FEDERAL COURT OF AUSTRALIA BZAHN v Minister for Immigration and Border Protection [2016] FCA 281 File number: QUD 697 of 2015 Judge: RANGIAH J Date of judgment: 24 March 2016 Catchwords: MIGRATION – application for review of a decision of the Federal Circuit Court refusing extension of time to seek judicial review of Refugee Review Tribunal decision – where Tribunal affirmed decision of the Minister to refuse to grant a protection visa – no jurisdictional error – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 48B, 414, 417, 430, 476, 476A and 477 Cases cited: BZAHM v Minister for Border Protection [2015] FCA 675 Jahangir v Minister for Immigration and Border Protection (2014) 222 FCR 91 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALR 429 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 Date of hearing: 4 December 2015 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 71 Solicitor for the Applicant: Mr B O'Brien of Essen Lawyers Pty Ltd Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs Counsel for the Third Respondent: The third respondent did not appear ORDERS QUD 697 of 2015 BETWEEN: BZAHN Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTATIVE APPEALS TRIBUNAL Second Respondent FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent JUDGE: RANGIAH J DATE OF ORDER: 24 MARCH 2016 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RANGIAH J: 1 The applicant applies under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and mandamus in respect of an order of the Federal Circuit Court of Australia. 2 The Federal Circuit Court dismissed the applicant's application for an extension of time to apply for constitutional writs in respect of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a protection visa. 3 In order to succeed, the applicant must demonstrate jurisdictional error in the judgment of the Federal Circuit Court. For the reasons that follow, the applicant has not demonstrated such error and his application must be dismissed. Factual background 4 The applicant is a citizen of Vietnam. He entered Australia on 6 May 1992 on a Visitor (Class 663) visa and has remained in Australia for some 23 years as an unlawful non-citizen since the expiration of that visa on 28 April 1993. 5 On 7 August 2012, the applicant applied for a Protection (Class XA) visa. That application was refused by a delegate of the Minister. The applicant was notified of the delegate's decision on 15 August 2013. 6 The applicant applied to the Tribunal for review of the delegate's decision on 28 August 2013. On 27 March 2014, the Tribunal affirmed the delegate's decision to refuse to grant the protection visa. The applicant was notified of the Tribunal's decision on 28 March 2014. 7 It was open to the applicant to apply for constitutional writs in respect of the Tribunal's decision pursuant to ss 476 and 477 of the Migration Act 1958 (Cth) ("the Act") within 35 days of the Tribunal's decision, but he did not make such any such application. 8 Instead, the applicant wrote to the Minister seeking that the Minister substitute a more favourable decision for the Tribunal's decision in the exercise of his discretion under s 417 of the Act. The applicant's letter was dated 18 March 2014 and was received by the Minister on 1 May 2014. 9 On 2 May 2014, the applicant lodged a new application for a protection visa. That application was invalid. However, the Department treated the application as an application to the Minister under s 48B of the Act for a decision that the applicant be permitted to make another application for a protection visa. 10 The Minister refused to exercise his discretion in respect of both applications, and the applicant was notified of the Minister's decisions on 17 July 2014. 11 On 4 September 2014, the applicant filed an application in the Federal Circuit Court seeking an extension of time within which to bring an application for review of the decision of the Tribunal under s 477 of the Act. The delegate's decision 12 The applicant claimed that he would be persecuted by the police if he returns to Vietnam because he is a Catholic and a failed asylum seeker and has relatives overseas. 13 The Minister's delegate accepted the applicant's claims that he and his family were subjected to police harassment and extortion in Vietnam in the 1980s and early 1990s. However, the delegate was not satisfied that the applicant faced such treatment because of his religion. The applicant claimed that government officials are still looking for him in Vietnam but the delegate found this claim to be implausible. 14 The delegate relied on country information which indicated that the majority of Catholics in Vietnam are able to practice their religion freely and safely. The delegate stated that as the applicant has not lived in Vietnam for 20 years and had not been involved in any political activities during this time, he could find no reason why the applicant could not freely and safely practice his religion in Vietnam. 15 The delegate was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and therefore did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act. Further, the delegate concluded that the applicant was not owed protection obligations under the complementary protection provisions in s 36(2)(aa) of the Act because there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk of significant harm. The Tribunal 16 The Tribunal took oral evidence from the applicant. The Tribunal found that the applicant's oral evidence about what had happened to him in Vietnam prior to his departure in 1992 was inconsistent with evidence he had previously given to the Department and in the statutory declaration he provided to the Tribunal. For example, the Tribunal found that the applicant's claims that local authorities had confiscated his boat and house were "inconsistent" and "very confused" and found his explanations to be "highly unlikely". However, on the basis of country information, the Tribunal accepted it was likely that, during the 1980s and early 1990s, the applicant was harassed by police following escape attempts, and that he was extorted by police because he had relatives overseas. 17 Before the Tribunal, the applicant did not claim that the reason for harassment by the police was his religion until the Tribunal put it to him that he had previously made such claims. Despite anomalies in the applicant's evidence, the Tribunal accepted that he is a Catholic and suffered harassment for that reason prior to leaving Vietnam in 1992. The Tribunal also accepted the applicant would likely continue to practice his religion should he return to Vietnam. 18 The Tribunal noted that country information indicated that some Catholics continue to face problems in some areas of Vietnam. However, the Tribunal was unable to locate any reports indicating that there were problems for Catholics in the applicant's local area in the last decade. Further, country information indicated that the situation for Catholics in Vietnam generally had greatly improved since the 1980s and early 1990s. 19 The Tribunal stated that Vietnam had changed considerably since the applicant left in 1992. The applicant claimed that the local authorities in his area were continuing today to behave in a harsh way. However, he was unable to produce any independent information to support this assertion, and the Tribunal did not accept it was true. Further, the applicant had not claimed that members of his family had been harassed in any way since he left, apart from one visit to his mother's home in 1992. 20 The Tribunal concluded that there was no real chance that the applicant would face persecution in Vietnam because of his religion or for any other Convention reason. 21 On the basis of these findings, the Tribunal concluded that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act. The Tribunal also concluded, on the basis of its findings made in the course of considering s 36(2)(a), that the complementary protection criteria in s 36(2)(aa) of the Act were not met. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. The Federal Circuit Court 22 On 4 September 2014, the applicant filed an application in the Federal Circuit Court seeking an extension of time within which to bring an application for review of the decision of the Tribunal under s 477 of the Act. The applicant then filed an amended application on 7 November 2014. 23 Section 477(1) of the Act requires that any application to the Federal Circuit Court under s 476 of the Act be filed within 35 days of the date of the migration decision. The relevant "migration decision" was the Tribunal's decision dated 27 March 2014. 24 Section 477(2) provides: 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. 25 The applicant filed his application to the Federal Circuit Court some 126 days after the expiration of the 35 day limit under s 477(1) of the Act. The grounds of the application for extension of time stated that the delay was beyond the applicant's control because the applicant's application for Ministerial intervention had not been decided until 17 July 2014 and because the applicant's legal representatives needed time to prepare the application. 26 The sole ground of the applicant's proposed application for constitutional writs was that the Tribunal breached "its statutory obligation" under s 36(2)(aa) of the Act, as it "failed to analyse and or examine the relevant information or facts". There were then three lengthy paragraphs particularising the ground, although the first two paragraphs merely recited some of the applicant's factual claims. 27 The primary judge noted that the time limit can only be extended where it is necessary in the interests of the administration of justice to do so. His Honour considered that the factors bearing on that issue include the length of the delay, the reasons for the delay, any prejudice to the respondent as a result of the delay, the impact on the applicant if the application is refused, the interests of the public and the merits of the substantive application. 28 The primary judge rejected the applicant's submission that the delay was only 49 days and found that the delay of 126 days was significant. His Honour held that there was nothing which had prevented the applicant from commencing judicial review proceedings within the time limit, noting that the applicant had been legally represented and that the applicant was expressly told in a letter from the Department that he should not discontinue any application for judicial review in the expectation that the Minister would intervene. His Honour stated that "It might be inferred that the time limit was allowed to pass intentionally." His Honour concluded that in light of the lengthy delay, the applicant's explanation for delay was inadequate. 29 The primary judge noted that there was no prejudice asserted by the Minister. His Honour also noted that the applicant would be prevented from challenging the Tribunal's decision if the extension of time was refused. 30 As to the merits of the proposed application, the primary judge held that the relevant section, s 36(2)(aa) of the Act, does not impose any statutory obligation upon the Tribunal but rather sets out the criteria for complementary protection. His Honour thought it was likely that the applicant's ground was, in reality, that the Tribunal did not conduct a review of the delegate's decision at all, or did not give proper, genuine and realistic consideration to the merits of the application. The third paragraph of the particulars alleged that the Tribunal "failed to fully investigate and make findings on these claims" on the following bases: a. The Tribunal did not adequately consider the relevant country information, particularly the 2013 Report of the US Commission on International Religious Freedom. Only selected extracts demonstrating positive aspects were extracted, resulting in a failure to consider the impact of the report as a whole. b. An undue burden was placed on the applicant in requiring him to produce independent material to support his view of the behavior of Khanh Hoa province local authorities. Furthermore, too heavy a weight was placed on this fact in reaching their conclusion that he would not be subject to harm. c. In considering the fact that Vietnamese nationals returning are entitled to have their household registration reinstated, the Tribunal inadequately considered the impact of the applicant's history on his re-registration upon his return to Vietnam. 31 To the extent that the particulars contended that the Tribunal failed to "fully investigate" the applicant's claim, the primary judge cited Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 ("SZIAI") as authority for the proposition that it is a matter for the Tribunal to investigate whatever matters it thinks fit to whatever extent it thinks fit. 32 As to the paragraph (a) of the particulars, the primary judge held that the Tribunal had considered the evidence before it, including country information, and made findings first against the criteria specified in s 36(2)(a) and then against s 36(2)(aa) of the Act. His Honour found that the Tribunal expressly addressed the requirements of s 36(2)(aa) of the Act. 33 The primary judge found that the fact that the Tribunal only referred to the pertinent extracts of the relevant report containing country information did not indicate that the Tribunal failed to "adequately consider" the entirety of the report; and even if the Tribunal did overlook parts of the report that would not constitute jurisdictional error. Further, his Honour found that the challenge to the Tribunal's selection and use of country information sought impermissible merits review. 34 The primary judge also rejected paragraph (b) of the particulars, stating that the Tribunal had placed no burden on the applicant, and that the Tribunal simply assessed the evidence and information before it and preferred the independent information over the applicant's "subjective, unsupported, bare assertion that the present situation in Vietnam (and Khanh Hoa) was still the same as it was in 1992." His Honour considered that the Tribunal weighed up the evidence before it and made a finding of fact which was open to it on that evidence. 35 With respect to paragraph (b) of the particulars, which asserted that the Tribunal placed "too heavy a weight" on the applicant's inability to produce evidence, his Honour held that matters of weight are within the exclusive province of the Tribunal. 36 The primary judge held that paragraph (c), which asserted that the Tribunal "inadequately considered" the impact of the applicant's history upon his re-registration when he returned, also sought merits review. The Tribunal had expressly found that the applicant would be able to have his household registration restored. 37 The Federal Circuit Court was not satisfied that it was necessary in the interests of justice to extend the time, and dismissed the applicant's application. The application to this Court 38 Section 476A(3)(a) of the Act prohibits an appeal to the Federal Court against the refusal of an application for the extension of time in which to bring an application for constitutional writs. However, the Federal Court has original jurisdiction under s 39B of the Judiciary Act to grant writs of mandamus and certiorari in respect of orders made by a judge of the Federal Circuit Court, including an order dismissing an application under s 477(2): Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11] (Rares, Perram and Wigney JJ) ("Tang"). In order to succeed, the applicant must establish that the judgment is affected by jurisdictional error: Tang at [31]. 39 The approach taken by the Full Court in Tang was to first decide whether there was legal error in the Federal Circuit Court's judgment before considering whether any such legal error constituted jurisdictional error: see also BZAHM v Minister for Border Protection [2015] FCA 675 at [30] (Reeves J), SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 at [12] (North, Collier and Tracey JJ). I propose to take the same approach. 40 The applicant's originating application sets out the following grounds and particulars: (1) The [Federal Circuit Court] misapprehended the test to be applied under s 477(2)(b) of the Migration Act 1958 (Cth) ("the Act") in determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Act. Particulars: (a) His Honour Judge Jarrett erred in law by not considering that there is strong merit in the grounds in the application such as to establish jurisdictional error. (b) His Honour Judge Jarrett erroneously concluded that the grounds in the review application sought merits review. (2) His Honour Judge Jarrett erred in law by failing to recognise that the [Tribunal] did not assess the Applicant's claims under s 36(2)(aa) of the Act. Particulars: (a) His Honour Judge Jarrett failed to recognise that the [Tribunal] did not consider that as a perceived Catholic who has sought asylum in Australia, and as a person who was subjected to imprisonment and torture for 8 months, the Applicant faces a real risk of significant harm upon return. (b) His Honour Judge Jarrett failed to recognise that the Tribunal made findings in relation to the complementary protection criterion based on evidence and findings considered in the context of Refugees Convention Claim, but made no attempt to distinguish the different tests posed by s 36(2)(a) and s 36(2)(aa) of the Act. (c) His Honour Judge Jarrett failed to consider that the [Tribunal] made a jurisdictional error by not considering the relevant evidence and materials before it in arriving in its decision that the situation in Vietnam has greatly improved since applicant's departure. (Errors in original, footnotes omitted.) Ground 1 41 The first ground of the originating application alleges that the primary judge "misapprehended the test to be applied under s 477(2)(b) of the Migration Act…in determining whether there was a discretion to extend the time". As there is dissonance between that ground and the particulars of the ground that follow, I propose to treat the particulars as separate grounds. 42 The applicant was represented by a solicitor at the hearing of the present application, but the solicitor did not make any oral submissions, preferring to rely only on his written submissions. The applicant's written submissions do not address how it is that the primary judge is said to have "misapprehended the test to be applied under s 477(2)(b)." 43 Section 477(2) of the Act allows the Federal Circuit Court to extend the time for filing an application for constitutional writs in respect of a Tribunal's decision. There are two conditions that must be met before that power is enlivened: firstly, a written application specifying why it is in the interests of the administration of justice to extend time; and secondly, that the Court is satisfied that it is necessary in the interests of the administration of justice to extend time. It is the second condition upon which the applicant failed. 44 The primary judge set out a number of factors that bore upon paragraph (b) of s 477(2). Those matters included the length of delay, the reasons for delay, any prejudice to the parties as a result of the delay, the consequences if the extension were refused and the merits of the substantive application. 45 As to the length of the delay, the applicant submitted before the primary judge that the delay was 49 days. The applicant calculated that period from the date on which he was advised that his request under s 417 of the Act had been refused. Section 477(1) requires any application for judicial review to be filed within 35 days of the "date of the migration decision". As is made plain by ss 477(3) and 430(2) of the Act, the "date of the migration decision" means the date of the Tribunal's decision. The primary judge was correct in calculating the length of delay as 126 days. 46 His Honour found the applicant's explanation for the delay to be inadequate. As to the consequences of refusing the extension, the primary judge noted that the applicant would have no further avenue by which to seek protection in Australia. 47 Finally, as to the merits of the substantive application, his Honour concluded that the application did not raise any arguable case of jurisdictional error. His Honour accordingly dismissed the application for an extension of time. 48 There is no discernible basis for the applicant's assertion that the primary judge misapprehended the test to be applied under s 477(2) of the Act. 49 Paragraph (a) of the particulars of the applicant's first ground before this Court is that the primary judge "erred in law by not considering that there is strong merit in the grounds in the application such as to establish jurisdictional error". This requires consideration of whether his Honour erred in his assessment of the legal merit, or lack of merit, of the applicant's proposed application for constitutional writs. 50 Before the Federal Circuit Court, the sole ground of the applicant's proposed application for constitutional writs was the Tribunal had "breached its statutory obligation under s 36(2)(aa) of the Act", as it "failed to analyse and or examine the relevant information or facts". The primary judge held that this ground failed because s 36(2)(aa) of the Act did not impose any statutory obligation. His Honour was correcting in deciding s 36(2)(aa) imposes no specific obligation distinct from or additional to the Tribunal's general duty to review under s 414(1) of the Act. 51 The primary judge then took an approach favourable to the applicant by considering the particulars of the ground of the applicant's proposed application as if they were separate grounds. The first two paragraphs of the particulars did not identify or allege any error of law but simply recited facts. The third paragraph claimed the Tribunal failed to "fully investigate and make findings" in assessing the applicant's fear of harm of returning to Vietnam. 52 The claim that the Tribunal failed to fully investigate was underpinned by an assumption that the Tribunal was under a duty to investigate. Before this Court, the applicant submitted in his written submissions that "the Tribunal has clearly failed its statutory duty to make inquiries" and the Tribunal was required "to make proper inquiries into the situation of Catholics in Vietnam". However, the Tribunal is under no general duty to make inquiries. The duty imposed upon the Tribunal, elucidated in SZIAI at [18]-[25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), is a "duty to review, not necessarily a duty to make inquiries." The exception is that a failure to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained, may constitute a failure to review. 53 In Jahangir v Minister for Immigration and Border Protection (2014) 222 FCR 91 at [56], Katzmann J held that the exception in SZIAI is: …concerned with situations in which there is insufficient information or material before a decision-maker and where, in the absence of such information or material, the making of a decision might constitute jurisdictional error. 54 In this case, there is no suggestion that the Tribunal had insufficient information or material before it to make a decision. The applicant's written submissions focus on the Tribunal's allegedly incorrect interpretation of country information and its allegedly incorrect weighting of aspects of such information. The applicant's case does not fall within the exception articulated in SZIAI. His Honour's rejection of the third paragraph of the particulars was correct. 55 In the proposed application before the primary judge, and in the applicant's written submissions before this Court, the applicant alleged that the Tribunal "wrongly interpreted country information to make an erroneous finding that the Catholics' situation has greatly improved since [the] Applicant's departure". 56 The Tribunal found, on the basis of country information from the US Department of State, a 2013 Report of the US Commission on International Religious Freedom and the Catholic Hierarchy website, that "the situation for Catholics in Vietnam generally and in the Diocese of Nha Trang specifically has greatly improved since the 1980s and early 1990s." That conclusion was open to the Tribunal from the information before it. The allegation that the Tribunal misunderstood that information is an allegation that the Tribunal made a factual error – it is not an allegation of jurisdictional error: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ) ("NAHI"). 57 In response to the applicant's submission that the inclusion of extracts of country information in the Tribunal's reasons showed a failure to consider the reports as a whole, the primary judge stated that: …there is no basis to reasonably infer that the tribunal did not consider the entirety of the relevant report merely because certain aspects of it were extracted in the tribunal's decision. The tribunal…extracted what it considered to be a pertinent extract. That does not indicate that the tribunal failed to "adequately consider" the entirety of the report. 58 The Tribunal was not required to refer to each piece of evidence, but only those that it considered relevant to its findings: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] (Gleeson CJ), [33] (Gaudron J), [68] (McHugh, Gummow and Hayne JJ), NAHI at [14]. There is no error in his Honour's reasoning. 59 The applicant alleged in his application to the Federal Circuit Court that an undue burden was placed on him to produce independent material. The primary judge held that the Tribunal "placed no burden upon the applicant". His Honour stated that in making its findings, the Tribunal simply assessed the evidence before it and that the Tribunal preferred the independent country information with respect to the current situation for Catholics in Vietnam over the applicant's "unsupported" assertion that the present situation in Vietnam was the same as it was in 1992. His Honour's conclusion was correct. When the Tribunal noted that the applicant was unable to produce any independent information to support his claim that local authorities in his area continued to behave in a harsh way, the Tribunal was merely summarising the state of the evidence before it, rather than imposing any onus of proof on the applicant. 60 In his written submissions to this Court, the applicant submits that it was plainly wrong for the primary judge to label his claim as "unsupported", as the country information supports his assertion. The Tribunal noted that particular groups of Catholics continue to face problems in some areas of Vietnam, but that the Tribunal was "unable to locate any reports of problems for Catholics in the area in which the applicant's family lives at least in the last decade." The evidence of the applicant which the primary judge described as unsupported was the claim that the present situation in Vietnam, in particular his local area, was the same as it was in 1992. I consider that the primary judge was correct in this conclusion. 61 As to the allegation that the Tribunal placed "too heavy a weight" on some facts or evidence, the primary judge correctly stated that "matters of weight are matters within the exclusive province of the tribunal": see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), NAHI at [11]. 62 The applicant's reliance on the "household registration" allegation in the applicant's proposed application before the primary judge appears to have been abandoned as it is not re-agitated in the written submissions before this Court. His Honour was also correct in his characterisation of this allegation as impermissibly seeking merits review. 63 The applicant' assertion in paragraph (a) of the particulars of Ground 1 of the application before this Court that the primary judge erred in law by not considering that there is strong merit in the grounds of the application such as to establish jurisdictional error is not established. 64 In paragraph (b) of the particulars of Ground 1. The applicant asserts that the primary judge "erroneously concluded that the grounds in the review application sought merits review." This assertion was not developed in written submissions. His Honour concluded that each of the three particulars of the applicant's proposed ground impermissibly sought merits review of the Tribunal's decision. His Honour was plainly correct in that assessment. Ground 2 65 The applicant claims in his second ground before this Court that the primary judge made an error of law by not recognising that the Tribunal "did not assess the Applicant's claims under s 36(2)(aa) of the Act." This ground is particularised. The first particular is that his Honour failed to recognise that the Tribunal "did not consider that as a perceived Catholic who has sought asylum in Australia, and as a person who was subjected to imprisonment and torture for 8 months, the Applicant faces a real risk of significant harm upon return". 66 In its reasons, the Tribunal referred to s 36(2)(aa) of the Act. The Tribunal then referred to its earlier finding that there was no real chance that the applicant would face persecution in Vietnam. The Tribunal concluded that it was "not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm." 67 The primary judge found that the Tribunal was alive to the requirements of s 36(2)(aa) and addressed them in the context of its factual and other findings. The matters which the applicant claims the Tribunal did not consider were in fact considered by the Tribunal in its discussion of the criteria under s 36(2)(a) and then relied upon by the Tribunal in its discussion of s 36(2)(aa). The applicant has therefore failed to demonstrate the error alleged in the first particular of Ground 2. 68 The second particular of Ground 2 is that his Honour "failed to recognise that the Tribunal made findings in relation to the complementary protection criterion based on evidence and findings considered in the context of Refugees Convention Claim, but made no attempt to distinguish the different tests posed by s 36(2)(a) and s 36(2)(aa) of the Act". 69 On a fair reading of the Tribunal's reasons there is no indication that the Tribunal failed to distinguish between ss 36(2)(a) and 36(2)(aa). Further, it is not correct to say that the Tribunal failed to consider the complementary protection criteria simply because it did not repeat the factual basis on which its conclusion was based. The Tribunal said that its conclusion was made on the basis of "the findings set out above". Whilst two distinct statutory provisions were identified and applied, the factual findings of the Tribunal were relevant with respect to both ss 36(2)(a) and 36(2)(aa). In particular, the Tribunal found, with respect to s 36(2)(a) of the Act, that there was no real chance that the applicant would face persecution if he were to return to Vietnam. This finding and the factual findings on which it was based informed the assessment, under s 36(2)(aa) of the Act, as to whether, as a necessary and foreseeable consequence of his return to Vietnam, there is a real risk that the applicant will suffer significant harm. 70 As to particular (c) of Ground 2, it is unclear what evidence and materials the applicant asserts were not considered by the Tribunal. On my reading, the Tribunal considered all of the applicant's claims and the evidence before it. The applicant's real complaint seems to be that the Tribunal should have assessed the material differently and made a different decision. That is an attempt at merits review, not an allegation of jurisdictional error. 71 For these reasons, the applicant has not established that primary judge committed any error of law in dismissing the applicant's application for an extension of time under s 477(2) of the Act. It follows that the primary judge has not committed any jurisdictional error. Therefore, the applicant's application must be dismissed with costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 24 March 2016