SZTWC v Minister for Immigration

[2014] FCCA 1347

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1347

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal – Refusal of a Protection (Class XA) visa – protection visa claim only under complementary protection criterion – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91X, 422B

Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v Anochie & Anor (2012) 209 FCR 497
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

Applicant: SZTWC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 304 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 2 June 2014

Delivered at: Sydney

Delivered on: 1 July 2014

REPRESENTATION

The Applicant: The Applicant appeared by telephone link with the assistance of a Cantonese interpreter

Solicitor for the First Respondent: Ms A Carr of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The Application filed on 11 February 2014 is dismissed.

2. The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZTWC.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 304 of 2014

SZTWC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in the Federal Circuit Court by the applicant on 11 February 2014 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”), seeking relief in the form of constitutional writs against the decision of the Refugee Review Tribunal (the “Tribunal”) dated 31 January 2014. The Tribunal affirmed a decision by a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), not to grant the applicant a Protection (Class XA) visa.

2. By orders of the Court made on 4 March 2014 the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing by 18 March 2014. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.   

3. By orders made by the Court on 4 March 2014 the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review by 18 April 2014 and any additional affidavits upon which he wished to rely.  The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing.  The applicant elected not to file any amended application, affidavit evidence or written submissions.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a male citizen of China who arrived in Australia on 12 July 2009. The applicant applied for a Protection visa on 18 October 2013 (CB 23). The applicant did not advance claims to be owed protection obligations pursuant to s.36(2)(a) of the Migration Act, but instead claimed to satisfy the criterion in s.36(2)(aa) on the basis that he was unable to afford certain medical treatment in China and because he feared harm from certain money lenders.

3. A delegate of the Minister refused the visa application on 19 November 2013 (CB 95) and the applicant sought review of that decision by application to the Tribunal lodged on 22 November 2013, (CB 111) to which he attached, inter alia, a copy of the delegate's decision record.   The applicant attended a hearing before the Tribunal on 30 January 2014, (CB 165) at which determinative issues were traversed.

4. By decision dated 31 January 2014 (CB 169-176) (the “Decision Record”), the Tribunal affirmed the decision under review refusing to grant the applicant a protection visa. 

The Tribunal's Decision

1. The Tribunal considered the applicant's evidence and claims, however, was not satisfied he had provided a credible account (CB 174 at [26]).  Although the Tribunal accepted the applicant had taken out a loan to finance his travel to Australia, it was not satisfied the loan had not been repaid or the applicant faced harm from the lender(s) (CB 174 at [28]).  The Tribunal found the applicant's claims with respect to the loan were contrived (CB 174 at [28]).

2. The Tribunal accepted the applicant suffered from a certain medical condition, however, found the applicant had exaggerated its severity and the impact it would have on the applicant's ability to support himself.  The Tribunal found the applicant would have access to the medical care available to all citizens of China (CB 175 at [29]).  The Tribunal rejected as not credible the applicant's claim that he would be discriminated against, in respect of potential employment, for reason of his medical condition (CB 175 at [30]).

3. The Tribunal considered the applicant's claims against the complementary protection criterion at [32]-[38] of the Decision Record (CB 175-176).  It observed that its findings concerning the lack of credibility of the applicant's factual claims remained pertinent (CB 176 at [36]).  With respect to the applicant's medical condition, the Tribunal found this condition did not give rise to any complementary protection obligation, concluding at [37] (CB 176) that the applicant would be able to work and obtain medical care in China.

Current Proceedings

1. The orders sought in the application filed on 11 February 2014 are as follows:

   1.  An order that the decision of the tribunal or Minister be quashed.

   2.  A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.

   3.  A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.

   4.  An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.

   5.  I plead for an order not to remove me from Australia.

   6.  I plead for an order to redirect the Tribunal’s decision and order the Department to take this matter for further consideration.

   7.  I plead for an order to consider me for complementary protection.

2. The grounds of the have been expressed in the form of a submission and state:

   1. The decision made by the R.R.T. Member regarding my case is wrong.

   2. The R.R.T. deprived me of natural justice.

   3.  The situation had I had to go back home would be very critical and life threatening to myself.

   4. I owe a large sum of money in China and if I returned back home, I will not be able to repay the loan which will lead to my debtors taking violent actions against me.

   5. Since me not being able to repay my debtors in China, they can kill me and I fear for the safety of my life.

   6. Lots of threats have been sent by the debtors in China as to my significant harm to my vulnerability not being able ti pay my debt, which is never going to be settled.

   7. I would not be able to work back home because of my illness and I will suffer discrimination from employers.

   8. I would require about 100,000RMB for my illness’s surgery in China, which I will not be able to afford it, resulting jeopardising my health for the rest of my life.

   9.  Due to the extraordinarily high medical fees for my serious health condition surgery, I will be deprived to have one and I will suffer for the rest of my life.

Applicant’s Submissions

1. The applicant confirmed that he had not elected to file an amended application, any supporting affidavit material or written submissions.  When invited to make oral submissions he indicated he had been previously advised (by an unidentified party) that if he was to return to China his health could be managed by long-term medication and that he could continue to work.  However, prior to being sent to Villawood Detention Centre, he claims that he was advised by a medical practitioner that long term medication for the treatment of his medical condition was not suitable for him.  He stated that long term medication would have serious side-effects.  The applicant further indicated again without making specific reference to who made the statement that he could be treated in China with long-term medication and that he would be able to undertake work while observing that medication regime.  The applicant indicated that this view was not correct as in China no employer would employ someone with a serious illness being treated with long term medication.  

Minister’s Submissions

1. The Minister submits the applicant's grounds repeat his claims to fear harm in China, and allege that the Tribunal's decision was wrong.  The applicant's grounds accordingly seek impermissible merits review of the Tribunal's decision. 

2. The only jurisdictional error alleged on the part of the Tribunal is an unparticularised allegation that the applicant was denied natural justice. The Tribunal's obligations to afford natural justice to an applicant are set out in Division 4 of Part 7 of the Act. Section 422B of the Migration Act has the effect that the relevant provisions are an 'exhaustive statement' of the natural justice hearing rule. In this instance case, the Tribunal complied with its obligations pursuant to Division 4 of Part 7.

3. In response to the applicant’s oral submissions, Ms Carr indicated that the applicant’s claim regarding his illness was addressed by the Tribunal in its findings at [29]-[30] of the Decision Record as follows:

   29.  The Tribunal accepts the applicant’s claim that he suffers from a medical condition, ulcerative colitis, which will require medical attention in the future.  However, the Tribunal has formed the view that the applicant has exaggerated the severity of his illness, and the impact it will have in his ability to support himself, to enhance his application.  The applicant claims that he will need 100,000 RMB for an operation relating to his condition.  However, from other evidence provided, it does not appear that the applicant’s condition is sufficiently severe to warrant such a procedure.  The information provided indicates that the applicant’s condition can be managed with medication.  The applicant did not provide evidence regarding his ability to access to the same medical care as other citizens of China; and it is not satisfied that he will be prevented from accessing medical care for a Convention related reason.  

   30.  The Tribunal has considered the applicant’s claim that he will be discriminated against by employers in China because of his medical condition.  The applicant was only able to provide limited evidence to support the claim.  He stated that he will have to undergo medical tests and when those tests revealed that he suffered from a disease he would not be offered employment.  However, the Tribunal is not satisfied that these conditions exist in China or that persons seeking employment have to undergo thorough medical tests or that Chinese citizens are denied employment if they have an illness.  The Tribunal has formed the view that the applicant was able to work in Australia, despite his health problems, and a similar situation will exists in China. It finds that the applicant’s claims that he will be discriminate against and denied employment because of his illness lacks credibility.  It finds that the claim was contrived to enhance his protection visa application.

   (CB 175)

4. Ms Carr indicated that the above findings were made in light of the credibility findings made by the Tribunal in respect of the applicant at [26] of the Decision Record, where it stated:

   26. The Tribunal has considered the evidence provided by the applicant in support of his claims and it is not satisfied that the applicant provided a credible account of his circumstances.

   (CB 174)

5. Ms Carr contends the Tribunal did not find what types of medication that the applicant could access in China.  The finding at [25] of the Decision Record (CB 174) was that the information provided indicates that the applicant’s condition can be managed with medication.  The Tribunal found that the applicant had not provided evidence regarding his ability to access such medication, nevertheless, it found that the applicant would have access to the same medical care as other citizens of China. 

6. Ms Carr also referred to the applicant’s oral submissions in regards to his employment and to the relevant findings made by the Tribunal at [30] of the Decision Record (reproduced above).  The Tribunal found that it was not satisfied that a person seeking employment had to undergo medical tests in China or that they would be denied employment if they had an illness.  In making that finding, the applicant was only able to provide limited evidence in respect of this issue.

Consideration

1. The material contained in the Decision Record indicates the application belongs to the Han ethnic group, was born in Jiangmen City in Guangdong on 8 January 1986, and is fluent in Mandarin and Cantonese and has limited use of English.  He has never married and he states that he is a Buddhist (CB 170 at [3]).  The applicant has completed 16 years of education, including three years at Guangdong University and worked as a management clerk for the Environmental and Health Bureau of Jiangmen City.  His parents and one brother remain in China (CB 170 at [3]).

2. The applicant’s circumstances are conveniently summarised in the Tribunal’s Decision Record where it stated at [4]-[5]:

   4.  The applicant stated that his migration agent told him that he did not meet the refugee criteria but he could satisfy the complementary protection provisions.  He stated that he wanted to apply for Ministerial intervention.  The applicant indicated that he took a loan to finance his study in Australia but three months after he arrived he stopped studying with a view of working to repay the loan.  The applicant stated that he borrowed 120,000RMB (approximately A$22,500 according to on 29 January 2014).  He stated that his parents were peasants and his salary in China was minimal.  He stated that under the terms of the loan he had to pay 15% interest per annum.  He claimed that he was only able to send back to China A$15,000 which covered the interest.  The applicant stated that in early 2012 he became ill and he was unable to work.  He stated that he was treated in hospital for one month.  He indicated that in April/May 2012 he obtained work in a restaurant and he rented a room from the owner.  The applicant claimed that in July 2013 he became ill again and his employer and a woman who had ‘adopted’ him, Feng Lian Ma, paid his medical expenses.  He stated that on 19 September he was detained by the Department.

   5.  The applicant stated that he wanted to have his illness treated in Australia because if he returned to China he could not afford to pay the “extraordinarily high medical fees”.  He stated that Ms Ma and her six daughters were willing to meet his medical and living expenses.  He stated that he heard that if his illness was not treated it could be fatal.  The applicant stated that he will be prevented from obtaining employment in China because employers will discriminate against him.  He stated that he still owed a “large sum of money in China” and if he returned and could not repay the loan, his “debtors may take violent actions against” him and he “may die”.

   (CB 170)

3. The Court Book indicates that the applicant was interviewed by compliance officers at Mona Vale Hospital in Sydney on 12 March 2012 and again on 19 September 2013 at an address in Hurstville, NSW where he was detained on the basis that his previous visa had expired on 30 April 2012 and that there was no ongoing application for renewal.  During that interview the applicant indicated that he was unwilling to depart, he could not support himself without working and that he had been previously granted a bridging visa on the grounds that he was preparing to depart. 

4. On 18 October 2013 Mr S. Chan, registered Migration Agent, informed the Department of Immigration that he had been appointed to represent the applicant who was at that time in immigration detention at Villawood Immigration Detention Centre.  On the same day a Protection visa application with detailed supporting documentation that had been prepared by the Migration Agent was filed with the Department.    

5. On 19 November 2013, the Department wrote to the applicant informing him that his application for a Protection (Class XA) visa had been refused and advising him of his review rights. 

6. On 21 November 2013, IM Global Australia Pty Ltd forwarded an application for review of the delegate’s decision to the Tribunal.  The Department acknowledged the receipt of the application on 26 November 2013.  On 29 November 2013 the Tribunal invited the applicant to appear at a hearing before the Tribunal on 30 January 2014.

7. The Tribunal hearing was held on 30 January 2014 and was attended by the applicant, his Migration Agent, Mr Chan and two observers.  The hearing was conducted with the assistance of a Cantonese interpreter.

8. The Tribunal’s decision dated 31 January 2014 was forwarded with a notification letter bearing the same date.  This chronology has been included to indicate that the applicant was represented by a qualified Migration Agent shortly after the date of his detention up to and including the issuing of the Tribunal’s decision.  The Migration Agent has included a substantial amount of material concerning the applicant’s medical condition which was prepared by treating doctors, including a specialist gastroenterologist.

9. The Application filed in this Court on 11 February 2014 indicates that it has been prepared by the applicant and while he may have been assisted by some unidentified third party, the contents of the application demonstrate very limited knowledge of the nature of the proceedings and the remedies being pursued.  The document lists nine grounds of review, none of which identify a specific error made by the Tribunal and it is more appropriately described as submissions.  In very broad and general terms the applicant claims that the Tribunal’s decision is wrong and that he was denied natural justice, but neither of these claims are particularised or supported by written or oral submissions.    

10. The applicant has acknowledged that he has been advised by his Migration Agent that he does not have the basis for a Convention-related claim.  This acknowledgment is contained in the Tribunal’s Decision Record  at [4] (reproduced above at [21]) and again at [24], where it stated:

    24.  The applicant has indicted throughout the processing of his application that he did not have Convention related claims.  However, he did make claims and the Tribunal has considered those claims under the refugee and complementary protection criteria.

    (CB 174)

11. Despite this acknowledgment by the applicant, the Tribunal has adopted a reasonable approach to the applicant’s refugee criteria and this is reflected in the Tribunal’s comments at [27], where it stated:

    27.  The Tribunal does not consider it appropriate to take an overly stringent approach to questions of credibility but neither does it consider it appropriate to accept all claims uncritically.  The Handbook on Procedure and Criteria for Determining Refugee Status, suggest that it is “frequently necessary to give the applicant the benefit of the doubt… [but only after]… all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts”.

    (footnotes omitted)(CB 174)

1. The Tribunal has considered the evidence placed before it which has been prepared by the applicant’s Migration Agent and focuses predominantly on the details of the applicant’s medical condition.  Having undertaken this task, the Tribunal has reached the conclusion that it was not satisfied that there was a real chance that the applicant will be subjected to persecution in China for a Convention reason.

2. In respect to the broad claim made by the applicant that the Tribunal’s decision was wrong, is merely an attempt to invite the Court to enter into merits review, which is not available in this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 per Brennan CJ Toohey, McHugh and Gummow JJ at [31] where their Honours stated:

   31.  …any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…    

3. A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on lawfulness of the earlier decision.  A merits review provides a complete rehearsal of all of the issues relevant to application.  The reviewing body considers the relevant material as well as any new evidence.  The reviewing body makes a decision about the merits of the application unfettered by an earlier decision or the reasons of the decision-maker for the earlier decision. 

4. The other aspect of review concerns the applicant’s claim that he was denied natural justice. An exhaustive statement of the natural justice hearing rule has been incorporated in s.422B of Division 4, Part 7 of the Migration Act. In the absence of any specific claim that any particular provision of that division was not complied with, and on a fair reading of the Decision Record it is not apparent to this Court any breach of these provisions has occurred.

5. I now turn to the main basis of the applicant’s claim that arises under the complementary protection criteria of the Migration Act. The Tribunal summarises the key requirements of the criterion in the Decision Record at [33]-[35] as follows:

   33.  ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A); s.5(1).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. 

   34.  There are certain circumstances in which these is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;  where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   35.  The Act includes an intent requirement for torture; cruel or inhuman treatment or punishment; and degrading treatment or punishment.  There must be an act or omission which causes and is intended to cause harm.

   (CB 175-176)

6. Since the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act in March 2012, the Tribunal has been required to consider whether Australia owes applicants for Protection visas complementary protection. The applicant and those who are assisting him with his application are unlikely to be aware of the existence of this obligation in the Migration Act, but it was known to the Tribunal and the Tribunal has addressed this issue. A convenient summary of these new provisions are contained in the then Bill’s second reading speech on 24 February 2011. The new provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other refugee conventions and is summarised as follows:

   Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

   ·   the arbitrarily deprivation of life;

   ·   having the death penalty carried out;

   ·   being subjected to torture;

   ·   being subjected to cruel or inhuman treatment or punishment; or

   ·   being subjected to degrading treatment or punishment.

7. The criterion for eligibility for a Protection visa under s.36(2)(aa) of the Migration Act is that the applicant for a visa is:

   Protection visas

   (2) A criterion for a protection visa is that the applicant for the visa is:

   ...

   ·   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

8. The elements that must be satisfied are that:

   a)The applicant must be a non-citizen, other than a refugee;

   b)There are substantial grounds for believing;

   i)as a necessary and foreseeable consequence of being removed from Australia to the receiving country (in this case China); and

   ii)there is a real risk that the non-citizen will suffer significant harm.

9. Whether or not there is a “real risk that the non-citizen will suffer significant harm” for the purposes of s.36(2)(aa) is to be determined by reference to the same risk threshold as applicable to s.36(2)(a), for example, there is a real chance that the applicant will suffer the requisite type of harm: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [239]-[246] per Lander and Gordon JJ.

10. Two propositions flow from the decision in SZQRB (supra), being:

    a)It is erroneous to approach s.36(2)(aa) on the basis that the threshold of a “real risk” must be satisfied on the balance of probabilities (i.e. more likely than not): SZQRB at [247]; and

    b)Authorities such as Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considering the threshold of risk applicable to s.36(2)(a) are also relevant to considering whether there is a “real risk” of significant harm: SZQRB (supra) at [242].

11. In relation to the test for complementary protection, while the threshold of a “real risk” for the purposes of s.36(2)(aa) may be equivalent to the “real chance” threshold applicable to refugee claims it does not follow that the test in s.36(2)(a) and s.36(2)(aa) are identical. The clear language of s.36(2)(aa) suggests that satisfaction of the criterion requires not only the existence of a “real risk” of significant harm (i.e. a real chance), but also the existence of two other qualifying factors, namely:

    a)The Minister must have substantial grounds for believing that the real risk exists; and

    b)The real risk must be a necessary and foreseeable consequence of the removal of the non-citizen to the receiving country: see Minister for Immigration and Citizenship v Anochie & Anor (2012) 209 FCR 497 at [62] and [66] per Perram J.

12. This understanding of s.36(2)(aa) reflects both the statutory language of the subsection and the fact that the purpose of the subsection is to implement Australia’s international obligations in respect of non-refoulement: see Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011. These obligations are not identical to the obligations owed by Australia to respect of refugees: Anochie (supra) at [79]-[80] per Perram J.

13. In SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J at [26] her Honour stated:

    26. The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error...

14. The Tribunal carried out its assessment of the compliance with the criteria on the basis of the evidence before it and made the following finding:

    37.  The Tribunal has accepted that the applicant suffers from a medical condition which will require attention in the future.  The Tribunal has considered whether the applicant’s health problems fall within the complementary protection provisions.  It finds however that they do not.  The Tribunal is satisfied that the applicant will have the same access to medical care or that he will not be able to obtain medical care if he requires it.  The applicant claims that he will not be able to afford it because he will not be able to find work and medical care is very expensive in China.  The Tribunal has already found that the applicant’s claims regarding the nature of the medical care he will require, and his ability to access employment, were exaggerated or contrived to enhance the application.  The Tribunal is satisfied that the applicant will be able to work and obtain medical care in China.

    38.  Accordingly, it finds that there is no real risk that the applicants will suffer significant harm in China under the complementary protection criterion for any reasons provided.         

    (CB 176)

15. Although it is not clearly stated by the applicant I have assumed that he is making the same claims as addressed earlier in that the Tribunal decided his case incorrectly and that he was denied natural justice.  On a fair reading of the Decision Record and in the absence of any particular raising of an alleged error, I am satisfied that neither of these grounds of error can be claimed to apply to the consideration of the complementary protection criteria and consequently cannot be sustained. 

16. Consequently, the application should be dismissed with costs awarded to the Minister. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  1 July 2014