FEDERAL COURT OF AUSTRALIA

AJG15 v Minister for Immigration and Border Protection [2015] FCA 1311

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, to be taxed if not agreed.

3.    The name of the second respondent be amended to Administrative Appeals Tribunal.

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

REASONS FOR JUDGMENT

1    The applicant, a female citizen of Nepal, applies for an extension of time to appeal from a decision of the Federal Circuit Court of Australia dismissing her application for judicial review of a decision of the Refugee Review Tribunal refusing to grant a protection (class XA) visa under the Migration Act 1958 (Cth).

2    The applicant arrived in Australia from Nepal on 1 June 2008 on a student visa which was valid until 2 August 2010. On arrival in Australia, the applicant completed a Certificate IV in Business Administration and a Diploma in Business Management. At the time of the Tribunal’s decision, the applicant was enrolled in a Bachelor of Nursing degree, which commenced on 25 February 2013 and is due to be completed on 31 December 2015.

3    The applicant applied for a further stay student visa on 31 July 2010 and this application was refused on 3 September 2010. This refusal was affirmed by the Migration Review Tribunal on 28 March 2013, and the applicant’s two applications for ministerial intervention pursuant to s 351 of the Act were not considered.

4    The applicant applied for a protection visa on 13 December 2013. Her application was refused by a delegate of the Minister for Immigration and Border Protection on 2 May 2014.

5    On 9 March 2015, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a protection visa.

6    The applicant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, however on 10 July 2015 that Court held the Tribunal’s decision was not affected by jurisdictional error. See AJG15 v Minister for Immigration & Anor [2015] FCCA 1892.

7    On 5 August 2015, the applicant filed this application for an extension of time to file a notice of appeal from the Federal Circuit Court’s decision.

8    The question now before the Court involves consideration of both the applicant’s explanation for her delay in seeking to appeal and the merits of any appeal.

9    The applicant claims that her family in Nepal is from a particular social group which is very conservative and makes fun of those people who invest in education for their daughters, and says it is not socially acceptable for women in Nepal to be the focus of resources for the purpose of education. She says that if she returns to Nepal without completing her studies in Australia, her family will be socially ostracised and boycotted at social functions and she will have nothing to do and few prospects, noting she is what would be perceived as “past marriage age”.

10    Further, as a 28-year-old, single Nepalese woman, or as a Nepalese woman returning from overseas, the applicant says she would face societal discrimination and criticism in Nepal.

11    The applicant also claims that, if returned to Nepal, the armed revolutionary forces in Nepal (Maoists) would believe she has plenty of money because she has been living overseas and would ask for hefty donations. She claims that she will not have the money to pay donations and fears she will be abducted, harmed physically or even killed. Before the delegate, the applicant said her father had been approached with such demands since she had been in Australia and referred to other such approaches when she was in Nepal, but did not give details.

Tribunal’s decision

12    The Tribunal noted that during the hearing the applicant was candid to the extent of explaining her willingness to return to Nepal when finishing her studies, and that in doing so, she substantially retracted significant components of her claims relating to her actual fear of returning to Nepal following the completion of her studies. This, together with the significant delay in the applicant applying for a protection visa, caused the Tribunal to consider that a key motivation in the applicant’s protection visa claim was to extend her stay in Australia to be able to complete her studies. The Tribunal said this created an overall credibility issue with the applicant’s evidence.

13    First, in relation to the applicant’s claim she feared harm as a woman, returning to Nepal, without completing her studies, the Tribunal accepted that the applicant may experience emotional difficulties and difficulties in pursuing her career. It also accepted there may be some degree of social stigma towards her and her family. However, the Tribunal did not find any independent evidence to support the position that Nepalese students studying overseas, including Nepalese women studying overseas, face a real chance of serious harm as a result of returning to Nepal without completing their studies.

14    The Tribunal considered the applicant made no claim that she would have difficulties surviving or subsisting in Nepal because she had not completed her studies or as a single woman. In any event, the Tribunal noted the applicant is from a well-off family, is well-educated and speaks fluent English, which suggested the means to subsist in Nepal.

15    In relation to the applicant’s claims of fearing extortion by Maoists, the Tribunal considered the applicant’s evidence in this regard lacked detail and was not satisfied the applicant’s family had been forced to make donations in the past. Further, the Tribunal found the applicant did not have a subjective fear of returning to Nepal on this basis as she indicated to the Tribunal she intends to return to Nepal when she completes her studies.

16    With regard to the applicant’s claims on the basis of being a single woman, the Tribunal acknowledged that country information provided to the Tribunal made it clear that women have a subordinate status in Nepalese society, are subjected to state-based and systemic discrimination, experience unequal access to education and that violence against women remained a problem. However, the Tribunal found the applicant indicated she does not hold a subjective fear of harm in returning to Nepal as a single woman, and her intention is to do so when she completes her studies. The Tribunal considered that the applicant’s concern was with returning as a woman who had not completed her studies.

17    Therefore, the Tribunal was not satisfied the applicant had a well-founded fear of persecution in Nepal in the reasonably foreseeable future as a result of actions by Maoists, being perceived as wealthy, having lived overseas, being a single woman or for any other Convention reason. The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the Convention and found she did not satisfy the criterion set out in s 36(2)(a) of the Act (the Tribunal referred to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees).

18    Further, the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the alternative criterion in s 36(2)(aa) of the Act.

19    The Tribunal considered any personal difficulties or social stigma the applicant or her family would experience if she returned to Nepal without completing her studies would not rise to significant harm under the Act.

20    Having failed to be satisfied the applicant’s family or applicant had been subject to any actions by Maoists constituting significant harm, and given the lack of country information suggesting Nepalese returning from overseas are particularly targeted by Maoists for extortion, along with the fact the applicant did not have a subjective fear of harm from Maoists, the Tribunal was also not satisfied the Tribunal considered the applicant faced a real risk of significant harm from Maoists.

21    Lastly, the Tribunal was not satisfied the applicant had particular personal circumstances which would cause her to face a real risk of significant harm as a single woman returning to Nepal.

22    The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

Judicial review in the Federal circuit court of Australia

23    The primary judge delivered judgment ex tempore on 10 July 2015 and dismissed the application for judicial review.

24    The applicant relied on two grounds of judicial review before the Federal Circuit Court.

25    First, the applicant contended the Tribunal fell into jurisdictional error by failing to consider a relevant consideration. In the particulars to the ground, it was contended the Tribunal misunderstood the applicant’s claims by finding that she did not have a subjective fear of harm upon her return to Nepal. The applicant further alleged the Tribunal failed to consider the only reason she was less reluctant to return to Nepal after completing her degree was because it would aid her in relocating to a different area in Nepal, allowing her to flee her community and the Maoists, not because she did not have a subjective fear of harm after completing her degree.

26    In this regard, the primary judge accepted the Minister’s submission that the applicant’s claim she needed to flee her community was not a claim that fairly arose on the material before the Tribunal. His Honour found it was not an essential integer of the applicant’s claims that the Tribunal should have identified or addressed, and accepted that the Tribunal properly considered her claims and made adverse findings open on the material before it, including the applicant’s student visa history and unsuccessful application for a further stay student visa, and the Tribunal’s concerns as to the credibility of the applicant’s claims.

27    Secondly, the applicant alleged the Tribunal fell into jurisdictional error by failing to understand and consider the crux of the applicant’s claim. The applicant particularised that she would be able to return to Nepal only after completing her degree because after obtaining a Bachelor of Nursing she would be self-sustainable and would not need to rely on her family and community members for her livelihood.

28    The primary judge accepted the Minister’s submission the Tribunal had considered the applicant’s evidence she was completing a Bachelor of Nursing degree and concluded the applicant’s second ground of review before the Court below was, in substance, an impermissible merits review challenge and failed to identify jurisdictional error.

Application to this court

29    The applicant now applies, pursuant to R 36.05 of the Federal Court Rules 2011 (Cth), for an order that an extension of time be granted to the applicant to appeal the Federal Circuit Court’s decision.

30    Rule 36.03(a)(i) of the Rules provides that a notice of appeal must be filed within 21 days of the date on which the judgment appealed from was pronounced or the order was made. Following the primary judge’s judgment on 10 July 2015, the last day on which a notice of appeal could be filed within time fell on 31 July 2015. The applicant filed an application for an extension of time on 5 August 2015, and therefore requires an extension of time of five days.

31    Rule 1.39 of the Rules allows the Court to extend the time to file a notice of appeal before or after the time expires and whether or not an application for extension of time is made before the time expires.

32    In her affidavit dated 4 August 2015, the applicant appears to offer an explanation for the late filing of her appeal. She says she was given the wrong information regarding the “appeal due date” as she was told by one of her legal adviser’s assistants she had 28 days, or until 7 August 2015, to appeal.

33    She says she went to appeal to the Federal Court on 31 July 2015 – the last day for her to appeal within time, which she was not aware of at the time. She further states she was not informed of anything about the due date on 31 July and was “send back” due to “not enough document”.

34    In her affidavit dated 4 August 2015, the applicant further states that during the hearing in the Federal Circuit Court on 10 July 2015 she was present in court but was too sick with a bad cough and flu. She says she was continuously sick for a week after the hearing date, but does not have a medical certificate as she did not go to see a doctor. She says she took herbal homemade medication to treat herself at home and took a week’s rest, then after a week got better and went to get some legal advice from a lawyer.

35    The applicant also filed an affidavit dated 5 August 2015, which appears to have been filed in support of the applicant’s apparent claim she was too unwell following the hearing on 10 July 2015 to file a notice of appeal to this Court within time. The applicant produces an assessment form for her clinical placement in Family and Children’s Nursing, completed from 29 June to 10 July 2015 as part of her nursing degree. On page 2 of this form, her facilitator notes that “Renu has worked hard and continued to engage this placement, despite being unwell during the second week” (emphasis added).

36    In the draft notice of appeal attached to her affidavit dated 4 August 2015, the applicant sets out the following ground of appeal and particulars:

1.    His Honour misconstrued the Applicant’s claims by finding that the Applicant’s need to flee her community was not an essential integer of the Applicant’s claims.

Particulars

a.    His Honour at [20] accepted the First Respondent’s Submissions that the need to flee the Applicant’s community was not an essential integer of the Applicant’s claims that the Tribunal should have either identified or addressed.

b.    The Applicant clearly stressed at the Tribunal hearing that she feared returning to Nepal prior to completing her degree as she and possibly her family will be socially ostracised and suffer social stigma as found at [31-32] of the Tribunal’s Decision.

c.    This clearly suggests that she brought forth at the Tribunal hearing that she fears returning to Nepal prior to completing her studies as she would be ostracised and experience social stigma, it is clear that this would be perpetuated by her ‘community’.

d.    Her desire to complete her degree is directly linked to her desperation to flee her community and gain employment elsewhere. The Applicant wishes to be self­sustainable as she would not need to rely on or live in close proximity to her family and community members if she has a degree and can find a job elsewhere.

(As in original.)

37    The Minister filed written submissions on 10 November 2015.

38    The Minister submits that in determining the application for an extension of time, the Court is to have regard to the following factors:

(1)    whether the Court is satisfied that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;

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

(3)    the merits of the appeal.

39    The Minister refers to SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19], relying on Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; [1984] FCA 186.

40    The Minister does not point to any prejudice should the extension of time be granted in the present case.

41    However, with regard to the applicant’s explanation for the delay as set out in her affidavit dated 4 August 2015, the Minister contends that in the absence of evidence in the form of a medical certificate the Court should not accept that the applicant was so sick as to be unable to file a notice of appeal. Moreover, the Minister notes the applicant claims to have been sick for only one week, and says this cannot explain the delay in circumstances where the appeal period was three weeks.

42    With regard to the applicant’s evidence she “was told” that the appeal period was 28 days by an assistant of her legal advisor, the Minister notes that the applicant was self-represented before the Court below and has brought these proceedings without the assistance of a lawyer.

43    The Minister does accept that the delay is short, and that the Court would not treat such a short delay as an impediment to the grant of an extension of time, were the applicant’s proposed grounds sufficiently meritorious. The Minister directs the Court to, for example, WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9]; W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13]; WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385 at [30]; Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [14]; [2005] FCA 195.

44    However, the Minister contends that the extension of time should nonetheless be refused on the basis that the applicant’s proposed appeal lacks merit and enjoys no prospects of success. It is well established that an extension of time, even for a short period, may be refused if the appeal has no prospect of success. The Minister refers to SZRQA v Minister for Immigration & Border Protection [2013] FCA 962; SZQCZ; Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24].

45    The Minister notes the right to appeal from a decision of the Federal Circuit Court is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), and to succeed on appeal the applicant would have to demonstrate that the primary judge fell into error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Jessup J); SZRQA at [5]. In turn, the Minister notes the Court below could only disturb the Tribunal’s decision if that decision was affected by jurisdictional error under ss 474 and 476 of the Act: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. The Minister submits the primary judge correctly considered whether the Tribunal’s decision was affected by jurisdictional error, and found that it was not.

46    It is submitted the proposed ground of appeal continues to rely upon ground 1 pleaded in the Court below and that the applicant alleges that the primary judge erred in finding that the applicant’s need to flee her community was not a claim advanced before the Tribunal.

47    The Minister submits that the applicant claimed, before the Tribunal, that she feared harm in Nepal if she were to return before completing her studies, and the Tribunal considered and rejected this claim at [31]-[35] of its decision, noting at [31] the applicant’s evidence that she intended to return to Nepal once she completed her studies. It is submitted that the applicant articulated her claim that she feared returning to Nepal, even after completing her degree, in ground 1 as pleaded in the Court below, and to the extent the applicant is referring to a claim that she fears harm from Maoists even if she completes her degree, this claim was considered and rejected by the Tribunal at [49]-[53] of its decision.

48    The Minister says the applicant alleged, before the Court below, that the Tribunal should have considered that the only reason the applicant would return to Nepal after completing her degree was because her degree would enable her to relocate. In the Minister’s submission, the applicant did not advance such a claim before the Tribunal, and the Tribunal therefore cannot have fallen into error in failing to consider it. While the proposed ground of appeal asserts that this claim was advanced by the applicant at the Tribunal hearing, the Minister submits the Tribunal’s decision record does not record this claim being advanced by the applicant at the hearing, the decision record being the only evidence of what occurred at the Tribunal hearing.

49    It is therefore submitted by the Minister that the proposed appeal cannot succeed, and that it would be futile to grant an extension of time. The Minister seeks that the application for an extension of time be dismissed and the applicant be ordered to pay the Minister’s costs. The Minister also seeks an order that the name of the second respondent be amended to Administrative Appeals Tribunal.

50    On the Friday of the week immediately preceding the hearing of this application, the applicant emailed the Court seeking to adjourn the hearing of this application because she had a “clinical placement” to undertake in the course of her current studies in nursing. The Court indicated to the applicant that it would not adjourn the proceeding.

51    When the application was called on for hearing, while a few minutes late, the applicant appeared. She relied on the draft ground of appeal but was unable to contradict the Minister’s submission that her present claim, that she needed to flee her community if she returned before completing her present studies, was made in the Tribunal or was able to be reasonably drawn from the claims made.

52    As noted above, an applicant who seeks an extension of time to appeal, in circumstances such as these, must provide an acceptable explanation for their delay. Even where an acceptable explanation is provided and there is no prejudice to a respondent, a court will also consider the merits of the case before it.

53    In this case, while there is no apparent prejudice to the Minister if this application for extension was to be granted, the explanation for the initial failure to file a notice of appeal from the decision of the Court below is not entirely satisfactory. It is easy enough for an applicant to say they were given some wrong advice about the due date for filing an appeal, which is the essence of the applicant’s explanation. The fact is, as the Minister points out, the applicant was at material times self-represented and so the explanation that someone in a lawyer’s office told her something that led her astray as to the final date for filing an appeal tends to ring hollow. As does the implied suggestion that when she first attended the Federal Court to file documents, she should have been told her time had nearly run out.

54    Those issues aside, the matter the applicant wishes to argue on appeal has no merit. The draft notice of appeal contains one ground, as set out above, namely, that the judge in the Court below misconstrued her claims by finding that her need to flee her community was not an essential integer of her claims. This is the same ground that the applicant argued before the Court below by ground 1(b) in that proceeding.

55    In the particulars to the draft ground of appeal the applicant contends that she “clearly stressed” at the Tribunal hearing that she feared returning to Nepal prior to completing her degree as she and possibly her family would be socially ostracised and suffer social stigma of the kind referred to by the Tribunal in its reasons at [31]-[32]. She said it is clear that this would be perpetuated by her “community” and that her desire to complete her degree is directly linked to her desperation to flee her community and gain employment elsewhere. Further, she says that she wishes to be self-sustaining so she would not have to rely on or live in close proximity to her family which she would be able to do if she has a degree and can find a job elsewhere.

56    I accept the Minister’s submission, however, that the applicant did not advance any such claim before the Tribunal and that it is not recorded in the Tribunal’s decision record as having been advanced – the decision record being the only evidence of what occurred at the Tribunal hearing.

57    As noted above, the judge in the Federal Circuit Court accepted the Minister’s submission that the claim that the applicant advanced in ground 1(b) of the need to flee her community was not a claim raised on the material before the delegate or the Tribunal. The judge accepted the Minister’s submission that the alleged claim of a need to flee was not a claim that fairly arose on the material before the Tribunal. He found it was not an essential integer of the applicant’s claims that the Tribunal should have either identified or addressed and so there was no jurisdictional error by not addressing that claim.

58    The Tribunal’s record of decision, at [12], notes that the applicant provided a statutory declaration as part of her application for a protection visa, and outlines the relevant information that it contained. At [13], amongst other propositions, the applicant indicated that, if she were to return to Nepal without completing her studies, her family would be socially ostracised. As a result, she “needs to stay in Australia to complete her studies”. She also, at [14] of that decision record, is recorded as saying that the armed revolutionary forces might think she has plenty of money because she has been living overseas and she fears that she would be abducted, harmed physically or even killed.

59    Other fears were set out at [16], as well as the applicant’s statement that it was her intention, if she finished her nursing degree in Australia, to return to Nepal. The concern of the applicant there recorded is that if she returned from Australia without completing her studies she would have nothing to do and little prospects. She is also noted as stating that she was past marriage age, that she and her family may be ostracised because of her failure to complete her studies and that it is not socially acceptable for women to be the focus of resources for the purpose of education. At [18], the Tribunal further noted the applicant said she feared she would face societal discrimination due to her status as a 28-year-old unmarried single woman.

60    At [19], the Tribunal recorded the nature of the evidence given by the applicant at the hearing, in addition to what was in her written claims. It is recorded that at the interview with the delegate she said it was her intention to return to Nepal following the completion of her nursing studies. She confirmed that intention before the Tribunal. It is then recorded at [19] that:

The Tribunal asked the applicant what it was she feared about returning to Nepal before completing studies. The applicant indicated that it will be difficult for her mentally, and that it would be difficult for her family who have spent a lot of money on her education. People will ask about her studies and it will reflect badly that she has not completed them.

61    After dealing with some other aspects of her claims at [22], the Tribunal recorded that it had asked the applicant about her claim to fear harm in Nepal based on being a single woman. The Tribunal records that the applicant said that she did not have a difficulty with returning as a single woman, as such, but her real concern is returning without having completed her studies.

62    At [27], the Tribunal recorded, as noted above, that at the hearing the applicant was candid to the extent of explaining her willingness to return to Nepal when finishing her studies and that, in doing so, she substantially retracted significant components of her written claims and those made by her adviser relating to her actual fear of returning to Nepal following the completion of her studies. The Tribunal said that this, together with the significant delay in the applicant applying for the protection visa, caused the Tribunal to consider that a “key motivation” in her visa claim had been to extend her stay in Australia to be able to complete her studies. The Tribunal said this created an “overall credibility issue” with her evidence.

63    When one has regard to this material before the Tribunal and what the applicant said at the hearing in the Tribunal, as recorded by the Tribunal, the present ground of complaint, that the judge in the Court below misconstrued her claims by finding her need to flee her community was not an essential integer, cannot be sustained.

64    The Tribunal rejected the claims to do with Maoists. It rejected the claims based on social ostracism and social stigma. They were not accepted by the Tribunal. The particular in ground 1(d) of the draft ground of appeal, that her desire to complete her degree is “directly linked to her desperation to flee her community and gain employment elsewhere”, was plainly not raised in such terms or indeed at all in the Tribunal.

65    In my view, there is little doubt that the judge in the Court below did not misconstrue the applicant’s claims in the Tribunal by finding that her claimed need to flee her community was not an essential integer of her claims.

66    It is not open to the applicant to now attempt to reformulate the basis of her claim, having put it in one form which was rejected in the Tribunal and having failed, in the Court below, to point to any jurisdictional error by the Tribunal.

67    In all of these circumstances, no error in law by the Court below is identified, just as no error by the Tribunal before that is identified, and the applicant should not be given an extension of time to file an appeal relying solely on such a ground.

68    In these circumstances, the application should be dismissed with costs.

Conclusion and orders

69    The Court orders that:

(1)    The application be dismissed.

(2)    The applicant pay the costs of the first respondent, to be taxed if not agreed.

(3)    The name of the second respondent be amended to Administrative Appeals Tribunal.

Associate:

Dated:    24 November 2015