DIL18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 860
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DIL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 860
File number: MLG 1873 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 28 September 2023 Catchwords: MIGRATION LAW – Protection (Subclass 866) visa application – Review of a Tribunal Decision to refuse application – Tribunal satisfied that there are effective protection measures in the receiving country pursuant to ss. 5J(2) and 5LA of the Migration Act 1958 (Cth) – Tribunal satisfied that Applicant could receive protection from an authority of the receiving country, such that there would not be a real risk of the Applicant suffering significant harm pursuant to s. 36(2B)(b) of the Act – Grounds not proved – Application dismissed. Legislation: Migration Act 1958 (Cth) ss. 5J, 5LA, 36, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch. 2
Migration Regulations 1994 (Cth) s. 36, Sch. 2
Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774]
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submissions: 11 September 2023 Date of hearing: 11 September 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents: Mills Oakley ORDERS
MLG 1873 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIL18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 CHAMPION:
INTRODUCTION
By an application filed on 28 June 2018 the Applicant applies for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision of 27 April 2018 affirmed a decision of a delegate of the First Respondent (Delegate) to not grant the Applicant a Protection (Subclass 886) Visa.
SUMMARY
For the reasons set out below, I have dismissed the application.
The applicant is a citizen of Malaysia. He is of Tamil ethnicity and, as to his religion, he is Hindu.
Before the Delegate, the Applicant had claimed to fear harm from some Malay people as well as a moneylender. The Applicant had claimed to have been mentally and physically tortured by these groups and that he would be killed if returned to Malaysia (CB32).
Before the Tribunal, the Applicant raised a new claim that he feared harm from two gangs because he had told them that they should pay for food they ate from a food stall his wife and mother operated (CB95-6, [12]–[15]). He claimed that the gangs came to the Hilton Hotel where he worked and there was a “kerfuffle” (CB96, [16]–[17]). Sometime later, he was dismissed from his employment at the Hilton. The Applicant initially came to Australia on a visitor visa. He extended his three-month stay in Australia because a friend in Malaysia told him that gang members planned to “cut him up in pieces and dump him somewhere” (CB96-7, [18]). He duly applied for the Visa (CB97, [19]). The Applicant claimed that the police were bribed by the gangs, did not care about Tamils, and prioritised the safety of Muslims (CB97-8, [22]–[23]).
The Tribunal had “reservations about [the Applicant’s] account” (CB102, [38]). The Tribunal was concerned about the divergence between the Applicant’s claims before the Delegate and before the Tribunal (CB102, [38]). The Applicant claimed the facts and substance of his case as presented to the Department were incorrect, however the Tribunal was concerned that the Applicant did not raise this issue with the Department given the seriousness of his claims (CB102, [40]). Further, the Tribunal was concerned about gaps in the Applicant’s narrative (CB102, [42]). The Tribunal found it difficult to accept that the Applicant could not provide corroborative information to support his claim that he had been dismissed from his employment at the Hilton hotel (CB102–3, [44]–[45]).
Notwithstanding these concerns, at [48] (CB103) of its written reasons, the Tribunal said the following:
48. […] The Tribunal is prepared to give the applicant the [benefit of the] doubt and for the purposes of the review accepts the latest version of his claims that:
•He and his family in Malaysia are being pursued by gangs who want to kill and harm him and his family because he expressed the view they should pay for the food they took;
•Gangs erupted into a brawl near his mother’s stall and they were arrested by the police as drugs may also have been involved;
•The applicant lost his job at the Hilton because the gangs created conflict at his workplace; and
•The gangs threatened him not to go to the police.
Nonetheless, the Tribunal was satisfied that, pursuant to s. 5J(2) and s. 5LA of the Migration Act 1958 (Cth), effective protection measures were available to the Applicant in Malaysia (CB103–4, [51]).
As to the Applicant’s complementary protection claims, the Tribunal accepted that, as a result of being a victim of gangs, the Applicant faced a risk of severe physical violence and ill-treatment, and this harm would amount to “significant harm” as outlined in ss. 36(2A)(c) and (d) of the Act. Nonetheless, the Tribunal found as follows (CB105, [58]):
58. […] the Tribunal finds that the level of protection from state and other authorities available to him, if removed from Australia to anywhere within his country of reference, will reduce the risk of significant harm to below that of a real one.
[…]
the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.
Further, the Tribunal was not satisfied that the Applicant would be denied effective protective measures on account of his Tamil ethnicity and his Hindu religion: (CB105–8, [60]–[75]).
For these reasons the Tribunal did not grant the Applicant the Visa.
JUDICIAL REVIEW APPLICATION
There are two grounds of judicial review:
1.Tribunal failed to taking consideration of my relevant material and the fear of harm. Malaysian Police was unwilling to provide sufficient protection against these gangs.
2.Tribunal failed to take consideration of my fear of harm if I go back to Malaysia as my life will be in danger.
[As written]
CONSIDERATION
Ground 1
In his first ground for judicial review, the Applicant submitted that the Tribunal failed to consider “relevant material” and that the “Malaysian Police was unwilling to provide sufficient protection against these gangs”.
Acknowledging that the Applicant confronted the challenges of a self-represented litigant, the Applicant did not identify or detail any relevant consideration which he says the Tribunal failed to consider. The Applicant has not proved that the Tribunal failed to take into account any relevant material which would constitute jurisdictional error.
On one reading, the Applicant’s allegation in Ground 1 that the “Malaysian Police was unwilling to provide sufficient protection against these gangs” appears to challenge the merits of the Tribunal’s finding in a way which is impermissible on judicial review. The Tribunal expressly and carefully considered country information on the Royal Malaysian Police (RMP), the Malaysian judiciary, and the prevalence (or the absence of prevalence) of discrimination against Indian Malaysians (CB98–101, [28]–[34]).
Section 5J(2) provides that “a person does not have a well-founded fear of persecution if effective protection measures available to the person in the receiving country”. The Tribunal accepted that the Applicant was a member of a social group, that he and his family were wanted by gangs, but was ultimately satisfied that the Malaysian authorities could provide effective protection, pursuant to s. 5LA of the Act. From its review of the country information, the Tribunal found that, “Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.” It found that there is “little to indicate that Malaysia is a lawless state” (CB104, [53]). The Tribunal was satisfied on the basis of the independent country information that the RMP was “reasonably effective” in combating criminal gangs and that it did not discriminate against Hindu Tamils: (CB107, [74]).
In its consideration of the Applicant’s claim for complementary protection, as is detailed below, the Tribunal also correctly noted that the test in s. 36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law: s. 5J(2) (CB105, [57]). With reference to s. 36(2B)(b), the Tribunal was satisfied that the Applicant could obtain “protection such that there would not be a real risk” that he would suffer significant harm should he return to Malaysia. The Tribunal separately addressed the refugee claims and the complementary protection claims. The Tribunal based its finding on the country information on the RMP. There was no error in the Tribunal relying on the same country information in rejecting both the refugee claims and the complementary protection claims: see e.g. the reasoning in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, [55].
Ground 1 has not made out.
Ground 2
Ground 2 was that the Tribunal failed to consider the Applicant’s fear of harm or danger to his life should he return to Malaysia.
Even if it is accepted that the Applicant subjectively held a fear of being persecuted, a well-founded fear of persecution also has an “objective requirement”: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (Dawson J) at [16].
The Tribunal’s acceptance of the Applicant’s claims (CB103, [48]) constituted an acceptance that the Applicant subjectively held a fear of being persecuted. Whatever the Applicant’s subjective fears, the Tribunal found that there was not an objective basis for those fears.
In significant part, Ground 2 raises similar issues to Ground 1. The Applicant’s claims failed because the Tribunal considered that the Applicant had access to effective protection measures because of its finding that the RMP was a “professional and effective police force” (CB98, [28]) under s. 5J(2) of the Act. Moreover, the Tribunal found that the Applicant could obtain protection such that there would not be a real risk that he would suffer significant harm under s. 36(2B)(b) of the Act.
Ground 2 has not been made out.
CONCLUSION
I will dismiss the Application and fix costs pursuant to Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 28 September 2023
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