FEDERAL COURT OF AUSTRALIA

BGL16 v Minister for Immigration and Border Protection [2019] FCA 1609

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal be refused.

2.    The applicant pay the first respondent’s costs to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant is a citizen of Sri Lanka, who first arrived in Australia on 1 November 2013 as a holder of a sponsored family visitor visa. On 13 December 2013, the applicant lodged an application for a Protection (Class XA) visa (Protection Visa). On 25 September 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection, refused the grant of a Protection Visa. On 14 October 2014, the applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) and on 3 May 2016, the Tribunal affirmed the delegate’s decision.

2    The applicant seeks an extension of time to appeal from the judgment and orders of the Federal Circuit Court made on 9 October 2018, dismissing an application for review of the Tribunal’s decision: see BGL16 v Minister for Immigration & Anor [2018] FCCA 2853.

3    At the time, r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules), provided that an appellant needed to file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. This application for an extension of time was filed 143 days after the appeal period had expired. The extension is sought to argue one ground of appeal, which is as follows (as extracted from the applicant’s application for an extension of time):

1. The Federal Circuit Court Judge erred by failing to discern jurisdictional error in circumstances where the Tribunal had made a decision that was so illogical or unreasonable that no reasonable person would have made it.

Particulars

His Honour mischaracterised the Tribunal's reasoning at paragraph [56] of the decision as involving the Tribunal "having regards to, and in some cases preferring, one Country Report over another" when in fact the Tribunal's reasons provided no "intelligible justification" for its conclusions.

4    For the reasons below, the application for an extension of time is refused.

Background

5    In an undated statement submitted with her Protection Visa application, the applicant advanced the following claims (as summarised in the respondent’s submissions):

Her late husband was a mechanic who was forced to repair Liberation Tigers of Tamil Eelam (LTTE) vehicles, and in 1987, to purchase and register a vehicle in his name which was used by the LTTE as a bomb. Members of the Sri Lankan Army (SLA) subsequently arrested her husband in their home in Batticaloa, tortured him and detained him for two years, releasing him pursuant to the Indo- Lanka Accord.

In April 1990, the LTTE abducted her husband, demanded a ransom for his return and threatened to harm her if she could not pay it. In fear, she left her work as a teacher and joined her husband in the LTTE’s armed forces and cooked meals for the LTTE.

After two months, the applicant returned to teaching in a different village, and on 26 July 1993, was informed of her husband’s death while fighting for the LTTE. She returned to her village in Batticaloa where, after lodging complaints with human rights organisations, she received her husband’s death certificate. Her brother also began fighting for the LTTE and she was notified by the LTTE that her brother died on 27 February 1996.

Around January 2011, three “grease men” attacked her as she was entering her home and chased her to her sister’s house and left after her mother fainted.

In August 2012, the applicant was questioned by the intelligence service, who took her fingerprints and photograph. After this encounter she applied for a visitor visa and she secretly obtained her passport by paying an agency.

In October 2013, she voluntarily attended the office of the Pillayan group, where they demanded money from her and threatened to report her LTTE connections. She paid part of the amount demanded before coming to Australia. After she left, her sister and her family moved into her home in Batticaloa, where Pillayan members went and demanded the balance of their extortion amount and threatened to kill the applicant upon her return if it was not paid.

Over the years, she received threats and demands for money in relation to her brother and her husband’s activities from the SLA, the Tamil Eelam Liberation Organisation (TELO), the LTTE, the Special Task Force (STF), the Tamil Makkal Viduthalai Puligal (TVMP), the Criminal Investigation Department (CID) and the Karuna and Pillayan factions. Some of the demands for money were made with knowledge that the applicant’s daughter had moved to Australia.

6    The applicant claimed to fear being detained and tortured on her return to Sri Lanka because of her known association with the LTTE, her ethnicity, her three-year absence from Sri Lanka and the fact that she would be returning from abroad. She also claimed to fear harm on the basis of other cumulative factors including: her race and imputed adverse political opinion as a returnee with a perceived connection to the LTTE; belonging to a particular social group, namely being a widow of some means with close relatives (a daughter and two sisters) living abroad; hailing from an area in the east that was at one time under the control of the LTTE; and the fact that her husband and brother had fought with the LTTE and been acclaimed by them as martyrs.

The decision of the Tribunal

7    The Tribunal found that aspects of the applicant’s claims lacked credibility and were unconvincing, which caused the Tribunal to doubt the truth of central aspects of her claims.

8    The Tribunal accepted that the applicant’s husband and brother were forcibly recruited by the LTTE and died while fighting for the LTTE, that a car registered in the name of the applicant’s husband was used in an LTTE attack in 1987 and that the applicant lived in an LTTE camp for around three months where she cooked for the LTTE. However, the Tribunal also noted that the applicant gave inconsistent oral evidence regarding her husband being of interest to the Sri Lankan authorities as a (perceived) willing participant in the 1987 bombing or as a willing supporter of the LTTE. The applicant’s unconvincing explanation for the incorrect date on her husband’s death certificate caused the Tribunal to have further doubts about the reliability of her testimony.

9    The Tribunal found the applicant’s claims of frequent searches and harassment after her husband’s death in 1993 by the various Sri Lankan and Tamil security organisations to be evolving and unconvincing, noting in particular, that it was unlikely that the applicant kept evidence showing her husband’s complicity in the 1987 bombing in a house subject to frequent searches for five years before burning it in 1993, as claimed by the applicant.

10    The Tribunal did not accept that the applicant was perceived as having a special connection to her brother and was therefore subject to threats and questioning on this basis, given that her mother and sister continued to live in the same area without suffering similar treatment.

11    The Tribunal expressed scepticism at the applicant’s claim that she was able to stay in her sister’s home safely, a mere half-an-hour’s walk away from her home, in a village in which her family had resided for generations, if she had the high profile she claimed to have with Sri Lankan and Tamil organisations. The Tribunal further noted that the applicant’s decision to remain living in her home for around 20 years, where she claimed to be subject to frequent harassment and threats, undermined these claims, particularly in circumstances where she also claimed to be safe at her sister’s house nearby.

12    The Tribunal doubted the applicant’s credibility in claiming that she was subject to increased extortion demands after her daughter moved to Australia in circumstances where she had sisters residing in Canada and Germany for 15 years prior to this. The Tribunal found that the applicant would not face a real chance of serious harm as a result of having family living abroad in wealthy countries.

13    The Tribunal considered the applicant’s ability to legally obtain her passport in 2012 and depart Sri Lanka legally without any difficulty in November 2013, and the fact that she had not had any contact with the CID since August 2012, and found that this suggested that she did not have an adverse profile with the Sri Lankan authorities.

14    On the basis of its cumulative concerns with the applicant’s credibility, the Tribunal found that at the time she left Sri Lanka for Australia, the applicant was not of adverse interest to any element of the Sri Lankan authorities, including the SLA and CID, that she was not being targeted with threats or extortion by any paramilitary group, and that the claimed October 2013 incident with the Pillayan group and their subsequent threats did not occur. Further, the Tribunal found that she would not be imputed with political opinions adverse to the Sri Lankan authorities, and that she did not hold such opinions herself.

15    The Tribunal considered the applicant’s economic, social and sexual vulnerability as an elderly widow, and single woman, and found that there was no evidence that the applicant would suffer persecution for these reasons on her return to Sri Lanka. Based on her relatively secure personal and family circumstances, the Tribunal did not accept that the applicant was at a heightened risk of harm owing to her profile as a Tamil woman from an area formerly under LTTE control.

16    The Tribunal accepted that on her return to Sri Lanka, the Sri Lankan authorities would likely be aware that she overstayed her visa in Australia and might suspect her to have sought asylum in Australia and that this might lead to some questioning. However, after reviewing independent country information, the Tribunal found that the applicant would not be at risk of the kind of harm that might be faced by returnees who departed Sri Lanka illegally or who departed with outstanding criminal charges. The Tribunal found that any questioning the applicant might face on her return would not lead to the authorities considering her as a person of adverse interest and that the process the applicant potentially faced on return to Sri Lanka as a failed asylum seeker did not amount to posing a real chance of serious harm or a real risk of significant harm.

17    The Tribunal was not satisfied, when considering the applicant’s cumulative profile, that she would face persecution, and proceeded to consider the application against the complementary protection criterion. In line with its anterior findings of fact, the Tribunal found that the applicant did not face a real risk of significant harm for any of the reasons claimed, and used this as the basis on which to reject the applicant's claim under the complementary protection criteria.

Federal Circuit Court

18    There was only one ground pressed in the Court below, which contended that by failing to have regard to the UNHCR guidelines listed at paragraph [51] of its decision (the UNHCR Guidelines), the Tribunal made a legally unreasonable or an illogical decision, such that the decision was affected by jurisdictional error.

19    As set out by the primary judge, the crux of the applicant’s contention was that the applicant fell within one of the profiles in the UNHCR Guidelines, namely persons suspected of certain links with the LTTE. The applicant contended that as she clearly fell within one of the “categories”, such that she was in need of “international refugee protection”, the Tribunal’s decision was therefore legally unreasonable. The applicant contended that there was no reasoning on the part of the Tribunal to explain why the applicant was not a person to whom the “presumption” of protection should be applied.

20    The primary judge rejected the applicant’s contentions. As extracted from the respondent’s written submissions (with references from the appeal papers omitted), his Honour held that:

The criteria for consideration by the Tribunal was that contained in s 36(2) of the Migration Act 1958 (Cth) and not what was contained in the UNHCR guidelines (at [34]-[35]);

The applicant’s submissions ignored that the UNHCR guidelines themselves indicated that the “profiles” depended on the circumstances of each individual case (at [37]);

The Tribunal specifically considered the excerpts of the UNHCR guidelines referred to by the applicant and while the Tribunal did accept some of the applicant’s claims, it remained a matter for the Tribunal to determine whether the applicant met the statutory criteria for the grant of the visa (at [38], [40]);

The UNHCR guidelines provide a basis for consideration as to whether an applicant’s circumstances in each individual case give rise to the need for protection and that on any fair reading of the Tribunal’s analysis at [54]-[55] this was precisely how the Tribunal dealt with the UNHCR guidelines (at [42]). The Tribunal did consider the applicant’s circumstances (as set out in detail by the primary judge at [43]-[52]) and its finding that she did not have an adverse profile such that she might “meet” the UNHCR guidelines was logical and reasonably open to it (at [52]);

It was not illogical or unreasonable for the Tribunal to rely on or prefer the UK Upper Tribunal information which was more recent in circumstances where the choice of and weight to be attributed to country information is a matter for the Tribunal (at [55]-[57]).

21    As the primary judge held that the Tribunal’s reasoning in relation to the UNHCR Guidelines and the UK Upper Tribunal information (and the application of that information to the applicant’s circumstances) was not illogical or unreasonable, the application was dismissed.

Consideration

22    An applicant for an extension of time carries the onus of persuading the Court that it is appropriate, in the circumstances of the case, for the extension to be granted: BZADJ v Minister for Immigration and Border Protection [2017] FCA 853 (BZADJ) at [8].

23    The Court does have the power to extend the time fixed by r 36.03 of the Rules: r 1.39. The existence of such a power is implicit in a number of the provisions of the Federal Court of Australia Act 1976 (Cth), relevant to an appeal: for example, s 25(2)(b).

24    The power to extend time in which to appeal is unfettered, however, the authorities identify a number of matters bearing upon the exercise of the discretion to extend time. In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J identified a number of factors which are often cited in this regard. The matters to which the Court will usually have regard to, identified in that judgment, are: (1) the length of the extension sought; (2) the explanation for the delay, including consideration of any action taken by the applicant, other than by way of making an application for review; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and (7) the interests of justice more generally: see for example, Parker v The Queen [2002] FCAFC 133 at [6] and [17] - [19].

25    The relevant principles were succinctly stated by Katzmann J in Dunlop v Fishburn (No 3) [2012] FCA 315 at [9]-[10] as follows:

9. The Federal Court Rules 2011 (Cth) (“the Rules”) retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way.

10. The requirement in the former Rules (O 52 r 15(2)) that an applicant show “special reasons” has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187)), it seems to me that the considerations guiding the exercise of the Court’s discretion set out by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6] continue to apply:

(a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored;

(b) The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(c) Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(d) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension;

(e) The merits of the appeal are to be taken into account.

26    Those matters are not unrelated, for example, the greater the delay the more readily a Court might infer that the interests of justice would not be served by granting an extension of time: BZADJ at [6].

27    The respondent opposed the extension of time on two bases: firstly, that the delay is not adequately explained; and secondly, more importantly, that the applicant has not established that there is sufficient doubt in the decision of the primary judge to warrant an extension of time being granted. The respondent accepted that there is no prejudice caused to them by the delay, if the Court were to grant an extension of time. As noted above, the delay in filing the application is 143 days, which given the time limit of 21 days is not insignificant.

Explanation for the delay

28    The explanation given for the delay is in an affidavit of the applicant read in support of this application. In effect, the applicant stated that the delay is as a result of a mistake and that she had assumed her lawyer had filed her appeal. The applicant said that she received “correspondence regarding [her] appeal from the Department of Immigration” on or about 15 March 2019 as a result of which her son-in-law went to a lawyer. The applicant stated that her son-in-law told her that her lawyer had presumed that she had gone to another lawyer, and that he assumed that this other lawyer had filed the appeal with the Court. The respondent submitted that this is an insufficient explanation given the length of the delay. The explanation is rather scant given that the possibility of an appeal could be assumed to be a matter which was important to her. Further, the applicant was represented by counsel in the Court below. I note, however, that the primary judge records that the solicitor on the file withdrew, and another solicitor was said to be acting, but despite directions from the Court, that solicitor did not file a notice of appearance with the Court. Despite this, the applicant must have been aware of what was occurring in relation to her representation.

Merit of the appeal ground

29    However, whatever might be said of the applicant’s explanation for the delay, the respondent’s submission that there is not sufficient merit in the appeal ground to warrant an extension of time must be accepted.

30    The applicant’s argument is that given particular factual findings of the Tribunal, in light of the UNHCR’s Guidelines and the guidance issued by the UK Upper Tribunal in around July 2013, the Tribunal’s conclusions at paragraphs [54] and [55] of its reasons lack an intelligible rationale.

31    Those paragraphs are as follows:

54. The Tribunal is not satisfied, based on the totality of the considerations detailed in this decision record, that the applicant had, has or will have in the reasonably foreseeable future, a profile as a person in the Tamil diaspora who is working for Tamil separatism or to destabilise the unitary Sri Lankan state, or as a person who is otherwise a threat to the unitary Sri Lankan state, or as a person with any actual or perceived role in post-conflict Tamil separatism.

55. On the totality of the evidence before it, the Tribunal is not satisfied that a person of the applicant's circumstances, whose evidence does not reveal her to have any profile in voluntarily supporting the LTTE other than by cooking for them or around three months in around 1990 in order to be close to her husband, or in expressing opposition to the Sri Lankan government at any time, inside or outside Sri Lanka, would be imputed with political opinions of adverse interest to the Sri Lankan authorities on her return to Sri Lanka in the reasonably foreseeable future despite her late husband and brother dying as LTTE martyrs.

32    While the applicant’s argument is based on a purported lack of intelligible reasoning by the Tribunal in reaching the imputed conclusions, underlying this argument is the applicant’s submission that the particular factual findings of the Tribunal mean that that the applicant meets the criteria of being a person to whom the presumption of refugee protection should be applied, as set out in the UNHCR Guidelines. On that basis, the applicant submitted that paragraphs [54] and [55] fail to explain why the criteria in the UNHCR Guidelines was deviated from, and that the paucity of reasons in those paragraphs demonstrates a lack of intelligible reasoning on the part of the Tribunal in reaching these conclusions. In particular, the applicant criticised the references to “findings above” in each of [54] and [55] as not providing any explanation as to the basis upon which the imputed conclusions were reached. The submission was, in effect, that the Tribunal needed to identify there, with some specificity, what those findings were that resulted in the deviation from the UNHCR criteria.

33    While the applicant’s submission focused on the criteria in the UNHCR Guidelines as illustrating the purported lack of "intelligible justification" for the Tribunal’s conclusions, she contended that those guidelines and the guidance issued by the UK Upper Tribunal were “coextensive”, and that they “work together” to illustrate that the applicant was a person to whom the presumption of refugee protection should apply.

34    The applicant highlighted that the Tribunal:

(1)    accepted as true that the applicant was born in Batticaloa, Eastern Province; she is Hindu; she departed Australia legally on 1 November 2013, using her own Passport; she was a teacher in Sri Lanka; and that her brother died as an LTTE martyr in 1996;

(2)    held that "[m]uch of the applicant's evidence regarding her late husband and late brother's involvement with the LTTE during the late 1980s and early/mid 1990s was detailed and convincing, and remained largely consistent over time, including in her oral evidence to the Department and Tribunal";

(3)    accepted that "in or around April 1987 a car which the LTTE had pressured the [a]pplicant's husband to buy and register in his name was used for blasting a bomb"; and that "on or about 9 May 1987, the applicant's husband and some of his employees were taken by the Sri Lankan Army, firstly to Kallady camp and then to a prison in Colombo”; and

(4)    accepted that “the applicant's husband and brother were forcibly recruited by the LTTE; these family members died while in the service of the LTTE”; and that their deaths "were announced on Sri Lankan Government radio as having died as LTTE martyrs".

35    The applicant, in support of her submission referred to passages from this Court’s decisions of Vo v Minister For Home Affairs [2019] FCAFC 108 at [43] and Tsvetnko v United States of America [2019] FCAFC 74 at [83] - [85].

36    It is uncontentious that a decision may be legally unreasonable if it “lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW) at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ. As the High Court has observed, the test of legal unreasonableness is necessarily stringent: SZVFW at [11] per Kiefel CJ; and see [51]-[60] per Gageler J, [78]-[87] per Nettle and Gordon JJ, [131]–[135] per Edelman J.

37    It is also well settled that the reasons for decision of bodies such as the Tribunal must be read as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 per Kirby J. The applicant’s argument is not borne out by a proper and fair reading of the reasons of the Tribunal.

38    It is plain that the Tribunal made a number of findings in favour of the applicant. However, it is also plain from the reasons that the Tribunal made a number of adverse findings. Examples of these are referred to above at paragraphs [8]-[16].

39    Having taken into account those findings, the Tribunal concluded at paragraph [39]:

39. Based on all the evidence before it and the considerations and findings above, while accepting that the applicant's late husband and brother were known by the Sri Lankan government to have died in the service of the LTTE, and that the applicant lived in an LTTE camp for around three months in the early 1990's, where she cooked for the LTTE, the Tribunal is not satisfied that, at the time the applicant left Sri Lanka for Australia, she had an adverse profile as a supporter of the LTTE or otherwise with any element of the Sri Lankan authorities including the SLA and CID, or that she was being specifically targeted with threats and/or extortion by members of any paramilitary group. The Tribunal is not satisfied that, at the time she left Sri Lanka for Australia in November 2013 she had a profile giving rise to a real chance of serious or significant harm as contemplated by the relevant law, in the reasonably foreseeable future.

40    The Tribunal also concluded at paragraphs [46] and [48]-[50]:

46. On the evidence before it the Tribunal does not accept that all Tamils now face a real chance of serious or significant harm in Sri Lanka for reason of their ethnicity, even if they have ties to an area previously controlled by the LTTE, such as Batticaloa. Each case must be assessed on its own merits and in the context of what the Tribunal accepts of an individual's circumstances. On the evidence before it the Tribunal finds that the applicant, her children, her sisters and mother have lived and worked in Batticaloa for decades without experiencing serious harm, including prior to the official end of the war in May 2009. Her elderly mother, sisters, their families and the applicant's adult son continue to live in Batticaloa. Her evidence reveals them to work and study, as the applicant herself did in Sri Lanka. Based on what the Tribunal accepts of the applicant's personal and family circumstances, the Tribunal does not accept that as a Tamil from Batticaloa the applicant or any member of her family has a heightened risk of harm giving rise to a real chance of serious or significant harm in Sri Lanka in the reasonably foreseeable future, even when considered cumulatively with what the Tribunal accepts of the balance of her circumstances.

…

48. As reasoned in earlier section of this decision record, while the Tribunal accepts that the applicant's late husband and brother were forcibly recruited by the LTTE and announced as LTTE martyrs on Sri Lankan Government radio at the times of their deaths, and that the applicant's husband was earlier forcibly recruited by the LTTE in connection with a bomb explosion in 1987, the Tribunal does not accept that either the applicant's husband or brother held or are perceived by the Sri Lankan authorities to have held any particular rank within in the LTTE or that the applicant's husband was or is viewed as having willingly participated in the 1987 bombing. The Tribunal is not satisfied that [t]he applicant[‘s] husband or brother held the rank of Lieutenant or Major in the LTTE. On the applicant's own testimony it is unclear and speculative as to what specific role they occupied as forced recruits of the LTTE.

49. The Tribunal also accepts that, in order to reunite with her husband, the applicant and her children spent three months at an LTTE camp at some point before 1993, where, in addition to looking after her own family, she had to cook some meals for the LTTE.

50. Beyond the above there is no evidence that the applicant or any member of her family has had any direct or voluntary involvement with the LTTE or that they have been involved in any activities or hold any political opinions opposed to or undermining of the Sri Lankan Government.

41    The applicant’s submission fails to address any of those adverse findings. Moreover, the applicant’s complaint that the structure of the Tribunal’s reasons is such that it is unclear what “findings above” in paragraphs [54] and [55] refers to, cannot be accepted. The structure of the reasons does not, as the applicant contends, lead to a necessity for the Tribunal to list specific findings in paragraphs [54] and [55]. Rather, the structure of the reasons, which includes findings under various relevant headings, makes clear the reasoning process. Indeed, as the conclusions referred to above reflect, the reasoning of the Tribunal is clear. The Tribunal reached its conclusion, as it explained, conscious of those positive findings relied on by the applicant.

42    Moreover the applicant’s submission places a primacy and simplicity on the UNHCR Guidelines, without recognition that the criteria that must be met is that contained in the Migration Act 1958 (Cth) and that the UNHCR Guidelines themselves refer to the necessity of considering the individual circumstances of a case. A proper reading of the Tribunal’s reasons reflects that it did just that.

43    As the Court below recognised (court book references omitted):

41. As the applicant’s representative before the Tribunal correctly recognised, the UNHCR guidelines provide a basis for consideration as to whether an applicant’s circumstances, in each individual case, “may give rise” to the need for protection.

42. On any fair reading of the Tribunal’s analysis at [54] to [55] in its decision record, this is precisely how the Tribunal dealt with the UNHCR guidelines.

44    Having analysed the Tribunal’s reasons, the Court below correctly concluded:

58. The Tribunal’s analysis reveals a logical connection between the applicant’s claims, her evidence, and the information before the Tribunal and its ultimate decision (SZMDS at [135]). Specifically, the Tribunal’s reasoning in relation to the UNHCR guidelines and the UK Upper Tribunal information, and the application of that information to the applicant’s circumstances, was not illogical or unreasonable.

45    There is no merit in the applicant’s submission that the Court below erred in failing to find jurisdictional error on the basis argued in this proposed ground of appeal.

Conclusion

46    As there is no merit in the proposed ground of appeal, the application for an extension of time is refused with costs.

Associate:

Dated:    27 September 2019