SZTDT v Minister for Immigration

The applicant, SZTDT, sought judicial review in the Federal Circuit Court of Australia of a decision by the Refugee Review Tribunal (the Tribunal) that affirmed the Minister for Immigration and Border Protection's refusal to grant the applicant a Protection (Class XA) visa. The applicant, a citizen of Sri Lanka, claimed to fear persecution on the grounds of his Tamil race, imputed political opinion, and membership in a particular social group, as well as satisfying the complementary protection criterion.

The court was required to determine whether the Tribunal had failed to consider the full scope of the applicant's claim under the complementary protection provisions, and whether it had applied the correct legal test in assessing these claims. Specifically, the applicant argued that the Tribunal had confined its assessment to a limited aspect of his claim, failing to address the possibility of harm from government-affiliated paramilitary groups and harm that might occur beyond the airport upon his return to Sri Lanka, and that it had favoured a balance of probabilities test over the "real chance" test.

Lloyd-Jones J reasoned that the Tribunal's findings regarding the applicant's claims of persecution for a Convention reason were open to it on the evidence. However, concerning the complementary protection criterion, the court found that the Tribunal had indeed failed to consider all the integers of the applicant's claim. The Tribunal's reasons, particularly paragraphs [39]-[41], indicated a focus on harm at the airport and from the government, rather than the broader claim of potential harm from paramilitary groups and upon re-entry into Sri Lankan society, irrespective of whether the applicant was believed to be currently wanted. The court concluded that the Tribunal had not completed the exercise of its jurisdiction by failing to address this residual, substantial claim, which was supported by probative material.

Consequently, the application was dismissed, and the applicant was ordered to pay the First Respondent's costs.