MZYPJ v Minister for Immigration

[2012] FMCA 98

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPJ v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 98

MIGRATION – Review of decision by Independent Merits Reviewer – offshore entry person – Applicant of Hazara Shia ethnicity – whether extension of time should be granted – failure to consider whether Applicant might suffer apprehended persecution as a member of a social group which arose from the claim – extension of time granted.

Migration Act 1958 (Cth), ss.5(1), 91R, 477(1), 477(2)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
NAOI v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCA 383
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625
VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332; [2004] FCA 927

Applicant: MZYPJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: J. BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1112 of 2011

Judgment of: Whelan FM

Hearing date: 15 December 2011

Date of Last Submission: 15 December 2011

Delivered at: Melbourne

Delivered on: 16 February 2012

REPRESENTATION

Counsel for the Applicant: Ms A. Burt

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Ms S. Burchell

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The time for filing the application be extended to 28 July 2011.

THE COURT DECLARES THAT:

The recommendation of the Second Respondent was not made in accordance with law, by reason of the Second Respondent failing to consider that the Applicant might suffer apprehended persecution as a member of a particular social group

THE COURT ORDERS THAT:

1. The Minister, his department, officers, delegates or agents be restrained by injunction from relying upon the recommendation of the Second Respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1112 of 2011

MZYPJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

J. BLOUNT IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application for:

   a)firstly, a declaration that the recommendation of the Second Respondent, the Independent Protection Assessment Reviewer (“the Reviewer”), of 29 May 2011 was not made in accordance with law; and

   b)secondly, an injunction restraining the First Respondent from acting on that recommendation.

Background

1. The Applicant is a Hazara Shia who was born in Afghanistan. The Applicant is an offshore entry person as defined in s.5(1) of the Migration Act1958 (Cth) (“the Act”). He arrived in Australia on

   
   

   9 April 2010. On 16 July 2010, he made a request for a Refugee Status Assessment (“RSA”).

2. On 16 August 2010, a delegate of the Department determined that the Applicant was not a refugee as defined by the Convention. On

   
   

   27 August 2010, the Applicant requested an Independent Merits Review of the delegate’s decision.

3. The Applicant’s legal advisers made written submissions on his behalf following this request and provided further submissions on 23 March 2011 and 20 May 2011. On 30 April 2011, the Applicant was interviewed by the Reviewer.

4. On 29 May 2011, the Reviewer issued his recommendation and on

   
   

   28 July 2011, the Applicant issued this application for judicial review.

5. As the application was not lodged within the time frame provided by s.477(1) of the Act, an extension of time is required by the Applicant pursuant to s.477(2) of the Act.

6. The Court in dealing with such matters in the context of the provisions of the Act has generally applied the principles set out by Wilcox J in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344. In the circumstances of this case, the Applicant states that the reason for the delay in lodgement was his location in an isolated detention centre with very limited access to legal advice.

7. Both the Applicant and the First Respondent agree that the principal consideration for the Court in determining whether to exercise its discretion to grant an extension in this matter is whether there is merit in the substantive application such as to warrant an extension of time.

The Applicant’s claims

1. The Applicant claims that he is a Hazara Shia from Kabul and that he comes from a wealthy family. He claims that in 2005 his father was stopped by the Taliban while travelling to get supplies for his shop and that he was robbed and abused by them.

2. In December 2009, the Applicant was kidnapped from his home by masked men carrying guns. He claims that they were Taliban Pashtuns. He was held by them for five days and abused by them for being a Hazara. He was released after his father paid a ransom of $30,000.00.

3. The Applicant claimed that he was targeted because he is of Hazara ethnicity and therefore does not have protection or recourse to the authorities. He fears that if he returns to Afghanistan, the Taliban and Pashtuns will kill him.

4. He claims to fear persecution because he is a Hazara Shia man and because he is a member of a particular social group being a rich citizen of Afghanistan.

5. The Reviewer accepted that the Applicant had been kidnapped as described by him. He did not accept however that the kidnappers were Taliban because armed Pashtuns were not necessarily Taliban and country information showed that the kidnappings by criminal gangs also occurred in Kabul.[1] Although the kidnappers may have shown animosity towards him because he was Hazara, the Reviewer did not accept that this was the reason for the kidnapping and threats.

   [1] Court Book, page 207 at paragraph 97.

6. He did not accept that the Applicant would face persecution simply because he was a Hazara or a Shia. Nor did he accept that the Applicant would be denied protection for a Convention reason.

7. The Reviewer was not satisfied that there existed in Afghanistan a recognisable or cognisable group of ‘rich citizens of Afghanistan’.

8. The Reviewer identified possible issues of concern for consideration of referral to the Minister in relation to possible harm for non-Convention reasons by his former kidnappers, whether to protect themselves from the consequences of their earlier crime or in order to extract further ransom.[2]

   [2] Court Book, page 210 at paragraph 120.

Grounds of the application for review

1. The Applicant relies on four grounds in support of the application for review.

2. Firstly, that the Reviewer erred at law in applying the law with respect to membership of a ‘particular social group’ by applying it as if a social group based upon what a person owns is not the kind of ‘common unifying element’ required of a ‘social group’.

3. Secondly, the Reviewer should have considered alternative social groups which arose naturally from the claim – in particular ‘Hazara men who are wealthy’ or ‘young Hazara men who are wealthy’.

4. Thirdly, the Reviewer erred in law by failing to consider the Applicant’s claims cumulatively.

5. Fourthly, the Reviewer failed to consider an aspect of the Applicant’s claims, that he may be unable to subsist as a young single Hazara man returning to Kabul (later qualified as a young Hazara man without family in Kabul) because of discrimination.

The Applicant’s submissions

1. The Applicant submits that while the Reviewer referred to a number of cases on the issue of what constitutes a particular ‘social group’, he only extracts a particular passage from Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 285 (“Applicant A”) where Gummow J agrees with a statement from Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569 (“Ram”); this passage being:

   There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of a social group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of a social group.[3]

   [3] Court Book, page 208 at paragraph 107.

2. The Reviewer places emphasis on the above words ‘or for what he owns’, which indicates that the Reviewer relies on this in finding that the wealth based group asserted by the Applicant is not a cognisable social group.

3. This effectively misstates the law on whether a wealth based group can constitute a social group. The emphasis on what someone owns precluding them from being a member of a social group is not the position at law. Nor is the question of divergence something which precludes a group from being a social group. While a group needs to be a cognisable group in society, it is not a requirement that it be cohesive or that it not be divergent in some respects. The issue of divergent sources of wealth is therefore irrelevant.

4. The Applicant referred the Court to the judgment of Dawson J in Applicant A at page 241:

   As the Federal Court has recognised (55), the phrase "particular social group" should be given a broad interpretation to encompass all those who fall fairly within its language and should be construed in light of the context in which it appears. A "group" is a collection of persons. As Lockhart J pointed out in Morato v Minister for Immigration (56), the word "social" is of wide importand may be defined to mean "pertaining, relating, or due to ... society as a natural or ordinary condition of human life". "Social" may also be defined as "capable of being associated or united to others" or "associated, allied, combined" (57). The adjoining of "social" to "group" suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word "particular" in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element (58); the element must unite them, making those who share it a cognisable group within their society.

5. There is no requirement in that definition that the group not be a group with divergent interests so long as they are a group that is cognisable and recognisable in that particular society. What the decision maker should be looking for is some degree of association between people in the sense that ‘social’ conveys such that other people in society recognise the group but there is no requirement that the group be cohesive.

6. In the very case of Ram, Nicholson J in agreeing with Burchett J said:

   I wish only to add that it is clear that the possession of wealth is capable, in the appropriate circumstances, of constituting those who possess it as members of a particular social group. Wealth is no different in this respect to land ownership: cf Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 416 ; 111 ALR 417 and Minister for Immigration and Ethnic Affairs v Respondent A (1994) 127 ALR 383 at 402. The learned judge at first instance recognised this. He also found, correctly in my view, that there was no evidentiary support that the society to which the appellant belonged recognised the characteristic of wealth as alone creating an identifiable group. His Honour also found that the group posited (“the rich”) was too vague, uncertain and extraordinarily wide. Such difficulties are not necessarily obstacles to “the rich” constituting a particular social group where the evidence establishes that wealth is definitive of such a group, although evidence of width may inhibit findings of particularity.[4]

   [4] Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at page 570.

7. Further when Gummow J endorsed the statement by Burchett J in Ram (at page 285 of the decision in Applicant A) he did so to support the proposition that:

   numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members

   and not the proposition that a ‘wealth based’ social group is not a permissible characterisation if it is a recognisable group in society.

8. The second ground also relates to the question of social group. The Applicant submits that it is not necessary for the Applicant to precisely define the social group to which he belongs (Applicant A).

9. The Applicant also referred the Court to the case of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE”) and in particular to paragraph [58] of that decision:

   The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.[5]

   [5] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at paragraph [58].

10. The claim in relation to the Applicant being a wealth Hazara person is articulated at paragraph [74] of the Reviewer’s decision[6] and at paragraph [62].[7] It is also in the submissions at page 161 of the Court Book where it is said:

    The Applicant submitted that when he was kidnapped he was abused and harassed for being Hazara and Shia.

    [6] Court Book at page 204.

    [7] Court Book at page 201.

11. The Applicant submits that the Reviewer did accept that the people who kidnapped him did treat him differently because of his Hazara ethnicity and his religion, and at paragraph [97] of his decision[8] he says:

    The fact that Pashtun kidnappers spoke to a Hazara victim disparagingly about his ethnicity and religion does not of itself demonstrate that they were therefore Taliban although it may go to the question of motivation.

    [8] Court Book at page 207.

12. The Applicant submits that while he may have been kidnapped because he is rich, that does not also mean that there is not an essential and significant motivation that he was kidnapped because he is a Hazara or that if he was kidnapped because of his wealth he would not be subject to further mistreatment or persecution because of his Hazara ethnicity.

13. It is submitted that the social group of wealthy Hazara people is articulated clearly by the Applicant.

14. The Reviewer in considering the Applicant’s claim in relation to ethnicity looked at the UNHCR guidelines. At paragraph [85],[9] the Reviewer quotes from the guidelines:

    UNHCR … considers that members of ethnic groups, including, but not limited to those affected by ethnic violence or land use and ownership disputes, particularly in areas where they do not constitute an ethnic majority, may be at risk on account of their ethnicity/race and/or (imputed) political opinion, depending on the individual circumstances of the case. However, the mere fact that a person belongs to an ethnic group constituting a minority in a certain area does not automatically trigger concerns related to risks on the ground of ethnicity alone. Other factors including, inter alia, the relative social, political, economic and military power of the person and/or his and her ethnic group in the area where fear is alleged may be relevant. Consideration should also be given to whether the person exhibits other risk factors outlined in these Guidelines, which may exacerbate the risk of persecution.

    (emphasis added)

    [9] Court Book at page 205.

15. The Reviewer however does not link factors such as the Applicant’s relative social, political or economic position to his profile. It was put by the Applicant that a number of his family members had been kidnapped – five relatives in the previous year including one who was killed because they were unable to pay the ransom. It is clear that a number of members of the Applicant’s own family and ethnicity had been kidnapped and subject to the same mistreatment.

16. The third ground advanced by the Applicant goes to the issue of considering the Applicant’s claims in a cumulative way. The Applicant referred the Court to the decision in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802, and in particular to the following paragraph in the judgment of Merkel J:

    While it may be convenient for the tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (that is, the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180; Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–4 ; 58 ALD 30 at 36.[10]

    [10] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802, page 247 at paragraph [7].

17. The Applicant also referred the Court to the decision in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332; [2004] FCA 927 and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625.

18. The Applicant submits that things taken cumulatively may have a different impact than on their own. It is accepted that the Applicant was kidnapped and that he may be kidnapped in the future. It is accepted that when he was kidnapped he was mistreated as a Hazara. The Reviewer accepts that there is discrimination against Hazara people.[11] The Reviewer did not consider the combined effect of the Applicant’s claims.

    [11] Court Book at page 204.

1. In relation to the fourth ground, the Applicant submits that he has been forced to leave his employment in Kabul and all of his family have fled. There is country information that supports the proposition that Hazara people are discriminated against in Afghanistan. Discrimination in the sense of economic oppression, lack of social support and protection, societal discrimination is a discrete claim and is something where whether the impact of that discrimination on somebody’s capacity to subsist should have been considered.

The First Respondent’s Submissions

1. In relation to the first ground, the First Respondent submits that the Reviewer made a factual finding in the circumstances of the case that ‘rich citizens of Afghanistan’ was not a recognisable or cognisable group and that was a finding open to the Reviewer. The Reviewer refers, at paragraph [64] of his decision[12] and at paragraph [76][13] and at paragraph [105][14] to the substance of the claim. The Reviewer correctly refers to the relevant law at paragraph [107].[15] He had to determine whether he could identify by characteristic or attribute common to all members that there was a social group which distinguishes them from society at large.

   [12] Court Book at page 201.

   [13] Court Book at page 203.

   [14] Court Book at page 208.

   [15] Court Book at page 208.

2. What the Reviewer found at paragraph [108][16] was that on the material before him, he was not satisfied that such a social group existed in Afghanistan as a recognisable or cognisable group which was precisely the question he was required to consider pursuant to Applicant A and Ram.

   [16] Court Book at page 208.

3. In relation to the second ground, the First Respondent submits that the Reviewer simply dealt with the claim as articulated by the Applicant. The Reviewer dealt with the race claims at paragraph [86] of the decision.[17] Because the Reviewer quite clearly rejected both the race claim and the particular social group claim there was no need to couple them because it was never going to change the outcome.

   [17] Court Book at page 205.

4. The Reviewer noted that it was not just Hazaras who were being targeted by these kidnappers at paragraph [102][18] and again at paragraphs [103][19] and [104].[20]

   [18] Court Book at page 207

   [19] Court Book pages 207-208.

   [20] Court Book at page 208.

5. In relation to the third ground, the First Respondent submits that if the claims are rejected individually they do not gain any additional force from being considered together (per Tamberlin J in NAOI v Minister for Immigration and Multicultural and Indigenous Affairs  [2004] FCA 383 at paragraph [21]). It is hard to see how if it is found that there is no substance in any of the individual claims there could be a higher alternative claim based on a cumulative series of negative findings.

6. The cases cited by the Applicant can be distinguished because they involved some acceptance by the Tribunal of various incidents of mistreatment which on their own would not amount to serious harm but when considered cumulatively, would satisfy the requirements of s.91R of the Act.

7. In relation to ground four, the First Respondent submits that on a fair reading, the Reviewer rejects the claim that Hazara Shias face discrimination such as to amount to persecution and that the Applicant did not face persecution simply as a Hazara and a Shia on the basis of the proposition that Hazaras and Shias are generally persecuted in Afghanistan.

8. Further, how can the Applicant raise a claim where he would be discriminated against to the point that he would be unable to subsist as at the same time that he risks persecution as a rich citizen of Afghanistan?

Conclusion

1. The Reviewer deals with the issue of the Applicant’s claim to have a genuine fear of persecution as a member of a particular social group in paragraphs [106] to [109] of his reasons for decision:

   [106] The first question is whether “rich citizens of Afghanistan” constitutes a particular social group. The second question, if that is resolved in the affirmative, is whether the persecution feared is for reasons of membership of the group.

   [107] It is well established that a particular social group is a recognizable or cognizable group within a society that shares some interest or experience in common; for example, Lockhart J in Morato v MILGEA (1992) 39 FCR 401 at 416 and Applicant S v MIMA (2004) 206 ALR 242 at [36] per Gleeson CJ, Gummow and Kirby, JJ. In Applicant A (Applicant A v Anor v MIEA & Anor (1997) 190 CLR 225 at 285, Gummow J agreed with the following statement in Ram (Ram v MIEA & Anor (1995) 57 FCR 565 at 569):

   There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.

   [emphasis added]

   [108] Having regard to the particular circumstances of Afghan society, including the very divergent degrees and sources of wealth, the reviewer is not satisfied on the material before him that there exists in Afghanistan a recognizable or cognizable group of “rich citizens of Afghanistan”.

   [109] Nor is the reviewer satisfied that kidnapping for ransom of persons whose families can afford to pay a ransom in fact targets persons for any reason other than individually for what their families own or their capacity to pay.

2. The Reviewer places particular emphasis in the quote from Burchett J in Ram on two aspects, the words ‘or for what he owns’ and ‘but by virtue of his being one of those jointly condemned in the eyes of their persecutors’.

3. It is not clear why he places the emphasis on those words. It is clear from the cases cited, including Ram itself, that the possession of wealth is capable in appropriate circumstances of constituting those who possess it as members of a particular social group. It can only be assumed that the Reviewer is relying on this passage to support his finding in paragraph [109] that people in families in Kabul who are being targeted by kidnappers are targeted because of the fact that they can afford to pay ransom rather than because they are members of a particular social group of ‘rich people’.

4. It does beg the question of whether ‘families who can afford to pay ransom’ might not comprise a particular social group. Nevertheless, I accept that it is a finding of fact, although the basis upon which the Reviewer finds that there is no recognisable or cognisable group of ‘rich citizens of Afghanistan’ because of ‘the very divergent degrees and sources of wealth’ is hard to discern.

5. It is not sufficient in my view however to say that having disposed of the issue of persecution on the basis of race, being a Hazara and on the basis of membership of a particular social group being ‘rich citizens of Afghanisatn’, that there was no other claim that the Reviewer should have considered.

6. It is clear from the UNHCR guidelines that while the mere fact that a person may be a Hazara does not automatically put them at risk of persecution, it is necessary to consider the personal circumstances of that person including issues which relate to their social, economic and political position.

7. The Applicant was a young Hazara man who had been kidnapped for ransom. The Reviewer did not accept that the kidnappers were Taliban but did accept that they were Pashtuns. He also accepted that it was plausible that the kidnappers subjected him to threats and accepted that they spoke disparagingly to him about his ethnicity and religion. It is not clear whether the Reviewer accepted that five of the Applicant’s relatives were kidnapped last year, including one who was killed because he could not pay, although he did find the Applicant to be “a credible and truthful witness in relation to his account of his personal experience”.[21]

   [21] Court Book at page 203.

8. If a claim of apprehended persecution is based upon membership of a particular social group, the Reviewer may be required to consider a group definition open on the facts but not expressly advanced by the Applicant, provided such a claim is apparent on the face of the material before the Reviewer.[22]

   [22] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at paragraph [58].

9. I am satisfied that on a fair reading of the material the issue of whether the Applicant might be subject to persecution as a ‘Hazara from a rich family’ was before the Reviewer and should have been considered by him.

10. It is not simply a conflation of the two separate claims or the cumulative consideration of separate claims but a claim which the Reviewer could identify from the material without ‘creative activity’ on his part.

11. I accept the First Respondent’s submission that the facts of this case do not give rise to any error on the part of the Reviewer because of a failure to consider the claims ‘cumulatively’. The cases which have considered this issue clearly concern situations where what it was necessary to consider was whether a series of events, not serious in themselves, could cumulatively provide a basis for a genuine fear of serious harm on the part of the Applicant.

12. I also accept the submission that there was no error on the part of the Reviewer in failing to consider if the Applicant could be subject to discrimination to the extent that he would be unable to subsist should he return to Afghanistan. Such a claim is not readily discernable from the material and is inconsistent with the Applicant’s claim that he had a genuine fear of persecution as a member of a particular social group of ‘rich citizens of Afghanistan’.

13. As I am satisfied that the second ground of the application is substantiated, I am also satisfied that on the basis of the merit of the substantive application, an extension of time should be granted to the Applicant.

14. For these reasons, I therefore declare that the recommendation of the Reviewer was not made in accordance with law.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  16 February 2012