SZTUT v Minister for Immigration

[2015] FCCA 2978

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2978

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.36, 476, 477

SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
Khan v Minister for Immigration and Citizenship [2000] FCA 1478
W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398, MZWPD v Minister for Immigration and Citizenship [2006] FCA 1095
SZGUW v Minister for Immigration and Citizenship [2008] FCA 91
SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774

Applicant: SZTUT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 163 of 2014

Judgment of: Judge Nicholls

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Sydney

Delivered on: 6 November 2015

REPRESENTATION

Counsel for the Applicant: Mr P W Bodisco

Solicitors for the Applicant: Westside Legal

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

3. The applicant pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 163 of 2014

SZTUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 23 January 2014 seeking an extension of the time set out in s.477(1) of the Act, such as to make a competent 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 12 June 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. The applicant, with legal representation, sought to amend the grounds of the proposed substantive application on 7 May 2014 and again subsequently on 20 April 2015. On both occasions the applicant appeared to have abandoned the application to extend time pursuant to s.477(2) of the Act by indicating that he did not wish to make that application.

3. 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 migration decisions, must be made within 35 days of the date of the migration decision.

4. In the current case, that decision was made by the Tribunal on 12 June 2013, the application for review pursuant to s.476 of the Act was filed over six months late on 23 January 2014. It was, therefore, not competent.

5. 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. However, s.477(2)(a) of the Act requires an application for an extension of time to be made in writing, specifying why the applicant considers it necessary for the Court to extend time.

6. In the current case, by the filing of the purported substantive “amended” application on 7 May 2014, the applicant indicated that he did not apply for an extension of time. No grounds in support of any such extension were provided. At that point, therefore, the question arose as to whether there was any application in writing for the extension of time as required by s.477(2)(a) of the Act. This is particularly so given there was no specification by the applicant as to why it was in the interests of the administration of justice to extend time as also required by s.477(2)(a) of the Act.

7. The purported further amended substantive application on 20 April 2015 again indicated that the applicant did not make an application to extend time. That proposed substantive application, however, was supported by a ground regarding an extension of time, notwithstanding the indication that the applicant did not make an application for an extension of time. This was in the following terms:

   “I applied for a protection visa on the 8 September 2012. The Department of Immigration and Border Protection refused my application on the 19 December 2013. I applied for the Refugee review Tribunal for review of the delegates’ decision. During, this period, I was represented by Vrachnas Lawyers, that they cannot assist me further. As a result of that, I do not know anything and what to do next. During that time I was desperate to know my options. I had no idea what to do after the refusal of the RRT. I approached a solicitor he advised me to lodge Ministerial appeal. He did not give me option to go to Courts. He charged me put do not want to put his name in the Ministerial appeal. I relied on him and he said the Minister will intervene in my case. I really relied on him because he said he is a lawyer who had handled many immigration cases. He did not at any time either orally or in writing inform me about the option to go to Court. He did not seek any counsel’s advice to see whether my case has any merit. He insisted me to apply to the Minister. I was misguided by this person which deprived me the right to judicial review. I strongly believe due to that I was deprived of my right to challenge the decision. Some elders in the community and Christian pastors told me that I should have gone to the courts before going to the Minister. I strongly believe that my case has merits and I have outlined the reasons in my application.”

8. Notwithstanding the difficulties above, the question of the extension of time was set down for hearing. At that hearing on 20 July 2015, leave was granted for the applicant to formally submit his application for an extension of time in writing. The Court proceeded on the extension of time application made on 20 July 2015. The grounds in support of the application for an extension of time were the same grounds as those as those supporting the 20 April 2015 application, as set out above at [7].

9. The evidence before the Court is contained in the bundle of relevant documents tendered by the Minister (“the Court Book” – “CB”) and the applicant’s affidavit of 19 July 2015 setting out his evidence in support of the extension of time.

10. As I have previously stated, the elements relevant to any 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 and the merits of the grounds in the proposed substantive application.

11. The Minister opposed the application for the extension of time. The basis for this was said to be the lack of merit in the grounds of the proposed amended substantive application.

12. The Minister noted that the period of delay was significant. However, he did not take issue with the explanation provided by the applicant for this delay. Further, the Minister made no submission that he was prejudiced by the delay in making the application.

13. The hearing for the extension of time, therefore, proceeded on the basis that the pre-eminent element in the consideration for the extension of time was whether the grounds of the proposed substantive amended application had any merit.

Proposed Substantive Application

1. Although two grounds were pleaded in the ultimate proposed substantive application, the applicant only pressed ground two. Ground one was abandoned. Ground two is in the following terms:

   “The RRT has failed to consider the full integers of the claim.

   Particulars

   In considering the Applicant’s claim under section 36(2)(aa) of the Migration Act 1958 (Cth), the RRT failed to aggregate the Applicant’s claim to have previously been suspected of having links to the LTTE and of possessing scars.”

2. The ground directs attention to the Tribunal’s consideration in respect of the criterion at s.36(2)(aa) of the Act, and asserts that the Tribunal failed to consider the “full” integers of the applicant’s claim in relation to that consideration because it failed to consider, in an aggregate sense, the applicant’s claim to have been suspected of having links in Sri Lanka to the LTTE and to have (“possessing”) scars on his body.

Background

1. The background to the applicant’s ground is as follows. The applicant is a citizen of Sri Lanka. He arrived in Australia by boat from Indonesia. Following the Minister’s intervention pursuant to s.46A(2) of the Act, he made an application for a protection visa on 8 September 2012 (CB 18 to CB 80). He was assisted by a registered migration agent.

2. The applicant’s claims to fear harm on return to Sri Lanka were expressed, variously, in an interview he had with immigration officials on arrival, in a Statutory Declaration attached to his protection visa application, and in submissions made by his representative.

3. There is no dispute that the applicant claimed to fear harm as a Tamil and because the Sri Lankan authorities suspected that he had links with Liberation Tigers of Tamil Eelam (“LTTE”). The claim, therefore, was based on his Tamil ethnicity, and an actual or imputed political opinion, because of a perception that he was an LTTE supporter because he had worked and had travelled to northern Sri Lankan and had lived in a predominantly Tamil area.

4. He further claimed to fear harm as a member of a particular social group being Tamils who had left Sri Lanka illegally and returned to Sri Lanka following unsuccessful claims for protection in Australia.

5. The applicant claimed to fear harm on return from police and security officials. He said that on return he would be interrogated and possibly tortured or killed during this interrogation.

6. The Minister’s delegate refused the grant of the protection visa. The applicant applied for review to the Tribunal on 23 January 2013 (CB 123 to CB 129). He continued to be represented by a registered migration agent. The applicant attended a hearing before the Tribunal on 12 March 2013 (CB 138 to CB 139).

7. In its decision record, the Tribunal set out the applicant’s claims to fear harm, as referred to above at [18] – [20], with the addition of expanded claims in relation to the description of membership of particular social groups.

8. The Tribunal accepted that the applicant was a Tamil from Udappu in Sri Lanka. It noted that the applicant had provided “ambiguous and conflicting evidence”. Nonetheless, it accepted that he had worked as a fisherman between 2004 and 2012 including for one year in Trincomalee ([96] at CB 167).

9. The Tribunal rejected the applicant’s claim that he would be suspected of being associated with the LTTE on return to Sri Lanka. This was based on the applicant’s own evidence that he had not provided evidence of the authorities suspecting him of any such links since 2009, and, further, if he had been of interest to the authorities after that time he would have experienced some difficulties in the years prior to his departure for Australia ([101] at CB 168 to [104] at CB 169).

10. The Tribunal rejected the claim that he would suffer harm because he is a Tamil fisherman from Udappu and would therefore be perceived as an LTTE supporter ([105] – [107] at CB 169).

11. The Tribunal also considered a claim, made by the applicant at the Tribunal hearing, that he would suffer harm because he would be unable to earn a livelihood as a fisherman ([108] at CB 169 to CB 170).

12. The Tribunal found that the applicant would not suffer serious or significant harm on return because of his Tamil ethnicity. It had regard to country information regarding the security situation in Sri Lanka since the cessation of hostilities some years earlier ([109] at CB 170 to [114] at CB 171). The Tribunal found that the applicant would not, in the circumstances, be imputed with a pro-LTTE or anti-government political profile because of his ethnicity, or because of where he had come from in Sri Lanka ([115] at CB 171).

13. The Tribunal also found that the applicant did not have the profile of a Tamil who was at risk from the authorities, or paramilitary groups, or Sinhalese generally ([116] at CB 171 to [120] at CB 172). The Tribunal also considered his claimed fear in the context of his claimed membership of various particular social groups. These included social groups said to arise from his having left Sri Lanka illegally and applying for asylum in Australia ([122] at CB 172 to [139] to CB 176).

14. The Tribunal also considered the claim raised by the applicant’s representative in submissions that the applicant would face difficulties on return because he had scars ([120] at CB 171 to CB 172).

15. The Tribunal noted that having left Sri Lanka illegally the applicant may be subject to certain sanctions. It found however that in the circumstances this would not amount to persecutory harm

    
    

    ([141] – [142] at CB 177).

16. The Tribunal also considered the applicant’s claims as against the criterion at s.36(2)(aa) of the Act. It found he was not a person to whom Australia had protection obligations under this criterion ([145] at CB 178 to [154] at CB 179).

Consideration: Proposed Substantive Application

1. In his written submissions, the applicant contends that the Tribunal is required to consider the entirety of the applicant’s claims (see references in the applicant’s submissions at [15] to Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31], W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398, MZWPD v Minister for Immigration and Citizenship [2006] FCA 1095 at [69], SZGUW v Minister for Immigration and Citizenship [2008] FCA 91 per Jacobson J and SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 per Reeves J). There is no dispute with this proposition.

2. He further contends that the Tribunal is required to consider these claims and component integers either made by an applicant or “apparent” on the face of the material before it (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). Again, no real dispute emerges.

3. Further, the applicant relies on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No 2)”) for the proposition that the Tribunal’s obligation to consider claims to protection is not limited to the expressly articulated claims, but on the basis of all the material before it.

4. In light of this, the applicant explained his ground before the Court as follows. First, the applicant’s migration agent “squarely” raised an integer of the applicant’s claim to fear harm as being that “the fact he has scars” would “place” the applicant in “some difficulty” upon his return to Sri Lanka.

5. The applicant directed attention to [94] of the Tribunal’s decision where he said the Tribunal recorded this claim (at CB 166):

   “The applicant’s agent indicated that on his return that as the LTTE is part of the people smuggling racket, the CID may use this to establish he is an LTTE supporter as he left Sri Lanka illegally. She also submitted that he will face difficulty on his return as being suspected to be with the LTTE as he has scars, was in areas that used to be controlled by the LTTE and is a young Tamil man.”

6. In dealing with the applicant’s claims under the complementary protection criterion (s.36(2)(aa) of the Act), the applicant directed attention to [145], [148] – [149] of the Tribunal’s decision record (at CB 178):

   “[145] As reasoned above, the Tribunal is not satisfied that, at the time of his departure from Sri Lanka in May 2012 the applicant had any adverse profile giving rise to any risk of harm, including a real risk of significant harm, despite his claimed compounded risk profile.

   …

   [148] As to his scar, while the Tribunal accepts he has such a scar, on the basis of the country information above it does not accept there is a real risk he will suffer significant harm on his return to Sri Lanka on this basis.

   [149] The Tribunal notes that the applicant, should he return to Sri Lanka, would have the additional characteristics of being a returned failed Tamil asylum seeker and a person known or suspected to have breached Sri Lankan emigration and immigration laws, characteristics he did not possess when he was last in Sri Lanka.”

7. The applicant submitted that in relation to what the Tribunal said at [148] (at CB 178), the country information to which it referred also included the following ([90] at CB 166):

   “The British High Commission in Colombo has reported: ‘There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. Contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.’ (UK Border Agency 2012, Operational Guidance Note: Sri Lanka, April, at para 3.6.37)”

8. The applicant’s argument was that at [148] (at CB 178), the Tribunal addressed the scarring issue “in isolation”. The applicant’s submission was that the “scarring” matter was not raised in isolation, but was raised as an integer of the applicant’s claim to fear harm. That is, that that fear arose from the “aggregate” of other matters advanced by the applicant.

9. The applicant pressed that, as set out at [149] (at CB 178), the Tribunal accepted that there were “additional characteristics” in the “aggregate” of elements that were the basis of the applicant’s fear of harm (see above at [37]).

10. The applicant also submitted that yet further elements were identified by the Tribunal at [151] (at CB 178):

    “Taking into account the information on unlawful or illegal departure above, while the Tribunal accepts that, as a person who departed Sri Lanka illegally, the applicant will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities, the Tribunal is not satisfied that he has any adverse profile which will be revealed throughout that process. While the applicant may have been questioned in 2009 as being suspected of being with the LTTE as a Tamil who travelled to the North East, for the reasons outlined above I have found he is no longer suspected of having had any such link, nor was he at the time of his departure and therefore the applicant will not be suspected of being with the LTTE on his return to Sri Lanka.”

1. The applicant understood the Tribunal’s reasoning to be as follows. It accepted that the applicant had scarring. It found that given country information, to which it referred, this fact would not raise a real risk of significant harm if the applicant were to return to Sri Lanka.

2. The applicant’s submission was that the other elements in the claim to fear harm were not taken into account by the Tribunal in rejecting that the fact of scarring would pose a real risk for the applicant. The applicant argued that the country information identified certain circumstances ([90] at CB 166) where searches would be carried out by the Sri Lankan authorities and, in that event, the applicant’s scarring would be discovered and he would face a real risk of significant harm, thereby engaging s.36(2)(aa) of the Act.

3. The applicant’s attack also focussed on the second sentence at [151] (at CB 178, see above at [42]). The argument was that the finding expressed there was that the applicant would no longer be suspected of having LTTE links. This finding was made in the context of the Tribunal having found that the applicant would be questioned on return to Sri Lanka because he had left illegally. The complaint was that the scarring would be found during that process. The applicant’s argument was that the Tribunal did not address the scarring matter in the context of the applicant being questioned on return to Sri Lanka because of his illegal departure.

4. The Minister agreed that the applicant’s claim to have scars, and that this had some bearing on his claim to fear harm, was “squarely” raised.

5. In this regard, the Minister directed attention to the second dot point in paragraph [69] of the Tribunal’s decision record (at CB 158):

   “…

   - All his fears may come to a reality on his return in terms of the authorities being suspicious of him as he has scars, was in areas controlled by the LTTE and is a young Tamil man. I noted it was not until after the war ended he went to Tricomlee. She responded that under interrogation it will be revealed that he travelled there and while the suspicion could be economic these matters could combine for them to think he is a LTTE supporter. As to his scar on his face, the applicant said he received it while playing when he was 17 or 18.”

6. The Minister emphasised that what is set out here was, on the evidence available, what was relevantly and squarely raised. In that light, it was important to note that there was no reference, nor can it be inferred, to any claim that the applicant’s scarring would bring him to any particular attention at the airport in Sri Lanka if the applicant was to be questioned there on return.

7. The Minister’s position was that in that light, the Tribunal dealt with the claim as it was squarely raised. That is, that at [110] (at CB 170) the Tribunal dealt with the scarring matter, and as it related to the applicant’s return to Sri Lanka:

   “In this regard I have considered his claim that he will be targeted if he returns to Sri Lanka as a Tamil and a Tamil from Udappu and as a young Tamil male with scars that and as a member of this ethnicity and groups he will be perceived as being with the LTTE. His agent submitted at the hearing that harassment as a Tamil can amount to ongoing fear and mental torture which could amount to persecution.”

8. The Minister emphasised that there was no express claim made by the applicant that the scarring was linked to being questioned at the airport on return. Nor could such a claim be inferred from what the migration agent and the applicant told the Tribunal.

9. The Minister also drew attention to the Tribunal’s findings at

   
   

   [116] – [117] (at CB 171) where the Tribunal rejected the proposition that the applicant had any profile that would bring him to the attention of the Sri Lankan authorities on return. Further, being a young Tamil male was not a factor that would lead to further harm for the applicant.

10. The Minister submitted that in the context of this analysis, the Tribunal dealt with the matter of scarring in detail ([121] at CB 172):

    “The applicant’s agent also indicated he will face difficulty on his return as he has scars and is a young Tamil man who visited LTTE areas and this will become known when he is questioned by the authorities on his return. As to the latter claims I have dealt with them above. As to his scarring the applicant claimed he received the scar from playing when he was 17 or 18. Despite being asked on numerous occasions at the hearing before me whether he had any other reasons for fearing return the applicant never raised his fear of return as he had scars or that he was targeted in Sri Lanka because of these scars, even though when he was questioned by the navy in 2009 in Tricomlee he had the scar. I expect if he feared return on this basis he would have claimed it before the hearing to the Department or Tribunal and that he would have faced difficulties as a result. As it was not raised I therefore do not accept that the applicant faced any difficulty in Sri Lanka because of the scar or fears return on this basis. Further country information from the British High Commission in Colombo outlined above has also reported that while there is strong anecdotal evidence that scarring has been used in the past to identify suspects, contacts in government ministries suggest that this practice has either ceased or is used less frequently. The High Commission notes that at the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training and there is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees. As I have found above he does not have such a profile, I do not accept he will be targeted on his return because of his scar. For these reasons and those above, I do not accept he has a well-founded fear of persecution on the basis of his scars or will face serious or significant harm on the basis of these, combined with his ethnicity and that he visited LTTE controlled areas were he to return in the reasonably foreseeable future.”

11. It is important to note that, in developing his argument before the Court, the applicant made reference only to the Tribunal’s finding in relation to complementary protection (with some reference to country information referred to elsewhere in the Tribunal’s decision record).

12. I accept the Minister’s submission that the Tribunal’s analysis, and findings in relation to complementary protection, should not be read in isolation of factual findings set out earlier in its decision record. As the Tribunal made clear at the beginning of its particular analysis on complementary protection ([145] at CB 178), it sought to refer to reasoning and findings expressed “above”. It was open to the Tribunal to proceed in this way. It was entitled to rely on factual findings expressed earlier, and did not need to repeat them (SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774 at [56] per Robertson J).

13. These “earlier” expressed findings were based in part on country information which included that, in the past, scarring was an integral factor, of itself, which engaged the authorities’ attention on persons who might have fought in the war, or had military training.

14. However, that country information also stated that the circumstance of coming to attention simply because of possessing scars was a practice that had ceased or greatly diminished. In my view, on a fair reading, the import of this is reflected in what the Tribunal set out at [90] (at CB 166). In essence, the Tribunal’s reasoning was that what had been the situation in the past, was no longer the case, and was not relevant to the current situation in Sri Lanka. I agree with the Minister that the Tribunal’s reasoning and findings at [121] (at CB 172) must, plainly, be read in context of what it set out at [90] (at CB 166). If for no other reason than the Tribunal’s repetition at [121] (at CB 172) of the thrust of that country information makes it plain that the two paragraphs are to be read together.

15. The Tribunal’s analysis at [121] (at CB 172) when read with, in particular [110] (at CB 170) and [116] – [117] (at CB 171), on at least a fair reading, is that the applicant did not have a profile, certainly at least from 2009, having regard to all the other factors he claimed would lead to harm, that would make his scarring a matter of concern for him upon return. That profile involved the characteristics of his ethnicity, having come from a former LTTE area, being suspected of involvement with the LTTE in the past, or that he had been involved in activities which brought him to the attention of the authorities.

16. The aggregated claim that the applicant says was not considered by the Tribunal focusses, as set out above, on the proposition that the scarring would bring him to attention at the airport on return.

17. As is made clear in such authorities as NABE (No 2), the Tribunal’s obligation is to deal with all claims and aspects of claims (Htun) expressly made or clearly arising in the circumstances as presented (see above).

18. I agree with the Minister that the applicant did not raise such a claim on what was presented. The applicant’s relevant claim is as set out at [69] (at CB 158). That claim, and its component integers were addressed by the Tribunal.

19. The Tribunal squarely addressed the “scarring” claim as it was put. It found, on the country information, that the matter of the scarring was not of consequence unless there existed some other factor, such as a particular profile or association with the LTTE. The Tribunal considered this and rejected it.

20. Specifically, in relation to what would happen at the airport, the Tribunal’s finding was that any questioning of the applicant in the absence of any adverse profile, would not constitute, or lead to, significant harm for the applicant.

21. I agree with the Minister that the “scarring” claim and what would occur at the airport, were not part of some express, or clearly arising, aggregation of the applicant’s total claims. The Tribunal considered each claim and each part of those claims as they were put or arose.

22. Further, the applicant’s focus only on those paragraphs dealing specifically with complementary protection does not take into account the totality of earlier expressed findings made by the Tribunal and their relevance to the analysis on complementary protection.

23. Even further, the applicant’s ground is answered when regard is had to [153] of the Tribunal’s decision (at CB 179). Its conclusion about complementary protection plainly was, as the Tribunal stated, derived from the applicant’s claims which it accepted and “considered cumulatively”.

24. The applicant’s ground does not reveal jurisdictional error on the part of the Tribunal.

Conclusion

1. Therefore, in relation to the Court’s discretion to extend time, the applicant’s ground cannot be said to be of sufficient merit, or character, such as to argue for the extension. The applicant’s ground was comprehensively argued by counsel. I did not understand there was anything further to be said about it by the applicant. In all, the application to extend time should be refused. I will make an order accordingly.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 6 November 2015