell pregnant and her son [SZRXC] was born on 8 December 2010.
(CB 205)
During the hearing, I asked the applicant through the interpreter when the child was born and the applicant indicated 11 February 2013. I indicated to the applicant that the Tribunal handed down its decision in September 2012 and that it was only her first child that was a party to these proceedings. The applicant confirmed that it was her understanding that the second child was not a party to these proceedings.
The Court File indicates that the first applicant had only received advice from the panel adviser on 6 March 2013, being 7 days prior to the date of the final hearing. The panel adviser indicated that he had held a conference with the applicant by telephone on 6 March 2013 with an interpreter present. The conference had been arranged for the applicant to attend in person, but she had sent a text message stating that she was ill and would prefer to receive advice over the telephone. A written advice was sent via express registered post on 6 March 2013. There had been a delay in providing advice to the applicant because she had recently given birth to her second child. At the directions hearing on 30 October 2012 I granted the applicant leave to file and serve an amended application, giving complete particulars of each ground of review relied upon by 4 December 2012. When asked whether the applicant wished to file an amended application, acknowledging the delay in receiving legal advice, she indicated that it was not her intention to do so.
I acknowledge the approach taken by Mr Barlow in his written submissions as to the characterisation of the applicant’s claims referred to as Grounds A and B. Mr Barlow indicated that the Minister relied on those written submissions and I accept that the approach adopted by the Minister is correct and that the applicants’ claims have been correctly addressed. These submissions are reproduced above at [34]-[39].
The applicants are self-represented litigants who have had the preparation of this matter interrupted by the birth of a second child which delayed the obtainment of advice from the allocated panel adviser. Notwithstanding, they did not seek to amend the application. I have reviewed the contents of the Court Book, being the only evidence before this Court and particularly the contents of the Decision Record. The Tribunal Member has clearly stated the applicants’ claims and dealt with each aspect of those claims in a detailed and effective method. The Tribunal clearly states that it did not accept various aspects of the applicants’ claims and the bases for those findings. Although not specifically stated, those findings were effectively based on credit. This is apparent from the Tribunal’ Decision Record at [138] where it states:
138. Further neither the applicant mother nor father could plausibly explain why, if they were committed Local Church adherents, they would continue living in a sexual relationship without being married. They are of marriageable age in Australia and could seek the assistance of the church in legitimising their relationship. I do no accept their explanation of lack of parental support from the father’s family.
(CB 223)
The issue of implausible claims was addressed by his Honour McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (supra) at [67]. The Tribunal’s finding in this respect was open to it on rational grounds on the material before it and it discloses no error in the treatment of the applicants’ credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
The Tribunal Member then proceeded to consider issues that arose during the initial Tribunal hearing concerning the first applicant’s pregnancy and the consequences that would arise from that situation. The applicant was given the opportunity to provide further evidence concerning that pregnancy and a second hearing was convened to review and consider those issues. The Decision Record clearly sets out the available information concerning the requirement to pay a social compensation fee before the applicants’ children can be registered in the rural area of Fujian Province and the scales of those fees for a child born outside marriage. This included the availability of an instalment plan over a period of three years in which to pay this fee. The other allied issue considered by the Tribunal Member was the issue of the risk of forced abortion if the first applicant returned to China. The material available to the Tribunal indicated that this would be uncommon in Fujian Province, other than in some isolated areas.
The issues that arose during the initial hearing and resulted in the Tribunal holding a subsequent hearing to allow the applicant to address these issues are effectively summarised as follows:
159. With respect to discrimination against both the parents and the child, the country information suggests that whilst there is some social disapproval of children born outside marriage but that social attitudes are changing and that the situation in Fujian is better than some other provinces. In any event the country information indicates and I find that any discrimination which may be encountered by any of the applicants would not be serious enough to constitute serious harm.
160. If the applicants pay the social compensation fee then the applicant child will be registered and will not suffer any disadvantage in education and other public services.
161. If the applicant mother and father do not pay the social compensation fee the applicant child will not be registered and will not be entitled to access the public education until the fee is paid. However, the child will have access to private schools and other services in Fujian Province. He may have difficulty accessing some other public services but will be able to obtain health services for payment.
(CB 226)
I am satisfied that all of the issues raised by the applicants in respect to Australia’s protection obligations have been satisfactorily and adequately addressed by the Tribunal.
The other issue that must be addressed by the Tribunal is whether Australia owes the applicants complimentary protection. A convenient summary of the objectives of this provision of the Migration Act is contained in the Bill’s second reading speech of 24 February 2011 where the Minister did explain the effect of s.36(2)(aa) of the Migration Act. Hansard of 24 February 2012 records the Minister’s statement as follows:
The bill establishes new criteria for the grant of a protection visa in circumstances that engage Australia’s non-refoulement obligations under the human rights treaties other than refugees convention.
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
·having the death penalty carried out;
·being subjected to torture;
·being subjected to cruel or inhuman treatment or punishment; or
·being subjected to degrading treatment or punishment.
The Tribunal in the Decision Record, under the sub-heading “Relevant Law”, sets out the obligation to address the complementary protection criteria at [16]-[18]. In the “Findings and Reasons” section the Tribunal addressed the criteria and, after reviewing all of the evidence available, makes the following observation at [168]:
168. On the information before me, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm.
(CB 227)
The issues that have been raised by the applicant clearly fall within the provisions of the Refugees Convention and do not invoke the specific categories which relate to the complementary protection criteria in s.36(2)(aa) of the Migration Act. The applicants are probably unaware of the existence and operation of these provisions of the Migration Act and have made no reference to them in their submissions to the Court. The applicants have suffered no detriment by that omission. I am satisfied that the nature of the claims raised by the applicants in their Protection visa application and supplementary issues that arose as a consequence of her new pregnancy have been comprehensively and adequately addressed and do not fall within the provisions of the complementary protection criteria.
Conclusion
On a fair reading of the Tribunal’s Decision Record no jurisdictional error is apparent. Consequently, the applicants’ claim should be dismissed, with costs awarded to the Minister.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Date: 17 May 2013