SZTED v Minister for Immigration

[2015] FCCA 2258

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTED & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2258

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal failed to apply the “real chance” test –whether the Tribunal complied with s.36(2), s.424A and s.91R of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 91R, 424A, 424AA, 425, 476

Evidence Act 1995 (Cth), s.174

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 147 CLR 297
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26

First Applicant: SZTED

Second Applicant: SZTEE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1823 of 2013

Judgment of: Judge Nicholls

Hearing date: 6 November 2014

Date of Last Submission: 4 February 2015

Delivered at: Sydney

Delivered on: 20 August 2015

REPRESENTATION

Counsel for the Applicant: Mr PW Bodisco

Solicitors for the Applicant: Thomas McLoughlin Solicitor

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 5 August 2013 and ultimately amended on 3 November 2014 is dismissed.

3. The applicants pay the first respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1823 of 2013

SZTED

First Applicant

SZTEE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 August 2013, and ultimately amended on 3 November 2014, seeking review of the decision of the then Refugee Review Tribunal (“the Tribunal”), now known as the Administrative Appeals Tribunal, made on 5 July 2013 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Before the Court

1. The following evidence was before the Court:

   1)The bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

   2)The affidavit of Thomas McLoughlin, solicitor, made on 22 November 2013 annexing a transcript (“T”) of the Tribunal hearing. No objection from the Minister.

   3)The affidavit of Dr Lynette Masters, neuroradiologist, made on 12 May 2014. The Minister objected to the reading of this affidavit. It was admitted provisionally. The applicants made no reference to this affidavit in their submissions before the Court. In this circumstance, the affidavit was not formally read into evidence.

   4)The applicants sought to provide the Court with a copy of the Sri Lankan Immigrants & Emigrants Act (“the I&E Act”) as an “aide memoir”. The document, which purported to contain a statute of a foreign country, was not proffered consistently with s.174 of the Evidence Act 1995 (Cth). To be clear, it is not in evidence before the Court, and in any event, the applicant’s submissions did no more than rely on those parts of that Act in evidence as referred to variously in the Court Book.

Background

1. The applicants are brothers. Both are citizens of Sri Lanka. They arrived in Australia by boat, without authority, on 21 May 2012 (CB 24). The Minister subsequently exercised his discretion pursuant s.46A(2) of the Act and the applicants applied for protection visas on 28 September 2012 (CB 11).

2. The applicants set out their claims in two Statutory Declarations (see CB 52 to CB 58 for the first applicant’s Statutory Declaration and CB 59 to CB 63 for the second applicant’s Statutory Declaration). The delegate refused to grant the applicants protection visas on 7 January 2013.

3. The applicants applied for review to the Tribunal on 11 February 2013 (CB 160 to CB 165). They continued to be represented by a registered migration agent (CB 162).

4. The applicants, with their representative, appeared at a hearing before the Tribunal to give evidence on 10 May 2013 ([2] at CB 284). Their representative made written submissions before and after the hearing (CB 229 to CB 266 and CB 273 to CB 277).

5. The first applicant claimed that he was targeted by the Sri Lankan authorities between 2005 and 2012 because of suspected links with the LTTE. He claimed to have been detained, beaten, and questioned on several occasions.

6. The first applicant also claimed that in March 2012 he was the subject of an arrest warrant in which he was described as a “terrorist”. The police visited his family home in April 2012. He was not present and the police questioned his mother. The police threatened his mother. They told her that if the first applicant did not turn himself in to them, his younger brother, the second applicant, would “suffer the consequences”.

7. The second applicant claimed to have been assaulted by the police on that occasion. This included being hit on the head by a gun which caused him to bleed and faint.

8. Both applicants also claimed to fear harm on return to Sri Lanka because they would be failed Tamil asylum seekers who would face criminal sanctions for having departed Sri Lanka illegally.

9. The Minister’s written submissions of 20 May 2014 contain a fair summary of the Tribunal’s findings and I adopt them for the purposes of this judgment (at [8]):

   “The Tribunal decided to affirm the delegate’s decision. The decision record commences at page 283 of the Court Book. In summary the Tribunal:

   (a) was satisfied that the first applicant was questioned and briefly detained on several occasions while a student, before the end of the war, and again in 2010: [13], [23], [25];

   (b) found that, given the environment in Sri Lanka, the fact that the first applicant was only ever questioned briefly by police and then released on several occasions satisfied the Tribunal that the police had no serious suspicions that the first applicant had any involvement with the LITE: [26];

   (c) did not accept that the first applicant was sought by authorities in 2012, or that there was any official interest in him after early 2010; [36], [45];

   (d) found that no risk factors applied to the first applicant, and he was not wanted by the authorities on suspicion of supporting the LTTE or being a terrorist at the time of his departure from Sri Lanka in 2012. The Tribunal was therefore not satisfied that this might be a contributing factor to a perception that he is a supporter of the LTTE or otherwise an opponent of the government if he returns to Sri Lanka. It found that the chance he would be imputed with a pro-LTTE or anti-government opinion is remote: [51], [54];

   (e) found that the chance was remote that the first applicant would be persecuted for reasons of race or religion: [65];

   (f) found that the chance was remote that the first applicant or second applicant would be persecuted because of his membership of the social ground ‘failed Tamil asylum seekers’: [70], [106];

   (g) found that while the applicants might face prosecution for illegal departure on his return to Sri Lanka, and be detained for up to 3 nights, this would not amount to ‘serious harm’ under s 91R(1) of the Act and so would not be persecution. Nor would it amount to ‘significant harm’ within the meaning of s 36(2)(aa) of the Act: [74], [81], [110], [117];

   (h) was not satisfied that the second applicant was assaulted by Sri Lankan authorities as he claimed, including for reasons associated with their seeking the first applicant: [98]

   (i) found that the second applicant does not fear he would harmed in future if returned to Sri Lanka: [99].”

Application Before the Court

1. The grounds of the application ultimately before the Court on 6 November 2014, as further amended, are in the following terms:

   “GROUND ONE:

   The RRT took into account an irrelevant consideration.

   Particulars

   At paragraph [115] of the decision, the RRT took into account media statements by Sri Lanka’s Media Minister regarding the availability of a pardon for people who leave the country illegally as overcoming the clear terms of Article 45(1)(b) of the Immigrants and Emigrants Act that mandatory penalties include imprisonment ‘for not less than one year’.

   GROUND TWO:

   The RRT has failed to apply the ‘real chance’ to the Applicant's claims.

   Particulars

   By relying on the fact that trials have not yet resulted in penalties for those charged under Article 45(1)(b) of the Immigrants and Emigrants Act at paragraph [108] of the decision, the RRT has failed to have regard to the real chance that the Applicant may face a 12 month minimum period of imprisonment.

   GROUND THREE:

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

   Particulars

   By referring to the ‘reasons set out in the discussion of illegal departure’ and the ‘reasons… relating to the Refugee Convention’ in assessing the Applicant's claims under section 36(2)(aa) of the Migration Act, the RRT has failed to apply the definition of degrading treatment or punishment under section 36(2)(aa), 36(2A)(e) and 5(1) of the Migration Act to the finding that the Applicant ‘will be detained for somewhere between 1 and 3 days’ at paragraph [117] of the decision.

   GROUND FOUR:

   The RRT has breached section 424A of the Migration Act.

   Particulars

   a. The RRT recorded at paragraph [92]-[93] that the Tribunal engaged in a fact finding process during the hearing of obtaining information regarding injuries sustained by the Applicant;

   b. In the circumstances, the Tribunal has failed to advise the Applicant that he may seek additional time to comment on or respond to the information drawn from the attempts by the Tribunal to “see or feel” any scars on him.

   GROUND FIVE:

   The RRT has applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth).

   Particulars

   a. By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being questioned and investigated by the authorities at the airport, the reviewer failed to apply the test of serious harm pursuant to s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at [30] and [45].”

Consideration

1. The applicants’ submissions before the Court were not made with reference to the sequence of the grounds of the amended application. I have addressed the grounds below as they were addressed before the Court.

Ground Four

1. Ground four asserts a breach of s.424A of the Act. The particulars to the ground make that assertion, with reference to the Tribunal’s decision record ([92] to [93] at CB 298):

   “[92] In response to my questions he said that a man in civilian clothes had pointed a gun at him and had struck him. He said that when his mother opened the door four or five men came in. Some were in police uniform and some in plain clothes. None said they were from the CID. They searched the house and told his mother that if her oldest son did not report to them they would take the applicant instead. The applicant said nothing to them, but saw the arrest warrant. One of the men struck him on the head with a gun, and he fainted. His head was bleeding but he did not need stitches subsequently.

   [93] The applicant showed me where he had been struck, and I told him I was unable to see or feel any scar. No medical evidence has since been submitted attesting to scarring.”

2. The applicants submitted that the Tribunal engaged in a “fact finding” process during the hearing and obtained information about certain injuries said to have been sustained by the second applicant. The complaint in the ground is that the Tribunal failed to advise the second applicant that he may seek further time to comment or respond to the information drawn from the attempts by the Tribunal to “see or feel” any scars on him.

3. In submissions, the applicants, in part, appeared to seek to explain the legal context of their ground with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), and whether the second applicant was afforded a fair hearing. Plainly obligations under s.424A of the Act and the subject of consideration in SZBEL, s.425 of the Act are different, notwithstanding that both are concerned with procedural fairness.

4. A further confusing element in the applicants’ written submissions of 6 May 2014 (at [26]) was the assertion that the second applicant was denied procedural fairness, in circumstances where he was said not to have been given the opportunity of “meeting the case that was against him in circumstances where he simply was not informed of any concerns the Tribunal may have had in regards to the provenance of this email”.

5. There is nothing in the text of the Tribunal’s decision record at [92] to [93] (at CB 298), or for that matter, elsewhere in its decision record, concerning the provenance of any email.

6. In any event, I have sought to address the applicants’ ground as it is actually pleaded. In this regard, therefore, the assertion of legal error is said to be a breach of s.424A of the Act.

7. The applicants’ submissions, relevant to this ground, were as follows. The second applicant claimed to have been assaulted by police in Sri Lanka when they came to his house looking for his brother (see [9] above). The second applicant was questioned about this (starting at T33 line 29) at T35 lines 21 – 35:

   “[Tribunal]: Have you got a scar on your head now, that you can feel, where they hit you?

   [Second applicant]: Yes.

   [Tribunal]: Well I wouldn't normally do this, but can I, can I feel it? Just to see if you've got a scar there. Yeah?

   [Second applicant]: OK, I'm just going to feel it because - [voice becomes quieter, sound of soft shuffling] - the way you are answering makes me feel like this incident didn't happen so I think it's important that I - I can't see anything.

   Maybe, it's hard to feel isn't it.

   [Second applicant]: Yes that's the place.

   [Tribunal]: That's the place. OK, I can't really see anything or feel anything.

   [Second applicant]: This incident happened but I think the injury that could be, its been heal, healed.”

   [The statement starting “OK, I’m just going… I can’t see anything”, in context should be read as being made by the Tribunal member, and is an error in the transcript provided to the Court.]

8. The applicants now submit that this questioning was concerned with the second applicant’s credit. That is, whether the scarring could confirm his account of the event to which it was said to relate.

9. The applicants referred to [92] to [93] (at CB 298) of the Tribunal’s record to submit that the Tribunal relied on this information, and “clear particulars” of the information were not put to the second applicant in writing as required by SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162. Further that the Tribunal did not utilise the mechanism in s.424AA of the Act to discharge this obligation.

10. The applicants submitted before the Court that the “information” caught by s.424A of the Act was the Tribunal member’s “observation” that she was unable to see, or feel, any scar on the second applicant (at [93] at CB 298, see [14] above).

11. What constitutes “information” for the purpose of s.424A of the Act was considered by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 147 CLR 297 (“SZBYR”). The High Court referred with approval to Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54] per Sackville J:

    “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s 424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s 424A(1).”

12. I agree with the Minister that the Tribunal’s reference (at [93] at CB 298) to being unable to see or feel any scar is not information for the purposes of s.424A of the Act. At best what is recorded at [93] (at CB 298), and on which the applicants now rely, is the Tribunal’s report of what occurred at that part of the hearing concerning the second applicant’s claim to have been assaulted by the police. With reference to the transcript, the second applicant claimed to have been hit on the head with a gun, claimed he had a scar, and the Tribunal recorded (at [93] at CB 298), its observation, at the hearing, that it could not see or feel “anything”. That is, any scarring.

13. To make good their claim of a breach of s.424A of the Act, the applicants relied on what was stated in the Tribunal’s decision record. Some care must be taken here. As was made clear in SZBYR, the use of the future indicative tense on s.424A(1) of the Act (“would be”) directs attention to a time antecedent to the drafting of the Tribunal’s decision record (see SZBYR at [17]). The published reasons can assist in informing what the Tribunal considered, at an anterior point in time, would be the reason, or a part of the reason, for affirming the delegate’s decision (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J).

14. In this light, what was relevantly said at the hearing is, in my view, the Tribunal’s response to the second applicant’s claim to have been hit, which led to scarring on his head. The Tribunal’s response was simply its evaluation of the situation that no scarring was evident.

15. While not, of itself, determinative of this complaint, the Tribunal’s published reasons support this view. At its highest, the observation of the absence of visible scarring was not a part of the reason for affirming the delegate’s decision. Those reasons are set out at [96] of the Tribunal’s decision record (at CB 298).

16. In all, therefore, the Tribunal’s observation at [93] (at CB 298) was to note the absence of certain evidence in support of the second applicant’s claim to have been assaulted. That is, the absence of evidence that the second applicant himself had proffered in support of the claim. In all, ground four is not made out.

Ground Five

1. Ground five asserts that the Tribunal applied the wrong test pursuant to s.91R(1)(a) of the Act. The particulars make clear that the applicant relied wholly on the relevant reasoning of the Federal Court in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”) in support of the ground.

2. At the time immediately following the hearing of this matter, WZAPN was the subject of a special leave application to the High Court. Given the High Court’s subsequent judgment (Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22), ground five is not made out.

Ground One

1. Ground one asserts that the Tribunal took into account an irrelevant consideration. The particulars direct attention to [115] of the Tribunal’s decision record (at CB 301):

   “Evidence has been submitted from the US Department of State and many other sources about the extremely poor conditions in Sri Lanka’s prisons and arguments have been made that that treatment will amount to significant harm as it is defined in the above criterion. This is relevant because under article 45(1)(b) of the Immigrants and Emigrants Act imprisonment for not less than one year is mandatory for any person who leaves Sri Lanka in contravention of any provision of the Act. However Sri Lanka’s Media Minister has recently said that ‘The constitution says there are some legal implications for people who leave the country illegally, but we have relaxed that a lot. People will have to appear before a magistrate, but many have been pardoned; it is an understanding between the two countries’. This assertion has not been tested in practice yet. There is no evidence that anyone has been sentenced since prosecutions commenced in November 2012.”

2. The complaint is that the Tribunal took into account media statements made by Sri Lanka’s “Media Minister”, regarding the availability of a pardon for those who left Sri Lanka illegally. The applicants assert the Tribunal preferred this material to what were said to be the “clear terms” of article 45(1)(b) of the I&E Act. The applicant submitted that a statement by a Sri Lankan Minister “does not overcome the express terms of the legislation” when viewed in light of the “real risk” test.

3. It assists to note what was relevantly said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [15] per Mason J (as His Honour then was):

   “(b)…In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard…

   (d) …both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’…”

4. The statements made by the Sri Lankan Minister were reported in the “Sydney Morning Herald” in March 2013 (see [78] at CB 296 at footnote 17 and [115] at CB 301 at footnote 23).

5. The relevant question for the Tribunal here was whether the applicants would be subjected to “significant harm” if returned to Sri Lanka. The Tribunal noted in this context, that the I&E Act (at article 45(1)(b)) imposed a mandatory one year prison sentence for anyone who had contravened that Act (see at [78] at CB 296 and [115] at CB 301).

6. I cannot see that it is an irrelevant consideration, or for that matter unreasonable, in assessing the question of significant harm in the context of the applicants’ illegal departure from Sri Lanka, to also have regard to country information that went to the issue of how the applicants would be treated on their return and the enforcement of relevant laws. The Media Minister’s reported statements were only one part of a larger body of country information about the treatment of returnees (see for example at [108] at CB 300 and [115] at CB 301).

7. Before the Court the applicants did not satisfactorily explain how the Tribunal’s regard of this information was an irrelevant consideration as that concept is explained in Peko-Wallsend. There was nothing to show that the country information fell within the “implied limitation” as explained there.

8. Ultimately, and with reference to what was otherwise made clear in Peko-Wallsend, the Act confers a discretion on the Tribunal to obtain information (s.424 of the Act). The choice of, and weight to be assigned to, such country information is for the Tribunal to assess (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). In the circumstances, the applicants’ ground really seeks to cavil with the Tribunal’s relevant findings, concerning the applicants’ return, which were all reasonably open to it on what was before it. Ground one is not made out.

Ground Two

1. Ground two asserts that the Tribunal failed to apply the real chance test to the applicants’ claims (the ground is pleaded in the singular, but, at best, I understood the submissions to be directed to both applicants).

2. The ground is particularised with reference to what was said to be the Tribunal’s reliance on the “fact” that trials in relation to those who left illegally had not resulted in penalties for those charged under article 45(1)(b) of the I&E Act. The applicants assert that the Tribunal failed to have regard to the “real chance” that the applicants may face a minimum of 12 months imprisonment.

3. The particulars direct attention to [108] of the Tribunal’s decision record (at CB 300):

   “Recent and reliable information indicates that some people who left illegally have been detained in uncomfortable conditions for several days, and charged under the Immigration and Emigration Act. They do not appear to have been harmed. I accept that there are official penalties for illegal departure from Sri Lanka. Section 45 A to G of the I&E Act deals with penalties for offences under the Act. A prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR can be applicable for individuals who have left the country illegally. However those charged to date have been released on bail and their cases have not yet been heard. It is therefore unknown what penalties they may face.”

4. Although the reference was to [108] (at CB 300) which was a part of the Tribunal’s consideration of the second applicant’s claims, I note a similar paragraph (at [72] at CB 295) in relation to the first applicant.

5. When those parts of the Tribunal’s decision record ([108] at CB 300 and also [72] at CB 295) are read at least fairly, that is, in context, what emerges is that the applicants’ ground is an attempt to re-agitate the merits of the applicants’ claims in this regard.

6. At [109] (at CB 300) and [115] (at CB 301) to [119] (at CB 302), for the second applicant, and [73] (at CB 295) and [82] to [84] (at CB 296), for the first applicant, the Tribunal makes clear that it understood the relevant test (see, for example, the references to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [82] and [118]) and applied it correctly.

7. I also agree with the Minister’s additional, and separate, answer to ground two. That is, the Tribunal found that the treatment to which both applicants would be subjected on return to Sri Lanka would be a brief period of detention under the Sri Lanka law. The Tribunal found that, in the circumstances, this would not amount to “significant harm” as that concept is defined in s.36(2A) of the Act. I cannot see in the circumstances that the Tribunal failed to apply the appropriate “real chance” test. In all, ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal failed to apply the correct test pursuant to s.36(2)(aa) of the Act. This is said to be because in assessing the complementary protection criterion (at s.36(2)(aa) of the Act), the Tribunal stated (at [117] at CB 302 and see also [81] at CB 296) that it had regard to the “reasons set out in the discussion of illegal departure” and the “reasons… relating to the Refugees Convention”.

2. Both applicants each advanced factual assertions relevant, and common, to both criteria at s.36(2) of the Act. That is, for each, the factual basis of the claimed fear under the Refugees Convention criterion, and under the complementary protection criterion, were the same.

3. The Tribunal rejected the proposition put by both applicants that they would face harm (for the purposes of both criteria) as that fear was said to arise from the respective common set of facts, which they each advanced, as to past events in Sri Lanka, relevant laws, and their status as Tamils.

4. In these circumstances the Tribunal was entitled to refer, when considering the complementary protection criterion, to findings of fact previously expressed in its decision record. The Tribunal did not reject the applicants claims with reference to s.36(2)(a) of the Act because of any Refugees Convention nexus, but rather because it rejected what can be described as the substance of the factual situation advanced in support of the claims as against both criteria.

5. No error was found by the Federal Court in this same approach in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ. In all, ground three is not made out.

Conclusion

1. The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 20 August 2015