//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2018] FCA 1177
Federal Court of Australia
2018-08-07
Robertson J
Original judgment source is linked above.
ROBERTSON J: 1 This application is for an extension of time to appeal from the orders of the Federal Circuit Court of Australia made on 30 October 2017 dismissing the application to that Court, with costs. 2 The application was for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 February 2017, affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection visa. 3 The application for an extension of time to file a notice of appeal is dated 29 March 2018 and was filed on 30 March 2018. 4 The application is supported by a short affidavit by the applicant's solicitor in which he deposed, in effect, that he overlooked the matter by reason of his serious ill-health. 5 The Minister opposes the grant of an extension of time, submitting that the application was some 130 days after the expiry of the prescribed period of 21 days, no satisfactory explanation for the delay has been advanced and the sole ground of the proposed appeal lacks sufficient merit to warrant an extension of time. 6 The proposed ground of appeal is as follows: 1. His Honour was in error by upholding the Tribunal's decision which in the applicant's view did not address her claims in that while there was no governmental persecution she faced such a level of societal discrimination so as to place her in danger of being deprived of the very means of life 7 The relevant findings and reasoning of the Tribunal were as follows. 8 The applicant is a citizen of Nepal. She was divorced in 2012. She is from the Brahmin caste and her husband was from the Chhetri caste. The applicant has profound hearing loss in her left ear, and only hears out of her right ear. She, and her sisters, were teased because of their health issues. Their own grandmother made unkind comments about them. The family has faced some social ostracism, and some people would not let her family touch them, or go into their houses or temples, or talk to them. The family moved to Gaidakot which is a more urban community and there is less stress there. The applicant has shown some interest in Christianity. 9 The Tribunal addressed first the issue of whether the applicant had a well-founded fear of persecution for reasons of being a divorcee/single woman. The Tribunal accepted that the applicant had suffered some verbal taunting because of her divorce and may suffer some societal discrimination or social ostracism in the future. The Tribunal, at [38], said it was not satisfied that the harm which the applicant may suffer as a divorcee or single woman would reach the level of serious harm envisaged by the legislation. At [43], the Tribunal said that while verbal taunting and societal discrimination were extremely unpleasant, it was not satisfied that it reached the level of serious harm required by the legislation. The Tribunal noted also that the applicant would not be isolated from her family who remained close to her. The Tribunal, at [44] said: The Tribunal does not accept that there is a real chance that the applicant would suffer any physical harm of any kind or that, given the changing attitudes in Nepal and the increasing numbers of divorced women, nor, as discussed, that she would suffer psychological harm which would amount to serious harm, particularly as her family is now living in a more urban area. The Tribunal also does not accept, given the changes in law referred to above, that she would not be able to earn a livelihood or that she would be denied access to services. She has suggested that she could only work as a servant or cook as she is uneducated. The Tribunal accepts that there may be occasions when she is discriminated against in employment opportunity because she is a divorcee or woman. However she may only be able to work in the service industries because of her level of education. The Tribunal notes that she has completed a course in beauty and hairdressing and there may be possibilities for employment in this area. She also has experience adapting to a new country, language and environment and speaking English, and this experience may assist her in finding work in Nepal. The Tribunal notes that she does have a close relationship with her family who own property and have supported her in Australia over many years. The Tribunal notes that she would have financial support which would ensure that she would not suffer serious harm because of her financial situation. The Tribunal notes her comments that she does not want to keep asking them for support. Notwithstanding this, the Tribunal does not accept there is a real chance of serious harm in the form of financial depravity (sic) of any kind. 10 The Tribunal said, at [45], that as the harm the applicant would suffer did not amount to serious harm, the Tribunal did not accept that the applicant had a well-founded fear of persecution on the basis that she was a divorcee or Brahmin divorcee or single woman returning to Nepal. 11 The Tribunal next turned to the question whether the applicant faced a real chance of serious harm because of her hearing loss, or the fact that two of her sisters suffered significant health issues. The Tribunal's analysis, at [57]-[58], reached a similar conclusion. That is, the Tribunal accepted that people with disabilities may be discriminated against or suffer verbal taunts, particularly in rural areas, notwithstanding the constitutional protections. The Tribunal did not accept, in the applicant's case, that any harm she would suffer would amount to the level of serious harm envisaged under s 91R of the Migration Act. 12 The Tribunal rejected the applicant's claim that there was a real chance of serious harm because of her interest in Christianity. 13 The Tribunal then turned to whether the applicant had a real chance of serious harm due to her inter-caste marriage. Her contention was that because she was married to a Chhetri, she would be classified as a low class citizen. 14 At [71], the Tribunal accepted that the may be some social ostracism towards the applicant on that basis. However the Tribunal did not accept that the applicant would be ostracised by her own family or community given that she returned there previously without any issue, and also because she had kept in regular and close contact with them despite her marriage. They had also continued to support her financially. In relation to any social ostracism the applicant may suffer from members of the community, at [72], the Tribunal said it was not satisfied that such ostracism reached the level of serious harm envisaged under s 91R. The Tribunal did not accept that the applicant would suffer physical ill-treatment, psychological harm which would reach the level of serious harm, be unable to subsist or be denied access to services, nor that she would suffer any other kind of serious harm. 15 The Tribunal then turned to consider whether the applicant had a real chance of serious harm based on the cumulative factors of being a divorcee, a Brahmin divorcee, a woman, a person with a disability, a person who entered an inter-caste marriage and a person who was interested in Christianity, or any combination of those factors. 16 At [76], the Tribunal considered those factors cumulatively and accepted that they or some of them may lead to societal discrimination, ostracism and verbal taunts. However the Tribunal did not accept that the applicant would face serious harm because of those factors. The Tribunal said the independent sources did not suggest that persons in the applicant's position would face physical violence or psychological harm or economic harm which would amount to serious harm. As the Tribunal had discussed earlier, the applicant was close to her family, who had supported her in Australia and could reasonably be assumed would support her in Nepal. She had given evidence that the extended family got together for important occasions, indicating that they had a wider support network. Her father had a job and owned his house and property. The applicant also did have job prospects, as evidenced by her sister working, her resilience in living in Australia, and the fact that she had completed a beauty and hairdressing course. The applicant had indicated that the village she lived in was "more urban" and this had caused less stress for her family. 17 At [77], the Tribunal said it was not satisfied, considering those factors cumulatively, that there was a real chance of serious harm were the applicant to return to Nepal in the reasonably foreseeable future. 18 The Tribunal then went on to consider the complementary protection provisions. At [81], the Tribunal said it was not satisfied that there was a real risk of significant harm if the applicant were removed to Nepal. The Tribunal was not satisfied that the treatment the applicant would receive in the future would amount to any of the types of significant harm set out in the legislation. At [87], the Tribunal said it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there was a real risk that she would be subjected to significant harm of any kind.
Submissions 19 The submissions on behalf of the applicant were to the effect that the Tribunal gave no weight to the subjective fears of the applicant, "indeed refusing to even … consider them." The submissions continued that the Tribunal accepted most, if not all, of the applicant's claims, but the Tribunal ignored or otherwise failed to consider the dire consequence of one of her attributes. The applicant claimed that she would suffer social stigma and discrimination because she is a divorcee or Brahmin divorcee. She had claimed that divorcees were refused rental agreements and could not obtain jobs at a higher level than positions as a servant or cook, unless they were educated or wealthy. The applicant claimed that she would suffer harm because she was a divorcee with a disability, who had an inter-caste marriage. She submitted no one would touch food or drink prepared by a Brahmin divorcee. She was concerned about getting a job as a Brahmin divorcee who also had a disability. 20 The applicant submitted that the point was that the Tribunal ignored this profound impediment to survival yet virtually in the same breath spoke of cumulative factors not outweighing the caution imposed in Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; 204 CLR 1 at [55] where McHugh J said: Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution. With the express or tacit approval of the government, for example, some employers may refuse to employ persons on grounds of race, religion or nationality. But discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available. The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution. 21 The applicant submitted that it was morally bankrupt to assign more societal worth to the work of professionals and academics than to the opportunities available to the lower classes. Uneducated people doing their menial jobs depend on them for their existence, it was submitted. 22 The applicant submitted that the Tribunal missed this and ignored or otherwise refused to consider relevant material contrary to the strictures in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 citing Craig v South Australia [1995] HCA 58; 184 CLR 163: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected." 23 The applicant focussed on [44] of the reasons and submitted that the Tribunal missed the point that, if she worked as a cook, once people knew about her background they would not touch her food. The applicant submitted that the discrimination went to the heart of survival: her employment would be precarious. 24 The Minister submitted that in substance, the applicant appeared to contend that the primary judge erred in not finding that the Tribunal failed to consider her claims to face societal discrimination of such a level that she was denied the capacity to subsist. 25 In direct answer to the applicant's proposed ground of appeal, the Minister submitted there was no proper basis for the applicant's contention that the Tribunal failed to consider that "she faced such a level of societal discrimination as to place her in danger of being deprived of the very means of life". The Tribunal did not fail to consider a claim expressly advanced or articulated by the applicant, the Minister submitted, or squarely or sufficiently raised by the material before it: referring to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 and at [22]-[24], [27]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58][61]; and Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [90]. The applicant's purported written submissions made various (often emotive) contentions but fundamentally sought merits review by either making submissions that had no connection with the applicant's actual claims for protection or asserting the Tribunal ought to have made different factual conclusions on the material before it. To the extent the submissions contended that the Tribunal failed to consider or ignored the applicant's claims that she would suffer stigma, discrimination and face difficulty obtaining jobs at a higher level because she was a divorcee or Brahmin divorcee who had a disability and had an inter-caste marriage, that allegation had no proper basis. 26 The Minister submitted that the reasons for judgment of the primary judge also revealed no failure to identify any jurisdictional error by the Tribunal in the manner that the applicant now sought to contend. To the extent that the applicant's solicitor sought to make new contentions before the primary judge about the relationship between the applicant and her family, the primary judge was correct to characterise such attempts as seeking impermissible merits review.
Consideration 27 In my opinion, the proposed ground of appeal amounts to no more than a complaint about the Tribunal's evaluation of the material before it. In effect, the proposed ground is that the Tribunal, properly understanding the legislation, could not have come to the conclusion it did. In my opinion this claim is of no substance. The Tribunal recognised that there are degrees of discrimination and harm, analysed the material before it and reached its conclusions accordingly. 28 I do not accept the complaint about the applicant working as a cook. That was only one example, suggested by the applicant, of the type of work the Tribunal said, at [44], the applicant could do. I do not accept that the Tribunal found, or was required to find, that the applicant could not survive in the face of the degree of discrimination she would suffer, or that that would amount to a well-founded fear of persecution or significant harm. I do not accept that the Tribunal erred in any of the ways articulated in Yusuf. 29 Before the primary judge, the claim was that the Tribunal made a jurisdictional error in looking at the applicant's circumstances through the prism of governmental policy. I see no basis for this claim and I see no error in the reasons of the primary judge in this respect or in relation to the other claims of jurisdictional error made to the primary judge. 30 In these circumstances, having regard to the length of the delay and the lack of adequate explanation for the delay, limited to the solicitor's serious medical condition but with no evidence from the applicant, I would refuse the applicant's application for an extension of time to bring proceedings in this Court.
Conclusion and orders 31 The application for an extension of time is dismissed, with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
BCM17
Minister for Immigration and Border Protection