Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: discussed
The first step in considering the appellant's contention that his case was that he had a well-founded fear of persecution for a Convention reason throughout India, because he would be a target for Muslim fundamentalists wherever he was located in India, is to decide whether the appellant should be entitled to raise that matter on this appeal. It was not raised as a ground of appeal before the Federal Magistrate, nor in the grounds of appeal before this Court. Leave to amend a notice of appeal to raise a new ground should only be granted where it is expedient in the interests of justice for that leave to be granted: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [163] [166]; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 177; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [22] . 19 In NAJT 147 FCR at [166] Madgwick J identified relevant questions on the topic as including whether the new legal argument has a reasonable prospect of success; whether there is an acceptable explanation of why it was not raised before the Federal Magistrate; whether permitting the new ground to be raised would interfere with the efficient use of judicial sitting time; the consequences to the appellant of not permitting the new ground to be raised and to the first respondent in permitting the proposed new ground of appeal to be raised and, if so, how it could be cured; and where the interests of justice lie in all the circumstances. 20 The appellant's application for a protection visa asserts in very general terms that he fears being killed by criminal Muslim fundamentalists in India if he were to return there, and refers specifically to a letter of 16 June 2006 in which he expands upon that information. That letter records the complaints of particular adverse experiences to which the Tribunal has referred in the Gujarat state. It is specific to that state. It says, however, by way of conclusion that: We have nowhere to go. If we go back to India, We can be killed by Muslims or maybe even by power hungry Hindu fundamentalists. Indian police can never protect us. I note however that in that letter, the appellant said that the incident which occurred on 31 March 2006 when he was beaten by persons he assumed were Muslim fundamentalists, he was warned to leave Gujarat, rather than that he would be attacked elsewhere in India. 21 In a letter to the Tribunal of 20 November 2006, again in my view the claim is somewhat ambiguous. It is focused upon events in and around Ahmedabad. It says: There was no any [sic] improvement in the law order situation. We were living in a fearful situation. Hiding here and there and begging safety of life from the local police. The local police did not give any solid or effective protection. Because of that we left our country to have a peaceful life. It proceeds to refer to reports about the negligence and corruption of Gujarat police.