The ground of review advanced below
9 I have also considered the reasons of the judge below. The appellant advanced only one ground of review in the Federal Circuit Court.
10 I was informed by the appellant that he was provided with some legal assistance in preparing his ground of review before the Federal Circuit Court. Counsel for the Minister provided to me a copy of a written submission that had been provided to the judge below in support of that ground.
11 The submission made to the Federal Circuit Court was that the Tribunal, when considering complementary protection, conflated the test in relation to refugee claims made by the appellant by considering whether there was harm for a Convention reason (particularly by reason of extremist groups targeting religious minorities) when that was not part of what was required in evaluating the question of complementary protection.
12 The Tribunal reasoned in the following way when dealing with complementary protection:
(1) It first stated, correctly, that it needed to consider whether the alternative criteria in s 36(2)(aa) of the Migration Act applied, which is stated as 'whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act';
(2) It then listed four types of harm that had been identified by the appellant (then applicant). Significantly, each type of harm was expressed in terms that covered the same types of harm that had been raised in support of the Convention based claims made before the Tribunal. In particular, the risk of harm was expressed as arising for reasons that had been advanced as Convention reasons;
(3) It then referred to its earlier finding that it had not accepted there to be a real risk of serious harm for Convention reasons;
(4) It stated, correctly, that the real risk test for complementary protection and real chance test for Convention claims imposed the same standard; and
(5) It reasoned from its rejection of harm in support of the refugee claims that there was no real risk of harm to support a claim of complementary protection.
13 By that process of reasoning the Tribunal did not fail to apply the correct legal test. Its conclusions were a consequence of the same risk of harm (including the reasons for that risk) being relied upon to support both claims. Therefore, when the Tribunal rejected that risk there was no further risk to consider when it came to complementary protection. The argument advanced for the appellant before the judge below would only have merit if there was indeed a risk that was raised and the risk was said to arise for reasons other than Convention reasons (and that matter was not separately considered by the Tribunal in the context of complementary protection).
14 The written submissions raised one matter which it contended was of that character. It related to 'generalised violence'.
15 In the course of reasoning as to the Convention claims the Tribunal referred to a Department of Foreign Affairs and Trade assessment regarding 'the risk of generalised violence'. It found that there was some level of risk to the appellant 'in the context of generalised violence'. However, it then found that 'the risk is remote' and that it 'does not accept that there is a real chance that he would be targeted for harm based on his Shia religion, his membership of a particular social group of Turi tribe from Kurram Agency or any other Convention reason' (at para 38 of the Tribunal's reasons).
16 The use of the conjunctive 'and' is important in the making of these findings. The risk is found to be both remote and also one that would not occur for a Convention reason.
17 In those circumstances, there was no finding of a risk of harm from generalised violence. Accordingly, there was no failure by the Tribunal to apply the correct legal test and properly discharge its statutory function by not considering whether there was a risk of harm through generalised violence which the appellant might suffer irrespective of his religious, ethnic and other cultural associations.
18 It follows that there was no error in the finding by her Honour below that there was no jurisdictional error arising from those matters.