Cae15 v Minister for Immigration
[2017] FCCA 66
•18 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAE15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 66 |
| Catchwords: MIGRATION – Citizen of Afghanistan – application for protection visa refused by the AAT – misunderstanding of the applicant’s evidence – adverse credibility finding reached without logical or probative basis – extension of time – decision quashed. |
| Legislation: Migration Act 1958 (Cth), s.477. |
| Cases cited: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 |
| Applicant: | CAE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 56 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 21 September 2016 |
| Date of Last Submission: | 21 September 2016 |
| Delivered at: | Darwin |
| Delivered on: | 18 January 2017 |
REPRESENTATION
| The Applicant (via videolink): | In person |
| Counsel for the Respondents: | Mr Liveris |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Time is extended for the making of the application to the date of the application.
The decision of the Administrative Appeals Tribunal made on 30 August 2013 be quashed.
The matter be remitted to the Administrative Appeals Tribunal for re-hearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Darwin |
DNG 56 of 2015
| Cae15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) to refuse an application for a protection visa.
The applicant is a citizen of Afghanistan. His date of birth was the subject of some uncertainty with birthdates of 31 December 1993 and 31 December 1995 being identified or ascribed at different times[1]. He gave evidence to the Tribunal on 3 June 2013 that he was then 18 years old (which is not consistent with either birthdate because if he was born on the 1993 date he would have been 17 years old and if on the 1995 date he would have been 19 years old). If he was 18 at the time of the hearing, as the Tribunal accepted, he would now be about 21 years old.
[1] See delegate's reasons, Court book page 103, and the Tribunal reasons, Court book pages 189 and 195. Part of the explanation may be that his Afghan identity document uses the Afghan rather than the Gregorian calendar and his year of birth according to that calendar is 1374 which equates to 21 March 1995 to 20 March 1996 in the Gregorian calendar.
The applicant arrived in Australia by boat in about April 2012. He applied for a protection visa on 16 September 2012. On 2 January 2013 a delegate of the Minister refused to grant a visa. The applicant applied to the Tribunal to review the decision and attended a hearing on 3 June 2013. On 30 August 2013 the Tribunal affirmed the decision of the delegate.
The applicant applied to this court for judicial review of the Tribunal decision on 2 October 2015. The first return of the matter was on 16 October 2015 when the Registrar listed it for hearing on 6 May 2016 in Darwin. At some point the applicant was transferred from Wickham Point detention centre near Darwin to Yongah Hill detention centre near Perth and when the matter came on before me on 6 May 2016 the applicant appeared by video link from Perth. The applicant was unrepresented. It was apparent that the applicant had little or no English. A Hazaragi interpreter was present. I asked the applicant about the reasons for delay in his application for review of the Tribunal decision. He told me that he understood that his then migration agent was to follow the matter up on his behalf. He said at that time he was not in detention and was living in Townsville. He told me he was subsequently taken into detention and had been in detention for 21 months. If so, it would appear that he had been detained around August 2014.
The applicant sought an application for extension of time stating as his grounds that he had been unable to secure legal assistance, that he was in immigration detention and found it difficult to speak to lawyers to get legal advice, including as to time limits, and that he had a history of trauma that impacted on his mental health and his ability to understand the migration process.
The applicant had not filed any affidavit material in support of these grounds.
I took the view that the applicant should be given the opportunity to file such an affidavit and that the Minister should be requested to have his submissions interpreted to the applicant, which had not occurred at that point. I made orders accordingly and adjourned the matter for hearing to 5 September 2016. Due to other listing requirements that date was vacated and the matter was heard on 21 September 2016.
The Minister had arranged for his submissions to be interpreted to the applicant. I am grateful for him doing so.
The applicant had attempted to file material, presumably in purported compliance with my order, but it was not in English and was not accepted by the registry for filing. I saw the material but could not understand it. The applicant said that he had been unable to obtain a translation while in detention.
The Minister opposed the extension of time, pointing to relevant authorities, and emphasising the length of the delay, close to two years. He did not point to any prejudice on his part should time be extended. I will return to the question of extension of time later.
The only ground of review identified in the application is “That the decision was not made according to law”. No further particulars were provided. Ordinarily, an applicant’s inability to identify a proper ground of review would result in dismissal of the application. However, given the applicant’s lack of English, the fact that he was unrepresented and his youth I considered it was appropriate to give him the opportunity to identify any errors in the Tribunal decision. The “errors” identified by the applicant were essentially factual matters advanced by the applicant in his claim that were not accepted by the Tribunal. With one exception, which I will deal with below, these were all credibility or factual issues that were within the jurisdiction of the Tribunal to decide.
The claim advanced by the applicant before the delegate and the Tribunal was that he had a well-founded fear of persecution on two Convention grounds. The first ground (although it really rolls up at least two Convention grounds) was that he was an ethnic Hazara and a member of the Shia sect of Islam and consequently subject to discrimination and persecution in Afghanistan. The delegate and the Tribunal both found, on the basis of what was described by the applicant’s representative in submissions to the Tribunal as “optimistic” country information, that the position of ethnic Hazara’s and members of the Shia sect had improved in Afghanistan in recent years and that they were not subject to institutionalised discrimination, at least in the government controlled areas such as Kabul, the applicant’s home. The applicant did not appear to take issue with this conclusion and, in general terms, this was not the subject of any error identified by him.
The second ground advanced by the applicant was that he had a well- founded fear of persecution based on imputed political opinion. He put the matter in this way. The applicant said he grew up in Kabul. He said that his father had died when he was a child and his mother had remarried, leaving the applicant and his younger siblings in the care of the elderly paternal grandfather. The applicant said in order to support his siblings he went to work for a car spray painter on what might be described as apprentice terms. He said that after five years he was earning little money so he decided to start his own spray painting business. He said he decided to move to Ghazni city in Ghazni province because he thought there would be less competition there. Ghazni city is about 120 km south of Kabul[2]. In the applicant’s statutory declaration dated 16 September 2012 he said he commenced his own business in “a place called Aryana Arcade, Qarabagh Motor Depot, Ghazni City, Ghazni, Afghanistan”. In a written submission to the Tribunal prepared by his migration agent dated 7 May 2013 it was said that:
17. The Applicant decided to relocate to Ghazni city – a provincial capital which is a major stopover for vehicles on the Kabul-Kandahar road. The Applicant knew that there was a significant Shia Hazara population in the city and had heard from colleagues that there was a shortage of skilled vehicle painters in the region.
18. As such, the Applicant travelled alone to the Ghazni province and secured suitable workshop space in Sarai Aryana in the Qarabagh Motor Depot of Ghazni city (“Sarai Aryana”)
[2] See the map attached to these reasons.
It is important to note that Ghazni city is a town or city in Ghazni province. The province is made up of a number of districts. Ghazni city is in its own district. There is also a town called Qarabagh situated in Qarabagh district. The town of Qarabagh is about 60 km south of Ghazni city on the road to Kandahar. The borders of Qarabagh district and Ghazni city’s district are not contiguous. This information is set out in two maps at Appendix A and Appendix B of an International Crisis Group report, The Insurgency in Afghanistan’s Heartland, relied on by the Tribunal[3]. These maps are attached to these reasons.
[3] International Crisis Group 2011, The Insurgency in Afghanistan’s Heartland, 27 June, Asia Report No 207, page 18). The report is available at accessed 10.1.2017
The applicant claimed, in summary, that about a month after he began working in Ghazni city a man came and left his car for repair in his workshop. He said that a week later, the day before the car was due to be collected by the man, the police seized the vehicle and took it away. He went to the police station to make enquiries about the reason for the seizure of the vehicle and was told that the vehicle belonged to a Taliban commander. The applicant said that he then became scared because he was afraid that the man would think that he had played some part in informing the police and would then be considered a pro-government informer and subject to possible assassination or retribution. He said that he returned to his workshop the next day and was told that the man had been to his workshop, and had, with the consent of the landlord, obtained a key to enter the workshop. He said that there were papers in the workshop that would identify him. He said that a witness had told him that the man was very angry and had made threats against him. The applicant said he was scared because a Taliban commander would have the capacity to carry out such threats. He immediately fled to Kabul. He said he then made preparations to flee to Australia and left shortly afterwards.
The Tribunal did not accept this narrative as credible.
The Tribunal’s reasons
The Tribunal began its analysis by saying that there were some things that might lead it to doubt that the applicant “had gone to Ghazni and set up his workshop there and had problems with the Taliban there”. It went on to say that it put to the applicant “that Ghazni, and Qarabagh more specifically, were places where the Taliban was known to be active”. The Tribunal also said it had information that would suggest it was difficult for a person to establish themselves in a place where they did not have family or social networks. It also doubted that the applicant would set up a business in Ghazni, having been there only once previously, particularly as he had an income from a truck in Kabul. The applicant answered these latter points by saying that the truck business was not making enough money and, even if it was, he needed to start something for himself. He said there were a lot of ordinary people who started such businesses[4].
[4] Tribunal reasons, paragraphs [33] and [34], Court book page 197
The Tribunal went on to note[5] that it had put to the applicant at the hearing that:
independent information indicates that the Taliban are active in Ghazni Province and Qarabagh district. For instance, in June 2011, the International Crisis Group (ICG) reported that the Taliban were the strongest insurgent group in the province with a near total control of Andar, Moquer, Qarabagh, Giro, Gelan and Nawah districts (International Crisis Group 2011, The Insurgency in Afghanistan’s Heartland, 27 June, Asia Report No 207, page 18)”[6].
The Tribunal referred to other country information indicating that the Taliban were active in Ghazni province.
[5] Tribunal reasons, paragraph [35], Court book page 197
[6] Ibid.
The Tribunal then observed that:
Ghazni Province and Qarabagh district in particular are places where the Taliban are present and active. The Tribunal considers that a young Hazara person would face a threat from the Taliban and other difficulties in moving to a place in Qarabagh district without family support[7].
[7] Tribunal reasons, paragraph [37], Court book page 198
The Tribunal further observed that
Even having regard to the applicant’s family situation, the Tribunal does not accept that the applicant’s claimed move to Qarabagh, a place where the Taliban are present and where he had virtually no prior experience, can be adequately explained by financial imperatives[8].
[8] Tribunal reasons, paragraph [40], Court book, page 199
In the next paragraph it said:
… the Tribunal does not consider that there is any satisfactory explanation as to why, as a young Hazara, the applicant would move to establish a business in Qarabagh, a place where he had no immediate connections and where the Taliban are present. It does not find the evidence in this regard at all convincing[9].
[9] Tribunal reasons, paragraph [41], Court book, page 200
The Tribunal then expressed doubts about the applicant’s claims generally, including his claim that a Taliban commander would bring his car to him for repair, even for a low price, as claimed by the applicant. The Tribunal said it considered the applicant’s explanation about the low price and went on to say:
Nevertheless, particularly given the difficulties with the applicant’s evidence about establishing his business in Qarabagh (as set out above), the Tribunal did not find credible the applicant’s evidence about setting up a car painting business in Qarabagh[10].
[10] Tribunal reasons, paragraph [49], Court book page 202
The Tribunal placed significant weight on its conclusion that it was not credible that the applicant would move to Qarabagh to set up a business:
60 There are a number of difficulties with the applicant’s evidence about the relevant events. Even having regard to the applicant’s family situation, the Tribunal did not consider that there is any satisfactory explanation as to why, as a young Hazara, the applicant would move to establish a business in Qarabagh, a place where he had no immediate connections and where the Taliban are present ...
61 In all the circumstances, the Tribunal finds to be lacking in credibility the applicants claims about establishing a business in Ghazni province…[11]
[11] Tribunal reasons, paragraphs [60] and [61], Court book page 206
The significance placed on this issue by the Tribunal is not surprising because this is the only aspect of the applicant’s claims that can be tested against some objective or independent evidence. It is not surprising that the Tribunal did not accept that the applicant who, as a Hazara, claimed to fear the Taliban would move from Kabul to the town of Qarabagh in Qarabagh district, one of the districts of Ghazni province controlled, according to independent evidence, by the Taliban. Such a claim is highly implausible.
However, it is doubtful that the applicant ever made such a claim. As mentioned, in his statutory declaration and the submissions made to the Tribunal he unequivocally claimed that he moved from Kabul to the Qarabagh Motor Depot in Ghazni city. In his entry interview dated 30 June 2012 the applicant says that: “… at one stage from Kabul I shift to Ghazni and start my own painting shop for the cars ...”. He was then asked “Where did you live in Ghazni while you are there?” He answered “There was a place called Jad-e-qarabagh”[12]. On my reading of this passage the most likely interpretation is that the applicant was referring to a place called Jad-e-qarabagh in or near Ghazni city. There is nothing to indicate that he was referring to the town of Qarabagh in Qarabagh district.
[12] Court book page 19
The delegate’s decision, while recording the applicant’s claim that he moved to the Qarabagh Motor Depot in Ghazni city, goes on to refer to the applicant moving to “Qarabagh, Ghazni”. There is no indication in the delegate’s statement of reasons that she was aware that this description was potentially ambiguous.
In my view, the Tribunal was confused about the difference between the Qarabagh Motor Depot, Ghazni city and Qarabagh town in Qarabagh district. The Tribunal accurately records the applicant’s claim that he lived at the “Qarabagh Motor Depot in Ghazni City” at the beginning of its statement of reasons[13]. However, later in the reasons the Tribunal says the applicant gave evidence that “… he started his own car painting workshop in an area in Ghazni Province called Ardeyeh Qarabagh. He confirmed that this was in Qarabagh District rather than Ghazni city itself.” There is nothing to suggest that the Tribunal was aware of the ambiguity in those answers and the consequent potential for confusion. The hearing was not properly recorded in its entirety and the Tribunal produced a summary record of the evidence given. The summary record sets out the evidence on this point as follows:
After that he went to Ghazni and started his own car painting workshop in Ghazni. He said that the workshop was in an area called Ardeyeh Qarabagh. When asked whether this was in the district of Qarabagh, he said that Ardeyeh Qarabagh was at the junction where a number of roads joined. That was where he had his shop. He confirmed that it was in Qarabagh District and that it was not in Ghazni City itself. When asked how far Ardeyeh Qarabagh was from Ghazni City, the applicant stated that he had not really calculated. It was about half an hour. It depended on whether you used a private car or public transport[14].
[13] Tribunal reasons paragraph [5]
[14] Court book page 175, paragraph [13]
In my view, this passage falls well short of confirming that the applicant was referring to Qarabagh town in Qarabagh district. There was no exploration of the meaning of “Ardeyeh Qarabagh”. The term “Ardeyeh” does not appear elsewhere in the materials and is undefined. It might also be wondered what word was used that was interpreted as “district” and whether that word was unambiguously equivalent to “district” in the sense of an administrative district or whether it had a more general meaning of area. Further, there was no evidence about the travel time between Ghazni city and Qarabagh town in Qarabagh district[15]. There was no evidence about the condition of the road between Ghazni city and Qarabagh town but given that it appears to be about 60 km south of Ghazni city, according to the map attached to the International Crisis Group report relied on by the Tribunal, one might doubt that the travelling time was as little as “about half an hour”. It might be suspected that this was more like an estimate of time to travel between Ghazni city and one of its suburbs. In my view, this passage does not confirm that the applicant was referring to Qarabagh town in Qarabagh district. On the contrary, it seems likely that the applicant was referring to an area in or near Ghazni city.
[15] In oral submissions, the applicant, while explaining the intermixture of Hazaras and Pashtuns in Ghazni province, told me that that there were two Hazara parliamentarians from Qarabagh which he said was “about two hours to the south” of Ghazni city. This is not evidence and I have not taken this comment into account in reaching my conclusions.
Given the applicant’s unequivocal statements in his statutory declaration and submissions to the Tribunal that his workshop was in Ghazni city, or surrounds, it is surprising that the Tribunal did not put to the applicant that these statements were erroneous or mistaken or, at least, seek clarification of them.
In my view, the only explanation for the Tribunal’s failure to clarify this issue is that it misunderstood the applicant’s evidence and was unaware of its ambiguity. Consequently it misunderstood an important element of the claim being advanced by him. Counsel for Minister agreed that there were indications that the Tribunal was confused about this issue but said that there were separate and sufficient bases for an adverse credibility finding. I do not accept that submission. It is true that there were other aspects of the applicant’s claims that might be doubted but the claim, as the Tribunal understood it, that the applicant moved to Qarabagh town in Qarabagh district was inherently implausible when tested against independent information. This was the only aspect of the applicant’s claim that could be so tested. If the claim had been made the Tribunal was entitled to place very significant weight on it in forming an adverse view about the applicant’s credibility.
As a result this misunderstanding formed an important basis, perhaps the most important basis, for its adverse credibility finding and, as the passages quoted from the Tribunal’s reasons demonstrate, the finding appears to have had a cascade effect on other credibility findings. If the Tribunal had correctly understood the applicant’s evidence it would necessarily have had to approach the evidence about Taliban controlled areas differently. The map “Appendix B” attached to the International Crisis Group report shows that only some areas of Ghazni province were dominated by insurgents. The district in which Ghazni City is situated was not, according to the map, dominated by insurgents. That the applicant would move to the city of Ghazni is not rendered implausible for that reason and, had the Tribunal properly understood the applicant’s evidence, an adverse credibility finding on that basis was not open to it.
Misapprehension of evidence in making adverse credibility findings
McHugh J observed in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[16] a finding of credibility “is the function of the primary decision-maker par excellence”. Further, North and Lander JJ said in Minister for Immigration and Citizenship v SZNPG[17]:
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claim is not jurisdictional error, so long as the error, whichever it might be, does not mean that the RRT has not considered the applicant’s claim (references omitted).
[16] [2000] HCA 1, 74 ALJR 405 at [67]
[17] (2010) 115 ALD 303 at [28]
The principles relevant to the case where there has been a misapprehension of evidence in making adverse credibility findings has been considered recently in two decisions of the Full Court of the Federal Court. In CQG15 v Minister for Immigration and Border Protection[18] the Court , referring to Durairajasingham, said:
It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds.
[18] [2016] FCAFC 146 at [37]
The Court referred with approval to the decision of Flick J in SZVAP v Minister for Immigration and Border Protection[19] where his Honour said:
20 Whatever may be the difficulties, however, adverse findings of fact founded upon credibility – like other findings of fact – may expose jurisdictional error. A finding of fact founded simply upon a conclusion that witness is not to be believed is no more immune from judicial scrutiny than any other finding of fact.
21 In an appropriate case findings of credibility by an administrative decision-maker may expose legal error.
[19] [2015] FCA 1089; 233 FCR 451 at [20]-[21]
The Court referred to a further passage from SZVAP citing the judgement of Lee and RD Nicholson JJ in WAGO v Minister for Immigration and Multicultural and Indigenous Affairs[20]:
The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]…. his Honour’s comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act…
[20] [2002] FCAFC 437; 194 ALR 676 at [54]
The Court also referred to a passage from a decision of Robertson J in Minister for Immigration and Citizenship v SZRKT[21]:
It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim. (emphasis added by the Court).
[21] [2013] FCA 317 at [78]
In a more recent decision of the Full Court in ARG15 v Minister for Immigration and Border Protection[22] the Court, after referring to the decision in CQG15, summarised the principles guiding judicial review of findings concerning credibility as follows:
[22] [2016] FCAFC 174 at [83]
(a) McHugh J’s oft quoted comments in Ex parte Durairajasingham … to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, do not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b) whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas …;
(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred …;
(d) without derogating from what was said about the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Durairajasingham) adverse credibility findings might involve jurisdictional error on recognized grounds such as:
(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii) unreasonableness; and/or
(iv) other grounds discussed by Flick J in SZVAP v Minister for Immigration and Border Protection[23] and SZSH V Minister for Immigration and Border Protection[24] referred to approvingly by the Full Court in CQG15 at [40] – [42].
[23] [2015] FCA 1089; 233 FCR 451 at [20] – [21]
[24] [2014] FCA 253 at [31]
In this case I am satisfied that the Tribunal’s conclusion that the applicant lacked credibility because it was implausible that he would go to live in Qarabagh town in Qarabagh district was reached without a logical or probative basis. I am also satisfied that the Tribunal’s conclusion that the applicant’s workshop was not, as he stated, at Qarabagh Motor Depot in Ghazni City was reached without affording the applicant procedural fairness.
In ARG15 the Court found that a misunderstanding of the evidence led to a series of adverse credibility findings. Referring to the particular circumstances of the case, the Court said the Tribunal made a series of cascading adverse findings based on an initial mistaken finding so that dependent findings were infected by the legal flaws in that initial adverse credibility finding. It went on to say:
In these circumstances, the relevant legal deficiencies in the Tribunal’s adverse credibility finding relating to the appellant mother’s evidence concerning the dowry cannot be isolated or confined in the manner suggested by the Minister. In view of the Tribunal’s reliance upon that finding to support other parts of its reasons for rejecting the appellants’ claims, the error necessarily affected those other parts. In the particular circumstances here, it should be concluded that the error was so serious and significant to the Tribunal’s rejection of the appellant’s claims as to amount to a jurisdictional error.
These comments are apposite to the circumstances of this case. I am satisfied that the misunderstanding by the Tribunal of the applicant’s evidence about where he lived cannot be isolated from its other credibility findings about the applicant for the reasons previously discussed. The error was so serious and significant as to amount to jurisdictional error.
Extension of time
Section 477 of the Migration Act requires that an applicant apply to this court within 35 days of the migration decision. Subsection (2) provides that:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
As noted, the applicant was unable to file an affidavit in support of his application for extension of time. He did, however, set out three grounds in support of his application for extension of time in his initial application. I have referred to those grounds above.
Conventionally, the matters that may be taken into account in considering whether it is in the interests of the administration of justice to make an order include the length of the delay, whether there is an adequate explanation for the delay, whether the respondent is prejudiced and whether the substantive application has merit.
In this case the length of the delay is very substantial. It can hardly be said that there is an adequate explanation, at least from the applicant, in view of his failure to file affidavit material. However, there are some matters that, as far as I am aware, are uncontroversial. The applicant has little or no English. His education is very basic. He is very young. Although he was represented at the Tribunal hearing there is no indication that he has had access to any detailed legal advice since that time and he has not been represented at any stage of his application to this court. He has not been in detention for all of that period but he has been in detention for a large part of that period and was in detention at the time his application was heard. I am satisfied that these factors are important elements in the explanation for the applicant’s delay. The most important factor is that I have found the applicant’s case has merit. I am satisfied that it is necessary in the interests of the administration of justice for time to be extended for the making of the application to the date of the application.
I have found that the Tribunal’s decision was affected by jurisdictional error and I will make orders accordingly.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 18 January 2017
Appendix A
Map of Afghanistan
Appendix B
Map of Insurgent Influence around Kabul
| Ghazni province: 1. Ab Band* 2. Ajristan 3. Andar* 4. Jaghatu 5. Deh Yak* | Kabul province: 1. Bagrami* 2. Charasiyab* 3. Deh Sabz* 4. Farza 5. Guldara | Kapisa province: 1. Alasai* 2. Hisay-e Awali Kohistan 3. Hissay-e Duwumi Kohistan 4. Kohband* 5. 6. Kohband* | Logar province: 1. Azra* 2. Baraki Barak* 3. Charkh* 4. Kharwar* 5. Khoshi | Wardak province: 1. Chak* 2. Dai Mirdad 3. Hisay-e Awali Behsud 4. Jagathu' 5. Jalrez• |
| 6. Gelan• 7. Giro* 8. Ghazni City 9. Jaghuri 10. Khwaja Umari 11. Malistan 12. Moquer* | 6. lstalif 7. Kabul City 8. Kalakan 9. Khaki Jabbar 10. Mir Bacha Kot• 11.Musayi* 12. Paghman• | 5. Mahmoud Raqi 6. Nijrab* 7. Tagab* Laghman province: 1. Alingar 2.Alishang• | 6. Mohammad Agha 7. PuliAlam Parwan province: 1. Bagram 2. Charikar 3. Siyagerd* | 6. Markazi Behsud 7. Maidan Shar 8. Nirkh* 9. Sayadabad* *Insurgent dominated area |
| 13. Nawah* 14. Nawur 15. Qarabagh* 16. Rashidan 17. Waghaz 18. Khogiyani 19. Zana Khan | 13. Qarabagh 14. Shakardara 15. Surobi* | 3. Badpakh* 4. Dawlat Shah* 5. Mehtarlam 6. Qarghayi | 4. Jabalussaraj 5. Koh-e Safi* 6. Salang 7. Sayedkhel' 8. Sheikh Ali 9. Shinwari* 10. Surkh Parsa |
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