FEDERAL CIRCUIT COURT OF AUSTRALIA
SZSPE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR	[2013] FCCA 1989	

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether pain and suffering as a result of “mere negligence” is sufficient to satisfy s.5(1) of the Migration Act 1958 (Cth) which requires that any pain and suffering be intended – whether the Refugee Review Tribunal dealt with all claims made by the applicant – no jurisdictional error – application dismissed.	

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 474, Pt.8 div.2	

Cases Cited: 
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v MZYYL & Anor [2012] FCAFC 147
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407	

Applicant:	szSPE	

First Respondent:	minister for immigration & BORDER PROTECTION	

Second Respondent:	refugee review tribunal	

File Number:	SYG 287 of 2013	

Judgment of:	Judge Emmett	

Hearing date:	20 September 2013	

Date of Last Submission:	20 September 2013	

Delivered at:	Sydney	

Delivered on:	27 November 2013	

REPRESENTATION
Counsel for the Applicant:	Mr Paul Bodisco	

Solicitors for the Applicant:	Wotton & Kearney	

Counsel for the Respondents:	Mr Justin Smith	

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT SYDNEY	
SYG 287 of 2013
SZSPE 	
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION	
First Respondent

REFUGEE REVIEW TRIBUNAL	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal, dated and handed down on 11 January 2013 (“the RRT”).
2.	The applicant claims to be a citizen of Turkey and of Sunni Muslim faith. 
3.	The issues in this case are whether pain and suffering as a result of “mere negligence” is sufficient to satisfy s.5(1) of the Migration Act 1958 (Cth) which requires that any pain and suffering be intended, and whether the RRT dealt with all claims made by the applicant. These issues are considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.
4.	Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, the decision of the delegate of the first respondent (“the Delegate”) and a summary of the RRT’s review and decision.
Background
5.	The applicant arrived in Australia on 9 December 2007 having departed legally from Turkey on a passport issued in his own name and a subclass TU-570 (Student) visa.
6.	On 28 September 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”). 
7.	On 22 November 2012, the Delegate refused the applicant’s application for a protection visa. 
8.	On 23 November 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT. 
9.	On 11 January 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa. 
10.	On 15 February 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
11.	This application concerns the correct test at law under the complementary protection provisions as enacted by Schedule 1 of the Migration Amendment (Complementary Protection Act (No.121 of 2011)), making s.36(2)(aa) of the Act (as amended) applicable to the definition of “protection obligations” for the purposes of the Act in considering claims for protection made by the applicant on and after 24 March 2012.
12.	The Act provides for the grant of a protection visa to a non-citizen of Australia in certain circumstances notwithstanding that the Minister is not satisfied that Australia owed protection obligations to that person under the 1951 Convention Relating to the Status of Refugees as amended by the Protocol (the Refugees Convention). This is known as the complementary protection regime which was implemented by amendments to s.36 of the Act, and which came into force on 24 March 2012 (the Complementary Protection Provisions).
13.	Section 36(2)(aa) of the Act provides that a criterion for such a protection visa is that the applicant for the visa is a non-citizen in Australia to 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 that non-citizen will suffer significant harm.”
14.	Section 36(2A) of the Act states that 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.”
(emphasis added)
15.	In turn, the concepts of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are defined in s.5(1) of the Act:
	“cruel or inhuman treatment or punishment” means an act or omission by which:
	(a) sever 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.”
The applicant’s application for a protection visa
16.	The applicant provided a statement in support of his protection visa application in which he stated the following:  
(a)	The applicant was born in the province of Hatay in Turkey in 1990. 
(b)	At age 17, the applicant left Turkey, fearing that he would be forced to join the Turkish military. 
(c)	The applicant claims that young men like him from working class families are often sent to areas where there is a lot of fighting and where many soldiers are killed. 
(d)	The applicant has always been against war and does not believe the Turkish government has any purpose in carrying out its war against the Kurds. 
(e)	When the applicant was 18 and in Australia, he heard that his family in Turkey had received a letter from the Turkish military requesting that he carry out his military service. 
(f)	Later, the applicant heard that his family had received a summons for him to attend a military court to face charges of desertion. The police and military also made a number of visits to the family’s house looking for the applicant. 
(g)	The family received documentation that apparently confirmed that that the military planned to send the applicant to Semdinli, a location that the applicant knew to be a “very dangerous… and where every day many people [were] killed”. 
(h)	The applicant asserted that “professional militia and terrorist groups” operated in Semdinli specifically targeting Turkish military officers, using guns, explosives and “other destructive weapons.” 
(i)	The applicant stated that two of his three cousins, who have been forced to complete compulsory military service, have been killed during their service. The applicant fears for the safety of his remaining cousin and believes that if he was to return to Turkey, he would eventually face the same fate as his cousins. 
(j)	The applicant fears that if he was forced to return to Turkey, he would face harm including detention, prolonged imprisonment by the Turkish government, and forced service in the Turkish military. 
The Delegate’s decision
17.	On 23 October 2012, the applicant attended an interview with the Delegate.
18.	On 22 November 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention. 
19.	The Delegate was not satisfied that the applicant’s fear of persecution as claimed was genuine, having regard to the applicant’s delay in seeking protection in Australia.
20.	The Delegate also considered whether the applicant was entitled to complementary protection. The Delegate did not accept that the applicant had been threatened as claimed. Further, based on country information before it, the Delegate found that Turkey has a fully functional police force from whom he can seek protection. The Delegate was not satisfied that the applicant had engaged in any activity which would lead him to been seen to be anything but a military service evader in the eyes of the Turkish authorities. 
21.	The Delegate accepted that the applicant faces imprisonment for draft evasion if he was to return to Turkey, but was not satisfied that any mistreatment he may experience would be as a conscientious objector. The Delegate was also satisfied that the applicant had not publicised his opposition to compulsory military service and was not satisfied that mere military service evaders were singled out in gaol in Turkey for abuse. 
The RRT’s review and decision
22.	On 23 November 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT. 
23.	On 30 November 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 17 December 2012 to give oral evidence and present arguments. On 5 December 2012, the RRT received a request from the applicant that the hearing be postponed and agreed for the applicant to attend the hearing on 24 December 2012 to give oral evidence and present arguments.
24.	On 21 December 2012 and 3 January 2013, the applicant’s migration agent provided submissions in support of the applicant’s review application.
25.	On 24 December 2012, the applicant attended the RRT hearing and gave evidence. 
26.	It its decision record, the RRT expressed a number of concerns about the applicant’s credibility. 
27.	The RRT found that the applicant demonstrated that he “is prepared not to tell the truth if he believes that it will be to his advantage”. 
28.	The applicant gave differing versions of events as to the whereabouts of Mr Ali Kara, a person the applicant claimed to fear. The RRT considered “that it is clear that the applicant was not telling the truth when he claimed in his statement, dated 30 October 2012, that Ali Kara was currently in Turkey.”
29.	The RRT did not accept that the applicant was telling truth when he claimed that his parents had informed him that a summons had been received for him to go to the military court to face charges of desertion. The RRT noted that Turkish military law draws a distinction between pre-registration draft evaders, which applied to the applicant, and deserters. The RRT stated that the “applicant lied about his parents having received such a summons because once again he believed this to be to his advantage”. 
30.	The RRT observed that the applicant had a “tendency towards self-dramatization and portraying himself as a victim in an attempt to gain sympathy.” The RRT found that the applicant exaggerated the problems he faced in Australia in an attempt to gain sympathy and there were contradictions in his evidence with regard to where he was living and when he started using drugs.
31.	Noting the inconsistencies in the applicant’s evidence, the RRT found the applicant not to be a credible witness. 
32.	The RRT noted the applicant’s representative’s submissions that the applicant had consistently spoken out against the conflicts in which conscripts had been fighting and his objection to being forced to engage in acts of violence against fellow citizens. However, the RRT found nothing in the evidence before it to suggest that the applicant had voiced those views before he had made an application for a protection visa. 
33.	The RRT further concluded that since it did “not accept that the applicant genuinely objects to performing military service for any ideological, philosophical, ethical or religious reason”, the RRT did not accept that there was a real chance that the applicant would continue to refuse to undertake military service which would have had him liable for repeated terms of imprisonment. 
34.	The RRT found the real reason that the applicant did not want to undertake military service was that he feared being harmed or killed in conflict.
35.	Further, the RRT did not accept that there was a real chance that the applicant would be perceived as a conscientious objector on his return to Turkey on the basis of his actions in relation to evading military service. 
36.	The RRT accepted that the applicant would be liable to imprisonment as a draft evader on his return to Turkey. However, the RRT did not accept that there is a real risk that the applicant would suffer significant harm as defined in s.36(2A) of the Act in the context of his being imprisoned as a draft evader. 
37.	The RRT considered whether there was a real risk that the applicant would be arbitrarily deprived of his life whilst undertaking military service. The RRT was satisfied that the applicant could obtain protection from Turkish authorities while undertaking military service such that there would not be a real risk that the applicant would suffer significant harm. 
38.	Further, the RRT further found that the applicant had exaggerated the threat he faced from Mr Ali Kara. Accordingly the RRT did not accept that there were substantial grounds for believing that the there was a real risk that the applicant would suffer significant harm at the hands of Mr Ali Kara or his associates if the applicant was removed from Australia to Turkey. 
39.	The RRT did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there was a real risk that the applicant would suffer significant harm as defined in s.36(2A) of the Act. 
40.	Accordingly, the RRT was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention and found that he did not satisfy the criteria set out in s.36(2)(a) of the Act for a protection visa. The RRT also found that the applicant did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act.
41.	Accordingly, the RRT affirmed the decision not to grant the applicant a Protection (Class XA) visa.
The proceeding before this Court
42.	The applicant was represented at the hearing by Mr Paul Bodisco, of counsel.
43.	By consent, leave was granted at the hearing to allow the applicant to rely on the grounds in an amended application filed in Court in the following terms:
	  “1. The second respondent misapplied the complementary protection provisions of s.36(2) of the Act.
	Particulars
	a. The finding that the likely pain and suffering to be experienced by the Applicant during imprisonment in Turkey would not be “intentionally” inflicted because it would arise from “mere negligence” misconstrued the statutory rest for complementary protection.
	B. The finding of the prospect of ill treatment or torture being a “remote risk [160] was based upon a misapplication of the “real chance” test.
	2. The RRT’s ultimate findings rejecting the Applicant’s claim to complementary protection were illogical, irrational or unreasonable.
	3. That the Second Respondent failed to deal with the full integers of the Applicant’s claims.
	Particulars
	a. By only dealing with claims that the Applicant would face significant harm from the “intentional” acts of the Turkish authorities, the Second Respondent has failed to deal with the claim squarely raised under complementary protection that the Applicant may face significant harm amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment in a Turkish prison as a consequence of being penalised for evading the draft.”
Ground 1
44.	Ground 1 asserts that the RRT erred in its application of the complementary protection provisions of s.36(2)(aa) of the Act by finding that pain and suffering likely to be experienced by the applicant during imprisonment in Turkey would not be “intentionally” inflicted because it would arise from “mere negligence”.
45.	Essentially, Mr Bodisco submitted that harm suffered from “mere negligence” should not be excluded from consideration of whether such harm is “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. For the reasons below, I do not accept that submission. 
46.	Mr Bodisco took the Court carefully and thoroughly through the applicant’s claims and the country information upon which the applicant relied.
47.	In his “Statement of Claims” lodged in support of his protection visa application the applicant stated, inter alia, that if forced to return to Turkey he would face harm including being subject to detention, prolonged imprisonment by the Turkish government and being forced to serve in the military, and that prison conditions for deserters in Turkey are very poor. 
48.	The applicant also stated in answer to the question, “Who I think may harm / mistreat me in the country” that “I believe that if I was forced to return to Turkey that I would be subject to harm by the Turkish government, particularly officers of the military.”
49.	In a submission, dated 6 November 2012, from the applicant’s migration agent to the Department in support of the applicant’s claims, under a heading “Who do they fear / what do they fear?”, the migration agent stated the applicant had outlined his core fears of harm should he be forced to return to Turkey in his “Statement of Claims” as follows:
	“(The applicant also believes that he will be questioned, beaten, tortured, imprisoned and forced to do military service against his will if forced to return to Turkey). The applicant also fears that he will be subjected to more severe punishment by the Turkish authorities owing to his views against compulsory military service and against war… [the applicant] believes his issues with the Turkish authorities owing to his unwillingness to complete his military service would mean that he would not be able to obtain protection from the Turkish authorities for the harm he fears from Mr Ali Kara or his associates.”
50.	The applicant claimed that he had received numerous threats from Mr Ali Kara because he gave evidence against Mr Ali Kara, whom the applicant claimed subjected him “to a brutal and violent stabbing attack”.
51.	In submissions to the RRT dated 21 December 2012, the applicant’s migration agent stated the significant harm feared by the applicant to be as follows:
	“Significant Harm Feared
	In this case, we submit there are substantial grounds for believing [the applicant] will face a real risk of the following forms of significant harm:
	- [the applicant] will face the arbitrary and lengthy detention on his removal to Turkey;
	- [the applicant] will be subjected to mistreatment or conditions during his detention that would amount to cruel or inhumane/degrading treatment or punishment; and
	- [the applicant] will, after release from his initial period of detention, face severe and continuing civic disabilities or a “civil death”, including facing repeated periods of detention for the same offence.
	We submit that the above harm does constitute either torture or cruel or inhumane/degrading treatment or punishment as defined under s.36(2A)(e) of the Act on the basis that:
	- Available information relating to the conditions faced by detainees in Turkey prison supports there is substantial grounds for believing there is a real risk [the applicant] would face a real risk of severe pain or suffering, pain or suffering that is cruel or inhumane in nature, or extreme humiliation that is unreasonable. Further to this, those who continue to refuse compulsory military service face repeated detention for the same offence and severe civic disabilities or a “civil death” that similar would cause severe pain or suffering, pain or suffering that is cruel or inhumane in nature or extreme humiliation that is unreasonable.
	- The harm feared by [the applicant] would be intentionally inflicted on him or would be the intended cause of acts of harm carried out towards him by the Turkish Authorities; and
	- Again, the type of treatment feared by [the applicant] by the Turkish authorities either through his initial period of detention or subsequent treatment following his release would be inconsistent with Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) and also Articles 14 and 18.
Secondly, [the applicant] would face a real risk of harm of a type that would constitute torture as defined under s.36(2A)(c) of the Act on the basis that:
	- Available information as outlined below supports the state agents in Turkey are currently committing acts or omissions involving “severe pain or suffering” whether physical or mental towards detainees held in prisons, particularly against those who have evaded compulsory military service as conscientious objectors;
	- This harm would be intentionally inflicted on [the applicant] for at least one of the reasons prescribed under s5(1) including that it would be used to punish him for committing or being alleged to have committed the offence of evading compulsory military service or for reasons of his beliefs as a conscientious objector that is inconsistent with Article 18 of the ICCPR; and
	- Even if the harm carried out in this incidence was considered to be inherent or incidental to lawful sanctions in place in Turkey, the torture claimed is clearly inconsistent to a number of articles within the ICCPR including Articles 7, 14 and/or 18.
	Risk of arbitrary detention on return to Turkey
	Given the length of time since [the applicant] has been outside of Turkey and failed to report or respond to requests from the Turkish authorities to report for his compulsory military service, available information would support that he would face a period of imprisonment on his return of up to 6 to 36 months. Available information also supports that given the length of this term of imprisonment he would be likely to serve this in a regular prison.
	Amnesty International has further reported in 2010 that conscientious objectors who have publicly stated their refusal to carry out military service have been subjected to criminal prosecution and imprisonment of up to three years.
	We belief (sic) that at the very least, [the applicant] would face arbitrary detention on his removal to Turkey. The definition of arbitrary detention has been denied by the Working Group on Arbitrary Detention, established by the UN Commission on Human Rights, as follows:
	There is no clear definition of arbitrary detention in international law. However the Working Group has defined it as detention I which is contrary to human rights provisions of the major international human rights instruments. More specifically the Working Group has defined 3 categories of arbitrary detention:
	1. Where there is no legal basis for the deprivation of liberty (for example when a person is kept in detention after the completion of their prison sentence or despite an amnesty law applicable to them);
	2. When a person is deprived of their liberty because they have exercised the rights and freedoms guaranteed in the UDHR and the ICCPR.
	3. When a person has been deprived of their liberty after a trial which did not comply with the standards for a fair trial set out in the UDHR and other relevant international instruments.
	Firstly, the question would be raised as to whether [the applicant] would have access on his return to Turkey in facing prosecution as a draft evader to an impartial or independent tribunal as required under Article 10 of the Universal Declaration of Human Rights. Available information would support that he would face prosecution by the Martial Law Courts in Turkey.
	In this regard, we refer to a previous decision by the Europe Court of Human Rights where an applicant’s fears of Turkeys Martial Law Court’s lack of independence and impartiality was regarded as objectively justified.”
52.	The submission also addressed the applicant’s risk of torture or cruel or inhuman or degrading treatment or punishment whilst subject to detention in Turkey. The country information relied on referred to the poor conditions and treatment faced by detainees held in Turkish prisons, including the ill-treatment of prisoners carried out by prison staff; the lack of communal activities; health care limitations and prisoner-to-cell ratio. 
53.	The country information also referred to the ongoing existence of the use of torture and ill treatment towards detainees by authorities, but that there has been an overall downward trend in such treatment in places of detention. The submission referred to prison conditions in the following terms:
	“Prison overcrowding remained a serious concern, with 41 per cent of the prison population awaiting final sentencing. The prison system does not have adequate resources. Ill treatment allegations continue to cause concern, including the tape recording of prisoners, excessive use of solitary confinement and excessive strip searches of inmates and visitors… any sick and terminally ill convicts lack proper medical attention. Complaints that conditions in F-type high security prisons cause physiological and psychological damage have been reported. Overall, prisoner overcrowding remains problematic, with a serious impact on sanitation and other physical conditions. A reform of the complaint system in prisons is needed.”
54.	The submissions stated that where conditions in detention centres or prisons involving overcrowding, lack of access to proper medical treatment water and sanitation facilities existed, such treatment was degrading. In support, the submissions referred to the RRT’s Complementary Protection Manual.
55.	The submissions stated that the applicant’s circumstances would support the risk that he would face conditions or treatment while in detention in Turkey amounting to cruel, inhumane or degrading treatment. The submissions also stated that the applicant’s young age would make him more vulnerable in the prison environment, together with the fact that he would be known as a conscientious objector.
56.	The submissions then dealt with the risk faced by conscientious objectors.
57.	A fair reading of the RRT’s decision record makes clear that the RRT understood that the complementary protection regime uses definitions and tests different from those referred to in International Human Rights Treaties. The RRT acknowledged it was therefore neither necessary nor useful to ask how the convention against torture or any of the other International Human Rights Treaties would apply to the circumstances of this case.
58.	The RRT also acknowledged that the intention requirement introduced in the definition of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s.5(1) of the Act is not reflected in international jurisprudence. However, the RRT found that this did not mean s.5(1) of the Act should be read down or given a liberal interpretation to accord with the international jurisprudence. The RRT referred to the statement in the complementary protection training manual that “demonstrating the intention of an unrepresented actor in a future act of ill treatment in a legal proceeding is inherently difficult.”
59.	In reaching that conclusion, the RRT thoroughly examined the authorities and counter arguments, but was ultimately not persuaded by them. In particular, the RRT referred to the judgment of Lander, Jessup and Gordon JJ in Minister for Immigration and Citizenship v MZYYL & Anor [2012] FCAFC 147 and found as follows:
“[29] the starting point must be the words of the Act.”
“[18] the complementary protection regime used definitions and tests different from those referred to in the international human rights treaties.”
[20] it was therefore neither necessary nor useful to ask how the Convention against Torture or any other international human rights treaties would apply to the case before them.”
60.	In that context, the RRT found that mere negligence is insufficient to satisfy the definition in s.5(1) of the Act in light of the statutory requirement that such conduct must be inflicted intentionally. 
61.	In finding that suffering caused by mere negligence was not sufficient to satisfy s.5(1) of the Act, the RRT was doing no more than explaining the need that,  for the purposes of complementary protection there must be a real risk of significant harm as defined in s.5(1) of the Act, that harm being intentionally inflicted.
62.	The RRT found that mere negligence is insufficient, having regard to the inclusion of the intention requirement, to amount to “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as defined in s.5(1) of the Act. The RRT found that pain or suffering caused by overcrowding and other consequential problems in the Turkish prison system referred to in the applicant’s submissions, is not intentionally inflicted on prisoners, and therefore does not satisfy the definition of “cruel or inhuman treatment or punishment”. The RRT also found that the overcrowding and other consequential problems were not “intended to cause” extreme humiliation, as required by the definition of “degrading treatment or punishment” in s.5(1) of the Act.
63.	In reaching those findings, the RRT specifically referred to the submissions made by the applicant’s representatives in support of the applicant’s review.
64.	The RRT did not accept that the applicant was a conscientious objector or a deserter, based on the applicant’s evidence, and did not accept that he would be perceived as one. In those circumstances, the RRT found that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there was a real risk that he will be subjected to mistreatment as a conscientious objector.
65.	The RRT accepted the substance of the country information referred to in the applicant’s representative’s submissions in relation to ill treatment in Turkish prisons. However, the RRT also accepted country information before it that suggested that steps were being taken by the Turkish government to prevent torture and mistreatment in prisons. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
66.	In the circumstances, the RRT found that there is only a remote risk that the applicant would be subjected to torture in the context of any action taken against him as a draft evader on his return to Turkey. 
67.	Further, on the evidence before the RRT, the RRT did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he will be subjected to torture in the context of any action taken against him as a draft evader.
68.	Ground 1 is a misstatement of the RRT’s findings in suggesting that it found that pain and suffering would not be intentionally inflicted because it arose from mere negligence. As stated above, the RRT did no more than find that cruel or inhuman treatment or punishment and degrading treatment or punishment must be intentionally inflicted, in accordance with s.5(1) of the Act; and that mere negligence, without more, was not capable of amounting to intentional infliction of that pain and suffering.
69.	A fair reading makes clear that the RRT gave careful consideration to the overcrowding and consequential problems that arise in considering if those factors were intended to cause extreme humiliation, as required by the definition of degrading treatment or punishment.
70.	As stated above, the RRT concluded that overcrowding and its consequential problems were not intended to cause extreme humiliation, as required by the definition of degrading treatment and punishment in s.5(1) of the Act. 
71.	The RRT also found that the applicant could obtain protection from the Turkish authorities while undertaking his military service such that he would not be at a real risk of significant harm. The RRT did not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, that there was a real risk that he would be deprived arbitrarily of his life while undertaking his military service. 
72.	The RRT findings were open to it on the evidence and material before it and for the reasons it gave. The RRT considered carefully and in comprehensive detail the applicant’s evidence and submissions, including country information referred to by the applicant. As stated above, the RRT did not misstate the test for complementary protection, including its application of the relevant definition in s.5(1) of the Act in considering whether the applicant met the alternative criterion for protection in s.36(2)(aa) of the Act.
73.	Accordingly, ground 1 is not made out.
Ground 2.
74.	In submissions in support of ground 2, Mr Bodisco contended that the RRT had failed to deal with a claim raised by the applicant that he feared harm in a Turkish prison from persons other than the authorities. 
75.	As is apparent from the references above in ground 1 of the applicant’s submissions and the independent country information relied upon by the RRT, no such claim squarely arose on the evidence and material before the RRT (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).
76.	A fair reading of all the applicant’s claims and submissions to the RRT makes clear that the applicant’s fear of harm in a Turkish prison was expressed to be from authorities, not other inmates. The RRT dealt with these claims both in relation to the criteria in ss.36(2)(a) and 36(2)(aa) of the Act. The RRT concluded that the applicant did not meet the relevant criteria. As stated above, those findings were open to the RRT on the evidence and material before it and for the reasons it gave. 
77.	To the extent that the applicant expressed a fear of harm from officers of the military, it was in the context of his fear of harm as a conscientious objector and deserter. The RRT found the applicant not to be a credible witness and rejected his claim to be a conscientious objector and a deserter. The RRT also found that there was not a real risk that the applicant would be known or perceived as a conscientious objector.
78.	The RRT did not accept that the applicant’s parents had received a summons to go to the military court to face charges of being a deserter, and found that the applicant was no more than a “roll call evader”. The RRT found that, as such, he would be tried in the ordinary criminal court. The RRT identified the independent country information on which it relied in making that finding.
79.	The applicant’s claims were clearly dealt with by the RRT and rejected for the reasons referred to in ground 1 above. As stated above, the RRT’s findings were open to it on the materials and evidence before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). 
80.	Accordingly, ground 2 is not made out.
Conclusion
81.	A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it. 
82.	The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law. 
83.	In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 
84.	The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. 
85.	The proceeding before this Court should be dismissed with costs. 
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Emmett 

Associate:  

Date:  	27 November 2013