DQD17 v Minister for Immigration

[2018] FCCA 3026

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3026

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to engage with applicant’s claims – whether Tribunal erred by failing to consider and provide adequate reasons – whether the Tribunal erred in misapplying s.36(2B) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 5K, 36, 430

Cases cited:

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

Applicant: DQD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2549 of 2017

Judgment of: Judge Smith

Hearing date: 22 October 2018

Date of Last Submission: 22 October 2018

Delivered at: Sydney

Delivered on: 14 December 2018

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent:	Mr T Reilly
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2549 of 2017

DQD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal dated 18 July 2017. The Tribunal affirmed the decision of a delegate of the Minister for Immigration to refuse the grant of a protection visa.

Background

1. The applicant is a Malaysian citizen who first arrived in Australia on 23 June 2016. On 21 September 2016 the applicant lodged an application for a protection visa. She claimed to fear harm because her husband had been involved with gangsters and when she tried to find her husband’s whereabouts she was blackmailed and both she and her children were threatened.

2. The applicant claimed that her husband was murdered and that she did not seek help as she was scared those threatening her would harm her children and the police could not protect her “24/7”. She claimed that the gangsters would find her and harm her.

3. On 22 December 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. The applicant applied for review of that decision with the Tribunal. On 18 July 2017 the Tribunal affirmed the decision of the delegate.

Tribunal Decision

1. The Tribunal made the following findings of fact:

   a)it accepted that the applicant’s husband was deceased and that his death may have been the result of his association with a gang;

   b)given the passage of time since the husband’s death and the period of time the applicant had spent away from home, the people responsible were no longer likely to take an interest in the applicant;

   c)in the event they did take an interest, the applicant had the option of relocating and/or seeking police protection.

2. In light of those findings the Tribunal found that there was no real chance of the applicant being persecuted or facing significant harm in Malaysia and so the criteria for the grant of a protection visa were not satisfied.

Consideration

1. The application contains the following four grounds: the Tribunal failed to consider the applicant’s claims fairly; the Tribunal failed to consider the applicant’s case according to law; the applicant will suffer harm if returned to Malaysia; and that the Tribunal failed to consider the complementary protection criterion.

2. The applicant appeared unrepresented at the hearing and provided no submissions of any relevance to support the grounds contained in her application. Instead, she asserted her claim that she will suffer harm if she returns to Malaysia. The grounds are, in any event, generic and in the absence of particulars, are rejected as failing to raise any arguable jurisdictional error.

3. However, there are several aspects of the Tribunal’s decision that are of concern.

   The Tribunal set out its findings under the heading “Findings”. The totality of those findings in respect of the criterion in sub-s.36(2)(a) is set out in [30] – [32]:

   30.     Having considered the applicant’s oral evidence and independent information:

   a.  The Tribunal accepts the applicant’s husband is deceased and is prepared to accept that this his death may have resulted through his association with a gang;

   b.  Given the passage of time, since his death and the period the applicant has spent away from her home, the Tribunal finds that the people responsible are no longer likely to take an interest in the applicant;

   c.  In the event they do, the applicant has the option of relocating within Malaysia and/or seeking police protection.

   31.     In view of the above findings and the country information, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if she returns to Malaysia now or in the reasonably foreseeable future.

   32.     Having considered the applicant’s claims and his [sic] evidence, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

   (Without alteration)

4. Before analysing this passage, it is necessary to set out the critical statutory provisions that the Tribunal was required to apply.

5. First, sub-s.36(2)(a) requires that an applicant be a refugee. That term is defined in s.5H of the Act:

   5H  Meaning of refugee

   (1)     For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)     in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.

   Note: For the meaning of well‑founded fear of persecution, see section 5J.

   (2)     Subsection (1) does not apply if the Minister has serious reasons for considering that:

   (a)     the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

   (b)     the person committed a serious non‑political crime before entering Australia; or

   (c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.

   (Emphasis in original)

6. The critical phrase in that definition of “refugee” is “well-founded fear of persecution”. That phrase is defined in s.5J of the Act as set out below:

   5J Meaning of well‑founded fear of persecution

   (1)     For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c) the real chance of persecution relates to all areas of a receiving country.

   ...

   (2)     A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.

   ...

   (Emphasis in original)

7. The Tribunal appears to have had three, and possibly four reasons for its conclusion that the applicant was not a refugee:

   a)the gang was no longer likely to take an interest in her: [30(b)]

   b)the applicant had the option of relocating: [30(c)];

   c)the applicant had the option of seeking police protection: [30(c)]; and

   d)any persecution feared by the applicant was not for one of the reasons in sub-s.5J(1)(a): [32].

8. The first of these did not address the question of whether there was a “real chance” of persecution but, rather, was addressed to the bare probability of persecution. It is well-established that there can be a “real chance” of persecution even where the probabilities of the occurrence of the harm are well less than 50 per cent: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, 389 (Mason CJ), 398 (Dawson J), 429 (McHugh J). However, an error in this respect would not be material if there were another basis for the Tribunal’s conclusion.

9. In the context of s.5J, relocation is important insofar as the real chance of harm does not relate to all areas of the applicant’s country of nationality: sub-s.5J(1)(c). However, the Tribunal did not make an express finding about that and only concluded that there is “an option of relocating”. On its face, that finding is insufficient to address the issue raised by sub-s.5J(1)(c) and so does not overcome the difficulty with the conclusion in [30(b)] of the Tribunal’s reasons.

10. The Minister argued, however, that, read as a whole, the Tribunal’s reasons reveal that it did make a finding that the real chance of harm did not relate to all areas of Malaysia. There are several parts of the Tribunal’s reasons that deal with relocation: [23], [24] and [28]. In the last of these paragraphs, the Tribunal records the fact that it expressed concerns at the hearing to the applicant about several aspects of her claims:

    28.    The Tribunal expressed its concern to the applicant that while it accepts that her husband is deceased and she had difficulties with people he associated with just before and after his death, it had been six years since he died and she had been in Australia for a year and it therefore seems unlikely they will continue to pursue her. The Tribunal also noted that the applicant had given evidence that the gang did not know where her mother lived and did not harass her there. This would suggest that they would not locate her if she moved to another part of Malaysia if she were to return to Malaysia. ...

11. If the record of these concerns were accepted as the basis for the Tribunal’s finding at [30(c)], it is arguable that the Tribunal properly addressed itself to the question raised by s.5J(1). In determining whether those concerns should be accepted, two matters must be borne in mind: first, the obligation under s.430(1) of the Act to prepare a statement that sets out, amongst other things, the Tribunal’s reasons for decision and any material findings of fact; and secondly, that the Court must not approach its analysis of the Tribunal’s statement too critically but must bear in mind that the Tribunal is an administrative body and not a court. The first of those two considerations allows the Court to draw an inference that the Tribunal did not consider a particular fact material when it fails to set out a finding about that fact in its statement of reasons; however, the second consideration might temper the actual drawing of that inference.

12. In this case, the matter is finely balanced. On any view, the Tribunal has failed to comply with its obligation under s.430(1) of the Act. There is no express finding that the real chance of persecution does not relate to the whole of Malaysia and yet it is apparent that the Tribunal considered that that was a material finding of fact. On the other hand, the Tribunal set out concerns that address that very question in other parts of its statement of reasons. On balance, and applying the approach that the reasons are not to be read too finely, I accept the Minister’s submission that the Tribunal did in fact make a finding that there was no real chance of persecution elsewhere in Malaysia, in particular, where the applicant’s mother lived.

13. In light of that conclusion, the error in [30(b)] of the Tribunal’s decision was not material and so did not amount to jurisdictional error. Similarly, any error in [30(c)] concerning the availability of protection by the State in Malaysia was not material and need not be considered.

14. For those reasons, I find that the Tribunal did not fall into jurisdictional error in its consideration of the criterion in sub-s.36(2)(a) of the Act.

15. The Tribunal’s reasoning in respect of the criterion in sub-s.36(2)(aa) is even more concise.

16. Sub-section 36(2)(aa) requires, in broad terms, that there be a real risk that the visa applicant will suffer significant harm. “Significant harm” is defined in s.36(2A) and s.36(2B) provides for circumstances in which there will be deemed not to be a real risk of significant harm.

17. The Tribunal gave the following reasons in respect of sub-s.36(2)(aa):

    33.    The Tribunal has also considered the applicant’s claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm if he [sic] returns to Malaysia now or in the reasonably foreseeable future.

    34.    Having considered the applicant’s claims and her evidence, the Tribunal is not satisfied that there is a real risk that she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Malaysia now or in the reasonably foreseeable future.

    35.    Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he [sic] will suffer significant harm as defined in s..36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    (Without alteration)

18. The repeated reference to the applicant as “he” (in [32], [33] and [35]) does not fill me with confidence in the Tribunal’s approach to its function of review. Nor, indeed, does the absence of any real reasoning in [33] – [35] apart from the reference to “the above findings”. Once again, there is little question that the Tribunal has simply failed to comply with its obligations under s.430(1) of the Act.

19. That said, it is possible that the findings of the Tribunal in connection with sub-s.36(2)(a) may be equally applicable, without more, to its consideration of the criterion in sub-s.36(2)(aa). The question, for instance, whether there is a “real chance” of an occurrence is the same as the question whether there is a “real risk” of an occurrence. However, there are some substantial differences which might not be addressed in the way that the Tribunal expressed its reasons here.

20. The “above findings” referred to by the Tribunal at [33] can only be a reference to the findings at [30] of its statement of reasons. As I have already said, the finding at [30(b)] is problematic in that it is expressed in terms of likelihood rather than by reference to a “real chance”. The same problem arises in respect of sub-s.36(2)(aa) given the consonance between “real chance” and “real risk”.

21. The finding about relocation has a further difficulty when applied to the sub-s.36(2)(aa) criterion. Section 36(2B) provides that 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

    …

22. This entails an element additional to that in sub-s.5J(1)(c), namely, that it be reasonable for the applicant to relocate to the area where there is no risk of harm. It is not apparent that the Tribunal addressed the reasonableness of relocation in finding that the applicant had “the option of relocating”.

23. Once again, the Minister argued that the reasonableness of relocation was considered by the Tribunal, albeit in another part of its reasons: [23] and [28]. Again, at [28], the Tribunal recorded the concerns it had expressed to the applicant at the hearing:

    … The Tribunal also again put to the applicant that she was had [sic] the wherewithal to move to Australia and find work which suggests she should be able to do so in her country. ...

24. This reflected an earlier passage in the hearing referred to at [23]:

    The Tribunal asked the applicant about her claim that she could not relocate in Malaysia because she has no family or anywhere she can go and put it to her that she had no family in Australia either and appeared to be able to set herself up with a job and accommodation not long after she arrived. ...

25. In SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, Tracey and Foster JJ said, at [124]:

    The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 442-443, especially at 443C-D.

26. That statement is applicable to the issue of relocation under s.36(2B).

27. Once it is understood that the reasonableness of relocation requires consideration of the particular objections raised by an applicant, the passages in [23] and [28] of the Tribunal’s reasons can readily be seen to be addressing that question. The only issue is whether the references to the availability of relocation can be understood as findings that relocation within Malaysia was reasonable. In my view, in spite of the unsatisfactorily brief exposition of reasons in [33] – [35], in light of the fact that the Tribunal has in fact addressed the correct question at some point in its reasons, I am not satisfied by its failure to make express findings about the question later in its statement of reasons that it has failed properly to undertake a review of the delegate’s decision.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         14 December 2018