SZTTY v Minister for Immigration - [2015] FCCA 3180

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTTY v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3180

Catchwords:
MIGRATION – Application for an extension of time – substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether explanation for delay satisfactory – whether merit in the substantive application – not in the interests of the administration of justice to extend time – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.46, 476, 477

SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Vu v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211
Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279
Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

Applicant:

SZTTY

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 90 of 2014

Judgment of:

Judge Nicholls

Hearing date:

4 August 2015

Date of Last Submission:

4 August 2015

Delivered at:

Sydney

Delivered on:

2 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr R Nair

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $3326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 90 of 2014

SZTTY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 14 January 2014 and amended on 30 July 2014 seeking an extension of time within which to make a competent substantive application pursuant to s.476 of the Act seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 14 June 2013 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
Before the Court in evidence is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and an affidavit made by the applicant on 17 July 2014, read without objection.
Section 477(1) of the Act, provides that applications made pursuant to s.476 of the Act, which seek to engage the Court’s jurisdiction to review a migration decision, must be made within 35 days of the date of the migration decision.
As stated above, in the current case, that decision was made on 14 June 2013. The application made to the Court was filed over six months later on 14 January 2014. Therefore, it was not competent.
Section 477(2) of the Act does provide for the exercise of the Court’s discretion to extend time if it is in the interests of the administration of justice to do so. Section 477(2)(a) of the Act requires that an application for an extension of time to be made in writing, specifying why the applicant considers it to be necessary for the Court to extend time.
The applicant has made such an application in the following terms, as amended:
“The applicant contends that it is in the interests of the administration of justice to extend time for the following reasons:
i) The extent of the delay and the reasons for the delay:
The purported decision was made on 14 June 2013. The applicant has filed an affadivit sworn on 17 July 2014 explaining the delay.
ii) The merit in the application:
The applicant contends on the grounds detailed below that the Tribunal's decision is vitiated by jurisdictional error.
iii) Any prejudice to the respondents:
The applicant contends that there is no prejudice to the respondents.
iv) The impact on the applicant:
The application for judicial review is in regard to an application for a protection visa sought by the applicant,
v) The interests of the public at large:
The interests of the public at large require that administrative decisions and particularly decisions in regard to such grave matters as protection visas be properly determined in accordance with law.
vi) The Court's discretion itself:
The Court's discretion is constrained by law and the applicant contends that there is no basis on which the Court should deny him relief.”
As I have previously stated, the elements relevant to considering an extension of time application are not exhaustive (SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] – [55]). However, as I identified in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], some of the elements include the length of the delay, any satisfactory explanation for it, prejudice to the Minister, the interests of the Australian community, and the merits of the grounds in the proposed substantive application.
The applicant’s affidavit of 17 July 2014 stated the following, in relation to his explanation of the delay:
1)On 17 June 2013 he was advised by the lawyers, assigned by the Immigration Advice and Application Assistance Scheme (“IAAAS”) to him, that his application for a protection visa had been refused by the Tribunal on 14 June 2013 and was told that they could no longer act for him ([8] of the applicant’s affidavit).
2)The applicant did not know what next step he should take but was advised by others in the community to contact a person called “Reza” who would be able to help him. He contacted Reza who advised him to work with “T & N Migration” to “appeal to the Minister” as it would be faster. The applicant paid Reza to assist him ([9] – [11] of the applicant’s affidavit). He was not told that, as migration agents, T & N Migration could not assist in any application for judicial review, or that seeking Ministerial intervention, and not applying to the Court for judicial review, would make an application to the Court outside of the 35 day time limit incompetent ([19] of the applicant’s affidavit).
3)The application for Ministerial intervention was sent on or about 8 July 2013. The applicant was informed by letter that the Minister had declined to intervene on 4 December 2013. He contacted Reza who informed him that he could no longer assist him and that he had “28 days to find a lawyer” ([12] – [13] of the applicant’s affidavit).
4)He went to the “Auburn Centre for Community” to seek assistance from the “Australian Afghan Hassanian Youth Association”. Two individuals assisted him in making his application to the Court on 14 January 2014.
5)The applicant had no “experience in matters of law”. Further, his “ability to understand the process has been seriously impaired by [his] limited education, lack of English and [his] depression and anxiety” about his situation ([18] of the applicant’s affidavit). He stated that “based on the information and advice [he] was given [he] always tried to progress [his] case in a timely manner” ([20] of the applicant’s affidavit).
At the hearing of the extension of time application, the Minister explained his position as follows. The period of the delay was significant. However, an explanation for the delay has been proffered by the applicant. The Minister submitted that there was no argument that the Minister sought to put that the explanation proffered was unsatisfactory.
It is the case that the applicant’s application to extend time is a matter for the Court to consider in light of the exercise of the discretion pursuant to s.477(2) of the Act (as confirmed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158, handed down after the hearing of this matter).
The applicant submitted that, in light of his evidence, he has provided a satisfactory explanation for the delay. He essentially relied on his evidence that he had “no experience” in these matters ([9] of his affidavit).
The period of the delay is almost six months. The Tribunal’s decision was made on 14 June 2013. The applicant had until 19 July 2013 to make a competent application to the Court. The application was not made until 14 January 2014.
It is clear that the applicant has provided an explanation for the delay. However, I am not satisfied that the explanation, in the circumstances, is satisfactory.
The applicant’s evidence is that he lacked experience and knowledge as to what his options were after receiving the Tribunal’s decision. This was not challenged by the Minister.
However, the applicant’s evidence was also that he was told “towards the end of June 2013” by a person from T & N Migration Agents at Parramatta that ([10] of the applicant’s affidavit):
“You have two choices. You can either appeal to the Minister for Immigration or you can appeal to the Court.”
On his own evidence, therefore, the applicant was on notice as at the end of June 2013 that he could have made an application to the Court. His evidence is, that on advice, he chose to pursue the option of making a request for Ministerial intervention ([10] – [11] of the applicant’s affidavit).
As stated above, the applicant’s evidence is also that “I was not told by T & N Migration that as migration agents they could only assist me in regard to my application for ministerial intervention…” ([19] of the applicant’s affidavit).
This appears to contradict the applicant’s other evidence in his affidavit, as stated above, that he was told by the person (“Reza”) he met at the office of T & N Migration, that he had two options, including making an application to the Court ([10] of the applicant’s affidavit).
Some care must be taken here. The applicant was not cross-examined on his evidence. It may be that at the end of June 2013 the applicant operated under the mistaken assumption that T & N Migration could assist him with his application to the Court.
However, what is clear in his evidence is that as at the end of June 2013 he was told by Reza, at the offices of T & N Migration, that he had two options. His own evidence is that following the unsuccessful outcome of his Ministerial intervention request, T & N Migration expressed a willingness to assist him to find a lawyer and attempted to do this (“…I had asked Edith to find you a good lawyer…”, see [13] – [14] of the applicant’s affidavit).
Whatever the situation as to any misapprehension by the applicant as to what the migration agents could do for him, what remains, on his evidence, is that after being told of the two options at the end of June 2013 he elected not to take any steps, even with the assistance of T & N Migration, to obtain legal advice to make an application to the Court.
In the circumstances, the applicant’s election at that time, based on advice, makes his explanation for the subsequent delay unsatisfactory (Vu v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [32] per Jessup J, with whom Gyles and Besanko JJ agreed, Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 citing Hayne J in Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364, Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J, and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [16] – [24] and [36] per Black CJ, Sackville and Sundberg JJ, see also my discussion in SZOCH v Minister for Immigration and Citizenship [2010] FMCA 300 at [38] and

[53] – [54]).
The applicant also submitted that the Minister was not prejudiced if the Court were to extend time. I did not understand the Minister to take issue with this. I accept this to be the case.
In this context it is of note that the grounds of the proposed substantive application prepared, on the applicant’s evidence, with assistance, as initially put before the Court, lack merit.
In essence, the grounds of the proposed substantive application took issue with the Tribunal’s reliance on country information as at the time it made its decision, because it is said it failed to take into account changing circumstances in Afghanistan which occurred after the making of its decision.
The grounds lack any merit whatsoever. They fail to understand that the object of judicial review of a Tribunal decision is to consider the question of whether the Tribunal has made a lawful decision as at the time of making the decision, not whether it has made the “correct” decision in light of subsequent events.
Rather, the initial proposed substantive application criticised the Tribunal for its claimed failure to apply the test of a well-founded fear of persecution. The Tribunal’s error was said to be that it “limited” its consideration to “whether the applicant has a well-founded fear of being persecuted for Convention reasons to the ‘reasonably foreseeable future’” (emphasis in original). The ground claims that “neither the Convention or the Act permit such temporal restriction”.
It is trite to say that the Convention test and the concept of persecution under the Act (as it applied to the current case) require the Tribunal to focus on the matter of reasonable foreseeability (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 574, Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) and Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510).
In any event, at the hearing of the application for the extension of time the applicant was represented by counsel. He put forward one ground of his proposed substantive application, as amended on 30 July 2014. It is in the following terms:
“1. The Tribunal failed to conduct the review in that the Tribunal failed to consider the applicant's claims
Particulars:
i) The applicant claimed that he was a Hazara by race and a Shia by religion. The Tribunal accepted these claims.
ii) The applicant claimed that he feared the Taliban would persecute him because he was Hazara and Shia; the Taliban has a historical enmity against Hazaras. He claimed that the planned leaving of Afghanistan by the international forces would result in the Taliban taking control of the country and this placed him at risk of persecution.
iii) The Tribunal failed to determine this claim and dismissed any attempt to do so as speculation.”
The applicant’s proposed ground, as expressed in submissions, derives from the correct test set out in Chan Yee Kin, as to how the Tribunal is to assess whether an applicant has a well-founded fear of persecution.
The following background is of assistance in understanding the applicant’s proposed ground.
The applicant is a citizen of Afghanistan of Hazara ethnicity who arrived in Australia as an irregular maritime arrival on 15 May 2012 (CB 3 and CB 32). On 12 June 2012, the Minister exercised his power under s.46(2) of the Act to allow the applicant to make a valid application for a protection visa (CB 73.2). The applicant made such an application on 1 September 2012 with the assistance of a registered migration agent, assigned under the IAAAS. Included with the application was a Statutory Declaration outlining the applicant’s claims (CB 45 to CB 48).
The applicant claimed to fear harm from the Taliban because of his ethnicity. He claimed that his wife and mother were killed in an attack in 1998 by the Taliban in Mazar-e-Sharif, after they had fled their home area of Jaghori, in Afghanistan. He claimed that he fled to Quetta in Pakistan, where he remarried and stayed until 2012, when he left to come to Australia. He claimed that the rest of his family fled to Iran. He had not been harmed in Quetta, however he feared harm as an Hazara generally. He claimed that he had not had any contact with his family in Iran since they had fled.
Further, he claimed that he feared harm from the Taliban due to his religion as a Shi’a Muslim, his imputed political opinion as an Hazara, and as a failed asylum seeker.
The delegate refused the grant of the visa on 19 December 2012. The delegate found that the applicant’s claims made in his application were not consistent with his claims made during his “entry interview”, when he arrived in Australia, on 25 May 2012. The delegate did not accept that the applicant had remained in Quetta since 1998 due to a number of factors, including his inconsistent claims and his use of Farsi as opposed to Hazaragi, and found that he had spent time in Iran (CB 79 to CB 81). The delegate found that the applicant would not face harm in his home area of Jaghori, in Afghanistan, for any of the claimed reasons set out in his Statutory Declaration.
The applicant applied to the Tribunal for review of the delegate’s decision on 28 December 2012 (CB 91 to CB 121). He was again assisted by a registered migration agent (CB 91). He attended a hearing before the Tribunal on 18 March 2013, and was on this occasion assisted by an Hazaragi interpreter ([30] at CB 189).
The applicant’s representative submitted written submissions to the Tribunal on 5 March 2013 (CB 134 to CB 156) and a further Statutory Declaration made by the applicant (CB 157 to CB 161). Further written submissions were submitted after the Tribunal hearing on 25 March 2013 (CB 174 to CB 178). Included in these submissions was a new claim in relation to the “current security situation in Afghanistan and 2014 [International Security Assistance Force] withdrawal”, and an increased risk of harm to the applicant as a result of this (CB 174).
The Tribunal affirmed the delegate’s decision on 14 June 2013 (CB 184 to CB 202). The Tribunal found the applicant to be a credible witness. However, with reference to the country information before it, it found that the applicant’s fear of harm was “not well-founded” and he would not face a real chance of harm if he were to return to Afghanistan.
In particular, with reference to the applicant’s sole ground of review, the Tribunal considered the applicant’s claim to fear harm in relation to the changes that would occur with the departure of the international forces ([79] – [81] at CB 197). It found that the “risk of the applicant suffering harm in Jaghori [was] remote” ([81] at CB 187). The Tribunal found that it was “too speculative” to find that in the reasonably foreseeable future the planned withdrawal would lead to a risk of harm being “any more than remote” ([108] at CB 200).
In particular, the Tribunal stated ([109] at CB 200):
“The Tribunal acknowledges that there are decisions (cited by the representative) where this Tribunal (differently constituted) has found that the planned withdrawal of the military combined with the security situation in Afghanistan did amount to, for the applicants in those cases, a real chance they would suffer persecution. The Tribunal has considered the contents of those decisions and the findings reached. However, this Tribunal prefers its assessment based on the country information mentioned above and must assess this in respect of this particular applicant. For the reasons given above, the Tribunal finds that the risk of the applicant suffering harm is remote.”

The ground itself asserts that the Tribunal failed to consider the applicant’s claims and failed to apply the Chan Yee Kin test. In relation to the first assertion, the applicant did not directly rely on such authorities as Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (a brief reference to this case was made in the applicant’s written submissions at [19]), each dealing relevantly with the Tribunal’s obligation to consider claims to fear harm expressly made or clearly arising in the circumstances presented.
Rather, the applicant’s ground is to be properly understood, as in his proposed amended substantive application, and as explained in submissions, as a claimed failure by the Tribunal to consider the applicant’s claims in light of the Chan Yee Kin test.
The applicant’s position before the Court sought to emphasise the claims that he was an Hazara by ethnicity and a Shia Muslim by religion. There was no dispute that the Tribunal accepted this. Further, that the Tribunal found the applicant to be a credible witness ([74] at CB 196).
Before the Tribunal, the applicant claimed to fear harm from the Taliban on return to Afghanistan because of ethnicity and religion. Amongst other claims, he feared that the planned withdrawal of international forces from Afghanistan would result in the Taliban taking control and, thus, putting him at risk of persecution.
The applicant drew attention to two parts of the Tribunal’s analysis ([81] at CB 197 and [108] at CB 200):
“[81] Overall, the Tribunal finds that at present the risk of the applicant suffering harm in Jaghori is remote. The withdrawal of international forces at this stage is planned and has not taken place. At the present time in Jaghori, Hazaras are not being attacked and the Taliban are not in control of that district. While international forces plan to withdraw in 2014 and the Afghan President has expressed the need for Western assistance, it is far too speculative for the Tribunal to find that in the reasonably foreseeable future there is a real chance the applicant will suffer serious harm.
…
[108] As stated above, the Tribunal has carefully considered the planned withdrawal of international forces but finds that it is far too speculative to conclude that, in the reasonably foreseeable future, this will lead to the risk of the applicant suffering harm in Jaghori being anything more than remote.”
[Emphasis added.]
The applicant’s submissions focussed on the word “speculative”. His argument was that when the decision is properly read, the Tribunal’s expressed “position” was that it was not going to speculate on what is likely to happen in Afghanistan once the foreign troops have withdrawn.
The applicant submitted to the Court that the claimed fear expressed by the applicant was that he would face persecution once the withdrawal had taken place. The Tribunal’s refusal to consider that claim was a failure to apply the real chance test and jurisdictional error is therefore revealed.
It is trite to say that the use of the term “speculative” by the Tribunal needs to be understood in light of, on a fair reading, the context in which it appears (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”). A number of preliminary points to that consideration must be made.
First, as set out above, the applicant’s claim to fear persecutory harm was based on a number of elements. These, relevantly, included the fear of harm arising from his being an Hazara and a Shia. The impugned paragraphs of the Tribunal’s analysis are to be found first under the heading of “Fear of Harm for being Hazara and Shi’a” (at CB 169), and then “Submissions made by the representative” (at CB 199).
As stated above, one aspect of the totality of the applicant’s claims before the Tribunal was that given that he was Hazara and Shia, he would face harm when the foreign troops left Afghanistan and the Taliban took control of the country. On the evidence, that latter point was stressed by the applicant’s representative in submissions to the Tribunal (see [107] at CB 200).
Second, as also stated above, the applicant’s proposed ground asserts a failure by the Tribunal to consider the applicant’s claims. Having regard to the particulars, and the applicant’s submissions to the Court, care must be taken to properly understand this complaint in context.
On the evidence, the Tribunal did not fail to address the claim regarding the withdrawal of foreign troops and the claimed takeover by the Taliban. Nor did the applicant assert this to be the case in his submissions.
Rather, the applicant’s complaint is that the Tribunal saw the claim as being “speculative”. Further, that it did not engage in consideration about what would occur in the future. This, the applicant contends, reveals the failure to apply the correct test and, in that sense, by seeing the claim as speculative, a failure to deal with the claim as made.
The Tribunal’s analysis is to be read fairly (Wu Shan Liang). The applicant recognised this before the Court. However, he also stressed that when regard was had to relevant authorities, this reading should be understood as follows (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] per Stone J:
“… In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
In my view, a fair reading of the Tribunal’s decision does not give rise to any ambiguity. When read in context of the totality of the reasoning, the Tribunal understood the broad basis of the claim (his being an Hazara of Shia faith). Further, it understood that the applicant and his advisor were claiming that the foreign forces would be withdrawn and, when that occurred, the Taliban would take control of the country, and Hazaras and Shias would be persecuted.
The Tribunal did have regard to relevant country information which was discussed at the hearing with the applicant and his representative (see for example at [57] at CB 194 to [72] at CB 196). On the evidence, it was open to the Tribunal to take the view that the claim concerning harm from the Taliban after the withdrawal of foreign forces should be seen in the context of the applicant’s broader claim to fear harm from the Taliban, as an Hazara of Shia faith.
The Tribunal’s reasoning was that the applicant’s claims had to be assessed in light of available country information. This information indicated that since 2001 “…the situation for the Hazaras has improved in Afghanistan… and their districts are better off and relatively more secure than other parts of Afghanistan…” ([77] at CB 197). The Tribunal further found that information also indicated that “…the population of Jaghori [the district in which the applicant had been born – see [20] at CB 187] is almost entirely Hazara; it is controlled by a Hazara group…” ([77] at CB 197).
The Tribunal found, in the circumstances, that the risk of the applicant suffering harm in Jaghori because he was Hazara and Shia was remote ([78] at CB 197). This, again, was reasonably open to the Tribunal on what was before it.
The Tribunal also noted that, when this was put to the applicant, he “conceded that Jaghori was relatively safe for Hazaras…” ([79] at CB 197).
It was in this context that the applicant claimed that, notwithstanding the “current” situation, this “would all change once international forces leave Afghanistan…” ([79] at CB 197). The applicant’s claim was that in that circumstance the Taliban would return to power ([79] at CB 197).
The Tribunal noted country information that ([80] at CB 197):
“… the risk of Hazaras in Jaghori coming into conflict with the Taliban was low because of the way Hazara leaders had dealt with the Taliban in the past. To this the applicant repeated his fear of the Taliban regaining control regardless and committing abuses as they did in the past.”
In the context of the claim as it was made, and the Tribunal’s analysis of the claim in the context of country information before it, a fair reading of the impugned [81] (at CB 197), and as repeated at [108] (“…As stated above…”, at CB 200), is that the applicant’s claim of fear of harm, when the planned withdrawal took place, was itself “speculative” on the part of the applicant.
That finding is supported by the Tribunal’s preceding analysis and the country information before it. That is, that the applicant was speculating as to what would occur, particularly in circumstances, where Taliban control in the past had not led to serious harm for Hazaras, who were also Shias (see [42] at CB 190), in Jaghori.
A different way of expressing this finding, which in my view fairly illustrates the Tribunal’s reasoning, is that the applicant’s view of what would occur after the “planned” withdrawal of foreign troops, was, as the Minister submitted before the Court, not probative of the information before the Tribunal. It is to be remembered that the applicant himself had conceded before the Tribunal that the country information was at least, in relevant part, accurate.
I do not agree with the applicant that the Tribunal did not correctly apply the real chance test. I do not accept the applicant’s submission that, on a fair reading, the Tribunal’s analysis should be understood simply as saying only that the “planned” withdrawal of foreign forces, which had not yet occurred, meant that the real chance of harm in the foreseeable future was not properly considered.
Rather, in my view, the Tribunal’s analysis, leading to its conclusion, contained a description of the applicant’s claim which it characterised as “speculative”. In this light, the Tribunal did consider the applicant’s claim as to what he said would occur after the foreign forces left Afghanistan, but found his claim that a Taliban takeover would lead to serious harm, as being speculative in circumstances where that had not occurred in the past in Jaghori when the Taliban had been in “control” of Afghanistan.
A different Tribunal member may have come to a different view. This is clear given the other Tribunal cases (differently constituted) to which the representative drew the Tribunal’s attention (see [109] at CB 201). However, the Tribunal’s findings were all reasonably open to it on what was before it. It gave reasons probative of the material before it.
It must be said that in spite of acknowledging before the Court that Tribunal decisions are to be read fairly, the applicant’s ground proceeds from a reading of the Tribunal’s analysis which is not fair. In that sense the ground of the proposed amended application lacks merit.
In his written submissions to the Court the applicant also asserted that the interests of the Australian public at large are “not served by the refoulement of a refugee to a country of claimed persecution…” (at [15] of the applicant’s written submissions).
That is to be accepted. However, the difficulty with the applicant’s submission is that he has been determined not to be a refugee. In that circumstance, the “non-refoulement” concept does not apply. His attempt to invoke the interests of the Australian community in this regard, therefore, does not assist him.

Conclusion

As set out above, there is no prejudice to the Minister if time were to be extended. However, the applicant has not provided a satisfactory explanation for the lengthy delay in coming to Court. Of far greater weight, the sole ground of the proposed amended substantive application lacks merit, such that it is not in the interests of the administration of justice to extend time.
Nor is this a case where, even if a satisfactory explanation had been provided, the applicant’s capacity to argue his ground was affected by any failure to extend time. The applicant was represented by counsel before the Court. I did not understand that the applicant, through his counsel, had anything further to add in support of his argument. The applicant’s claim of jurisdictional error on the part of the Tribunal was fully ventilated.
In all, the application to extend time should be refused. I will make an order accordingly.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 2 December 2015