MZAOJ v Minister for Immigration - [2016] FCCA 689

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAOJ v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 689

Catchwords:
MIGRATION – Judicial review Refugee Review Tribunal decision – application for a Protection Class XA visa – a question of finding going to jurisdictional fact – jurisdictional error – application allowed – declaration made – writs issued – remitted to the Administrative Appeals Tribunal.

Legislation:

Migration Act 1958 (Cth), ss.91R(1)(c), 477(2)

DZAAM v Minister for Immigration and Citizenship [2013] FCA 128
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZYUV v Minister for Immigration and Citizenship (2013) 138 ALD 281
MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SZQEN v Minister for Immigration (2012) 202 FCR 514
SZTEQ v Minister for Immigration and Border Protection (2015) 299 FCR 497
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 344 CLR 1

Applicant:

MZAOJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2434 of 2014

Judgment of:

Judge Hartnett

Hearing date:

10 February 2016

Delivered at:

Melbourne

Delivered on:

31 March 2016

REPRESENTATION

Counsel for the Applicant:

Ms Latif

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Tran

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The time for the making of the application be extended to the date of filing of the application on 1 December 2014.
A writ of certiorari issue quashing the decision made by the Second Respondent on 21 February 2014.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine the Applicant’s application according to law.
The First Respondent pay the costs of the Applicant fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2434 of 2014

MZAOJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 21 February 2014, affirming a decision not to grant the Applicant a Protection (Class XA) visa (‘the visa’). The application was filed on 1 December 2014. The Applicant proceeded at hearing on an amended application dated 6 January 2016.
The application, when filed, was filed approximately eight months out of time, and the Applicant therefore requires an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (‘the Act’).
Section 477 of the Act is as follows:-
“(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) 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
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca) in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or
(d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
The Applicant’s grounds of application for extension of time as set out in the amended application are:-
“1. This application has merit
2. The applicant has provided an acceptable explanation for his delay insofar as the applicant
a. does not speak English proficiently and was dependent on legal assistance to file the application;
b. did not have the financial means to seek legal support privately
3. The Minister will suffer no prejudice for this application being delayed
4. The applicant relies upon:
a. his affidavit dated 5 January 2016: and
b. the affidavit of his Victoria Legal Aid solicitor, Laura Free, dated 6 January 2016.”
The grounds of the substantive application as set out in the amended application are:-
“1. The decision of the Second Respondent was affected by legal error, in that the Second Respondent failed to apply the right test, or failed to apply the test correctly when considering whether the persecution alleged amounted to systematic and discriminatory conduct by imposing a requirement of a targeted campaign, rather than merely “motivated” and “non-random” conduct. (Ground 1)
2. The decision of the Second Respondent was affected by legal error, in that the Second Respondent failed to make a finding on the Applicant’s ‘home region’ or ‘safe area’ required by, and according to law. (Ground 2)
3. The decision of the Second Respondent was affected by legal error in that the Second Respondent made a positive finding for which there was no evidence when it found that the applicant will have community support from people of the same ethnic/religious group as the applicant in Jaghori.” (Ground 3)
The Applicant relies upon his amended application as described above, his affidavit dated 5 January 2016, and the affidavit of Laura Free dated 6 January 2016. In addition, the Applicant relies upon Contentions of Fact and Law dated 6 January 2016.
The First Respondent opposes the grant of an extension of time within which to bring these proceedings. The First Respondent seeks dismissal of the proceedings in the making of an order that the Applicant’s application for extension of time be dismissed with costs. Alternatively, if an extension of time is allowed, the First Respondent seeks the application be dismissed with costs. The First Respondent has filed a Court Book and its contents are in evidence in the proceedings.
In respect of the application for an extension of time, the First Respondent concedes that there will be no prejudice to the Minister in the Court’s exercise of its discretion in favour of the Applicant. However in the First Respondent’s Written Submissions dated 27 January 2016, and on which the First Respondent relies, the First Respondent argued that on the question of delay the affidavit material upon which the Applicant relied was unsatisfactory.
The Applicant’s affidavit evidence, being that contained in the affidavits of the Applicant and that of Ms Free, in the Court’s view however, provided compelling evidence such that the Court could be satisfied that the Applicant took appropriate and timely steps to obtain advice on his legal options, relevantly seeking to file an application on a bona fide basis, and that, once he was advised by Victoria Legal Aid that it would act on his behalf, his application was promptly lodged. As submitted by Counsel for the Applicant, the delay between April and December 2014 is attributable to the Asylum Seeker Resource Centre and Victoria Legal Aid’s processes.
The Court is satisfied in the exercise of its discretion that the Applicant’s explanation for the delay is acceptable in the requisite sense whilst acknowledging the authorities which highlight that legislative time limits are not to be ignored and that the Court should exercise its discretion where, as in circumstances like this, it is proper to do so. Counsel for the First Respondent on the hearing of the matter conceded that this was a matter where the delay had been satisfactorily explained, and that no argument would continue to be raised against the Court’s exercise of its discretion in favour of the Applicant on this basis.
The Court turns next to a consideration of the merits of the Applicant’s argument that the decision of the Tribunal was affected by jurisdictional error.

Facts

The Applicant was born on 31 December 1979 and is now aged 36 years. He was born in Jaghori, Ghazni province in Afghanistan. He is a citizen of Afghanistan, of Hazara ethnicity and a Shia Muslim. He and his family fled to Pakistan when he was four or five years of age, in 1983, where the Applicant resided unlawfully. In or around March/April of 2012, the Applicant left Pakistan and travelled through Thailand, Malaysia and Indonesia to arrive in Australia by boat on 29 June 2012.
The Applicant applied for the visa on 5 November 2012. During his entry interview with the Department of Immigration and Citizenship (as it then was) (‘the Department’), the Applicant explained that he had fled Afghanistan and then Pakistan because, as a Hazara Shia, his life was in danger.
In his application, the Applicant stated his citizenship at birth and currently was Afghan. That was accepted by both the delegate of the Minister for Immigration and Citizenship (as he then was) (‘the delegate’) and by the Tribunal. In a Statutory Declaration provided with his application and declared at Melbourne on 2 November 2012, the Applicant said as to his departure from Afghanistan the following:-
“6. My family left Afghanistan because of the war that was going on there at the time (1983).
7. I don’t know the details as I can’t remember anything about Afghanistan. All I know is what my parents have told me.
8. I don’t ever want to go to Afghanistan as it is not a safe place. They are targeting Hazaras and Shias in Afghanistan. The Taliban is the biggest problem for Hazaras. The Taliban also influences what happens in Pakistan. Groups such as Lashar e Jhangvi are associated with the Taliban. The governments of Pakistan and Afghanistan are not protecting Hazaras against the Taliban and its associated groups.
9. Those groups are against Hazaras because we are Shia. They hate our religion and they call us infidels. According to the Taliban, we are not Muslims. They have made announcements that no Hazara should be allowed to live in Afghanistan or Pakistan.
10. The other issue is that my family have no property in Afghanistan and I don’t know anyone there. We would be distrusted in Afghanistan because we have never lived there.
What I fear may happen to me in my country of reference
11. The Taliban will kill me.
12. The people of Afghanistan will distrust me generally and I will find it hard to survive.
Who I think may harm/mistreat me in my country of reference and why.
13. The Taliban because – they want to kill Hazaras and Shias
Do I think the authorities of Afghanistan can and will protect me and or my accompanying members, where applicable, if I / we were to go back.
14. The government of Afghanistan would not be able to protect me. They don’t care about Hazaras and we have never received protection from the government of Afghanistan. If we had the protection of the government we would be in our own country and not scattered everywhere as we are now.
Do I think that there is a place in Afghanistan where I could be safe.
15. I would not be safe anyway. There is no safe place for Hazaras and Shias in Afghanistan.
Other reasons I cannot return to my home country – Complementary protection
16. I cannot return to Afghanistan for the reasons I mentioned above. There is a high risk of me being killed by the Taliban.”
On 5 July 2013, the delegate refused the visa application. On 10 July 2013, with the assistance of his migration agent, the Applicant applied to the Tribunal for merits review.
On 2 October 2013, the Tribunal wrote to the Applicant’s migration agent and invited the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Applicant was invited to appear before the Tribunal on 19 November 2013, and it was noted that an interpreter in the Hazaraghi language would be present.
By correspondence of 10 October 2013, the Applicant’s migration agent filed detailed submissions and country information with the Tribunal in support of his claims. Contained in those submissions and as contained in the Court Book at page 135, which contents are in evidence before the Court, is the following paragraph:-
“24. Hazara-majority districts are generally rural, isolated and very poor; their residents, in order to provide for themselves and their families (and in order to receive certain essential services, such as healthcare), are forced to travel further afield. To say that these districts are ‘safe’ ignores the fact that they are not sealed off from the remainder of Afghanistan; … [MZAOJ], if returned to Afghanistan, could not merely reside in his home district, but would be forced to travel frequently within that country. They would, as a result, face serious risks of harm on the roads of Afghanistan. As mentioned previously, and stated by … [MZAOJ], the roads of Ghazni Province are particularly risky in this respect and present a known Taliban target.”
The Applicant’s claims before the Tribunal were that he faced a real chance of persecution or significant harm “throughout Afghanistan” by reason of his Hazara race, his Shia Muslim faith, and his membership of particular social groups, namely:-
a)as a Shia Hazara who has spent a significant time outside of Afghanistan; and
b)as a failed asylum seeker and because of his imputed political opinion of opposition to the Taliban.
He claimed that he would be perceived to hold this imputed political opinion for reason of his status as a Shia Hazara and his status as a failed asylum seeker.
In the submissions made in the correspondence of 10 October 2013 to the Tribunal from the Applicant’s migration agent, the Applicant made specific submissions in response to the delegate’s decision canvassing the likelihood of persecution of the Applicant throughout Afghanistan. The issue of relocation was also considered in specific submissions with the Applicant claiming that independent country information indicates there is a real chance that the Applicant would be persecuted because of his race and religion throughout Afghanistan. As a result, the issue of relocation does not arise, it was submitted.
The Applicant also made submissions and gave evidence that:-
a)he had no property, family or support networks or contacts in Afghanistan;
b)employment was extremely difficult to obtain; and
c)the Applicant’s children would have difficulty attaining an education in Afghanistan based on independent country information that suggested a systemic attack by the Taliban on education in Afghanistan, particularly of girls, the Applicant having one daughter.
Following a hearing on 19 November 2013 at which the Applicant appeared with an interpreter in the Hazaragi and English language and his registered migration agent, by decision dated 21 February 2014, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

Tribunal findings

As set out in paragraph 27 and 28 of the Tribunal’s Statement of Decision and Reasons dated 21 February 2014 (‘the Decision Record’) the Tribunal accepted that the Applicant was born in the Jaghori district, Ghazni province in Afghanistan and that he lived there until sometime around 1983 when he was around four or five years old. The Tribunal accepted the Applicant left Afghanistan with his family and went to Pakistan because the environment in Afghanistan was unsafe. The Tribunal accepted that the Applicant and his family lived in Pakistan illegally and that the Applicant has no entitlement to re-enter and reside in Pakistan. The Tribunal also accepted that, in the many years that the Applicant lived in Pakistan, he returned to Afghanistan only once, two or three years ago, to get his taskera.
In paragraph 30 of the Decision Record, the Tribunal accepted that the Applicant had “a strong subjective fear of harm from the Taliban if he returned to Afghanistan” for reasons of his Hazara ethnicity and Shia religion. The Tribunal said however:-
“…The Tribunal notes the country information it put to the applicant in the hearing regarding the situation of Hazaras in Afghanistan from sources such as UNHCR and DFAT which indicates that despite serious security problems and generalised violence affecting the population generally in Afghanistan, Hazaras are not targeted solely because of their ethnicity and religion. The Tribunal has carefully considered the independent information about the security situation in Afghanistan for Hazaras generally, including information provided by his advisor, and finds that there is no suggestion that there is a campaign by the Taliban insurgency to target Hazara Shias. Although the Tribunal accepts that there is a history of Hazaras and Shias in Afghanistan suffering discrimination and violence on the basis of their religion and that whilst the Taliban was in power, Hazaras were targeted for reasons of their race and religion, the Tribunal does not accept that the Taliban now specifically targets Hazaras or Shias in Afghanistan on a systematic and discriminatory basis for the essential and significant reasons of their race and religion. Sources such as DFAT have consistently reported over the last two years that Hazaras as a group do not face systematic violence or any existential threat. In March 2002 it was stated that Hazaras continue to face societal discrimination in Afghanistan but the community was not being persecuted on any consistent basis.”
The Tribunal noted at paragraph 31 of its Decision Record that the Applicant’s “home area” of Jaghori, as described by the Tribunal, was predominantly inhabited by Hazaras and from country information was an area that was “reasonably secure and quite fine for Hazaras”. Counsel for the Applicant submitted to the Court that this reference (“home area”) as made by the Tribunal was not accompanied by any identification of the law pertaining to “home region”, or reasoning that assists in construing this reference.
The Tribunal considered the Applicant would not be subjected to “serious harm” on his return to his home area in Jaghori, as stated in paragraph 32 of the Decision Record. The Tribunal noted in that paragraph that it had considered the Applicant’s response to the country information, which was that for him, personally, living in Afghanistan is impossible because he would be killed; he has no connections in Afghanistan; and because he has lived in another country for so long, he will have a different accent. The Tribunal also noted the Applicant’s advisor’s submission at the conclusion of the hearing regarding the Applicant’s significant lack of family and support networks in Afghanistan, lack of property, lack of education and unfamiliarity with the area due to his long absence, making it “unreasonable” for the Applicant to return to Afghanistan. The Tribunal said at paragraph 32 of its Decision Record:-
“…While the Tribunal appreciates the applicant may face difficulties adjusting to life in Jaghori due to his long absence from there and unfamiliarity with the area and that he may face serious challenges including finding employment, as many Hazara Shias in that particular area do, the Tribunal does not accept that the applicant will be subjected to significant economic hardship or denial of access to basic services or a denial of capacity to earn a livelihood, such that it would threaten the applicant’s capacity to subsist if he returns to his village. The Tribunal finds the applicant is a young able-bodied man who has a significant number of years’ experience working in Pakistan and while he may not be educated, he has the skills and capability to find employment within his field of expertise or in a similar trade in Afghanistan. Although the Tribunal accepts that the applicant has no property in Jaghori or any familial connections or support networks, the Tribunal finds he will be returning to an area which is predominantly Hazara Shia and in these circumstances, the Tribunal finds that the applicant will have the community support of people from the same ethnic/religious group. The Tribunal therefore does not accept the applicant would be subjected to serious harm on his return to his home area in Jaghori.”
The basis for this finding as to community support from the same ethnic/religious group, is not stated.

On the basis of the available country information, and having regard to the Applicant’s circumstances, the Tribunal did not accept the Applicant faced a real chance of being seriously harmed whilst travelling on the roads.
In light of country information and the fact the Applicant would be returning to Jaghori, which is predominately Hazara, the Tribunal found that the Applicant did not face a real chance of persecution, including physical violence and/or the denial of social and economic rights, for reason of his Hazara ethnicity or Shia religion or as a Shia Hazara returnee from Pakistan or because of an imputed political opinion based on his Hazara Shia background. Nor did the Tribunal accept that the Applicant would face persecution on his return to Jaghori because of his membership of the particular social groups as a Shia who has spent a significant time outside of Afghanistan and/or as a failed asylum seeker.
Finally, the Tribunal found on the basis of the information before it, any consideration of what will happen if and when the coalition forces leave Afghanistan was speculative and that “given the amount of time and money that has been invested by the international community into the country, it does not accept that Afghanistan will be left completely or that the situation will descend to civil war now or in the reasonably foreseeable future.”[1]
[1] Refugee Review Tribunal Decision Record dated 21 February 2014 at [37].
The Tribunal reached similar conclusions in respect of the Applicant’s claim to complementary protection.

Ground 1

At the time of the Tribunal decision, s.91R(1)(c) of the Act was as follows:-
“(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.”
As can be seen from the above, conduct would constitute “persecution” for the purposes of the Act only if it was “systematic and discriminatory”. “Systematic conduct” meant “non-random” acts. The Applicant argued for the Tribunal to find:-
“there is no suggestion that there is a campaign by the Taliban insurgency to target Hazara Shias”
and for it not to accept that:-
“the Taliban now specifically targets Hazaras or Shias in Afghanistan on a systematic and discriminatory basis”
was to misunderstand and misapply the criterion in section 91R(1)(c) of the Act.
The Applicant argued that on a fair and holistic construction of the Tribunal’s reasons, the Tribunal had fallen into jurisdictional error by imposing a requirement that the conduct be systematic in the sense of an ongoing or “consistent” series of acts: a “campaign”, when the threshold set by section 91R(1)(c) of the Act was non-random acts. The Applicant argued that the Tribunal’s reasons are scant; that they do not identify the relevant legal principles and repeatedly use language that is inconsistent with the requirement imposed by section 91R(1)(c) of the Act.
In response, the First Respondent argued that the Tribunal was not considering section 91R(1)(c) of the Act. Rather, what the Tribunal was considering was the requirement that an Applicant for a protection visa have a “well-founded” fear of persecution for a Convention reason. These are distinct inquiries. (VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 344 CLR 1 at 7 (11 to 13, Gummow J)).
The First Respondent argued that whether there is a campaign or systematic and discriminatory conduct against a particular social group, of which the Applicant was a member, is a permissible consideration to take into account when considering the latter question, as the Tribunal was doing.[2]
[2] See, eg, MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348 at [123] (Kenny J); MZYUV v Minister for Immigration and Citizenship (2013) 138 ALD 281 at [45] (Gordon J); DZAAM v Minister for Immigration and Citizenship [2013] FCA 128 at [23] (Mansfield J).
The First Respondent submitted that reading the Tribunal’s reasons as a whole there is abundant evidence to demonstrate that what it was considering was the requirement that the fear be “well-founded”, rather than a consideration of s.91R(1)(c) for the following reasons:
a)Section 91R(1)(c) is not mentioned in the reasons at all;
b)Paragraph 30 begins with the Tribunal recording its acceptance that “the applicant has a strong subjective fear of harm” (this gestures towards the well known principle that the requirement for a “well-founded” fear has both subjective and objective elements);
c)The Tribunal in paragraph 24 identifies the “primary issue in this review” as being “whether there is a real chance that, if he returns to Afghanistan the Applicant will be persecuted for one or more” Convention reasons;
d)The Tribunal summarises its decision at paragraph 38 on the footing that it “finds that the Applicant’s fear of persecution is not well founded”.
The Court accepts the First Respondent’s submissions on this ground. Further, the Court finds that what the Tribunal set out in paragraph 30 of its Decision Record is not contrary to section 91R(1)(c) of the Act.
In SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 at 516 [72] the Full Court of the Federal Court described the requirement in s.91R(1)(c) of the Act that conduct be “systematic” as follows:
“…Nor does the word “systematic” mean there is a requirement that conduct be repeated, in respect of the same or different individuals, a certain number of times: see Ibrahim at 30 per McHugh J; Minister for Immigration and Citizenship v SZCWF [2007] FCAFC 155; (2007) 161 FCR 441 at [31] to [32]. It is clear then, that “systematic” is used in s 91R(1)(c) in the same way that “discriminatory” is used, to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the alleged persecutor, rather than behaviour that is random or accidental.”
In paragraph 30 of its Decision Record the Tribunal found there was no suggestion that there was a campaign by the Taliban insurgency to target Hazara Shias and did not accept that the Taliban now specifically targets Hazaras or Shias in Afghanistan on a systematic and discriminatory basis for the essential and significant reasons of their race and religion. Those findings are consistent with a construction of s.91R(1)(c), which directs attention to the deliberateness of the conduct complained of. Reading that paragraph as a whole, it is clear that the Tribunal was responding to the way the Applicant put his case.
The first ground shall be dismissed.

Ground 2

This ground of review is that the Tribunal failed to make a finding on the Applicant’s ‘home region’ or ‘home area’ or ‘safe area’ required by, and according to law.
The Applicant argues that the Applicant’s claims and evidence raised a question of fact: whether the Applicant had a home area and what the home area was. The Applicant submitted that the Tribunal’s consideration of the Applicant’s claims and evidence concerning his connection to Jaghori was limited to assessing the degree to which the Applicant was at risk of “serious harm”. Counsel for the Applicant argued that the Tribunal was bound to apply the legal framework and make findings on whether the Applicant had a home area or whether it was more appropriate to consider his claims against the situation in Afghanistan.
The Applicant relied upon the decision in SZQEN v Minister for Immigration (2012) 202 FCR 514 at 523 [38] wherein Yates J said as follows:-
“I propose to apply the statement of principle in Randhawa by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant’s home region to another place in the claimant’s country of nationality that is not the claimant’s home region. This position is supported by the United Kingdom authorities to which I have referred. In proceeding on this basis I do not think that the reference in the cases to “home region” or “home area” (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a “home region” or “home area” is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a “home region” or “home area” of the claimant. Whether such ties exist and whether a particular location can be appropriately characterised as a “home region” or “home area” are matters of fact.”
The Applicant claimed the Tribunal did not identify the relevant legal framework firstly and then did not proceed to consider the facts tending towards or against the Applicant having a home region against that legal framework. Further, the Applicant argued that the Tribunal did not explain, adequately or at all, why the Applicant’s claim that his application should be considered against the whole of Afghanistan was rejected. The Applicant argued further that the Tribunal’s reasons made it difficult to identify the basis for the Tribunal’s reference to Jaghori as the Applicant’s home region and for the Applicant to identify ‘with certainty’ what the Tribunal’s reasons were and what facts it considered material to the decision. These failures meant the Tribunal had not adequately dealt with the Applicant’s claim that he had a well-founded fear of persecution across Afghanistan and thus revealed jurisdictional error.[3]
[3] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 69 per McHugh, Gummow and Hayne JJ.
The Respondent submitted that the Tribunal made a finding of fact, which cannot and has not been controverted, that Jaghori is the birthplace of the Applicant and his home region. It was thus unnecessary for the Tribunal to consider the Applicant’s claim against the situation across the whole of Afghanistan. Further, the Applicant’s case was presented in a manner before the Tribunal that laid emphasis upon Jaghori. All of this is correct. The Applicant himself presented his case to the Tribunal as if Jaghori was his home region. The written submissions of the Applicant before the Tribunal had some focus on the situation in Jaghori and it is difficult to see how the Applicant can now claim that this finding of fact, made on the evidence before it as I find, could not have been made by the Tribunal. Such finding of fact is a matter for the Tribunal.
This ground shall be dismissed.

Ground 3

The Applicant argues that the Tribunal’s finding that the Applicant would not be persecuted on his return to Jaghori, because he would have the community support of people from the same ethnic/religious group, was not supported by evidence and nor was this inference reasonably open to the Tribunal on the material before it. I accept the Applicant’s submissions in that regard and further the argument that the Tribunal’s basis for its finding is not stated and cannot be gleaned from the Decision Record. This finding was, as a matter of fact, a finding that community support would protect the Applicant from being subjected to serious harm, not merely that people from the same ethnic and religious group as the Applicant were to be found in Jaghori. That finding, I am satisfied, did go to a question of jurisdictional fact, namely whether the Applicant had a well-founded fear of persecution.
In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231, Mansfield, Selway and Bennett JJ held, at paragraphs [18] and ]19] that:-
“18. The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different argument was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable’. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
19. This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (‘S20’) at 62, 67, 76, 90-91.”
There was no evidence before the Tribunal that the Applicant would have the support of Hazaras in Jaghori of sufficient calibre to provide safety and security. Counsel for the First Respondent accepted that there was no evidence before the Tribunal for the proposition in that sense, but argued that the Tribunal was adverting to the evidence that the Applicant was of the same ethnicity and religion as those living in Jaghori to find that he would not be alien to and isolated from them on those accounts. But it was a broader finding than that. Further, the evidence before the Tribunal was that the Applicant and his family would be ‘distrusted’ in Afghanistan because they had never lived there and that the Applicant “would find it hard to survive”. There was no evidence to demonstrate that the Applicant would have community support of any type for any purpose and indeed significant evidence to the contrary. Nor was there relevant country information to support that proposition. The Applicant’s evidence as to his lack of supports and a network in Afghanistan and consequent inability to survive was a critical element of his claim. The First Respondent argued that what the Tribunal plainly did was draw an inference from the evidence about the ethnic and religious demographic composition of Jaghori and that such inference was not objectionable, so long as it was reasonably open to the Tribunal. The Court is not satisfied that is the case. The First Respondent also argued this was not a jurisdictional fact in the accepted sense of being a finding of fact which is a necessary precondition to the exercise of some statutory power.[4] Nor, it was argued, was it a critical step in the Tribunal’s reasons.[5] The Court finds however that it was a finding that was a critical step in the ultimate conclusion of the Tribunal, with no evidence to support such finding and hence the Tribunal has made a jurisdictional error.
[4] Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 per Gummow and Hayne JJ at 39.
[5] SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19].
Given the finding of jurisdictional error, there shall be granted an extension of time within which to bring these proceedings and the substantive application shall succeed. Costs will follow the event.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 31 March 2016