SZSSA v Minister for Immigration & Border Protection - [2014] FCCA 1482

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2014] FCCA 1482

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZSSA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 614 of 2013

Judgment of:

Judge Emmett

Hearing date:

26 May 2014

Date of Last Submission:

26 May 2014

Delivered at:

Sydney

Delivered on:

11 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Paul Bodisco

Solicitors for the Applicant:

Rasan T Selliah & Associates

Counsel for the Respondents:

Mr Mark Cleary

Solicitors for the Respondents:

Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 614 of 2013

SZSSA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 22 February 2014 and handed down on 28 February 2013 (“the RRT”).
The applicant claims to be a citizen of the Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm on the basis of his ethnicity and imputed opinion as a supporter of the Liberation Tigers of Tamil Elam (“LTTE”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

The applicant arrived on Christmas Island on 17 February 2012 having departed illegally from Sri Lanka.
On 2 May 2012, the applicant lodged an application for a Protection (Class XA) visa with the (then) Department of Immigration and Citizenship (“the Department”).
On 22 August 2012, the Delegate refused the applicant’s application for a Protection visa.
On 29 May 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 28 February 2013, the RRT affirmed the decision of the Delegate not to grant a Protection visa.
On 26 March 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 36(2A) of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a Protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

The applicant provided a statement in support of his Protection visa application in which he stated:
a)The applicant was born and raised in a village in the Kilinochi District in Sri Lanka. The area was under control of the LTTE until August 2008, whereupon the applicant was displaced to a camp in the Vavunyia district at which he stayed until 2010 before returning to Kilinochi.
b)The applicant was forced to undertake basic military training for a period of one month with the LTTE, but was not required to engage in combat duties.
c)When the applicant was displaced in August 2008 and relocated to a camp, he was interrogated by the Criminal Investigation Division (“CID”) on the basis that he came from an LTTE area. The applicant was interrogated on five or six occasions, beaten several times and mistreated. He was frequently questioned by the CID. The applicant’s identity was recorded by the UNHCR, however his case was never assessed.
d)The applicant was released from the camp in April 2010 and returned to his village by the army. The applicant was required to stay at the local school until he was registered by a village officer, whereupon he was allowed to return home. The applicant subsequently started a business selling rolls of textile. The applicant was visited by the CID at his business on a weekly basis.
e)The applicant became aware that the man who provided him military training, Mr M, had been arrested by the military and subsequently released in October 2011. Mr M acted as an informant to the military on persons who had undertaken military training with the LTTE.
f)Soon after Mr M’s release, people who had trained with the LTTE began disappearing. Once the applicant became aware of the disappearances, he fled his village. He had his parents sell his shop and used the money to leave Sri Lanka on 2 February 2012.

The Delegate’s decision

On 22 August 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Delegate accepted that the applicant had undertaken military training conducted by the LTTE, but found that he had had no further involvement with the LTTE since that time. The Delegate also accepted that it was likely that the applicant had been mistreated during the period in which he was displaced from his home village.
However, the Delegate did not accept that the applicant was a person who held a profile which might attract the adverse attention of Sri Lankan authorities. The Delegate did not consider that there was any evidence before it to indicate that the applicant was a person of interest to the Sri Lankan authorities. The Delegate did not accept that the applicant would have been monitored by the Sri Lankan authorities as he had claimed, as the applicant had never had any affiliation with the LTTE.
The Delegate considered whether the applicant would be likely to face persecution on the basis of being a failed asylum seeker. The Delegate accepted that Tamils returning to Sri Lanka who had connection with the LTTE or who had criminal records may be at risk, but found that the applicant had no such profile.

The RRT’s review and decision

On 4 September 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 24 October 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 16 November 2012 to give oral evidence and present arguments.
On 16 November 2012, the applicant attended the RRT hearing and gave evidence.
On 19 November 2012, the applicant lodged a post hearing submission to the RRT making the following assertions.
a)The Convention grounds of persecution that the applicant faced were his imputed political opinion, his ethnicity, and because he is a young Tamil from North East Sri Lanka and a failed asylum seeker.
b)In assessing the applicant’s credibility, the RRT should take into account the RRT’s Guidelines on Credibility and Vulnerable persons.
c)In relation to the current situation involving Tamils, the submission referred to a number of reports and publications, including a report from Freedom from Torture, dated September 2012, which raised concerns in relation to Tamil asylum seekers being returned from the United Kingdom.
d)The applicant is entitled to complementary protection because of the existence of lingering suspicion of Tamils from the North and East of Sri Lanka and corruption within the government and authorities which meant that systematic and discriminatory targeting of a person with the applicant’s profile could not be ruled out.
The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.
The RRT considered the applicant’s claims and oral evidence and found that the applicant was a credible witness as to the core of his claims. The RRT did not find any evidence to suggest that the applicant had fabricated or exaggerated his claims.
The RRT accepted that the applicant was displaced in August 2008 and that he may have suffered mistreatment during questioning while in a refugee camp. The RRT accepted that there existed a person named Mr M who was associated with providing training for the LTTE who was subsequently arrested and detained. The RRT was prepared to accept that the applicant’s name may have been passed on to Sri Lankan authorities as being a person who had undergone training with the LTTE.
The RRT considered the applicant’s claim that he faced a real chance of serious harm as a young Tamil from north-east Sri Lanka. The RRT had regard to country information which indicated that not all Tamils from northern and eastern Sri Lanka are vulnerable to harm due to imputed links with the LTTE.
The RRT considered the applicant’s claim to have been periodically checked on by authorities following his release from the displacement camp in April 2010. However, the RRT found that such actions by authorities, either in isolation or cumulatively with the applicant’s other claims, did not amount to serious harm.
The RRT considered the applicant’s claims that he feared harm for reasons of his imputed political opinion, in particular because of his past link with the LTTE. Although the RRT accepted that there was a real chance that the applicant’s name may have been given to authorities by Mr M and that the applicant had been questioned by authorities about his training with the LTTE, the fact that he was released indicated that the authorities believed that he was not a person to be targeted.
The RRT was not satisfied on the evidence before it that the applicant was viewed by Sri Lankan authorities as an LTTE sympathiser with a profile likely to be targeted for serious harm.
The RRT then considered the applicant’s claim that he will be targeted on return as a failed asylum seeker. Based on country information and all the evidence before it, the RRT found that there was not a real chance that the applicant would face serious harm amounting to persecution were he to return to Sri Lanka as a failed asylum seeker.
The RRT also considered the applicant’s claim that he would be seriously harmed for having illegally departed from Sri Lanka. The RRT had regard to country information from the Department of Foreign Affairs and Trade and found that the applicant may be subject to prosecution under a law of general application in Sri Lanka. However, the RRT found that this did not amount to persecution. The RRT further found that the applicant would likely face a fine rather than receive a custodial sentence and that such a fine would not amount to serious harm.
Having considered the applicant’s claims both singularly and cumulatively, the RRT was not satisfied that the applicant faced serious harm of the type contemplated by s.91R of the Act for a Convention-related reason, either at the time of the decision or in the reasonably foreseeable future, were he to return to Sri Lanka.
The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The RRT found that there was no credible evidence before it that there was a real risk that the applicant would suffer significant harm were he to be returned to Sri Lanka in the reasonably foreseeable future.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

The applicant was represented before this Court by Mr Paul Bodisco, of counsel.
At the commencement of the hearing, by consent, the applicant was granted leave to file in Court an amended application which contained the following grounds:
“GROUND ONE
The RRT failed to deal with the full integers of the Applicant’s claim or alternatively applied the incorrect test to the complementary protection claims as advanced by the Applicant.
Particulars
1. The Applicant advanced a claim under the complementary protection criterion that he would face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka as a result of:
a. Being on a list provided to the authorities of people who had been trained by the LTTE;
b. Others on that list having disappeared at the proximate time of him leaving Sri Lanka;
c. The ongoing commission of human rights abuses in Sri Lanka;
d. His fears in regards to being arrested at the airport because of his ethnicity, having previously resided in an LTTE area and because he departed illegally;
2. The Applicant’s claims were only dealt with at paragraph [102] of the decision on the limited basis that the Tribunal was not satisfied that he would be “targeted again”;
3. The findings in respect of the claim elsewhere in the decision are not dispositive of the Applicant’s claims under the complementary protection test.
GROUND TWO:
The RRT asked itself the wrong question.
Particulars
By dealing with the Applicant’s claims under complementary protection by focussing on whether the applicant would be “targeted again”, the RRT failed to deal with the claims advanced by the Applicant.
GROUND THREE
The RRT failed to apply the “real chance” test to the Applicant’s claims under complementary protection.”
In his written submissions, counsel for the applicant, Mr Paul Bodisco, stated that the grounds turn on the following interconnected propositions:
“a. The Tribunal made no express reference in its analysis of the complementary protection claim advanced by the Applicant to key integers of the Applicant’s claim;
b. The determinative weight given by the Tribunal to the proposition that the Applicant would not be “targeted again” did not deal with the claims as advanced:
i. The Applicant’s claims were never put on the basis that he had a profile or that others on the list provided to the authorities who had now gone missing had any “profile”;
ii. The Applicant’s claims are not contingent on “profile” but also emerge from the general commission of human rights abuses in Sri Lanka and him returning to Sri Lanka having left the country illegally;
c. The claims regarding the Applicant being arrested at the airport because he had departed illegally are simply not covered by the finding that he would not be “targeted again” – a very different basis to how he was targeted last time;
d. The findings elsewhere in the decision are not dispositive of the Applicant’s claims, being “bound up” in Refugee Convention-related reasoning.”
I accept the applicant’s submission that the law is settled in relation to the following propositions:
“a. that the test under the complementary protection provision involves the application of the “real chance” test as opposed to a balance of probabilities formulation: see for example Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246]-[247] per Lander and Gordon JJ;
b. that a decision maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before him: Htun v Minister for Immigration (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [22]-[24], [27] per Gummow and Callinan JJ; [88]-[89] per Kirby J; [95] per Hanye J;
c. that the Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263.”

In his written submissions, Mr Bodisco then referred to the following particular claims by the applicant in support of the grounds of the Amended Application:
“a. At the Early Entry Interview, the Applicant made a general claim – that is, made with reference to either the criterion under section 36(2)(a) or (aa) - emerging from his life in Sri Lanka. [CB 12] The claim involved his recruitment by the LTTE into “conflict training”, his subsequent detention in a government camp and the teacher at the course placing him on a list of those who had engaged in training with the LTTE. The applicant stated:
“A few of the boys who took this training with me had been dobbed in by him and I knew I would be next, that is why I had to leave.” [CB 12]
…
“There have been boys that were in the same position as me who were taken away by this teacher, we don’t know what happened to them or their state now, because I was involved in war and was a witness to the atrocities of war, and witnessed the rapes and killings they will definitely target me.”[CB 17]
b. By way of a statutory declaration attached to his Protection Visa (class XA) application, the Applicant further reiterated his claim in the following terms:
“The LTTE person who trained us was known as [Mr M], this man had been arrested by the military and released in October 2011 after having been rehabilitated, he however continued working with the army informing them as to who had undergone training with the LTTE.
Soon after [Mr M’s] release, people who had trained with the LTTE began disappearing and as soon as I realised what was going on, I went to Puthalam and stayed with the man who was supplying me with the textile I needed for my work. By this stage, I had decided to depart from Sri Lanka, my parents sold my shop and provided the balance of the money I needed to do this. I left on the 2^nd of February 2012.
…
I fear I will be abducted by the authorities should I return to Sri Lanka because they are now aware I had some training with the LTTE though this didn’t amount to anything.
I fear I will be arrested at the airport should I go back to Sri Lanka because I am a Tamil from Kilinochi, a previously LTTE controlled area and because I departed from Sri Lanka illegally.” [CB 69]
c. The delegate of the Minister noted that the claims made on a general basis were squarely raised in respect of the Applicant’s claims under the complementary protection provision:
“It is noted that the claims are unchanged under Complementary Protection from the Refugee Convention. As outlined in Part B of this record, I have assessed the applicant’s claims and have found there is not a “real chance” of the applicant to suffer harm by the authorities. The evidence discussed does not support the claims that the applicant would suffer serious harm.” [CB 109]
d. By way of submissions dated 13 December 2012, the Applicant’s then advisors reiterated the general protection claims made by the Applicant – again, without specific reference to the provisions of section 36(2)(a) or 36(2)(aa) of the Migration Act: see [CB 133]. Specifically under the heading “complementary protection” , the advisors submitted:
“Whilst it is our submission that our client is owed protection under the Refugees Convention, if you are minded to conclude that the applicant is not a refugee, the information regarding the ongoing commission of human rights and other abuses is directly relevant to the circumstances of our client and supports a conclusion that the applicant falls within the complementary protection provisions that came into force on 24 March 2012.
In that regard, we submit that, for the purposes of section 36(2)(aa) of the Migration Act 1958 there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to the receiving country, there is a real risk that he will suffer significant harm. In view of the high levels of violence in Sri Lanka and the inability of the Sri Lankan authorities to protect their citizens there is a real risk that our client will encounter one or more of the five types of significant harm as set out in section 36(2A) of the Act” [CB 145-146] .”
Essentially, the grounds contend that the RRT erred in its consideration of whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act. The RRT made the following specific findings in relation to complementary protection as follows:
“102. The Tribunal finds that although the applicant may have while detained and at the hands of the CID suffered mistreatment amounting to significant harm for the purposes of s.36(2A) of the Act, the Tribunal is not satisfied that on all the evidence provided that there are grounds for the Tribunal to conclude that there is a real risk that he will be targeted again for significant harm. The Tribunal therefore concludes that it is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, that there is a real risk that he will suffer ‘significant harm,’ as that term is defined in s.36(2A): s5(1) of the Act. The Tribunal therefore finds the applicant does not meet the prescribed requirements in s.36(2)(aa) of the Act.”
Counsel for the applicant submitted that in dealing with the applicant’s claims under the complementary protection criterion, the RRT did not deal with the full integers of the applicant’s claims in relation to complementary protection in express terms. Mr Bodisco submitted that an inference should be drawn therefore that the RRT failed to deal with the further integers of the applicant’s claims, being the high levels of violence in Sri Lanka and the inability of authorities to protect their citizens.
In particular, Mr Bodisco submitted that the RRT’s focus on whether the applicant would be “targeted again” has the effect of pitching the applicant’s claims too high and more narrowly than they were advanced. Mr Bodisco submitted that the applicant’s claims did not turn on whether he would be targeted, but rather whether he faces a real risk of significant harm in view of the high levels of violence in Sri Lanka.
Mr Bodisco submitted that relevant to that consideration was the applicant’s claim that those who were without a profile, yet were on Mr M’s list provided to the authorities, have now gone missing.
Mr Bodisco further submitted that the RRT failed to “disaggregate” the findings from the legal-specific test to the Refugee Convention. Mr Bodisco submitted that the RRT’s findings were ‘bound up’ in its Refugee Convention related reasoning and that it did not expressly deal with the applicant’s claim to fear the high levels of violence in Sri Lanka and the inability of Sri Lankan Authorities to protect their citizens.
Mr Bodisco submitted that, in the RRT’s analysis of the applicant’s claims under complementary protection, the language of being ‘targeted’ was drawn from language and concepts related only to the Refugees Convention. In further support, Mr Bodisco relied on the reasoning of the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [45] and [47] in support of the submission that there was an issue raised on the evidence and material before the RRT which it failed to consider, and, if resolved one way would be dispositive of the RRT’s review of the Delegate’s decision. Mr Bodisco submitted that a failure to deal with it in the RRT’s reasons raised a strong inference that it had been overlooked. In support, Mr Bodisco referred to SZSFK v Minister for Immigration & Anor [2013] FCCA 7.
However, a fair reading of the RRT’s decision record makes clear that the RRT understood and referred to the applicant’s advisor’s submission, dated 13 November 2012, on complementary protection. In particular, that submission stated that there is a real risk that the applicant will suffer significant harm in Sri Lanka because of “the high levels of violence in Sri Lanka and the inability of the Sri Lankan authorities to protect their citizens”. The submission also stated that the applicant might encounter harm in the nature of arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The submission stated that the harm would be inflicted “by the state and/or a non-state actor”. The submission stated that the intentionality of the harm could be inferred from the claimed circumstances in which it would occur.
In a further submission dated 17 November 2012, the applicant’s migration agent made further submissions in relation to a Convention nexus for the applicant’s fear of persecution if returned to Sri Lanka. The submission identified further country information in relation to the current situation for ethnic Tamils in Sri Lanka and on the impracticality of relocation in Sri Lanka, including reference to the UNHCR guidelines on internal flight and relocation.
The submission also further addressed complementary protection, which again referred to the high levels of violence in Sri Lanka and the inability of the Sri Lankan authorities to protect their citizens. The submission stated that the facts and claims of the applicant could not be considered in isolation. The submission stated that “in the entirety of the circumstances, and on the basis of the above information, we submit that there are substantial grounds for believing that when his respective statements are assessed separately and cumulatively, [the applicant] faces a real risk of significant harm if returned to Sri Lanka’. The submission concluded with the following statement:
“Government security agencies and their paramilitary proxies are able to seriously harm, with impunity, any individual who may be perceived to be a potential threat to the policies aimed at maintaining the oppression of Tamils. The government’s failure to redress Tamil concerns is a recipe for increasing political instability and ethnic discord and we submit that there is no durable peace and that systematic human rights abuses will be directed at Tamils for now and the reasonably foreseeable future.
On the basis of the above information, the existence of lingering suspicion of Tamils from the North and East of Sri Lanka and corruption amongst the authorities of a Sinhalese dominated government, resulting in the systematic and discriminatory targeting of a man with [the applicant’s] profile cannot be ruled out. Neither can the distinct possibility that he may face significant harm be dismissed if he is returned to Sri Lanka. Subsequently, it cannot unequivocally be determined, based on the information outlined above, that [the applicant] will not be persecuted for Convention reasons on account of his Tamil ethnicity, imputed political opinion and membership of the particular social groups mentioned herein, if returned to Sri Lanka now or in the reasonable foreseeable future.
In all of the circumstances, we therefore submit that our client is a refugee as defined in the UNHCR Convention and Protocols on Refugees as modified by the Act and interpreted by Australian Courts. In the event he is not found to be a refugee, we submit he is owed complementary protection and we submit, therefore, he engages Australia’s protection obligations for the purposes of section 36(2) of the Act.
Should you find that [the applicant] does not meet the criteria, we submit that the applicant may be afforded complementary protection as set out in s.36(2)(aa) of the Migration Act (Cth).”
The later submission, dated 17 November 2012, does not take the applicant’s submissions in support of complementary protection any further than the submission of 13 November 2012. However, it does refer in greater detail to further country information in support.
In its decision record, the RRT referred to the fact that the applicant’s advisor’s submission also discussed the applicant’s claims under the complementary protection provisions of the Act. The RRT specifically referred to the further submission dated 17 November 2012 in its decision record, in which it stated, inter alia, as follows:
“Further submission is made in support of a claim for complementary protection and a submission includes a statement that the existence of lingering suspicion of Tamils from the North and East of Sri Lanka and corruption amongst the authorities of a Sinhalese dominated government, resulting in a systematic and discriminatory targeting of a man with the applicant’s profile cannot be ruled out.”
In my view, that is a fair summary of the submission made by the applicant in the submission dated 17 November 2012. The sentence from the submission quoted above is expressly referred to in the RRT’s summary of that submission above. It is the applicant’s submission that confined the risk of harm claimed of the lingering suspicion of Tamils from the North and East of Sri Lanka and corruption amongst authorities, to the “systematic and discriminatory targeting” of a man with the applicant’s profile in Sri Lanka and that such systematic and that such discriminatory targeting could not be ruled out.
The RRT specifically considered the applicant’s claim that he was mistreated while he was in the refugee camp. However, on country information before it, whilst it accepted this may have occurred, the RRT found that the applicant was not a person with a profile identified in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs for Asylum Seekers from Sri Lanka (21 December 2012), who may face a greater risk of being targeted for harm.
The RRT accepted that the applicant lived in a district that was a stronghold area for the LTTE; was forced to undertake basic military training with the LTTE; was not otherwise involved or associated with the LTTE; was displaced in August 2008 and questioned by the CID; suffered mistreatment during the questioning; was released from the camp in August 2008 and returned to his village; and, that a person named Mr M may have passed on his name as being involved with the LTTE to Sri Lankan authorities. Based on his subsequent release by the authorities, following his detention and questioning, the RRT found that the applicant is not a person who would be targeted by authorities in Sri Lanka because of his past involvement and training with the LTTE.
The RRT also specifically found that being nominated by Mr M as a person associated with the LTTE did not change the authorities’ view that the applicant was not a person of interest to the authorities by reason of his association with the LTTE or for holding anti- government sentiments. The RRT made a specific finding in the context of reports of disappearances in Sri Lanka that, on the evidence before it, the applicant would not face a real chance of being targeted for such mistreatment. The RRT found that on all the evidence before it the chances of the applicant being targeted for Convention related persecution was remote.
In considering whether the applicant met the complementary criterion, the RRT was entitled to have regard to country information identified by it and its findings in relation to its consideration of whether the applicant satisfied the Refugees Convention, in so far as those findings were relevant to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk that he will suffer “significant harm” as that term is defined in ss.36(2A) and 5(1) of the Act.
The RRT had found that any harm the applicant may suffer as a result of being a returned failed asylum seeker or having left Sri Lanka illegally would not amount to “serious harm”. Having rejected the applicant’s claims to face serious harm by reason of those factors, it was not necessary for the RRT to further consider whether the applicant’s claims amounted to significant harm. It would not have been possible for the applicant’s claims to have amounted to significant harm in accordance with the definitions in ss.36(2A) and 5(1) and yet not be found to be “serious harm” for the purposes of the Refugees Convention in respect of those claims.
To the extent that the applicant confined his complementary protection claims in relation to the existence of lingering suspicion of Tamils from the North and East of Sri Lanka and corruption among the authorities, the RRT clearly considered country information in relation to those factors and found that the applicant’s claims as to the chances of future harm in Sri Lanka for those reasons were not supported by independent country information before the RRT.
It was open to the RRT to make that finding on the evidence and material before it and for the reasons it gave. The country information to which the RRT has regard and the weight it gives that material is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In considering complementary protection, having accepted that the applicant was detained and mistreated at the hands of the CID in 2008 and that such mistreatment amounted to significant harm for the purposes of s.36(2A) of the Act, the RRT clearly needed to consider whether the applicant was at risk of befalling such harm if returned to Sri Lanka. The RRT concluded that there is not a real risk that the applicant would suffer significant harm at the hands of the CID if returned. The RRT was entitled to have regard to its findings referred to above in finding that the chance of the applicant being targeted in Sri Lanka for an imputed connection with the LTTE is remote. His imputed connection with the LTTE was the only reason that he was detained by the CID, questioned and subsequently released. The RRT’s findings deal with those claims of the applicant in some detail and make comprehensive findings, as referred to above.
In my view, it was not necessary for the RRT to repeat those findings in considering whether the applicant was entitled to protection under s.36(2)(aa) of the Act.
In the circumstances, it was open to the RRT to conclude that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there is a real risk that he will suffer “significant harm” as that term is defined in ss.36(2A) and 5(1) of the Act; and that the applicant does not, therefore, meet the prescribed requirements of s.36(2)(aa) of the Act. Those findings and conclusions by the RRT were open to it on the evidence and materials before it and for the reasons it gave.
Accordingly, to the extent that grounds 1 and 2 suggest that the RRT’s decision is affected by jurisdictional error relating to the way in which it considered whether the applicant met the complementary protection criterion, such a complaint is not made out.
To the extent that the applicant further submitted that the RRT’s decision record was affected by jurisdictional error because it failed to address and deal with all claims made by the applicant, for the following reasons such a complaint is not made out.
Mr Bodisco submitted that the RRT found that the release of the applicant in April 2010, following his detention and questioning by the CID about his past involvement and training with the LTTE, was before Mr M had provided his list to the Sri Lankan authorities. However, the RRT made a specific finding that his nomination by Mr M on a list of persons who trained with the LTTE subsequent to his release did not change the authorities’ view that the applicant would not become a person of interest by reason of his association with the LTTE or for holding anti-government sentiments. The RRT also made that finding in the context of acknowledging that there are reports of disappearances in Sri Lanka. Further, the RRT also noted that there was no information before it regarding an LTTE connected individual named Mr M being arrested and released in October 2011.

Those findings were open to the RRT on the evidence and material before it and for the reasons it gave. There was no failure by the RRT of the nature suggested by Mr Bodisco in oral submissions. Mr Bodisco had suggested in oral submissions that the RRT had failed to appreciate that at the time the applicant was released from detention, the list created by Mr M and provided to the authorities had not been brought into existence. Findings to which I have referred above make clear that that was not the case.
In the circumstances, there was no issue raised as a material issue on the evidence before the RRT which it failed to consider (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; Dranichnikov v Minister for Immigration (2003) 197 ALR 387).
Ground 3 asserts that the RRT failed to apply the ‘real chance’ test in considering whether the applicant met the complementary criterion. No particular submissions were made in support of the assertion and no such error is suggested in the RRT’s decision record. I understand ground 3 to be no more than a different formulation of the errors alleged in grounds 1 and 2 and which are dealt with above in these Reasons.

Conclusion

A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support, including two written submissions from the applicant’s advisor, one of which was provided post hearing. The RRT identified with great particularity the independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 11 July 2014