SZSUA v Minister for Immigration

[2015] FCCA 3345

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3345

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal failed to comply with s.430(1) of the Migration Act 1958 (Cth) (Act) as it stood at the time of decision – whether failure to comply manifested jurisdictional error – whether the Tribunal confused the tasks it was required to undertake when applying s.36(2)(aa) with the tasks it was required to undertake when applying s.36(2)(a) of the Act as these provisions stood at the time of decision – whether the Tribunal correctly applied s.36(2)(aa) of the Act as it stood at time of decision – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), s.91R(2), 430(1)
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZTIF v Minister for Immigration & Anor [2014] FCCA 945; (2014) 285 FLR 251

Applicant: SZSUA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 874 of 2013

Judgment of: Judge Manousaridis

Hearing date: 7 November 2014

Delivered at: Sydney

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: JPS Legal Services

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Administrative Appeal Tribunal is substituted for the Refugee Review Tribunal as second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 874 of 2013

SZSUA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a national of Sri Lanka and a Tamil, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. It would be appropriate to note at the outset that the provisions of the Migration Act 1958 (Cth) (Act) to which I refer in these reasons are the provisions as they stood at the date on which the Tribunal made its decision. For ease of expression, I will refer to those provisions in the present tense.

Claims for protection

1. In a statutory declaration that formed part of his application for a Protection visa, the applicant said he was born in 1975 in the Jaffna region of Sri Lanka. In 1983 the applicant’s father took the applicant and his older brother to India to live with their grandmother because the army was killing Tamil children. The applicant and his brother entered India illegally, and both went to school there. The applicant’s other siblings and his parents moved to India in 1990 where they were registered as refugees, and lived in a refugee camp. In 1999 the applicant’s mother passed away. In 2003 the applicant’s father returned to Sri Lanka because he was concerned about the cost of medical care and the burden it would place on the applicant and his siblings if he were to remain in India.

2. Although the applicant had spent many years in India, he had not been issued with any documents or with a refugee card. That placed him at risk of police harassment. He could not register his marriage, or the birth of his child. He suffered stress, and he did not feel safe in India. He could not return to Sri Lanka because the army, police, and CID, are still targeting, detaining, and investigating young Tamil males who are from the northern province where the Liberation Tigers of Tamil Eelam (LTTE) had been active and had controlled many areas. The applicant did not have an identity card and he would be detained if he were unable to produce an identity card if asked to do so. Further, the applicant did not wish to return to Sri Lanka because he does not support the government’s treatment of Tamils, who are treated as LTTE members or supporters if they do not support the government.

3. The applicant gave broadly consistent evidence both during his interview by the delegate, and at the hearing before the Tribunal. Before the delegate, however, the applicant said his father was shot in his hand in 1983 during a clash between the army and the LTTE when the army fired on a shop.[1]

   [1] CB200, [25]; eighth dot point.

Tribunal’s reasons

1. The Tribunal understood that the applicant’s claim for protection was based on his Tamil ethnicity, his having, or his being perceived as having, a political opinion that is opposed to the Sri Lankan government, and his membership of a particular social group, namely “Tamil men originating from the north or east of Sri Lanka” or “people suspected or accused of being members of, associating with or supporting the LTTE”.[2]

   [2] CB210, [59]

2. The Tribunal accepted the applicant was a citizen of Sri Lanka;[3] that he was a Tamil; that he was raised in two villages in Jaffna in the north of Sri Lanka; that in 1983 his father took him to India to live with his grandparents; and that he remained in India until April 2012 when he paid a people smuggler to take him to Australia.[4] The Tribunal did not accept, however, that the applicant had moved to India in 1983 because of fighting between the LTTE and the Sri Lankan army, or because the Sri Lankan Army had adopted a policy of killing Tamil youths to prevent them from joining the LTTE.[5] Nor did the Tribunal accept the applicant would be denied an identity card by the Sri Lankan authorities. The applicant had a birth certificate, and the applicant’s father, being a government pensioner who still lives in Sri Lanka, could reasonably be expected to provide additional evidence about the applicant’s identity if that were to become necessary.[6]

   [3] CB210, [58]

   [4] CB210, [61]

   [5] CB210, [62]

   [6] CB211, [63]

3. The Tribunal was not satisfied there was a real chance the applicant would suffer harm because of his Tamil ethnicity, even if his origins are in the north of Sri Lanka.[7] The Tribunal acknowledged there is country information that indicates that, at least up to the end of the civil war in May 2009, Sri Lankan nationals who were Tamils were at risk of persecutory harm because of their ethnicity. That information, however, also indicates that nearly four years after the LTTE was defeated and the fighting ended, the security situation stabilised and the risks posed to Tamils was reduced. The Tribunal referred to the most recent version of the UNHCR “Eligibility Guidelines” which no longer referred to a presumption for protection of Sri Lankans simply because they are Tamils originating from the north of the country. After noting that the guidelines cautioned a merits-based assessment based on individual circumstances of a particular applicant was still necessary, the Tribunal referred to the applicant’s father having voluntarily returned to Sri Lanka soon after he took the applicant to India in 1983; that, after spending some time in India after 1990, the applicant’s father again returned to Sri Lanka where he still lives; that the applicant’s father was a government employee, and now receives a government pension; and that the only harm the applicant claimed his father suffered was as a bystander. The Tribunal concluded there was nothing to indicate the applicant’s father or any other members of his family suffered any serious harm because of their ethnicity.[8]

   [7] CB211, [67]

   [8] CB211, [65]

4. The Tribunal also was not satisfied the applicant had a well-founded fear of persecution based on his political opinion or on a political opinion which may be imputed to him.[9] There was nothing in his personal history which could reasonably be seen as grounds for suspicion by the Sri Lankan authorities that he had any connection with the LTTE.[10] The applicant did not claim any of his family members or close relatives have ever been involved with the LTTE or have been suspected of such involvement.[11] The Tribunal was not satisfied the applicant would fall under suspicion only because he travelled to Australia with the aid of a people smuggler and claimed asylum in Australia,[12] or because he does not hold documents relating to his stay in India.[13] And although the Tribunal accepted the applicant may well hold a political opinion that is critical of the Sri Lankan government over its treatment of Tamils, and which holds that Tamil rights should be protected, it was not satisfied that it was more than simply speculative to suggest that on his return to Sri Lanka the applicant would campaign for Tamil rights so as to attract harm to himself.[14]

   [9] CB213, [72]

   [10] CB212, [69]

   [11] CB212, [69]

   [12] CB212, [65]

   [13] CB212, [70]

   [14] CB212, [71]

5. Finally, the Tribunal accepted that a particular social group consisting of Tamil men from the north or east of Sri Lanka can be said to exist, and that the applicant could be said to be a member of such an entity if he returned to Sri Lanka.[15] The Tribunal also accepted that country information indicated that Tamil ethnicity and geographic origins in the north of Sri Lanka can exacerbate the risks of individual who fall into various risk profiles, such as those suspected of having links with the LTTE, journalists, or social activists. The applicant, however, did not fall in any of these risk profiles.[16] The Tribunal, therefore, was not satisfied there is a real risk the applicant would suffer serious harm either as a Tamil from the north of Sri Lanka or because of his membership of the particular social group consisting of persons who share this characteristic.[17]

   [15] CB213, [73]

   [16] CB213, [74]

   [17] CB213, [74]

6. After considering the implications of the applicant having left Sri Lanka unlawfully in 1983, the Tribunal concluded it was not satisfied the applicant “has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future and [was] not satisfied the he is a refugee”.[18]

   [18] CB214, [78]

7. The Tribunal next considered whether the applicant satisfied the criterion of complimentary protection. The Tribunal said:[19]

   As noted, on the information before the Tribunal I am not satisfied that the Applicant would be harmed by the authorities on return to Sri Lanka because of his Tamil race, his political opinion or his membership of a particular social group. I am not satisfied that he does, in fact, face significant or serious harm for these or other reasons – including for lack of an identity card, for seeking asylum in Australia or for leaving Sri Lanka unlawfully in 1983 – whether that is assessed against the standards of a real chance or of a real risk.

   On the basis of this finding I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

   [19] CB214, [80]-[81]

Grounds of application

1. The amended application raises three grounds of application.

Ground 1

1. The first ground is:

   1. The RRT failed to apply section 430 of the Migration Act 1957 (Cth).

   Particulars

   In dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraphs [80] and [81] of the decision, the Tribunal failed to set out the reasons for the decision.

2. Subsection 430(1) of the Act provides:

   Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

   (a)sets out the decision of the Tribunal on the review; and

   (b)sets out the reasons for decision; and

   (c)sets out the findings on any material questions of fact; and

   (d)refers to the evidence or any other material on which the findings of fact were based.

3. As formulated, ground 1 does not disclose any jurisdictional error. That the Tribunal may not have complied with s.430(1) of the Act does not by itself constitute a jurisdictional error; at most, it provides grounds for drawing inferences about what the Tribunal did or did not do which, in turn, may reveal the Tribunal made a jurisdictional error. That is the effect of what the majority of the High Court held in Minister for Immigration and Multicultural Affairs v Yusuf in relation to the Tribunal’s failure to set out findings on any material question of fact as required by s.430(1) of the Act. The plurality said:[20]

   It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

   [20] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 ([69]) (emphasis in original)

4. Gleeson CJ said:[21]

   By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue.

   [21] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 331-332 ([10])

5. In any event, the Tribunal’s decision record does comply with s.430(1) of the Act in relation to the applicant’s claims for protection based on s.36(2)(aa). In SZTIF v Minister for Immigration & Anor I noted:[22]

   Subsection 430(1) differentiates between four classes of information: the Tribunal’s decision on the review; its reasons for decision; its findings on any material questions of fact; and evidence or any other material on which its findings of fact were based. These four classes of information imply a chain of logical dependency between them: the Tribunal’s decision (for example, affirming the decision under review) must be based on reasons for decision (for example, the applicant is not a person who has a well-founded fear of persecution on the ground of religion); those reasons must in turn be based on findings the Tribunal has made on material questions of fact (for example, the applicant does not hold the religious beliefs he claimed to have held); and the findings must themselves be based on evidence or other matters (for example, the evidence and matters which indicate to the Tribunal that the applicant is not a person who can be believed).

   [22] [2014] FCCA 945; (2014) 285 FLR 251at [23]

6. The Tribunal’s record of decision sets out each of the elements required by s.430(1) of the Act. First, it sets out the Tribunal’s decision, namely, the affirmation of the delegate’s decision. Second, it sets out the Tribunal’s reasons for that decision. To the extent the Tribunal’s decision consists in its not accepting the applicant’s claims based on s.36(2)(aa) of the Act, the Tribunal’s reasons are it was not satisfied the applicant, if he were to return to Sri Lanka, would face a significant or serious risk of harm, whether that risk is assessed against the standards of real chance or real risk, because of the applicant’s Tamil race, his political opinion, his membership of a particular social group, or for other reasons. Third, the decision record sets out the Tribunal’s findings on material questions of fact. These include, for example, the findings that the applicant is a citizen of Sri Lanka, the applicant is of Tamil ethnicity, the applicant is a member of a particular social group, the applicant has not engaged in activities that could reasonably attract the suspicion of Sri Lankan authorities, and Sri Lankans of Tamil ethnicity from the north of Sri Lanka do not have a risk profile such as would presumptively render them at risk of persecution only because they are of Tamil ethnicity. And, finally, the Tribunal’s decision record identifies the evidence and other materials on which the Tribunal made its findings. For example, the Tribunal relied in part on the applicant’s birth certificate to conclude the applicant was a citizen of Sri Lanka; it relied in part on the applicant’s having been away from Sri Lanka since 1983 to find the applicant did not have a profile such as might attract the interest of Sri Lankan authorities; and the Tribunal in part relied on country information to conclude the applicant was not at risk of persecution only because he was a Tamil who was from the northern part of Sri Lanka.

7. For these reasons, ground 1 fails.

Ground 2

1. The second ground stated in the amended application is:

   The RRT failed to apply the correct test under section 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars

   1.In dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraph [80], the Tribunal drew a distinction between the standards of “real chance or of a real risk”.

   2.The RRT has failed to apply the reasoning of the Full Court of the Federal Court of Australia in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33.

2. This ground relies on the decision of the Full Federal Court in Minister for Immigration & Citizenship v SZQRB.[23] In that case, the Minister, relying on an International Treaties Obligations Assessment (ITOA), decided to deport an Afghan asylum seeker. One of the matters the ITOA considered was whether the applicant was entitled to protection if the criteria specified in s.36(2)(aa) of the Act were to be applied. The ITOA determined that question on the premise that, to satisfy the Minister there was a real risk that the asylum seeker would suffer significant harm, the applicant would need to satisfy the Minister it was more likely than not that the asylum seeker would suffer such harm.[24] Lander and Gordon JJ (with whom Besanko and Jagot JJ,[25] and Flick J[26] agreed) held that the ITOA applied the incorrect standard or proof, and that the appropriate test is the “real chance” test. Their Honours said:[27]

   [242] The proper test, SZQRB contended, is whether there is a real risk that if SZQRB were to be returned to Afghanistan he would be arbitrarily deprived of his life. The question of “real chance” is, of course, the test to be applied on an application for a protection visa under s 36(2)(a)when considering whether the applicant has a well-founded fear that the applicant will face persecution for a Convention reason if returned to the applicant’s country of nationality: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at 429 and Mason CJ at 389, Dawson J at 398, and Toohey J at 407.

   . . . .

   [246] In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.

   [247] That being the case, the ITOA applied the wrong test in considering SZQRB’s entitlement for Australia’s protection obligations under the CAT and ICCPR as defined in s 36(2)(aa) and s 36(2A). The ITOA assessed SZQRB’s claims as against whether it was “more likely than not” that SZQRB would suffer significant harm, which was not the appropriate standard. The “Departmental policy”, if the ITOA was right to describe it that way, was not in accordance with Australian law.

   [23] [2013] FCAFC 33; (2013) 210 FCR 505 (Lander, Besanko, Gordon, Flick and Jagot JJ)

   [24] [2013] FCAFC 33; (2013) 210 FCR 505 at [240]

   [25] [2013] FCAFC 33; (2013) 210 FCR 505 at [297]

   [26] [2013] FCAFC 33; (2013) 210 FCR 505 at [342]

   [27] [2013] FCAFC 33; (2013) 210 FCR 505 at [242], [245], and [246]

1. The first question that arises is whether, as the applicant submits, the Tribunal considered that the “real chance test” and the “real risk” test stated different standards for assessing future harm. In my opinion, the Tribunal did consider these two expressions to state different standards. That is the natural inference to be drawn from the language the Tribunal used. The Tribunal posited two alternatives, namely, “real chance”, and “real risk”; it is not natural to posit as alternatives things that are not different in some way. That the Tribunal considered “real chance”, and “real risk” to state two different standards is supported by the fact that the Tribunal decided the applicant’s review before the Full Federal Court handed down its decision in SZQRB.

2. Accepting the Tribunal considered that “real chance” and “real risk” denoted different standards of assessment of future harm, did it make a jurisdictional error? In my opinion, it did not. The Tribunal concluded the applicant did not face significant harm or serious harm “whether that is assessed against the standards of a real chance or of a real risk”. On a reasonable construction of this part of the Tribunal’s reasons, the Tribunal found that the applicant did not face future significant harm or future serious harm when both of these types of harm were assessed by both the real chance test and the real risk test. That implies the Tribunal at the very least considered the applicant’s risk of both significant harm and serious harm by the application of the real chance test. That, according to SZQRB, was the standard by which the Tribunal was required to assess the risk of significant harm for the purposes of s.36(2)(aa) of the Act. That the Tribunal may have also assessed the risk of significant harm by reference to an additional and different standard does not detract from the fact that, for the purposes of assessing the applicant’s claims under s.36(2)(aa) of the Act, the Tribunal assessed the risk of harm in the manner required by SZQRB.

3. Ground 2, therefore, also fails.

Ground 3

1. The third ground stated in the amended application is:

   The RRT failed to apply the correct test under section 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars

   1. In dealing with the applicant’s claims for protection pursuant to section 36(2)(aa) of the Migration Act at paragraph [80], the Tribunal conflated the statutory tests pursuant to section 36(2)(a) and section 36(2)(aa) of the Migration Act, importing under complementary protection the burden of identifying the motivation for the infliction of the harm.

2. This ground appears to be directed to the Tribunal’s assessing the risk of serious or substantial harm by reference to the reasons for which the applicant might face risk. The ground appears to be that, when assessing a claim based on complimentary protection, it forms no part of the Tribunal’s function to consider the reason or reasons for which an applicant may face a real risk of suffering substantial harm. I do not accept that proposition.

3. A person who claims there is a substantial risk he or she will suffer substantial harm necessarily must expressly or impliedly allege matters which, if accepted by the Tribunal, are reasonably capable of constituting a reason or reasons for concluding the applicant faces a real risk of substantial harm. That the Tribunal, therefore, assessed the applicant’s claims for complimentary protection by reference to reasons for which he might face a real risk of substantial harm cannot by itself indicate the Tribunal confused s.36(2)(aa) with s.36(2)(a) of the Act. The Tribunal could be said to have confused these two provisions only if the Tribunal restricted the potential reasons for which an applicant for protection under s.36(2)(aa) of the Act could claim he or she faced a real risk of substantial harm to the reasons for which, under the definition of “refugee” for the purposes of the Refugee Convention, a person has a well-founded fear of persecution.[28] The Tribunal, however, did no such thing. The reasons to which the Tribunal referred when considering whether the applicant faced a real risk of substantial harm were the reasons on which the applicant relied, and all other reasons which, on the material that was before it, the Tribunal considered could reasonably be claimed to give rise to a real risk of substantial harm.

   [28] 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

4. Ground 3, therefore, also fails.

Other matters - SZSFK

1. At the hearing before me, counsel for the applicant submitted that in disposing of the applicant’s claims based on s.36(2)(aa) of the Act the Tribunal made the same error Judge Driver found the reviewer made in SZSFK v Minister for Immigration & Anor.[29] In SZSFK, the reviewer rejected a claim based on s.36(2)(aa) of the Act because the applicant’s claims were “based on the same evidence as his refugee claims”, and that “on the basis of the evidence provided by the claimant, country information as discussed above and the findings set out above” the complimentary protection claims was not made good.[30] Judge Driver held that the reviewer’s approach manifested the reviewable legal error the applicant in that case claimed the reviewer made,[31] namely, that the reviewer “failed to correctly construe and apply, or other correctly ask [himself], the question posed by section 36(2)(aa) when considering the Applicant’s claim for complementary protection”.[32] The basis of his Honour’s conclusion was that the reviewer’s reasons indicted he had made no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa) of the Act;[33] and that, therefore, the reviewer failed “to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision”.[34]

   [29] [2013] FCCA 7

   [30] SZSFK [2013] FCCA 7 at [89]

   [31] SZSFK [2013] FCCA 7 at [98]

   [32] SZSFK [2013] FCCA 7 at [29]

   [33] SZSFK [2013] FCCA 7 at [90]

   [34] SZSFK [2013] FCCA 7 at [92]

2. It may be important to note that Judge Driver did not, in SZSFK, hold it was impermissible for the reviewer to incorporate into his consideration of the applicant’s claims under s.36(2)(aa) of the Act findings he had made in the course of his considering the applicant’s claims under s.36(2)(a) of the Act. And it has been held that the Tribunal makes no jurisdictional error by referring to previous findings of fact where the claim for complementary protection, as articulated by the applicant, “could not survive those findings of fact”.[35] The error Judge Driver found the reviewer made in SZSFK was that the reviewer did not apply to the claim for complimentary protection that was before him the criteria specified by s.36(2)(aa) of the Act.

   [35] SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] (Robertson J)

3. Did the Tribunal in the case before me make the same error as the reviewer in SZSFK? That turns on the construction of paragraphs 80 and 81 of the Tribunal’s reasons.

   a)First, the Tribunal stated it was not satisfied the applicant would be harmed by the authorities on return to Sri Lanka because of his Tamil race, his political opinion, or his membership of a particular social group. This statement repeated, and repeated only part of, the applicant’s claims under s.36(2)(a) of the Act. Considered on its own, the statement does not exclude the applicant would suffer harm; the statement excluded a nexus between potential harm and one of the three reasons on which the applicant claimed protection under s.36(2)(a) of the Act.

   b)Second, the Tribunal stated it was not satisfied the applicant faces “significant or serious harm”. This statement addresses the type of harm the applicant may potentially suffer. “Significant harm” is the expression then used in s.36(2)(aa) of the Act, and “serious harm” is the expression then used in s.91R(2) of the Act, which applied to s.36(2)(a) of the Act. That the Tribunal used the words “significant or serious harm” indicates the Tribunal was aware of the different types of harm of which the Tribunal had to be satisfied before it could be satisfied whether the applicant’s claims fell within s.36(2)(a) or s.36(2)(aa) of the Act.

   c)Third, the Tribunal said it was not satisfied the applicant faces significant or serious harm “for these or other reasons – including for lack of an identity card, for seeking asylum in Australia or for leaving Sri Lanka unlawfully in 1983 – whether that is assessed against the standards of a real chance or of a real risk”. Although it has been held that whether there was a substantial risk of harm for the purposes of s.36(2)(aa) of the Act is to be determined by applying the “real chance” test that is applied when determining whether a person has a well-founded fear of persecution under s.36(2)(a),[36] the fact that the Tribunal referred to the standards of “real chance” and “real risk” indicates the Tribunal was addressing its mind to s.36(2)(aa) of the Act when it addressed the applicant’s claim based on complimentary protection.

   d)Finally, in paragraph 81 of its reasons, the Tribunal expressed its overall conclusion concerning the applicant’s claim based on complimentary protection by the unambiguous use of the language of s.36(2)(aa) of the Act.

   [36] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505

4. In my opinion, the Tribunal did assess the applicant’s claims for complimentary protection by reference to s.36(2)(aa) of the Act.

Conclusion and disposition

1. The applicant has not made out any of the grounds of application specified in the amended application. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeal tribunal be substituted for the Tribunal as second respondent. I will invite submissions on costs when I pronounce these orders.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 18 December 2015