FEDERAL COURT OF AUSTRALIA

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The name of the second respondent be amended by substituting “Protection” for “Merits”.

3.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This appeal is from the judgment and orders of the Federal Circuit Court of Australia dated 26 June 2013 dismissing an application made on 27 November 2012 as amended on 6 March 2013.

2    The relevant background as stated by the primary judge is as follows. The appellant is a citizen of Afghanistan. He is of “Muslim Shia” religion and Hazara ethnicity. The appellant arrived in Australia on 6 December 2011. He was classified as an “irregular maritime arrival”. On 12 March 2012 the appellant requested a Protection Obligations Determination of his claims to protection. On 6 April 2012 the appellant completed an “Irregular Maritime Arrival Entry Interview”. On 22 May 2012 a departmental officer found that the appellant was not a person to whom Australia owed protection obligations, either on a Refugees Convention basis or on complementary protection grounds. The appellant’s Protection Obligations Determination was referred for Independent Protection Assessment. On 12 July 2012 the appellant was interviewed by the Independent Protection Assessor (the Assessor) for the purpose of the Independent Protection Assessment. On 8 August 2012 the Assessor recommended to the first respondent that the appellant not be recognised as a person to whom Australia had protection obligations.

3    The relevant provisions of the Migration Act 1958 (Cth) (the Act) were:

36  Protection visas

             (1)    There is a class of visas to be known as protection visas.

Note:          See also Subdivision AL.

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

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(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

…

              (2A)    A non-citizen will suffer significant harm if:

                        (a)    the non-citizen will be arbitrarily deprived of his or her life; or

                         (b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)      the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

In s 5(1) of the Act the relevant definitions were:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

            (c)    that is not inconsistent with Article 7 of the Covenant; or

           (d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

            (a)    that is not inconsistent with Article 7 of the Covenant; or

            (b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

            (c)    for the purpose of intimidating or coercing the person or a third person; or

            (d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

            (e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

The Assessor’s findings

4    The findings and reasons of the Assessor were as follows, focusing ultimately on her treatment of the appellant’s complementary protection claims which were the subject of the application to the Federal Circuit Court.

5    The Assessor said, under the heading Findings and Reasons, that the appellant is a national of Afghanistan and assessed his claims against Afghanistan as his country of nationality. The Assessor accepted the appellant is a Hazara Shia from Nawur District, Ghazni Province.

6    The Assessor accepted that Hazaras had been subjected to violence and discrimination in the past because of their race and religion. The Assessor accepted that up until 2001 the Taliban regime severely restricted their movements by keeping them contained in Hazarajat and committed atrocities against them. The Assessor accepted that many Hazaras regarded Pashtuns and the Pashtun nomad Kuchis as being as much of a risk to them as the Taliban and referred to them as Taliban as the appellant had.

7    The Assessor did not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns because of their race and religion. The Assessor did not accept that the appellant’s ethnicity and religion by themselves meant that if he returned to Afghanistan in the reasonably foreseeable future he faced a real chance of harm amounting to persecution by Pashtuns, Taliban or by government authorities.

8    The Assessor said this did not mean that a Hazara Shia could not be found to be a refugee on the basis of his own individual circumstances.

9    The Assessor said the appellant claimed he fled from Afghanistan because the Taliban came to his welding shop and asked him to change religion and participate in Jihad against the Americans. The appellant claimed he agreed to that request but then he “escaped” from the Taliban.

10    The Assessor did not find the appellant to be a truthful or credible witness. He made general claims about the situation for Hazaras in the relevant district which were not consistent with the country information or his own evidence about his experiences and activities and there were a number of problems with his claim as to why he fled Afghanistan. The Assessor set those out in detail.

11    The Assessor did not accept the appellant’s claim that the Taliban came to his shop in Ghazni City and asked him to change his religion and participate in Jihad against the Americans. It followed, said the Assessor, that she did not accept the claimant “escaped” from the Taliban. The Assessor found that the appellant had not provided a truthful account of why he fled Afghanistan.

12    The Assessor accepted that the appellant travelled in and out of his village in the relevant district to the city for work and that he travelled on the road between those places for over 10 years. The Assessor accepted that on one occasion when travelling on the road back to his village he was robbed and that on another occasion he was asked for money. The Assessor was not satisfied the appellant was specifically targeted or robbed by Taliban/Kuchis/Pashtuns because of his race, religion, imputed political opinion or because the state would not protect him. Given the Assessor’s acceptance at [126] of the appellant’s evidence that he had travelled to and from his village over a long period without experiencing “serious harm” and given the country information that the Assessor accepted at [124]-[125] as to the safety of travel in the region, the Assessor did not find the appellant’s claim that he faced persecution by Taliban, Kuchis and Pashtuns when travelling out of his village to the city to be credible.

13    The Assessor set out at [54] what the appellant had said to her about the Kuchis coming to his area and taking livestock. At [76] the Assessor set out further detail where the appellant responded, in relation to the nomads moving across Nawur each year, that in Nawur violence did not happen. At [132] the Assessor noted that at the interview the appellant provided evidence that his family did not rely on their land for economic survival. At [133], the Assessor accepted the appellant’s evidence that Kuchis pass through his area in the relevant district each year on their way to Behsud districts in Wardak province. The Assessor accepted that their cattle used the pastures and she accepted that on one occasion three years ago the Kuchis took the appellant’s animals. She accepted that the appellant’s village had never been attacked by Kuchis and that the appellant or his family had never been threatened or harmed by the Kuchis. The Assessor was not satisfied that the appellant faced a real chance of serious harm, amounting to persecution for any Convention reason from Kuchis.

14    The Assessor then considered whether the appellant could return to his village and live there without a real chance of serious harm amounting to persecution in the reasonably foreseeable future. The Assessor was not satisfied that the appellant faced a real chance of serious harm amounting to persecution if he returned to his village in the relevant district because he is a Hazara Shia.

15    The Assessor was also not satisfied that the appellant faced a real chance of serious harm, amounting to persecution for any Convention reason in relation to his travel in and out of his district.

16    The Assessor did not accept that the appellant would face a real chance of persecution because he would be returning to Afghanistan as a returnee/failed asylum seeker from a Western country.

17    The Assessor then wrote:

[144]     I have considered whether the [appellant] meets the alternative criterion in s. 36(2)(aa).

[145]    I did not find the [appellant] to be a truthful or credible witness. I do not accept that the Taliban asked him to fight against the Americans or change his religion. I do not accept that the [appellant] was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City. Given the country information and the [appellant]’s own experiences I do not accept that there is a [sic] there is a real risk that he or she [sic] will suffer significant harm by Pashtuns/Taliban,/Kuchis in relation to his travel on the roads. I do not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. I do not accept that the [appellant] will be denied protection, detained arbitrarily or tortured by the authorities. I am not satisfied on the evidence before me that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal there is a real risk that the [appellant] will suffer significant harm. I am not satisfied that the [appellant] is a person to whom Australia has protection obligations under s. 36(2)(aa).

The Grounds

18    The grounds of the application to the Federal Circuit Court, as pressed, were as follows, as there renumbered:

1.    The Second Respondent failed to take a relevant consideration into account under s36(2)(aa) of the Migration Act 1958, namely failing to consider whether the findings regarding the possibility of:

Particulars

(a)    robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or

(b)    any threat to the livelihood of the [appellant] from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) – noting that the ground claimed at paragraph [132] and held to have occurred at paragraph [133] of the decision was dismissed at paragraph [133] on the limited basis of lack of “real chance of serious harm” (as defined by s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis.

2.    The Second Respondent failed to consider all the integers of the complementary protection claims and thereby made a jurisdictional error

Particulars

That the second respondent failed to assess key integers of the [appellant]’s claims under s36(2)(aa) of the Migration Act 1958, namely failing to consider whether the [appellant]’s claims regarding the possibility of:

(a)    robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or

(b)    any threat to the livelihood of the [appellant] from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) – noting that the ground claimed at paragraph [132] and held to have occurred at paragraph [133] of the decision was dismissed at paragraph [133] on the limited basis of lack of “real chance of serious harm” (as defined in s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis.

3.     The Second Respondent misconstrued and misapplied the complementary protection criterion of section 36(2)(aa) of the Act and thereby made a jurisdictional error.

Particulars

That the second respondent failed to apply the correct test at law pursuant to s36(2)(aa) of the Migration Act 1958 to the [appellant]’s claims, namely failing to consider whether the [appellant]’s claims regarding the possibility of:

(a)    robbery and demands for money (as found in paragraph [126] of the recommendation) would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A); and/or

(b)    any threat to the livelihood of the [appellant] from the Kuchis arising from the theft of cattle and their use of his pastures would constitute degrading treatment or punishment or cruel or inhuman treatment or punishment for the purposes of s36(2A) – noting that the ground claimed at paragraph [132] and held to have occurred at paragraph [133] of the decision was dismissed at paragraph [133] on the limited basis of lack of “real chance of serious harm” (as defined by s91R of the Migration Act) amounting to persecution for any Convention reasons from Kuchis.

19    As so renumbered these grounds correspond to the grounds in the notice of appeal from the Federal Circuit Court to this Court filed on 4 July 2013. In each case it is said that the primary judge made a legal error in not finding that the Assessor had failed to take a relevant consideration into account; had failed to assess key integers of the appellant’s claims; and misconstrued and misapplied the complementary protection criterion.

The decision of the primary judge

20    The primary judge’s conclusions, in summary, were as follows. The Assessor did not believe the factual assertions made by the appellant involving, relevantly, the Kuchis, and travel to and from his village. The Assessor did not need to repeat her analysis of the appellant’s credibility in relation to complementary protection.

21    Further, there was no claim by the appellant expressly made, nor clearly arising, to say that he feared significant harm from the Kuchis in relation to livestock and such as to require the Assessor to address it in the way the appellant submitted she was. We set out the relevant part of [77] of the reasons of the primary judge because it was said by the appellant to manifest the error in respect of the Kuchi livestock claim:

… There was no claim by the [appellant] (or his representative) expressly made, nor clearly arising, to say that he feared significant harm from the Kuchis in relation to livestock and such as to require the assessor to address it in the way the [appellant] now says she was. Attempts to argue to the contrary now do not rise to reveal a claim expressly made or clearly arising.

22    The summary of the primary judge’s conclusions was:

82.    Ground one asserts a failure on the part of the assessor to take a relevant consideration into account in relation to s.36(2)(aa) of the Act. That is the Kuchi claim and the travelling claim. That ground, for the reasons set out above, is not made out. The assessor specifically took into account the travelling claim when considering s.36(2)(aa) (as it was put and explained to her by the [appellant] and his representative). Further, she was not required to relevantly deal with the Kuchi threat to livestock and the like, beyond the way that she did.

83.    Ground two, similarly, is not made out. When considering the complementary protection criterion, the assessor considered all integers of the [appellant]’s claims that were expressly made and clearly arising in the context of complementary protection. Ground two is not made out.

84.    Ground three asserts a failure to apply the correct test in relation to s.36(2)(aa) of the Act to considering the Kuchi claim and the travelling claim. The [appellant]’s submissions before the Court did not focus on any misapplication of the correct test as such. Rather, the [appellant]’s attack focused on the argument of a failure to take into account integers of the [appellant]’s claims. In that sense, ground three was no different to ground two and fails for the same reason as set out above in relation to ground two. In any event, there is nothing before the Court to show that the assessor misunderstood, or misapplied, the correct test as required by s.36(2)(aa) of the Act.

The parties’ submissions

23    The appellant submitted that there were three interrelated propositions arising from the complementary protection provisions and they were that the primary judge erred: in failing to find that the Assessor had failed to take relevant considerations into account; or in failing to assess the full integers of the appellant’s claims; or in failing to apply the correct test under complementary protection to the claims squarely raised by the appellant.

24    The appellant submitted that, having accepted that he had once been robbed and once asked for money when travelling in and out of his village for over ten years, the Assessor failed to consider whether, if he returned to Afghanistan, travelling in and out of his village would result in a real risk of the appellant suffering “significant harm” as defined in s 36(2)(aa) of the Act (“the travelling claim”). Similarly, with respect to the Kuchis, having accepted that on one occasion three years ago the Kuchis took the appellant’s animals, the Assessor failed to consider whether that would result in a real risk of the appellant suffering “significant harm” as defined (“the Kuchi claim”).

25    The appellant submitted that, in failing to consider these two claims in the context of complementary protection, the Assessor failed to address relevant considerations and, in doing so, failed to discharge her function according to law. The appellant submitted that [145] of the Assessor’s reasons in turn referred to findings of fact elsewhere in the recommendation which the appellant submitted were “bound up in Refugee Convention-related reasoning”. In the alternative, the appellant submitted that the Assessor’s failure to consider these claims, where such matters were before the Assessor, led to a constructive failure to exercise jurisdiction (with reference to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [23], [26] – [27], [86] – [89]).

26    In relation to the travelling claim, in oral submissions the appellant submitted there was an impermissible conflation of the language of s 91R on the one hand and s 36(2)(aa) on the other. The expressions in [145] of the Assessor’s reasons which the appellant particularly criticised were the statement that the appellant was not “targeted” by the Taliban/Kuchis Pashtuns when travelling on the road; that not all Hazaras are subject to “persecution” by the Taliban and Pashtuns; and that the appellant would not be “denied protection”.

27    In relation to the Kuchi livestock claim, the appellant submitted that the evidence regarding the Kuchis was squarely raised as a key integer of the appellant’s claims and referred to the appellant’s statutory declaration dated 12 March 2012 and to the entry interview. In oral submissions the appellant submitted that even if this material was never put as a complementary protection claim the Assessor still had to evaluate it. The fact that this material was considered under the Refugees Convention showed that it did arise. The appellant also referred to the statements under the heading “Relevant Background” at [4] and [5] of the reasons of the primary judge as indicating that his Honour had read the Assessor’s recommendation in the manner urged by the appellant, and his later findings were said to be inconsistent with that reading. In short, the appellant contended that the fact that the claim had not been put by him or his representatives specifically under the “label” of complementary protection was immaterial to the Assessor’s obligation to consider it in that context. The appellant referred in support of that submission to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [60] – [61].

28    The Minister adopted the reasons of the primary judge. He submitted that all of the grounds of appeal essentially asserted the same error, namely, that the Assessor failed to consider the appellant’s claims to fear harm while travelling outside his village, and of the Kuchis, when considering complementary protection.

29    The Minister submitted that the statement at [145] that “Given the country information and the [appellant]’s own experiences I do not accept that there is a real risk that he or she will suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads” directly and in terms of the language of 36(2)(aa) addressed the claims that the appellant faced a real risk of significant harm while travelling, given the appellant’s stated fears while travelling were of the Taliban and Kuchis.

30    With respect to the appellant’s Kuchi claim, the Minister submitted that on the basis of the Assessor’s findings at [132] and [133], there was no basis for the Assessor to find there was a real risk of significant harm from the Kuchis. Further, the appellant’s submissions did not explain how the grazing of cattle or even the possibility of future theft of animals by the Kuchis could possibly fall within either “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” given their definitions in s 5(1) of the Act. In any case, the Minister submitted, as the primary judge held, that the appellant never claimed to fear harm from the Kuchis as part of any complementary protection claim. There was no failure by the Assessor to deal with a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]. The claim to fear harm from the Kuchis was never put as part of the appellant’s complementary protection claims and was in any case negatived by the Assessor’s findings. In oral submissions the Minister accepted that the Assessor had not addressed the Kuchi livestock issue in relation to the complementary protection claim but submitted that there was no jurisdictional error in not so doing because that issue was not put and could not clearly arise, applying the approach in Dranichnikov.

Consideration

31    There was a suggestion in the appellant’s submissions that adverse credibility findings were not relevant to the assessment by the Minister under the complementary protection provisions: see [3(c)]. We do not accept this submission if intended to mean that whether or not a claimant is believed cannot be relevant to the Minister’s substantial grounds for believing there is a real risk of significant harm. Plainly, in our opinion, if the claimant claims that he or she has suffered significant harm in the past but his or her account of the constituent events is not believed, then that is relevant to the question for the Minister of substantial grounds for believing there is a real risk of significant harm.

32    In the present case the Assessor did not accept that the appellant was targeted by the Taliban/Kuchis/Pashtuns when travelling on the road from his village to Ghazni City, which was a factual component of the appellant’s claim. The Assessor did not accept that there was a real risk that the appellant would suffer significant harm by Pashtuns/Taliban/Kuchis in relation to his travel on the roads, which was another factual element. The Assessor did not accept that all Hazaras are subject to persecution by the Taliban and Pashtuns. These being the claims put we see no error in so assessing them. We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

33    In our opinion the major premise of the appellant’s submissions is that the reference in [145] of the Assessor’s findings incorporates the entirety of the reasoning of the Assessor, particularly the reasoning at [127] and [133], which refers to Convention reasons, and that therefore the findings in [145] should be read down accordingly. We do not accept that reading of the Assessor’s findings. As we have indicated, in our view [145] adequately sets out the Assessor’s findings of fact. The first sentence of [145] upon which the appellant primarily relies for his major premise is, in our view, an explanation by the Assessor of why it was that she did not accept the appellant’s claims which followed.

34    As to the specific criticisms made by the appellant of [145] of the Assessor’s reasons, read in context and so as to inform as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, we are not persuaded that those references establish that the Assessor impermissibly strayed from addressing the statutory question posed by s 36(2)(aa) in relation to the travelling claim. We accept that to some extent the Assessor was restating what she had earlier found but we do not regard those restatements, in the terms in which they are made in [145], as irrelevant to the s 36(2)(aa) question given the claim made that the routes to and from Ghazni province were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban as a Hazara: see [30] of the Assessor’s reasons and the claim made at page 45 of the appellant’s lawyers’ 46 page submission to the Assessor. For completeness we also note that protection obligations are the subject matter of s 36(2)(aa) and that obtaining protection from an authority of the country is referred to in s 36(2B). Both these provisions form part of the complementary protection criterion for a protection visa.

35    As to SZFSK v Minister for Immigration [2013] FCCA 7, relied on by the appellant at [20] of his written submissions, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57], each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. In the present case, the Assessor specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant’s claim.

36    As to whether the claim regarding the Kuchis was squarely raised as a key integer of the appellant’s claims, we agree with the conclusions of the primary judge at [75]-[77] that the appellant’s legal representative’s long and detailed submissions, when arguing that the appellant met the complementary protection criterion, made no specific reference to the appellant’s Kuchi claim. The basis for the appellant’s legal representative’s argument before the Assessor that the appellant met the “significant harm” criterion was the absence of State protection in circumstances where the authorities and the Taliban would torture and kill Hazaras and Shias and that the appellant would also be at risk because he would be a returnee from a Western country and that he would suffer degrading treatment or punishment from the Taliban because he would be unable to travel freely. There was no claim by the appellant or his representative to say that he feared significant harm from the Kuchis in relation to livestock so as to require the Assessor to address it. There was no such claim expressly made or clearly arising. In our opinion the Assessor accurately summarised the appellant’s submissions in relation to the complementary protection criterion as, first, that the routes to and from Ghazni were insecure and the appellant would suffer significant harm from cruel and inhuman treatment or punishment by the Taliban and, second, that if he returned to Afghanistan his identity and whereabouts would become known to the Taliban and Pashtuns and he would be subject to degrading treatment and punishment.

37    We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.

38    It follows that we reject the submission that the Assessor failed to address relevant considerations and thereby failed to discharge her function according to law. We also reject the alternative submission that the Assessor’s failure to consider the appellant’s claims led to a constructive failure to exercise jurisdiction. We also reject the submission that the Assessor failed to apply the correct test to the claims. As will be apparent, our reasons differ to some extent from those of the primary judge.

39    Nothing that we have said should be taken to suggest that the facts on which the appellant relied could amount to cruel or inhuman treatment or punishment or to degrading treatment or punishment as defined in s 5(1) of the Act. For example, we note the finding that the appellant’s village had never been attacked by Kuchis and that the appellant or and his family had never been threatened or harmed by the Kuchis.

Conclusion

40    The first respondent’s name should be amended to “Minister for Immigration and Border Protection”. The second respondent’s name should be amended by substituting “Protection” for “Merits”.

41    The appeal should be dismissed with costs. We note that in the written submissions on behalf of the appellant it is contended that leave to appeal should be granted with costs but counsel for the appellant accepted that that is a mistake as no leave to appeal is required.

Associate:

Dated:    13 November 2013