BZAHE v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 518

Catchwords:
MIGRATION – Application for an extension of time within which to commence an application for judicial review – Protection (Class XA) visa – relocation – relocation in the context of claims for complementary protection – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 36(2B)(a), 36(2B)(c)

Cases:
Minister for Immigration and Border Protection v SZSCA (2014) 314 ALR 514
SZSKC v Minister for Immigration [2014] FCCA 938

Applicant:

BZAHE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 550 of 2014

Judgment of:

Judge Jarrett

Hearing date:

18 June 2015

Date of Last Submission:

18 June 2015

Delivered at:

Brisbane

Delivered on:

11 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr Rebetzke

Solicitors for the Applicant:

Fisher Dore Lawyers

Counsel for the First Respondent:

Ms Wheatley with Ms Slack

Solicitors for the First Respondent:

Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.
The application filed on 19 June, 2014 seeking an extension of time pursuant to s.477(2)(b) of the Migration Act 1958 (Cth) is dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG550 of 2014

BZAHE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By this application, the applicant seeks an extension of time within which to make an application for judicial review of a decision of a refugee review tribunal made on 7 January, 2013 that affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa. The applicant seeks that the application for review be remitted to a refugee review tribunal to be determined according to law.
The first respondent opposes the application and seeks that it be dismissed with costs. The second respondent enters a submitting appearance.
Both parties have delivered comprehensive written submissions. At the outset of the hearing, counsel for the applicant formally abandoned grounds numbered two and five in the proposed application for judicial review. He also pointed out the proposed grounds four, six and seven were examples of proposed ground three and ground eight was a summary of ground three and was not separately pressed.
Otherwise there was fulsome argument on the proposed grounds of review.

An extension of time

Ordinarily, an application to this Court for judicial review of a decision of a refugee review tribunal must be made within 35 days of the date of the decision sought to be reviewed. That time might be extended by the Court if the Court concludes that it is necessary in the interests of the administration of justice to do so.
The factors ordinarily seen as relevant to an exercise of the discretion to extend time are:
a.the length of the delay in commencing the application;
b.the reasons for the delay;
c.the prejudice to the respondent if the application is granted;
d.the merits of the underlying claim sought to be advanced; and
e.considerations of fairness as between the applicant and other persons in a like position.

The length of the delay

The length of delay in the present case is some 16 months. It is a lengthy delay.

The reasons for the delay

There is no direct evidence from the applicant about the reasons for his delay. There is an affidavit, sworn by his solicitor presumably on information provided to him by the applicant (although he does not say), that provides an explanation for the delay. The applicant’s solicitor says that:
a.the applicant was represented by a lawyer at the hearing of his application for review before the tribunal;
b.on 10 January, 2013 the applicant’s lawyer gave the applicant a copy of the tribunal’s decision and advice about his rights of appeal. He did not give any advice about the merits of any appeal;
c.on 23 January, 2013 the applicant sought legal advice from the Refugee and Immigration Legal Service in Brisbane. He was told verbally that he had no reasonable prospects of success on a judicial review application in respect of the tribunal’s decision;
d.on the applicant’s instructions, on 4 February, 2013 the Refugee and Immigration Legal Service in Brisbane prepared and forwarded a request to the first respondent for Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth);
e.the applicant’s request for Ministerial intervention was refused on 12 April, 2013;
f.in late July, 2013 the applicant sought the advice of his present solicitor. On 5 August, 2013 a brief was sent to a senior junior counsel to advise on the applicant’s prospects of seeking judicial review of the tribunal’s decision;
g.counsel’s advice was received on 15 August, 2013. The advice suggested that counsel was unable to discern any ground of review;
h.consequently, on 7 November, 2013 a second request for ministerial intervention was sent to the first respondent;
i.on 11 March, 2014 and “in light of further decisions in 2013 and 2014 in relation to the Complimentary Protection Provisions” a further brief was sent to another counsel seeking advice on the applicant’s prospects of success on a judicial review application;
j.on 6 June, 2014 counsel advised that there were grounds for judicial review “regarding the application of the Complementary Protection Provisions under the Act”;
k.the present application was instituted on 18 June, 2014.
The applicant argues that the legal advice that he received to the effect that he had no reasonable prospects of judicial review of the tribunal’s decision explains his failure to commence proceedings within the necessary timeframe. He argues that the subsequent receipt by him of legal advice to the contrary provides an explanation for the delay.
I accept that the applicant provides reasons for the delay in attempting to commence his judicial review proceedings. However, I am not persuaded that the explanation is reasonable. Many proceedings are subject to time limits. The law is in continual development. I was taken to no authority to suggest that changes in the way in which the law is interpreted and applied are themselves sufficient to justify an extension of time in circumstances such as the present.

Prejudice to the respondent

The first respondent concedes that he will suffer no prejudice if the extension of time will be granted. However the lack of prejudice to the first respondent is not, of itself, sufficient to justify the grant of extension of time.

The merits of the underlying application for review

The merits of the underlying application for review are of particular importance. Even in the absence of a satisfactory explanation for the delay in commencing proceedings, an extension of time might be granted where the proposed application is sufficiently meritorious.
The applicant argues that in the circumstances of this case, the extension should be granted because the applicant has a good case for judicial review of the tribunal’s decision. To understand whether that is so, it is necessary to understand the decision in respect of which the applicant proposes to seek judicial review.
The applicant is a citizen of Afghanistan. He arrived at Christmas Island in 2012. On 7 June, 2012 he applied to the first respondent’s Department for a Protection (Class XA) visa.
The applicant claimed that he had a well-founded fear of persecution based on:
a.his Hazara race;
b.his Shi’a Muslim faith; and
c.an imputed political opinion of opposition to the Taliban and Kuchis.
On 26 July, 2012 a delegate of the first respondent refused the application for the visa. The applicant sought review of that decision by a refugee review tribunal.
On 15 August, 2012 the applicant’s representative provided submissions and other material to the tribunal. The tribunal held a hearing at which the applicant was invited to give evidence and present arguments that hearing took place on 12 October, 2012. The applicant, the applicant’s representative and an interpreter attended the hearing.
In addition to the claims raised by the applicant in his visa application, the tribunal also considered the risk of harm to the applicant as an Afghan citizen returning from another country. That was a claim raised by the applicant for the first time at the tribunal hearing.
The applicant claimed that he feared that he would be seriously physically abused, killed “or subjected to an extraordinary level of discrimination that will threaten his ability to subsist” should he return to Afghanistan.
The applicant also made submissions that he satisfied the requirements for complementary protection. The applicant claimed to fear that he would be arbitrarily deprived of life, tortured, subjected to cruel or inhumane treatment or punishment or degrading treatment or punishment at the hands of the Taliban and/or Kuchis if he was returned to Afghanistan. His claim to complementary protection did not identify any sources of significant harm that were not already identified by him as sources of serious harm for the purposes of his claim to protection for Convention reasons.
After the hearing, the tribunal provided a list of relevant country information citations to the applicant’s representative. A further substantive written submission was made by the applicant’s representative on 8 November, 2012.
On 8 January, 2013 the tribunal notified the applicant of its decision to affirm the delegate’s decision not to grant the applicant a Protection visa. The basis of the tribunal’s decision was that the applicant did not satisfy the criteria set out in ss.36(2)(a) or 36(2)(aa) of the Act.
In its reasons for decision, the tribunal:
a.found the applicant’s evidence to be generally credible;
b.found that the “population” is subject to “pervasive violence and insurgent attacks” by the Taliban but found that the Taliban did not specifically target Hazara Shias generally;
c.accepted that there was a degree of discrimination against Hazaras in areas where they are a minority but that the evidence did not establish the applicant would be denied access to services and an opportunity to earn a living because of his race and religion;
d.found that the applicant did not face a real chance of persecution simply as an Hazara and a Shi’a;
e.found that the applicant would face a real chance in the reasonably foreseeable future of attacks involving serious harm by Kuchi nomads in his own village or district for a Convention reason, namely his Hazara ethnicity;
f.accepted that the Afghan authorities were unable to afford adequate protection against the Kuchi attacks;
g.accepted that road travel between Behsud and Kabul can be dangerous due to insurgent activity but was not satisfied that the danger was directed against Hazaras specifically for any Convention reason or reasons;
h.discussed evidence regarding returnees and noted that specific instances of violence against returnees appeared to relate to “random violence” and not because they had been in Australia or sought asylum;
i.found that the applicant would not face a real chance of harm from Kuchi attacks were he to relocate to Kabul;
j.concluded that it is reasonable now and in the reasonably foreseeable future for the applicant to relocate to Kabul to avoid persecution in his own district;
k.did not accept that the applicant had any immediate ongoing practical responsibility for his step-children which would impact on his relocation to Kabul; and
l.found that as the applicant would be returning from Australia directly to Kabul, there would be no question of the applicant risking danger on the roads between Kabul and Behsud.
The tribunal also did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kabul, Afghanistan, there was a real risk that he would face significant harm, as defined in the Act. That is, the tribunal was not satisfied that the applicant is a person to whom Australia owed protection obligations under ss.36(2)(a) or 36(2)(aa) of the Act. As the applicant points out, his claims for complementary protection were dealt with in two paragraphs of the tribunal’s reasons for decision:
158. Having accepted that the applicant faces a real chance of serious harm amounting to persecution in Behsud, the tribunal has further found that it would be reasonable for the applicant to relocate to Kabul where there would not be a real risk that he will suffer serious harm amount [sic] to persecution. Nor is the tribunal satisfied that in Kabul the applicant would facer [sic] a real risk of significant harm. The situation in Kabul is discussed in detail in the preceding section. In any event, the tribunal is satisfied that difficulties which might arise in Kabul are faced by the population generally and not directed against the applicant personally.
159. The tribunal is satisfied that the applicant does not meet the criteria for complementary protection.

The proposed grounds of review

Ground 1

The first proposed ground of review is expressed in the application in the following terms:
1. The Second Respondent misconstrued its function under s36(2)(a) of the Migration Act 1958 by:
(a)Failing to consider, in the context of consideration of the question of reasonableness of relocation to Kabul to avoid persecution for a convention reason, whether the fact that the applicant does not presently exercise immediate ongoing practical responsibility for his step-children is as a consequence of his being outside Afghanistan owing to a well-founded fear of being persecuted for a Convention reason; and
(b)Artificially limiting itself in the consideration of the question of the reasonableness of relocation to Kabul to family responsibilities in relation to step-children which are characterised as an “immediate ongoing practical responsibility”.
Particulars
The tribunal (at paragraph 154 of its reasons) stated that it did not accept that the applicant had any “immediate ongoing practical responsibility” for the applicant’s step-children but failed to consider the reasons for the failure to exercise immediate ongoing practical responsibility may be related to a Convention reason, and failed to consider at all what responsibility the applicant has for the children beyond the immediate ongoing practical responsibility, how the applicant might seek to exercise that responsibility, and whether relocation would impact on how he might go about seeking to exercise that responsibility.
I confess to some difficulty understanding the point that the applicant seeks to make by this ground. As the applicant points out, in respect of the applicant’s claim pursuant to s.36(2)(a) of the Act, the tribunal extensively discussed the question of the reasonableness of relocation to Kabul so that the applicant might avoid the real chance of persecution that it had identified for the applicant at the hands of the Kuchi in Behsud. In that connection and of the applicant’s responsibilities towards his step children, the tribunal said:
154. The children of the applicant’s former wife (their father being her first husband, the applicant’s brother) have lived with their mother and/or other relatives since their father’s death in 2007, not it appears with the applicant. They are now said to be living with their mother’s brother in Pakistan and the applicant has stated that he does not have any contact or address. The applicant appears to have been providing some financial support while he was employed in Dubai but not since. The tribunal does not accept that the applicant has any immediate ongoing practical responsibility for these children which would impact on his relocation to Kabul.
The applicant argues that the tribunal “discounted consideration of his responsibilities to his step-children because he did not appear to have provided financial support since he was employed in Dubai” (between 2006 and 2011) and that he did not have any “immediate ongoing practical responsibility” for them.
He further argues that the tribunal failed to consider two aspects relevant to the question of reasonableness of his proposed relocation to Kabul, namely:
a.Whether the fact that he does not exercise, currently, anything more than “immediate ongoing practical responsibility” for the children is as a product of his being out of the country owing to a well-founded fear of persecution; and
b.Whether the tribunal ought to have considered the impact upon relocation upon his seeking to exercise any responsibility greater than “immediate ongoing practical responsibility”.
The applicant submits that “the tribunal artificially limited its relocation enquiry by reference to this concept of “immediate ongoing practical responsibility” and therefore not carried out its task”. He argues that what responsibility the applicant had beyond “immediate ongoing practice (sic) responsibility” in the context of his return to Afghanistan was not considered, including how the applicant might seek to exercise that responsibility and whether relocation would impact on how he might go about seeking to exercise that responsibility and whether it was reasonable to expect the applicant to confine himself to Kabul in light of such responsibility.
However, the tribunal was only required to consider the applicant’s responsibility to his step-children within the context in which the applicant had raised those issues. Of that mater, the applicant told the tribunal and the tribunal found, that the children had lived with other relatives since 2007 and not with the applicant. It found that the children were living in Pakistan with their mother’s brother. It found that the applicant did not have any contact or address for the children and while the applicant had provided some financial support while employed in Dubai, he had provided none since.
In those circumstances, the tribunal’s finding that the applicant had no practical responsibility for the children is entirely unremarkable. Moreover, the tribunal’s finding that the applicant’s lack of responsibility for the children would not impact on the applicant’s ability to relocate to Kabul is also unremarkable. Apart from anything else, on the material before the tribunal and on the tribunal’s findings, the applicant would have no need to go to Behsud for the children because they no longer lived there, but lived in Pakistan.
I accept the first respondent’s argument that the present case should be distinguished from Minister for Immigration and Border Protection v SZSCA (2014) 314 ALR 514. Unlike the facts in SZSCA, the applicant here is not required by the relocation considered to be reasonable by the tribunal to cease doing something which he was doing in the area from which he might relocate. The tribunal has not assumed that he will refrain from doing something that he would otherwise do. I accept that the tribunal did not limit its enquiry as the applicant suggests, but based it on the particular circumstances of the applicant. The applicant had no contact with the children and did not claim that he would do anything different in the future, irrespective of where he lived.

In my view, the applicant has no prospect of establishing jurisdictional error by this ground.

Grounds 3, 4, 6 and 7

The third, fourth, sixth and seventh proposed grounds of review were dealt with compendiously by the applicant in oral submissions. I shall deal with them in that way too.
These grounds focus upon the applicant’s claim for complementary protection. They are in the following terms:
3. The Second Respondent misconstrued its function under s36(2)(aa) by limiting its s36(2)(aa) enquiry by excluding from its consideration the risk of harm not amounting to persecution for a Convention reason.
Particulars
(a) The tribunal reasons refer to various types of harm in the context of its s36(2)(a) inquiry which are found not to pose a real chance of persecution for a Convention reason including:
i. Pervasive violence and insurgent attacks (reasons, paragraph 120)
ii. A degree of discrimination against Hazaras in areas where they are a minority (reasons, paragraph 121)
iii. Random violence (reasons, paragraph 136)
iv. Continuing security incidents in Kabul largely directed against government and international forces, foreigners and public figures and institutions (reasons paragraph 147)
v. Danger from insurgent activity (reasons, paragraph 148)
vi. Road travel between Behsud and Kabul (reasons, paragraph 131)
(b) While the tribunal considered, in the context of the applicant’s claim for refugee status, the reasonableness of relocation to Kabul to avoid the real chance of serious harm by Kuchi nomads in Beshud, the tribunal failed to consider whether it would be reasonable for the applicant to relocate to avoid the risks which did not amount to persecution for a convention reason or whether relocation would eliminate the real risk of suffering each of those risks as is required by s36(2B)(a) - because the tribunal did not consider whether such risks amounted to “significant harm” for the purposes of s36(2)(aa).
4. The Second Respondent misconstrued its function under s36(2)(aa) of the Migration Act 1958 by failing to consider the question of whether the applicant faced a real chance of significant harm on the roads between Kabul and Behsud.
Particulars
(a) The tribunal accepted (at paragraph 131 of its reasons) that road travel between Behsud and Kabul can be dangerous due to insurgent activity but was not satisfied such danger only affected Hazaras or was directed against Hazaras specifically for any Convention reason or reasons;
(b)There was evidence of the applicant visiting Behsud on at least four occasions while living in Dubai from 2006 to 2011 for various family reasons which raises the question of whether the applicant would be likely to visit Behsud if he did in fact relocate to Kabul and thereby face danger on the roads between Kabul and Behsud.
(c)The tribunal (at paragraph 156 of its reasons) determined not to consider the question of the applicant facing danger on the roads between Kabul and Behsud because the tribunal was satisfied it would be reasonable to relocate to Kabul to avoid persecution for a Convention reason and assumes therefore that the applicant would be returned directly from Australia to Kabul. The tribunal failed to consider that the applicant may in fact travel on the roads between Kabul and Behsud after relocating to Kabul and does not make any factual finding that he would not travel on such roads.
(d)The effect of the tribunal’s reasons is to require the applicant to live discreetly by not travelling on the said roads in order to avoid the risk of significant harm thereby undermining the complementary protections against refoulement extended to the applicant by s36(2)(aa).
…
6. The Second Respondent misconstrued its function under s36(2)(aa) by including in its consideration matters relevant only to the determination of s36(2)(a).
Particulars
It can be inferred from the reasons for decision that the Second Respondent failed to adequately separate its enquiries under s36(2)(a) and s36(2)(aa) and that the s36(2)(aa) enquiry was infected by considerations not relevant to such enquiry, for example, the use of the phrase (at paragraph 158) “not directed against the applicant personally” when dealing with the s36(2)(aa) enquiry.
7. The Second Respondent asked the wrong question or misconstrued its function under s36(2B)(c) by not considering whether the “difficulties” identified by the tribunal were ones faces by the population of the country generally and are not faced by the applicant personally.
Particulars
(a)The conclusion at paragraph 158 of the reasons for decision of the tribunal appear to refer, having regard to the findings contained in paragraph 148, to the population of Kabul generally rather than the population of Afghanistan generally as is required by s36(2b)(c).
(b)Further, the reasons at paragraph 158 are infected by a consideration relevant only to the issue of persecution as is evident by the use of the phrase “not directed against the applicant personally” instead of the statutory language “not faced by the [applicant] personally”
As the applicant points out, his complementary protection claim is dealt with in two paragraphs in the tribunal’s reasons for judgment. I have set them out above. The reasoning appears to be:
a.the applicant faces persecution in Behsud;
b.it is reasonable to relocate to Kabul to avoid persecution in Behsud;
c.he would not be at real risk of suffering “serious harm” amounting to persecution in Kabul;
d.nor would he face a real risk of “significant harm” in Kabul, relying on the discussion regarding Kabul in dealing with the Refugee Convention claim; and
e.any “difficulties” in Kabul are faced by the population generally and not directed against the applicant personally.
The applicant argues that the problem with the tribunal’s reasoning is that it did not consider whether there were any risks not already identified by the tribunal for the purposes of the applicant’s protection claim (i.e. those that might amount to serious harm) that might amount to significant harm for the purposes of his claim for complementary protection under s.36(2)(aa) of the Act. The applicant correctly points out that the tribunal’s reasons refer to various types of “harm” in the context of the s.36(2)(a) inquiry which were held not to pose a real chance of persecution against the applicant for a Convention reason. Those types of harm included:
a.pervasive violence and insurgent attacks;
b.a degree of discrimination against Hazaras in areas where they are a minority;
c.random violence;
d.continuing security incidents in Kabul largely directed against government and international forces, foreigners and public figures and institutions;
e.danger from insurgent activity; and
f.danger from road travel between Behsud and Kabul.
Those matters were all identified by the applicant and considered by the tribunal as sources of serious harm for the purposes of his protection claims pursuant to s.36(2)(a). The tribunal then relied upon its findings in relation to those matters to determine that his claim for complementary protection was not made out.
The applicant argues that the tribunal did “not engage with the language of s.36(2)(2A) (sic) at all in relation to ‘serious harm’”. He argues that the tribunal ought to have done so and in the absence of having done so I should infer that the tribunal misunderstood and misapplied the relevant tests: SZSKC v Minister for Immigration [2014] FCCA 938 at [86].
However, in my view, the tribunal did engage with the language of s.36(2A) of the Act. The tribunal set out the requirements for complementary protection. It set out that significant harm was exhaustively defined in s.36(2A) of the Act. The tribunal referred to the circumstances identified in s.36(2B) of the Act.
The tribunal correctly identified the claims made by the applicant and identified that he would not face a real chance of harm from Kuchis’ attacks should he relocate to Kabul. The tribunal was not satisfied that in Kabul the applicant would face a real risk of significant harm arising from the sources of harm identified by the applicant and his advisers.
As the first respondent submits, any consideration of the applicant’s claims to complementary protection must be seen in the context of the actual claims made by the applicant. They were, inter alia, the subject of written submissions made by the applicant’s representative to the tribunal on 15 August, 2012 and again in November, 2012. In those submissions, the applicant claimed that he feared that he would be arbitrarily deprived of life, tortured, subject to cruel or inhumane treatment or punishment or subject to degrading treatment or punishment. But he claimed that this would happen at the hands of the Taliban and the Kuchis. Those claims were consistent with the claims made by the applicant in his statutory declaration made at the time of his protection application.
The tribunal considered those claims extensively in the context of s.36(2)(a) of the Act. It found some of the claims were made out, but that it was reasonable in the circumstances for the applicant to relocate to Kabul. The applicant made no additional claims, or identified any other potential sources of harm to him, in relation to his claim for complementary protection.
I accept the first respondent’s submission that there was no need, given the tribunal’s findings that the applicant would not have faced a real chance of “harm”, for it to consider whether or not the claimed harm might amount to significant harm for the purposes of the complementary protection claim. Once the tribunal determined that the chance of the identified harms coming to pass did not pass the real chance threshold for the purposes of his protection claim, a finding that those same harms would not meet the real risk threshold was inevitable. That is all the more so if s.36(2B)(a) of the Act is engaged so as to deem that the applicant would not satisfy the complementary protection requirements, as it was in this case. As the first respondent submits, there is no requirement for the tribunal to first determine whether the applicant faced significant harm before considering the application of the criteria in s.36(2B) of the Act.
As the first respondent points out, the findings of fact made by the tribunal in its consideration of the applicant’s relocation to Kabul supported its ultimate conclusion that the applicant did not meet the requirements for complementary protection.
I accept the first respondent’s submission that the tribunal’s reasons on paragraph [158] (set out above) is clearly a consideration of s.36(2B)(a) of the Act, notwithstanding that the section is not expressly referred to in that paragraph. The paragraph also makes clear that the tribunal considered s.36(2B)(c) of the Migration Act and determined that the risk faced by the applicant in Kabul was a risk faced by the population of the country generally and not by the applicant personally, such that there is taken not to be a real risk that the applicant would suffer significant harm if he returned to Kabul.
Ground 3 does not identify jurisdictional error.
For the same reasons, the matters raised by grounds 6 and 7 set out above do not demonstrate jurisdictional error by the tribunal. In the context of the applicant’s claim to complementary protection, it was necessary for the tribunal to consider the matters raised in s.36(2B)(c) of the Migration Act. In paragraph [158], the tribunal did just that, although it did not refer to the section expressly. But its failure to do so does not demonstrate any error in the tribunal’s reasoning. The language used by the tribunal is plainly the language of the statute. That the tribunal used the phrase “and not directed against the applicant personally” instead of the precise terms of the statute, namely: “and is not faced by the non‑citizen personally” does not demonstrate error. The tribunal is not required to express itself using the precise terms of the statute provided that it has understood the statutory requirements and applied them. That is what the tribunal has done here. To consider otherwise is, in my view, to take out the fine-toothed comb and run it through the tribunal’s reasons with an eye keenly attuned to errors that might be thus identified. That is not the function of this judicial review process.
In support of this ground, the applicant argues that the tribunal found that the evidence did not support that returnees are persecuted on return to Afghanistan, but it did raise the possibility of them being harmed in ways which do not amount to persecution, and in particular as a result of “random violence”. The applicant further argues that random violence may result in a returnee being arbitrary deprived of his or her life or suffering pain or suffering, intentionally inflicted, which would satisfy either s.36(2A)(a) or (d) of the definition of significant harm for the purposes of a claim for complementary protection.
He further argues that:
18. A proper application of the first of the three disqualifying tests in s36(2B) would require the tribunal to consider both whether the applicant would face a real risk of that “significant harm” in Kabul and, if so, whether it would be reasonable to relocate to Kabul (or confine the applicant to Kabul) to avoid the risk of that harm.
19. It can be seen that it might be reasonable to relocate to Kabul to avoid the risk of localised persecution at the hands of Kuchi nomads in Beshud, (sic) but not reasonable to relocate or be confined to Kabul to avoid random violence: it is not possible to say that the tribunal would have reached the same conclusion had it not limited its enquiry to risks of harm which had already been found to amount to “persecution.
The difficulty with the applicant’s argument is that the tests set out in s.36(2B) are alternatives. Only one needs to be satisfied for s.36(2B) to be engaged. The tribunal found that at least two of the three alternatives were satisfied.
The applicant further argues that a proper application of s.36(2B)(c) required the tribunal to be satisfied that the real risk of significant harm is “one faced by the population of the country generally and is not faced by the [applicant] personally”. He argues that in “purporting to be so satisfied”, the tribunal stated:
In any event, the tribunal is satisfied that difficulties which might arise in Kabul are faced by the population generally and not directed against the applicant personally.
He argues that the language used by the tribunal “confirms that the tribunal limited itself to a consideration of “difficulties” which are targeted against the applicant which is apt only in respect of the Refugee Convention claim which deals with persecution against an applicant (for a Convention reason)”.
However, in my view the tribunal did not so limit its reference. The reference to “difficulties” in paragraph [158] is plainly a reference to the difficulties identified by the tribunal as present in Kabul, including, acts of random violence. In my view, there was no infection of the s.36(2)(aa) enquiry by considerations not relevant to that enquiry, for example, by the use of the phrase “not directed against the applicant personally”.

Conclusion

The applicant provides no satisfactory explanation for his delay in commencing his judicial review application. Further, there would be no utility in granting the requested extension because the applicant’s claims of jurisdictional error, fully argued in this application, cannot be made out. I am not satisfied that it is necessary in the interests of the administration of justice to extend the time for the applicant to commence judicial review proceedings as he seeks.
The application filed on 19 June, 2014 must be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 March, 2016.

Date: 11 March 2016

[2016] FCCA 518

11 March 2016

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction