AEB15 v Minister for Immigration and Border Protection

1. An extension of time is granted to the applicant of 14 days from the date of publication of these orders for the filing of a notice of appeal from the orders and judgment of the Federal Circuit Court of Australia in AEB15 v Minister for Immigration & Anor [2016] FCCA 2166.
2. No order is made as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 These proceedings are concerned with an application for an extension of time to appeal from the judgment and orders of the Federal Circuit Court of Australia delivered on 26 August 2016: AEB15 v Minister for Immigration & Anor [2016] FCCA 2166. 2 An appeal from a decision of the Federal Circuit Court must be brought within 21 days of the date on which the judgment appealed from was pronounced or the order made: Federal Court Rules 2011 (Cth), r 36.03(a). 3 The last day on which the applicant could have brought an appeal, within time, in this Court was 16 September 2016. The present application was filed on 21 September 2016, five days out of time. 4 I accept that in determining whether time ought to be extended, the factors to be considered include the length of the delay; the explanation for the delay; the presence or absence of prejudice to the respondent; and whether an arguable question has been demonstrated which would warrant the matter being considered on appeal. 5 The Minister concedes that no prejudice arises should time be extended to the applicant, beyond the prejudice which the Minister is said to suffer in being required to resist an "unmeritorious appeal". 6 The applicant is represented by Mr Newman, a solicitor. Mr Newman filed an affidavit sworn 21 September 2016 in which he says that he is the solicitor for the proposed appellant/applicant. He says that "last Thursday afternoon", 15 September 2016, he obtained instructions from the applicant's migration agent to appeal from the decision of the Federal Circuit Court published on 26 August 2016. Mr Newman said that he would be in a position to file an appeal to the Federal Court but that he would need to be provided with the filing fee or alternatively a fee waiver application signed by the applicant. He says that it was not until late on Friday, 16 September 2016, that he was told that the application had not yet been signed. He says that, in the circumstances, he seeks an extension of time so that the applicant's appeal might be filed and heard. 7 A draft notice of appeal is attached to Mr Newman's affidavit. 8 The grounds of appeal the applicant seeks to agitate is framed in this way: 1. His Honour erred in law when he upheld the decision of the Second Respondent [Refugee Review Tribunal] not to remit the Minister's decision refusing a protection visa to the appellant on the basis that notwithstanding [that] the appellant was found to be credible concerning the extortion demands of the Maoists in Nepal and accepting that her husband and brother-in-law were both subsequently killed by them, she was not at risk of harm herself even in spite of her refusing those demands because 10 years had passed and things had changed. 2. His [H]onour erred when he upheld the [T]ribunal's failure to consider the objective factors that played on the appellant's mind even though she could not or did not express those feelings and fears contrary to dictates of common-sense and moreover the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs 1989. 9 The Minister says that Mr Newman's affidavit does not provide a sufficient explanation for the delay in instituting proceedings. The Minister also says that even if the explanation given by Mr Newman is accepted, it does not address the applicant's failure to exercise his right of appeal in the period between 26 August 2016 and 15 September 2016. The Minister says that nor is there any explanation for the further delay between the period when Mr Newman became aware that the applicant had not signed the appropriate fee waiver document (on the afternoon of 16 September 2016) and the bringing of this application on 21 September 2016. 10 The Minister also says that in any event, the proposed grounds of appeal in the draft notice do not have sufficient prospects of success so as to warrant the Federal Court extending time to the applicant to bring an appeal on those grounds. The Minister says that it is "primarily" for this reason that the Minister opposes the application for an extension of time. 11 I am satisfied that the real question to be determined is whether there is an arguable ground made out which would warrant an extension of time being granted to enable the applicant to agitate the questions sought to be determined by an appeal. The reason for a delay in filing an appeal must, of course, be properly explained. Having regard to the short period of time involved and the Minister's concession that the Minister will suffer no prejudice beyond having to address what is said to be an unmeritorious appeal, I am satisfied that an extension of time, in the proper exercise of the discretion, ought not to be refused on the contended ground that the delay has not been properly explained. I accept that the issue of delay is not, in this case, decisive of the exercise of the discretion. The question of whether an extension of time is to be granted is to be determined, in this case at least, on the footing of whether the applicant has demonstrated an arguable ground of appeal. 12 As to the principal ground of appeal, the applicant's solicitor directs attention to para 53 of the Tribunal's reasons and, in particular, the reference to the term "extortion". Paragraph 53 is in these terms: As discussed above the Tribunal has found that the applicant has been subjected to extortion demands in the past and finds that she faces a real risk of being subjected to extortion demands in the future in Nepal. The Tribunal accepts that the risk of being subjected to extortion demands may be exacerbated by her returning from Australia and may be exacerbated by the workplace injuries she received in Australia. However the Tribunal is not satisfied that this will result in a real risk of significant harm to the applicant, as that term is defined in s 36(2A) and s 5(1) of the [Migration Act 1958 (Cth)]. The applicant has not claimed or described treatment that can be regarded as torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. She has only described being asked to pay money. Accordingly the Tribunal finds that in the applicant's case, being subject to extortion demands does not constitute her being subjected to significant harm. [emphasis added] 13 The applicant's solicitor contends that the Tribunal has failed to properly deal with the full implications of the term "extortion". Mr Newman says that even though the applicant did not give direct evidence that she might be killed or that "her throat would be cut" should the demands not be met, the inference was open and ought to have been drawn on the facts found that she nevertheless held a fear for her safety should the extortion threats not be met. Although not put in these terms, Mr Newman inferentially says that the failure to draw that inference is an error of law. Mr Newman says that the inference that she was at significant risk should she not "pay up" was open and ought to have been drawn. Mr Newman emphasises that the Tribunal expressly found that the applicant had been subjected to extortion demands in the past and that she faced a real risk of being subjected to extortion demands in the future. Mr Newman also says that a relevant matter necessarily related to this question is the consideration that the Tribunal accepted that the applicant's husband (who was her first husband, the marriage having occurred in December 2002) was a soldier in the Nepalese army and that he was shot and killed by Maoist insurgents on 4 June 2004. Moreover, the applicant's husband's brother was also shot and killed in 2001 about a year before the applicant's marriage to her first husband. Mr Newman says that these circumstances, although they occurred over 10 years ago, relevantly condition the applicant's fears in the context of the real risk she faces of being subjected to extortion demands in the future in Nepal. 14 Mr Newman says that the primary judge did not have proper regard to the notion of an "extortion" threat or the context of the notion of extortion. At [24] of the reasons, the primary judge said this: … [The applicant's] argument was, in essence, that the Tribunal overlooked the threats to life … One problem for the applicant is that her claim concerning the extortion was very vague and did not mention any threat to life. In her statement accompanying the protection visa application, she simply said that the Maoists were "threatening us to take donation" and when "they knew that I was from Australia they asked for donation". At the Tribunal hearing the applicant said that if she returns to her village "they will think she is rich and she will be subject to extortion". It is not at all clear from these claims what threats lay behind the requests or demands for donations. In those circumstances, the Tribunal did not err by failing to consider a threat to life. No such claim was made. [emphasis added] 15 Mr Newman says that even though it may be correct to say that no express claim of a threat to the applicant's life was given in evidence, there can be no doubt that an inference is open on the facts found that the applicant believed that she suffers a real risk of significant harm from Maoists' extortion threats should she return to Nepal. Mr Newman says that it follows that the failure to comply with those threats would necessarily carry with it a threat to the applicant's life. A question is whether that inference is open on the facts found. 16 At [25], the primary judge said that a more significant matter was that the Tribunal had found that the applicant could reasonably relocate to Kathmandu where there was no real chance of her being subjected to serious harm because of extortion demands. The primary judge also found that "critically" the Tribunal found that the police in Nepal act to protect people in relation to extortion and other crime: para 25. The primary judge concluded that the Tribunal's finding as to that matter supported the Tribunal's conclusion that "there was no real chance of serious harm": para 25. 17 In this case, I am satisfied that an extension of time ought to be granted. 18 I am satisfied that there is at least an arguable question of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm. This application is not the forum for deciding the merits of the grounds of appeal which the applicant seeks to agitate in seeking to establish error on the part of the primary judge in failing to find contended jurisdictional error on the part of the Tribunal. The reasons of the Tribunal reflect care, critical analysis and an acceptance of many of the contentions of the applicant. The Tribunal, on the face of the document, has undertaken a very thorough exercise in addressing the questions before it. It is to be commended for doing so. An examination of those reasons in some detail is a matter for another time in the context of the hearing and determination of the appeal and the grounds the applicant seeks to agitate on appeal. I have taken into account the very difficult matter for the applicant of the finding that the applicant could reasonably relocate to Kathmandu where she would not confront a real chance of being subjected to serious harm due to extortion demands. Nevertheless, that consideration is but one consideration to be taken into account, ultimately, in determining the merits of the grounds of appeal she seeks to agitate. For present purposes, I am satisfied that there is an arguable question to be determined although by so finding I do not wish to suggest any concluded view about the merits of those grounds. Nevertheless, I am satisfied that there is a matter which would warrant the applicant having an opportunity to ventilate by way of appeal. 19 Accordingly, an extension of time will be granted to the applicant of 14 days from the date of the publication of these reasons for the filing of a notice of appeal. There will be no order as to costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.