FEDERAL COURT OF AUSTRALIA AEB15 v Minister for Immigration and Border Protection (No 2) [2017] FCA 1559 Appeal from: AEB15 v Minister for Immigration & Anor [2016] FCCA 2166 File number(s): NSD 1654 of 2016 Judge(s): GREENWOOD J Date of judgment: 19 December 2017 Catchwords: MIGRATION – consideration of whether the Federal Circuit Court of Australia erred in failing to find jurisdictional error on the part of the Refugee Review Tribunal in failing to find that the appellant would suffer either serious harm or significant harm as a result of extortion demands being made upon her by former Maoist insurgents or persons associated with such persons, in Nepal Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 36(2A), 91R Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legal Caseload) Act 2014 (Cth), s 12 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation 2015 (Cth) Cases cited: SZTAP v Minister for Immigration & Border Protection (2015) 238 FCR 404 Date of hearing: 24 May 2017 Date of last submissions: 24 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 87 Solicitor for the Appellant: Mr M Newman Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS NSD 1654 of 2016 BETWEEN: AEB15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GREENWOOD J DATE OF ORDER: 19 DECEMBER 2017 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the costs of the first respondent of and incidental to the appeal. 3. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 These proceedings are concerned with an appeal from orders of the Federal Circuit Court of Australia (the "Federal Circuit Court") made on 26 August 2016 dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") made on 9 February 2015: AEB15 v Minister for Immigration & Anor [2016] FCCA 2166. 2 The Tribunal had affirmed the decision of the Minister's delegate not to grant the appellant a protection visa. Of course, the statutory functions formerly discharged by the Tribunal are now discharged within the Migration Division of the Administrative Appeals Tribunal (the "AAT"). The second respondent to the Federal Circuit Court proceedings was the AAT. The AAT is the second respondent to these appeal proceedings. 3 On 16 February 2017, the appellant was granted an extension of time of 14 days for the filing of a notice of appeal from the orders made by the Federal Circuit Court: AEB15 v Minister for Immigration and Border Protection [2017] FCA 178. 4 The appellant subsequently filed her notice of appeal within the time as extended. 5 The grounds of appeal are these: 1. His Honour erred in law when he upheld the decision of the [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 Honour 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. [emphasis added] 6 The appellant was assisted by a lawyer, Mr Melvin Newman, in the application for an extension of time. Mr Newman has assisted the appellant in the formulation of the grounds of appeal and in the proceedings on the appeal. 7 It is now necessary to explain the claims made by the appellant before the Tribunal in order to address the two grounds of appeal relied upon before this Court. The claims are these. 8 The appellant was born in 1981 in a village in the Nawalparasi District in the Chitwan valley in Nepal. The Tribunal accepted that the appellant is a national of Nepal and her claims for protection were assessed in relation to her Nepalese nationality. The appellant said that she was married in December 2002 and her husband was a soldier in the Nepalese army. Her husband's brother was also a Nepalese army soldier. He was killed sometime in 2001 approximately one year before the appellant's marriage to her husband. After the death of her husband's brother, the appellant's husband's family urged him to leave the army. His family were also against his marriage to the appellant. Both the appellant's family and her husband's family tried to force each of them to marry other people. However, the appellant eloped with her husband and they became married. After four or five months of marriage, the appellant became pregnant. The appellant and her husband believed that the pregnancy would bring the families together. It did not. The appellant's baby was stillborn. Seven months later the appellant's husband was shot and killed by Maoist insurgents: paras 13 and 14, Tribunal Decision ("TD"). 9 The Tribunal accepted the appellant's evidence and her documents in relation to the death of her husband and thus accepted that the appellant's husband was a soldier in the Nepalese army and that he had been shot and killed by Maoist insurgents on 4 June 2004: para 14, TD. 10 At the time of her husband's death, the appellant was pregnant with their second child. The appellant says that she went to her husband's parents' home and undertook all of the rituals a wife must undertake in respect of her deceased husband. She says that her deceased husband's parents were bitter and his siblings were very hostile towards her. She said that she believed they blamed her for his death and they thought she would bring them bad luck. She says that they tried to force her to have an abortion but she refused. She also believes that her husband's family members tried to poison her milk in order to kill the baby and so she decided to leave their house: para 15, TD. 11 The appellant then went to her own parents' home which was about 30 minutes walking distance away from the home of her husband's family. She says that her parents forgave her, took her in and allowed her to stay with them: para 15, TD. 12 The appellant said that she was required to return to her husband's parents' home to give birth to her second child as this act was an expression of cultural expectation within Nepalese society. She gave birth to a baby daughter on 30 November 2004: para 16, TD. 13 The appellant said that she was not welcome at her husband's parents' home. She says that they threw her belongings out; did not provide enough food for her; and, closed the door when they saw her coming. The appellant returned to her parents' home with her daughter: para 17, TD. The Tribunal accepted the appellant's claims in respect of the matters described at paras 16 and 17, TD, as described above. 14 The appellant said that it was also difficult for her at her parents' home. The government provided compensation for the death of her husband. However, half of the money went to her husband's parents and the other half was available to her. She said that life was very hard. The appellant took her daughter to Kathmandu and she and her daughter stayed with one of her father's sisters (her aunt). The appellant searched for work. The appellant began taking English classes as she believed this would give her a better chance of employment in a foreign country. The appellant claimed that she met a man who was planning to go to Australia to study. The appellant married this man on 11 June 2008. She believed that she could earn a good income in Australia. She says that she did not tell her family about her second marriage and regarded it as "paperwork to open the door on a new life": para 19, TD. The appellant came to Australia as a dependant of her second husband in reliance upon her second husband's Student visa. The appellant left her daughter in the care of her brother. Two weeks after arriving in Australia with her second husband she obtained work on a farm. She claimed that she was told that after two years she would be able to obtain permanent residence in Australia and could then divorce her second husband and bring her daughter to Australia. She claimed that in Australia she lived separately and apart from her husband although they had a joint bank account. She says that she put money into the joint account when her husband needed it. At the hearing before the Tribunal the appellant gave evidence that her second marriage was a "fake marriage" which she entered into in order to come to Australia as she wanted to secure a better future for her daughter. She said before the Tribunal that she and her second husband divorced in May 2013 when she returned to Nepal: para 19, TD. 15 The appellant said that she had an accident on a farm in Queensland and injured her knee and her hand. She was not able to work for one and a half years. She returned to Nepal as her mother was sick and she wanted to see her daughter. Also, her second husband wanted a divorce. She visited her parental home and also stayed in Kathmandu with her brother who was still caring for her daughter. 16 The appellant gave evidence before the Tribunal that her parents are farmers. They do not own the land they farm. They grow fruit and vegetables for their own consumption and sell them for income. The appellant's brother is a teacher in Kathmandu. The appellant has another brother working in Dubai. Also, the appellant's grandparents live in the same village as her parents. Her father's sister lives in Kathmandu and has a small shop selling fruit. The appellant gave evidence that she lived with her aunt for about five months before coming to Australia. The appellant gave evidence to the Tribunal that her daughter attends school and sometimes the appellant sends her brother money for her daughter's expenses. 17 The appellant gave evidence before the Tribunal that she returned to Nepal in May 2013 and stayed for about two weeks. She claimed that she planned to stay with her parents however when the Maoists learnt she was coming from Australia they asked for donations. She says that she gave them money. She claimed that for this reason she could not stay with her parents for very long. She claimed that she realised that if she could not spend more than 10 days in the village with her parents then she would not be able to spend her whole life there. She said that it was too hard to live at her parents' home and that she had no support in Nepal. She told the Tribunal that it is too hard for a single woman with a daughter in Nepal. She also said that her first husband's family started asking her for money. She says that the situation became "unbearable". She said that Nepal is a very superstitious society and single widowed females face a lot of problems: para 22, TD. As to the matters at para 22, TD, the Tribunal accepted the appellant's evidence. 18 The appellant also claimed that her friends from school tried to force her to join the Maoists. She refused. She claimed to believe that "these people" are searching for her. She told the Tribunal that she believed these people to be responsible for her husband having been killed. She claimed that after receiving compensation from the government in relation to her husband's death, a man followed her from the bank. At para 23, the Tribunal observes that it put to the appellant that it accepted that the appellant's first husband had been killed by Maoist insurgents but nevertheless found it reasonable to assume that this occurred because he was a soldier with the Nepalese army fighting the insurgents at the time. The Tribunal put to the appellant that it did not accept that her first husband was targeted by her friends from school who tried to force her to join the Maoists. The appellant told the Tribunal, in this respect, that "this could be right" however it could also be that "both her first husband and his brother were targeted as she refused to join the Maoists". The Tribunal records that it put to the appellant that as her husband had been killed in 2004, 10 years ago, the Tribunal did not accept that the "same Maoists" would be intent on causing her "harm" if she were to return to Nepal. 19 The Tribunal also records that it put to the appellant that country information suggests that from November 2006 the Maoists had been part of a coalition government under a "Comprehensive Peace Agreement" and as a result, there is no longer a Maoist insurgency in Nepal and the Maoists are involved directly in the political process. The Tribunal notes that elections held in April 2008 saw a coalition government formed by several Maoist political parties and the Monarchy abolished and that, since then, several Maoist-led coalitions have formed government in Nepal. In addition, the Tribunal notes that elections held in November 2013 saw the Nepali Congress (NC) emerge as the single largest party with the Marxist-Leninist (UML) as a close second. The Maoists were reduced from 240 seats to 80 seats and the Madhesi forces were reduced to 50 seats. The Tribunal observed that although a new Constitution has to evolve, there is no longer a Maoist insurgency in Nepal and the Maoists are directly involved in the political process: paras 24 and 25, TD. 20 Notwithstanding these considerations, the appellant claimed that although these circumstances may be the prevailing circumstances in the city areas, the position in the villages is that "extortion" still occurs and "mainly by Maoists". She claims that if she returns to the village, the Maoists will think that she is rich and she will be subject to extortion: para 26, TD. 21 As to this issue of extortion, the appellant claimed before the Tribunal that she "feared" the "extortionists" and that her family would not be able to protect her. She claimed that she had been subjected to extortion demands when she returned to her parents' home in 2013 and she could only stay there for a few days. She told the Tribunal that she gave the extortionists some money and then she went to Kathmandu and stayed with her aunt who lives close-by to her brother: para 27, TD. 22 The appellant told the Tribunal that "nothing happened to her" when she lived with her aunt although she was "very fearful". She told the Tribunal that she was followed by someone when she left the bank and that, as a single widow, she will not be treated properly in Nepal. She emphasised before the Tribunal that her husband's family dislike her and in the past they have treated her very badly. She told the Tribunal that this attitude towards widows is common in Nepal: para 28, TD. 23 The Tribunal records that it put to the appellant that the Tribunal accepted that the appellant could be subjected to extortion demands by criminal elements in her home village: para 29, TD. The Tribunal notes that independent country information reports confirm that "these criminal acts occur in the Chitwan valley region". The Tribunal records, however, that country reports indicate that the Nepalese police act to "intervene and protect extortion victims". The Tribunal notes that the reports show that in July 2013, for example, Nepalese police arrested six individuals (members of the YCL, the Maoist Young Communist League) in Chitwan District, and charged them with extortion. 24 Another aspect of the factual claims relevant to the questions in issue is this. The appellant claimed that since her accident on the farm, she can walk but not run and she needs further treatment for her hand as she has a torn ligament and an injured bone in her hand. She claims that this injury makes her "more vulnerable": para 30, TD. 25 As to the question of relocation, the Tribunal records that it put to the appellant that if she did not believe that she was safe in her home village, she "should be able to live in safety in Kathmandu". The Tribunal put to the appellant that this would be so because she has an aunt who she has lived with previously for several months in Kathmandu; her aunt has a shop there; her brother lives in Kathmandu; and her daughter lives with him in Kathmandu. The appellant told the Tribunal that "Kathmandu was not far enough away for her to be safe": para 31, TD. 26 The Tribunal put to the appellant that it did not accept that people who may want to ask her for money in her home village would follow her to Kathmandu: para 31, TD. The appellant claimed that such people had "found and targeted her husband and killed him": para 31, TD. The Tribunal observed that the appellant's first husband had been killed because he was a soldier fighting Maoist insurgents. However, the appellant claimed before the Tribunal that the Maoists in her home area know that she opposes them and they will kill her. She told the Tribunal that she could not live in Nepal as she would be "harmed". She claimed to be very weak from her accident and this made her "more vulnerable". She claims that Australia is a safe haven for women and Nepal is not. 27 In addressing the various claims made by the appellant before the Tribunal, I have already noted that the Tribunal accepted a number of matters put to it by the appellant. The Tribunal made other favourable findings to the appellant. At para 33, the Tribunal found the appellant to be "a credible witness" and "her claims have been generally consistent throughout the processing of her application". The Tribunal, at para 33, repeated its acceptance of the appellant's evidence that she is a widow and that her first husband was shot and killed by Maoist insurgents in 2004. However, the Tribunal did not accept that the appellant is at risk of harm from the same people who killed her husband or that she is at risk of harm from Maoist insurgents because she was married to a Nepalese army soldier or because she had refused to join the Maoists: para 33, TD. The Tribunal did not accept that the appellant's first husband was "deliberately targeted by people she knew because she refused to join the Maoists". The Tribunal considered the appellant's first husband had been killed because he was a solider fighting for the Nepalese army against Maoist insurgents. 28 At para 34, the Tribunal found that even if it accepted that the appellant's first husband had been killed by people who knew the appellant (as an act of revenge because the appellant had refused to join the Maoists), there was nevertheless "only a very remote chance" that the same people would target and harm the appellant in the "reasonably foreseeable future" given that 10 years had passed since her husband's death and, in any event, there is no longer a Maoist insurgency in Nepal. The Tribunal did not accept the appellant's claim that the Maoists would track her down and harm her in Kathmandu: para 34, TD. The Tribunal also observed, in addition, that the appellant had not been harmed in Kathmandu on the previous occasions when she lived there. 29 At para 35, the Tribunal observed (having made further reference to the earlier country reports) that, after assessing all the evidence, the Tribunal "finds that the [appellant] does not face a real chance of serious harm in Nepal because of her political opinion, imputed or real, as a person opposed to the Maoists" [emphasis added]. 30 Having considered those matters, the Tribunal then considered the question of whether the appellant was at risk of serious harm because of "extortion demands". 31 At para 36, the Tribunal accepted that the appellant "may be at risk of demands for money in her home village in the Chitwan district". However, the Tribunal then said that it did not accept that "this level of extortion" is "serious harm" for Convention purposes. The Tribunal observed that serious harm includes a threat to life or liberty; or significant physical harassment; or ill treatment; or significant economic hardship or denial of access to basic services; or denial of capacity to earn a livelihood, where such hardship or denial "threatens the applicant's capacity to subsist". The Tribunal described these factors as matters falling within s 91R(2) of the Migration Act 1958 (Cth) (the "Act") (as it was at the time of the Tribunal's Decision). The Tribunal also observed that the notion of persecution involves "selective harassment of a person as an individual or as a member of a group subjected to such harassment": para 36, TD. 32 The Tribunal said that it was not satisfied that the "past demands for money" the appellant and her family experienced were "sufficiently serious" to reach the "threshold of persecution": para 36, TD. The Tribunal notes that it put to the appellant at the hearing that no harm had come to her from the extortionists other than the "stress and anxiety" involved in being asked to pay money and no harm had come to her parents who remained living at the family home in the Chitwan District: para 36, TD. 33 Also at para 36, the Tribunal said this: … Also the [appellant] has not claimed, and there is no evidence to indicate, that the economic hardship caused by the extortion demands has threatened the [appellant's] capacity to subsist, or that of her family members. The [appellant's] parents continue to farm in the area and their capacity to subsist from this livelihood has not been threatened by the extortionists. After assessing all the evidence the Tribunal finds that any future economic hardship that would result if the extortion were to continue would likewise not threaten the [appellant's] capacity to subsist, and would therefore not constitute persecution. The Tribunal finds, on the evidence, that the [appellant] does not face a real chance of serious harm as a result of extortion demands from Maoists or others in her home village in the Chitwan district. 34 As to the question of steps the appellant might take to mitigate any sense of being unsafe, the Tribunal observed, at para 37, that in the event that any extortion demand is experienced by the appellant in her home area in the Chitwan District in the future which causes her to feel unsafe, the appellant has, in the past, taken steps to live with her aunt in Kathmandu. The Tribunal also notes that the appellant lived with her aunt for five months before coming to Australia in 2008 and that her daughter lives with her brother in Kathmandu. The Tribunal notes that the appellant is not "bound to return to her home village" in the Chitwan District and that she does not claim to have suffered harm when living in Kathmandu before coming to Australia or when she returned there in May 2013. As to the incident concerning the bank, the Tribunal found that the claim of being followed by someone from the bank was not based on a "past experience of serious harm". The Tribunal also found that the "chance that this will occur again in the future is remote". 35 At para 38, the Tribunal considered the appellant's claim that her injuries make her "more vulnerable to crimes including extortion" and that she will be targeted because she is a single female returning from Australia. The Tribunal again restated aspects of steps taken by authorities in Nepal to deal with such demands and then observed that "the level of extortion" the appellant claims to have experienced in the past does not constitute "serious harm". At para 38, the Tribunal said this on this topic: … Whilst the fact that she will be returning from Australia, a western country with a higher standard of living than Nepal, may increase the chance of her being subjected to extortion demands, the Tribunal finds that being a victim of the crime of extortion in itself is not serious harm in the [appellant's] case. There is no evidence to indicate that it will result in her being prevented from earning a living or denied the capacity to subsist. The Tribunal accordingly finds that there is not a real chance that the [appellant] will face serious harm because of extortion demands in the reasonably foreseeable future in Kathmandu, or anywhere else in Nepal. 36 The Tribunal then considered the appellant's claims that as a widow, a divorcee and a single female with a child, she will suffer serious harm in Nepal. At para 39, the Tribunal accepted that the appellant will experience a level of discrimination for these reasons in Nepal. The Tribunal also accepted that as a member of the particular social group of "women in Nepal" or "single mothers in Nepal" or "divorced women in Nepal" or "widows in Nepal" or "single, widowed and divorced females returning from Australia", the appellant would suffer disadvantage and discrimination. 37 At para 45, the Tribunal, having examined a range of reports and country information, observed that whilst the independent reports indicate that the appellant will face discrimination and disadvantage and a level of social stigma because of her gender and her marital status, the Tribunal nevertheless noted that the appellant's family had not indicated that they would not support her in Nepal. The Tribunal observed that the appellant was able to return to live with her parents after the death of her first husband; she stayed with her parents for some days during her visit in May 2013; her brother is looking after her daughter; she was able to live and work with her aunt previously in Kathmandu; and her father accompanied her to her second husband's family to obtain the divorce in May 2013. The Tribunal, at para 45, accepted that the appellant's husband's family would not support her, may ask her for money, and may act towards her in a hostile manner. However, the Tribunal was not satisfied that such behaviour or conduct constituted "serious harm". 38 As to her own family, the Tribunal noted that the appellant had not claimed, and there was no evidence to indicate, that her own family would not continue to support her in the future. The Tribunal also considered that although the appellant would face discrimination and social stigma, the evidence did not suggest that she would be denied access to employment or access to an income or basic services such that her capacity to subsist would be threatened. 39 The Tribunal then considered the claims of the appellant on a cumulative basis. However, the Tribunal concluded that the appellant did not face a real chance of serious harm for a Convention reason in the reasonably foreseeable future in Nepal and that her fears of persecution were not "well-founded". Accordingly, the Tribunal found that the appellant did not meet the criteria contemplated by s 36(2)(a) of the Act. The Tribunal then considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Nepal, a real risk subsisted that she would suffer significant harm for the purposes of s 36(2)(aa). The Tribunal put the matter in these terms at para 50, TD: The Tribunal considered whether there are substantial grounds for believing that the [appellant], as a person known to be opposed to the Maoists, or, as a single widowed and divorced female returning from Australia, would face a real risk of significant harm in Nepal, from Maoists, extortionists, or any other persons or criminal groups. The Tribunal considered the [appellant's] evidence, written and verbal, as outlined in the preceding pages, and the relevant country information referred to in the preceding pages. 40 Having regard to the discussion in the decision, as described in these reasons, the Tribunal found that the appellant did not face a real chance of being targeted and harmed on the ground that she is known as a person who opposes the Maoists or on the ground that her husband was a soldier in the Nepalese army and was killed in 2004. 41 As to the question of extortion, the Tribunal said this at para 53: As discussed above the Tribunal has found that the [appellant] 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 [appellant], as that term is defined in s 36(2A) and s 5(1) of the Act. The [appellant] 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 [appellant's] case, being subjected to extortion demands does not constitute her being subjected to significant harm. 42 The Tribunal also considered, for the purposes of s 36(2)(aa) question, the appellant's gender, marital and social status. The Tribunal accepted that the appellant would face a real risk of disadvantage and discrimination in Nepal because of her gender, marital and social status. At paras 54 and 55, the Tribunal re-emphasised many of the factors already discussed (which do not need to be repeated) and found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Nepal, a real risk subsisted that she would suffer significant harm for any reason. 43 The Tribunal found that it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act. Nor was the Tribunal satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). 44 Accordingly, the Tribunal affirmed the decision under review not to grant the appellant a protection visa. 45 In the Federal Circuit Court proceedings, the appellant relied upon the following grounds: 1. The [appellant] sought review of a decision refusing the awarding of a protection visa. The [appellant] gave evidence both at the [T]ribunal hearing and earlier that she was at risk of harm from Maoists for refusing their extortion demands. 2. The [appellant] says that the [T]ribunal failed to understand the true meaning of the term 'extortion', that there were possible grave consequences for someone ignoring an extortion demand contrary to Sect 91R of the Migration Act 1958. Although the [T]ribunal found the appellant to be credible, the [T]ribunal erred when it found that the threats did not reach the threshold level for persecution to arise for the reason that only 'economic hardship' could or would result overlooking the threats to life. 46 Although other grounds were raised by the appellant at the hearing before the Federal Circuit Court, those additional grounds were abandoned and the appellant only relied upon the grounds quoted above. As to the question of extortion, the primary judge said this at [22]: Refugee claims based on extortion are not always straightforward. The word "extortion" ordinarily means demands (often for money) through the use of force or threats. As such, they are often seen as involving no motivation other than gain of money or other financial benefit: Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565, 569; [1995] FCA 1333. That is not always the case: see for example Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73; [2000] FCA 1111 at [46] and [48]. 47 At [23], the primary judge observed that other complications arise where past extortion has resulted in the payment of money and nothing else. The primary judge observed that in SZTAP v Minister for Immigration & Border Protection (2015) 238 FCR 404 ("SZTAP"), Robertson and Kerr JJ found at [56] that it was illogical to found the conclusion that there was no objective basis for the appellant's fear, on the absence of harm in the past, when the absence of harm was referrable to the successful extortion of the payments. The payments having been made prevented the harm in question arising. The harm averted by the payment was, in that case, the abduction of the appellant. At [24], the primary judge noted that the appellant did not rely upon the decision in SZTAP or seek to apply similar reasoning to the facts of the case before the Federal Court. The primary judge put the matter this way at [24]: … Her argument was, in essence, that the Tribunal overlooked the threats to life [as reflected in Ground 2 as quoted at [45] of these reasons]. One problem for the [appellant] 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 [appellant] 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. 48 The primary judge then considered the approach adopted by the Tribunal in relation to relocation and at [25], the primary judge said this: More significantly, the Tribunal found that the [appellant] could reasonably relocate to Kathmandu where there was no real chance of her being subjected to serious harm because of extortion demands. Critically, the Tribunal found that the police act to protect people in relation to extortion and other crime. That finding supported the Tribunal's conclusion that there was no real chance of serious harm: Minister for Immigration & Multicultural Affairs v Respondent S152/2003 (2004) 222 CLR 1 … at [21]. 49 On the question of relocation, the primary judge also said this at [26]: In reaching its conclusion about the [appellant's] ability to live safely in Kathmandu, the Tribunal considered the practical realities that arose on the evidence including the fact that she had lived there previously with her aunt, her daughter lives there with her brother, she did not say that she could not live there and her claim of having been followed by someone from the bank there was vague, generalised and lacking in detail: [37]. I note that one of the grounds raised by the [appellant's] counsel at hearing was an attack on the Tribunal's finding of relocation. Even if it had been pursued I would have rejected it as the Tribunal considered whether it was reasonable, in the sense of practicable, for the [appellant] to live in Kathmandu: see SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 … at [21] and [24]; Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317 … at [23] (French CJ, Hayne, Kiefel and Keane JJ), [39] (Gageler J). 50 The primary judge reached this conclusion at [27]: The consequence of the finding of relocation was that the [appellant] could not satisfy the criterion in either sub-ss 36(2)(a) or 36(2)(aa). For that reason, even if there were some error in the Tribunal's conclusion about the extortion that might occur to the [appellant] in her home village, it did not affect the exercise of the Tribunal's jurisdiction. Alternatively, I would refuse to grant relief in the exercise of my discretion: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 … at [29]. 51 The Tribunal's decision was made and published on 9 February 2015. On 18 April 2015, the relevant provisions of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legal Caseload) Act 2014 (Cth) (the "Amending Act") commenced operation by force of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation 2015 (Cth). The short point is that by operation of those instruments, ss 91R, 91S, 91T and 91U were repealed (by s 12 of the Amending Act). However, at the time of the Tribunal's Decision, those provisions remained important parts of the Migration Act 1958 (Cth). The Tribunal had regard to aspects of the provisions of those sections. 52 As is well understood, s 36(2)(a) provides that one ground for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Article 1A(2) of the Refugees Convention defines a refugee as, relevantly for present purposes, any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. 53 As to persecution, s 91R of the Act was, at the relevant time of the Tribunal's decision, in these terms: 91R Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph 1(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. 54 Apart from these considerations which are relevant to the ground under s 36(2)(a) of the Act, an applicant for a protection visa might seek to demonstrate before the Tribunal that he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, in this case Nepal, there is a real risk that the non-citizen will suffer significant harm: s 36(2)(aa). 55 The notion of persecution for the purposes of s 36(2)(a) involves the concept of serious harm. 56 The ground under s 36(2)(aa) involves the concept of significant harm. 57 As to significant harm, s 36(2A) says this: (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrary deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 58 However, as to the question of whether the non-citizen is exposed to a real risk of suffering significant harm, s 36(2B) says this: (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. 59 These references to the state of satisfaction of the Minister apply to the Tribunal when the Tribunal is conducting the statutory review function. In other words, the Tribunal, as decision-maker on review, is required to reach the relevant state of satisfaction. 60 The grounds of appeal relied upon by the appellant are set out at [5] of these reasons. 61 By the first ground, the appellant says that she was found to be credible in terms of her evidence concerning extortion demands made by Maoists upon her in Nepal. She says that the Tribunal accepted that both her husband and her brother-in-law had been killed by the Maoists. She says that notwithstanding those two findings, the Tribunal found that she was not at risk of harm herself should she refuse extortion demands by the Maoists, because "10 years had passed" since the death of her husband and "things had changed". 62 As to the second ground, the appellant says that the Tribunal failed to consider the "objective factors" that "played on the appellant's mind" in the context of extortion threats even though, when putting her claims and facts supporting her claims to the Tribunal, she "did not express those feelings and fears". The appellant says that the Tribunal had a statutory duty to consider objective factors which must have played upon her mind in the face of extortion threats and a failure to address those factors is "contrary to dictates of common sense". 63 Although the appellant does not put those two grounds in the terms in which I will now put them, the appellant is essentially saying that those failures on the part of the Tribunal caused the Tribunal to fall into jurisdictional error and thus the Tribunal constructively failed to exercise the statutory review function. The first ground of appeal has the character of a challenge to findings of fact. However, I proceed on the footing that the appellant is, in truth, seeking to say that there is a flaw in the methodology or in the reasoning which is so pronounced that it takes the Tribunal outside the scope of a proper review function. 64 As to Ground 2, the notion of contended jurisdictional error is a little more evident because the appellant contends for an express failure of a statutory obligation to make an enquiry about a matter which required enquiry on the part of the Tribunal as a necessary element of the exercise of the statutory review function. 65 The appellant put on written submissions by her lawyer, Mr Newman. Also, oral submissions were made at the hearing. 66 The written submissions are essentially confined to a short but central matter. 67 In the written submissions, Mr Newman identifies some of the foundational facts and puts the contended jurisdictional error in this way. He says that the Tribunal accepted that demands had been made upon the appellant in the past. He says that the Tribunal accepted that in May 2013 the appellant stayed with her parents in the village in Nepal and she was subject to demands made upon her by the Maoists once they learnt that she had returned to the village from Australia. The appellant had put the demands as a call for "donations" and she had given them money. 68 Mr Newman says that the appellant told the Tribunal that because of these demands for money, the appellant could not stay with her parents for any more than about 10 days. 69 The central criticism Mr Newman makes of the Tribunal's Decision is that it necessarily follows that a demand for money (whether called a demand for donations or not) carries with it a threat and every such demand is, as he puts it, "fraught with menace". Mr Newman says that the Tribunal did not enquire into or ask questions of the appellant about the menace or threat said to be necessarily associated with an extortion demand and took the view that although there may be a risk of demands for money being made upon the appellant, should she return to her home village in the Chitwan district, "this level of extortion" or demand for money is not "serious harm" for Convention purposes. 70 Mr Newman says that the Tribunal said that such a threat did not reach the statutory threshold for persecution and described the level of harm from persons making such demands (extortionists) as the "stress and anxiety" in being asked to pay money. 71 Mr Newman says that there is a critical step missing in the Tribunal's reasoning process because no question was ever put to the appellant in these terms, for example: "what in your estimation would be the consequence of refusing to meet a demand from the Maoists, [is it] just some anxiety or something worse?" 72 Mr Newman says that question ought to have been asked of the appellant and the Tribunal had a statutory obligation to make that enquiry once it accepted that demands might be made and it heard evidence from the appellant that she was fearful by reason of such demands potentially being made upon her. 73 Mr Newman also says that the finding that such demands gave rise to stress and anxiety rather than anything else, is a state which would have arisen or would be likely to arise by reason of the appellant meeting the demands of the Maoists and paying the money. The real question, he says, is what would the position be should the appellant refuse to pay the money or meet whatever the extortion demand might be? 74 Mr Newman says, in effect, that the failure to pursue that line of enquiry is a constructive failure to discharge the review function which amounts to jurisdictional error. 75 The second point upon which the appellant relies is that she says that she cannot avoid a real risk that she will suffer significant harm by relocating to another place such as Kathmandu within Nepal. The flaw in the reasoning is said to be that the Tribunal failed to recognise that "having somewhere to live is not the same thing as having somewhere safe to live". Mr Newman says that the appellant would only have a need to flee the village if she refused the demands of the extortionists. He says that whether a refusal would "excite their retaliatory instincts" is not discussed in the reasoning. Mr Newman also says that the Tribunal could not rationally have thought that the appellant's aunt would be capable of providing protection as well as lodgings and as to the appellant's brother, the Tribunal did not examine the question of whether the appellant's brother could provide her with protection. 76 The written submissions of the appellant do not properly provide the contextual framework of the actual findings by the Tribunal. The findings are much more comprehensive and analytically detailed than is reflected in the appellant's written submissions. That is no doubt because Mr Newman has focused directly upon the essential criticism he makes of the reasoning. Nevertheless, it is important to appreciate the findings in a comprehensive way. That is why I have set out the findings fully in these reasons and I do not propose to repeat the findings again. However, two things should be noted. 77 First, the Tribunal recognised that the appellant's evidence was credible in the sense that her claims had been consistent and in respect of those claims the Tribunal accepted that the appellant 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 in Nepal. The Tribunal also accepted that the risk of being subjected to such demands might be exacerbated by the circumstance that she had returned from Australia (a place perceived to be an affluent western country) and exacerbated by the circumstance that she had suffered workplace injuries in Australia. 78 Second, the appellant had not made a claim before the Tribunal nor described in her evidence treatment that could be regarded as falling within the statutory concept of significant harm. 79 The Tribunal examined each of the claims made by the appellant and did so comprehensively. The Tribunal forensically exposed the elements of the claims as put to it by the appellant and addressed the merits of the claims within that framework. The Tribunal was not satisfied that the claims as made and as forensically tested gave rise to a real risk that the appellant would suffer significant harm should she return to Nepal. Nor was the Tribunal satisfied that the conduct about which the appellant was apprehensive involved serious harm. 80 The claims simply do not fall within any of the notions of serious harm within s 91R(2) of the Act as it then stood. Even though s 91R(2) is expressly formulated on the footing that the six instances of serious harm are not designed to limit "what is serious harm for the purposes of [s 91R(1)(b) and the Act and Regulations]", the Tribunal was not satisfied on its forensic examination of the claims of the appellant and the evidence she adduced, that the conduct (being the extortion conduct) involved serious harm to her. 81 Although there may be circumstances where the Tribunal discharging functions and powers under the Act may be called upon to exercise a particular enquiry conditioned by the particular circumstances of the case before it, the essential proposition to keep in mind is that it is the appellant's obligation to frame the claim (not necessarily in any legally formulaic way) in a way which identifies the essential facts and conduct said to give rise to a well-founded fear of persecution for a Convention reason or a basis for believing that as a necessary and foreseeable consequence of the non-citizen being removed to a receiving country, there is a real risk that that person will suffer significant harm in the statutory sense. 82 The Tribunal correctly identified the elements of the claims made by the appellant so far as they went. It really was a matter for the appellant to identify conduct said to be necessarily related to events of threatened extortion which would give rise to a real risk of suffering significant harm or conduct which involved serious harm in the statutory sense. 83 The appellant was required to put forward facts which fairly viewed would give rise to a claim within the statutory formulations. She simply did not do that. The Tribunal did not fall into jurisdictional error by failing to hypothesise about what might happen to the appellant should she refuse a demand for money should such a demand be made. The Tribunal did not fail to make an "obvious enquiry" as to the state of the appellant's fear of harm should she elect to refuse to make a payment should a demand be made. If there were circumstances which were material to that question the appellant needed to put those facts before the Tribunal. In the absence of those matters, the Tribunal found that the state of the evidence was such that it could not be satisfied of the relevant statutory matters. 84 The primary judge made reference to the state of the claims made by the appellant before the Tribunal and correctly described the claims as "very vague and did not mention any threat to life": see [47] of these reasons. The primary judge concluded that the claims as made were properly considered by the Tribunal. The Minister correctly says that the appellant's contention that the demands made by the Maoists (in May 2013) were "fraught with menace", was not a contention made before the Tribunal. There was no factual foundation put to the Tribunal which could be characterised in that way. 85 In addition, the primary judge observed, correctly, that it was "not at all clear from [the appellant's] claims what threats lay behind the requests or demands for donations" and, in those circumstances, "the Tribunal did not err by failing to consider a threat to life" because "no such claim was made": see [47] of these reasons. 86 As to the second ground of criticism of the Tribunal's Decision, the Tribunal examined carefully all of the facts concerning the appellant's previous trips to Kathmandu and her election to spend time with her aunt and engage with her brother and her daughter. The Tribunal noted that no claim had been made to have suffered harm during any of these periods. The Tribunal found, on the evidence, that the appellant would be able to relocate to Kathmandu and was particularly influenced by the circumstance that the appellant had not made a claim to have suffered harm in Kathmandu at any earlier time. The Tribunal also elected to place emphasis upon the country information which suggested that police would act to protect the appellant from extortion. In addition, the appellant seemed to accept that those circumstances of police protection would prevail in Kathmandu but not necessarily in the country and, in particular, the Chitwan district. Nevertheless, as to Kathmandu, the Tribunal was influenced by all of these factors. It followed for the Tribunal that should the appellant relocate to Kathmandu, she would be able to avail herself of State protection for the purposes of s 36(2)(a). The same position prevailed for the purposes of s 36(2)(aa). 87 Plainly enough, the findings of the Tribunal were open on the evidence. The primary judge did not fall into error by failing to find the contended jurisdictional error on the part of the Tribunal. The appeal must be dismissed with costs. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 19 December 2017