FEDERAL COURT OF AUSTRALIA

SZQHK v Minister for Immigration and Citizenship [2012] FCA 178

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    Leave to bring fresh grounds of appeal is refused.

2.    The application for an extension of time be dismissed.

3.    The applicant pay the costs of the first respondent.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BACKGROUND

1    This proceeding is an application for extension of time for the applicant to appeal from the judgment of the Federal Magistrates Court (SZQHK v Minister for Immigration and Anor [2011] FMCA 645).

2    The applicant is a citizen of Nepal who arrived in Australia on 2 March 2010. She entered Australia on a subclass 420 visa to work as an entertainer at the Adelaide Fringe Festival. On 2 March 2010 the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application on 9 February 2011. The applicant applied to the Refugee Review Tribunal which affirmed the decision of the delegate to refuse a protection visa. The applicant then applied to the Federal Magistrates Court seeking a judicial review of the decision of the Tribunal. The Court dismissed the application.

3    The task of the Federal Magistrates Court in dealing with the judicial review application brought by the applicant was restricted to a determination as to whether the Tribunal’s decision was affected by jurisdictional error: see s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Its task was to declare and enforce the law which determines the limit and governs the exercise of the Tribunal’s power. The Court had no jurisdiction to simply cure any administrative injustice or error by the Tribunal, or conduct a review of the merits of its findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 per Brennan J.

4    If time to appeal is extended, this Court’s task is to determine whether the judgment of the Federal Magistrate is affected by appealable error. Its review is restricted in its scope by the same considerations as applied in the Federal Magistrates Court.

5    For the reasons I set out below I have determined to dismiss the application. I have also ordered the applicant pay the respondent’s costs.

Procedural history

Application to Refugee Review Tribunal

6    On 1 March 2011 the applicant applied to the Tribunal to review the decision of the delegate not to grant her a protection visa. The applicant claimed that she was a married woman who was born in Nepal on 11 March 1976. She said that she had been educated for 10 years and that she had had a husband, and two teenage children who were still resident in Nepal. She claimed that together with her family she had moved to the city of Butwal in about 2001 to run a shop selling groceries and spices.

7    The applicant claimed that in 2005 the Maoists asked her husband to join them in their war against the monarchy. When her husband refused the Maoists commenced to threaten them and extort money and support from them. She claimed that until 2006 the extortion involved significant sums of money which had seriously damaged the viability of the business. After 2006 the applicant claimed that the extortion continued but smaller amounts were extorted. During 2006 she claimed that they were also forced to provide food and shelter for at least 10 Maoist groups.

8    The applicant claimed that the Maoists physically assaulted her on two occasions. The first assault in 2005 was described as relatively minor. She claimed that the second assault (“the main assault”), which happened on a later date about which her evidence was uncertain, involved 15 Maoists storming into her shop where she was alone, closing the shop, attacking and beating her, trying to rape her, then destroying the shop, looting money and throwing all of the goods into the street. She claimed that they complained to the police about this attack on several occasions, and the Maoists were arrested at one point but then released due to political and other pressure they applied.

9    The applicant claimed that the police failed to protect her and her family from the Maoists. She claimed that she and her family fled to Kathmandu about two weeks after the main assault. However, she said that the Maoists continued to look for them, and made threats against them through her relatives. As a result they were forced to move to another area of Kathmandu. The applicant then paid to join a theatre group that planned to perform at the Adelaide Fringe Festival. She travelled to Australia with that group, arriving on 2 March 2010.

10    The Tribunal had regard to a written statement of claims by the applicant, other evidence she supplied, an interview that she had with the Department, and the evidence she gave at a hearing before it on 10 May 2011. The Tribunal also had regard to independent country information which indicated that until a peace agreement in November 2006 Maoists regularly extorted money from businesses in Nepal. It accepted that prior to 2006 the applicant and her husband had experienced some harassment from the Maoist’s extortion efforts.

11    However, the Tribunal found that there were significant inconsistencies between her written statement of claims and evidence at the Tribunal hearing, vagueness in some aspects and implausibility in others. It made a series of findings adverse to her credibility and her claim of an entitlement to a protection visa. The findings included that the Tribunal:

(a)    did not accept that the physical assault by the Maoists in 2005 lasted more than a few minutes and found that it did not result in a serious injury to the applicant;

(b)    that the applicant was very vague in making the assertion at the hearing that she and her husband were forced to make donations to the Maoists after 2005;

(c)    did not accept her evidence that the applicant had been targeted for extortion after 2006;

(d)    did not accept that that the financial hardship arising from the extortion was such as to threaten her capacity to subsist;

(e)    found her very uncertain about the date of the main assault on her in Butwal;

(f)    did not accept that she was ever physically attacked by the Maoists as she claimed in the main assault;

(g)    found her very uncertain about when she left Butwal for Kathmandu;

(h)    found her vague in her account of the telephone calls from the Maoists seeking information about her whereabouts in Kathmandu;

(i)    found her vague about the nature of the threats allegedly made against her and her then husband by the Maoists after they moved to Kathmandu;

(j)    did not accept that threatening telephone calls were made by Maoists after she moved to Kathmandu;

(k)    she had given no plausible motive for any continuing interest in her by the Maoists;

(l)    that the chance that the Maoists would pursue her if she returned to Nepal was remote; and

(m)    was not satisfied the applicant had ever suffered harm at the hands of the Maoists sufficiently serious to amount to persecution.

12    The Tribunal was not satisfied that there was a real chance that the applicant would be seriously harmed in the foreseeable future by the Maoists if forced to return to Nepal. It was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Refugee Convention. On 11 May 2011 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

Application to the Federal Magistrates Court

13    On 3 June 2011 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. That application contained the following grounds:

1.    The Tribunal erred in law and in its jurisdiction when in considering the claim that the applicant be granted asylum it posed questions not within the applicant’s knowledge and then used the applicant’s answers to attack her credibility.

Particulars

At page 13 the applicant was asked why when she claimed 15 men had come to the shop to rape her but stopped at tearing her clothes and beat her instead.

2.    At page 15 the Tribunal found in any event the incident lasted only a few minutes and did not constitute persecution. This finding ignored the context in which it took place namely the continuing harassment for donations by the Maoist terrorists.

14    The application was heard by the Court (Scarlett FM) on 19 August 2011. The question set out in the particulars relates to questioning by the Tribunal about the main assault. It is not clear whether Scarlett FM had access to the transcript of the Tribunal hearing, but it was before me. The questions asked by the Tribunal are set out at [T-15] to [T-16] of the transcript as follows:

Applicant:    So on that day they came to our shop. My husband was not there. They were trying to take my husband in their party, but - and they asked us, "Why didn't you allow your husband to come to us," and they closed the shutter thing, and they started hitting me, they tried to rape me, they robbed the - they scattered the things all over the shop, and they broke the glasses and, yeaH, that's ---

…

Tribunal member:    How many people came to the shop?

Applicant:    15 people.

Tribunal member:    If 15 people had come to the shop and wanted to rape you, they would have raped you.

Applicant:    Yes, that's right. They did not. They hit me, and then I was cut like, I had a wound thing from the glasses, the broken glasses, and for up to half an hour they were inside. Other people were knocking at the shutter, but they didn't open it.

Tribunal member:    But, [Applicant] why are you saying they tried to rape you? They didn't. And there were 15 of them.

Applicant    Thank you. What I'm saying is, like they tore my clothes. I'm saying exactly what happened to me. They (indistinct) my clothes and that tore my close, but they did not rape me.

The Tribunal found the applicant’s account of the main assault “implausible”.

15    The applicant contended that the questions were improper as they were outside the applicant's knowledge because she could not possibly know why the Maoists did not carry out their threat to rape her. Scarlett FM was not satisfied that by asking these questions the Tribunal had asked an improper question.

16    The applicant also contended that it was clear from the evidence that the Maoist’s threat to rape her was not carried out by them because a number of her neighbours were banging on the shutters of her shop. She contended that this relevant evidence was ignored by the Tribunal. Scarlett FM was not satisfied that the Tribunal had ignored this evidence. His Honour noted that the applicant's credibility was a matter for the Tribunal alone to decide, and held that it is immaterial whether the Court might have come to a different conclusion on the evidence.

17    The applicant also contended that the Tribunal wrongly "downplayed" this incident. Scarlett FM considered this was an attempt to have him entertain a merits review of the Tribunal's decision. His Honour held that, provided that the Tribunal considered the relevant evidence about the main assault, it was entirely a matter for the Tribunal as to what weight it put on the applicant’s account.

18    On 1 September 2011 the learned Federal Magistrate determined that the applicant’s grounds did not reveal any jurisdictional error in the Tribunal decision, and dismissed the application.

Application to the Federal Court

19    On 13 October 2011 the applicant filed an application for extension of time within which to file a Notice of Appeal, attaching a draft Notice of Appeal setting out her proposed grounds of appeal.

Application for extension of time to appeal

20    Pursuant to r 36.03 of the Federal Court Rules any appeal from the judgment of the Federal Magistrates Court was required to be filed within 21 days after the judgment was pronounced or the order was made - that is by 22 September 2011. The applicant’s proposed appeal was not filed until 13 October 2011, which was three weeks late.

21    Therefore, before the applicant can advance any of her proposed grounds of appeal from the draft Notice of Appeal filed she must first obtain an extension of time in which to appeal. Rule 36.05(3)(c) requires that any application for extension of time be accompanied by an affidavit stating briefly but specifically the facts on which the application relies, and why the notice of appeal was not filed within time.

22    The applicant is required to make out a case sufficient to justify departure in the particular circumstances from the ordinary rule prescribing the period within which an appeal must be filed. The Full Court held in Jess v Scott 12 FCR 187 at 195 (“Jess v Scott”) that the Court’s power to extend time is:

…an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year, equally, it may be said, something much less significant might justify leave where a party is a few days late.

23    The Court has treated the factors set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen 3 FCR 344 at 348-9 (“Hunter Valley Developments Pty Ltd”) as the principles which should guide the Court in determining whether an extension of time should be granted: Franich v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCR 1362 at [20]; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17]; Sutera v Nelson [2011] FCA 1470 at [7].

24    These principles require that I consider the following factors:

(a)    satisfaction that it is proper to extend time, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay.

(b)    the merits of the appeal; and

(c)    any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension.

A.    Explanation for delay in appeal

25    I consider that the applicant has an acceptable explanation for her delay in seeking to file the appeal. On her evidence it arose primarily because of her solicitor’s failure rather than her own. This is of significance in the exercise of my discretion: see Gatti v Shoosmith [1939] Ch 841; Jess v Scott. The applicant’s English language difficulties are also relevant as it meant that any communication with her solicitor required her to obtain the assistance of her nephew to do so. Her likely lack of familiarity with Australian legal process by reason of her recent arrival and her language difficulties are also relevant as she may not have understood the importance of the time limits. I also consider significant the speed with which the applicant pursued her rights of appeal when she became aware of the decision of Scarlett FM. It indicates that had she been properly assisted by her solicitor, it is likely that any appeal would have been issued within time.

B.     Merits of the proposed appeal

26    It is established that the Court should not exercise its discretion to extend time to bring an appeal if an appeal has little prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J, and the cases there cited - Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19].

27    In this matter, the merits of the proposed appeal also fall to be considered in the context that the applicant requires leave to bring an appeal on the grounds proposed. Leave is required because, although the applicant’s proposed grounds of appeal are couched in terms of the failure of the Federal Magistrates Court to find jurisdictional error in the Tribunal decision, she concedes that most of the grounds were not raised before that Court.

28    In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6] the Full Court set out the proper approach to the exercise of power to allow grounds to be argued on appeal that were not argued before the primary judge. In reliance on the authorities there cited the Full Court noted that in a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal. In other cases, as in this matter, it will be for the Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided.

29    The Full Court observed in VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters.  The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.  Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 

Prospects of success of the first proposed ground of appeal

30    The applicant’s first proposed ground is that during the hearing the Tribunal failed to provide accurate information to the applicant as to how dates in the Nepali calendar, with which the applicant was familiar, corresponded with dates in the Western calendar. The applicant contends that the Tribunal provided incorrect approximations of corresponding dates in relation to dates which were central to the determination of whether she is a refugee, namely:

(a)    the date of the main assault;

(b)    the date on which she and her family left for Kathmandu after the main assault; and

(c)    how long she and her family lived in Kathmandu before she travelled to Australia.

The applicant contends that this was so confusing to her as to vitiate the decision making process.

31    It is plain from the transcript of the Tribunal hearing that that there was some confusion at the hearing as to the dates of the events relied on. The Tribunal member, the applicant and the interpreter each made errors as to dates using the Western calendar, and particularly in converting dates in the Nepali calendar to the corresponding date in the Western calendar. This appears to have confused the member and the applicant at different times.

32    The date of the main assault is important to the applicant’s contention that she faces a risk of serious harm in Nepal, as it was the worst assault that she alleges occurred to her. The date on which the applicant and her family left the city of Butwal for Kathmandu is also important, as on her evidence the occurrence of the main assault forced her and her family to leave Butwal 14 to 15 days later, after the perpetrators were released.

33    It is also clear that the uncertain evidence as to the dates of these events was of some significance in the Tribunal's decision. The Tribunal found at [47]:

The Tribunal had serious concerns about the applicant's credibility. There were significant inconsistencies between her written statement of claims and her evidence at the Tribunal hearing. She was very uncertain at her Tribunal hearing about when she left Butwal for Kathmandu (July 2009 in her statement, "more than 12 months" before she came to Australia in March 2010 at the hearing), about the date of the alleged attack on her in Butwal (11 July 2009 in her statement, 2007 or 2008 at her hearing)….

In relation to the dates of events the Tribunal also found at [49]:

Her account of the attack on her shop was implausible, as noted above, and unconvincing, particularly because she was unable at the hearing to say with any certainty when it took place. The Tribunal does not accept that the applicant was ever physically attacked by Maoists as she claimed.

34    The applicant contends that she became confused about these dates because the Tribunal put inaccurate dates to her. She contends that this caused her confusion leading to her giving uncertain evidence in relation to the dates of these events, and ultimately to adverse findings as to her credibility. The Minister rejects this and notes that the Tribunal gave the applicant several opportunities to clarify the dates on which these events occurred. The Minister also notes that the applicant said she understood the Western calendar.

35    Although some confusion as to the dates of events is evident from the transcript, in my view it was at the margins and not so significant as to vitiate the Tribunal's findings. In particular, when she was using the Nepali calendar the applicant was not apparently confused about dates. Using the Nepali calendar, in her statement, her departmental interview and before the Tribunal she gave clear evidence about the date of the main assault and the date upon which she and her family left Butwal for Kathmandu. However, whilst clear, when the evidence is compared it is inconsistent. This inconsistency was unrelated to the confusion at the hearing about the correct conversion of Nepali dates to Western dates and the use of incorrect Western dates.

36    In a signed and detailed statement of claims dated 1 April 2010 the applicant stated that the main assault occurred on the Nepali date - 27/03/2066. Utilising the internet based Nepali/Western calendar converter relied on by the applicant at the hearing, the corresponding date in the Western calendar is 11 July 2009. The applicant stated and reiterated that she and her family left Butwal for Kathmandu very shortly after the main assault. She stated that they left Butwal for Kathmandu on 12/04/2066 (Nepali calendar) which is 27 July 2009 (Western calendar). The statement made clear that they then lived in Kathmandu until she came to Australia in early March 2010.

37    In an interview with the Department on 8 September 2010 the applicant again stated that the main assault occurred on 11 July 2009, stating its date again as 27/03/2066 (Nepali calendar). The applicant claimed that this assault occurred while she and her family were living in Butwal and running their shop. She again stated that she and her family left Butwal for Kathmandu 10 to 15 days after the main assault.

38    However, the applicant also stated in the interview that she and her family lived in Kathmandu for two or three years before coming to Australia. Given that she had come to Australia in March 2010, this put the time period over which she and her family were living in Kathmandu as from between about March 2007 to March 2008 through to March 2010. The applicant’s statement and interview were plainly inconsistent in relation to the date that the main assault occurred, and the time period over which she and her family lived in Kathmandu. The delegate noted the applicant’s contradictory testimony in this regard, which was one of the matters underpinning a finding that the delegate had serious concerns as to her credibility.

39    In the hearing before the Tribunal the applicant gave different evidence again as to the date of the main assault and the period over which she and her family lived in Kathmandu. She gave evidence that she and her family had lived in Kathmandu for more than 12 but less than 18 months prior to her travelling to Australia. This meant that the period over which she lived in Kathmandu was from between about September 2008 to March 2009 through to March 2010. By way of an explanation she said that she had panicked when questioned at the interview about how long she lived in Kathmandu and given a wrong answer.

40    The applicant also gave a new date for the main assault, although she did not seek to explain this inconsistency. She stated that it occurred on 27/03/2065 (Nepali calendar) [T-14]. She reiterated this Nepali date in response to further questioning [T-17]. The corresponding Western date is 11 July 2008, a year earlier than she had said in her written statement and in her interview. While the transcript shows that either the applicant or the interpreter then wrongly converted this Nepali date - describing it as around 2007 - the applicant was nonetheless clear about the Nepali date. The applicant stated that she and her family moved to Kathmandu shortly after the new date upon which she claimed the main assault occurred - namely on 12/04/2065 (Nepali calendar) [T-13]. The corresponding Western date is 27 July 2008.

41    This evidence was inconsistent with the date of the main assault given in her written statement and in her interview with the Department. The Tribunal found that:

She was very uncertain at her Tribunal hearing…about the date of the alleged attack on her in Butwal (11 July 2009 in her statement, 2007 or 2008 at her hearing).

While the Tribunal was wrong in concluding that the applicant had also offered a date in 2007, this is not an error of significance to the finding because of the other inconsistencies. This inconsistent evidence did not arise from any failure by the Tribunal to accurately translate Nepali dates to Western dates. In fact, the confusion about even the 2007 date arose from an incorrect conversion from the Nepali date to its Western equivalent by the applicant or her interpreter [T-14].

42    The Tribunal also found that the applicant was very uncertain:

……about when she left Butwal for Kathmandu (July 2009 in her statement, “more than 12 months” before she came to Australia in March 2010 at the hearing).

This finding too was not based in any misunderstanding by the applicant as to the translation of Nepali dates at the hearing. In her statement and interview the applicant said that she left Butwal on the Nepali date corresponding to 11 July 2009, yet in her evidence at the hearing she said that she left on the Nepali date corresponding to 11 July 2008. At the hearing she also stated that she lived in Kathmandu for a period of more than 12 months but less than 18 months. This put her date of departure from Butwal at around September 2008 to March 2009. This new evidence that she left Butwal at least two months later than July 2008 was inconsistent with the evidence in her statement, at the interview and at the hearing that she left that city within about two weeks of the main assault.

43    Another difficulty for the applicant in relation to this ground of appeal is establishing that any confusion as to dates is so central to the Tribunal’s decision that it is vitiated for jurisdictional error.

44    In my view, the Tribunal’s adverse findings as to her credibility were not based only on her uncertainty about these important dates. The Tribunal found at [47]:

… [the applicant was] very vague about the nature of the threats allegedly made against her and her then husband by the Maoists after they went to Kathmandu. Some parts of the history in Nepal appeared at her hearing to have been learned by rote, even when lacking in plausibility. For example she stated that some 15 persons came to her shop when she was alone and tried to rape her. When she was challenged at the hearing about the fact that 15 men would in fact have raped her, a woman alone in her shop, if they had intended to do so, she merely said that they beat her, tore her clothes and locked her shop for half an hour, as she claimed in her statement. The applicant gave vague information about the identities of the persons who harassed and extorted her and her family, beyond claiming in a general way that they were Maoists. The applicant said at the hearing that she had little interest in or knowledge of politics, and gave no other reason for the interest of the Maoists in her and her family then their interest in extorting money from the business and in recruiting her husband to join them. They do not appear to have done her husband any harm when he refused to join them, according to her account.

45    At [50] the Tribunal rejected the applicant’s evidence that she was threatened by Maoists after she moved to Kathmandu. The Tribunal considered that the applicant was vague in her account of telephone calls from the Maoists seeking information as to her whereabouts. The Tribunal also relied on the fact that the applicant did not claim to have ever been confronted by Maoists in person whilst in Kathmandu even though she was living with her sister who was known to them.

46    Because the applicant gave inconsistent evidence about important dates unrelated to any confusion created in the hearing, and also because the adverse credibility findings were not based solely on her uncertainty about these dates, I do not consider that the applicant has a reasonable prospect of establishing that the Tribunal decision is vitiated by jurisdictional error.

Prospects of success of the second proposed ground of appeal

47    Under this proposed ground the applicant contends that in finding that the applicant’s story about the main assault was "implausible" the Tribunal failed to consider relevant evidence. She contends that the Tribunal did not consider the evidence of the applicant that at the time that 15 Maoists were in her shop, she was screaming and there were people outside noisily banging on the shop’s shutters, evidently trying to protect her by signalling their presence. This proposed ground of appeal is not new, being similar to the ground considered by Scarlett FM.

48    I can discern no appealable error in the decision of Scarlett FM to reject this ground. While the Tribunal did not expressly refer to this evidence in its findings, it referred to it when summarising the applicant’s statement of claims and evidence. The Tribunal is not required to refer to every piece of evidence or contention. The inference that the Tribunal has failed to consider an issue is not too readily to be drawn where, as in this case, the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]; Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [24] (“MZYHS”)

49    In MZYHS, Kenny J set out and cited the authority for the related propositions that the weight to be given evidence is a matter for the decision maker and a wrong finding of fact does not of itself give rise to jurisdictional error. Her Honour noted that adverse credibility findings are matters which fall squarely within the Tribunal’s jurisdiction and are not ordinarily open to challenge in a judicial review application: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 at [67] per McHugh J (“Durairajasingham”).

50    I consider that this proposed ground of appeal has no reasonable prospect of success.

Prospects of success of the third proposed ground of appeal

51    Under this ground the applicant contends that the Tribunal failed to consider whether there was a real chance that the applicant would be persecuted by reason of imputed political opinion if forced to return to Nepal. The imputed political opinion that she contends for is that she was anti-Maoist by reason of her having reported to the police on several occasions the robberies and assaults of the Maoists, causing some Maoists to be jailed for a period.

52    This proposed ground of appeal is misconceived. The claim that the applicant was being persecuted for an imputed political opinion, namely that she and her family were anti-Maoist, was central in the applicant’s claims. The delegate of the Minister found that "the Convention ground of imputed political opinion is the essential and significant reason for the harm feared" by the applicant (CB 80). This finding was not challenged by the Tribunal.

53    The thrust of the Tribunal’s decision was not that the alleged persecution occurred for reasons other than this imputed political opinion, but rather that there was no persecution of the applicant. The Tribunal rejected the applicant's account of the alleged persecution, and found that there was therefore no basis for fear of future persecution.

54    The applicant has no reasonable prospect of success on this ground.

Prospects of success of the fourth proposed ground of appeal

55    Under this ground the applicant contends that the applicant was a small businesswoman who would need to support herself as such if forced to return to Nepal. She contends that the Tribunal failed to consider whether she would have to return to being a small businesswoman, and therefore face a real chance of further harassment, threats and extortion.

56    The contention relates to the Tribunal’s finding that the applicant "no longer has a business, and is unlikely to attract adverse attention for this reason." The applicant contends that as she was a small businesswoman in the past - and the Tribunal found that she had previously demonstrated herself to be resourceful in that regard - the Tribunal’s assessment of the risk of persecution should have been performed on a basis that included the applicant returning to work in such a business.

57    The Minister contends in response that the applicant failed to expressly articulate the claim that she would return to running a business if forced to return to Nepal. He contends that it was for the applicant to present arguments and make submissions in support of her case, and if she considered that she would have to return as a businesswoman, to give that evidence: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576, [187]. The Minister also contends that this is not the type of case identified in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] (“SZIAI”) as one concerning:

(a)    a failure by the Tribunal to make an obvious enquiry;

(b)    the existence of which is easily ascertained;

(c)    which is about a critical factor in the review; and

(d)    which could supply a sufficient link to the outcome to constitute a failure to review.

58    In my view the inquiry as to how the applicant would support herself and her family should she be forced to return to Nepal was an obvious one, and the applicant's intentions could have easily been ascertained by appropriate questioning. Further, I consider that the finding by the Tribunal that the applicant no longer had a business was not based in the evidence. The only evidence before the Tribunal was that the applicant still owned the shop premises in Butwal which she had rented out. The Tribunal found her a resourceful businesswoman and it was clearly possible, even likely, that she might return to running that or another business if forced to return to Nepal. The Tribunal should have conducted its assessment on a basis that included that she might run a small business if she returned to Nepal.

59    However, this error by the Tribunal did not affect the outcome of the review. The Tribunal’s findings included that;

(a)    no money had been extorted from the applicant since 2005;

(b)    she was not physically assaulted and robbed as she described;

(c)    she was never physically assaulted by the Maoists; and

(d)    the chance that the Maoists would continue to pursue her for police reports she made against them in 2008 and 2009 was at best remote.

Given these findings, whether the applicant returned to Nepal as a businesswoman or in some other capacity was not a critical factor with a sufficient link to the outcome to constitute a failure by the Tribunal to undertake its statutory duty. Any failure by the Tribunal was not so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error: SZIAI at [26].

60    This ground of appeal has no reasonable prospect of success.

Prospects of success of the fifth proposed ground of appeal

61    Under this ground the applicant contends that the Tribunal failed to consider whether, cumulatively, that the applicant:

(a)    had been attacked, robbed and suffered extortion;

(b)    had an imputed political opinion that she was anti-Maoist arising from several reports of assault and robbery by Maoists to the police;

(c)    would need to return to business to support herself; and

(d)    is a woman on her own with children to support;

meant that there was a real chance that she would be persecuted if forced to return to Nepal.

62    In my view this ground too has no reasonable prospect of success because:

(a)    the factual basis of sub-ground (a) was considered by the Tribunal. It found, amongst other things, that the applicant had not in the past suffered harm or physical harassment sufficiently serious as to amount to persecution. It was not satisfied that there is a real chance that she will be seriously harmed in the foreseeable future if she returns to Nepal.

(b)    sub-ground (b) is misconceived as set out at [52] to [55].

(c)    in relation to sub-ground (c), as I set out at [56] to [61] the Tribunal was not required to inquire as to this.

(d)    in relation to sub-ground (d), the fact that the applicant would be a woman on her own with children to support was considered by the Tribunal. It was satisfied that her large family would provide her with the protection and support she needed to subsist in Nepal, and that she was resourceful.

I also do not accept that the Tribunal did not consider these matters cumulatively.

Prospects of success of the sixth proposed ground of appeal

63    Under this ground the applicant contends that the Tribunal failed to discharge its obligations pursuant to s 424AA(b)(i) and (ii) of the Migration Act 1958 (Cth). The Tribunal provided "country information" to the applicant, including information to the effect that there was very little information that the Maoists were extorting money from people after the end of the People’s War in 2006, and information from the US State Department regarding Nepal. The applicant contends that in doing so, in breach of its obligations under the provisions set out, the Tribunal failed to ensure that the applicant understood why the information is relevant to the interview, and the consequence of the information being relied on.

64    In argument, Counsel for the applicant accepted that I am bound by the decision of the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 416 [2] per Moore J, with whom Tracey and Foster JJ agreed. The Full Court held that s 424AA is not intended to create a duty to take particular steps independently of the existence of a duty under s 424A. This ground too has no reasonable prospect of success.

C.    Explanation for the failure to previously raise the new grounds

65    The next factor for consideration in relation to leave to appeal is whether there is an acceptable explanation as to why the new grounds were not raised in the Federal Magistrates Court. The applicant says that the new grounds were not raised because she now has different legal representation to the representation she had before that Court. In my view this is not an adequate explanation. If the applicant had not been legally represented before the court below the Court might more readily exercise its power to allow new grounds of appeal, but a simple change in legal representation is not a sufficient explanation. In my view, the integrity of the appellate process would be impaired if this reason alone was treated as sufficient.

66    The applicant also contends that some important matters of principle regarding the disposition of proceedings by the Tribunal, which are relevant not only to this matter, are raised in the new grounds. I am not persuaded that this is the case.

D.    Prejudice

67    The Minister did not contend that there was any prejudice to him in granting an extension of time to file the appeal, or in allowing the applicant to raise new grounds in the appeal. However, the mere absence of prejudice is not enough to justify the grant of an extension of time or a grant of leave to raise new grounds: Hunter Valley Developments at 349.

E.    The consequences to the applicant if leave to bring new grounds is refused

68    If leave to bring new grounds of appeal is refused the consequences to the applicant can be said to be serious if the proposed grounds have merit. As I found that the proposed grounds have little merit no serious consequences to the applicant arise from any refusal of leave.

Conclusion

69    Because the proposed new grounds of appeal have little merit and the explanation for the failure to bring these grounds in the Court below was inadequate, I refuse leave to bring the new grounds of appeal. As was noted in Coulton v Holcombe (1986) 162 CLR 1, in a joint judgment by Gibbs CJ, Wilson, Brennan and Dawson JJ at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

Insofar as the proposed grounds of appeal are not new, because they have little merit I dismiss the application to extend time within which to bring the appeal. I order the applicant to pay the costs of the Minister.

Associate:

Dated:    2 March 2012