SZURK v Minister for Immigration

The applicant, an elderly Tamil woman from Sri Lanka, sought judicial review of a decision by the Refugee Review Tribunal (Tribunal) that affirmed a delegate of the Minister's refusal to grant her a protection visa. The applicant claimed to fear harm in Sri Lanka due to her ethnicity, imputed support for the LTTE, and her status as a widow without family support. The Tribunal had accepted some of her claims regarding her background and experiences but found inconsistencies and illogicalities in her evidence, leading it to reject her claims of persecution.

The central legal issue before the Federal Circuit Court was whether the Tribunal erred in its assessment of the applicant's claim for complementary protection under section 36(2)(aa) of the *Migration Act 1958* (Cth). Specifically, the applicant argued that the Tribunal improperly conflated the assessment of her Refugee Convention claims with her complementary protection claims, failing to give separate and adequate consideration to the latter. The applicant contended that even if her Refugee Convention claims were not substantiated, the material before the Tribunal gave rise to a claim for complementary protection that required independent assessment.

The Court found that the Tribunal had indeed erred by intermingling the Refugee Convention considerations with its complementary protection assessment. The Tribunal stated that for the complementary protection criterion, it was satisfied that Sri Lanka was the relevant receiving country, but then concluded there were no substantial grounds for believing the applicant faced a real risk of significant harm for the "same reasons" it had found she would not be harmed under the Refugee Convention. The Court noted that the applicant, though unrepresented at the Tribunal hearing, had raised factual claims that could support a complementary protection claim, such as threats of extortion and her vulnerability as a widow with health issues. The Court held that the obligations under the complementary protection criterion were not limited to claims specifically pleaded under that section and that a fair reading of the material indicated the factual propositions were relevant to both criteria.

Consequently, the Court ordered that a writ of certiorari issue to remove the Tribunal's decision of 24 April 2014 into the Court for the purpose of quashing it. Additionally, a writ of mandamus was ordered, requiring the Refugee Review Tribunal to redetermine the applicant's review application according to law.