Eab20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1923
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EAB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1923
File number(s): PEG 259 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 26 August 2021 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – claim of fear arising from debts owed – whether failure to consider claims – whether failure to disclose and ask for comment on country information – whether jurisdictional error Legislation: Evidence Act 1995 (Cth), s 60
Migration Act 1958 (Cth), ss 5H, 5J, 36, 424A, 474, 476
Cases cited: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 65 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
NOAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WZATH v Minister For Immigration & Border Protection [2014] FCCA 612
Number of paragraphs: 32 Date of last submission: 10 August 2021 Date of hearing: 10 August 2021 Place: Perth Applicant: Appeared in person (with the assistance of a Mandarin interpreter) Counsel for the First Respondent: Ms C. I. Taggart Solicitor for the First Respondent: Minter Ellison Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 259 of 2020 BETWEEN: EAB20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The originating application filed 2 September 2020 be dismissed.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 2 September 2020 the applicant filed an application for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 21 August 2020. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), affirming the Delegate’s Decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”). The Tribunal Decision is in the Court Book (“CB”) at 156-169.
BACKGROUND TO THE TRIBUNAL DECISION
The relevant background to the Tribunal Decision is as follows:
(a)the applicant was born in Kuching, Sarawak, Malaysia, and holds Malaysian citizenship, belongs to the Chinese ethnic group, is of the Christian faith, and speaks Mandarin;
(b)the applicant’s relevant migration history is that:
(i)on 23 July 2014 he was issued a UD-601 Electronic Travel Authority visa;
(ii)on 3 August 2014 he departed Kuala Lumpur, Malaysia and on the same day arrived in Perth, Australia, and he has not left Australia at any time after his arrival;
(iii)on 5 November 2014 he was granted an FA-600 Visitor visa which ceased to be valid on 25 April 2015, and he has thereafter remained in Australia as an unlawful non-citizen; and
(iv)on 4 October 2016, he applied for the Protection Visa, claiming a fear of harm from his friends in Malaysia, due to outstanding debts: CB 17-61;
(c)the Delegate’s Decision was made on 12 January 2017. The Delegate was not satisfied that there was a real chance of the applicant suffering persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act in the receiving country (Malaysia), and therefore made the finding that he was not a refugee as defined in s 5H of the Migration Act and that the criterion in s 36(2)(a) of the Migration Act was not satisfied: CB 63-79;
(d)on 4 February 2017 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 80-95;
(e)on 24 January 2018 the Tribunal invited the applicant to attend a hearing: CB 105-118;
(f)on 15 March 2018 the Tribunal wrote to the applicant informing him that the hearing had been postponed: CB 115;
(g)on 3 February 2020 the Tribunal informed the applicant of the date the hearing was to be resumed: CB 118-123;
(h)the applicant attended the hearing on 13 March 2020 (“First Tribunal Hearing”) without representation and with a Malay interpreter present: CB 127-129;
(i)on 9 July 2020 the Tribunal invited the applicant to attend a second hearing: CB 132-143;
(j)the applicant attended a second hearing on 5 August 2020 (“Second Tribunal Hearing”) without representation and with a Mandarin interpreter present: CB 127-129; and
(k)the Tribunal Decision was made on 21 August 2020: CB 156-165.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)noted that the applicant was Christian and identified himself as ethnically Chinese: CB 160 at [29];
(b)accepted:
(i)that the applicant came to Australia in order to work: CB 162 at [37]-[38];
(ii)that the applicant may have been misled by third parties into thinking that he could apply for a work visa while in Australia: CB 164 at [52];
(iii)the applicant's evidence at hearing that he had not faced harm in the past in Malaysia and did not fear harm in the future, and noted that he “repeatedly confirmed” that he had not experienced, and did not fear, harm: CB 164 at [53]; and
(iv)that the applicant had borrowed money from his brother that he would like to repay, but that he had no fears in relation to the loans from his brother: CB 164 at [54];
(c)did not accept that:
(i)the applicant subjectively feared harm in Malaysia due to debts or for any other reason: CB 164 at [55]; and
(ii)there was a real chance the applicant would be harmed in Malaysia on account of loans or any other reason: CB 164 at [57] and 165 at [65]; and
(d)was not satisfied that the applicant met the:
(i)refugee criterion under s 36(2)(a) of the Migration Act: CB 164 at [58]; or
(ii)complementary protection criterion under s 36(2)(aa) of the Migration Act: CB 165 at [60]–[62] and [66].
JUDICIAL REVIEW APPLICATION
The requirement for jurisdictional error
If a decision of the Tribunal is affected by jurisdictional error, it may be set aside by this Court upon judicial review: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may legal unreasonableness: as to which see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J. Bias, either actual or apprehended, may also result in the setting aside of a Tribunal decision: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 65 ALD 1; MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [32]-[50] per O’Callaghan and Colvin JJ. Further, any the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The onus is upon the applicant to establish jurisdictional error in the Tribunal Decision: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 (“Carrascalao”) at [47] per Griffiths, White and Bromwich JJ; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds
The Judicial Review Application contains four grounds of review, as set out below at [13] (grounds 1, 2 and 4) and [26] (ground 3).
Previous orders
By orders of the Court made on 1 October 2020 the applicant was ordered (among other things):
(a)to file and to serve any amended application and affidavit by 14 January 2021; and
(b)to file and to serve written submissions 28 days prior to the hearing date, this is, by 13 July 2021.
Applicant’s submissions
The applicant did not file or serve any amended Judicial Review Application, or any affidavits or submissions, contrary to the terms of the Court’s orders
At hearing the Court explained to the applicant that the Tribunal Decision might be set aside if the applicant was able to establish jurisdictional error in the Tribunal Decision and various categories of jurisdictional error which, if established, might lead the Court to set aside the Tribunal Decision and remit the matter for further hearing and determination by the Tribunal. The Court told the applicant that it was not to reconsider the matter as it was not undertaking a merits review of the Tribunal Decision and that it was not able to grant the applicant a visa. The Court asked the applicant, on more than one occasion, if he was able to address the four grounds of the Judicial Review Application.
The applicant did not address the grounds of the Judicial Review Application. Rather, in summary, he asserted that:
(a)he had borrowed money from his brother;
(b)in Malaysia the government was very bad to Christians, and did all kinds of things to stop him from spreading his faith;
(c)he was not happy in Malaysia, which was why he came to Australia;
(d)his health suffered in Malaysia, where he was affected by asthma;
(e)he loved Australia;
(f)the Muslims in Malaysia treated the Christians very badly, and they tried to stop him practising his religion;
(g)in Australia he was able to distribute pamphlets to letterboxes (presumably pamphlets about Christianity);
(h)he did not think his brother would hurt him, and he came to Australia to earn money to repay his brother; and
(i)the “main reason” he came to Australia was because “those people” do not respect his practising his Christianity.
None of the applicant’s submissions grappled, in any way, with the nature of any error allegedly made by the Tribunal, let alone the jurisdictional errors asserted in the four grounds in the Judicial Review Application. The applicant’s submissions amounted to no more than a plea for further merits review, contrary to long-standing principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and nothing said by the applicant went close to fulfilling the onus of proof borne by the applicant to establish jurisdictional error in the Tribunal Decision: Carrascalao at [47] per Griffiths, White and Bromwich JJ.
Grounds 1, 2 and 4
Grounds 1, 2 and 4 of the Judicial Review Application are as follows:
1. The Tribunal failed to consider the applicant may sustain harm because of his Christianity in Malaysia.
Particulars
Paragraph 29 of Decision Record
2. The Tribunal failed to consider the applicant may sustain harm as ethnically Chinese in Malaysia.
Particulars
Paragraph 29 of Decision Record…
4. The Tribunal failed to consider the applicant’s claim in fear of his life on return.
Particulars
Paragraph 34 of decision recordConsideration of grounds 1, 2 and 4
Case law
It is well established that a failure by the Tribunal to consider an applicant’s claim may amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24] per Gummow and Callinan JJ (Hayne J agreeing at [95]); AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ. In Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”. The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 (“Singh”) per Reeves, O’Callaghan and Thawley JJ at [34], observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
In the assessment of a claim the Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [45]-[46] per Lindgren, Rares and Foster JJ; Singh at [34] per Reeves, O’Callaghan and Thawley JJ.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ, the Full Court of the Federal Court observed that where the reasons given are otherwise comprehensive, and the issue has at least been identified at some point, the inference that an administrative decision-maker (there the former Refugee Review Tribunal) has failed to consider an issue should not be too readily drawn. In WAEE it was also held that it may be unnecessary for the Tribunal to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In considering the law as set out above the Court must consider whether:
(a)the claim was actually made and clearly articulated, or at least clearly discernible;
(b)the claim was identified and considered by the Tribunal;
(c)the Tribunal engaged in an active and intellectual process directed at the claim; and
(d)the claim, if made out, might have been dispositive of the review.
Tribunal Decision
In the Tribunal Decision:
(a)at CB 160 at [29] and CB 161 at [34] respectively the Tribunal said as follows:
29. The applicant is a 61-year-old Malaysian citizen. He is Christian and identified himself as ethnically Chinese.
…
34. At the hearing the Tribunal explained to the applicant the documents before it. The Tribunal read to the applicant the summary of claims contained in the delegate’s decision record, which are taken from the applicant’s written application for the visa. These claims were as follows:
•The applicant left Malaysia because he feared harm from his friends due to outstanding debts.
•The applicant has not experienced harm in Malaysia.
•The applicant did not seek help from authorities in Malaysia as he claims they could not protect him because it is a matter involving money and friends.
•The applicant has not tried to move to another part of Malaysia to seek safety because they will try to find him and force him to repay the money.
The Tribunal notes the applicant’s application also stated:
•He could not pay his friends after he stopped working in Brunei as a carpenter; and
•He felt depressed to think about his debt and was scared his life would be in danger on return
(b)at CB 162-163 at [42]-[48] the Tribunal said as follows:
42.The Tribunal asked the applicant about the experiences in Malaysia that make him fear returning to where he lived before coming to Australia. He said he came here to work to pay for his debt. He said now he can’t make any money because the pay is very little and some companies won’t allow him to work because it is illegal for him to work.
43. The Tribunal asked the applicant what he feared may happen to him if he returns to Malaysia and he explained that he wanted to stay but that didn’t mean he refused to go back to Malaysia. He said he came here to work but now he had no money.
44. The Tribunal asked the applicant about the loans he had mentioned earlier and in his application. . (sic) He said he borrowed around $3000 Australian from his brother when he came to visit in 2016. He said he first borrowed money from his brother when his mother was very sick and he moved back to Malaysia to take care of her. He said at that point his brother was not in Kuching. He said his mother was sick and there were expenses looking after her so sometimes his brother gave him support but it still wasn’t enough but he didn’t tell his siblings much about the expenses. He said he had borrowed money from another friend but then his brother had given him money and he had paid the friend back.
45. The Tribunal queried whether, as the money was for meeting the costs of caring for his mother which he said he did on behalf of the rest of the siblings, his brother was expecting the money to be repaid and the applicant said he wasn’t sure but his brother had never asked him to pay the money back. However he said he borrowed the money and he felt he should pay it back.
46. The Tribunal asked if his brother had ever threatened him in relation to the loans and he said no, his brother ‘did not stress him about this’. His brother had not asked for the money to be repaid but he felt ashamed and he wanted to pay the money back.
47. The Tribunal asked what harm the applicant would suffer if he returned to Malaysia and he said, ‘no harm’. He said he ‘owe the money, so I have return’. However, he said there was no harm for him if he went back to Malaysia.
48. The Tribunal asked if the applicant had any other concerns and he said he had been cheated. He wanted to apply for the visa but he had been cheated. He said he came to Australia for a work visa but he had been cheated. Agents had taken money from him but they did nothing for him and he didn’t get a visa with work rights and he wanted to work legally.
(c)at CB 164-165 at [53]-[63] the Tribunal said as follows:
53. While the applicant expressed fears of return to Malaysia in his application, he did not do so before the Tribunal. The Tribunal found his evidence on this point to be credible. The Tribunal explored with the applicant whether he had concerns regarding loans in Malaysia or for any other reason and the applicant repeatedly confirmed he had not faced harm in the past in Malaysia and did not fear harm in the future. The Tribunal accepts his evidence in this regard and considers it is to be preferred to the general terms of the claims expressed in his application.
54. The Tribunal accepts the applicant’s brother loaned him money in Malaysia to assist him with expenses while caring for his mother and later in Australia when he visited here. However, the Tribunal also finds, based on the applicant’s evidence, that his brother has not sought repayment of these loans and the applicant has no fears with respect to the loans owed to his brother. The Tribunal finds based on the applicant’s evidence that he wishes to remain in Australia with the right to work so he can earn money. The Tribunal also accepts he feels he would like to repay his brother and that working lawfully in Australia would enable him to do so.
55. However, the Tribunal does not accept that the applicant subjectively holds any fears with respect to returning to Malaysia due to loans owed there or for any other reason.
56. In any event, based on his experience in Malaysia, the lack of any harm to him or any demands for repayment of the loans from his brother in the years since he left Malaysia or in the period since the later loan was made the Tribunal does not accept that there is a real chance that he will face serious harm from his brother or from any other person on his return to Malaysia due to loans. The Tribunal considers, based on the applicant’s evidence overall, that he came to Australia because he wished to seek employment in Australia and not because he feared serious harm from his brother or from any other person from whom he borrowed money.
57. As noted above, the Tribunal does not accept that the applicant has established that there is any basis on which it could be satisfied that he faces a real chance of suffering serious harm in Malaysia due to debts owed there or for any other reason now or in the reasonably foreseeable future.
58. As the Tribunal finds the applicant is not owed protection under s.36(2)(a), the Tribunal has considered the applicant’s claims under s.36(2)(aa), the complementary protection ground. The types of harm that fall under complementary protection are exhaustively defined by s.36(2A), specifically that the person will be either arbitrarily deprived of life, the death penalty will be carried out, the person will be subjected to torture, the person will suffer cruel or inhuman treatment or punishment and that the person may suffer degrading treatment or punishment.
59. As noted earlier, the applicant has told the Tribunal he does not fear any harm on return to Malaysia.
60.The test which the Tribunal must apply is a forward-looking test, namely, whether the applicant faces a real risk of significant harm in the reasonably foreseeable future on return to Malaysia. The Tribunal finds that the applicant has not been asked to repay the loans. He has family in Malaysia with whom he maintains contact including his daughter and his brother who has previously provided financial support for him when needed. Further the applicant has a long history of working in Malaysia and Brunei including in the construction industry. The Tribunal finds based on the applicant’s evidence and circumstances he would have family support and prospects for employment in Malaysia. This combination of facts leads the Tribunal to find that the applicant does not face a real risk of significant harm on return to Malaysia.
61. Further, the Tribunal has found there is no real chance the applicant would be subjected to serious harm on account of loans owed in Malaysia.
62. The real risk test imposes the same standard as the real chance test. Noting the findings the Tribunal has already detailed, relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk that he would suffer significant harm, now or in the reasonably foreseeable future, from any person or for any reason.
63. There are no other claims that arise from the evidence or country information and the applicant has not raised any further fears of returning to Malaysia.
Consideration of ground 1, 2 and 4
Grounds 1, 2 and 4, set out above at [13], appear to contend that the Tribunal failed to consider claims that the applicant may sustain harm as a Christian, and as an ethnic Chinese, and his claim that he feared for his life in Malaysia, or if returned to Malaysia. The particulars to these grounds point to the Tribunal Decision at CB 160 at [29] and 161 at [34].
The Tribunal Decision is the only evidence of what occurred at the hearing and absent evidence, such as a transcript of the First and Second Tribunal Hearings, the Tribunal Decision, which is at CB 156-169 in Exhibit 1, ought to be accepted as an accurate record of the hearing: WZATH v Minister For Immigration & Border Protection [2014] FCCA 612 at [14] per Judge Lucev citing Evidence Act 1995 (Cth), s 60(1); Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 at [63] per Kirby J; NOAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [59] per Perram J.
The applicant’s claims were set out in the Tribunal Decision: CB 161 at [34]. Those claims, expressly put to the applicant by the Tribunal and confirmed by the applicant as his only claims, did not include claims that he may sustain harm as a Christian or as an ethnic Chinese. There was, therefore, no failure by the Tribunal to consider those “claims” because they were not actually made or clearly articulated or clearly discernible.
The only basis on which the applicant claimed to fear harm, of any sort, in Malaysia was on the basis of a fear of “harm from his friends due to outstanding debts”: CB 161 at [34]. The Tribunal expressly identified this claim: CB 161 at [34]. Further:
(a)the applicant’s confirmed claims indicated that he had “not experienced harm in Malaysia”: CB 161 at [34];
(b)the Tribunal asked the applicant about the claims and any harm he might have suffered in the past from his brother (from whom he had borrowed the money in 2016: CB 163 at [44]), and the applicant said his brother “did not stress him about this”: CB 163 at [46]. In relation to possible future harm upon return to Malaysia, the applicant confirmed that there would be “no harm”: CB 163 at [47].
The Tribunal expressly considered and determined this claim, accepting that the applicant’s brother loaned him money: CB 164 at [54], but finding that the lack of harm to the applicant (including the lack of demand for repayment) meant that the applicant had no fear with respect to the loan and that there was not a real chance of serious harm if he returned to Malaysia, either now or in the reasonably foreseeable future: CB 164 at [53]-[57]. In so doing the Tribunal demonstrated an active and intellectual process directed at this claim, and arrived at a conclusion and determination which was plainly open on the evidence, and indeed, in the Court’s view, probably the only conclusion and determination open on the evidence, especially the evidence that the applicant expressly denied fearing any harm in Malaysia for any reason: CB 163 at [47] and 164 at [53] and [55].
While the Tribunal noted that the applicant was Christian and identified as ethnic Chinese (CB 160: [29]), these matters were not the subject of any particular claims by the applicant, but in any event, as noted in [23] above, the applicant expressly denied fearing any harm in Malaysia for any reason. The Court also notes that the Tribunal considered the applicant's case independently of his claims and found that there were no other claims arising from the applicant's evidence or country information: CB 165 at [63].
Grounds 1, 2 and 4 are therefore not made out and do not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 of the Judicial Review Application is as follows:
3. The Tribunal failed to disclose the Country information to applicant and failed to ask the applicant to make comment on that information.
Particulars
Paragraph 49 of decision recordConsideration of ground 3
Section 424A of the Migration Act is as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Ground 3 contends that the Tribunal failed to disclose country information to the applicant or to invite his comment on it.
The Tribunal Decision set out and considered country information in relation to illegal loan shark activity in Malaysia, as well as the most recent Department of Foreign Affairs and Trade report on Malaysia: CB 163-164 at [49]–[51] and 165 at [63]. That country information is exempt from s 424A(1) of the Migration Act by reason of s 424A(3)(a) of the Migration Act. This country information did not, therefore, need to be put to the applicant. The Tribunal’s obligations under s 424A of the Migration Act were not, on the facts, engaged in circumstances where there was no relevant “information” that it needed to put to the applicant under s 424A of the Migration Act: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [17]-[18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Further, the Court observes that the country information concerning loan sharks was irrelevant because, as the Tribunal noted, the applicant “did not claim to have borrowed money from loan sharks in Malaysia or to have been in debt to anyone other than his brother”, and the brother had not sought repayment of the debt: CB 163 at [50].
In the above circumstances, ground 3 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDER
For the reasons set out at [14]-[25] and [27]-[30] above, the Court has concluded that none of the grounds of the Judicial Review Application have been made out. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 26 August 2021
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