BVN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 344
•10 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BVN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 344
File number: MLG 862 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 10 December 2021 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – refusal to grant Protection (Class XA) visa – whether Tribunal decision was affected by actual or apprehended bias – whether Tribunal failed to consider integers of claim or evidence – whether applicant was denied procedural fairness – whether Tribunal failed to comply with statutory duty or misapplied or misinterpreted law – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5J(1)(a), 36, 424AA, 424A, 425, 476, 477(1) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123
VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; [2003] FCAFC 186
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 9 November 2021 Place: Perth Applicant In person Counsel for the First Respondent: Mr A Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
MLG 862 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BVN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 28 April 2017 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) on
28 April 2017, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 31 March 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision. Accordingly, the application is dismissed.
BACKGROUND
The applicant is a citizen of Malaysia who entered Australia in March 2016 as the holder of a Subclass 601 (Electronic Travel Authority) visa.
On 11 May 2016 the applicant applied for the protection visa. In her written application, she claimed to fear harm from loan sharks in Malaysia over an unpaid debt incurred by her former husband who has since disappeared.
A delegate of the Minister made a decision not to grant the applicant a protection visa on 22 July 2016. The delegate found that the applicant did not meet the refugee criteria in s 36(2)(a) of the Migration Act because her claimed fear of harm related to a personal matter and was not for reason of her race, religion, nationality, membership of a particular social group or political opinion, as required by s 5J(1)(a) of the Migration Act. The delegate found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act because the applicant could obtain, from the Malaysian authorities, protection such that there would not be a real risk of significant harm, as outlined in s 36(2B)(b).
On 24 July 2016 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision.
The applicant attended a hearing convened by the Tribunal on 28 March 2017. At that hearing the applicant was assisted by an interpreter in the Malay and English languages.
On 31 March 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal considered the applicant’s capacity to participate in the hearing, noting that in her written application for the protection visa she claimed that, following her divorce in 2015, she was treated in a ‘psychological centre’ for three months. The Tribunal accepted that the applicant was divorced in 2015 and that she lost her job because she did not go to work for almost three months due to associated distress. At the hearing the applicant said she had not sought medical attention in Australia and her prior distress had not prevented her from working in Australia. Ultimately, the Tribunal was satisfied that the applicant had a real opportunity to put forward evidence and submissions in support of her case.
At the hearing, the applicant gave evidence that her former husband took out a loan of RM 100,000 for business purposes and that she co-signed the loan agreement as guarantor. She said that her ex-husband did not pay the debt ‘until six months’, she did not have the money to pay the debt and she was unable to contact her ex-husband. She claimed to have received anonymous threats including death threats and said that she feared she would be traced by the loan shark gang even if she relocated within Malaysia. The applicant claimed that she made a report to police to seek protection, but that ‘until now she did not get any answer for her case’.
Having regard to country information, the Tribunal was not satisfied that police in Malaysia would be ‘unable to assist against the loan shark menace’ as claimed by the applicant. However, the Tribunal was prepared to accept that the applicant had a real chance of suffering serious harm by the loan shark gang if she returned to her former home area in Malaysia. The Tribunal was further prepared to accept that the essential and significant reason for the harm was membership of a particular social group, being loan shark defaulters in Malaysia.
The applicant also said she feared that debt collectors and her former husband would find her even if she relocated within Malaysia, and that her former husband had threatened to take her children away from her. The Tribunal had regard to country information which indicated that domestic violence was a serious problem in Malaysia, but found that the applicant did not claim to fear domestic violence from her former husband. The Tribunal did not accept the applicant’s claim that her former husband would inform loan sharks if he found out where she was, noting that he was also responsible for the debt.
When asked on two occasions at the hearing, the applicant said she did not fear harm in Malaysia on account of being a woman or a Christian. The Tribunal accepted this as correct, based on country information.
The Tribunal told the applicant that it would consider whether she could safely relocate within Malaysia. It was suggested that she might be able to safely relocate to the area in which her children lived with her mother (where the applicant lived for around two years after birth) or to the city in which she had lived until she was around 17 years old.
The applicant said that her ex-husband knew her family area and that she still used her former address. However, the Tribunal noted that her family had not been harmed, harassed or questioned and that she had not lived at her former address for over 20 years. The Tribunal was satisfied that the applicant could safely relocate within Malaysia.
The Tribunal was not satisfied that the applicant had any type of profile that would give rise to a real chance she would be harmed on return to Malaysia, including as a failed asylum seeker.
On the basis of the above findings, the Tribunal found the applicant did not meet the criteria in s 36(2)(a) of the Migration Act and was therefore not a person in respect of whom Australia had protection obligations.
The Tribunal found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act. This was because it considered the applicant could reasonably relocate within Malaysia to an area where she would not face a real risk of significant harm. The area to which the Tribunal considered the applicant could relocate was to the city she had lived in until she was 17 years old, or some other part of Sarawak. The Tribunal was satisfied the applicant would be able to find work and rent accommodation. The Tribunal noted that the applicant had lived away from her children since 2015 and found that continued separation on relocation would not be unreasonable, particularly if she relocated to a place where she would be better able to visit her two children.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on
28 April 2017. The application was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application raises five grounds of review which are reproduced below without alteration:
1. The AAT Member was biased;
2. The Tribunal failed to consider many vital integers of my case;
3.The Tribunal failed to consider many vital evidence that are relevant to my case;
4. The Tribunal deprived me of procedural fairness;
5. The Member has failed to do his duty.
On 7 September 2021 the applicant filed an affidavit, in which she purported to raise three grounds of application with particulars. These grounds set out in the affidavit are as follows (transcribed without alteration save for the omission of paragraph numbers used in the affidavit):
1st Ground of Application
The AAT denied procedural fairness to me during the Hearing.
Particulars
a)The AAT failed to take steps in accordance with Section 424AA of the Migration Act that requires the Tribunal to ensure that the I understands the relevance and consequence of an adverse finding or information, orally invite me to comment on or respond, and advise me that I may seek additional time to comment on or respond to the finding or information produced or asked before me.
b)The AAT failed to advise me that I may seek additional time to comment on or respond to the adverse finding.
2nd Ground of Application
The AAT made a jurisdictional error that the I do not meet the criteria in Section 36(2)(aa) of the Migration Act 1958 (the Act) for a complementary protection visa.
Particulars
a)The AAT had adopted the wrong principles of law in affirming and subsequently refusing to grant a Complementary Protection Visa to the me as provided under Section 36(2)(aa) of the Act.
b)The AAT did not accept that I shall face harm based upon the threats of harm I allegedly received whereby no actual harm of physical violence has been suffered by the me and thus not satisfied that the events of threats claimed me did actually happened.
c)The AAT did not satisfied that based on the evidence produced before it, that the claims made me did happened before I left Malaysia or there are substantial grounds for believing that there is a real risk of the threats and physical violence would happen to me.
d)The AAT erred in law by failure to recognise that I am a person owed complementary protection by Australia that necessary and foreseeable consequence of I being removed to Malaysia, that I would face a real risk of arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment by the loan sharks.
e)That my fear of persecution are based on my fear from the loan sharks in Malaysia that is violent and aggressive in character towards the default borrowers by way of criminal intimidation or threat or violence to injure physical, mental and emotional without going thru the civil recovery of debt prescribed by laws of Malaysia.
f)That I fear the loan sharks who is a group of people that exploits and take advantage of innocent people by way of threat to injure and murder the defaulted borrower which is myself.
g)The AAT has failed to take into consideration of the current situations faced and experienced of the innocent victims or default borrowers when it comes to loan sharks. The information relied and referred to by the AAT is limited and bias to provide a good view that the public should not be afraid of the loan sharks in Malaysia where in fact, the innocent victims has suffered grievous harm physically and mentally.
h)The AAT had adopted harsh and one-sided approach in assessing the real situation and valid information involving loan sharks in Malaysia.
i)The AAT had adopted wrong principles of law in assessing the fear of harm with the claims made by the me. The AAT did not follow the Rules of “real risk” test of persecution and harm whereby AAT failed to take into account all the circumstances of fear and harms in which I had experienced and will be faced if I returns to Malaysia.
j)The AAT has erred in law and facts in finding that the authorities in Malaysia are effective in terms of providing protections to the innocent victims of the loan sharks whereby they would involve only after the criminal offence has been committed against the innocent victims whereby at that material point of time would be an afterthought as my life is put at stake.
3rd Ground of Application
That the Respondents have erred in law and / or facts in applying Section 36 of the Migration Act 1958 by failing to take into considerations of the following facts and circumstances that support the averments there are real risk that significant harm which is necessary and foreseeable harm will incur upon me if I were to be removed from Australia to Malaysia.
Particulars
a)That my life is at stake whereby threats of harm to life had been encountered by me at Malaysia;
b)That the loan shark knows the house where my family and I lived and I cannot return there because the loan sharks have made attempts and/or came to our home looking for me. I have no doubt that I would be killed and/or badly injured by the loan sharks once I returned in Malaysia;
c)I cannot live anywhere else in Malaysia. If I am forced to returned to Malaysia, I cannot live freely and I have no choice but to hide for fear of life threats since the total sum of loan borrowed from the loan sharks has now increased due to the non-repayment since 2017;
d)That the police in Malaysia only acted upon a crime being committed and that I could not afford to risk my life on daily basis to run my daily life and at the same time being the target of grievous harm from the loan sharks to push repayment in a lump sum.
e)That my family and I have suffered a lot in Malaysia and I cannot bear the thought of returning. I do not think that I will be able to cope psychologically and emotionally with a return to Malaysia which such harm would increase severely.
I treat the affidavit as raising further grounds of review and I consider below the grounds raised in the application as well as those in the affidavit.
The matter came before me for hearing on 9 November 2021. The applicant represented herself with the assistance of an interpreter in the English and Malay languages. Mr Cunynghame represented the Minister.
At the hearing I explained to the applicant that to be entitled to relief from the Court she would need to show that the Tribunal decision was affected by jurisdictional error. I invited her to tell the Court what she thinks the Tribunal did wrong. The applicant said that there was no error in the Tribunal decision and did not make further oral submissions. I then asked Mr Cunynghame to make oral submissions on behalf of the Minister, including a summary of the Minister’s written submissions. At the conclusion of the submissions on behalf of the Minister, I again asked the applicant if there was anything she wished to say to the Court. The applicant declined the offer to make any submission in reply.
CONSIDERATION
In order to be entitled to relief from this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’.[1]
[1] MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said that if the Tribunal:[2]
…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, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[2] Craig at [14].
The examples of jurisdictional error set out in Craig are not exhaustive.[3] Other examples that often arise in migration cases include where the Tribunal fails to afford an applicant procedural fairness,[4] and where the Tribunal decision is affected by actual or apprehended bias.[5]
[3] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].
[4] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].
[5] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [135].
On one view, the applicant’s concession at the hearing that there is no error in the Tribunal decision may be enough to dispose of this matter. However, in circumstances where the applicant is self-represented and has articulated grounds in her application and affidavit, it is appropriate for me to consider the grounds raised by the applicant.
Given that there is some overlap between the grounds raised in the original application and the grounds raised in the affidavit, I will address the grounds thematically.
Bias
The first ground of the application raises an allegation of bias. No particulars are provided and no explanation is offered in the application as to why the applicant claims that the Tribunal was biased in this matter. Two of the particulars to the second ground raised in the affidavit may shed some light on the applicant’s allegations of bias. These particulars assert that the information relied on by the Tribunal is ‘limited and bias’ to present a view that people do not need to fear loan sharks in Malaysia, and that the Tribunal adopted a ‘harsh and one-sided approach in assessing the real situation and valid information involving loan sharks in Malaysia’. However, even taking into account the particulars to the second ground of the application, the applicant has not clearly identified the manner in which she alleges bias on the part of the Tribunal.
An allegation of bias must be distinctly made and clearly proved.[6] A bare assertion that the Tribunal member was bias, without more, will not suffice. There is nothing before me that gives rise to any inference that a fair-minded lay observer might think that the Tribunal did not bring a fair and open mind to the making of the decision.[7]
[6] Jia Legeng at [69].
[7] SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223; [2012] FCAFC 45 at [37].
To the extent that the applicant takes issue with the country information that the Tribunal relied on, this does not establish that the Tribunal was biased in any way. The choice of, and weight to be given to, country information is a matter for the Tribunal as part of its fact-finding function.[8]
[8] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
Accordingly, I find that the Tribunal decision is not affected by bias. Ground 1 of the application therefore fails.
Failure to consider integers of claims and evidence
The second and third grounds in the application and the third ground in the affidavit allege that the Tribunal failed to consider one or more integers of the applicant’s claims and that the Tribunal failed to consider relevant evidence.
It is well-established that the Tribunal is required to consider claims clearly articulated by the applicant and their component integers.[9] The Tribunal is also required to consider claims which are not expressly articulated by an applicant but which clearly emerge from the materials before the Tribunal based on established facts.[10] It can also amount to jurisdictional error if the Tribunal overlooks material evidence, but the Tribunal does not need to expressly refer to every item of evidence in its reasons.[11]
[9] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42].
[10] AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [60], [68].
[11] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
There are no particulars provided with the application to indicate which integers of her claims and which evidence the applicant believes the Tribunal has overlooked. The applicant has, however, set out five particulars relevant to this ground in her affidavit. I have had careful regard to the particulars set out in the affidavit. However, I find that the Tribunal has not failed to consider any integer of the applicant’s claims or relevant evidence. In particular, I note the following:
(a)The applicant asserts that the Tribunal failed to take into account that her life is at risk because she has faced threats of harm to her life in Malaysia. The Tribunal was clearly aware of this claim and the applicant’s evidence in this regard, and was aware that the applicant had claimed to face harm as a person who owes money to loan sharks and that her ex-husband might find her and had threatened to take her children from her. The Tribunal referred to the evidence the applicant gave about her fear of harm from loan sharks at [15] to [18] of its reasons. Although the Tribunal was not prepared to accept that the police in Malaysia were not able to offer assistance in relation to loan sharks, it was prepared to accept, based on country information, that the applicant would face a real chance of suffering serious harm from loan sharks if she returned to her home area in Malaysia. However, the Tribunal found that that risk of harm did not extend to the whole of Malaysia. In relation to the applicant’s fears from her ex-husband, the Tribunal clearly considered the applicant’s evidence in relation to this at [25] to [27] of its reasons for decision and found that the applicant did not have a real chance of serious harm from her ex-husband. It is abundantly clear from the Tribunal’s reasons that the Tribunal took into account the applicant’s claims and evidence that she had faced and would face harm in Malaysia.
(b)The applicant also asserts that the Tribunal failed to have regard to her evidence or claim that the loan sharks know the house where she and her family lived and that she cannot return there because the loan sharks have made attempts or came to her home looking for her. It is not clear from the applicant’s affidavit whether she is referring to the house where she lived with her husband and children, or the place where she was born where her mother and children now reside. In either case, the Tribunal has considered the relevant claim or evidence. The Tribunal referred to the threats that the applicant alleged she faced from loan sharks, including that she was followed and that her house was damaged, at [15] and [16] of its reasons. As indicated above, the Tribunal was willing to accept that the applicant may face a real chance of suffering serious harm in her home area where she lived with her ex-husband. In considering whether the applicant could relocate to an area where she would not face a real chance of serious harm, the Tribunal considered at [32] of its reasons the applicant’s evidence that her children have lived with her mother since 2015 without harm. The Tribunal also considered at [33] and [34] of its reasons the applicant’s evidence in relation to whether she could be traced to the area where her mother and children live, or another area where the applicant had previously lived in her youth, and ultimately found that there was only a remote chance that the loan sharks would be able to trace her to there. It is clear that the Tribunal has had regard to the applicant’s claims and evidence that the loan sharks knew where she and her family lived.
(c)The applicant next asserts that the Tribunal failed to consider that she cannot live anywhere else in Malaysia because of the money that she owes to loan sharks. The Tribunal clearly considered, in the context of both the refugee criteria and the complementary protection criteria, the applicant’s evidence and assertions as to why she could not relocate to another area in Malaysia. The Tribunal rejected the applicant’s assertions that she would face harm in all parts of Malaysia, and found that she would not face harm in the town where her mother and children live, or in another town where the applicant had previously lived in her youth. The applicant’s particular in this regard is really a request for the Court to engage in impermissible merits review.
(d)The applicant’s next assertion is that she would be at risk of harm in Malaysia and the police would only act after a crime is committed. Nothing turns on this in the context of the Tribunal’s reasons when read as a whole. Although the Tribunal was not willing to accept that the police would be unable to offer assistance in relation to loan sharks in Malaysia, it was ultimately prepared to accept that the applicant would face a real chance of serious harm in her home area. The Tribunal affirmed the delegate’s decision not because the Malaysian authorities would be able to protect the applicant, but because the real chance of serious harm and the real risk of significant harm did not extend to all parts of Malaysia, and, in the case of the complementary protection assessment, it would be reasonable for the applicant to relocate to another part of Malaysia.
(e)The applicant’s final assertion in relation to evidence overlooked by the Tribunal is that she and her family have suffered a lot in Malaysia and she cannot bear the thought of returning and does not think she would cope psychologically or emotionally if she was required to return to Malaysia. As indicated above, the Tribunal clearly considered the applicant’s claims in relation to the harm that she said she had faced in the past. This included evidence in relation to threats that extended to the applicant’s family. There is no evidence before the Court to suggest that the applicant claimed that she would be unable to cope psychologically and emotionally if she had to return to Malaysia, and no evidence of any claim before the Tribunal that any emotional or psychological difficulty would amount to serious or significant harm. Nor did any such claim emerge clearly from the materials before the Tribunal. The Tribunal was not required to consider any claim based on the emotional and psychological impact on the applicant should she be returned to Malaysia.
Having regard to the applicant’s claims and evidence as advanced to the Tribunal and the Tribunal’s reasons, I am satisfied that the Tribunal considered all of the applicant’s claims and their component integers and all of the evidence that was material to the applicant’s case. Grounds 2 and 3 of the application and the third ground in the affidavit therefore fail.
Denial of procedural fairness
Ground 4 of the application contains an un-particularised assertion that the applicant was denied procedural fairness by the Tribunal. In the first ground set out in her affidavit, the applicant again asserts that she was denied procedural fairness by the Tribunal during the hearing. The particulars set out in the affidavit suggest that the applicant is asserting that the Tribunal failed to comply with s 424AA of the Migration Act because it failed to advise her that she might seek additional time to comment on or respond to an adverse finding.
Section 424AA(1) of the Migration Act provides:
If an applicant is appearing before the Tribunal because of an invitation under s 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
There are a number of reasons why the Tribunal has not breached s 424AA in the way alleged by the applicant. Most fundamentally, the Tribunal did not put any information to the applicant for comment under s 424AA, so no occasion arose for the Tribunal to put the applicant on notice that she may seek any additional time to respond.
Further, there was no information before the Tribunal that the Tribunal was required to put to the applicant in accordance with the process in s 424A or s 424AA.[12] The information before the Tribunal comprised information provided by the applicant to the Department and to the Tribunal in connection with her claims for protection, and country information that the Tribunal had obtained. The Tribunal is not required to put to the applicant information that the applicant herself provided for the purpose of the review.[13] Nor is the Tribunal required to put to an applicant information which is not specifically about the applicant, but which is rather about a class of persons to which the applicant may belong.[14] Country information falls into this category.[15]
[12] Sections 424A and 424AA operate in a complementary manner, with s 424A(1) prescribing what must be done, subject to the exceptions in ss 424A(2A) and 424A(3): see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [80]-[104].
[13] Migration Act s 424A(3)(b).
[14] Migration Act s 424A(3)(a).
[15] See VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; [2003] FCAFC 186 at [50].
Finally, the applicant’s complaint appears to be that she was not advised she could seek additional time to respond to adverse findings. Nothing in s 424A or s 424AA requires the Tribunal to put adverse findings to the applicant. Rather, the Tribunal is required to invite the applicant to comment on information that would be the reason, or part of the reason for affirming the decision under review. In this context, ‘information’ refers to the ‘existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence’[16] and ‘does not encompass the tribunal’s subjective appraisals, thought processes or determinations’.[17]
[16] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].
[17] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 at [24], cited with approval in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].
I have otherwise reviewed the material available in the court book and find that the Tribunal has not denied the applicant procedural fairness. In circumstances where the Tribunal was not satisfied that it could make a decision favourable to the applicant on the papers, it invited the applicant to a hearing in accordance with s 425 of the Migration Act. The applicant was assisted throughout the hearing by an interpreter and there is no evidence before the Court to suggest that the applicant was unable to participate in the hearing in a real and meaningful way.
In conducting the review, the Tribunal identified some different issues to those that were the basis of the delegate’s decision. The Tribunal was required to tell the applicant the issues that would be dispositive in its review to allow the applicant an opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review.[18] Although there is no transcript of the Tribunal hearing available to the Court, it is reasonably apparent from the Tribunal’s summary of the evidence given by the applicant at the hearing that the applicant was invited to comment on the dispositive issues, including those which were not evident from the delegate’s decision. In particular, it is apparent from the Tribunal’s reasons that the Tribunal invited the applicant to provide information about the following issues which were not addressed in the delegate’s decision:
(a)whether there would be an area within Malaysia where the applicant would not face a real chance of serious harm or a real risk of significant harm;
(b)whether it would be reasonable for the applicant to relocate to another part of Malaysia;
(c)whether she faced any risk of harm from her ex-husband; and
(d)whether she faced any risk of harm as a failed asylum seeker.
[18] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [33]-[35].
Any ground asserting a denial of procedural fairness is not established.
Failure to comply with statutory duty/misinterpretation or misapplication of law
Ground 5 of the application and the second ground of application set out in the affidavit appear to assert that the Tribunal failed to comply with its statutory duty, or adopted the wrong principles of law. Ground 5 of the application contains no particulars and, on its own, identifies no specific jurisdictional error in the Tribunal’s decision. The second ground of application set out in the affidavit identifies that the asserted error relates to the Tribunal’s consideration of the complementary protection criteria in s 36(2)(aa) of the Migration Act. However, the particulars do not address the true basis on which the Tribunal found that the applicant did not meet the complementary protection criteria. In some ways, the particulars suggest that the applicant is inviting the Court to review the merits of the Tribunal decision. The Court has no jurisdiction to engage in merits review.
The reason the Tribunal found that the applicant did not meet the complementary protection criteria is because she could reasonably relocate to an area in Malaysia where she would not face a real risk of significant harm. For the purpose of assessing whether the Tribunal has misconstrued or misapplied the law in finding that the applicant did not meet the complementary protection criteria, I have focused on the Tribunal’s findings in relation to relocation, rather than the particulars identified by the applicant. In circumstances where the particulars do not accurately reflect the basis of the Tribunal decision, they do not and cannot establish jurisdictional error.
In considering the refugee criteria, the Tribunal found at [34] that the applicant could relocate within Malaysia to areas where she had previously lived and where she would not face a real chance of serious harm. For the same reasons as the Tribunal made that finding, in the context of complementary protection the Tribunal also found that the applicant could relocate within Malaysia to an area where she would not face a real risk of significant harm, as defined in s 36(2A) (see [45] and [53] of the Tribunal’s reasons).
Having found that the applicant could relocate within Malaysia to an area where she would not face a real risk of significant harm, the Tribunal then considered whether it would be reasonable for the applicant to relocate. For the purposes of considering the reasonableness of relocation, the Tribunal appears to have focused on the reasonableness of the applicant relocating to the city she lived in until she was 17 years old, or some other city in Sarawak.
In assessing whether it was reasonable, in the sense of practicable, for the applicant to relocate, the Tribunal was required to consider the individual circumstances of the applicant, and to undertake a fact intensive assessment.[19] I am satisfied that the Tribunal did this in the present case. In assessing whether it was reasonable for the applicant to locate, the Tribunal had regard to a number of factors specific to the applicant:
(a)The Tribunal considered the applicant’s submission that the Malaysian economy was poor and she would be unable to find work. The Tribunal had regard to country information in relation to the Malaysian economy, as well as to the applicant’s education and employment experience, and found that she would very likely be able to obtain employment commensurate with her skills in Malaysia, including in Sarawak. The Tribunal accepted that the applicant would earn higher remuneration for work in Australia than she would earn in Malaysia, but this did not make it unreasonable for her to relocate within Malaysia.
(b)The Tribunal considered that if the applicant relocated to Sarawak she would still be residing away from her children, who live with the applicant’s mother in a place which is one and a half hours by bus from the city the Tribunal identified the applicant could return to. The Tribunal considered that this continued separation would not be unreasonable in circumstances where the applicant has not lived with her children since 2015 and where she would be relocating to a place where she would be able to visit her children more frequently.
(c)The Tribunal acknowledged the applicant’s submission that she did not own property in Sarawak, but found that she would be able to rent accommodation, and noted that the applicant did not relevantly comment when this was put to her at the hearing.
(d)The Tribunal also acknowledged the applicant’s submission that she did not own a car in Malaysia to enable her to travel to work, but found that she would be able to use available public transport to get to work.
(e)The Tribunal found that no concerns had been raised, and none were indicated in the available country information, in relation to education, language or health, if the applicant were to relocate.
[19] MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [50]-[51].
The Tribunal has not misunderstood or misapplied the law when considering whether the applicant met the criteria in s 36(2)(aa) of the Migration Act. The applicant has not identified any other way in which the Tribunal misunderstood or misapplied the law, or failed to carry out its statutory task, and there is no jurisdictional error in this regard apparent from a review of the Tribunal’s reasons.
CONCLUSION
I have found no jurisdictional error in the Tribunal’s decision. It follows that the application must be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 10 December 2021
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