FEDERAL CIRCUIT COURT OF AUSTRALIA
MZZNV & ORS v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1375	

Catchwords: 
MIGRATION – Application for an extension of time – fear of persecution – whether tribunal made findings regarding applicant claim without considering country information relied on by the applicant – application refused.	

Legislation:
Migration Act 1958 (Cth), ss.477(1), 477(2), 36(2A)(aa), 414, 65	

Mohammed v Minister for Immigration and Border Protection [2015] FCA 184
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 248
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Citizenship v MZYZA [2013] FCA 572
Minister for Immigration and Citizenship v MZYHA (2011) 119 ALD 534
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 77 ALJR 1165
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Citizenship v SJSS (2010) 243 CLR 164
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZRBA V Minister for Immigration and Citizenship [2014] FCAFC 81
Minister for Immigration and Citizenship v SZRKT (2013) FCA 317
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630	

First Applicant:	MZZNV	

Second Applicant:	MZZNw	

Third Applicant:	MZZNx	

Fourth Applicant:	MZZNy	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	MLG 1628 of 2013	

Judgment of:	Judge Jones	

Hearing date:	23 March 2015	

Date of Last Submission:	23 March 2015	

Delivered at:	Melbourne	

Delivered on:	2 June 2015	

REPRESENTATION
Counsel for the Applicant:	Mr Wood 	

Solicitors for the Applicant:	Victoria Legal Aid 	

Counsel for the Respondents:	Mr Knowles 	

Solicitors for the Respondents:	Sparke Helmore 	

ORDERS
(1)	The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 is refused.
(2)	The applicants pay the respondent’s costs.

FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Melbourne	
MLG 1628 of 2013
MZZNV	
First Applicant

MZZNw	
Second Applicant

MZZNx	
Third Applicant

MZZNy	
Fourth Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	On 1 October 2013, the applicants applied for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 June 2013, affirming a decision of a delegate of the Minister for Immigration & Border Protection (“the Minister”) not to grant the applicants Protection (Class XA) visas (“protection visa”).
2.	As the application was made on 1 October 2013, the application was approximately three months outside the 35 day limit provided under s.477(1) of the Migration Act 1958 (“the Act”). The applicants must first be granted an extension of the time to proceed with their application for judicial review.
3.	Section 477(2) of the Act relevantly provides:
	“(2)	The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
	(a)	An application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
	(b)	The Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
4.	Whilst the discretion to extend the time limit in s.477(2) is one at large, the matters relevant to the Courts consideration are well settled. In Mohammed v Minister for Immigration and Border Protection [2015] FCA 184, Perry J summarised the principles relevant to the statutory discretion as follows:
“15. In determining whether to grant an extension of time, factors to be taken into account include the extent of the delay, and the explanation for it, any prejudice that the respondents may suffer by reason of the delay and the merits of the proposed appeal: see e.g. SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349.” 
“16.	The Minister did not contend that he would suffer any prejudice if an extension of time were granted. Nor is delay substantial, being a period of 17 days only. In this regard, the Minister accepted that if the proposed grounds of appeal had merit, so short a delay should not serve as an impediment to the grant of an extension of time. Furthermore, while the Minister submitted that the explanation for the delay, namely, that the applicant was not aware of the appeal time, was not adequate, I would not attribute much weight to that consideration in all of the circumstances; nor did the Minister suggest otherwise. The critical issue here, in my view, is that the application for leave to appeal is lacking in any merit for the reasons I explain below, as a consequence of which there is no utility in granting an extension of time: see Ford v La Forrest [2001] QCA 455; [2002] 2 Qd R 44 at [4] Thomas JA (McMurdo P and Cullinane J agreeing); Vatti v Minister for Immigration and Border Protection [2014] FCA 893 at [24] (Mortimer J). It is on this ground that I would refuse the application for an extension of time.”

Background
5.	The applicants are Sri Lankan nationals and the first applicant is a woman of Tamil ethnicity (CB 240 [32]). The first applicant is the mother of the second, third and fourth applicants. In this decision, the first applicant is referred to as the applicant and the second, third and fourth applicants are referred to as the applicant’s children. 
6.	On 11 May 2012 the applicant, her husband and the applicant’s children arrived in Australia by boat travelling from India where they had lived since departing Sri Lanka, illegally, in 2006 (CB 114 to 115). The applicant arrived with no “travel documents” (CB 240).
7.	On 11 July 2012, the applicant, her husband and the applicant’s children applied for protection visas (CB 25 to 81). Both the applicant and husband submitted claims for protection in their own right, with the applicant’s children included in the application as part of the family unit. 
8.	On 11 July 2012, the applicant’s agent wrote to the Department of Immigration and Border Protection (Department) informing the Department that the applicant “does not wish her husband … To have any knowledge of her claims” and requesting that she “be interviewed separately and that none of the sensitive information she gives either in her interview or her statutory declaration … be passed onto her husband” (CB 81).
9.	By correspondence dated 13 July 2012, the applicants’ agent sent to the delegate of the Minister a written submission (CB 83 to 94). On 17 July 2012 the applicant’s agent sent a further written submission enclosing various extracts from reports of country information (CB 95 to 108).
10.	On 10 September 2012, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa (CB 114 to 131). On that same day the delegate made a decision to refuse to grant the husband a protection visa. On 11 September 2012, the applicant and the husband each applied separately to the Tribunal for review of the delegate’s decision. (CB 132 to 139, CB 238[26]). The applicant was included as a member of the family unit in the husband’s application. Following her application for review of the delegate’s decision, there was a period of approximately two months during which time her agent corresponded with the Tribunal regarding the implications of there being two applications for review on foot (CB 140 to 172).
11.	By correspondence dated 25 October 2012, the applicant’s agent stated the applicant did not wish her husband to have knowledge of her claims (CB 155 to 157).
12.	On 19 December 2012, the applicant withdrew her own application to the Tribunal (CB 172). On 24 December 2012, the Tribunal determined that by reason of the applicant’s withdrawal of her application for review, it had no jurisdiction in relation to that application (CB 177 to 179).
13.	Whilst the applicant had withdrawn her application for review of the delegate’s decision to refuse to grant her a protection visa, the applicant did not withdraw her claims for protection. 
14.	By correspondence dated 9 January 2013, the applicant’s agent requested that the hearing of the applicant’s claims occur separately from the hearing of her husband’s claims (CB 181 to 196). This correspondence also contained written submissions in support of the applicant’s case together with a draft statutory declaration of the applicant.
15.	On 15 January 2013, the Tribunal conducted the hearing, at which the applicant and husband were represented. At the hearing, each of the applicant and her husband gave evidence separately with the assistance of an interpreter in the Tamil and English languages (CB 197 to 200 and 240[28]).
16.	By correspondence dated 14 May 2013, the Tribunal invited the applicant to comment on or respond to certain information which it considers would, subject to her comments or response, be the reason or part of the reason, for affirming the decision under review (CB 204 to 208). The information the applicant was requested to comment on or respond to generally concerned inconsistencies in the applicants and the husband’s claims and evidence. The applicant was requested to provide her comments or response to the Tribunal by 21 May 2013. By email dated 16 May 2013, the applicant’s agent requested an extension in time to respond to the Tribunal’s invitation (CB 209). On 16 May 2013, the Tribunal granted the application for an extension of time, that extension in time being 13 June 2013 (CB 213). In correspondence dated 3 June 2013 sent by email to the Tribunal, the applicant’s agent sent a submission generally addressing the issue of “perceived inconsistencies” (CB 216 to 218) and enclosing a sworn statutory declaration of the applicant (CB 225 to 226). 
17.	On 14 June 2013, the Tribunal made a decision in relation to the applicant’s claims (CB 232 to 250). On 1 October 2013, the applicant applied for judicial review.
18.	By her amended application filed 20 February 2014, the applicant sought an extension of time on the following grounds:
1. The applicant made her own claims to protection, and requested that the Department and the Refugee Review Tribunal deal with her claims separately in order to avoid the husband learning of the details of some of her sensitive claims regarding sexual assault and rape.
2. The Tribunal acceded to that request and, as a result, issued a separate statement of reasons in relation to the applicant’s claims, even though those claims emanated from a common application for a protection visa that the applicant made with her husband (and the children as members of the family unit).
3. On 12 July 2013, the applicant made an application for judicial review of the Tribunal’s decision, within time, as a co-applicant to a proceeding in which her husband was the primary applicant (MLG 1059/2013).
4. However, on 18 September 2013, the applicant attended a directions hearing with her husband. She advised that, if she proceeded to challenge the Tribunal’s decision relating to her claims within the proceeding in which her husband was the primary applicant then he may become aware of the sensitive information that she had revealed in the protection visa application process.
5.The applicant filed this separate proceeding in order to maintain confidentiality in relation to the sensitive information that she has revealed in the protection visa application process.
Applicant’s claims for protection
19.	In a written submission to the Tribunal dated 9 January 2013 prepared by the applicant’s agent, the applicant’s claims to fear serious harm from the Sri Lankan authorities and government-sponsored organisations were identified as being by reason of (CB 183): 
a)	her Tamil ethnicity;
b)	imputed political opinion, as an LTTE supporter, due to her husband being suspected of being an LTTE member;
c)	membership of the particular social group of young Tamil female from LTTE – controlled areas;
d)	membership of the particular social group of young Tamil female subjected to sexual assault by the Sri Lankan army; and
e)	membership of the particular social group of failed returned asylum seekers from the West.
20.	With respect to the applicant’s claim she would be persecuted on the basis of an imputed political opinion, the written submission stated (CB 185) that if the applicant is returned to Sri Lanka, “she will be persecuted for her imputed political opinion as an LTTE supporter. We note that (the applicant’s) husband has been suspected of being an LTTE member and targeted by the authorities. (The applicant) fears that the authorities would impute a political opinion against her as an LTTE supporter as a result.”
21.	In her statutory declaration attached to her claim for a protection visa (CB 52 to 54) the applicant claimed to fear persecution because of her ethnicity and imputed political opinion and to fear being raped by the CID, the police or the army. The applicant claimed that when she was about 18 or 19 years old she was abducted by the army, by three men who looked like the LTTE. She claimed that she believed that she would be abducted, raped and then killed as was one of her cousins. She claimed that her uncle intervened and rescued her. She claimed she never spoke to anyone about this incident because it would be assumed that she was raped. 
22.	She states that in 2006 her husband was arrested at a roundup. When she found out she went to the police station begging for his release. He was ultimately released but had been beaten up badly and could hardly walk. She took him to a hospital and he stayed there for three days.
23.	She claimed that around two or three days after the husband’s arrest three men from the army came to her home on a number of occasions searching for her husband. When they were unable to find her husband they accused her of hiding him somewhere, threatening to shoot her and her baby if she did not tell them where he was hiding. On the fourth occasion she claims one of the men attempted to rape her. He started to rip her clothes off. She was able to escape by fighting him off and because of the intervention of a neighbour. She claims that she is terrified of revealing this incident as everyone would assume she had been raped and she feared her husband might leave her if he heard the story because as a rape victim “I would not be seen as pure any more.” She claims she stayed in their house for two more days and then joined her husband who was hiding in the forest. She claims that she then walked to India.
24.	She claimed that if she returned to Sri Lanka she would face a real chance of being persecuted for her ethnicity and her imputed political opinion. She feared she would be raped or killed by the CID, the police or the army.
25.	Her written submission to the Tribunal dated 9 January 2013 prepared by the applicant’s agent included extracts from country information in relation to the identified claims to fear persecution (CB 184 to 193).
26.	There was attached to that written submission an unsworn statutory declaration (CB 194 to 195) in which the applicant stated that she had not disclosed the “sexual assault” until later because the interviewer and interpreter on Christmas Island were male, her husband did not know about the sexual assault she experienced and this made it very difficult to disclose her story and she did not wish husband to know about the sexual assault. The applicant claims in that statutory  declaration that it is common for Tamil women to suffer sexual assault by the Sri Lankan authorities including at security checkpoints. She claims that it is difficult for  a Tamil woman to make a report because the authorities will not help or assist and because the Tamil community ostracise them and they run the risk their husbands will leave them. She declares that she does not know why her first statutory declaration did not state she was actually raped. The applicant claimed, with respect to the alleged sexual assault, that she was pulled down to the floor by one of the men who came on his own and that when she became conscious she realised he had raped her, that he attempted to rape her for the second time, that she pushed him away and ran out of the house. She says her neighbour covered her with a sheet, not his coat. The applicant also declared that Tamils continue to be persecuted by Sri Lankan authorities.
27.	On 3 June 2013 the applicant’s agent sent a written submission to the Tribunal which included a sworn statutory declaration (CB 225 to 226). The statutory declaration addressed the information she was invited to respond to or comment on with respect to her husband’s release from the police station, the events after being discharged from hospital, prior incidents with the authorities and reports of her home in Sri Lanka are being burnt down. The applicant relevantly stated (CB 225):
a)	when she collected husband from the police station he was in a great deal of pain, at times unconscious and could not properly respond to her questions, adequately listen or speak to her;
b)	she initially took him into their house, they remained there for two or three hours, he was non-responsive, bleeding from his nose and on the back of his head. When she observed his condition was not improving and he continued to be in a great deal of pain, she decided to take him to the hospital. She did not believe her husband was conscious enough to know what was happening or that he could properly remember the events surrounding this;
c)	the army came looking for her husband five days after he was discharged from hospital. As the army were not aware of the location of their home, they asked other people about their location. She was told the army was looking for her husband. When they became aware of this her husband decided to flee. 
28.	The claims the applicant made at the Tribunal hearing were not, somewhat unhelpfully, separately identified by the Tribunal in its decision record. Rather they were referred to in that section of the decision headed, “Findings and Reasons” where the Tribunal considered and made findings on the totality of the applicant’s claims and evidence.
Tribunal Decision
29.	The Tribunal’s consideration and findings in relation to the applicant’s claims is set out below.
30.	The Tribunal accepted the applicant’s claims regarding an attempted abduction of her and her friend when she was 18 or 19 years old, however, it did not accept her claims that those responsible were army or government people or that those who intervened to prevent the abduction were LTTE. The Tribunal arrived at this conclusion based on the inconsistencies in the applicant’s evidence and claims (CB 241 [36] to [38].
31.	On the basis of inconsistencies in her evidence at hearing, the Tribunal did not accept the applicant’s claims regarding the alleged rape and torture of her cousin (CB 242 [40]).
32.	With respect to the applicant and her husband’s claims that the husband  was rounded up and detained in 2006 because he was suspected of working for the LTTE, the Tribunal stated (CB 242 [42]):
“The Tribunal does not accept that the applicant husband was rounded up and detained in 2006 as he was suspected of working for the LTTE because he used to “hang out” with a relative who belonged with the LTTE so people thought her husband also supported them, as the applicant claimed in the hearing. The Tribunal has found the applicant husband’s evidence regarding his association with Sivakumar has developed over time from one of friendship and social acquaintance to a threatening relationship in which he was forced perform tasks in support of Sivakumar and the LTTE or face risk to his life. The Tribunal also found the applicant husband’s evidence regarding Sivakumar’s alleged association with the LTTE to be vague, lacking in detail and inconsistent. Based on inconsistencies and discrepancies in the applicant husband’s evidence and his limited knowledge of Sivakumar’s alleged role in the LTTE, the Tribunal does not accept the applicant husband’s claimed friendship or association with Sivakumar. The Tribunal does not accept that Sivakumar was a member of the LTTE or that the applicant husband either spent time with Sivakumar socially or that he was forced to perform any task or requests for Sivakumar such as transporting people. As the Tribunal does not accept the applicant husband’s claims regarding his association with Sivakumar, the Tribunal does not accept the applicant husband was detained as a suspected LTTE member, beaten unconscious and questioned about Sivakumar either by the police, army or whoever these people might have been.”
33.	Having rejected the applicant husband’s claims, the Tribunal then proceeded to consider the applicant’s claims with respect to her attendance at the Police Station and the events thereafter as follows (CB 243 [43]): 
“The Tribunal therefore does not accept that the applicant went to the police station with her mother-in-law and daughter and begged for the applicant husband’s release and he eventually was freed at 6pm. The Tribunal does not accept the applicant husband was badly beaten and he spent three days in the hospital. The Tribunal notes the applicant’s evidence in the hearing that after she collected the applicant husband from the police station she actually took him home and kept him but he could not speak and was in a poor state so she took him to hospital. In contrast, the applicant husband claimed in his hearing that he went straight to the hospital from the police station, only stopping at home to get money but he did not get out of the auto or enter the house. The Tribunal has taken into consideration the applicant’s response to the Tribunal’s section 424A letter dated 14 May 2013 received on 3 June 2013 and 13 June 2012 (sic) in which she clarified what happened after the applicant husband was allegedly released from detention and stated her belief that the applicant husband was not conscious enough to know what was happening. The Tribunal notes the applicant husband provide a quite specific detail about what happened after he was released before he was taken to hospital and in these circumstances, the Tribunal does not accept it reflects the applicant’s thoughts that the applicant husband was unable to properly remember.
34.	The Tribunal then proceeded to consider the applicant’s claims regarding her sexual assault after her husband was released from detention and went into hiding. 
35.	The Tribunal firstly stated that (CB 243 [44]):
“As the Tribunal does not accept the applicant’s husband’s claim regarding his association with Sivakumar or his detention as a suspected LTTE member, the Tribunal does not accept the applicant’s claims regarding enquiries made by the army about her husband.” 
36.	The Tribunal noted the discrepancies between the applicant’s evidence in the hearing that her husband was home for five to six days after discharge from the hospital and the husband’s evidence at his hearing that he stayed home only one day after the discharge before going into hiding. It rejected the applicant’s response to its section 424A letter dated 14 May 2013 and contained in a statutory declarations received on 3 June 2013 and 13 June 2013 that there was no discrepancy between their statements (CB 243 [44]).
37.	The Tribunal then proceeded to consider the applicant’s claim regarding the circumstances of her alleged sexual assault (CB 243[45]):  
“45. It therefore follows that the Tribunal does not accept the applicant’s claims that a couple of times the army came and asked about the applicant husband’s whereabouts. The Tribunal does not accept that the army came often and threatened the applicant, snatched her kids from her hand and acted like they were going to throw the kids away, kept a gun to the applicant’s chest or smacked her, as she claimed in the hearing. The Tribunal has also taken into consideration the number of inconsistencies and discrepancies in the applicant’s evidence which, as it put to the applicant in the hearing, raise serious doubts about the credibility of her claims……….”
38.	The Tribunal identified in detail, inconsistencies between the applicants statutory declarations [46] and her evidence at hearing and found that, “the applicant’s subsequent claim of actually being raped to be an embellishment designed to bolster her case for protection.”
39.	The Tribunal rejected the applicant’s claim that she was raped by an army officer and her claims made at hearing that subsequently discovered she was pregnant, that she terminated her pregnancy [47]. 
40.	The Tribunal then referred to inconsistencies between the applicant’s claims regarding her movements after the alleged rape (CB 245 [48]). The Tribunal rejected the applicant’s claim in her most recent statutory declarations that she was informed that her home had been burnt down as it did not accept, given the significance of this claim, that either she or the husband would not have mentioned this event earlier (CB 245  [49]). 
41.	The Tribunal rejected the applicant’s agent’s submissions dated 3 June 2013 that the inconsistencies should not be regarded as adverse information as they were minor (CB 245 [50]). 
42.	The Tribunal consequently found that it did not “accept that the applicant faces a real chance of persecution on her return to Sri Lanka because of the applicant husband’s alleged association with the LTTE be because she is a family member of a person with an actual or imputed political opinion.” (CB 246 [51])
43.	The Tribunal next considered the applicant’s claims in relation to her Tamil ethnicity, in particular, her claims regarding sexual assault of Tamil women. It concluded (CB 246 [52]):
“While the Tribunal accepts that the applicant’s experience in her late teens would have been distressing, the Tribunal does not accept that the applicant would face a real chance of sexual violence, including rape or sexual assault, on her return to Sri Lanka, now or in the reasonably foreseeable future because she is a Tamil, because she is a woman or a combination of the two.” 
44.	With respect to the applicant’s claims based on her Tamil ethnicity and originating from an LTTE controlled area, the Tribunal had regard to independent country information and found that Tamils per se were not at risk of persecution simply based on their ethnicity (CB 246 [53]). The Tribunal concluded that it did “not accept on the information before it that simply being a Tamil, from the east would result in the applicant facing a real chance of persecution from these groups on her return to Sri Lanka, now or in the reasonably foreseeable future.”  (CB 247 [55]) 
45.	The Tribunal considered the applicant’s claims as a failed asylum seeker as follows (CB 247 [56]): 
“…. As the Tribunal put to the applicant in the hearing the available country information indicates that failed asylum seekers and/or people who had departed Sri Lanka illegally may be detained for questioning by the Sri Lankan authorities immediately upon their return to Sri Lanka but that this questioning was likely to only take a few hours and to be undertaken as part of implementing a law of general application in relation to the movement of individuals in and out of Sri Lanka (see Immigration and Refugee Board of Canada 2011, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorisation to leave the country, such as a passport. LKA 103815. E, 22 August). The available country information indicates that it was only individuals with criminal histories or particular profiles in relation to their ethnicity or political opinions that appear to face the risk of harm when identified on their return as failed asylum seekers who departed Sri Lanka illegally (Department of Foreign Affairs and Trade 2012, DFAT Report 1446 –RRT information request: IKA 40999, 22 October). Given the Tribunal’s findings above regarding the applicant husband’s association with Sivakumar and the LTTE, the Tribunal does not accept the applicant has a profile which would result in her facing serious harm on her return to Sri Lanka as a failed asylum seeker. The Tribunal has also taken into consideration the information provided by the applicant’s adviser in their submission to the Department dated 17 July 2012 and submission to the Tribunal dated 9 January 2013 on the issue of failed asylum seekers which suggests that the periods of detention may be for far longer or that the returnees may be subject to various forms of abuse. However, the Tribunal notes that these reports repeatedly refer to this being as a result of perceived or actual links with the LTTE or opposition to the current Sri Lankan government.  In light of the country information, the Tribunal does not accept that a person identified as a failed asylum seeker from a Western country will face a real chance of serious harm in Sri Lanka solely because they are so identified unless they are also perceived to be Actively supporting the LTTE opposed to the current Sri Lankan government for some other reason.”
46.	The Tribunal concluded with respect to the applicant’s claims under s.36(2)(aa) that considering her claims individually and cumulatively it did not accept that she faces a real chance of being persecuted because of her Tamil ethnicity, her membership of a particular social group being her family, and imputed political opinion as a suspected LTTE supporter “due to the applicant husband’s alleged relationship with Sivakumar or for any other reason”, as a failed asylum seeker or because of the illegal departure from Sri Lanka in 2006 (CB 248 [57]). 
47.	The Tribunal set out its reasoning for its conclusion that it did not accept the applicant would suffer significant harm within the meaning of s.36(2A) of the Act  upon return to Sri Lanka as follows (CB 248 [60]):
“…. As discussed above, the Tribunal does not accept the applicant’s claims regarding the applicant husband’s relationship with Sivakumar. The Tribunal does not accept the applicant’s husband was forced to perform any work for the LTTE or that he was detained by the authorities because of his alleged association with Sivakumar. The Tribunal therefore does not accept that the applicant received several visits from the Army looking for her husband and threatening her and her child or that during the last visit from the Army she was raped by one officer. For the reasons provided above, the Tribunal does not accept that either the applicant or husband was of any interest to the authorities in the past. It therefore does not accept that the applicant faces a real risk of significant harm as a result of these alleged past experiences.” 
48.	The Tribunal referred to its findings regarding the attempted abduction of the applicant when she was 18 or 19 years of age, including that the applicant or anyone related to her had been subjected to sexual violence either before or after this incident. The Tribunal accepted that there have been reports of women being raped in Sri Lanka, particularly during the war. However it was not satisfied that there was therefore a real risk that the applicant would face similar harm or significant harm in future (CB 249 [61]).
49.	The Tribunal found that the existence of harassment and discrimination faced by people of Tamil ethnicity generally in Sri Lanka did not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor did it accept that there was “a real risk of the applicant being killed, arbitrarily detained, tortured or subject to inhumane or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of her Tamil ethnicity” (CB 249[62]).
50.	Finally, it reiterated its earlier finding that based on country information it was not satisfied the applicant would face significant harm on arrival in Sri Lanka as a failed asylum seeker or a person who had departed Sri Lanka illegally (CB 249 [63]). Consequently, the Tribunal found it was not satisfied that the applicant met the alternative provisions in s.36(2)(aa) (CB 249 [64]).
Extension of time
Explanation for delay
51.	The applicant’s explanation for the delay in making her application for judicial review is set out in an affidavit filed by the applicant on 1 October 2013 and is as follows. The applicant was notified of the Tribunal decision on 14 June 2013. She and her husband jointly lodged an application in this Court on 12 July 2013 (MLG 1059/2013). A directions hearing was listed in the Court on 18 September 2013. Before that directions hearing she sought advice and was advised by a duty lawyer from Victoria Legal Aid that if she remained party to the application to the Court with her husband he may become aware of the information she sought to remain confidential (in relation to her alleged sexual assault). She said that she formed the view that she did not want her husband to know this information existed. Accordingly, she decided to lodge her own separate application so that the claims relating to her information could be dealt with separately. Her application for judicial review (including her children) was made on 1 October 2013.
52.	The Minister accepts that in the circumstances the applicant’s explanation for delay is reasonable.
53.	I am satisfied that the explanation for the delay in the applicant making her application for judicial review is reasonable.
54.	The dispute in this case relates to the merits of the applicant’s substantive claim. This is dealt with below under the heading Judicial Review.
Judicial review
Ground 1
55.	By her amended application filed 20 February 2014, the applicant specified her first ground of review as:
“1. The Tribunal made a factual finding in relation to a critical allegation underpinning one of the applicant’s claims to invoke Australia’s protection obligations on the basis that it did not accept certain corroborative evidence in support of the allegation and, “therefore”, did not accept the applicant’s primary evidence in support of the allegation. The Tribunal thereby failed to lawfully form a state of satisfaction that the wife did not satisfy the criteria for a protection Visa.
Particulars
	a. The applicant and her husband each make claims to invoke Australia’s protection obligations.
b. One of the applicant’s claims had a relationship to one of her husband’s claims. That claim was that the applicant had a well founded fear on the ground of an imputed political opinion in support of the LTTE, due to her husband being suspected of being involved in the LTTE.
c. The applicant and the husband each gave evidence in support of the critical factual allegation underlying the common claim: that the husband had in 2006 been detained by police on suspicion of involvement with the LTTE, and that he had then been held in custody for several hours at the police station before being released into the care of his wife
d. The Tribunal made a finding that the alleged event did not occur in reliance on its adverse assessment of the husband’s corroborative evidence without considering and assessing the primary evidence of the applicant.
e. The Tribunal thereby failed to lawfully form a state of satisfaction whether the applicant met the criteria for a protection visa.
Applicant’s submissions 
56.	The applicant submitted that there were three categories of claims made by the applicant. The first category comprised claims involving a common factual substratum to the husband’s claims. The first ground of review relates to that category. The second category of claims comprises the applicant’s own claims that did not have a direct relationship with evidence given by the husband (such as her claims regarding sexual assault and rape). No ground of review is pressed in relation to that second category of claims. The third category comprised claims which do not depend on any particular allegation of past persecution but arise because of the status of the applicant (such as the claim relating to her status as a Tamil failed returned asylum seekers). The second ground of review relates to the third category.
57.	The applicant submits that in this case both she and the husband gave direct evidence in support of a critical factual allegation underpinning a common claim; namely, that the husband had in 2006 been detained by police on suspicion of involvement with the LTTE, and that he had then been held in custody for several hours at the police station before being released into the care of the wife. This factual allegation formed the basis for the applicant’s claim to fear persecution based on imputed political opinion, as an LTTE supporter. The applicant submits that the common factual substratum is evident in:
a)	her statutory declaration attached to her application for a protection visa;
b)	the written submissions stated 9 January 2013 made on her behalf;
c)	the recitation by the Tribunal in correspondence to the applicant dated 14 May 2013 of the evidence given by the applicant in relation to the events in 2006 concerning our husband’s detention and his assault (CB 206 to 207); and
d)	the applicant’s sworn statutory declaration dated 7 June 2013.
58.	The applicant submits that the Tribunal’s task on review under s.414 of the Act is to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Act in respect of the criteria for a protection visa: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [32] (MZYTS). 
59.	The applicant submits that the Tribunal failed to form the requisite state of satisfaction. This occurred the applicant submits, because the Tribunal made a finding that the alleged factual events did not occur based on its adverse assessment of the husband’s evidence without considering and assessing the applicant’s primary evidence. 
60.	This, the applicant submits, is evident from the statement of reasons of the Tribunal set out in paragraphs [42] to [45] of its decision record. Commencing paragraph [42], the Tribunal sets out its consideration of the husband’s evidence regarding his association with Sivakumar and on the basis of its assessment, rejects the husbands claim he had an association or friendship with Sivakumar. It then proceeds to reject the husband’s claim he was detained and suspected as an LTTE member. These findings, the applicant submits, are made only on the basis of the Tribunal’s consideration of the applicant husband’s evidence. 
61.	Although the Tribunal had thus far only considered the applicant husband’s evidence, it then proceeds at paragraph [43] to reject the applicant’s claim she went to the police station to beg for his release, that he was badly beaten and spent three days in hospital. It made this finding, the applicant submits, without any consideration of the applicant’s primary evidence regarding this common factual substratum. 
62.	The approach of the Tribunal to the applicant’s claims was, the applicant argues, to firstly consider and make adverse findings on the husband’s corroborative evidence and, proceed to dismiss the applicant’s factual allegations on the basis of its assessment of the husband’s corroborative evidence without regard to the applicant’s primary evidence. 
63.	The applicant relies on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 where the plurality explained the obligations on the Tribunal under s.430 of the Act at [69] as:
“……. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion on what facts it considered material to that conclusion.”
64.	The applicant submits that a plain reading of the words used by the Tribunal in paragraph [43]: “The Tribunal, therefore, does not accept that the applicant went to the police station…….” in its statement of reasons, can only result in the conclusion that the Tribunal rejected the applicant’s claims based only on its adverse consideration of the applicant husband’s evidence. 
65.	The applicant argues that the fact that the Tribunal later cast doubt on other aspects of the applicant’s evidence, including that she had been raped the days following the detention of her husband (CB 244 [45] to [46]) does not rectify the jurisdictional error which arose from the reasoning the Tribunal itself adopted. In this respect the applicant notes that the Tribunal did not reject the applicant’s evidence as a whole or make a general adverse credit finding. In fact, the applicant argues the Tribunal appears to be alert to the accepted proposition that the fact that some of the applicant’s evidence had been found unreliable does not have the consequence that all the applicants evidence must be regarded as unreliable (see CB 240 to 241 [33], citing the “cautionary note quotes founded by Foster J in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 at 482. 
66.	The applicant argues that the fact that her evidence may not have been as detailed as the husband’s evidence on the events they both alleged occurred in 2006, did not relieve the Tribunal of its obligation to separately consider that evidence in the performance of its task of review. In W360/01A v Minister for Immigration and Multicultural Affairs  (2002) 124 FCR 449 (W360/01A), Lee and Finklelstein JJ stated, with respect to a refusal by the Tribunal not to accede to the appellant’s request to call a witness who would corroborate the appellant’s story on the basis that even if the appellant established this fact, it would not assist his claim because of other “problems” with his evidence, that (p.450 at [3]]): 
“3... In order to decide whether it was satisfied of the truth, or possible truth, of the asserted facts, one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C………….. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task.”
67.	The applicant argues by analogy that, even if it were accepted that the she had given limited evidence about a connection between the husband and the LTTE, the Tribunal made a finding rejecting that claim of a connection based only on the applicant husband’s evidence and without considering the wife’s evidence that corroborated that very event. The applicant submits that she did not need to give evidence corroborating every single element of the husband’s claim. Her evidence corroborated a key significant part of that evidence, being the occasion of detention and abuse. The applicant submits that the Court cannot rule out the possibility that, had the Tribunal accepted the applicant’s corroborating evidence in relation to key significant events, it may well have accepted other elements of the husband’s story on the basis that, using the language in W360/01A, having accepted asserted fact A, that might have suggested the husband was telling the truth about asserted facts B and C.
68.	The applicant submits that the failure to consider her corroborating evidence before making a finding of fact adverse to the applicant and husband’s common claim, is not material that was “so insignificant that failure to take into account could not have materially affected the decision”: VAAD v Minister for Immigration and Multicultural Affairs  [2005] FCAFC 117 at [77]. 
69.	The applicant argues that her evidence was corroborative evidence as it was independent evidence of a significant element of her claim to protection. Consequently, corroborative evidence must be assessed and weighed in balance with all other evidence: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 248. Having failed to consider the applicant’s evidence before making its finding, the Tribunal deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the applicant’s claim in a material respect and fell into jurisdictional error: W360/01A per Carr J at [29].
70.	The applicant accepts that whether a failure to properly consider corroborative evidence gives rise to jurisdictional error will depend on the importance of the evidence: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.  
71.	The Minister submits that although the Tribunal’s rejection of the applicant husband’s evidence formed the basis for its finding that he had never been arrested, detained and mistreated, it is clear from the decision record that the Tribunal also considered the other evidence before it being the evidence of the applicant herself. The Minister submits that this much is clear when regard is had to paragraphs 43 and following which events were related to the claim of arrest, detention and mistreatment of the applicant husband because they were said to have been consequential to that claim.
72.	That the Tribunal considered the applicants claim, the Minister submits, is evident from its identification of inconsistencies at [43] of its decision record between the evidence of the applicant and the husband about precisely what occurred when it was alleged that the applicant’s husband had been collected by her from the police station after having been detained.
73.	The Minister submits that the Tribunal’s consideration of the applicant’s own evidence is apparent in its identification once again at [44] of inconsistencies between the applicant’s and the applicants husband’s evidence of events subsequent to the applicant husband’s alleged release from detention. 
74.	The Minister further relies on the fact that the inconsistencies in the evidence, as between the applicant and the applicant husband’s evidence, were the subject of correspondence from the Tribunal to the applicant on 14 May 2013 (CB 204 to 208). The Minister notes that the Tribunal specifically drew the applicant’s attention to inconsistencies it had identified in the applicant husband’s evidence with respect to his alleged relationship with Sivakumar. The Minister argues that:
a)	The Tribunal specifically informed the applicant that subject to her comments, these inconsistencies may lead the Tribunal to reject his claims regarding this relationship and consequently his claim to fear persecution based on imputed political opinion;
b)	The Tribunal expressly drew to her attention to the fact that these inconsistencies may lead it to reject her claims regarding visits from the army;
c)	the Tribunal also identified inconsistencies between the applicant and the applicant husband’s evidence about events immediately following his alleged release from detention and that these inconsistencies may raise doubts about her claims regarding his hospitalisation;
d)	The Tribunal also identified inconsistencies between the applicant and the applicant’s husband’s evidence about events subsequent to his alleged discharge from hospital and that these inconsistencies may cause the Tribunal to reject the applicant husband’s claimed association with Sivakumar.
75.	The Minister relies on a decision of Tracey J in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 in which his Honour having referred with approval to a decision of Kenny J in Minister for Immigration and Citizenship v MZYHA (2011) 119 ALD 534 stated at [64]:
“Whatever the reason, it is clear from the authorities cited by her Honour, that, even a total failure by the Tribunal to consider evidence as distinct from integers of an applicant’s claim, will not give rise to jurisdictional  error”
76.	Tracey J referred at [65] to an authority cited by Kenny J, Paul v Minister For Immigration and Multicultural Affairs (2001) 113 FCR 396, in which Allsop J. (with whom Heery J agreed)  stated (at 423) that: 
“Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction ………………. they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed….”
77.	The Minister submits that in these proceedings, it is not suggested that the elements or integers of the applicants claim for asylum were not addressed. The Minister argues that what is suggested is that evidence was not taken into account. The Minister rejects this argument but argues that, even if that were the case, a mere failure to grapple with or mention particular pieces of evidence in the decision does not give rise to jurisdictional error.
78.	In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, having observed that a failure by the Tribunal to consider an element of the applicants’ claim would amount to jurisdictional error because Division IV of part 7 of the Act requires a review of the whole of the applicant’s claims, the Full Court stated at [28]:
“28. However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
79.	In summary, the Minister submits that:
a)	the preponderance of the evidence in relation to the claim that the applicant husband was a suspected LTTE supporter came from the husband and not the applicant herself;
b)	the applicant’s evidence was limited to the events subsequent to his alleged detention and mistreatment;
c)	it is evident from the decision record read fairly and as a whole, that the Tribunal dealt with the applicant’s evidence identifying in particular inconsistencies between her evidence and the husband’s evidence and her evidence contained in her statutory declaration and oral evidence; 
d)	in any event, failure to expressly mention or grapple with part of the competing body of evidence does not give rise to jurisdictional error;
e)	it is evident from the decision record read fairly and as a whole, that the Tribunal did not give the applicant’s evidence any real weight for two reasons; firstly, because her husband’s evidence was found to be so lacking in credibility and secondly, her own evidence, where it intersected with the account given by the husband, was regularly inconsistent.
80.	The Minister submits that the way in which the Tribunal dealt with the corroborative evidence is an approach which is rational and permitted having regard to the authorities: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S20/2002 77 ALJR 1165. In S20, the Tribunal rejected the appellant’s claim that he had suffered torture at the hands of Sri Lankan authorities for having accommodated Tamil members of the LTTE. The Tribunal was extremely critical of the appellant’s credibility to the point where it reasoned it had been misled and could not, therefore, give any weight to the corroborating evidence of the appellant’s witness. The challenge to the Tribunal’s decision was based on two grounds, one of which was that the decision “was illogical, irrational or is not based on findings or inferences of fact supported by logical grounds” at [4]. The majority (Kirby J dissenting) dismissed this ground of appeal.
81.	In respect of this ground, Gleeson CJ observed “to describe reasoning as a logical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it be suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision – maker, and to identify the legal principle of statutory provision that attracts a suggested consequence,”  at [5]. 
82.	His Honour stated at [12]:
“……….. the essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant story implausible, and in some important respects unbelievable, and that she also rejects the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons she had already given for rejecting that claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or logical, for a finder of fact, who is convinced that a principal witnesses is fabricating a story, which is considered to be inherently implausible, to rejects corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”
Ground 2
83.	By her amended application filed 20 February 2014, the applicant specified her second ground of review as:
2.	The Tribunal failed to consider certain recent country information provided by the applicant in support of her claim to have a well- founded fear of persecution in Sri Lanka are by reason of her membership of the particular social group “failed returned asylum seekers from the West”. The Tribunal thereby failed to lawfully form a state of satisfaction that the applicant did not satisfy the criteria for protection visa. 
Particulars
a.	The Tribunal found that “the available country information” indicated that it is only individuals with criminal histories or particular profiles in relation to the ethnicity or political opinions that appear to face the risk of harm when identified on their return as a failed asylum seeker who departed Sri Lanka illegally, but cited only one item of country information (a DFAT report) in support of that proposition.
b. The applicant had provided contradictory information, which indicated that a broader class of returnees (which included the applicant) were at risk, including country information comprised of a report from the director of the Edmund Rice Centre, and a report from the UK (Home Office) Border Agency.
c. The Tribunal’s statement of reasons reveals a lack of consciousness that there was contradictory country information on the issue, and does not reflect any process of weighing evidence so as to prefer some country information over other country information.
d. The Tribunal thereby failed to lawfully form a state of satisfaction whether the applicant met the criteria for a protection visa.
84.	As is apparent from the particulars to this ground of review, the country information the applicant provided to the Tribunal and which she claims the Tribunal’s statement of reasons reveals a lack of consciousness and consideration thereof are contained in the submission by the applicant’s agent to the delegate dated 17 July 2012.
85.	In that submission reference was made to (CB 97):
“……….. The following excerpts found in a more recent publication by the UK (Home Office) Border Agency titled “operational guidance note” dated March 2011 which refers to a number of factors that may increase the risk of a Tamil being seriously harmed,
….1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors might increase the risk, including but not limited to:
•	Tamil ethnicity
•	previous record as a suspected or actual LTTE member or supporter
•	previous criminal record and/or outstanding arrest warrant
•	bail jumping and/or escaping from custody
•	having signed a confession or similar document
•	having been asked by the security forces to become an informer
•	the presence of scarring
•	returned from London or other centre of LTTE activity or fundraising
•	illegal departure from Sri Lanka
•	lack of ID card or other documentation
•	having made an asylum claim abroad
•	having relatives in the LTTE”
86.	The submission also referred to the following country information (CB 99):
“On 19 May 2010, the director of the Edmund Rice Centre, an Australian research, advocacy and networking organisation that also works with refugees and asylum seekers (Edmund Rice Centre n.d.), said that Sri Lanka is “not safe for deported asylum seekers,” including anyone connected to the Tamil Tigers or who left the country illegally (ibid 19 May 2010). He explained that the Sri Lankan authorities are of the view that “any Tamil who fled the country in an unauthorised way must be an LTTE [Liberation Tigers of Tamil Eelam] sympathiser, or if they are Singhalese, then they must be a traitor” (ibid 19 May 2010)”
87.	The applicant submits that the Tribunal’s reasoning set out in its decision record (CB 247 [56]) that:
“…The available country information indicates that it was only individuals with criminal histories or particular profiles in relation to their ethnicity or political opinions that appear to face the risk of harm when identified on their return as failed asylum seekers who departed Sri Lanka illegally…”
citing only a single item of country information (namely a DFAT report) fails to disclose a consciousness or consideration of relevant but contradictory evidence; that the UK Home Office Border Agency report dated March 2011 and the statements made by the Director of the Edmund Rice Centre on 19 May 2010. 
88.	The applicant submits that the Tribunal’s statement is manifestly wrong in circumstances where, contradictory country information, indicated that asylum seekers of Tamil ethnicity who left Sri Lanka illegally were at an elevated risk of serious harm from the Sri Lankan authorities on their return. 
89.	The applicant argues that on the facts found by the Tribunal she fulfilled safety risk factors identified in both extracts of harm from Sri Lankan authorities. In the case of the UK Home Office Border Agency report, the applicant argues she fulfilled four factors which might increase the risk of serious harm. These were her Tamil ethnicity, her illegal departure from Sri Lanka, her lack of ID card or other documentation and having made an asylum claim abroad. With respect to the statements made by the Director of the Edmund Rice Centre, the applicant argues that she fulfilled the risk factor identified as being someone “who left the country illegally”. 
90.	The applicant concedes that the Tribunal stated subsequently that it had taken into consideration the information provided by the applicant’s adviser in their submission to the Department dated 17 July 2012. She submitted, however, that the Tribunal’s statement that it “notes that these reports repeatedly refer to this being as a result of perceived or actual links with the LTTE or opposition to the current Sri Lankan government” demonstrates that the Tribunal clearly misunderstood that country information and consequently failed to undertake the requisite consciousness and consideration of the applicant’s evidence. 
91.	Consequently, the applicant argues the Tribunal failed to lawfully form the requisite state of satisfaction as to whether she satisfies the criteria for protection visa. The applicant relies on the decision in MZYTS  where their Honours stated that for the Tribunal to lawfully form the requisite state of satisfaction as to whether a person satisfies the criteria for protection visa, the Tribunal must engage in a “predictive or speculative task”, where the absence of past persecution does not deny the existence of a real chance of future persecution ([32] to [36]). That task can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there [35]. Paraphrasing the Full Court’s  description of the task as follows at [38], the applicant argues:
“That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances  in that country.” 
92.	The applicant submits that the Tribunal’s reasons must disclose that it understood and undertook this task in a real or active way [39]. The applicant notes that the concept of “real or active consideration” flows from a body of law summarised in the decision of the Full Court in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57]. In Khadgi, the Full Court observed that a decision maker is entitled to be brief in his or her consideration of the matter which has little or no practical relevance to the circumstances of the particular case. However, it stated, that, “if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision” [59]. 
93.	The applicant notes that the Full Court in MZYTS was critical of the failure of the Tribunal to refer to the country information contained in the applicant’s post hearing submissions and the consequent absence of discussion by the Tribunal as to strengths or weaknesses of the more recent country information as it may or may not have applied to the individual features of the claim before it [42]. The applicant submits that the following statement by the Full Court (at [50]) is apt to describe the reasons of the Tribunal in this case:
“… The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more of pieces of apparently pertinent, but contradictory, evidence and expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these matters are for the trier of fact. The absence from the recitation of country information of the material referred to in the post–hearing submissions is indicative of omission and ignoring, not weighing and preference.”
94.	The applicant submits that a Tribunal cannot engage in a real and active consideration of country information whose content is misconceived by the Tribunal. 
95.	The Minister submits that the Court should be cautious in dealing with submissions that focus on, as the applicant has, the real or active consideration or engagement with the evidence: Minister for Immigration and Citizenship v SJSS (2010) 243 CLR 164 at [30]. 
96.	The Minister submits that, in the extract relied on by the applicant, to assert that the Tribunal failed to give real and active or sufficient consideration to contrary and credible country information, all the Tribunal was stating was its view that the available country information indicates to the Tribunal that certain things would follow upon the return of the applicant to Sri Lanka. Read fairly and as a whole, paragraph [56] in the Tribunal’s decision record discloses that it did consider a range of country information, not merely the DFAT report. 
97.	The Minister submits that the Tribunal’s assessment of the country information provided by the applicant that the “reports repeatedly refer to this being as a result of perceived or actual links with the LTTE or opposition to the current Sri Lankan government” is correct. The Minister notes that the quote which is set out in the submissions made on behalf of the applicant (dated 17 July 2012) of the Director of the Edmund Rice Centre Relied includes the following (CB 99): 
“… The professor noted that if you are Tamil and have any connection to the Tamil causes, it is very likely that you would be screened at the airport and taken into police custody. It is very hard for anyone that has a connection to the Tamil Tigers to go back to Sri Lanka…
He also said that Tamils without any connection to the Tamil Tigers but with a history of opposing government policies would be considered associated with the Tigers and be screened at the airport (ibid)… The professor further stated that a person has any pass connection to the Tamil Tigers or  a history of opposing the government will be detained and questioned (ibid).. He added that there have been reports of “abuse and torture” of the airport detainees (ibid)..”
98.	The Minister notes that in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI), the Full Court stated that [11]: 
“………..There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself, as part of this fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of a well founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. As the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.”
At [13] referring to the country information relied on by the Tribunal, the Full Court also stated:
“…. Both the choice and assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
99.	The Minister submits that the circumstances in these proceedings are to be distinguished from those which applied in MZYTS where the Full Court was concerned with reasons in the Tribunal’s decision which disclosed “no consciousness of the contents of these post-hearing submissions (as opposed to their existence)”  at [41]. 
100.	The Minister drew the Court’s attention to the decision in SZRBA V Minister for Immigration and Citizenship [2014] FCAFC 81 in which the full Court referring to MZYTS stated at [24]:
“There is an issue to our minds as to whether MZYTS reveals any different principle to the ground of review that permits the setting aside of a decision which has not involved ‘proper, genuine and realistic consideration’ of an application: see Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. That ground is probably the same as the one exposed in Dranichnikov (above), i.e., a denial of procedural fairness. We mention it in the context of MZYTS only to note Basten JA’s cautionary remark in Swift that one needs to be alert to the risk that the words ‘properly’, ‘genuinely’ and ‘realistically’ ‘may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process’ (at [45]). It may be that the reasoning in MZYTS needs to be understood in a context which includes that customary admonition.” 
 
Consideration
Ground one 
101.	The starting point must be whether the Tribunal conducted an inquiry in accordance with Division IV of Part 7 of the Act and has reached the requisite state of satisfaction for the purposes of the review in respect of the criteria under s.36(2)(a): MZYTS at [32], [46]; SZNPG at [25]  
102.	I agree with the applicant’s submissions that the accepted jurisdictional/non-jurisdictional distinction between claims and evidence has been disavowed commencing with the decision of his Honour Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) FCA 317 at 111 cited with approval by the Full Court in  MZYTS  at [70]. At [68] the Full Court stated:
“In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96]) the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored. “
103.	It must be recalled that the claim, which is the subject of ground one of the applicant’s application for judicial review, is a claim of imputed political opinion, as an LTTE supporter, due to her husband being suspected of being an LTTE member. The applicant’s claim not only, as she submits, arose from the same substratum of facts, but depended directly upon her husband’s claim to be suspected as an LTTE member. If the husband’s claim to be an LTTE member was rejected then her derivative claim fell away. 
104.	Although the ground for judicial review described the applicant’s evidence as primary evidence, I am satisfied that, by submissions made on her behalf, the applicant characterised her evidence, correctly, as corroborative evidence in relation to the alleged detention and release of her husband. There is no other way of characterising her evidence as the husband’s evidence was predominantly the basis from which her claim arose.
105.	Her complaint is in essence that, by failing to consider her claims or evidence regarding these matters before making its finding, the Tribunal failed at all to consider her corroborative independent evidence.
106.	I am satisfied that, read fairly, the Tribunal’s rejection of the applicant’s claims, regarding the events in 2006, that she went to the police station to beg for her husband’s release flowed directly from its assessment and rejection of the husband’s claims regarding his association with an individual named, Sivakumar and that he was rounded up and detained as a suspected LTTE supporter.
107.	This is apparent from the Tribunal’s statement of its reasons in which it firstly refers to its findings regarding the husband’s claims at the hearing in which the husband gave evidence (CB 242 [42], see [32] above). The Tribunal then proceeds to state that “therefore” it does not accept the applicant went to the police station. This conclusion can only be said to have derived from the Tribunal’s consideration and findings regarding the husband’s claims. (CB 243 [43], see [33] above)
108.	I accept the Minister’s submission, that the reasoning of Gleeson CJ in S20 at [12] is apt to describe the circumstances in this matter and that, consequently, I am bound to accept that it is open to a Tribunal member to find that the principal witnesses’ evidence is so implausible and lacks any credibility such that the Tribunal is not required to consider independent corroborative evidence, and does not fall into jurisdictional error if it does not do so.
109.	There is no dispute that, whilst there may have been a common substratum of facts before the Tribunal in relation to the wife’s claim of imputed political opinion, as an LTTE supporter, due to her husband being suspected of being an LTTE member, the husband’s evidence was central to and comprised the preponderance of evidence with respect to that claim. This is so, notwithstanding, the wife’s evidence was directly relevant to key aspects of his evidence (namely that he was detained and was injured whilst in detention because of his mistreatment). The failure of the Tribunal to consider the wife’s corroborative evidence before making its findings as to aspects of her claim cannot, on the authorities, give rise to jurisdictional error in circumstances where the Tribunal found the applicant husband’s evidence so lacking in credibility. 
110.	I accept that the applicant’s evidence was corroborative evidence in relation to those events and was key to the applicant’s claim for protection. However, the Tribunal did not fail to consider at all the applicant’s evidence. The Tribunal did consider her evidence and, in doing so, identified inconsistencies between the applicant’s and her husband’s evidence in relation to those key events (following detention) (CB243 [43]).
111.	It seems to me that the gist of the applicant’s complaint is with what may be said to be deficiencies in the Tribunal’s articulation of its reasons: SZNPG at [26] or, as characterised by his Honour French J in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912,  an inferior mode of reasoning. At  [34] and [35] his Honour stated:
“34. It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.” 
35 In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 [49]: 
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the Tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reason of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s.430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
“36. Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.” 
112.	I am not satisfied that the Tribunal’s decision discloses jurisdictional error on this ground.
Ground two
113.	I do not accept the applicant’s submission that the use by the Tribunal of the phrase, “The available country information” preceding a statement about the likely circumstances to apply to individuals returning to Sri Lanka followed by a reference to a 2012 DFAT report warrants a conclusion that the Tribunal failed to give consideration to cogent competing evidence. 
114.	In my opinion, the applicant’s argument that the Tribunal’s assessment of the country information was incorrect and that the misunderstanding of the country information demonstrated the Tribunal’s failure to actively engage in the evidence before it, invites the Court to travel into the realm of impermissible merits review: NAHI  at [11]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 
115.	It is to be noted that the Full Court in Khadgi at [64] referred to the decision in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, stating that, the Full Court in WAEE held  that:
(a)	it is not necessary for an administrative decision maker such as the Tribunal to refer in its written reasons to every piece of evidence and every contention made by the applicant;
(b)	it may be that some evidence is irrelevant to the criteria and some contention is misconceived; and
(c)	the reasons of the Tribunal such as Tribunal on the presentation not be scrutinised “was an eye keenly attuned to error” nor is it necessary to provide reasons of a kind that might be expected of a Court of law.
116.	The Full Court in Khadgi then cited at [65] the following extract from the decision in WAEE at [47]:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons but that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf the applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegates decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
117.	I am satisfied that the Tribunal’s characterisation of the country information relied on by the applicant at [56] (see [45] above)  was open to the Tribunal, if regard is had to the whole of the reference in the applicant’s submissions (dated 17 July 2012) to the Director of the Edmund Rice Centre’s statements and the 2011 UK (Home Office) Border Agency report. This is because it is self-evident that the 2011 UK (Home Office) Border Agency report identified perceived or actual links with the LTTE or opposition to the Sri Lankan government as risk factors. To be sure, other risk factors were referred to in the UK (Home Office) Border Agency Report but this does not detract from the obvious point that the report did refer to perceived or actual links with the LTTE or opposition to the Sri Lankan government as risk factors. Moreover, the quote of the Director of the Edmund Rice Centre, which was reproduced in the applicant’s submissions, expressly, as the Minister has pointed out, focuses on actual or perceived links with the LTTE or opposition to the Sri Lankan government (see [97] above). The applicant’s argument that the Tribunal’s assessment of that evidence was incorrect is, in my view, in reality a challenge to the way in which the Tribunal assessed that evidence and the weight it attributed to that evidence. 
118.	I am satisfied that taken as a whole the particular paragraph [56] discloses that the Tribunal considered country information from the Immigration and Refugee Board of Canada 2011, the 2012 DFAT report and the country information referred to in the submissions made to the Department by the applicant’s agent on 17 July 2012. In doing so it considered pertinent and apparently contradictory information. Having considered that information it reached a conclusion, as it was entitled to do, as to the country information it preferred. 
119.	I am not satisfied that the Tribunal’s decision discloses jurisdictional error on this ground.
Merits
120.	It will be apparent from my findings that there is no jurisdictional error disclosed in the Tribunal’s decision that I am satisfied that the substantive application is so lacking in merit that there would be no utility in granting  an extension in time for the applicants to make their application for judicial review.
Conclusion
121.	For the reasons set out in my judgment, I would refuse the application to extend the time period within which the applicants can make their application for judicial review and order costs.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date: 2 June 2015