Applicant A408 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 714

FEDERAL COURT OF AUSTRALIA

Applicant A408 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 714

APPLICANT A408 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 39 OF 2004

SELWAY J
20 MAY 2004
SYDNEY (VIA VIDEO LINK TO ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 39 OF 2004

BETWEEN:

APPLICANT A408 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

SELWAY J

DATE OF ORDER:

20 MAY 2004

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO ADELAIDE)

THE COURT ORDERS THAT:

1.The application for leave to extend time for filing a notice seeking leave to appeal is refused.

2.        In any event leave to appeal is refused.

3.Unnecessary to make any order in relation to the application to file and serve a notice of appeal.

4.The applicant to pay the costs of the first respondent in action number S 39 of 2004.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 39 OF 2004

BETWEEN:

APPLICANT A408 OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	SELWAY J
DATE:	20 MAY 2004
PLACE:	SYDNEY (VIA VIDEO LINK TO ADELAIDE)

REASONS FOR JUDGMENT

1. On 23 December 2002, the applicant instituted proceedings in the High Court seeking orders nisi for the issue of writs of mandamus, prohibition and certiorari in respect of the decision of the Refugee Review Tribunal made on 11 November 2002.  The applicant was legally represented.  Nevertheless the affidavit filed by those legal representatives gives no hint of the basis upon which the writs were sought.  The High Court proceedings were remitted to this court by order of Hayne J made on 7 February 2003.  On 21 July 2003, I made various orders in these proceedings including that the applicant file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged and that the applicant file and serve any further affidavit material so as to lay a foundation for the allegations made on the amended application.

2. Those orders were not complied with. On 12 September 2003, Lander J ordered that the application be dismissed in the absence of any steps being taken pursuant to the orders made by me on 21 July 2003. The order made by Lander J was an interlocutory order. Under s 24(1A) of the Federal Court of Australia Act 1976, leave is required in order to appeal from that decision.  Under O 52 r 10(2)(b) of the Federal Court Rules such leave should have been sought within seven days from the pronouncement of the judgment.  Until today, no leave to appeal has been sought, however, the applicant has today made an oral application for leave to appeal out of time and an oral application for leave to appeal.

3. On 22 March 2004, the applicant, who was then unrepresented, filed an application for an extension of time to file and serve the notice of appeal.  The applicant apparently assumed that the order of Lander J was a final order, which it was not.  If it were, the time for appeal had expired some five months earlier.  Given the oral application for leave to appeal it has proved unnecessary to consider the application for an extension of time to appeal.

4. The draft notice of appeal that accompanied the application for an extension of time contains one ground that might be relevant in relation to an appeal from the order made by Lander J.  That involved a complaint by the applicant against the actions of her previous lawyer.  That allegation was supported by a statement in her accompanying affidavit alleging that her lawyer acted unprofessionally and in particular, alleging that he never informed her about her case before it was dismissed.  The other grounds complain generally about the decision of the Tribunal but do not appear to allege any particular jurisdictional error in the process, reasons or decision of the body.

5. On 3 May 2004, the applicant filed a further affidavit.  In that affidavit, the applicant deposes that she was unable to seek leave to appeal within seven days after the dismissal of the application by Lander J because her migration adviser was not informed by her solicitor of that decision until 23 September and her migration agent did not inform her about it until 26 September.  The affidavits do not deal with the situation subsequent to 26 September, however, the applicant did explain to me in court that following the receipt of that advice, she sought the advice of another migration agent as to an appeal.  It would appear that that agent advised her not to appeal given his view that she had limited prospects of success.

6. The applicant says that she took some time to consider that advice before filing her application for an extension of time to file and serve a notice of appeal.  I note again that the applicant is unrepresented but even accepting this is so, I do not think the applicant’s explanation is a satisfactory explanation for the delay which occurred.

7. In her affidavit the applicant also refers to the bases of her complaint about the decision of the Tribunal.  Three bases are identified.  First, that the Tribunal failed to consider whether Nepalese women constitute a particular social group; second that the Tribunal failed to consider a particular country report which supported the applicant’s case and third, that the Tribunal made an error in its assessment of her credibility.

8. The applicant’s original claim was that she was at risk of persecution if she returned to Nepal because she was a Maoist.  The claim was significantly changed when she was interviewed by the Tribunal.  She then said that she was at risk of persecution because her husband was a Maoist who had been and remained imprisoned in Nepal.  It was that case that the Tribunal dealt with in its reasons.  It would not appear that the applicant put a case to the Tribunal that Nepalese women were at risk of persecution as a particular group.

9. The basis of the Tribunal’s decision was that it was not satisfied that the applicant was telling the truth.  Given the inconsistency between what the applicant had originally claimed (including, apparently, to her migration agent) and what she ultimately told the Tribunal that finding which was clearly open to the Tribunal.  The Tribunal said:

   ‘Having taken all these matters into account I am unable to accept that the [Applicant’s] husband is currently imprisoned in Nepal because of his political activities, nor can I accept that this has occurred in the past.

   It follows that [the applicants] claim to the Tribunal that the police perceived her to be a Maoist because she was married to a Maoist is implausible.  That is consistent with the fact that there was no mention in her submissions to the Department that she had ever been questioned, harassed or detained by the Nepalese authorities because of her political opinion, her relationship to a Maoist or for any other reason.  I do not accept that [the applicant] was subjected to this treatment because she was married to a member of the CPN(M).

   [The applicant] also claimed that she herself was a member of a communist student association, a legal group while at school.  I accept that this was so.  I also accept that she may have attended student union meetings whilst at university (which she attended until 1997).  She did not claim to have been involved in any other political activities herself and indeed stated that she was “not really into politics”.  I’m satisfied that her own personal political history would not give rise to a real chance of serious harm if she returned to Nepal and that it did not before her departure from Nepal.’

10. In relation to the allegations of harassment against Nepalese women the Tribunal did deal with that claim, notwithstanding that it was not a claim made by the applicant.

    ‘It is possible that [the applicant] was harassed by a male neighbour and that other neighbours had made disparaging remarks about her during the period when she was living alone with her child and a maid.  However I do not consider that this treatment, although unpleasant and intimidating, could be characterised as persecution.  Further, as it ceased when she moved to her aunt’s house according to her own evidence, I’m not satisfied there is a real chance it might recur if she returned to Nepal.  It appears to have been resolved by her changing her address and residing with another woman, options which presumably would be open to her if she returned to Nepal.’

11. It would seem clear that the alleged jurisdictional errors identified by the applicant in her draft notice of appeal and in her new affidavit do not meet the issue upon which the Tribunal rejected her claims.

12. The applicant has not identified any good reason for the delay in seeking the appeal.  In any event my view is that an appeal would enjoy no prospects of success if leave were granted.  In these circumstances leave to extend time for filing a notice seeking leave to appeal should be refused and in any event leave to appeal should be refused.

13. As the order by Lander J is an interlocutory order it is unnecessary to make any orders in relation to the application for an extension of time to file a notice seeking leave to appeal.  Nevertheless if that issue was properly before me I would also dismiss it for the reasons given above.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             4 June 2004

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 May 2004
Date of Judgment:	20 May 2004