Dey20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1047
•15 December 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DEY20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1047
File number: PEG 212 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 15 December 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visa – whether Tribunal failed to properly consider the applicant’s complementary protection claim in circumstances where Tribunal relied on findings made in relation to Convention claim – where applicant’s Convention claim and complementary protection claim were premised on same factual basis – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 476, 477 Cases cited: AOS18 v Minister for Immigration and Border Protection [2019] FCCA 327
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
CDY15 v Minister for Immigration and Border Protection [2018] FCA 175
DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 21 September 2022 Place: Perth Counsel for the Applicant: Mr B Tomasi (Pro Bono) Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 212 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEY20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application 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
Before the Court is an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 22 June 2020 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant relies on an amended application filed on 1 August 2022 which contains a single ground of application. This ground alleges that the Tribunal failed to properly consider the applicant’s claim for complementary protection because the Tribunal rejected the applicant’s complementary protection claim for the same reasons as it rejected her claim based on the 1951 Convention relating to the Status of Refugees (Convention). The applicant asserted that this approach demonstrated error in this particular case because the Tribunal’s reasons for rejecting the applicant’s Convention based claim focused on the nexus between the applicant’s political activities and the risk of harm, rather than the existence of the risk of harm.
For the reasons outlined below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia in December 2011 as the holder of a visitor visa.
On 11 July 2014 the applicant lodged an application for a protection visa.
The applicant’s claims for protection were set out in a statement that accompanied the protection visa application. The applicant claimed to fear harm at the hands of the Barisan National (BN) party if she returned to Malaysia on the basis of her political affiliation with the Keadilan party and because of her Indian ethnicity.
On 4 January 2017 a delegate of the Minister refused to grant the applicant a protection visa.
The applicant lodged an application to the Tribunal for review of the delegate’s decision on 16 January 2017.
On 30 September 2019 the applicant’s migration agent provided to the Tribunal a statement made by the applicant, which provided greater detail in relation to her claims to fear harm if she returned to Malaysia and the harm she faced in the past.
The applicant attended hearings convened by the Tribunal on 2 October 2019, 7 November 2019 and 22 January 2020.
On 22 June 2020 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
After summarising the applicant’s evidence in detail the Tribunal expressed concern that there were obvious inconsistencies in the applicant’s evidence over time which gave rise to concerns regarding the credibility of her claims.
Even though it had concerns about the credibility of the applicant’s evidence, the Tribunal accepted parts of the applicant’s claims on the basis that they were plausible. Those parts of the applicant’s claims that the Tribunal accepted included that:
(a)the applicant was sexually assaulted in December 2011, this was the catalyst for her leaving Malaysia, and that she may have been hesitant to raise this claim earlier in her application;
(b)the applicant was a supporter of the Keadilan party and that she had provided general support to the Keadilan party by way of handing out flyers and speaking to friends and neighbours and would continue to support the party in a general way if she returned to Malaysia; and
(c)the applicant was involved in a motorcycle accident in 2009 and the other driver may have driven off without stopping.
However, the Tribunal did not accept that the sexual assault occurred because of the applicant’s involvement with the Keadilan party, that the motorcycle accident was a deliberate retaliation for the applicant’s involvement with the Keadilan party, or that the applicant was threatened or harmed as a result of her support for the Keadilan party.
The Tribunal therefore did not accept that the applicant faced a real chance of suffering serious harm from BN supporters now or in the reasonable foreseeable future if she were returned to Malaysia.
The Tribunal also found that the applicant would be able to access effective state protection from the harm she claimed if she returned to Malaysia. The Tribunal considered the applicant’s evidence that she reported the motorcycle accident to the police and found that the reason the Malaysian police did not pursue the applicant’s complaint was because the applicant was unable to provide details that could identify the other driver. The applicant did not report the sexual assault to the police and while the Tribunal understood her reasons for not reporting the matter, the Tribunal was not satisfied that adequate state protection would be withheld.
The Tribunal considered that the risk to the applicant of further sexual violence was a risk faced by the population of Malaysia generally and not by the applicant personally.
Having considered the applicant’s claims singularly and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention-related reason.
The Tribunal then considered whether the applicant met the complementary protection criteria and relying on its previous findings, was not satisfied that the applicant met the criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant filed her application for judicial review on 9 July 2020, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant’s amended application filed on 1 August 2022 raises the following single ground of application:
The Tribunal failed to properly consider the applicant’s claim to complementary protection.
Particulars
At [197], the Tribunal found that the applicant was not at a “real risk of significant harm as a necessary and foreseeable consequence of her return to Malaysia” for the same reasons as it rejected her claim for Convention protection. That was erroneous because the reasons the applicant was found not to be entitled to Convention protection centred on the nexus between her political activities and the risk of harm, not the existence of a risk of harm.
The evidence before the Court comprises the court book and an affidavit of Ms Daphne Teresa Ann Jones-Bolla affirmed on 25 September 2020 and filed on behalf of the Minister.
CONSIDERATION
The ground as particularised identifies that the alleged error made by the Tribunal is evident at [197] of the Tribunal’s reasons. In my view, that paragraph needs to be read in the context of [196]. Those paragraphs read (reproduced without alteration):
196.Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal further notes that the necessary and foreseeable consequence element at s 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.
197.The Tribunal has found that the applicant does not face a real chance of serious harm now, or in the reasonably foreseeable future, as a result of reasons of a real or imputed political opinion as a supporter of Keadilan and Anwar Ibrahim, as a female supporter of Keadilan or as a female without male support or protection or for any other reason. For the same reasons, the Tribunal finds she does not face a real risk of significant harm as a necessary and foreseeable consequence of herreturn to Malaysia for those reasons.
The issue for the Court’s determination is whether the Tribunal properly considered the applicant’s complementary protection claim in circumstances where, in reaching its conclusion at [197], it simply relied on its reasoning and earlier findings made in the context of its consideration of the applicant’s Convention based claims.
Applicant’s submissions
The applicant accepted, based on Robertson J’s judgment in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] (SZSGA), that:
(a)treatment of the factual basis of a claim may apply equally to a claim of refugee protection and a claim of complementary protection;
(b)it is not impermissible for the decision-maker to adopt factual findings made in relation to refugee protection for the purposes of brevity; and
(c)the rejection of factual matters in relation to a claim for refugee protection may necessitate the rejection of a claim to complementary protection.
The applicant submitted that where the factual basis for a claim to refugee protection is accepted, but the nexus to a Convention reason is not, the decision-maker must separately consider the integers of the claim to complementary protection.
The applicant submitted that in the present case the Tribunal dismissed her Convention based claim on the basis of a lack of a Convention nexus between the applicant’s political opinion and the harm she suffered. It should have separately considered the integers of her claim to complementary protection and, in the course of that consideration, made findings about the risk of the applicant facing similar harm as a necessary and foreseeable consequence of returning to Malaysia.
In particular, the applicant identified that the Tribunal made positive findings that she had faced past harm including that:
(a)the applicant was sexually assaulted in December 2011;
(b)in 2009 the applicant was struck on her motorcycle by an unknown person who then immediately drove off; and
(c)the applicant reported the motorcycle accident to the police, but the police refused to take any action.
In oral submissions, Counsel for the applicant also referred to the Tribunal’s consideration of whether the applicant would face family violence from her former husband and submitted that this too needed to be considered separately for the purposes of complementary protection.
Minister’s submissions
The Minister identified a number of relevant factual findings made by the Tribunal in its consideration of the applicant’s refugee claim and submitted that the Tribunal was not required to separately consider the integers of the applicant’s claim to complementary protection. The Minister submitted that the reasoning of Judge Kendall in AOS18 v Minister for Immigration and Border Protection [2019] FCCA 327 (AOS18) applied in the present case.
Relevant cases
It is often permissible for a decision-maker to rely on factual findings made for the purpose of considering whether an applicant meets the refugee criteria in s 36(2)(a) of the Migration Act in considering whether the same applicant meets the complementary protection criteria in s 36(2)(aa). As the High Court said in DQU16 v Minister for Home Affairs (2021) 388 ALR 363; [2021] HCA 10 at [27] (footnotes omitted):
Although the statutory questions posed by s 36(2)(a) and (aa) are different, it has long been recognised that, to the extent that the factual bases for claims under s 36(2)(a) and (aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a). The question under s 36(2)(aa) then is whether, in light of those and any other relevant findings, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm of the kind prescribed in s 36(2A), subject to s 36(2B) and (2C).
SZSGA is another case in which a court considered when it is open to a decision-maker to rely on earlier findings of fact in assessing complementary protection. I accept that the applicant’s summary of principles from that case, set out at [25] above, is accurate.
There are two cases referred to in the Minister’s submissions that are apposite to the present matter.
In CDY15 v Minister for Immigration and Border Protection [2018] FCA 175 (CDY15) the Tribunal accepted that the appellant had been attacked on two occasions, but did not accept that the attacks were politically motivated as claimed. The Tribunal found that the appellant did not face a real chance of serious harm from gang members because of his brother’s role in and conviction for an alleged gangster’s death, because the appellant assisted in the brother’s legal proceedings, or for any other Convention reason. The Tribunal relied on its findings made for the purpose of assessing the appellant’s Convention claim in its consideration of the appellant’s complementary protection claim. In addressing the appellant’s assertion that the identification of the attackers and their motivation was irrelevant to the Tribunal’s complementary protection assessment, Derrington J said at [23] and [24]:
23.The question to be determined under the s 36(2)(aa) is whether, as a necessary and foreseeable consequence of the applicant for a visa being removed to a receiving country, there is a “real risk” that he or she will suffer significant harm. That involves an evaluation of the harm which the applicant might suffer in the future and that assessment requires past facts and events to be evaluated for the purposes of ascertaining whether a propensity exists for the applicant to encounter harm in the future. Highly relevant to that inquiry is whether the applicant has suffered any previous infliction of harm and the circumstances in which it occurred. If it were the case that third parties inflicted harm on the applicant and had reasons and motivation for doing so and those reasons and motivations remained extant at the time when the decision is made, the decision maker might rightly assume that there exists a propensity for harm to be suffered by the applicant at the hands of those third parties in the future. Conversely, if the motivation or reasons behind the infliction of the initial harm have expired or lapsed, a decision maker might rightly consider that the prospect of the applicant suffering harm in the future from the identified third parties does not exist.
24.…[I]n general, as a matter of logic it is the motivation behind past inflictions of harm on an applicant which make that factor relevant to a consideration of whether similar harm is likely to be inflicted in the future. In circumstances where the reason or motivation for the past infliction of harm is not known, the fact that the applicant has sustained that harm, of itself, must necessarily be of little significance in deciding whether, in the future the applicant might be at risk of similar harm. Put another way, it must be that, in all but the most exceptional cases, the existence of prior acts of harm for which no reason or motivation is known cannot lead to the conclusion that the victim of those acts of violence faces any risk of similar harm in the future.
CDY15 was considered by Judge Kendall in AOS18. In AOS18 the Immigration Assessment Authority (Authority) accepted that the applicant had been threatened and attacked by members of the Awami League, a rival political party, but did not accept that the threats and attacks were politically motivated as claimed. The Authority relied on its findings made in relation to the Convention claims that the threats and attacks were not politically motivated in concluding that the applicant did not satisfy the complementary protection criteria. The question before the Court was whether the Authority was required to specifically address the attacks under its assessment of the complementary protection criteria. Judge Kendall said at [66]-[67]:
66.To paraphrase Derrington J [in CDY15], the difficulty the Applicant faces here is that the facts and evidence that underpin his claim about a risk of significant harm if he is returned to Bangladesh are clearly linked to his own evidence and concerns about the harm that might arise because of his political leanings. The allegations and concerns raised in relation to his Complementary claims are the same as those which ground his Convention claims.
67.Here, once the IAA had determined that any harms that arose in the past were not, in any way, politically motivated – but rather, random in nature – the foundation of the Applicant’s claims as a whole necessarily fell away.
Resolution
The resolution of this ground turns on a consideration of the applicant’s claims to fear harm, including whether her Convention claim and complementary protection claim are premised on the same factual basis, and the factual findings made by the Tribunal in its consideration of the applicant’s Convention claim.
I consider in turn each of the Tribunal’s findings of past harm identified by the applicant in her submissions to the Court and the claims that were the subject of the findings.
Sexual assault in 2011
The applicant raised this claim for the first time in her statement provided to the Tribunal on 30 September 2019. The applicant claimed that two men raped her in December 2011 and told her that unless she starts supporting the BN party, they will find her and rape her again. The applicant also identified that she feared harm from BN party workers and supporters in the future if she were to return to Malaysia.
In her summary of claims at the end of her statement, the applicant claimed that she feared harm ‘including [a]bduction, physical assault, rape, torture and murder at the hands of the BN party supporters on the basis of [her] association with Keadlin party and …being a woman who has already been raped by BN party members’.
It can be seen from this summary that the applicant claimed that she was raped in 2011 because of her political views or activities and, importantly, that her fear of harm in the future was fear from BN party workers or supporters as a result of her association with the Keadilan party.
While the Tribunal accepted that the applicant was raped, it did not accept that the assault occurred because of her involvement with the Keadilan party. The Tribunal considered that the applicant’s assertion that the assault happened because of her involvement in the Keadilan party was not credible ‘having regard to the delay in raising the claim and the inconsistent, vague and implausible nature of her evidence concerning the political threats against her and in particular why she thought the attackers were targeting her because of her support for Keadilan’. The Tribunal did not accept that the applicant was threatened verbally before or during the assault by unidentified males who told her that they would harm her due to her support for the Keadilan party, because the Tribunal did not consider the claim to be credible based on inconsistencies in the applicant’s evidence and her claimed activities in support of the Keadilan party. However, the Tribunal considered that even if it were wrong and the applicant was identified as a Keadilan party supporter during the assault, there was no evidence to suggest that the assault was other than opportunistic.
The Tribunal then assessed the chance of the applicant facing similar harm in the reasonably foreseeable future and was not satisfied that there was a real chance that the applicant would suffer serious harm from supporters of the BN party or from any other person because of her support for the Keadilan party or for any other reason.
The Tribunal’s finding that the applicant’s sexual assault was not politically motivated provided a basis for its complementary protection finding. This is because the applicant’s sole claim to fear harm from BN party supporters in the future, for the purposes of both her Convention claim and her complementary protection claim, was her support of the Keadilan party. I accept the Minister’s submission that once the Tribunal found that the past harm faced by the applicant was not politically motivated, the foundation of the applicant’s claim to face a real risk of significant harm necessarily ‘fell away’. Just as it was unnecessary for the decision-makers in CDY15 and AOS18 to give separate consideration to the factual basis of the visa applicants’ claims for the purpose of complementary protection, it was unnecessary for the Tribunal in the present case to give additional consideration to the risk to the applicant of further sexual assault for the purpose of assessing her claim to complementary protection.
There is a further finding of the Tribunal made in the course of its consideration of the applicant’s Convention claim that provides an additional basis for the applicant being unable to meet the complementary protection criteria.
The Tribunal said at [176] (emphasis added):
In the Tribunal’s view the evidence and country information does not support a finding that the assault on the applicant amounted to ‘systematic and discriminatory conduct’ for the purposes of the Convention. The Tribunal does not accept on the evidence there was any orchestrated attack on the applicant motivated by her political activity. Nor does the Tribunal accept on the evidence that sexual violence against women in Malaysia has the quality of systematic and discriminatory conduct. In this regard the Tribunal notes that the test is a forward looking one and, on the evidence before it, the Tribunal regards the risk to the applicant of any further sexual violence is a risk faced by the population of Malaysia generally and not by the applicant personally.
The finding that the risk to the applicant of any further sexual violence is a risk faced by the population of Malaysia generally and not by the applicant personally has a direct bearing on the applicant’s complementary protection claim. Section 36(2B)(c) of the Migration Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The Tribunal referred to this at [195] of its reasons, shortly before concluding at [197] that ‘[f]or the same reasons’ it found the applicant would not face a real chance of serious harm, it found that she does not face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Malaysia.
The Tribunal’s finding that the risk of future sexual violence is one faced by the population generally and not the applicant personally is another and separate reason why the applicant’s complementary protection claim could not succeed.
Motorcycle accident in 2009
In her statement provided to the Tribunal on 30 September 2019, the applicant claimed that in 2009 she was riding her motorcycle and was pushed at the side by two men riding a motorcycle which caused her to have a bad accident. She believes that the men were BN members as they rode off giving her the thumbs up. She attempted to report the matter to the police but the police would not accept her statement as she was complaining about a BN supporter and had no evidence. The applicant did not assert any basis for fearing harm in the future for the purposes of her Convention claim or her complementary protection claim other than her support for the Keadilan party.
The Tribunal accepted that the applicant had a motorcycle accident in 2009 and that the other driver may have driven off without stopping. However, the Tribunal did not accept that the applicant was struck off the motorcycle deliberately in retaliation for her involvement with the Keadilan party. The basis for the applicant’s belief that the accident was an attack against her was because she saw a BN party sticker on the motorcycle and because one of the people gave her a thumbs up. On the applicant’s own evidence, many people display BN party insignia. In the Tribunal’s view, it did not follow that simply because there was a BN party sticker on the motorcycle, the accident was politically motivated. Again, the Tribunal considered that the applicant did not face a real chance of serious harm from supporters of the BN party or any other person because of her support for the Keadilan party or for any other reason.
As with the sexual assault findings, the Tribunal’s finding that the motorcycle accident was not politically motivated meant that the foundation of her assertion that she would face a real risk of significant harm in the future effectively fell away. There is no jurisdictional error in the Tribunal, for the purposes of its complementary protection assessment, relying on its earlier findings of fact.
The Tribunal considered the applicant’s claim that she attempted to report the matter to the police but that they would not take her statement. The Tribunal found ‘on the basis that it is credible, that the applicant reported the accident to police but that they did not take the matter further because the applicant was unable to provide details through which the other driver could be identified, namely by the licence plate of the vehicle’. In these circumstances, the refusal of the police to take a statement did not establish that the police were unwilling to afford state protection to the applicant for any reason. The Tribunal found, in relation to the harm claimed from both the motorcycle accident and the sexual assault, that the applicant would be able to access effective protection measures from the harm claimed if she returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal was not obliged to re-assess the reasons the police did not follow up the complaint for the purposes of its complementary protection assessment, particularly given its finding that the accident was not politically motivated and there was not a real chance that she would face harm from BN supporters in the future. It is unnecessary in the present case to consider whether the Tribunal’s findings in relation to the effectiveness of the police are sufficient for the purposes of s 36(2B)(b) of the Migration Act, which provides that a non-citizen is taken not to face a real risk of significant harm if 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 would suffer significant harm.
Possible harm from the applicant’s ex-husband
At the hearing, Counsel for the applicant identified a further matter that, in his submission, ought to have been considered separately by the Tribunal in its assessment of the applicant’s complementary protection claim. That matter was whether the applicant would face harm from her ex-husband.
When asked at the hearing to identify where the applicant made claims regarding harm from her ex-husband, Counsel for the applicant submitted that it appeared to have been raised for the first time before the Tribunal. There is no transcript or audio recording of the Tribunal hearing in evidence before the Court, so the only evidence of what the applicant said at the Tribunal hearing is the summary of the evidence set out in the Tribunal’s reasons. The Tribunal relevantly summarised and addressed the applicant’s claims in relation to her ex-husband at [96]-[98] of its reasons, where it said:
96.Linked to her claims of persecution from BN supporters, the applicant claimed to fear harm from her former husband who was a supporter of BN.
97.Asked why she feared harm from her ex-husband she said that she will be harmed because BN will know she has returned to Malaysia through her husband. The Tribunal asked if she was suggesting her ex-husband was targeting her and she said, ‘definitely I would say now that he has got married to another lady.’ The Tribunal queried whether she had ever reported her ex-husband to police, and she said not because only the BN party assaulted her.
98.... Other than that her ex-husband would tell BN supporters of her whereabouts, the applicant did not claim to fear harm from her ex-husband directly.
At [178] of its reasons, the Tribunal found that the applicant did not face a real chance of serious harm upon return to Malaysia ‘due to [political] support for Keadilan either from BN supporter, her ex-husband or the authorities’.
Counsel for the applicant submitted that the Tribunal ought to have considered whether the applicant would face a real risk of significant harm from her ex-husband, independent of any political motivation.
In my view, there is no jurisdictional error in the Tribunal, in considering the applicant’s complementary protection claim, relying on its earlier findings in relation to the harm that she might face from her ex-husband.
I accept the submission advanced by Counsel for the Minister that the applicant’s claim does not go as far as to say that there was family violence. It is clear from the summary of the relevant claims in the Tribunal’s reasons that the applicant did not claim that she would face future harm from her ex-husband directly, or that he had physically assaulted her in the past. Rather, the applicant’s claims involving her ex-husband were that he will inform BN supporters of the applicant’s return to Malaysia and disclose her whereabouts. The Tribunal’s findings about the lack of any real chance of harm to the applicant for political reasons are again sufficient to dispose of the foundation of any claim for complementary protection based on any risk of harm from BN supporters, including her ex-husband, as a result of the applicant’s political activities.
In support of his submission that the applicant’s claimed fear of harm from her ex-husband extended beyond political motivations, Counsel for the applicant focused specifically on the Tribunal reasons at [97] where the Tribunal asked if the applicant ‘was suggesting her ex-husband was targeting her’ and the applicant replied by saying, ‘definitely I would say now that he has got married to another lady’. Counsel for the applicant submitted that this reply does not necessarily entail a political connection.
The Tribunal’s reasons must be read as a whole and when the comments at [97] are read in the context of the surrounding paragraphs and the reasons as a whole, I cannot be satisfied that the applicant claimed to face any significant harm from her ex-husband separate to the claim that he would disclose her whereabouts to BN party supporters who would harm her. It is not enough that the words might be interpreted in a way such as that suggested by Counsel for the applicant at the hearing, namely, in a way that ‘[does not] necessarily entail a connection to her support of Keadilan’. In the absence of any transcript of what was said at the Tribunal hearing that would put the comments referred to at [97] in their proper context, the applicant has not discharged the onus of establishing that she expressly articulated a claim to fear harm directly from her ex-husband, or that such a claim clearly emerged on the materials before the Tribunal. Accordingly, there was no obligation on the Tribunal to consider whether the applicant would face a real chance or a real risk of harm from her ex-husband beyond the harm that she claimed based on political motivations: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. As mentioned above, in relation to the complementary protection claim based on political motivations, it was open to the Tribunal to rely on the findings of fact and reasoning in relation to the Convention claim.
The applicant’s sole ground of application does not establish jurisdictional error in the Tribunal decision.
CONCLUSION
I have found that the applicant has not established jurisdictional error in the Authority decision. The application to this Court must therefore be dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 December 2022
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