SZTID v Minister for Immigration

[2015] FCCA 1614

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTID v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1614

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal failed to apply the “real chance” test – whether the Tribunal took into account a relevant consideration – whether Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 476

Minister for Immigration and Citizenship v  SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
SZTEP  v Minister for Immigration & Anor [2015] FCCA 1213
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183
SZTBW  v Minister for Immigration and Border Protection [2014] FCA 1277
Plaintiff S297/2013 v Minister For Immigration And Border Protection and Another [2015] HCA 3; (2015) 316 ALR 161
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Applicant: SZTID

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2287 of 2013

Judgment of: Judge Nicholls

Hearing dates: 24 July 2014, 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 15 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr R Selliah of Rasan Selliah and Associates

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 23 September 2013 and amended on 24 July 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2287 of 2013

SZTID

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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 26 September 2013 and amended on 24 July 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 August 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), and the affidavit of Yathushiya Mahenthirarasa, student, affirmed on 15 July 2014 which annexed (“A”) a copy of the transcript of the Tribunal hearing (“T”).

Background

1. Both parties filed written submissions in this matter. The Minister filed further written submissions to address the new grounds of the amended application. The relevant background is set out in the Minister’s initial written submissions. There is no dispute between the parties as to the background. Having regard to the Court Book, in my view, the Minister’s written submissions provide a reasonable summary of the applicant’s claims to protection, and the Tribunal’s findings. I adopt the following paragraphs from the Minister’s written submissions as explanatory background for the purposes of this judgment ([1] – [4]):

   “[1] The applicant is a citizen of Sri Lanka who arrived in Australia on 12 June 2011 travelling on a fraudulent passport, in an alternate name, which was confiscated by Australian Customs (Court Book ‘CB’ at page 210 at paragraph [1]).

   [2] On 1 August 2011 the applicant applied to the Department for a protection (Class XA) visa (CB 1 to 34), with the assistance of his current solicitor, who he appointed as his nominated adviser (CB 35 to 37), and attached a separated statement of claims (CB 38 to 43).

   [3] The applicant claimed to fear harm from the Sri Lankan government and its paramilitary agents on the basis of an imputed pro-LTTE political opinion given his past association with the LTTE and his brother’s involvement with the LTTE. He also feared harm from the EPDP because he failed to pay the balance of extortion money.

   [4] On 5 October 2012, a delegate of the first respondent refused to grant the visa (CB118 to 153). On 22 October 2012, the applicant applied to the Refugee Review Tribunal (‘Tribunal’) for an review of the delegate’s decision (CB 155 to 162) and appointed his agent as his authorised recipient (CB 162).”

2. Further, the Minister’s initial written submissions have helpfully summarised the Tribunal’s findings. I adopt [5] ‑ [10] of those submissions for the purposes of this judgment:

   “[5] On 11 February 2013 the Tribunal invited the applicant to attend a hearing (CB167 to168), which the applicant accepted (CB 169 to 170) and on 28 March 2013 he attended a hearing of the Tribunal at which he gave evidence and presented arguments with the assistance of his agent and a Tamil interpreter (CB 172 to 173)

   [6] On 12 April 2013 the applicant’s agent made a post-hearing written submission (CB177 to 194). On 9 May 2013 the agent submitted information and documentation regarding the applicant’s mental health (CB 197 to 205).

   [7] On 28 August, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa (CB 209 to 224).

   [8] The Tribunal summarised the applicant’s claims in detail (CB 213 to 214 at [23]). In essence the applicant claimed to fear harm as a Tamil male from the Northern Province suspected of having links with the LTTE and as a failed asylum seeker who left Sri Lanka illegally, suspected of having links with the LTTE who returned from the Middle East with money (CB 213 to 214 at [23]).

   [9] The Tribunal:

   [9.1] Did not accept the applicant’s account of travelling to and from Colombo to Puthukkudiyiruppu, because it was inconsistent with country information (CB 215 at [25]).

   [9.2] Accepted that the applicant had returned to Sri Lanka from Qatar to visit his family in Puthukkudiyiruppu and that some monitoring measures may have applied to him such as providing a police report of the person he was staying with in Colombo and registering his presence with the local police in Colombo (CB 218 at [40]).

   [9.3] Found that the applicant was able to travel in and out of Sri Lanka in his own passport in 1986 and 1988 (to and from Saudi Arabia), on return trips from Qatar in 1998 and 2001 and return to Sri Lanka in 2010 from Qatar. The Tribunal considered this was inconsistent with him being of interest to any Sri Lankan authority at those times (CB 218 at [46]).

   [9.4] Concluded, on the basis of these inconsistencies in the applicant’s evidence, that the applicant was not a credible witness (CB 219 at [47]).

   [9.5] Did not accept the representative’s submissions and the supporting psychological report which attributed the inconsistencies in the applicant’s evidence to poor memory. The Tribunal found that the applicant did not claim to have forgotten details, such as the requirements he had to comply with. Rather, his evidence was that for most of his life he was out of the country so he did not know (CB 218 at [43]).

   [9.6] Accepted that the applicant was distressed by his present circumstances having left Sri Lanka and his family more than two years ago (CB 218 at [44]).

   [9.7] Rejected the entirety of the applicant’s claims of past harm and threats of harm on the basis of the Tribunal’s findings about the applicant’s credibility (CB 219 at [48]).

   [9.8] Did not accept that the Terrorist Investigation Department (TID) questioned him about supplying fish for the LTTE, that friends had been disappeared and been killed, that he was questioned and searched by the [Sri Lankan Army (“SLA”)] at a checkpoint and detailed for two days, interrogated about his association with the LTTE, tortured and released (CB 219 at [48]).

   [9.9] Was also not satisfied that the applicant had any past association with the LTTE including undertaking training, building bunkers and cutting down trees for the LTTE in 2001 or that his brother was an LTTE policeman who was detained and tortured by the Sri Lankan Army (CB 219 at [49]).

   [9.10] Was not satisfied that the Sri Lankan government and/or its paramilitary agents or CIP or EPDP were trying to harm him or would try to harm him in the future because of his actual or imputed past association with the LTTE and/or his brother’s claimed involvement with the LTTE. It was not satisfied that the EPDP would harm him because of his failure to pay the balance of extortion money (CB 219 at [50]).

   [9.11] Accepted that the applicant was a Tamil from the North of Sri Lanka. However, on the basis of accepted independent country information, the Tribunal found that simply being Tamil or a Tamil from the North or East did not give rise to a well-founded fear of persecution from the authorities of Sri Lanka (CB 219 at [52] ff). Having found that the applicant was not a former LTTE recruit or that he assisted the LTTE in any way (CB 220 at [57]), the Tribunal was not satisfied that because the applicant was a Tamil male from the northern province of Sri Lanka and/or a former LTTE recruit he would be imputed to hold a

   
   

   pro-LTTE political opinion (CB 220 at [58]).

   [9.12] Found that upon return to Sri Lanka, the applicant may be detained and examined, required to produce documents, arrested, photographed, fingerprinted, have his background checked (including by contacting police, family and neighbours) and that he may be fined up to 50,000 rupees and remanded in custody until being presented to a magistrate. The Tribunal found this would occur because of the applicant’s illegal departure from Sri Lanka and breach of the Immigration and Emigration Act. However, the Tribunal found on the basis of country information that this process, individually or cumulatively, would not amount to serious or significant harm (CB 222 at [71]).

   [10] Having considered the claims individually and cumulatively, the Tribunal was not satisfied that the applicant had a

   
   

   well-founded fear of persecution for any Convention reason or that there was a real risk that he would face significant harm if he returned to Sri Lanka (CB 222 at [76] to [78]).”

Application to the Court

1. The amended application raises the following grounds of review:

   “1. The RRT has failed to apply the ‘real chance’ test to the Applicant’s claim.

   Particulars

   By relying on the likely penalties to be applied, the RRT has failed to have regard to the real chance that the Applicant may face a prison term as a consequence of the custodial penalties being applied, the Applicant’s inability to pay a fine or a surety, and/or that the remand process may not be monitored by the International Organisation for Migration.

   2. The RRT has taken an irrelevant consideration into account.

   Particulars

   The RRT took into account, at paragraph [69] of the decision, that ‘returnees have been granted bail on personal surety immediately by a magistrate’, that ‘sometimes returnees need to wait until a family member comes to court to collect them’ and that the ‘IOM is present with the returnee during this process’ without establishing whether these issues would be enlivened in the instant matter.

   3. The RRT has failed to consider the full integers of the Applicant’s claim.

   Particulars

   By only dealing with the psychological report on the basis of its provisional diagnosis of memory losses as an explanation for the inconsistencies, the RRT has failed to deal with the claim as squarely raised in the report that it would be detrimental to the Applicant’s mental health ‘if forced to go back to Sri Lanka.’”

Before the Court

1. The following matters are of note in relation to the progress of this matter before the Court. This matter was set down for final hearing on 24 July 2014. At that time Mr P Bodisco of counsel and Mr T Little of counsel appeared for the applicant and sought leave to rely on an amended application containing grounds different to those in the application. No attempt had been made to seek leave for this purpose in the time available prior to the hearing.

2. The matter was adjourned to enable proper consideration of the “new” application. At the resumption of the hearing, Ms R Francois of counsel appeared for the Minister. Mr R Selliah appeared for the applicant.

Consideration

1. Although written submissions had been filed by the applicant it became clear at the hearing that, in part, these submissions were either not directed to the grounds of the amended application, or the applicant’s solicitor was unable to explain their relevance.

2. For example, ground one asserts a failure to apply the real chance test to the applicant’s claims. The particulars appeared to be directed, in part, to that claim. However, in written submissions, while making reference to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, and the “real chance” test as it applies to matters of this kind, ground one is addressed in common with ground two. Ground two asserts that the Tribunal fell into error in taking into account an irrelevant consideration. Yet, for the most part, the submissions appear to be directed to a “no evidence” complaint.

3. Ground three asserts that the Tribunal failed to take into account the full integers of the applicant’s claim. The particular makes reference to a psychological report provided on the applicant’s behalf.

4. However, while the written submissions address the issue of the psychological report, they also contain allegations of further legal error. For example, the submissions argue a denial of procedural fairness which is not pleaded (see the reference to NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1).

5. The applicant was given the opportunity before the Court to explain his grounds as pleaded. The applicant has had ample opportunity to have added any other assertions of legal error to his grounds. I have proceeded to consider the applicant’s grounds in light of the submissions made at the hearing.

6. The applicant commenced his submissions to ground one with reference to the “real chance” test and what was said to be the Tribunal’s focus on “likely penalties” the applicant would face on return to Sri Lanka.

7. However, the applicant then sought to argue that “this matter is bound up with a case”, with reference to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”). The applicant submitted that this case was handed down after the filing of his amended application. No attempt has been made in the time available, to seek further amendment of the application.

8. WZAPN was a matter on appeal from this Court. Justice North found that the Tribunal in that case failed to properly understand, construe, and apply s.91R(2)(a) of the Act. His Honour found error because the Tribunal conducted a qualitative evaluation of the situation to be faced by a returning failed asylum seeker to Sri Lanka. In short, His Honour found that any threat to a person’s liberty met the definition of “serious harm”, pursuant to s.91R(1)(a) of the Act.

9. Ultimately, and amongst other things, I understood the applicant’s position to be that as WZAPN was currently before the High Court, this Court should delay handing down judgment until after the High Court handed down its judgment because the current Tribunal fell into the same error.

10. There are a number of reasons why this should not be done. In SZTEP v Minister for Immigration & Anor [2015] FCCA 1213 (“SZTEP”), Judge Barnes rejected the submission that the appeal to the High Court, raised any “novel” issues that had not been dealt with previously. I respectfully understood that conclusion to have been reached taking into account what was put to the High Court. While Her Honour was dealing with a formal application for an adjournment, in my view, what Her Honour said applies equally to any delay in handing down judgment.

11. Plainly, and respectfully, Her Honour was referring to SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 (see further SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41), matters decided by the Full Federal Court, which disagreed with Justice North on the issue described above. Her Honour said ([23] of SZTEP):

    “In these circumstances, where there is clear authority of the Full Court of the Federal Court relevant to the issue that the Applicant now wishes to raise in Ground Two, in my view it is appropriate that this Court follow the authority of the Federal Court rather than adjourn the matter further while the issue is determined in the High Court.”

12. I respectfully agree with Her Honour. This Court is bound by the more recent Full Court authorities. The applicant’s reliance on WZAPN at this time cannot assist him. In these circumstances, it is not appropriate to delay the disposition of this application.

13. The Minister’s second argument against delay was that, in any event, even if WZAPN were decided in the applicant’s favour, it would not assist the applicant in the current proceedings.

14. The applicant claimed to fear harm on return to Sri Lanka, amongst other matters, because he would be a returning failed asylum seeker who had left Sri Lanka illegally. The Tribunal accepted that he left Sri Lanka illegally ([60] at CB 220).

15. In this regard, the Tribunal found that ([70] at CB 222):

    “Sri Lankan asylum seekers and refugees who return to Sri Lanka through the UN High Commissioner for Refugees facilitated voluntary repatriation program are processed through DoIE and SIS on return to Sri Lanka but not CID. This process is the same for all persons returned regardless of the country from which they are being returned or when they departed Sri Lanka.  Based on the country information, and in particular the Report, the Tribunal finds that Tamil returnees are treated no differently from any other returnee to Sri Lanka.  Standard procedures apply. The law is not discriminatory on its face or as enforced.”

16. I agree with the Minister that this finding refers to s.91R(1)(c) of the Act, and not s.91(1)(a) of the Act, which was the subject of the consideration in WZAPN. The Tribunal had regard to relevant country information before it including submissions and information provided by the applicant’s representative ([61] at CB 220):

    “The Tribunal has taken into account the representative’s submissions, including country information, and the Report, in particular paragraphs 3.71 to 3.82. The Report provides the following information.”

    (see further [55] at CB 220.)

    [I note here the analogous situation in SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 per Katzmann J and Her Honour’s approach there, which is instructive for this Court.]

17. In all, the Tribunal’s finding in this regard addressed, and disposed of, the applicant’s claim in its entirety (see SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183 and SZTBW v Minister for Immigration and Border Protection [2014] FCA 1277). Having made that finding, it was not necessary for the Tribunal to have proceeded further.

Ground One

1. Before the Court, notwithstanding his written submissions, the applicant explained that ground one did not invoke a “no evidence” argument. The complaint was explained as follows. The Tribunal misunderstood, and failed to properly apply, the “real chance” test to both criteria for the grant of the visa at s.36(2)(a) and (aa) of the Act.

1. The Tribunal relied on “likely” penalties that the applicant may face because of his illegal departure from Sri Lanka. The complaint was that it did not have regard to the fact that the applicant may face a prison term, would be unable to pay a “fine or a surety”, and that the remand process “may not be monitored” by the “International Organisation for Migration” (“IOM”).

2. As set out above, the Tribunal did consider the claim that he left Sri Lanka illegally and would face harm on return (beginning at [60] at CB 220). The Tribunal had regard to the representative’s submissions in this regard ([61] at CB 220). It then analysed the applicant’s circumstances in light of country information available to it ([62] at CB 220 to [69] at CB 221).

3. Bearing in mind the particulars to ground one, the Tribunal did have regard to country information that included, amongst other things, “that no one to date has been given a custodial sentence for departing Sri Lanka illegally” ([68] at CB 221). The Tribunal also had regard to information that the relevant courts in Sri Lanka had been handing out fines, in some instances larger fines, “to act as a deterrent” ([68] at CB 221).

4. The Tribunal also considered country information relating to returnees who left illegally, who on return were charged by the authorities and put on remand until presented to a court “at the first available opportunity”. The Tribunal reported on country information to the effect that ([69] at CB 221):

   “Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity. The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.”

5. The Tribunal’s findings are set out at [70] – [72] (CB 222) of its decision record. These paragraphs must be read fairly. That is, holistically, and in context of what precedes them. In this light, it is clear that the Tribunal found that on return, the applicant may be detained and, at most, may be subject to a fine. I agree with the Minister that when read fairly, these were clear findings made by the Tribunal in light of country information before it. The Tribunal’s subsequent finding that it was not satisfied that, based on the country information to which it had earlier referred, this situation constituted serious or significant harm was a finding reasonably open to it on what was before it.

6. Relevant to ground one, it was a finding consistent with, and revelatory of the application of the real chance test. A test which it had explained earlier in its decision record (see [14] at CB 211).

7. There is no reason to find that the Tribunal did not have regard to the representative’s submissions. The applicant now seeks to argue that the Tribunal should have looked at the likelihood of a prison term. However, the Tribunal’s finding that the applicant would only face a fine meant it did not need to go any further. As the Minister submits, this is not a case where the Tribunal was equivocal as to the likely outcome of being charged for unlawful departure from Sri Lanka. In all, ground one is not made out.

Ground Two

1. Ground two asserts that the Tribunal fell into legal error because it took an irrelevant consideration into account. The ground directs attention to the Tribunal’s decision record at [69] (at CB 221 - see [29] above).

2. It appears that this focusses on the same matters as raised in the particulars in ground one, and seeks to assert that in relying on the matters that it did, the Tribunal took into account irrelevant considerations.

3. At the hearing, the applicant said he relied on his written submissions to explain this ground. The difficulty is that those submissions addressed grounds one and two together. Even allowing for the “no evidence” submission, it is not clear how the impugned part of the Tribunal’s analysis can be said to have contained an irrelevant consideration.

4. At best, what was left before the Court, in light of the particulars to the ground, was that in “answer” to the Tribunal’s expectation that the applicant would be granted bail, was the assertion that “just because” the applicant “has a loving family and close family connections” does not mean they would be able to post surety for him.

5. It should be noted that before the Court, the applicant made no attempt to point to any part of his claims or evidence before the Tribunal, or the delegate for that matter, where he had stated any such difficulty. The argument to the extent that it can be derived from the written submissions, is that there was “no evidence” before the Tribunal that family members “would come to collect him”.

6. How that constitutes the failure to take into account a relevant consideration, therefore, remains unexplained. What is left is that the applicant has not established how the relevant situation of the family members, in the presence, or otherwise, of the IOM as set out in the particulars, could be said to be an irrelevant consideration (see for example, as the Minister submitted, Plaintiff S297/2013 v Minister For Immigration And Border Protection and Another [2015] HCA 3; (2015) 316 ALR 161). In all, ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal failed to take into account the “full integers” of the applicant’s claim. This is particularised by reference to a psychological report before the Tribunal, prepared by Dr Zareena Anantharaman PhD (CB 201 to CB 204).

2. Before the Court, the applicant directed attention to [43] – [44] of the Tribunal’s decision (at CB 218):

   “[43] The Tribunal does not accept that his responses or submissions and supporting report from Dr Zareena Anantharaman PhD that he has a poor memory explain the inconsistencies. He gave evidence of what he did.  He did not claim that he had forgotten the requirements he had to comply with. The Tribunal does not accept that his evidence is true because it is inconsistent in terms of the location of the

   
   

   crossing-point and the requirements for passes, permissions and the tight control over movement to Colombo, and into and out of the Vanni.

   [44] The Tribunal accepts that the applicant is distressed by his present circumstances, having left Sri Lanka and his family more than two years ago and awaiting the outcome of his protection application.  Dr Anantharman’s report includes provisional diagnoses.  The Tribunal accepts that Dr Anantharaman is an accredited mental health social worker based on her membership of the AASW (Australian Association of Social Workers) and the doctor’s provider number.   The principal findings in the report relate to the applicant’s poor memory. For the reasons already stated, the Tribunal does not accept that poor memory is a sufficient explanation for the inconsistencies it has found which cause it to find that the applicant is not a credible witness”

3. The applicant submitted that the Tribunal dealt with the psychological report on the basis that it went to the question of the applicant’s poor memory and how that affected his evidence. However, it did not deal with the “claim” contained in the report that (at CB 204):

   “…[The applicant], if forced to go back to Sri Lanka would be detrimental to his mental health…”

4. The applicant submitted that this was an integer of his claim to fear harm if he were to return to Sri Lanka. Therefore, the failure to consider this claim constitutes jurisdictional error (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).

5. The difficulty for the applicant is that he was unable to explain how the above statement by Dr Anantharaman can be understood as being a claim to fear harm within the relevant statutory context, such that the Tribunal was obliged to consider it.

6. It may indeed be the case that the applicant would suffer psychologically if he were to return to Sri Lanka. However, the task that the Tribunal is jurisdictionally obliged to carry out, is to determine whether the applicant satisfied either of the criteria at s.36(2) of the Act, such that the protection visa must be granted.

7. As the Minister submits, the Tribunal is required to consider the claims either expressly made or clearly arising, that are claims the applicant would suffer harm for a Refugees Convention reason or harm that appears to engage the matters set out at s.36(2A) of the Act. Neither Dr Anantharaman’s report, nor the applicant now, explained this to be the case, such that the Tribunal fell into error in the exercise of its jurisdiction.

8. It must be remembered that the Refugees Convention, and Conventions that inform s.36(2A) of the Act, do not purport to oblige Australia to provide protection to any applicant for any, or all, of the difficulties that they may face if returned to their home countries. All of the relevant Conventions to which Australia is a signatory, and which are reflected in s.36(2) of the Act, are directed to Australia being obliged to provide protection for certain stated purposes. Ground three is not made out.

Conclusion

1. In all, the three grounds of the application and the submissions before the Court do not reveal jurisdictional error. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 15 June 2015