CLJ15 v Minister for Immigration and Border Protection

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: KENNY J DATE OF ORDER: 31 OCTOBER 2018

1. The applicant be granted an extension of time under rule 36.05 of the Federal Court Rules 2011 (Cth) in which to file a notice of appeal.
2. The applicant have leave to amend the amended draft notice of appeal filed 19 July 2017 in accordance with his written submissions dated 1 December 2017 and have leave to raise all proposed grounds on the hearing of the appeal.
3. The amended draft notice of appeal as further amended in conformity with order 2 above stand as the notice of appeal filed in these proceedings.
4. The appeal be dismissed.
5. Unless a party notifies the Court in writing by 4.00 pm on 2 November 2018, indicating opposition to this order as to costs, the applicant pay the first respondent's costs of the application, as agreed or assessed Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This an application for an extension of time within which to file a notice of appeal from a judgment of the Federal Circuit Court of Australia delivered on 8 February 2017. By this judgment, the Federal Circuit Court dismissed the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal, made on 19 October 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister (Minister) dated 13 June 2014 not to grant the applicant a Protection (Class XA) Visa (protection visa). The Federal Circuit Court's decision has the citation: CLJ15 v Minister for Immigration & Anor [2017] FCCA 467. 2 Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the applicant was required to file any notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. As judgment had been delivered on 8 February 2017, the applicant had to file a notice of appeal by 1 March 2017 to be within time. The applicant did not file a notice of appeal by that date. He therefore requires an extension of time to do so. This application for an extension of time was filed on 25 May 2017. The Court may grant such an extension of time under r 36.05 of the Federal Court Rules. 3 The applicant relied on an affidavit of Sarah Ainslie Thompson sworn on 25 May 2017 and on his own affidavit affirmed on 13 December 2017. 4 Both the applicant and the Minister filed written submissions and appeared at the hearing represented by counsel. The case was argued on the basis that if the Court granted the applicant an extension of time, then it would also deal with the merits of the substantive appeal. 5 For the reasons that follow, the application for an extension of time should be granted. The delay, though not insignificant, is adequately explained. There is no particular prejudice to the Minister, and the merits of the appeal are sufficiently arguable to justify the extension of time sought. For the reasons that follow, however, the appeal should be dismissed.

BACKGROUND 6 The applicant is a citizen of Afghanistan. He arrived in Australia by boat from Indonesia with his brother on 16 August 2012. 7 On 18 December 2012, the applicant applied for a protection visa. The applicant set out his claims for protection in a statutory declaration accompanying his protection visa application. The applicant claimed that, if returned to Afghanistan, he would be harmed by the Taliban because he had been "explicitly accused of having links with the American forces through [his] father-in-law's activities and was threatened to death by the Taliban". In this statutory declaration the applicant further claimed that: (1) his father-in-law was killed, including beheaded, by the Taliban because he was working as a truck driver for American forces in Afghanistan; (2) the applicant and his brother received a threatening letter from the Taliban shortly after the father-in-law's death, stating the Taliban had killed him because he was betraying the country, that the brothers were suspected of being American spies, and that they too would suffer the consequences of cooperation with foreign forces; and (3) that the applicant and his brother left Afghanistan and went to Pakistan on the same day that they received the letter "to protect [themselves] from the imminent risk of harm directed at [them] by the Taliban". 8 On 13 June 2014, a delegate of the Minister refused to grant the applicant a protection visa.

The Tribunal's decision 9 On 21 July 2014, the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing before the Tribunal on 2 September 2015. He was assisted by a Pashto and English language interpreter and was represented by his registered migration agent. 10 The Tribunal accepted that the applicant was a Sunni Muslim of Pashtun ethnicity and that he was "practically illiterate". The Tribunal accepted that the evidence given by the applicant at the hearing was broadly consistent with the statutory declaration he had earlier made in support of his claims for protection, save for the date when he arrived in Australia and the timing of his father-in-law's death. Regarding the date of his father-in-law's death, the applicant said that he could not remember this because he was illiterate. 11 At the hearing, among other things, the applicant gave evidence that, after he and his brother left for Australia, on two separate occasions, people went to the house where their wives and children were living and asked about the whereabouts of the applicant and his brother. The applicant said that he suspected the visitors were members of the Taliban and the same people who left the threatening letter that led the brothers to leave Afghanistan. When asked by the Tribunal why he and his brother did not take their families with them when they left Afghanistan, the applicant said they believed the women and children would not be harmed. 12 In considering the applicant's claims, the Tribunal had regard to a "verification" letter from a local authority stating that the applicant had a bakery in Afghanistan but since 2012 "he is lost and no one knows about him", as well as an undated letter purportedly from the employer of the applicant's father-in-law confirming his death. In light of credibility concerns regarding the applicant's claims, the Tribunal gave little weight to these letters, finding that the former was unhelpful, and the latter was inconsistent with the applicant's previous evidence regarding the date of his father-in-law's death. 13 The Tribunal was prepared to accept, based on country information, that the Taliban and insurgents may target a person simply because the person is related to another person who works for the American military. The Tribunal did not accept that the applicant's father-in-law worked for the American forces and was targeted by the Taliban. This was because: (1) the Tribunal was "unable to find any reports from independent sources about the claimed beheading of the applicant's father-in-law", and it was implausible that such an incident would have remained unreported; (2) the date of the applicant's father-in-law's death as stated by the applicant in written and oral evidence was inconsistent with the date in the letter from the employer of the applicant's father-in-law; (3) the Tribunal found it "implausible that the applicant and his brother would have been so afraid that the Taliban might kill them that they escaped within a day of receiving the threatening letter but they would have left their wives and young children behind for three-four months"; and (4) the Tribunal did not accept that the applicant fled Afghanistan within a day of receiving the threatening letter without keeping a copy of it. The Tribunal found that the applicant had "made up the claim that he and his brother had to flee Afghanistan because their lives were at risk" and "the applicant, his brother and their families did not experience any type of harm in the past and they were not of any interest to any anti-government elements". 14 Further, and relevantly for the present application, under the heading "complementary protection" the Tribunal set out terms of s 36(2B)(c) of the Migration Act 1958 (Cth), which is in the following terms: (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: … (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. 15 The Tribunal then referred, at [79] of its reasons, to the test set out in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884, stating: In SZSFF v MIBP [2013] FCCA 1884 the presiding judge considered the qualification in s 36(2B)(c) to the complementary protection criterion. The Court stated: … s 36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s 36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual's specific circumstances The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s 36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment. (Footnote omitted; emphasis added) 16 The Tribunal stated that it had considered the applicant's circumstances "with respect to this point", and it did not accept that the applicant would be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in the applicant's home area in Afghanistan. The Tribunal proceeded to analyse the applicant's evidence about the level of violence and country information about Taliban attacks in his home area, and the rise of ISIS in Afghanistan. 17 While the Tribunal accepted that "there has been violence against the civilian population across Afghanistan", including the applicant's home area, and that "terrorist attacks do occur" in that area "from time to time", it did not accept that "the level of generalised violence in Afghanistan and in [the applicant's home area] in particular is so widespread that the applicant faces a real risk of significant harm". 18 The Tribunal concluded that the applicant did not satisfy the criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Migration Act and accordingly affirmed the delegate's decision.

Federal Circuit Court Proceeding 19 On 23 November 2015, the applicant filed an application for judicial review of the Tribunal's decision in the Federal Circuit Court. The primary judge summarised the applicant's grounds of review as: that the Tribunal made a biased decision; that the Tribunal denied the applicant procedural fairness; that the Tribunal failed to consider claims or any integers of a claim put before it by the applicant; and that the Tribunal found that the applicant did not face a real risk of significant harm in the absence of "logical, probative evidence": reasons at [25]. The primary judge held that there was "no evidence" to support three of these four grounds; and that the fourth ground "invite[d] the Court to engage in merits review" and that the Tribunal's findings "were available to it on [the] evidence". 20 At the hearing, the Minister drew the primary judge's attention to the fact that, in applying s 36(2B)(c) of the Migration Act, the Tribunal had erred by applying SZSFF, when it should have applied SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245. The primary judge nonetheless dismissed the application, holding that the failure to apply SZSPT could not have affected the result reached by the Tribunal.

application for an extension of time 21 On 25 May 2017, the applicant applied to this Court seeking an extension of time in which to file a notice of appeal. A draft notice of appeal accompanied the applicant's extension of time application. The applicant subsequently filed an amended draft notice of appeal. Ultimately, the applicant's written submissions dated 1 December 2017 stated that the applicant sought to amend his proposed notice of appeal "to articulate the following grounds": The FFC erred in not finding that the decision of the Tribunal was affected by jurisdictional error because: (1) The Tribunal misconstrued or misapplied s 36(2B)(c) of the Migration Act 1958 (Cth), in that: a. The Tribunal applied the wrong principles as to whether s 36(2B)(c) applied to widespread harm. b. The Tribunal purported to rely on s 36(2B)(c) by reference to findings about the nature of harm faced by a population of a city, rather than the population of the country. (2) The Tribunal constructively failed to exercise its jurisdiction, or denied the applicant procedural fairness, in that it failed to consider corroborative evidence from the applicant's brother. 22 The principles applicable to the exercise of the Court's discretion to grant an extension of time are well established. Generally speaking, the Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time in which to appeal under r 36.05 of the Federal Court Rules. The factors that fall for consideration include the length of the delay and the explanation for it, any prejudice to the respondent if the extension is allowed, and whether there is sufficient merit in the proposed appeal to justify an extension of time. These considerations are not exhaustive, and the outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38]. 23 Furthermore, in addition to an extension of time, the applicant seeks leave to raise on the proposed appeal arguments that were not raised before the primary judge. These are the arguments sought to be raised in support of grounds 1(b) and 2 set out at [21] above. There was a slight suggestion that leave of this kind might also be needed to raise ground 1(a). It is clear, however, that the primary judge considered the issues on which ground 1(a) depends. In this circumstance, leave is not, it seems, required. 24 It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], "[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated". It follows that, in such a case as this, the Court's assessment of the applicant's prospects of success on the proposed judicial review grounds will be key in its determination of the applicant's extension of time application and the grant of leave to raise new grounds. Recognising this, counsel for the Minister advised the Court that if it determined to grant an extension of time on the basis that the merits of the case were sufficiently arguable, then the Minister would not oppose the grant of leave to the applicant to raise the new grounds.

Length of extension and explanation for the delay 25 As outlined at [2] above, the applicant filed his application for an extension of time before this Court 85 days after the expiration of the 21-day period prescribed by r 36.03 of the Federal Court Rules. 26 The applicant submitted that the delay arose from the fact that he was not aware of his appeal rights until after he sought legal advice. He said he lodged this application promptly after he received such legal advice. The applicant filed an affidavit affirmed on 13 December 2017 deposing that: The Judge made a decision to refuse my application on the day, but I was told that I would get the decision in writing. Once I got the written decision from the Court, I tried to look around for another lawyer. On my behalf, my 'uncle' … spoke to a few different lawyers to try and get some advice on what I could do next. I was eventually referred to Carina Ford Immigration Lawyers. I didn't know there were strict time limits for applying to the Federal Court. I did not know this until I went to Carina Ford Immigration Lawyers and was told about the time limits, and received a message from the Department of Immigration and Border Protection on my phone. I am now represented by Carina Ford Immigration Lawyers who lodged an application in the Federal Court as soon as they could. 27 Counsel for the Minister submitted that the applicant's explanation for his delay was inadequate as it was the applicant's responsibility to ascertain his review rights and the applicable time limits, citing SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33]. 28 In the circumstances, particular noting that the applicant was self-represented before the Federal Circuit Court, that he required the assistance of a Pashto-speaking interpreter in both the Federal Circuit Court and the Tribunal, and that the Tribunal accepted that he is "practically illiterate", I accept that the applicant did not know of his right to appeal let alone that there was a time limit for the commencement of an appeal. Further, I accept that, upon becoming aware of his appeal rights, the applicant acted promptly. As such, notwithstanding that the period of delay in this case is not insignificant, I accept the adequacy of the applicant's explanation for the delay in the circumstances.

Prejudice to the Minister 29 The Minister did not claim that he would be prejudiced by the extension of time sought by the applicant. (The second respondent, the Tribunal, filed a submitting notice and did not otherwise take part in the hearing.)

Merits of the proposed appeal 30 For the reasons I am about to state, I am of the view that the proposed grounds of appeal have sufficient merit to justify the extension of time sought and therefore the grant of leave to raise them on the appeal, notwithstanding they were not raised below. For the reasons stated below, however, the appeal should be dismissed.

Parties' submissions - Ground 1(a) 31 In support of ground 1(a), the applicant contended that the primary judge erred in concluding that the Tribunal's application of the wrong test with respect to s 36(2B)(c) of the Migration Act did not warrant the grant of relief because "[n]o different result would or could have been reached by the Tribunal had it applied [the correct test in] SZSPT". 32 The applicant identified alternative lines of analysis that might have been adopted by the primary judge in arriving at that conclusion. First, it may have been the case that the primary judge accepted that the Tribunal made a legal error, but did not consider that the error rose to the level of a jurisdictional error. Alternatively, that the primary judge accepted that the Tribunal's error was a jurisdictional error, but considered that she was justified in withholding relief because it would have made no difference to the outcome had the Tribunal applied the correct test. As to the first possible analysis, the applicant submitted that it was unlikely that a legal error as to the test to be applied could be within jurisdiction. In relation to the alternative possible analysis, the applicant contended that this was in error because the proposition that there may be discretion to refuse relief for a jurisdictional error was inconsistent with the established proposition that a finding of jurisdictional error presupposes that there has been a legal error affecting the outcome of an exercise of power. The applicant contended that the Full Court's decision in Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69; 251 FCR 143 (Shrestha FC) "misconceives the notion of jurisdictional error" to the extent that the decision indicated that there is a discretion to refuse relief where it can be shown with "crystal clarity" that the error would have made no difference to the outcome. 33 The applicant submitted that the error in the present case "involved a threshold misconception as to the nature of the limitation that [the Tribunal] was purporting to apply to deny the applicant's claims to complementary protection". This had the result, so the applicant said, "that the entirety of the Tribunal's evaluation of the applicant's circumstances and the country information was done upon a false premise." The applicant submitted that the Tribunal's error plainly affected the outcome of the review, "in that it was a necessary element of the Tribunal's rejection of the applicant's claims to fear significant harm and to affirm the decision of the delegate". The applicant also added that to "speculate as to what the Tribunal might have done if it applied the correct test" is to engage in merits review. 34 The Minister accepted that the Court was bound to follow SZSPT, although indicating, without pressing the point, that he considered the approach in SZSFF (and applied by the Tribunal in the present case) was correct and "arguably inconsistent" with SZSPT. 35 The Minister submitted that, in applying s 36(2B)(c), the Tribunal considered the extent and nature of generalised violence in Afghanistan and its impact on the population of Afghanistan generally, and also the impact on the applicant personally. The Minister referred to the Tribunal's reasons at [83] where, after referring to country information, the Tribunal found not only that the risk of terrorist attacks was one faced by the population of Afghanistan generally but also (and this being an analysis that SZSPT indicates was not required) that the applicant was "not personally at greater risk in this generalised violence context than the general population". 36 Having regard to the Tribunal's finding that the risk (of terrorist attacks) was one faced by the population of the country generally, the Minister submitted that: … it was open for the primary judge to find, with the appropriate level of conviction, and without entering into the territory of impermissible merits review (there being no evidence that this had occurred in any case), that no different result would have been reached by the Tribunal, had it applied the 'test' identified by this Court in SZSPT. No error attends the decision of the primary judge to refuse relief to the applicant in connection with the Tribunal's application of s 36(2B)(c) of the [Migration] Act. 37 Regarding the nature of the Tribunal's error, the Minister submitted that, even if the Tribunal had made a jurisdictional error, the primary judge would be entitled to refuse to grant relief where "it would be 'futile'; this reflecting a conclusion that the legal error did not make any difference to the exercise of power, and therefore did not warrant the grant of the discretionary remedies", citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [29] and [87]-[89]. Reference was also made to Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; 159 FCR 181 at [46] and Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 at [67]. Within the concept of futility, so the Minister said, are circumstances where there is no other conclusion available on the facts found by the Tribunal other than that the claim would have been rejected had it been properly considered. The Minister submitted that it was open to the primary judge to make the decision the applicant sought to contest. 38 Following the hearing, the High Court delivered judgment in Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 359 ALR 22 (Shrestha HC) and two other cases, all of which were heard concurrently with Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1. Kiefel CJ, Gageler and Keane JJ stated, at [1] in Shrestha HC, that Shrestha HC (and the other two cases) were to be determined in accordance with the holding in Hossain. Judgment and reasons in Hossain were delivered at the same time as Shrestha HC. In response to the Court's inquiry, only the Minister filed short submissions concerning Shrestha HC.

Consideration - Ground 1(a) 39 Proposed ground 1(a) arose from the primary judge's discussion of s 36(2B)(c) of the Migration Act. In particular, her Honour stated, at [26]-[27] of her reasons, that: [26] Section 36(2B)(c) of the [Migration] Act provides that a risk will not be regarded as a real risk of significant harm if the Minister is satisfied that:- "(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally." [27] In SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 ('SZSPT') the Court held that s 36(2B)(c) is engaged by a risk of harm (even amounting to torture) if the general population of which an applicant is a member was exposed to that risk. The widespread nature of the risk, whatever the specific gravity of it for an individual in the individual's circumstances was enough to engage the exclusionary provision. In the Tribunal hearing, the Tribunal applied a more favourable test to the Applicant deriving from a decision in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884, which held that a widespread risk can amount to a real risk of significant harm in appropriate cases. Applying this more favourable test, as submitted by the First Respondent, the Tribunal still concluded that the Applicant was not entitled to complementary protection. No different result would or could have been reached by the Tribunal had it applied SZSPT as submitted by the First Respondent. No relief can be granted in respect of that error. 40 As indicated already, the parties accepted that the standard to be applied in determining if s 36(2B)(c) was engaged was the standard to which Rares J referred in SZSPT, rather than in SZSFF. In SZSPT at [11] Rares J said: In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged. 41 It was common ground that the decision of Buchanan J in BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; 241 FCR 150 at [30] was consistent with this approach. In BBK15 at [30], Buchanan J stated that "s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense", adding that "[a] risk shared with the general population is taken not to be a 'real risk of harm' for the purpose of s 36(2)(aa)." When his Honour applied this test in that case he said, at [31]: In substance, the Tribunal found that the appellant did not face a particular, personal risk of harm in the Sadda area, if returned to Pakistan, and that any risk of harm he did face was one which arose from sectarian or generalised violence in Pakistan. In reaching those conclusions, the Tribunal explicitly rejected the appellant's claims that he would be targeted by the Taliban or was of interest to the Taliban. The Tribunal found, so far as the possibility of generalised and/or sectarian violence was concerned, that the appellant did not have a "profile, religious, political or otherwise, that would make him a target for sectarian or ethnic or political related violence". In substance, in my view, the Tribunal concluded that the appellant was not more exposed to a real risk of significant harm than other members of the general population. 42 The standard proposed in SZSFF (and applied by the Tribunal in this case) was a little different. It was said (at [33]) in that case that the risk referred to in s 36(2B)(c) "must be a risk which is faced by the individual personally in light of the individual's specific circumstances", adding (at [34]): [W]here serious human rights violations in a particular country are so widespread or so severe that almost everyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation … What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment. 43 For present purposes, decisions such as SZBYR can be put to one side in assessing the strength of ground 1(a). The point about SZBYR (and cases like it) is that the Tribunal there made a separate and uncontested finding, which was independent of the alleged jurisdictional error and fatal to the applicant's case. In that circumstance, the relevant judicial review application was liable to be dismissed on discretionary grounds: see SZBYR [29], [87]-[89], [91]; compare BJN16 at [67]. That is not the situation in the present case. 44 Ground 1(a) raises a different issue about the effect of applying what was arguably the wrong test in deciding a significant matter. As acknowledged by counsel for the applicant at the hearing, the decision of Shrestha FC was against him on ground 1(a). In that case, Bromberg and Charlesworth JJ refused the relief sought, even though their Honours were satisfied that the Tribunal had asked itself the wrong legal question, because the outcome of the Tribunal's review would not have been any different had the Tribunal addressed the correct question: see Shrestha FC at [16] per Bromberg J and [126] per Charlesworth J; see also [45]-[48] per Bromwich J. Bromberg J explained, at [16], that: The Minister contended that neither the factors considered by the Tribunal nor the case put to the Tribunal by each of the appellants in relation to the exercise of the Tribunal's discretion permitted the possibility that, had the Tribunal asked what I have identified as the right question, the Tribunal's discretion would have been exercised differently. I accept that submission. That the decision-maker has a discretion demands substantial caution before relief should be refused on the basis of futility. However, on the facts at hand and with the requisite degree of clarity, I am satisfied that no different outcome could have eventuated had the right question been posed and answered by the Tribunal in each of the cases at hand. Insofar as it may be necessary that a forward looking assessment must be taken as to the outcome of any reconsideration, I would come to the same view. 45 Further, the applicant's submission that Shrestha FC involved a misunderstanding of jurisdictional error must be rejected following the decision of the High Court on appeal in Shrestha HC, in which the High Court dismissed the appeal from the Full Court's judgment. 46 As already noted, in Shrestha HC, Kiefel CJ, Gageler and Keane JJ held that the case was to be determined by applying the holding in Hossain. This was, as their Honours stated, at [1]: … an incorrect understanding and application of the law in making a decision in the purported exercise of decision-making authority conferred by the Migration Act 1958 (Cth) does not constitute a jurisdictional error justifying the grant of relief under or by reference to s 75(v) of the Constitution if a correct understanding and application of the law could not in the circumstances have resulted in the decision that was made being a different decision. 47 Applying Hossain, their Honours held, at [10], that "the fact that the postulated legal error could have had no impact on the Tribunal's decision[] denied that error the character of a jurisdictional error. The postulated legal error at most led the Tribunal to ask a superfluous question". Kiefel CJ, Gageler and Keane JJ explained (at [10]) that, in the three cases before them, which included Shrestha HC: The Tribunal's reasons for decision … make perfectly clear that its treatment of the relevant circumstance (as meeting the enrolment element of the definition of an "eligible higher degree student", rather than as enrolment in the particular course in which the visa holder had been enrolled at the time of grant of the visa) did not impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion as to the preferable exercise of discretion. For that reason, the postulated legal error could not have taken the decision of the Tribunal beyond the authority conferred on the Tribunal. 48 It is apparent from the above passage that the mistake considered in Shrestha HC was of a different kind to that said to arise here. Nonetheless, the effect of Shrestha HC and Hossain, as applied to the present case, is to raise the question whether the Tribunal's error was a jurisdictional or non-jurisdictional error. The error will not be a jurisdictional error if the test correctly applied under s 36(2B)(c) could not in the circumstances have resulted in a different decision from the one that was made.

Is ground 1(a) sufficiently arguable to justify an extension of time? 49 Counsel for the Minister correctly conceded that, generally speaking, it was "difficult … to establish" that an error of the kind made by the Tribunal in this case could not have led to a different result. In the circumstances, it seems to me that ground 1(a) was sufficiently arguable to justify the extension of time that the applicant sought. It does not follow that the ground is made out on appeal.

Disposition of ground 1(a) on the appeal? 50 The Minister noted that it had been argued and accepted in Hossain that the conceded error on the Tribunal's part made no difference to the Tribunal's decision, because there was an independent basis on which the Tribunal was bound to reach the same decision. In this case, the Minister submitted that the application by the Tribunal of the incorrect, though more favourable, test could only have operated beneficially to the applicant. I would accept this proposition. 51 The fact that the test applied, incorrectly, by the Tribunal was more favourable to the applicant than the test that ought to have been applied by it provides a basis for saying that the Tribunal would have reached the same result even if it had applied the correct test. More importantly, however, the fact that the Tribunal considered both the risk of harm faced by the population in Afghanistan generally and the risk to which the applicant was exposed, including in his particular circumstances if he returned to his home region, confirms that the Tribunal would have reached the same decision had it applied the correct test. The Tribunal's consideration of both the risk of harm in Afghanistan generally and the risk to the applicant if returned to his home region is apparent in the Tribunal's reasons at [80]-[85], which are set out below in considering ground 1(b). The Tribunal's discussion shows that it would have reached the same result had it applied the test in SZSPT, rather than the test in SZSFF. Ground 1(a) is, for these reasons, not made out on appeal.

Parties' submissions - Ground 1(b) 52 An issue before the Tribunal was whether the generalised violence in Afghanistan was such as to give rise to a real risk of significant harm as defined in s 36(2A) of the Migration Act. The applicant submitted that Parliament made a deliberate choice to use the term "country" in s 36(2B)(c), and that this Court must therefore give meaning to the term and find work for it to do. In this regard, the applicant noted that a "country" is different from other geographical or political units such as a "city", "province", "region", "territory", "State" etc. It followed, so the applicant said, that the Tribunal must make factual findings by reference to the relevant "country" if s 36(2B)(c) is to be engaged. The applicant argued that reliance upon factual findings made by reference to a smaller geographical or political unit, such as a "city", for the purpose of a finding under s 36(2B)(c), would be inadequate and, in consequence, any purported reliance on such findings for the purpose of a finding under s 36(2B)(c) would not be lawful. The applicant submitted that the Tribunal in his case made findings regarding generalised violence in the applicant's home region, rather than by reference to Afghanistan. In these circumstances, the applicant submitted that it was not open to the Tribunal to dispose of the applicant's complementary protection claim on the basis of s 36(2B)(c) of the Migration Act. 53 In oral submissions, counsel for the applicant noted that the Tribunal had ample country information before it regarding the security situation in Afghanistan and, despite making it clear at [19]-[21] of its reasons, that the Tribunal had read and considered that material, it failed to engage with it. The applicant urged that the proper inference to be drawn from the Tribunal's failure to analyse and evaluate the situation in Afghanistan as a whole was that the Tribunal had misunderstood that s 36(2B)(c) required consideration of the situation in the country as a whole, not the sub-area where the applicant previously resided within that country. It follows, so the applicant said, that the Tribunal applied the wrong test. 54 The Minister submitted that the Tribunal's reasons demonstrated that, in substance, the Tribunal found that the applicant did not face a particular, personal risk of harm in his home area if returned to Afghanistan, and that any risk of harm he did face was one which arose from the generalised violence that was directed at, or involved, the civilian population across Afghanistan, including his home region, this being the area to which the applicant would likely return. The Minister submitted that, in substance, the Tribunal concluded that the applicant was no more exposed to a real risk of significant harm than other members of the general population, including those members of the general population who were resident in the applicant's home area. This approach, so the Minister said, did not disclose error.

Consideration - Ground 1(B) 55 After referring to s 36(2B)(c) of the Migration Act and SZSFF, the Tribunal said at [80]-[85] of its reasons: [80] The Tribunal has considered the applicant's circumstances with respect to this point. For the reasons provided under the heading "Well-founded fear of persecution, the security situation in Afghanistan", the Tribunal has not accepted that the applicant will be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in [his home region]. [81] The Tribunal notes that there is a level of violence in [his home region] as discussed with the applicant at the hearing. The Tribunal accepts that in late September and early October 2015, after the hearing with the applicant, the Taliban took over the city of Kunduz and controlled if for about 15 days. According to reports they destroyed government offices and facilities, seized military hardware, hunted down opponents and freed prisoners from the city prisons. Even though the operation was unexpected and impressive, the total number of people killed was relatively low (57 people) and nearly half of the fatalities were caused by a US airstrike on a hospital. Otherwise, the number of civilians killed was low: it was reported that of the 57 dead, 31 were police officers. [82] The Tribunal has also considered recent country information about the rise of ISIS or Da'esh in Afghanistan, including reports that the veteran Afghan warlord Gulbuddin Hekmatyar, the leader of Hezb-e-lslami, has aligned himself with ISIS. [83] The Tribunal accepts that there has been violence against the civilian population across Afghanistan, including [the applicant's home region], and that there have been a number of civilian casualties (deaths and injuries) of people caught up in the targeted attacks. While the Tribunal accepts that terrorist attacks do occur in [the applicant's home region] from time to time, the Tribunal considers that this is a risk that is faced by the population generally, and that the applicant is not personally at greater risk in this generalised violence context than the general population in that city. The Tribunal does not accept that there is any particular attribute of the applicant that would lead him to be at a greater risk of harm in the generalised violence on his return. [84] Having considered the country information detailed above, and the information from a number of sources, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Afghanistan and in [the applicant's home region] in particular is so widespread that the applicant faces a real risk of significant harm, as defined in the Act. [85] Further, having regard to the findings of fact above in relation to the applicant's Convention claims, and having assessed the applicant's claims individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to Afghanistan, there is a real risk that the applicant will suffer significant harm from the Taliban or any other person in Afghanistan, because of his race and religion, actual or imputed political opinion, his or his brother's being in Australia and seeking asylum, his or his brother's absence from Afghanistan or any other reason. (footnotes omitted; emphasis added)

Is ground 1(b) sufficiently arguable to justify an extension of time? 56 The Minister acknowledged at the hearing that the reference within [80]-[85] of the Tribunal's reasons to Afghanistan was "fairly slim". Ground 1(b) depended on a reading of the Tribunal's reasons that took account of the country information before it. Assessment of the ground was also governed by the approach approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 186 CLR 259. In all the circumstances, it seems to me that ground 1(b) was sufficiently arguable to justify the extension of time that the applicant sought, notwithstanding that, as explained below, the ground was not ultimately made out on the appeal.

Disposition of ground 1(b) on the appeal? 57 At the hearing, the applicant referred the Court to country information in a DFAT Country Information Report on Afghanistan dated 18 September 2015 that was before the Tribunal. This report included the following statements: "[t]he significant rise in casualties in 2014 reflects an increase in the frequency and intensity of ground engagements across Afghanistan"; "[i]nsurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence"; and "[a]nti-government groups … and various other militia and armed groups, remain engaged in a violent armed conflict against the government and its international partners". As can be seen from [82] in the Tribunal's reasons, the report specifically mentioned the significance for Afghanistan of Da'esh. 58 The DFAT report evidently disclosed a good deal of information about conditions in Afghanistan, which was not specifically set out in the Tribunal's reasons. I would not, however, infer from the absence of this information from the Tribunal's reasons that the Tribunal focussed on the conditions in the applicant's home region instead of the conditions in the country as a whole, as the applicant contended. The Tribunal's reference to the rise of Da'esh in Afghanistan, for example, indicates that it considered the conditions in the country as a whole and drew on the country information before it in so doing. This is consistent with its finding at [83] concerning the prevalence of violence in Afghanistan and its finding at [84] that it did not accept that "the level of generalised violence in Afghanistan and in [the applicant's home region] in particular is so widespread that the applicant faces a real risk of significant harm, as defined in the [Migration] Act". I accept that, as the Minister submitted, the Tribunal's conclusion was that the applicant's risk of harm in Afghanistan was one shared with the rest of the general population, including members of the general population in the applicant's home area. The reference to the applicant's home region was not only appropriate, for the reasons explained in relation to ground 1(a), but natural, given that the applicant might reasonably be expected to return there. For the reasons stated, ground 1(b) is not made out on the appeal.

Parties' submissions - Ground 2 59 Under ground 2, the applicant contended that the Tribunal failed to consider the applicant's brother's written statement, which was capable of corroborating claims advanced by the applicant that members of his family had suffered persecution in the past. Referring to Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34], the applicant submitted that it should be inferred from the fact that the Tribunal's reasons do not refer to the applicant's brother's statement that the Tribunal failed to evaluate the applicant's claims by reference to his brother's corroborating evidence. The applicant submitted that this corroborating evidence was inconsistent with the Tribunal's rejection of the applicant's claims and of sufficient probity to have been capable of affecting the Tribunal's adverse factual findings. In oral submissions, counsel for the applicant said: It's … sufficient for us to show that [the applicant's corroborative statement] was not evaluated as was required. We don't say [the Tribunal] ignored the evidence. We don't say it was unaware of it but that's not the point of conflict. The Tribunal was unaware and did not evaluate this case on the basis of the existence of a corroborative statement or corroboration for the evidence and we say that was sufficiently important. It concerned the key issues in relation to which the tribunal was against them. 60 The Minister accepted that a failure by an administrative decision-maker to consider significant evidence will amount to a constructive failure to exercise jurisdiction. The Minister further submitted that it was unnecessary for a decision-maker to refer to every piece of an applicant's evidence and all the applicant's contentions in written reasons to avoid the imputation of such an error. The Minister submitted that, in the present case, an inference that the Tribunal failed to consider the applicant's brother's statutory declaration did not arise "naturally or inevitably", because the Tribunal was clearly aware of the applicant's brother's case in so far as it: (a) referred to his application; (b) decided the brother's case on review; and (c) put matters about the brother to the applicant during the applicant's hearing. In addition, the Minister said that there were passages in the Tribunal's reasons that can be understood as communicating an implicit rejection of the brother's evidence, including where the Tribunal recorded that: … the Tribunal finds it implausible that the applicant and his brother would have been so afraid that the Taliban might kill them that they escaped within a day of receiving a threatening letter but they would have left their wives and young children behind for three-four months even after they (the wives and children) received two terrifying visits in the middle of the night by unknown armed men … . Based on the above, the Minister submitted that the Tribunal did in fact consider the applicant's brother's written statement, but rejected the evidence in it.

Consideration - ground 2 61 The applicant and his brother had the same father-in-law, since they had married sisters in the same family. The applicant's brother had made a statement (in the form of a statutory declaration) in which he described the circumstances surrounding the murder of his (and the applicant's) father-in-law and the receipt of a letter threatening the family and accusing "all of us of being involved in helping the foreigners and [saying] that they would kill us all". The applicant's brother's statement also provided further details of the letter and an account of leaving Pakistan. Although not identical to an equivalent statement made by the applicant, the account given by the applicant's brother was much the same as that given by the applicant. As counsel for the applicant observed, the applicant's brother described the incidents that were crucial to the applicant's claim to have a well-founded fear of persecution if returned to Afghanistan. 62 It was accepted by the Minister that both statements were before the Tribunal that decided the applicant's case. The Minister specifically agreed at the hearing in this Court that the applicant's brother's statement was before the Tribunal: see transcript, p 4. The applicant and the Minister also agreed that the same member constituted the Tribunal in both the applicant's and his brother's cases. 63 In its reasons in the applicant's case, the Tribunal specifically referred to the applicant's written statement, noting that the applicant's evidence at a subsequent interview "was broadly consistent" with it. In its reasons, the Tribunal did not specifically mention the equivalent statement made by the applicant's brother. 64 Also in its reasons in the applicant's case, the Tribunal referred to the applicant's provision of a copy of an undated letter from his deceased father-in-law's former employer about his father-in-law's death, which indicated that he was killed in May 2012. The Tribunal observed that, if this date was correct, then the applicant had travelled from Afghanistan to Australia in "less than 3 months", notwithstanding his evidence that he had travelled for "about 5 months". The Tribunal observed that, when the applicant's attention was drawn to this discrepancy, the applicant replied that "the company which wrote the letter may have made a mistake. He said he could get another letter". As regards this letter, the Tribunal concluded that: … it may place only limited weight on an undated letter which he may ask the company to change to fit his evidence. The applicant said it was … a big company and they would not do this type of thing. The Tribunal gave the applicant two weeks from the date of the hearing to provide another letter from [the] Company with the correct dates if he so wishes. As of the date of the decision, six weeks after the hearing, no further correspondence has been received from the applicant … . 65 The Tribunal also referred to a "verification" letter that the applicant had provided to the Department at an earlier date, to which it also gave little weight because of the credibility concerns also affecting its assessment of the other letter. It noted further that the "verification" letter did not state that the applicant was at risk of harm or that his father-in-law had been killed. 66 The Tribunal referred specifically to the fact that the country information before it contained no evidence of the alleged beheading of his father-in-law. It referred to country information about beheadings in the applicant's home region about the relevant time, and the murder of relatives of certain persons. 67 The Tribunal noted that the applicant gave evidence that one night there had been an attempted forced entry to the house in which his family were living and subsequently night-time visitors had called asking about the whereabouts of the applicant and his brother. The Tribunal specifically drew attention to the applicant's evidence that he and his brother did not take their families with them because "they thought that the women and children would not be harmed". 68 The Tribunal did not accept the applicant's account of his father-in-law's employment and that he was targeted by the Taliban. This was because: [55] First, the Tribunal has been unable to find any reports from independent sources about the claimed beheading of the applicant's father-in-law. … In addition, according to the applicant's evidence the body was been taken to the local chief of police thus making it implausible that the death would remain unreported. [56] Secondly, the date of the father-in-law's death provided by the applicant in his written and oral evidence … is inconsistent with the date in the letter from the father-in- law's employer … . [57] Thirdly, the Tribunal finds it implausible that the applicant and his brother would have been so afraid that the Taliban might kill them that they escaped within a day of receiving a threatening letter but they would have left their wives and young children behind for three­four months even after they (the wives and children) received two terrifying visits in the middle of the night by unknown armed men. The Tribunal does not accept that the applicant could not find any relatives, friends or neighbours to take his wife and his brother's wife and their children to safety. [58] Further, the Tribunal does not accept that if the applicant fled Afghanistan within a day of receiving the threatening letter and yet he did not keep a copy of it and could not produce it … . 69 As a result, the Tribunal did not accept the critical parts of the applicant's account. The Tribunal found that "the applicant has made up the claim that he and his brother had to flee Afghanistan because their lives were at risk" and that "the applicant, his brother and their families did not experience any type of harm in the past and they were not of any interest to any anti-government elements".

Is ground 2 sufficiently arguable to justify an extension of time? 70 The Tribunal did not refer to the applicant's brother's written statement as having any potential corroborative value in the applicant's case. This omission may be contrasted with the Tribunal's consideration of the other allegedly corroborative documents on which the applicant relied. The Tribunal specifically considered the "verification" letter and the letter from the former employer of the applicant's father-in-law, finding, in substance, that neither provided reliable corroboration of the applicant's claims. In a similar way, the Tribunal expressly mentioned that it was "unable to find any independent sources" that corroborated, in the sense that it strengthened or confirmed, the applicant's claims regarding his father-in-law's beheading. 71 I accept that, as the applicant submitted, it is at least arguable that the Tribunal considered the applicant's case, without regard to the fact that the brothers had each given the same account of the factual basis for their claims and that each brother's account was supportive of the other's. I accept that the applicant's brother's account might have been important, if accepted as credible and reliable, since his brother also had direct knowledge of the key events underpinning the applicant's claims. In this circumstance, the applicant's brother's statement might have been treated as confirmatory of the applicant's own account. It may be accepted for present purposes that the Tribunal was required to consider the cogency of the applicant's brother's account and, depending on the outcome of such consideration, its significance for the assessment of the applicant's claims: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [112]. The Tribunal's reasons do not expressly address the cogency of the applicant's brother's account or its place in assessing the applicant's claims. For this reason, it is arguable that the Tribunal's decision involved a constructive failure to exercise jurisdiction error in that the Tribunal did not take into account the applicant's brother's account in assessing the applicant's case. Further, it seems to me that ground 2 was sufficiently arguable to justify the extension of time that the applicant sought.

Disposition of ground 2 on the appeal? 72 On closer analysis it does not seem to me that this ground can be made out on the appeal. 73 As already noted, it was common ground that the same Tribunal member heard and decided both the applicant's and his brother's cases and that the Tribunal gave its decision in the applicant's brother's case on 16 October 2015, just a few days before it gave its decision in the applicant's case on 19 October 2015. 74 Whether it should be inferred from the Tribunal's failure to advert expressly to the applicant's brother's statement that the Tribunal failed to consider the applicant's brother's account as corroborative of the applicant's case depends on the attendant circumstances, particularly having regard to the Tribunal's reasons read as a whole: compare SZSRS at [34]. In this case, no such inference should be drawn, having regard to the fact that the same Tribunal member heard and determined the brothers' cases, that the decisions in each case were made only three days apart, and bearing in mind the reasons of the Tribunal in the applicant's case and the nature of the issues in dispute. Read fairly and as a whole, the Tribunal's reasons "can be sensibly understood" as premised on the Tribunal's considered view that the applicant's brother's account was no more credible or cogent than the applicant's: the two accounts so lacked credibility and cogency that one account could not strengthen the other. 75 The Tribunal's reasons show that the Tribunal was aware at the time it wrote the reasons that the applicant's brother had also applied for review of the refusal of his protection visa application: see, for example, Tribunal reasons at [28]. Furthermore, the Tribunal can be taken to be aware of the fact that the claims made by the applicant's brother, including in his statement in support, were essentially the same as those made by the applicant, bearing in mind that only three days separated the decisions in each brother's case. 76 What is more, it is clear from the Tribunal's reasons that the Tribunal put matters concerning his brother to the applicant during the hearing: see, for example, reasons at [46], [57], [59], [73]-[74]. There are, as the Minister submitted, passages in the Tribunal's reasons that recognise that the claims and accounts of the applicant and his brother were in substance the same and reject both accounts: see, for example, at [57] of the Tribunal's reasons extracted at [68] above. 77 The Tribunal's conclusions at [59] show that the Tribunal considered that the claims and accounts made by both the applicant and his brother were implausible or lacked credibility, and should not be accepted. The Tribunal expressly stated at this point in its reasons that it did not accept that: … the applicant's father-in-law worked for US forces, that he was threatened or killed by the Taliban or other insurgents; that the applicant or his brother or anybody else in the family received threats or visits by the Taliban or other insurgents; that the applicant or his brother were imputed with pro-government or pro-western political views by virtue of the fact that they operated a bakery sometimes frequented by government officials or foreigners. The Tribunal finds that the applicant has made up the claim that he and his brother had to flee Afghanistan because their lives were at risk. The Tribunal finds that the applicant, his brother and their families did not experience any type of harm in the past and they were not of any interest to any anti-government elements. (emphasis added) 78 It may be inferred from this passage and the reasons in the applicant's case, considered as a whole, that the Tribunal had in fact considered the cogency of the applicant's brother's account in the applicant's case and determined that that account was insufficiently cogent to play any part in corroborating the applicant's evidence. It would also follow from this that the Tribunal was of the view that there was nothing in the applicant's or his brother's statements that could overcome the difficulties the Tribunal identified in the applicant's case (and it follows in his brother's case), including the lack of "independent sources" corroborative of the beheading of the applicant's and his brother's father-in-law, credibility concerns affecting both the applicant and his brother, the implausibility of the failure to retain a copy of the threatening letter (affecting both the applicant's and his brother's cases) and the implausibility of the applicant and his brother leaving their wives and children behind in the circumstances described by the applicant and his brother. There was furthermore the inconsistency between dates given in the letter from the former employer of the applicant's father-in-law and the applicant's own evidence. 79 Bearing all these matters in mind, the failure of the Tribunal to refer to the possible corroborative significance of the applicant's brother's account cannot amount to a constructive failure to exercise jurisdiction or any other kind of jurisdictional error: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]. It is clear that the Tribunal was of the clear view that the applicant's brother's account was so lacking in cogency that it could have no corroborative significance. Further, as the Full Court relevantly said in Applicant WAEE at [46]: It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 80 For the foregoing reasons, ground 2 is not made out on the appeal.

Disposition 81 For the reasons stated, I would grant the extension of time that the applicant sought, and dismiss the appeal. Unless a party notifies the Court in writing by 4.00pm on Friday 2 November 2018, indicating opposition, the applicant should pay the first respondent's costs as assessed or taxed. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.