SZTSC v Minister for Immigration - [2016] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSC v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 543

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to take into account a relevant consideration or made unreasonable or illogical findings or failed to deal with all the integers of the Applicant’s claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited (1986) 16 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263
Re Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; [2009] FCA 1470
SZOJF v Minister for Immigration and Citizenship (2011) 199 FCR 286; [2011] FCA 1384
SZRHL v Minister for Immigration and Citizenship [2013] 136 ALD 641; (2013) FCA 1093
SZSFS v Minister for Immigration and Border Protection (2015) 232 FCR 262; [2015] FCA 534
SZURK v Minister for Immigration and Border Protection [2015] FCCA 472
VAAD v Minister for Immigrationand Multicultural and Indigenous Affairs [2005] FCAFC 117

Applicant:

SZTSC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3245 of 2013

Judgment of:

Judge Barnes

Hearing date:

30 June 2015

Delivered at:

Sydney

Delivered on:

17 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr P Konditch

Solicitors for the Applicant:

Thomas McLoughlin Solicitor

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3245 of 2013

SZTSC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 5 December 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Afghanistan, arrived in Australia as an irregular maritime arrival in mid-2012. In November 2012 he lodged an application for a protection visa.
The Applicant claimed to fear harm in circumstances where a villager who was a member of the Mujahideen Party (referred to as X) had killed his father (a soldier in the Afghan army) in 1990. He claimed to suspect that X was behind an incident in which the minibus he was driving was shot at in 2010 and a subsequent attack on and shooting at his house. He also claimed to fear that Pashtuns and the Taliban would harm him as a Muslim Shia and Hazara.
In connection with his protection visa application the Applicant provided supporting documentation, including a letter from a registered psychologist with the Transcultural Mental Health Centre of 14 December 2012 expressing concern about the deterioration in his mental condition and physical wellbeing. The Applicant was said to suffer from a physical disability (having had one leg amputated) and to have exhibited symptoms consistent with post-traumatic stress disorder and major depressive disorder.
In the departmental interview the Applicant claimed that he had wanted to pursue charges against X for killing his father, but that he had been warned off by his uncle and village elders on the basis that X had power and influence in the area and in the government.
The delegate recorded that the Applicant’s advisor identified that the Applicant claimed to fear harm based upon his Hazara race and Shia Muslim religion, his imputed political opinion from his father’s association with the Communist Party, as a person who had fled Afghanistan and sought protection in the West, and as a failed asylum seeker and returnee from a Western country.
The application was refused and the Applicant sought review by the Tribunal. His advisor made detailed pre-hearing submissions. He attended a Tribunal hearing on 26 September 2013. A transcript of the Tribunal hearing is in evidence before the court as an annexure to an affidavit of Thomas Joseph McLoughlin.
On 10 October 2013 the Applicant’s advisor provided a further submission addressing issues that arose at the Tribunal hearing and enclosing a psychological report dated 25 September 2013 from a psychologist with PsychCentral Psychological and Counselling Services (which is discussed further below).

The Tribunal Decision

On 5 December 2013 the Tribunal affirmed the delegate’s decision. It referred to the evidence submitted by the Applicant and summarised his claims that he was a Hazara Shia born in Maidan Wardak Province in Afghanistan in 1982 who had moved to Kabul in 1989. The Applicant lost part of one leg when hit by a bomb during the civil war in 1995. It recorded his claim that his father was a soldier in the Afghan Army for 10 years before being killed in 1990 by a man from their village who was a member of the Mujahideen in circumstances where his village was mainly in favour of the Mujahideen Party and his father was not very popular. The Applicant claimed that he was about 20 years old when he learned who was behind his father’s death.
The Tribunal recorded that in his interview with the delegate the Applicant had claimed that he had wanted to pursue charges against X, but had been warned off by his uncle and village elders on the basis that X had power within the village and with the government. It stated that, in contrast, his agent’s submission had stated that the Applicant had gone to the district council to ask them to file a complaint against X and was told that they would have to arrest X if a complaint was to be filed against him and that they would follow up the matter, that the Applicant attended the council a number of times and was told they were following it up, but that it became clear they were not going to do anything because of X’s political connections. It was also claimed X had killed other men and had paid their relatives “blood money”, but that the Applicant did not want money but justice.
In 2003 the Applicant started a business as a minibus driver transporting passengers between Kabul and Maidan Wardak up to five times a month. He claimed that he regularly came under attack during the journey, which went through largely Pashtun areas, while driving to Kabul.
The Tribunal recorded that the Applicant also claimed that at the beginning of 2010, his minibus was shot at and he sustained severe bruises and cuts and a number of passengers were injured. He claimed that a few months later his house in Kabul was attacked at night and the attackers fired at the house. He believed that the person who killed his father was behind these incidents and he fled Afghanistan in March 2012. He explained that he believed this because people from his mother’s village had said that X had admitted responsibility for these attacks as the Applicant had not stopped pursuing him. The Applicant also claimed that villagers would often abuse him openly because of his father’s past allegiances and after he made the complaint against X.
The Applicant also claimed that it was not safe to travel between Kabul and Wardak Province, that every summer the Kuchis descended on his village and pilfered and looted, and that as he had land in his village and in Kabul he had nowhere else to go. He claimed that his village used to have 70 houses, but now had only three.
The Applicant also claimed to fear he would be suspected of having converted to Christianity or Buddhism and accused of abandoning his culture and religion. It was also submitted that the Applicant would face harm based on his membership of the particular social group of failed asylum seekers returning from a Western country.
The Tribunal accepted that the Applicant was born in Maidan Wardak, that he lived there for the first few years of his life, that his family had a property there, that his immediate family currently resided there, that he had spent time living there over the years and that it constituted a home area for him.
However the Tribunal also found that the Applicant had provided considerable evidence of his time in and connection to Kabul, including living in Kabul (as well as Maidan Wardak Province) and being educated there and being self-employed in Kabul between 1994 and 2003 as a carpet weaver and from 2011 to 2012 as a car dealer (before and after he drove the minibus). He also told the Tribunal that he had lived in Kabul for five to six months before he left Afghanistan to come to Australia.
The Tribunal considered the advisor’s submission that while the Applicant had considered Kabul his home while his father was alive and they had a home there, after his father’s death and “especially now” he considered his home area was the area he came from in Maidan Wardak Province.
The Tribunal found that given the Applicant’s “high level of connection to Kabul in residence and work over a long period of time”, Kabul also constituted a home area for the Applicant. Accordingly, the Tribunal assessed his claims against that home area.
The Tribunal accepted that the Applicant’s father was a soldier in the communist Afghan Army before being killed in 1990 by a villager (X) who was a member of the Mujahideen Party and also that his father had not been very popular in the village because of his employment by the communist government. The Tribunal found that the Applicant had been consistent in these claims and that his account was plausible in light of country information.
However the Tribunal did not accept that the Applicant had made any complaint to anyone in authority concerning the 1990 death of his father. Having regard to country information about subsequent political developments in Afghanistan, in particular the fact that the communists lost power in 1992, the Tribunal found it far-fetched that the Applicant would have believed that the pro-Mujahideen authorities in Wardak Province would have attempted to bring the killers of a former communist soldier to justice many years later. The Tribunal did not accept the Applicant’s explanation that he thought they were a good government and only later realised who the provincial authorities were, as it did not accept that he could be so ignorant of the political and historical situation in Wardak Province where he had lived for a substantial period. It also found that, given X’s influence with the local authorities, he would have no reason to fear the Applicant. The Tribunal did not accept that X had targeted the Applicant in the way claimed or that the Applicant was of any adverse interest to X.
The Tribunal accepted that the Applicant’s vehicle was attacked in 2010 when he was transporting customers between Kabul and Wardak Province, but did not accept that this was at the instigation of X. It did not accept that X had told the Taliban that the Applicant was transporting foreigners and goods or that X was linked to or now a member of the Taliban. It found that these were not plausible or credible explanations and that it was very unlikely that the alleged killer X (a Hazara involved with Harakat-i-Islami, a Shia enemy of the Taliban) would have been acting in concert with the Taliban. It also found that the Applicant’s claim that the incident was instigated by X was inconsistent with his claim that X was a very powerful man in the area as he could have targeted the Applicant directly, rather than having the Taliban shoot at a passenger bus with 18 innocent people aboard. It did not find plausible the Applicant’s explanation that X did this so he would not be blamed or his claim that X, a Hazara involved with the Harakat-i-Islami and the provincial government, was working with or a member of the Taliban and able to get them to target the Applicant.
The Tribunal did accept that the Applicant’s vehicle was attacked by the Taliban and that he was injured. It had regard to country information about the dangers of travel on the roads for everyone. However it found that the Applicant could avoid this harm by not travelling on the roads outside Kabul and that on his evidence he did not travel outside Kabul after the shooting incident, but worked as a car dealer in Kabul (and had previously worked there as a weaver).
The Tribunal did not accept that the Applicant faced a real chance of serious harm in the reasonably foreseeable future as he could avoid the harm (as he had done in the past) by not transporting persons or goods between the two areas or otherwise travelling outside the capital (including to Wardak Province). The Tribunal found that this would not amount to a modification of the Applicant’s political or religious beliefs or membership of a particular social group. Given the Applicant’s work history in Kabul, the Tribunal found that not transporting goods and people on the roads outside Kabul would not constitute serious harm to him under s.91R(2) of the Migration Act 1958 (Cth) (the Act) as a denial of his capacity to earn a livelihood of any kind where the denial threatened his capacity to subsist or more broadly.
Considering the Applicant’s circumstances and evidence overall, the Tribunal also found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of removal to Afghanistan there was a real risk he would suffer significant harm on those roads.
The Tribunal did not accept that the claimed attack on the Applicant’s house in Kabul had occurred or that the person he claimed killed his father was behind it. It reiterated that, for reasons given, it did not accept that X had any adverse interest in the Applicant and found that it would be far-fetched that X would be motivated to send armed men to the Applicant’s house in Kabul (located far away from Wardak Province) to harm him and his family.
The Tribunal accepted that the Applicant had been subjected to verbal insults in his home village because of his father’s history of being a communist soldier, but did not consider that this amounted to either serious or significant harm. It observed that the Applicant had been able to reside intermittently in his village over a number of years without experiencing any other form of harm. As it did not accept that the Applicant had made a complaint regarding his father’s death, it did not accept that he received more abuse as a result.
The Tribunal did not accept that others in Kabul would know of the history of the Applicant’s father, given the distance between Kabul and his village and the size of the city. The Tribunal went on to find that, even if it did accept that there would be such knowledge, it did not accept that the Applicant would have a well-founded fear on this basis, having regard to country information that communist supporters or perceived communist supporters were not likely to be targeted on the basis of their imputed political opinion and nor were their family members. The Tribunal had regard to the absence of any claims that the Applicant had been targeted in any other way due to his father’s communist military background and the fact that over 20 years had passed since his father was killed. It found that he did not face a real chance of persecution on account of his imputed political opinion or membership of the particular social group consisting of his family and that there were not substantial grounds for believing that as a necessary and foreseeable consequence of removal to Afghanistan there was a real risk that the Applicant would suffer significant harm on this basis.
The Tribunal continued (at paragraph 64):
In making my assessment of the applicant’s credibility, I have taken into account the psychologist’s reports that indicate that he has PTSD and a major depressive disorder. However, due to the substantial and fundamental concerns that I have set out above with his credibility, I have only given these reports only limited weight in my assessment (sic). The applicant attended the hearing and was able to participate and answer questions. He was also represented at the hearing by an advisor. There was no comment made that he was not fit to participate in the hearing. In the circumstances, I find that he was given a real and meaningful opportunity to give evidence and present arguments in a manner consistent with s.425 of the Act.
The Tribunal also considered the Applicant’s claims to fear to persecution in Kabul as a Hazara Shia. It found, on the basis of country information which it detailed, that the Applicant would not face a real chance of persecution in the reasonably foreseeable future in Kabul, whether from the Taliban or any other group, on account of his race or religion and that there were not substantial grounds for believing that as a necessary and foreseeable consequence of removal to Afghanistan there was a real risk he would suffer significant harm in Kabul.
The Tribunal also considered the Applicant’s expressed fear of the Kuchis. He claimed that in his village of 70 houses there were now only three to four houses left and that a number of people had been killed in a recent incident. The Tribunal accepted, having regard to country information, that there was conflict in land disputes between the Kuchis and Hazaras in the Applicant’s home area, but found that the information did not indicate that the Kuchis were attacking Hazaras in Kabul (where the Applicant had lived for many years and where he had not claimed he had experienced any problems with Kuchis) in recent times. Having regard to the country information and the Applicant’s individual circumstances, the Tribunal found that he did not face a real chance of persecution from Kuchis on account of his race or religion now or in the reasonably foreseeable future in Kabul and that he did not meet the complementary protection criterion in that respect.
Finally, the Tribunal considered the Applicant’s claims that he was at risk because he would be returning to Afghanistan from Australia as a failed asylum seeker and hence for reason of his membership of the particular social groups of failed asylum seekers returning from a Western country or returnees from a Western country. The Tribunal accepted that these were particular social groups and that the Applicant would be a member of both groups if he returned to Afghanistan. However it found that cited country information did not support the conclusion that members of such groups were targeted and harmed in Afghanistan, notwithstanding the Applicant’s contentions to the contrary. Nor did the Tribunal accept that the Applicant faced a real chance of being accused of being an infidel, of having converted to Christianity or Buddhism, of having abandoned his culture, of being a spy or of supporting the West and being targeted and seriously harmed by the Taliban or by anybody else.

The Tribunal found that the Applicant did not face a real chance of persecution in the reasonably foreseeable future on account of membership of the claimed particular social groups or any imputed political opinion or imputed religion and that he did not meet the complementary protection criterion on any of these bases.
The Tribunal concluded that in considering the Applicant’s individual circumstances and the independent country information cumulatively, he did not face a real chance of persecution in the reasonably foreseeable future and did not meet the complementary protection criterion. It affirmed the delegate’s decision.
The Applicant sought review by application filed in this court on 24 December 2013. He now relies on an amended application filed on 15 June 2015. There are three grounds in the amended application.

Grounds 1 and 2

Counsel for the Applicant submitted that it was logical to deal with the first two grounds in the amended application together and made submissions on that basis. Grounds 1 and 2 are as follows:
Ground 1. The Tribunal failed to take a relevant consideration into account.
Particulars:
That the Tribunal erred in failing to take into account a relevant consideration, namely, the symptoms prescribed (sic) in the psychological evidence before the Tribunal when assessing the Applicant’s credibility.
Ground 2. The Tribunal made findings so unreasonable or illogical that no reasonable Tribunal would have made it.
Particulars:
That the Tribunal made a decision so unreasonable that no reasonable person would have made it by giving the psychological reports only limited weight.
While these grounds refer to two psychological reports, the Applicant’s submission focussed on the psychological report dated 25 September 2013 provided to the Tribunal. As described above, an earlier report of 14 December 2012 was also provided to the Department.
It was pointed out that when providing the Tribunal with the September 2013 report the advisor had submitted that:
As previously advised, the Applicant has been under a great deal of pressure and has continued to see a psychologist as a result of this. We enclose for your attention a medical report prepared by the Applicant’s psychologist, Mr Hameed Attai. It can be seen from the contents of this report and the information shared with Mr Attai that the Applicant’s fear with regards to [X] is true.
The September 2013 psychological report recorded that the Applicant “displays typical symptoms of Major Depression and Post Traumatic Stress Disorder” and also recorded that the “[r]esults of psychological evaluation reveal that the client is experiencing a number of psychological symptoms ...”. It was said to be critical that this assessment was made on the basis (set out in the Summary and Recommendations part of the September 2013 psychological report) that:
Given the traumatic nature of recent events for the client, including the basis of his fleeing Afghanistan, the journey to Australia, uncertainty regarding his immigration status, [the Applicant] appears to remain extremely distressed, anxious and depressed.
In written submissions the Applicant contended that the September 2013 psychological “diagnosis is made of (sic) a number of factors” which were said to be independent of the Applicant’s credibility, consisting of what were described as recent traumatic events, including the loss of the Applicant’s leg and being shot at by the Taliban (both of which were said to have been accepted by the Tribunal in its reasons for decision) as well as the (claimed) incident in which the Applicant’s house was said to have been attacked at night and attackers fired at the house. In addition, reference was made to the journey to Australia and uncertainty regarding the Applicant’s immigration status.
Issue was taken with the fact that in dealing with the psychologist’s “diagnosis”, the Tribunal had stated (at paragraph 64 of its decision):
In making my assessment of the applicant’s credibility, I have taken into account the psychologist’s reports that indicate that he has PTSD and a major depressive disorder. However, due to the substantial and fundamental concerns that I have set out above with his credibility, I have only given these reports only limited weight in my assessment. The applicant attended the hearing and was able to participate and answer questions. He was also represented at the hearing by an advisor. There was no comment made that he was not fit to participate in the hearing. In the circumstances, I find that he was given a real and meaningful opportunity to give evidence and present arguments in a matter consistent with s.425 of the Act.
The Applicant contended that as the September 2013 findings made by the psychologist were independent of the Applicant’s credibility as such, the Tribunal had “an illogical basis” for disregarding the contents of the reports and giving “limited weight” to the psychological assessment (and the documented symptoms). The Applicant also submitted that insofar as the Tribunal had explicitly had regard to the symptoms documented in the report for the purposes of assessing the Applicant’s credibility, this was putting the “cart before the horse”. In addition, it was contended that the Tribunal dealt only with the psychological evidence on the issue of whether the Applicant was fit to give evidence and provide arguments under s.425 of the Act and not in relation to the issue of whether the symptoms documented in the reports provided a possible explanation for adverse credibility issues. In essence it was submitted that the Tribunal erred in failing to address the issue of whether the symptoms provided such an explanation.
In addition to reliance on authorities about the nature of a jurisdictional error (see for example Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]), the Applicant’s written submissions referred to the requirement to accord an applicant a fair hearing and the opportunity to be heard as considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25], [26] and [29] (and see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19] to [20] and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074).
The Applicant submitted that the way the Tribunal dealt with the evidence before it was unreasonable and led the Tribunal to assess his credibility adversely. It was also submitted that the Tribunal had accepted a diagnosis and yet had rejected the symptoms associated with the diagnosis.
Particular reliance was placed on the decisions of Logan J in SZRHL v Minister for Immigration and Citizenship [2013] 136 ALD 641; (2013) FCA 1093 and SZSFS v Minister for Immigration and Border Protection (2015) 232 FCR 262; [2015] FCA 534 at [36] as authority for the proposition that considering evidence in an unreasonable manner may amount to jurisdictional error. Reference was also made generally to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42] in relation to the concept of unreasonableness in decision-making. The Applicant pointed to the consideration of the principles underlying legal unreasonableness in Singh at [43]-[48], including the reference (at [44]) to the remarks of French CJ in Li (at [28]) about a decision that had “the character of a choice that is arbitrary, capricious or without ‘common sense’”.
The Applicant sought to draw an analogy between the circumstances in this case and those considered in SZRHL. In SZRHL the Tribunal had made an adverse credibility finding. It concluded that the factual basis on which one of the review applicants advanced his protection visa application was not credible. As Logan J pointed out (at [14]), the Tribunal’s reasoning in this respect was expressly influenced by its finding that the applicant had made “no mention” in his protection visa application of a false case. His Honour found however that while the Tribunal’s statement that there was no reference to a false case in the statutory declaration accompanying the visa application was correct, in fact the visa applicant had made a reference to a false case in response to a question on the visa application form itself.
Logan J considered whether the Tribunal’s misapprehension in this respect was indicative of jurisdictional error and stated at [34]:
As I opined by reference to earlier authority in SZLGP v The Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
The Applicant pointed out that, as Logan J had accepted in SZRHL, credibility findings are “par excellence” the function of the primary decision-maker, but contended that in certain cases an assessment of credibility could involve a jurisdictional error (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [88]-[89]). It was submitted that, as explained in VAAD v Minister for Immigrationand Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79], “an assessment of credibility is not necessarily linear” and that errors in that respect could result in an applicant being “deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to credibility” (Re Refugee Review Tribunal; Ex parte Aala per Gleeson CJ at [4]).
The Applicant also relied on the view of Logan J in SZRHL at [36] that:
…it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a “false case” in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.
The Appellant pointed out that in SZRHL (at [37]) Logan J had found that in the circumstances of that case it was not open to conclude that the appellants had not, as a result of the error made by the Tribunal, been deprived of the possibility of a successful outcome on the merits of their protection visa applications. In reaching this conclusion his Honour indicated that as the Tribunal’s reasoning about the first appellant’s absence of credibility was based on a false premise, it could be described as illogical or irrational and indicated that a decision so based was not “within the range of possible acceptable outcomes” (see Li at [105]).
The Applicant also relied on the consideration by the High Court in SZMDS of the concepts of reasonableness, irrationality and illogicality at [113] to [131] per Crennan and Bell JJ, in particular their Honours’ remarks at [130]:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
While not cited by the Applicant, it is notable that their Honours continued at [131]:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In oral submissions counsel for the Applicant clarified that it was not intended to assert that the Tribunal had erred by failing to treat the psychological reports as evidence corroborative of the facts said to give rise to a well-founded fear of persecution for a Convention reason (cf. SZOJF v Minister for Immigration and Citizenship (2011) 199 FCR 286; [2011] FCA 1384). Rather, the Applicant’s contention was that the Tribunal had erred in failing to consider whether the symptoms described in the psychological reports could provide an explanation for any adverse credibility findings. It appeared to be contended that the Tribunal should have considered whether the “symptoms” described in the reports could provide an explanation for the Applicant’s inconsistent evidence. Mr Kondich submitted that the symptoms referred to in the September 2013 psychological report under the heading “Current Presentation and Mental Status” could, if accepted by the Tribunal, explain any adverse credibility finding. However, it was submitted that the Tribunal’s credibility findings had been used to consider what weight should be given to the psychological report, rather than vice versa, in circumstances where the psychological report and the diagnosis and symptoms contained therein should have coloured and contextualised the evidence and statements provided by the Applicant.
In support of the proposition that the asserted failure to take into account the symptoms referred to in the psychologist’s report amounted to a failure to take into account a relevant consideration, counsel for the Applicant referred to the decision of Logan J in SZSFS. It was, ultimately, submitted that the “symptoms” were not a relevant consideration “directly”, but rather a relevant consideration “indirectly” because they underpinned the assessment of other relevant considerations.
It appears from the Applicant’s reliance on SZSFS (particularly the remarks of Logan J at [23] to [31] in relation to a ground expressed in terms of relevant considerations), that it was intended to be asserted that the psychological evidence was “a relevant matter the treatment of which by the Tribunal in its reasons for decision demonstrated either that it had not truly been taken into account or grounded a conclusion as to absence of satisfaction which was unreasonable in the sense described by Gibbs J in Buck v Bavone” (see SZSFS at [27]).
The Applicant submitted that the Tribunal had failed to apprehend a document of critical importance (the September 2013 psychological report and the symptomatology contained therein) and that the assessment by the Tribunal of the Applicant’s credibility on that basis amounted to a jurisdictional error (see SZRHL). It was submitted that while the Tribunal had referred to the psychological report its failure to have regard to it in relation to the pertinent issue of the assessment of the Applicant’s credibility constituted unreasonableness and illogicality amounting to or demonstrating jurisdictional error.
The First Respondent contended first that, as pleaded, ground 1 proceeded on the basis of a misapprehension as to what was a mandatorily relevant consideration for the grant of a protection visa under s.36 of the Act. It was submitted that the Applicant’s psychological “symptoms” and his disability were not mandatorily relevant considerations as understood in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited (1986) 16 CLR 24.
There was said to be no suggestion in the report that the Applicant’s cognitive functioning was impaired to such a degree that he could not understand the Tribunal’s questions or participate meaningfully in the hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 and Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41). It was noted that it was apparent from the transcript of the Tribunal hearing that no such complaint had been made contemporaneously by the Applicant’s migration agent.
The First Respondent submitted that, in any event, the Tribunal had considered and given such weight to the report as it considered it deserved and that it could not be said to have acted unreasonably or illogically with respect to its contents.
In response to the Applicant’s explanation that it was intended to assert a jurisdictional error of the nature considered by Logan J in SZSFS and/or SZRHL, the First Respondent pointed out that in SZSFS, after referring to Peko-Wallsend at [39] to [40] per Mason J in relation to the meaning of the concept “relevant consideration”, Logan J had found at [24] that “neither expressly nor by necessary implication was the Tribunal obliged by the Act to take into account psychological evidence. In this sense, the psychological evidence was not a ‘relevant consideration’.”
Insofar as the Applicant had clarified in oral submissions that, as was said to be the case in SZSFS, he did not intend that the concept of “relevant consideration” should be understood in its technical sense (see SZSFS at [24] to [27]) the First Respondent suggested that counsel for the Applicant had not enunciated the intended basis on which ground 1 was put in the same manner as had been considered in SZSFS at [25] to [27]. In any event, it was submitted that the circumstances in this case could be distinguished from those considered by Logan J in SZSFS and that no jurisdictional error, whether on the basis contended for or intended under ground 1 or ground 2 of the amended application was made out.
In essence, the First Respondent submitted that, in contrast to the circumstances considered in SZSFS, in this case the psychologist’s report and the symptoms recorded therein did nothing to explain the inconsistency between what the Applicant had said in his initial statutory declaration and what he had claimed to the Tribunal at the hearing after the delegate’s adverse decision.
The First Respondent submitted that the diagnoses and symptoms described in the psychological report in issue in this case were not such that the Tribunal had fallen into error in the manner considered in SZSFS.

It was also submitted that while ground 2 turned on the proposition that it was illogical and unreasonable for the Tribunal to give the psychological evidence tendered by the Applicant “little weight” in assessing his credit, the psychological evidence had not been tendered to the Tribunal to explain the “obvious” inconsistencies and problems with the Applicant’s evidence.

Consideration

First, as contended for by the First Respondent, insofar as ground 1 on its face asserts that the Tribunal failed to take into account a “relevant consideration”, the Applicant’s psychological symptoms were not mandatorily relevant considerations in the sense considered in Peko-Wallsend or, for that matter, integers of the Applicant’s claims (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323; [2001] HCA 30 and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802).
More generally, whether the Applicant’s contention in relation to grounds 1 and/or 2 is seen as a contention that the Tribunal failed to take into account a relevant matter or that the Tribunal’s conclusion was unreasonable such as to constitute jurisdictional error, such contention is not made out.
The Applicant submitted in essence that the Tribunal erred in failing to take into account the Applicant’s diagnoses and symptoms (as reported in the psychological report of 25 September 2013) in assessing his credibility, in particular in failing to consider whether such psychological evidence provided an explanation for aspects of the Applicant’s evidence which contributed to the Tribunal’s credibility concerns.
Before considering the content of the psychological report of 25 September 2013 (and also the report of 14 December 2012 which is referred in grounds 1 and 2), it is relevant to have regard to the fact that while the Tribunal stated that it had substantial and fundamental concerns with the Applicant’s credibility, it is apparent from the Tribunal’s reasons for decision that it did not reject the factual basis for the Applicant’s claims in their entirety. It did not make a general adverse credibility finding. In finding that Kabul (as well as the Applicant’s home village in Wardak Province) should be considered as a home area for the purposes of assessment of his claims, the Tribunal did not reject all the Applicant’s evidence. It was on the basis of the Applicant’s evidence about his residence and work over a long period of time that it found that Kabul as well as the Applicant’s home village constituted a home area.
The Tribunal also accepted that the Applicant’s father was a soldier in the Afghan Army before being killed in 1990 by a named man from his village (X) who was a member of the Mujahideen Party and that his father was not popular in the village because of his employment by the communist government. Indeed, the Tribunal found that the Applicant had been consistent in these claims and that his account was plausible having regard to country information.
It is the case that the Tribunal did not accept that the Applicant had made any complaint to anyone in authority concerning the death of his father (or any consequential claims) having regard to the fact that the Applicant’s father had been killed many years earlier and the fact that there were pro-Mujahideen authorities in power in his home province at the time the Applicant claimed he complained. It was in those circumstances that the Tribunal found it far-fetched that the Applicant would have believed that the pro-Mujahideen authorities would have attempted to bring the killers of a former communist soldier to justice many years later. The Tribunal did not accept the Applicant’s explanation at the hearing that he thought that the provincial pro-Mujahideen authorities were a “good government”, that he only realised later who the authorities were and that, given his experience of life in Kabul, he thought the local authorities would take action. The Tribunal rejected this explanation because, on his evidence, the Applicant had lived for a substantial period of his life in his village. In these circumstances it did not accept that he could be so ignorant of the political and historical situation there. This reasoning was not based on the inconsistency of the Applicant’s evidence, but rather the implausibility of this claim.
The Tribunal also found that given the alleged killer’s influence with the local authorities (a matter on which it accepted the Applicant’s evidence), he would have had no reason to fear the Applicant. It found this relevant in not accepting that X had targeted the Applicant in the way he claimed or that the Applicant would be of any adverse interest to X.
The Tribunal also accepted the claim that the Applicant’s vehicle was attacked by the Taliban in 2010 when he was transporting passengers although it did not accept his belief that this was at the instigation of X as set out above. In this respect, it did not accept as plausible his explanations at the hearing, including that X had told the Taliban that the Applicant was transporting foreigners and goods, that X was linked to the Taliban or now a member of the Taliban. In making these findings the Tribunal did not adopt a process of reasoning which “damns a man’s credibility by reference, materially, to a false factual premise” (cf SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; [2009] FCA 1470 at [37] per Logan J). Rather, it had regard to the fact that the Applicant had claimed that the killer X was a Hazara involved with Haraket-e Islami which was a Shia enemy of the Taliban. The Tribunal accepted this evidence, but found that it was therefore very unlikely that X and the Taliban would be acting in concert. The Tribunal also found that the Applicant’s explanation for such a claimed association was inconsistent with independent country information concerning the relationship between the Taliban and Haraket-e Islami and those who assisted foreign forces and NGOs.
Similarly, while the Tribunal did not accept the claim about an incident at the Applicant’s home in Kabul one night or that X was behind it, this finding was not based on a general adverse credibility finding. Rather, the Tribunal reiterated that, for the reasons it had already given, it did not accept that X had any adverse interest in the Applicant. It also found it far-fetched that X would be motivated to send armed men to the Applicant’s house in Kabul to harm the Applicant and his family.
The Tribunal accepted the Applicant’s claims that he had been subjected to verbal insults in the village because of his father’s history of being a communist soldier, but not that this amounted to serious or significant harm. Again, this did not involve any adverse credibility finding.
Further, while the Tribunal did not accept that others in Kabul would know of the Applicant’s father’s history in Kabul given the distance from his village and the size of the city, it went on to find that even if this were to be accepted (thus giving the Applicant the benefit of the doubt), it did not accept that the Applicant would have a well-founded fear on this basis having regard to independent country information.
The Tribunal findings about the Applicant’s claims as a Hazara Shia and returned failed asylum seeker claims were also based on country information (not credibility concerns). It accepted that the Applicant had suffered a very serious injury 19 years previously when hit by a bomb during fighting in Kabul and his claims about fears of harm in the future from mines in the province of Wardak (but observed that this was not the case in Kabul).
In other words, except in limited respects, the Tribunal’s concerns about the Applicant’s credibility were in essence concerns about the credibility of his claims that events which the Tribunal accepted had occurred (in particular the attack on the vehicle in 2010) were attributable to or at the volition of X. It was only to a very limited extent that the Tribunal’s concerns may be seen as having regard to inconsistent evidence (as distinct from what the Tribunal saw as inherent implausibility or claims that were contrary to the independent country information).
This context is relevant to a consideration of the Applicant’s submissions about the Tribunal’s alleged failure to take into account the psychological reports.
The report of 14 December 2012 expressed concern that the writer “understood” that the Applicant’s overall mental and physical wellbeing had been significantly deteriorating over the last few months. It referred to his separation from his family, physical disability, difficulties finding a job and inability to support his family financially. The psychologist stated that the Applicant had “reported” symptoms “such as” disturbed sleep, nightmares, body pain, low mood, low concentration and limited ability to concentrate, low motivation and limited appetite and also anxiety due to the uncertainty of his residence application. He was said to have exhibited symptoms consistent with PTSD and major depressive disorder and to be making slow progress in response to psychological intervention, due to limited stability. It was suggested that the prolonged waiting had had a severe detrimental effect on his overall wellbeing, particularly his cognitive functioning.
However in the 25 September 2013 report (provided after the Tribunal hearing of 26 September 2013), a different psychologist stated that the Applicant had been referred to him in August 2013 for treatment of depression and anxiety and that he was undergoing “a lot of stress surrounding his refugee status”. The psychologist observed that at first the Applicant was observed to be very reserved and appeared to be upset, but that the psychologist had been able to establish a strong rapport from the second session onwards and the Applicant became more expressive. The psychologist stated that the Applicant experienced a high level of anxiety and worry about the uncertainty of his refugee status, his physical pains, his lack of social contact, being distant from his family and his financial burden. He had consistently reported a low mood, and reported in weekly visits that he felt highly irritable and on edge through the day with poor sleeping patterns. He displayed heightened levels of stress and feelings of helplessness.
The psychologist found (consistent with the earlier report of 14 December 2012) that the Applicant displayed typical symptoms of major depression and post-traumatic stress disorder. The report stated that the Applicant was constantly worrying, had lost an interest in “generally everything”, that he did not socialise or talk much with anyone, displayed loss of pleasure and a particular “numbness” as well as insomnia, loss of appetite, loss of energy, concentration and motivation and that he reported having flashbacks and nightmares. It recorded that he often talked about being afraid of returning to Afghanistan and the dangers of return, including danger to the rest of his family.
However the psychologist also recorded that the treatment process had included stress management techniques, cognitive behaviour therapy, psycho-education and other coping skills, and that “This has proved relatively effective and it has enabled [the Applicant] to increase in his sleep, and feel less helpless and hopeless”.
In the Summary and Recommendations part of the report, it was stated that the Applicant was experiencing a number of psychological symptoms for which ongoing therapy was recommended, that he appeared to remain extremely distressed, anxious and depressed, and that resolution of his refugee status would be highly beneficial to his psychological functioning, while deportation would exacerbate his symptoms.
In contrast, in SZSFS, the Tribunal had before it psychological assessments which, among other things, referred to a severe lack of concentration and memory. Despite this, the Tribunal did not accept that these reports provided a satisfactory explanation for omissions, inconsistency and contradictions which the Tribunal considered were a feature of that applicant’s evidence.
It was in those circumstances that Logan J found that in a case where so much depended on the credibility of the account given by the appellant, the Tribunal’s reasons for why it was not satisfied that a protection obligation was owed disclosed a conclusion which was unreasonable where, in reaching that conclusion, the Tribunal had not considered the ramifications of accepting the diagnoses and the symptoms as explanatory of the evidence given and the inconsistencies and omissions therein.
In SZSFS Logan J found that the manner in which the Tribunal had dealt with that particular psychological evidence involved an irrational basis for discounting the credibility of the Applicant in that the Tribunal had discounted (for reasons which his Honour regarded as irrational) an explanation for the inconsistencies and omissions in evidence which informed its view of the appellant’s credibility.
This is not such a case. There was no general adverse credibility finding such that the Tribunal did not accept all the Applicant’s claims about past events and the psychological report in this case did not go to the Applicant’s ability to give evidence, his cognitive functioning or memory in such a way as to potentially explain the limited changes in the Applicant’s story, aspects of his claims, explanations and evidence which the Tribunal found implausible or did not accept. Moreover the September 2013 report indicated that the treatment process had proved relatively effective as at the time of the Tribunal hearing.
Having regard to the matters taken into account in the Tribunal’s assessment of the Applicant’s credibility and in its consideration of his claims and the content of both psychologist’s reports, this is not a case in which the Tribunal erred in accepting the diagnoses of PTSD and a major depressive disorder but in failing to take into account the symptoms or diagnoses in assessing the Applicant’s credibility.
The reports in question were not such as to provide an explanation for any inadequacies or implausibilities in the Applicant’s evidence which ought to have been considered by the Tribunal. Whether analysed in terms of a failure to have regard to relevant considerations or evidence or on the basis of reasonableness or irrationality, no jurisdictional error has been established.
Moreover, it is apparent that in paragraph 64 of its reasons for decision the Tribunal demonstrated awareness of and had regard to the psychologists’ reports in assessing the Applicant’s credibility. Despite its reference to substantial and fundamental concerns, the Tribunal did not make a general adverse credibility finding. The substantial and fundamental concerns to which it referred clearly related only to those limited aspects of the claims that the Tribunal did not believe. It was open to the Tribunal to give only limited weight to the psychologists’ reports in its assessment of the Applicant’s claims, given the nature of such claims and its concerns and of the psychological evidence. It did not fail to consider the reports or the relevance of the reported symptoms in a manner constituting jurisdictional error.
Further, it has not been established that the Tribunal made a decision that was so unreasonable that no reasonable person would have made it by giving the psychological reports only limited weight, having regard to the contents of the reports and the matters relevant to the Tribunal’s assessment of the Applicant’s claims. This was not an approach or decision that no rational or logical decision-maker could have adopted or arrived at on the same evidence (see Crennan and Bell JJ in SZMDS). Nor has it been established that the Tribunal considered the evidence in the reports in an unreasonable manner in the sense considered by Logan J in SZRHL and SZSFS.
I also note that the Tribunal also addressed the fact that, in its view, based on its assessment of the Applicant, he had the opportunity to participate meaningfully in the hearing as required under s.425 of the Act.
No jurisdictional error has been established on any of the bases contended for in relation to grounds 1 or 2 as pleaded or as explained at the hearing.

Ground 3

Ground 3 in the amended application is that the Tribunal failed to deal with the full integers of the Applicant’s claim in that it “failed to take into consideration the Applicant’s individual circumstances, namely his disability, when making its determination”.
The Applicant submitted that the Tribunal had not considered or made any determination concerning his ability to subsist and live in a war-ravaged country such as Afghanistan while living with a permanent and severe disability (being the loss of his left leg). It was submitted that the Applicant’s claim that he lost his leg as a result of a mine was not dealt with as a stand alone proposition and hence that the Tribunal had not dealt with this integer in making its determination and that it had failed to properly or comprehensively engage with the Applicant’s personal circumstances.
It was also submitted that the harm to be faced by an amputee would be greater than for a person not so affected, and that at no time in the Tribunal’s decision had the Applicant been characterised or identified as a disabled person.
Reliance was placed on the decision of SZURK v Minister for Immigration and Border Protection [2015] FCCA 472 in which Judge Driver had found that the Tribunal had erred in failing to consider whether an applicant faced a real risk of significant harm because of opportunistic crime in her home country of Sri Lanka which, it was concluded, would have required consideration by the Tribunal of whether the applicant, as an elderly disabled woman without family support, was at greater risk of significant harm than the population of Sri Lanka generally. His Honour made the point (at [48]) that the applicant’s circumstances because of her age, disability and lack of family support had been raised repeatedly at the hearing and had stimulated the Tribunal to refer her case to the Minister for consideration on humanitarian grounds. The Tribunal had also accepted that there was criminal extortion activity in Colombo. In those circumstances, Judge Driver found that a claim arose squarely on the material before the Tribunal that the applicant faced a real chance of significant harm from lawless elements because her age, disability and lack of familial support may have placed her at greater risk than the Sri Lankan community generally.
The Applicant submitted that in this case the Tribunal had made an assessment of his ability to subsist on the basis of being able-bodied and in that sense had failed to deal with all the integers of his claim.
The Applicant acknowledged that in summarising his claims the Tribunal had referred to the fact that in 1995 during the civil war, the Applicant was injured by a mine and lost his left leg from the knee down and that it had also accepted that the Applicant had suffered physical injury as a result of attacks by the Taliban in that it had accepted that his vehicle was attacked in 2010 and that he suffered severe bruises and cuts.
It was submitted however that while the Tribunal had not accepted that X was behind this attack, it was relevant that it had accepted that a man with a severe disability had been subjected to such an attack. It appeared to be argued that this supported the need for the Tribunal to consider whether, as a disabled person, it would be more difficult for the Applicant to return to Afghanistan and to subsist and live on his own.
In oral submissions the Applicant conceded that this ground related only to the Tribunal’s consideration of the complementary protection criterion. It was submitted that the Tribunal’s decision “glossed over” the issue of the Applicant being an amputee with only one leg and did not provide any reasoning as to the impact that this had on his ability to subsist or whether it rendered him more susceptible to physical injury and that in this sense the Tribunal had not given due consideration to issues arising in relation to the complementary protection criterion.

This ground is not made out.
First, as the First Respondent submitted, contrary to the contention that there was a failure to have regard to an integer of the Applicant’s claims, it appears that at no time did the Applicant (or his migration agent) claim that the injury to his leg was inflicted for persecutory reasons, that it threatened his capacity to subsist or that it gave rise to or contributed to the risk of any significant harm within the complementary protection criterion. I note also that the Tribunal accepted the Applicant’s evidence about his employment in Kabul as a weaver and car dealer (as well as his work as a minibus driver).
Insofar as it was asserted that the Applicant claimed to fear future similar injury, the Tribunal specifically considered that possibility. It accepted that the Applicant had suffered a very serious injury some 19 years earlier when his leg was amputated after he had been hit by a bomb during fighting in Kabul between the Taliban and the Mujahideen but, as it had raised with the Applicant at the hearing, it found that this incident was a long time ago and that it appeared “remote” that a similar incident would happen again. The Tribunal also considered the Applicant’s claims that there were mines in his home village and his fear that his family would be injured. The Tribunal accepted that this could occur in the village, but made the point that it was assessing the situation for the Applicant in Kabul and having regard to country information concerning the situation in Kabul found that the chance he would be seriously or significantly harmed in Kabul in a manner such as he was harmed in the mid-1990s to be remote.
I am not satisfied that a claim was made or arose squarely on the material before the court (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 at [65]-[68]) that the fact that the Applicant was an amputee gave rise to either a Refugees Convention or a complementary protection claim or made him particularly vulnerable. The evidence before the Tribunal as to the Applicant’s life in Afghanistan after he suffered this injury (including his employment as a carpet weaver, driver and car dealer and the presence of his family in Kabul) was not such as to raise a claim on the material before the court that the Applicant’s acknowledged disability made him vulnerable either to serious harm or, as contended in oral submissions, significant harm within the complementary protection criterion. There was no suggestion on the material or evidence before the Tribunal that men using a prosthetic leg below the knee faced some greater hardship than the population generally. There was no contention or material before the Tribunal such as to suggest that there was some particular social group consisting of amputees.
Counsel for the Applicant referred to the Applicant’s capacity to subsist (a concept of relevance in assessing the Refugees Convention claims (see s.91R of the Migration Act)) but no specific argument was made in relation to the categories of significant harm. The only categories of significant harm that would seem to be invoked by this ground would appear to be the concepts of cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5 of the Migration Act. However these both require an intentional aspect. The concepts amounting to significant harm do not encompass an inability to earn a living or capacity to subsist as such.
This ground is not made out.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 17 March 2016