SZTMQ v Minister for Immigration and Border Protection

Federal Court of Australia|2015-06-02|Before: Mr J, McKerracher J

REASONS FOR JUDGMENT 1 The appellant appeals from the judgment of the Federal Circuit Court of Australia in SZTMQ v Minister for Immigration & Anor [2015] FCCA 381 delivered on 24 February 2015. The primary judge dismissed the application for judicial review of the decision by the Refugee Review Tribunal (RRT) dated 16 October 2013. 2 The appellant is a male citizen of the Islamic Republic of Pakistan. The appellant's mother is deceased, having died in an accident in 2001. His family otherwise reside in Pakistan. He is a follower of the Shia faith and of Bangash ethnicity. The appellant was educated from 1998 to 2011, he worked as an assistant at his father's shop from 2003 to 2008 and briefly also worked as an IT assistant. 3 The appellant claims to fear harm from the Taliban or their supporters in Pakistan as he is of the Shia faith and Bangash ethnicity. Specifically, the appellant asserts that he received death threats and menacing phone calls from a named person and then from random telephone numbers on a weekly or fortnightly basis from December 2010 until December 2011. 4 On 2 November 2012, the appellant applied to the Department of Immigration and Border Protection for a Protection (Class XA) visa. On 25 March 2013, the delegate to the Minister refused the visa application. The delegate's decision was affirmed by the RRT on 16 October 2013. Judicial review was then refused in the Federal Circuit Court. 5 On 10 March 2015, the appellant filed an appeal in this Court. He now relies upon an amended notice of appeal, which was filed in Court with leave on the day of the hearing, 7 May 2015.

THE TRIBUNAL 7 Much of the argument concerns [31] of the RRT decision. To place that in context, [28] to [34] of the RRT decision read as follows: 28. I have carefully considered the claims and evidence of the applicant. As detailed above he claims to fear harm in Pakistan as he is Shia and specifically as he has received threatening phone messages initially from a person named [Mr A] who was in his classes at [College 1] and then from random numbers on a weekly or fortnightly basis. This was from about December 2010 or January 2011 to December 2011. He received no threats after this. He had known [Mr A] as they were in classes together - from it seems [date deleted] (when he commenced at [College 1]). He claims they had been friends and even had tea together until one day it was found out he was Shia, and then after this the threats started. Despite received (sic) these threats to his phone number for about a year he did not change his number. He received no threats from December 2011 and departed Pakistan in April 2012. This followed on his leaving college in about February 2012 as he had obtained an IT job. He also claims that he had seen [Mr A] on one occasion in Peshawar in about March 2011 when he had walked towards him with some other men. The applicant ran off and went back to his hotel. He lived in Parachinar after this without incident for about a month. 29. I have serious difficulty in accepting these claims of being specifically targeted and threatened by text messages as true. I do not accept as reasonable to believe that [Mr A] would not have known the applicant was Shia from when they first met. He said they had much in common, exchanged phone numbers and communicated often until [Mr A] found out that he was Shia. The applicant's name is [name deleted]. From an initial introduction [Mr A] would have known he was Shia. I also do not accept as reasonable to believe, if the applicant was receiving threatening phone text messages as claimed, he would not have just used his other number. He could easily have notified his friends and family of the changed number. That he did not indicates he was not receiving the texted threats as claimed. I note as well that despite claiming to fear harm from [Mr A], and others, during this period he continued to attend the same college and courses and live at student accommodation. This ongoing usual activity indicates that he was not under any threat from anyone. I do not accept that he was able to avoid harm by changing classes and times and routes of travel. I find that he has fabricated this claimed adverse interest in him by [Mr A], his friends and the Taliban so as to enhance his claims for a protection visa. I further do not accept as reasonable to believe that [Mr A] followed him in the market in Peshawar. I find that the applicant is not a credible witness. I do not accept any of these claims as true. 30. I am prepared to accept that the applicant is Shia from the Bangash tribe. The applicant has said he does not fear any harm on account of being Bangash. I note that his advisors have made some submissions that he does fear harm on this account. I do not accept that he does. I accept that his family live in Parachinar. I accept as true that nothing has happened to them. I do not accept as reasonable to believe in the circumstances that they would not tell him if there were specific problems or issues. I accept that Parachinar has been the location of attacks over the years by Taliban and other extremists against not only Shia but also Sunni people living in the area. The area has been under the protection of Bangash and Turi tribes' militia for some years, and is now under the security of the Pakistan National army. The tribal militias form part of the Pakistani State security system. I accept that there are random attacks, and I am aware of bomb blasts in the Parachinar market in 2008 and 2012. These are random attacks and harm all citizens of whatever religion and whether Shia or Sunni. 31. The applicant, on the accepted evidence, has not experienced any harm in Parachinar. He lived there from when the family moved from their village in 2006 until about [date deleted] when he went to Rawalpindi for study. He returned home on occasion including a month for his sister's wedding in March 2011. He again returned in 2012 when he was leaving from Pakistan. I appreciate he is aware of people being harmed and killed while travelling on convoys protected by the army, and I appreciate that as a consequence he has travelled to Parachinar by air on occasion, and there is a cost associated with this. I do not accept that the applicant has a level of profile such that he would be targeted for harm by the Taliban or any other such group. I find that he can return to live with his family in Parachinar. The applicant's agent has made a submission that state protection is in effect inadequate. I do not accept that this is so. The Pakistani army has been in control of the area for the past few years, and in conjunction with local tribal militias (including that of the Bangash tribe) provide protection. The Tribal militias, as noted above, are part of the security system in Pakistan. No country can guarantee the safety of its citizens from harm caused by non-state persons. I find that the protection afforded by the Pakistani state is of a reasonable level of protection, I find that State protection is afforded to the people (whether Sunni or Shia or of whatever tribe) of the Kurram Agency against various insurgents such as Taliban and their supporters. 32. Overall, I find that the applicant's fear of harm is not well founded in that there is a remote and insubstantial chance of him being harmed in the reasonably foreseeable future on his return to Pakistan. 33. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). 34. I have also considered the alternative criterion in s.36(2)(aa) and whether the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). This requires a consideration of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion'). (emphasis added)

PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT 8 In the Federal Circuit Court the appellant relied on an amended application filed in court at the hearing on 16 February 2015. The appellant's two grounds alleged, first, that the RRT erred in making a state protection finding said to be made in the context of complementary protection and, secondly, that the RRT had erred by not considering state protection in the context of complementary protection. Essentially, the appellant argued in relation to his second ground that, in order to discharge its statutory obligations, the RRT was obliged to consider s 36(2B)(b) of the Act. 9 His Honour rejected the first ground, finding (at [14]) that [31] of the RRT's reasons was directed to Convention related harm, not its ability to protect him from serious harm. 10 His Honour rejected the second ground concluding that Minister for Immigration & Citizenship v MZYYL (2012) 207 FCR 211, on which the appellant relied, was distinguishable. His Honour held (at [24]) that: … s.36(2B) does no more than provide a non-exhaustive list of potential bases for concluding that an applicant does not face a real risk of significant harm in a third country. It is not a mandatory test to which reference must be made in all cases. 11 Importantly, his Honour went on to note that the section as a whole did not require consideration of provisions which were, or because of fact finding had become, irrelevant to the decision. His Honour found (at [24]-[25]) that in circumstances where the RRT had rejected the appellant's factual claims, s 36(2B)(b) did not have to be considered because the question of the availability of state protection had become irrelevant.

APPEAL GROUNDS 12 The appellant contends by amended grounds that: (a) the primary judge erred by finding that the RRT did not apply an incorrect test of a 'reasonable level' of state protection under the complementary criterion in violation of s 36(2B)(b) of the Act; and (b) alternatively, the primary judge erred by finding the RRT was not obliged to consider the complementary protection claims of the appellant as whole, applying MZYYL.

Ground 1 - Incorrect test - 'reasonable level of protection' as opposed to 'real risk' of significant harm' pursuant to s 36(2B)(b) of the Act 13 The appellant raised several arguments in support of ground 1. First, the appellant disagreed with his Honour's finding (at [14]) that 'the Tribunal's comments … concerned the ability of the state of Pakistan to protect the applicant from Convention-related harm, not its ability to protect him from serious harm.' It is said that the primary judge therefore fell into error. 14 Related to this, it was asserted that, secondly, the primary judge wrongly observed that the RRT's reasoning was divided into two parts when his Honour said (at [15]): In broad terms, the Tribunal's reasoning was divided into two parts. In the first, paras 29-33, it considered whether the applicant had a well-founded fear of persecution in Pakistan for a Convention reason and in the second, paras 34-37, it considered whether the applicant faced a real risk of significant harm if returned to Pakistan. 15 The appellant contends that was not so, and that a closer look at the relevant paragraphs of the RRT decision record reveal that there was no neat delineation of the consideration of the appellant's claims under the refugee criterion or the complementary criterion as found by the primary judge. It is said that [28]-[32] of the RRT's decision considers the claims of 'harm' generally. There is no specific mention of serious harm under the refugee criterion or significant harm under the complementary criterion. Moreover, 'harm' is said to be discussed and presented in those paragraphs in its generic form and is not categorised or delineated or particularised at any stage as relating to 'serious harm' or 'significant harm'. 16 Third, it is argued that the RRT impermissibly conflated its consideration of the appellant's claims of 'serious harm' and significant harm' into a general discussion of 'harm' per se throughout the relevant paragraphs. The RRT considered and rejected the appellant's claims with regard to the threatening phone calls (at [29]). The RRT then considered and rejected the claims of the appellant with regard to being of the Shia faith and Bangash ethnicity (at [30]-[31]). According to the appellant, these claims may have applied to both the refugee or complementary criterion, but neither were discerned and there was, as a consequence, a conflation and confusion of the RRT's dealings with the appellant's claims of serious and significant harm. 17 Fourth, the appellant argued that the relevant and specific error of the RRT (at [31]) and the primary judge (at [14]) concerned the discussion of the adequacy of state protection in Pakistan. The appellant says: [t]his necessarily and inevitably invoked both the refugee criterion and the complementary criterion, in particular the test under section 36(2B)(b) of the [Act]. Even if the RRT had been discussing the refugee criterion throughout the relevant paragraphs, the member changed tact and specifically raised the issue of state protection under the complementary criterion at AB14[31] and then proceeded to make an erroneous finding that the 'protection afforded by the Pakistani state is of a reasonable level of protection,' which was an incorrect test, unknown to law, and in violation of section 36(2B)(b) of the [Act]. 18 Fifth, it is contended that the RRT applied its findings to the refugee criterion and then simply re-applied the same findings to the complementary criterion. For example, the appellant points to the RRT's reasons (at [36]) ,where it was said that: the applicant's advisors have made submission on complimentary protection as detailed above. … For the same reasons as detailed above, I do not accept that [the appellant] has received any threatening text messages. … 19 It is said that this resulted in a conflation of the claims of serious and significant harm and the imposition of an incorrect test and jurisdictional error by the RRT.

Consideration of ground 1 20 Ground 1 cannot succeed. On the state protection argument, the primary judge was correct to conclude that the RRT made no state protection finding with respect to the complementary protection criterion. The state protection finding made by the RRT (at [31]) was undoubtedly made by reference to the appellant's Convention claims, as is evidenced by the conclusion at [32] and the separate and discrete consideration of complementary protection from [34] onwards. Further, the state protection finding in fact made at [31] was without error and was not material to the decision, the RRT having concluded (at [29]) that the appellant's primary claim was fabricated. 21 The only reason that the RRT referred in [31] of the reasons to the question of state protection was not because that was a topic to which the delegate independently turned his mind, as is contended for the appellant, but because the appellant's own agent had expressly made a submission under the sub-topic of 'State Protection', under the main heading of 'protection under the refugees' convention'. 22 In contrast to the findings of the RRT, the appellant's then agent had submitted (at [34] of the agent's submissions) that the Pakistani authorities were powerless to protect members of religious minority groups, such as those to whom the appellant belonged, and that such state protection was only likely to decrease in the reasonably foreseeable future. These submissions were expressly made under the topic of protection under the Convention. The agent's submissions were then advanced under the separate main heading of 'complementary protection'. 23 In light of the presentation of the appellant's claims in that manner, the topic being considered at [31] was claims under the Convention. That is supported by the fact that [32] and [33] of the RRT's reasons are specifically directed to the Convention claims. The RRT said (at [33]): For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention … 24 That is further supported by the opening sentence of paragraph [34] which reads: I have also considered the alternative criterion in s 36(2)(aa) and whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). 25 The conclusions of the RRT on this topic were specifically directed to 'significant 'harm'' as defined in s 36(2A) and s 5(1). The RRT said (at [35] and [36]): 35. As detailed above, '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 or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act. 36. The applicant's advisors have made submissions on complimentary protection as detailed above. I note that they refer to the applicant and his family having been seriously harmed in the past. With respect that is not the evidence. The applicant's family on the evidence of the applicant have never been harmed by anyone. On the accepted evidence the applicant has also not been harmed in Pakistan. For the same reasons as detailed above, I do not accept that he has received any threatening text messages and I do not accept that [Mr A] or anyone else has sought to harm him at any time. The applicant has said he does not fear harm on account of being Bangash. Whilst, I accept that he is Shia I do not accept that this of itself is sufficient for him to have substantial grounds for believing he would suffer significant harm as a necessary and foreseeable consequence of his return to Pakistan in particular to the Parachinar area. (emphasis added) 26 Throughout the passages of the reasons of the RRT (from [28]-[36]) it was repeatedly made clear that the RRT did not accept that the appellant was exposed to any harm. In those circumstances, all of the submissions advanced for the appellant fall away.

Ground 2 - Failure to consider complementary protection claims as a whole 27 With regard to ground 2, the appellant relied on MZYYL where it was held by the Full Court (Lander, Jessup and Gordon JJ) that the Minister must consider the complementary protection criteria as a whole. In that case, the Full Court held that it is incorrect to consider, as a preliminary question, whether an applicant faces a real risk of significant harm if removed to a receiving country and only then consider whether the availability of state protection reduces that risk to something less than a real one. Their Honours said (at [36]): … The section must be read as a whole. The enquiry provided for in s 36(2)(aa) necessarily involves consideration of the matters referred to in s 36(2B). The Minister does not undertake the enquiry in s 36(2)(aa) and then move to s 36(2B). 28 The appellant argued that the effect of MZYYL was that the RRT had to consider s 36(2B)(b) of the Act as a whole to fully discharge its review obligations and the primary judge erred in rejecting this ground for several reasons. 29 First, it is said that the primary judge erroneously distinguished MZYYL from the current matter. The appellant observes that MZYYL is the current authority concerning the proper construction of s 36(2B)(b) of the Act. According to the appellant, this matter does not raise a different or new issue to MZYYL. Rather, it is said to concern the correct construction of s 36(2B)(b) and should, therefore, have been applied or at least considered. 30 The appellant argues that, secondly, as the language in s 36(2B)(b) is different to the state protection test adopted in relation to the Convention (cf s 36(2)(a) of the Act; Art 1A(2) of the Convention), the RRT was required to do more than simply apply its findings according to the relevant test under the Convention criterion to the complementary criterion. 31 Thirdly, it is said that the primary judge misconstrued the question before the Court, by finding that there is 'no error in the Tribunal making findings of fact in the context of Convention-related claims and then applying the complementary protection test to the facts as found, citing SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 per Robertson, Griffiths and Perry JJ (at [32]-[35]) and SZSXE v Minister for Immigration & Border Protection [2014] FCA 867 per Wigney J (at [56]). 32 The appellant says that while this might be an accurate reflection of the law, at no stage did the RRT apply the complementary protection test pursuant to s 36(2B)(b) to the facts as found. The appellant contends that the correct question before the primary judge was whether the RRT impermissibly conflated its findings regarding the claims of serious and significant harm by the appellant and then whether the RRT impermissibly applied the test of a 'reasonable level of protection' to the complementary criterion, or alternatively, failed to consider and apply the test pursuant to s 36(2B)(b) at all. The appellant points out that at no stage in the decision does the RRT discuss section 36(2B)(b). It contends that either an erroneous test of state protection was applied to the complementary criterion by the RRT, or it was not considered at all. Both alternatives are argued to reveal error. 33 Fourthly, according to the appellant, the problem with the reasoning of the Tribunal is that it makes no attempt to distinguish between the different tests posed by s 36(2)(a) and s 36(2)(aa) of the Act. The appellant relies on SZSFK v Minister for Immigration & Anor [2013] FCCA 7, where Driver J of the Federal Circuit Court found that the reviewer will fall into error where it simply applies its findings as to the Convention criterion to the complementary protection criterion. At [92], Driver J observed: Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s.36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision. 34 Driver J observed (at [97]): …Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not… 35 The appellant also relies on SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, where Robertson J endorsed the reasoning of Driver J (at [32]) as follows: Decision-makers needed to clearly distinguish between statutory provisions which bore on the complementary protection criterion and those which did not. The use of language drawn from an irrelevant provision of the Migration Act at least created confusion and may point to reviewable legal error. Further, the reliance by the Reviewer on unspecified "finding set out above" was particularly problematic. On its face, it appeared to be a reference to all of the Reviewer's findings, some of which were clearly irrelevant to the complementary protection criterion such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant. 36 The appellant also refers to SZSJC v Minister for Immigration & Anor [2013] FCCA 1755 where Nicholls J concurred with Driver J in SZSFK (at [31]): As I respectfully understand the reasoning in SZSFK, what sits at the core of that reasoning, is that the criteria at ss. 36(2)(a) and 36(2)(aa) of the Act posit different types of harm. While the test to determine each is the same (a real risk of harm, see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33) the criterion in relation to the Refugees Convention speaks of "serious harm", under complementary protection it is "significant harm". 37 Fifthly, the appellant contends that the primary judge erred by finding (at [24]) that: [w]hen it comes to applying the complementary protection test, it should be recognised that s.36(2B) does no more than provide a non-exhaustive list of potential bases for concluding that an applicant does not face a real risk of significant harm in a third country. It is not a mandatory test to which reference must be made in all cases. 38 The appellant refers to MZYYL where Lander, Jessup and Gordon JJ said (at [33]): … [i]f any of the circumstances mentioned in s 36(2B) are found to exist, the Minister must conclude that the non-citizen would not suffer significant harm for the purposes of s 36(2)(aa)… 39 The appellant points to the fact that the RRT accepted (at [30]) that the applicant is Shia from the Bangash tribe and noted that his 'advisors have made some submissions that he does fear harm on this account' (emphasis added) and then goes onto specifically raise and consider the issue of state protection (at [31]). The appellant neglects to point out that any such fear was expressly rejected by the RRT. 40 Sixthly, the appellant also argues that the primary judged erred by finding (at [24]) that: [c]onsideration of the section as a whole does not require consideration of provisions which are, or because of fact finding have become, irrelevant to the decision. For instance, no error is disclosed by the fact that the Tribunal did not consider whether the applicant could relocate within Pakistan (s.36(2B)(a)) or whether the risk he faced was one faced by him personally and not by Pakistanis generally (s.36(2B)(c)) because those issues were not relevant to his review. 41 The appellant argues, but as will be seen, I disagree, that clearly the RRT thought the issue of state protection was relevant as it raised and discussed the issue (at [31]) and did not consider the issue of relocation under s 36(2B)(a) or whether the risk was one faced generally under s 36(2B)(c) to be relevant. 42 Finally, the appellant argues that the primary judge erred by finding (at [25]) that the RRT was: not required to turn its mind to s.36(2B)(b) and state protection in the complementary protection context because… [i]n circumstances where the Tribunal had already rejected the applicant's factual claims before it turned to consider the question of complementary protection, s.36(2B)(b) did not have to be considered because the question of the availability of state protection had, by virtue of those antecedent findings, become irrelevant. 43 The appellant contends that, to the contrary, Lander, Jessup and Gordon JJ observed in MZYYL (at [35]): … s 36(2B)(b) does not, in its terms or in its operation, require either the conclusion that it is inevitable that the non-citizen will suffer significant harm or the conclusion that it is certain that he or she will not. The express terms of the section require the Minister to be satisfied that, given the protection available to MZYYL in the receiving country, there would not be a real risk that he will suffer significant harm. There is nothing to suggest or warrant the imposition of some kind of guarantee of one or other outcome. And, indeed, such a guarantee is practically impossible: cf S152/2003 at [28].

Consideration of ground 2 44 Ground 2 must also fail. 45 The primary and insuperable difficulty for the appellant was one which those advancing his arguments were reluctant to concede. The difficulty was that the appellant was not believed on all key matters of substance to his claims. The statement of decision and reasons of the RRT is broken up into a number of headings, including 'application for review', 'claims and evidence', 'consideration of claims and evidence' and 'decision'. 46 Most of the focus was on the RRT's consideration of 'claims and evidence' in [28]-[38] inclusive. 47 In those paragraphs, the following matters, relevant to credibility of the appellant are recorded: Despite receiving these threats to his phone number for about a year he did not change his number (at [28]); 'I have serious difficulty in accepting these claims of being specifically targeted and threatened by text messages is true. I do not accept as reasonable to believe that [Mr A] would not have known the applicant was Shia from when they first met' (at [29]). 'I also do not accept as reasonable to believe, if the applicant was receiving threatening phone text messages as claimed, he would not just have used his other number. He could easily have notified his friends and family of the changed number. That he did not indicates he was not receiving the text threats as claimed' (at [29]); 'I do not accept that he was able to avoid harm by changing classes and times and routes of travel. I find that he has fabricated this claimed adverse interest in him by [Mr A], his friends and the Taliban so as to enhance his claims for a protection visa. I further do not accept as reasonable to believe that [Mr A] followed him in the market in Peshawar' (at [29]); and 'I find that the applicant is not a credible witness. I do not accept any of these claims as true' (at [29]) (emphasis added) 48 The only matter relevant to his claims that was accepted by the RRT was that the appellant was a Shia from the Bangash tribe. The RRT went on to observe (at [30]) that, in any event, the appellant said he 'does not fear any harm on account of being Bangash'. The RRT noted that the appellant's advisors made some submissions that he does fear harm on this account, but this was not accepted by the RRT. The RRT went on to note that he accepted that nothing has happened to the appellant's family. It was not accepted as reasonable to believe in the circumstances that the appellant's family would not tell him if there were specific problems or issues. 49 While the RRT accepted (at [30]) that Parachinar had been the location of attacks over the years by Taliban and other extremists against not only Shia but also Sunni people living in the area, it was observed that the area had been under the protection of the Bangash and Turi tribes' militia for some years and was now under the security of the Pakistan National Army. The RRT observed that the tribal militia formed part of the Pakistani state security system, and while there were random attacks including bomb blasts in 2008 and 2012, those attacks harmed all citizens of whatever religion. 50 The RRT went on to note (at [31]) that the appellant, however, had not experienced any harm in Parachinar and had lived there since his family moved there from their village in 2006 until mid-2010 when he left for study. Although the RRT accepted that some people had been harmed or killed while travelling on convoys protected by the army, it was noted that the appellant had travelled by air on occasions despite the fact there was a cost associated with that. The RRT said (at [31]): … I do not accept that the applicant has a level of profile such that he would be targeted for harm by the Taliban or any other such group. I find that he can return to live with his family. (emphasis added) 51 From these observations, the RRT was making it clear that its findings were that the appellant was not exposed to harm of any nature, however that harm be qualified or described. This was the end to either a Convention relation claim or a complementary protection claim. 52 The authorities on which the appellant relies are cases where some finding which may be favourable to an applicant's claim has been made, but there is lack of clarity as to the nature of the finding, the claim, and the statutory provision to which the finding pertains. Unfortunately for the appellant, no such favourable finding at all was made by the RRT. The primary judge was correct in observing that whether or not a decision-maker is jurisdictionally obliged to consider s 36(2B)(b) of the Act depends on the decision maker's previous findings of fact. As noted by North J in Razai v Minister for Immigration and Citizenship [2012] FCA 394 and by Rares J in the cases there cited: 36. S152 does explain that the way in which the failure of state protection might arise in the claims of persecution by non-state agents. But, it does not require consideration of that issue where the decision maker finds that there is no real chance of harm to the applicant. Further, the fact that the applicant relies on the failure of state protection as an argument does not compel the decision maker to determine the issue. To do so is unnecessary where the preliminary finding of fact is made against the applicant. 37. Following the hearing, the parties drew the Court's attention to a number of recent judgments which have come to the same conclusion as expressed in these reasons. See SZQKC v Minister for Immigration and Citizenship [2012] FCA 249; SZQGX v Minister for Immigration and Citizenship [2012] FCA 306; SZQGU v Minister for Immigration and Citizenship [2012] FCA 340; SZQGI v Minister for Immigration and Citizenship [2012] FCA 343. 38. It follows from this reasoning that ground one is not made out. 53 No error is demonstrated in the approach of the RRT and no relevant error is evident from the decision in the Federal Circuit Court. Both grounds of appeal must fail and the appeal must be dismissed. The orders of the Court are:

The appeal be dismissed.
The appellant pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Migration Act 1958(Cth)ss 36(2)(aa), 36(2B)(b)

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