Conclusions
37 The first respondent's contention that the grounds of appeal raise matters not raised before the Federal Magistrate must be accepted. The sole issue before the Federal Magistrate was whether there had been compliance with s 425 by the Tribunal putting to the appellant conflicting statements in the Amnesty International Report. The Federal Magistrate ruled against the appellant on that sole ground. The appellant has not made that ruling the subject matter of this appeal.
38 A party is not entitled to raise new grounds which were deliberately or by inadvertence not put to the Court from which the appeal is brought: Metwally v University of Wollongong (1985) 60 ALR 68 at 71.
39 If the appellant were entitled to raise these new grounds, it would mean that this Court would have to sit, as it were, as the Court at first instance to determine whether these new grounds would give rise to the relief sought in the application before the Federal Magistrate. Parliament has given the responsibility for hearing these applications exclusively to the Federal Magistrates Court. The parties, whether they are represented or unrepresented, ought to articulate all of their complaints in relation to the Tribunal's reasons in the Federal Magistrates Court so that that Court can make the appropriate findings and reach a considered decision on all aspects of the Tribunal's decision.
40 To allow the appellant to articulate these grounds on appeal would be to allow the appellant to treat this Court as a Court at first instance. Such a course of action is unsatisfactory, not only for this Court but also for the High Court which would hear any application for special leave from this decision. It would put the High Court, as it were, in a position of hearing applications for special leave from a court of first instance: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499.
41 However, authority seems to suggest that I need to consider whether the grounds have merit before I determine whether I should give leave for the appellant to raise the matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158.
42 The Tribunal considered the question of a well-founded fear of persecution conventionally. The Tribunal said:
Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
43 The Tribunal stated the correct test which it applied to the facts. It found that the appellant did not have a genuine fear of persecution. That being the case, the appellant could not satisfy the test of well-founded fear of persecution as determined by the authorities.
44 Insofar as it is submitted that the Tribunal was in error in determining the absence of fear on the part of the appellant, that was a matter for the Tribunal and not for this Court. The weight that the Tribunal put upon the evidence for the purpose of determining that issue was also for the Tribunal and not for this Court: Abebe 197 CLR 510.
45 The second ground seems to be a complaint going peculiarly to the merits or to the weight which the Tribunal put upon the evidence which gave rise to the Tribunal's ultimate decision, disguised as it were as a complaint of bias. Insofar as it is a complaint about the merits, that is not a matter for this Court: Attorney-General v Quin (1990) 170 CLR 1 at 35-36; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Insofar as it is a complaint of apprehended bias or bias, there is simply no evidence to support a claim of prejudgment.
46 Neither ground of appeal has merit. In those circumstances, I would not grant leave to the appellant to raise those matters on this appeal.
47 Although the appellant did not address the issue that was before the Federal Magistrates Court, the first respondent did so for the purpose of demonstrating that the Federal Magistrate had not erred. The issues before the Federal Magistrate were mainly directed to that aspect of the appellant's claim which dealt with Mr Rajendra. Principally, the Tribunal was concerned with "the plausibility" of the claim. Sub-issues concerned the identity of the tenant who was living in the appellant's house and his whereabouts subsequent to his leaving. The thrust of the appellant's case was that there were two persons of the same name who came from the same locality and were both lawyers who had been wanted or arrested by the police. The Tribunal thought it implausible that there were two persons by the name of Rajendra Dhaka, both of whom were lawyers from the Gorkha District. The Tribunal rightly, so the Federal Magistrate found, addressed that issue in the s 424A letter and also discharged its liability under s 425. It is clear from a reading of the s 424A letter and the transcript that the appellant was put on notice of that issue. The Federal Magistrate was right to find that the Tribunal had complied with its obligations under s 424A and s 425.
48 I raised with counsel for the first respondent a matter not raised by the appellant either before the Federal Magistrate or on appeal. It is tolerably clear from the appellant's claims and the Tribunal's reasons that apart from claiming a fear of persecution because of his political opinion, the appellant also claimed a fear of persecution by reason of his membership of a particular social group as a businessman who was targeted by Maoists for donations. I raised with the first respondent's counsel whether that matter had been appropriately addressed by the Tribunal. The first respondent's counsel accepted that the appellant had made such a claim but at the same time contended that his claim had been properly addressed by the Tribunal who was not satisfied that he was entitled to a Protection visa on that ground.
49 The Tribunal found that the appellant was asked for donations by the Maoists which he refused to pay. In particular, it found:
The Tribunal accepts that as a consequence he was threatened by the Maoists and on one occasion his house was attacked whereby the family's possessions were robbed and the house was padlocked.
50 Later, it found that whilst the appellant's house was robbed in June 2006 it was not satisfied that the house was robbed by Maoists or for the reasons of the appellant's political opinion or for any other Convention reason. The findings appear to be contradictory. However, the first respondent's counsel argued that the first finding did not include in it a finding that the house had been attacked by the Maoists. That is a very generous reading of the Tribunal's reasons and a reading I would not be prepared to give to those reasons myself.
51 The Tribunal clearly found that the attack on the appellant's house was not motivated by his political opinion or activities. It did not address, it seems to me, whether the attack was motivated by his membership of the political social group as a businessman targeted by Maoists for donations. I think it ought to have addressed that question because I think on a reading of the Tribunal's reasons, notwithstanding the second finding to which I have referred above, the Tribunal was of the opinion that the attack on the appellant's house was carried out by the Maoists.
52 The first respondent's counsel argued that if that result were right the appeal had to fail for two reasons. First, the Tribunal made a finding that the robbery which was carried out during the attack on the house had not inflicted any serious harm on the appellant or members of his family. In that regard, she relied upon a finding of the Tribunal:
The applicant's evidence does not suggest that the robbery had inflicted serious harm on him or members his family. Prior to the attack the applicant and his family had managed to leave the house. Nobody was injured and they had been able to move back into the house shortly after and remained there for 25 days before moving to Kathmandu without further incident. He did not claim to have suffered significant economic loss and the Tribunal is satisfied that this was the case. Apart from the attack on his house, the applicant did not claim and there was no evidence before the Tribunal to suggest that the Maoists in Okhaldhunga had taken any other steps to act upon the threats they had levelled against him.
53 I think those findings would, as was contended by the first respondent, be fatal to a claim that the Tribunal's failure to consider the specific claim in relation to the particular social group made by the appellant meant that the Tribunal fell into jurisdictional error.
54 The first respondent's counsel also argued that the Tribunal had made a finding on relocation adverse to the appellant which would mean that even if the Tribunal had erred, as suggested above, the appeal would have to be dismissed.
55 The Tribunal did find that the applicant had successfully relocated himself to Kathmandu in late 2001. It found that he did not suffer any persecution after he had relocated. Indeed, in that regard it relied upon the appellant's own evidence. In particular, it found:
That said, the applicant's own evidence clearly indicates that while he remained a member of the Nepali Congress Party in Kathmandu, he was not politically active, there was no evidence to suggest that he occupied a political position, let alone a high profile position, in Kathmandu and was never targeted for harm by the Maoists for the reason of his political affiliation, membership of a particular social group, including being a businessmen (sic) in Kathmandu, or any other Convention reason.
56 In that finding the Tribunal has considered the appellant's claim, albeit in considering relocation for the reason of his political opinion and his membership of a particular social group. In those circumstances, the contention of the first respondent's counsel must be accepted. If the appellant were to return to Nepal he could live in Kathmandu without fear of persecution for his membership of a particular social group, namely a businessman who was targeted by Maoists for donations.
57 For all of those reasons, all grounds raised fail and the appeal must be dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.