FEDERAL COURT OF AUSTRALIA

DYQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    The applicant’s application for an extension of time within which to file an appeal is dismissed.

3.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

Background

1    The applicant seeks an order for the extension of time within which to appeal against a judgment of the Federal Circuit Court of Australia (the “FCCA”). The judgment in question (the “FCCA Judgment”) concerned an application (the “Judicial Review Application”) for judicial review of—that is to say, for prerogative relief directed at—a decision of the second respondent (the “Tribunal”) that affirmed an earlier decision, made by a delegate of the first respondent (the “Minister”), to refuse an application that the applicant made under the Migration Act 1958 (Cth) (the “Act”) for a protection visa (the “Visa Application”).

2    Subsections 36(2)(a) and (2)(aa) of the Act collectively prescribe two alternative criteria (amongst others) that an applicant must satisfy in order to qualify for a protection visa. The first, for which s 36(2)(a) provides, is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations (as defined) because the person is a refugee (as defined). The second, to which s 36(2)(aa) gives voice, is that the applicant is a non-citizen in Australia who, although not a refugee, is nonetheless a person in respect of whom the Minister is satisfied that Australia has protection obligations on account of there existing substantial grounds for believing that, if removed from Australia, there is a real risk that they will suffer significant harm. The latter are typically referred to as obligations of “complementary protection”. “Significant harm” is defined to include arbitrary deprivation of life, subjection to torture, and subjection to cruel or inhuman treatment.

3    The applicant is a citizen of Nepal. He arrived in Australia more than ten years ago on a student visa. He made his Visa Application on 3 September 2014. A delegate of the Minister dismissed it on 14 April 2015 (the “Delegate’s Decision”). On 1 May 2015, the applicant applied to the Tribunal for a review of that decision. He gave evidence and presented submissions at a hearing before the Tribunal on 23 September 2016. On 18 November 2016, the Tribunal affirmed the Delegate’s Decision (that affirmation is referred to, hereafter as the “Tribunal’s Decision”).

4    In support of his Visa Application (both at first instance and before the Tribunal), the applicant advanced a number of reasons why he could not safely return to Nepal. He explained that he was a supporter of the monarchy and was opposed to Nepal’s Maoist political forces. The Maoists, he said, subjected him to extortion, which forced him to relocate from his home village of Ballachu, in the Okhaldhunga District, to the country’s capital, Kathmandu. There, he continued to experience a degree of extortion, which ultimately led him to flee the country. He said that, if returned to Nepal, he would be subjected to harm or persecution in the following forms, namely:

(1)    he would be extorted or killed by Maoists because of his support for the monarchy;

(2)    he would be prevented from practicing Christianity, to which he had converted whilst in Australia (or, perhaps, shortly before leaving Nepal);

(3)    as a member of the Tamang ethnic group, he would be subjected to suppression by higher castes and, thereby, would not be able to live peacefully or freely; and

(4)    his ex-wife’s mother would arrange to have his hands cut off because he had divorced her daughter.

5    In rejecting the applicant’s Visa Application, the Tribunal made a number of relevant findings, including (references omitted):

16.    I did not find the applicant to be a credible witness. He was at times evasive, he made a number of significant claims at the hearing which were not mentioned in his statutory declaration, and there were some substantial inconsistencies between his testimony and statutory declaration. Further, the credibility of his claims is undermined by his significant delay in applying for the protection visa. I elaborate below.

17.    The applicant testified at the hearing that even though he, his parents and siblings were all supporters of the monarchy, it was only he who was targeted for that reason because, unlike his parents and siblings, he spoke out about his support for the monarchy. Specifically, he said that while his parents and siblings quietly voted for the king he encouraged others to vote for the monarchy at elections. He claimed that because of his outspoken support from the monarchy, he would have problems with Maoists as well as his cousins in the village (who supported the Maoists) if he returned to Nepal. He said he would be killed if he was caught. Yet the claim that he would [be] targeted by his cousins in the village and the Maoists because he spoke out in support of the monarchy particularly at election time, was not included in his statutory declaration. What he did indicate in his statutory declaration was that he and his family had believed in the monarchy for generations, they opposed what the Maoists wanted to do and so the Maoists were against them. If it were true that the applicant was, as he said at the hearing, the ‘main target’ of the Maoists because of his outspoken support for the monarchy…then I expect the applicant would have made that claim in his statutory declaration.

18.     In relation to why the claim was not made in his statutory declaration if it were true, the applicant indicated that the migration agent who assisted him only included the main points in the statutory declaration because the agent had limited time and it would have cost more for the agent to do more. I do not accept this explanation. Firstly, the claim was not a minor one. The applicant claimed that he faces being specifically targeted and killed if he returns to Nepal because he spoke out in support of the monarchy. If the migration agent could only include the applicant’s main claims, then I expect a claim that the applicant would be targeted for the applicant’s particular conduct in the past and could be killed for that reason in the future would be included in the statutory declaration. Secondly, the applicant only made the claim that he was and would be a particular target because he spoke up in support of the monarchy at elections, when I questioned why he would be killed for supporting the monarchy given his parents and siblings had continued to live in the village since his departure from Nepal which suggested they did not face harm for their pro-monarchy views. It was only in response to that potentially adverse inference being drawn that the applicant made the claim to explain why he and not his family were targets. This suggests that the applicant invented the claim at the hearing to overcome an adverse conclusion being drawn from the fact that his family had not been harmed for their support for the monarchy since the applicant left Nepal about 7 years ago.

19.     After dealing with the applicant’s claims about the Maoists, I asked whether anyone else would harm him for any reasons other than his pro-monarchy opinion if he returned to Nepal. He replied that while the Maoists were his main problem another big issue was that his ex-wife’s mother, who was also his paternal aunt, would literally have his hands cut off because he divorced her daughter. This claim was not made in his statutory declaration. Once again, his explanation for not making the claim in his statutory declaration was that his agent told him to only tell him the main points and the cost. He also added that the agent did not have a lot of time and so he did not mention the claim to the agent. I do not accept the applicant’s explanation. His statutory declaration included claims of less serious harm such as discrimination due to his ethnicity. Thus, I do not find it credible that if the applicant genuinely believed that his aunt would arrange to have an act as brutal as having his hands cut off, that he would not consider that important enough to mention to his agent.

20.     When asked about other harm he would face on return, the applicant made no mention of the other harm he did mention in his statutory declaration such as those related to the religion and ethnicity. If the claims made in the statutory declaration concerning his religion and ethnicity were true then I expect he would have mentioned those particularly as he testified that he only told his agent the main points he wanted included in his statutory declaration. When I queried his failure to mention those claims at hearing, the applicant said he did not mention them because he thought I would ask about those claims. I do not accept that explanation because he made the claim that his hands would be cut off without me specifically asking about any such claim. It seemed to me that he invented the explanation to avoid an adverse inference being drawn about his failure to mention the claims about his religion and ethnicity.

21.     The applicant’s testimony about his religious claims was evasive and contradicted his statutory declaration. According to his statutory declaration he attended a church in Strathfield and hoped to be baptised soon. He said he was ‘fully in to (sic) Christianity and will not be able to live without Christianity’ and that ‘being a Christian and living in Nepal is just not possible’. At the hearing I noted that he claimed to be a Christian and could not live as a Christian in Nepal and asked him to be specific about the future serious or significant harm he would face as a Christian. His reply was very general. For example, he spoke about society looking at those who converted to Christianity with a different eye and of the Maoists being aware that he had converted which would create problems for him. He said he read about bomb blasts in churches and referred to making a comment online about religious freedom in which he referred to his conversion to Christianity. The rather rambling and general reply left the impression that…the applicant was being intentionally evasive. When I questioned him about the newspaper comment he referred to, his response seemed rehearsed. Further, it took much questioning to elicit when he became a Christian. His initial response was that he became interested in Christianity in Nepal but it was not clear that he became a Christian in Nepal. Asked again, he said he was not baptised due to language difficulties and mentioned attending a church in Darlinghurst. Further attempts to elicit a clear answer, resulted in a long and convoluted response which did not clearly indicate when the applicant became a Christian. Eventually he indicated that he had believed in Christianity in Nepal. The question was a simple one yet I felt that the applicant avoided giving a clear and direct response.

22.    More significantly, there were substantial discrepancies between the applicant’s testimony and written claims about his religious activity in Australia. He testified that he attended a Nepali church in Strathfield in 2014 but only on three occasions because no one talked to him or explained the Bible to him and the people cried and praye[d]; he believed religion was not about crying but peace. He said that since Easter 2015 he had regularly attended a church in Darlinghurst even though the services there were conducted in English and it was difficult for him to understand. He had stopped attending that church’s Bible studies because they were in English. In contrast to this testimony, the applicant stated in his statutory declaration that he had been attending church in Strathfield since he had arrived in Australia and had started Bible study as well. He said that he hoped to be baptised soon and that the church was making arrangements for it. In response to these inconsistencies, the applicant told me that what was in the statutory declaration was what he had told his agent based on what he expected would happen. He said that at the time he made the statutory declaration he had attended the Strathfield church and thought he would continue. I do not accept that explanation. While the written statement that he hoped to be baptised soon is an expression of a future hope, the statements that he had…been attending the Strathfield church since he had arrived in Australia which was in 2009, had started Bible study and that the church was making arrangements for his baptism were not statements which indicated his future expectations.

23.    Finally, the applicant applied for the protection visa application more than 5 years after he arrived in Australia. If the applicant genuinely feared being seriously or significantly harmed in Nepal as he claims, then I expect he would have applied for protection much sooner. I expect he would have applied at least three years ago when he and his ex-wife divorced and thus, as he was no longer her dependent spouse, he faced return to Nepal. In relation to the delay, the applicant gave a rambling reply. He indicated that when he returned from a trip to Nepal in either 2010 or 2011, he discovered that his ex-wife had had an affair. He said she had all the documents they had from Nepal. He mentioned realising he was not in Australia legally and crying [sic] for six to seven months before meeting a friend who suggested that he apply for protection. He then asked that his wife return his passport and began the process when he received his passport. I do not find it credible that the applicant would not have made inquiries about seeking protection or would not have requested his passport from his ex-wife sooner if he genuinely feared serious or significant harm in Nepal.

Country of reference

24.     The applicant has consistently claimed that he is a national of Nepal and no other country. I sighted his Nepalese passport at the hearing and he testified in the Nepali language. There is no evidence before me to suggest that the applicant is a national of any country other than Nepal. I thus find that the applicant is a national of Nepal and have assessed his claims in relation to Nepal.

Pro-monarchy, Maoist and extortion claims

25.     The applicant has consistently claimed that he and his immediate family are supporters of the monarchy in Nepal. He testified that he will always support the monarchy in Nepal. Even though there is no longer a ruling monarchy in Nepal there is still support for the restoration of the monarchy. I thus accept that the applicant and his family were and are supporters of the monarchy and that he will continue to be a supporter of the monarchy in the future.

26.     At the hearing the applicant stated that he was never a member of any political party but that at election time he supported whatever party supported the monarchy. However, he said he would not support any such party in the future because the king is no longer in authority in Nepal. It is plausible and thus I accept that as a supporter of the monarchy he supported a pro-monarchy party or parties at election time in the past. I do not however accept that he was outspoken about his support for the monarchy at the time of elections and thus came to the particular attention of Maoists as he claimed at the hearing. For the reasons I have given above I believe that claim was invented by the applicant at the hearing.

27.     During the civil war one of the ultimate goals of the Maoists was the establishment of a republic and a main source of funds for the Maoists during the civil war was extortion. Thus, it is plausible and I accept that the applicant and his family experienced some opposition from the Maoists in the past and that the applicant was subject to some extortion by the Maoists in the past particularly during the civil war.

28.     However, as I put to the applicant at the hearing, the information in the sources I have consulted indicates that the situation has changed significantly in Nepal since the end of the civil war. As a result, Nepal’s political environment is one in which there are many diverse political parties and views, and generally individuals can be members of a party, be politically active and express political opinions. Maoist parties are now involved in the political process and pro-monarchy parties hold seats in the constituent assembly. The information indicates to me that the targeting of individuals or members of political parties who are not supporters of the Maoists including pro-monarchists has dramatically decreased since the end of the civil war and since the first constituent assembly was elected in 2008. I put to the applicant that there thus did not seem to be a real chance that he would be seriously harmed or significantly harmed by Maoists or anyone for reasons of his pro-monarchy political opinion, his opposition to Maoists or his prior support for any pro-monarchy party. In response, the applicant stated that the written information before me did not reflect reality. He indicated that the Maoists continued to do what they did in the past and as they were now in authority they were more powerful than they were before.

29.     I also put to the applicant that the information in the sources I consulted indicated that extortion by Maoists had significantly declined since the civil war, and that the targets of extortion were now mainly business people and for the purpose of financial gain rather than to intimidate political opponents. I put to the applicant that there thus did not seem to be a real chance that he would be extorted by Maoists in the future. The applicant replied that he had seen Maoists threaten, extort and rape people and this had continued in his village.

30.     I prefer the evidence in the sources I have consulted to the applicant’s evidence about the situation in Nepal since the end of the civil war. On the basis of the information in the sources I have consulted, I find that even though the applicant was extorted and had problems with Maoists in the past, there is not a real chance that he will be extorted or subjected to harm amounting to serious harm or significant harm in the reasonably foreseeable future by Maoists, his cousins or anyone else for any reason.

Religious claims

31.     In response to the question on the protection visa application which asked about the applicant’s religion, the applicant said he was Hindu. I queried this at the hearing given his claimed conversion to Christianity. He said he believed the question related to his previous religion. I then noted that according to sources I had consulted the Tamang people tended to be Buddhists rather than Hindu. The applicant said they were said to be Buddhist but as there was no monk in his village they used the priest in the temple to perform their rituals. He said that whilst they used the ‘Hindu tag’, he did not really know about Hinduism and did not perform any of its rituals. I suggested that the applicant had not actively practised his previous religion. He replied, ‘not in a real sense’ and that he sometimes went to temple and worshipped. It is plausible and thus I accept that the applicant engaged in some religious practice in the past as he has claimed. He has not claimed nor does the evidence before me indicate that there is a real chance that he will face serious or significant harm for that past religious practice or if he resumes that religious practice in the future in Nepal.

32.     Regarding the applicant’s claims about Christianity, his overall lack of credibility and the particularly flawed nature of his evidence about his Christian claims had led me to reject those claims. Specifically, I do not accept that the applicant developed an interest in Christianity, read any Christian publications, attended a church or engaged in any other Christian related activity in Nepal. Nor do I accept that he has attended any church or Bible study in Australia, or that he wrote an online comment about religious freedom in which he indicated he had converted to Christianity. I do not accept that the applicant became a Christian either in Nepal or in Australia, or that he has ever had any genuine interest in Christianity. I thus find that the applicant will not nor does he want to engage in any kind of Christian religious practice or activity if he returns to Nepal. I therefore find that the applicant will not be subjected to or suffer any harm in Nepal because he has or would be perceived to have converted to Christianity, or for any religious practice, conduct or activity related to Christianity.

Claims relating to Tamang ethnicity

33.     From my experience with other Nepali applicants it is not uncommon for Nepali surnames to reflect the ethnic group the person belongs to. Given the applicant’s surname, I accept he belongs to the Tamang ethnic group.

34.     The claims made by the applicant in his statutory declaration about his Tamang ethnicity and caste included that the Tamang have been suppressed by the higher caste people who run the country for several hundred years. He said the Tamang were limited to farming work and the job of a porter, and that the social structure was such that they were suppressed in all aspects of ‘life, freedom, opportunity, wealth and education’. He said he was like [a] slave and that ending his schooling at [y]ear 8 was an indication of that. Yet when I questioned the applicant about this claim at the hearing, he indicated that his education ceased in year 8 because his local school only provided education up to that year and his family, unlike higher caste families, could not afford to send him to the city to continue his education. This indicates that he was not denied an education beyond year 8 because he was Tamang but due to economic constraints. He mentioned being ‘tortured’ but did [not] specify how he was tortured. When I asked him specifically what serious or significant harm he had personally experienced because of his Tamang ethnicity or caste, he referred to instances of harm which did not seem to rise to the level of serious harm or significant harm. For example, he stated that higher caste people would not allow lower caste people to come close during ceremonies, higher caste people would go ahead of others queuing up for water in the village, and higher caste people would mock the clothes of lower caste people who could not afford good clothes. When I questioned whether the situation was different in Kathmandu compared to his village, the applicant stated it was worse in Kathmandu.

35.     At the hearing I told the applicant that the information in the sources I had consulted indicated that the law provides that each ethnic community has the right to preserve and promote its language, script and culture, and this right is generally upheld by the government. And that even though discrimination against some ethnic groups occurred; it was people belonging to the lower castes such as Dalits or so-called untouchables who tended to face serious harm or significant harm. Further, that the situation was better in the city of Kathmandu. I put to the applicant that this information, along with his past experiences and particular circumstances such [as] being able to have 8 years of education, to work, and his ability to adapt to life in Kathmandu and then Australia - indicated that there was not a real chance that he would face serious harm or significant harm due to his ethnicity and/or caste. The applicant did not agree. He indicated that he was managing in Australia with a little money from Centrelink and was not managing inwardly as well as it may appear outwardly. Regarding discrimination in Nepal, he said that the reality was different to what the government or constitution said. He said he would be dead if he was in Nepal because the Nepalese government did not care about people like him. He would have to return to his village because he has no one in Kathmandu and there is no law or government for people like him. He mentioned people dying because they could not afford treatment, the earthquake and children being taken to other countries.

36.     Given the information in the sources I have consulted about the societal discrimination against certain ethnic and caste groups; it is plausible that the applicant has in [the] past and will in the future face some such discrimination. However, I find the claims he made in his statutory declaration and at the hearing were exaggerated or of a general nature. I do not accept that they reflect the applicant’s [particular] circumstances. The applicant had 8 years of education, was able to move to Kathmandu and work there for several years in a job that was not farming or that of a porter. This does not indicate that he was like a slave or that he was supressed in all aspects of life, or that he could not live peacefully or freely. On the evidence before me and based on the applicant’s particular circumstances, I find that there is not a real chance that he will suffer discrimination or harm in the reasonably foreseeable future for reasons of his ethnicity and/or caste which amounts to serious harm or significant harm.

Harm due to divorce

37.     Given the applicant’s lack of credibility and his failure to make the claim in his statutory declaration that he fears his ex-wife’s mother will have his hands cut off, I do not accept that he has that fear or that it will happen.

6    Having made those findings, the Tribunal concluded that the applicant did not satisfy either of the criteria for which ss 36(2)(a) and (aa) of the Act provide, and, on that basis, declined to grant the Visa Application.

7    By his Judicial Review Application before the FCCA, the applicant contended that the Tribunal’s Decision was the product of jurisdictional error and, as such, was liable to be set aside by a grant of prerogative relief. In the reasons published in support of the FCCA Judgment, the primary judge identified (FCCA Judgment, [10]) the two bases upon which the applicant made that contention, namely:

“1. The tribunal erred in law in its jurisdiction when it drew an adverse inference from the applicant being unable to pinpoint the date when he considered himself to be a Christian as if the specific date of a specific event were critical, the tribunal saying the question ‘was a simple one’ when clearly the adoption of another faith may be more realistically seen as one of evolution.

2. The tribunal erred in law in its jurisdiction when it accepted that although the applicant was a member of the Tamang minority ethnic community and had suffered discrimination thereby, he was not entitled to receive complementary protection provided for in the Migration Act 1958.”

8    In the absence of having been taken to the Judicial Review Application itself, I take the above as an accurate summary (if not a verbatim record, as it purports to be) of the grounds that the applicant sought to agitate in favour of his claim for prerogative relief. The Minister, by his written submissions, accepts that they were, in fact, the grounds advanced below.

9    The primary judge rejected both contentions. By the appeal that he hopes to initiate in this court, the applicant contends that his Honour erred by not accepting that the Tribunal’s Decision was affected by either or both of the jurisdictional errors identified in his Judicial Review Application. Whether such an error occurred requires analysis of the Tribunal’s Decision: if it was affected by jurisdictional error as the applicant contended, then it will follow that the primary judge erred in concluding otherwise; if it was not so affected, then the primary judge will have been correct to conclude as he did.

10    I should note, at this juncture, that that is the appeal that it appears that the applicant hopes to initiate. At the time of the hearing of this application, he had yet to lodge a draft notice of appeal upon which he would rely if an extension of time were granted (as r 36.05(3)(d) of the Federal Court Rules 2011 (Cth) requires). Ms Lahoud, who appeared pro bono for the applicant, indicated that there might be additional grounds pursued (or some tinkering of the two that appeared to be extant) were the application to succeed. Pressed to identify what those amendments or new grounds might be, she indicated that she had only recently taken on her brief and could not be specific. Helpfully, she was able to indicate that she hoped to be able to argue that the Tribunal’s Decision was tainted by jurisdictional error because insufficient care had been taken in eliciting from the applicant the evidence that he gave before the Tribunal. By way of elaboration, she explained that the applicant was very poorly educated and had a poor grasp of language, which placed him at a level of vulnerability that the Tribunal was obliged to recognise and address via a level of sensitivity to the possibility that his evidence was truthful that was greater than what the applicant was, in fact, afforded.

11    By operation of r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (as it stood at the time of the FCCA Judgment), the applicant had 21 days from the date of the FCCA Judgment—or until 21 February 2019—to file an appeal. That deadline came and went. The present application was lodged on 5 March 2019, 12 days after that deadline passed.

12    In support of his application, the applicant read an affidavit sworn by his former solicitor, Mr Melvin Newman, on 4 March 2019. By that affidavit, Mr Newman deposed that he was labouring under ill health in the form of a “major illness for which [he was taking] prescription analgesics…[which had] an enervative effect upon [him]”. Mr Newman requested that the court permit the applicant’s appeal to be filed two weeks out of time. That affidavit was lodged in the court’s New South Wales registry on 5 March 2019.

13    The applicant also sought to lead evidence in the form of a statutory declaration that he affirmed on 20 November 2019 (to which were attached a number of documents, including one containing information about Nepal). That statutory declaration addressed only some circumstances upon the basis of which the applicant felt that his Visa Application should have succeeded. None of its content was relevant to the present application. The Minister opposed its receipt into evidence and the applicant did not thereafter press that course. I accept the Minister’s submission on that score. For the purposes of the present application, no regard shall be had to the statutory declaration.

principles governing extensions of time

14    The considerations relevant to the exercise of the court’s discretion to grant an extension of time in cases such as the present are well established. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the full court, at [20], listed them as follows:

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(see also: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (Flick, Griffiths and Perry JJ); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-349 (Wilcox J); SZSPR v Minister for Immigration & Border Protection and Another (2013) 139 ALD 109, 113 [16] (Farrell J); BAO15 v Minister for Immigration and Border Protection (2016) 151 ALD 352, 356 [19] (Perry J); SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [18]-[19] (Murphy J); BYY15 v Minister for Immigration and Border Protection [2018] FCA 116, [12] (Steward J).

15    The Minister opposes the application on the sole basis that the appeal that will be initiated if it is granted lacks merit. It is accepted that there is no prejudice to the minister in an extension being granted, that the delay (12 days) was not especially significant and that the applicant has provided an adequate explanation for it (namely, that it was a function of his solicitor’s illness).

the merits of the proposed appeal

16    Consideration of the merits of the substantive appeal, should an extension of time be granted, does not require detailed analysis of the grounds upon which it is proposed that the appeal might proceed. It is sufficient that the court form a “reasonably impressionistic” assessment of their prospects: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, [38] (Tracey, Perry and Charlesworth JJ).

17    That acknowledged, I turn to consider the proposed appeal grounds.

Ground one

18    By his first proposed ground of appeal, the applicant hopes to convince the court that the Tribunal’s assessment of the applicant’s credibility rested impermissibly upon his failure to pinpoint an exact moment in time at which he converted to Christianity. By reasoning as it did, the Tribunal is said to have misunderstood (or otherwise acted in a manner not authorised by) the jurisdiction conferred upon it by the Act.

19    The primary judge dealt with that submission as follows:

16.    In short, therefore, the attack on the Tribunal’s approach was that the Tribunal wanted a “starting point”, that is, it wanted a date when the applicant became a Christian in the sense of a “particular event”, instead of seeking to understand the applicant’s evolutionary path to his religious conversion.

17.    In his submissions, the applicant relied specifically on [21] (see CB 129 – CB 130) of the Tribunal’s decision record:

“21. The applicant’s testimony about his religious claims was evasive and contradicted his statutory declaration. According to his statutory declaration he attended a church in Srathfield and hoped to be baptised soon. He said he was ‘fully in to (sic) Christianity and will not be able to live without Christianity’ and that ‘being a Christian and living in Nepal is just not possible’. At the hearing I noted that he claimed to be a Christian and could not live as a Christian in Nepal and asked him to be specific about the future serious or significant harm he would face as a Christian. His reply was very general. For example, he spoke about society looking at those who converted to Christianity with a different eye and of the Maoists being aware that he had converted which would create problems for him. He said he read about bomb blasts in churches and referred to making a comment online about religious freedom in which he referred to his conversion to Christianity. The rather rambling and general reply left the impression that the applicant was being intentionally evasive. When I questioned him about the newspaper comment he referred to, his response seemed rehearsed. Further, it took much questioning to elicit when he became a Christian. His initial response was that he became interested in Christianity in Nepal but it was not clear that he became a Christian in Nepal. Asked again, he said he was not baptised due to language difficulties and mentioned attending a church in Darlinghurst. Further attempts to elicit a clear answer, resulted in a long and convoluted response which did not clearly indicate when the applicant became a Christian. Eventually he indicated that he had believed in Christianity in Nepal. The question was a simple one yet I felt that the applicant avoided giving a clear and direct response.”

[Emphasis added]

18.    I agree with the applicant’s submission that the acquisition of a new religion, the process of accepting a religious faith, has an evolutionary quality. But the applicant’s argument in explanation of ground one, and the terms of the ground itself, suffer from a mischaracterisation of the Tribunal’s reasoning and findings, and a failure to understand the Tribunal’s reasoning in a holistic, and fair, sense.

19.    One, the applicant’s ground proceeds on the premise that the Tribunal drew an “adverse inference” from the applicant’s inability to “pinpoint the date” when he considered himself to be a Christian.

20.    The argument is that asking the applicant to “pinpoint” a specific date was contrary to the appropriate, and fair, way to assess religious conviction given the “evolutionary” quality of such a process.

21.    Paragraph 21 of the Tribunal’s decision record, and in particular, that part of it relied on by the applicant now, is a part of the Tribunal’s evaluation of the applicant’s evidence given at the hearing.

22.    There is nothing in this part of this paragraph, nor the paragraph as a whole, or indeed elsewhere in the Tribunal’s analysis, to support the applicant’s contention now that the Tribunal asked him to “pinpoint” the exact date of his religious conversion.

23.    The reference to “when he became a Christian”, in context, was not focused on “a certain bright sunny day”, or even a “particularly black day” (with reference to the applicant’s written submissions), but, in context, was an attempt to elicit from the applicant some detail as to his claimed religious conversion.

24.    For example, in the very same paragraph the Tribunal reports the applicant to have given evidence that: “…being a Christian and living in Nepal is just not possible.” It was not clear from the applicant’s claims and evidence whether this statement was based on his own experience as a Christian in Nepal, or his assumption that that would be the case if he returned as a Christian.

25.    In this light, the Tribunal was concerned, for example, amongst many other matters, to elicit evidence from the applicant as to whether he became a Christian in Nepal, or after he arrived in Australia. (See also at [32] (CB 132): “I do not accept that the applicant became a Christian either in Nepal or in Australia”).

26.    The Tribunal’s question was directed to an approximate, not a specific point in time, and was in response to the applicant’s own vague and unclear evidence.

27.    In short, the issue for the Tribunal was not the exact date as to when the applicant became a Christian, but his demonstrated inability to provide a clear explanation of the very evolutionary process that the applicant now claims is a feature of religious conversion.

28.    Two, the applicant’s ground, and submissions, appear to have overlooked that the issue identified by the Tribunal, and explained by it at the hearing, was the credibility of the applicant’s evidence and claims, relevantly, in relation to his claimed Christian conversion.

29.    As the Minister submitted, the Tribunal’s questioning in this regard was a “legitimate exploration” of whether the claimed conversion was genuine or not. The applicant himself claimed in his protection visa application to be a Hindu. (See item 15 at CB 13). In his accompanying statutory declaration he made claims of an emerging interest in Christianity while in Nepal.

30.    In this light, the Tribunal was entitled to ask the applicant about not only the claimed conversion, but the circumstances that led to that conversion. The Tribunal’s questions, when looked at in context, and holistically, reflect questions aimed at the very “evolutionary” path to religious conversion which the applicant’s submissions now say is the appropriate way to ascertain religious belief.

31.    Three, the applicant’s submission that it was unfair of the Tribunal to decide: “…the whole application on one question” is, plainly, a serious factual misrepresentation of what the Tribunal has done.

32.    The Tribunal’s decision record reveals that it found adversely to the applicant’s credit in relation to religion on a large number of factors, including that at the hearing he raised the matter of religious conversion only when prompted by the Tribunal, his general, and intentionally evasive evidence, and significant discrepancies between his oral and written claims.

33.    Four, this was also in context where the Tribunal found adversely to the applicant’s credit on the large number of other matters which were reasonably open to it on what was before it. The Tribunal found that, the credibility of the applicant’s claims was undermined, generally, by the “overall lack of credibility” arising from all of his evidence. The matter of the general “timing” of the conversion was only one part of this comprehensive rejection of the applicant’s credibility.

34.    As the Minister submitted, there were a number of other detailed reasons regarding the applicant’s credibility that provide an independent basis for the Tribunal’s conclusion as to the credibility of the religious claim (Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [64] – [71]).

35.    Five, the applicant did not refer to any authority in his submissions to support his argument in relation to ground one. However, I note, and agree, with the Minister’s reference to Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [38] - [39] for the proposition that the Tribunal did not, by its questioning, impose its own standard of religious observance, or otherwise act as an arbiter of religious doctrine.

36.    Six, in the current case, the applicant has not provided any evidence by way of a transcript of the Tribunal hearing. His ground, and argument, depend entirely on the Tribunal’s decision record, and the Tribunal’s account of what occurred at the hearing. It is clear that the applicant’s ground, and argument, derives from what he says was the Tribunal’s questioning of him at the hearing. On what is before the Court, that questioning was directed to the question as to how the applicant came to his claimed “new” religious faith.

37.    In that light, I agree with the Minister that the applicant’s challenge to the Tribunal’s questions said to have been put at the Tribunal hearing requires actual evidence of those questions. The absence of relevant evidence from the applicant as to actually what was said at the hearing by the Tribunal in its questions is a deficiency in the applicant’s case. This is particularly so in circumstances where the applicant’s complaint now is founded on what he says was a “specific” question asked by the Tribunal.

38.    Seven, in essence, the applicant’s ground, albeit with a narrow focus on what it says is the Tribunal’s narrow, and specific, focus, is really a challenge to the Tribunal’s adverse credit finding, which underpinned its conclusion that the applicant was not a Christian. The applicant’s attempt before the Court to characterise what he says was the evolutionary path to his conversion is really an attempt now to articulate the applicant’s claims to religious conversion in a way that he could have, but on the evidence did not, articulate to the Tribunal at the hearing.

39.    The Tribunal’s finding at [21] (CB 129) that the applicant’s testimony about his religious claims was evasive, and contradicted what was in his statutory declaration, is a finding made by the Tribunal with reference to what is in that statutory declaration, and what the applicant is reported by the Tribunal to have said at the hearing.

40.    The Tribunal explained this finding in the remainder of [21], which includes that part impugned now by the applicant. In context, the Tribunal’s finding that it: “…took much questioning to elicit when he became a Christian” is again a finding, and conclusion, which the Tribunal derived from the hearing.

41.    The Tribunal is not required in its decision record to set out a transcript of the hearing it conducted with the applicant. The Tribunal’s obligation, pursuant to s.430 of the Act, is to relevantly set out its “findings on any material questions of fact”, and refer to the evidence on which the findings of fact were based. That is precisely what the Tribunal has done in the current case. The relevant finding of fact was that the applicant was found not to be a credible witness. What is set out at [21] is but one part of a number of elements to explain that finding.

42.    It is of note that the evidence to which the Tribunal referred was the applicant’s own evidence given at the hearing. Specifically, in that context, the Tribunal’s report that he: “…took much questioning to elicit when he became a Christian” is followed by the explanation of the Tribunal for the basis for that finding.

43.    The Tribunal did not find adversely to the applicant’s credit because he was unable to “pinpoint” the time of his religious conversion. But rather found adversely to him because his evidence about his religious conversion (in context the entirety of its claimed evolutionary development) was his “rather rambling and general” replies, giving rise to an impression that he was being intentionally evasive and that he had seemingly rehearsed his answers coupled with “long and convoluted response[s]”.

44.    Specifically, the Tribunal’s finding that the applicant “did not clearly indicate when [he] became a Christian” (the specific part impugned now by the applicant’s submission is not a finding which resulted from a specific question from the Tribunal as to when the applicant became a Christian. Rather, it is a finding arising from the applicant’s own evidence otherwise described as “long and convoluted” where he was unable to provide the Tribunal with an indication as to when he considered himself to be a Christian.

45.    This was an entirely appropriate approach for the Tribunal to take. It is an approach consistent with the very evolutionary nature of religious conversion for which the applicant otherwise now contends. The Tribunal’s reasoning is that if the applicant had genuinely converted to Christianity he would have been able to have provided far more specific, and detailed, answers, than the general, evasive, and convoluted answers which he did provide.

46.    In essence, the applicant’s complaint is an attack on the Tribunal’s adverse credibility finding. When proper regard is had to the entirety of the Tribunal’s reasoning, that is on a fair and holistic reading of its decision record, rather than a narrow focus on one part of it, it is clear that the Tribunal asked the applicant a “general” question about when he converted which does not reveal that the Tribunal harboured any theological or sociological expectations as to what the applicant’s answer should be.

47.    Simply, the Tribunal was seeking to elicit from the applicant his own account of the conversion. The applicant was unable to provide a satisfactory explanation, or account, to the Tribunal. The Tribunal’s reasoning was that if he had genuinely converted he would have been able to do so.

48.    The Tribunal’s conclusion, and the findings that informed it, were all reasonably open to it and probative of the evidence before it. The Tribunal gave an intelligible explanation and justification for its ultimate conclusion that the applicant was not genuine in his conversion to Christianity (see [32] at CB 132). The fact that the Tribunal was not persuaded by the applicant’s evidence does not mean that its conclusion was not reasonably open to it.

49.    I do not accept the applicant’s submission that the Tribunal asked a specific question, let alone that it was unclear and unfair. As set out above, the Tribunal did give the applicant (when its analysis is read in its totality) the opportunity to explain his religious conversion. He did not do so to the Tribunal’s satisfaction. In all, therefore, ground one is not made out.

20    Respectfully, his Honour’s reasoning is unimpeachable and I adopt it. The applicant has no realistic prospect of convincing this court that the Tribunal’s Decision was tainted by jurisdictional error insofar as concerns its exploration of when it was that the applicant converted to Christianity, or the credibility findings that it made in consequence thereof.

Ground 2

21    By the proposed second ground, the applicant hopes to urge the court to find that the Tribunal’s Decision was affected by jurisdictional error because the Tribunal, despite accepting that the applicant would be subjected to a degree of discrimination on account of his Tamang origins, nonetheless found that that was insufficient to entitle him to complementary protection under s 36(2)(aa) of the Act.

22    The primary judge, in my view correctly, described this ground as “…no more than an invitation to the Court to engage in impermissible merits review”: FCCA Judgment, [55] (Judge Nicholls). That is no less true presently. It is plain from the submissions advanced in support of the present application (and in the FCCA) that the applicant feels that the Tribunal did not properly appreciate the extent of discriminatory treatment to which he, as a Tamang individual, would be subject were he returned to Nepal. The immediate and fatal flaw in that argument can be shortly stated: even assuming that what the applicant says is correct and that the Tribunal was in error to find as it did, that was an error that it was within its jurisdiction to commit. Again, the applicant has no realistic prospect of convincing this court that the Tribunal’s decision should be set aside as the product of the jurisdictional error that this ground seeks to contend.

Additional potential ground

23    As outlined above, the applicant foreshadowed an additional challenge to the Tribunal’s Decision (above, [10]). That it has not been reduced into a specific, proposed ground of appeal makes it difficult to address. That notwithstanding, I am firmly of the view that it, too, lacks reasonable prospects of succeeding.

24    At its heart, the applicant’s submission is (or would be) that, when he attended before the Tribunal, he laboured under unique vulnerabilities, born of his lowly education and poor grasp of language (both English and Nepali), to which a proper exercise of the Tribunal’s jurisdiction required particular attention. In oral submissions before me, Ms Lahoud attempted to particularise the form that that attention should have assumed. With due respect, her submission did not rise beyond the contention that the Tribunal ought to have been slower to draw the conclusions that it did about the evidence that the applicant gave and about the credibility that attached to certain aspects of his narrative.

25    I do not accept that that submission arguably exposes jurisdictional error on the part of the Tribunal in the present case. As the Minister submitted, the applicant’s Visa Application came for review before a specialist administrative body that deals routinely with applicants that labour under various kinds of vulnerability, including the sort not materially different to that with which the applicant was said to be afflicted. How it addresses those circumstances is a matter for the Tribunal, subject to certain obvious exceptions not here engaged (such as, for example, the provision of materially substandard interpretation services). The applicant has not identified anything about his own experience before the Tribunal that is sufficient to attach to the Tribunal’s Decision an arguable spectre of jurisdictional error.

Conclusion as to the merits of the proposed appeal

26    For the reasons outlined, I consider that the substantive appeal, were an extension of time to be granted, is (or would be) unmeritorious.

Conclusion

27    The poor prospects of success that attach to the appeal that the applicant hopes to initiate incline strongly against an exercise of the court’s discretion to grant an extension of time. On that basis, the application is refused with costs.

Associate:

Dated:    13 February 2020