ESR17 v Minister for Immigration
[2018] FCCA 3251
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ESR17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3251 |
| Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – citizens of Malaysia – Administrative Appeals Tribunal affirming decision to refuse applicants’ a Protection (Class XA) Visa – whether repetitive questioning a denial of procedural fairness or unreasonable – whether impermissible merits review – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.36, 422B, 424, 424AA, 425, 425A, 430D, 474, 476 Migration Regulations 1994 (Cth) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 |
| First Applicant: | ESR17 |
| Second Applicant: | ESS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 565 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 March 2018 |
| Date of Last Submission: | 8 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| For the First Applicant: | In person (with the assistance of an interpreter) |
| For the Second Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 565 of 2017
| ESR17 |
First Applicant
ESS17
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 23 October 2017 the applicants seek review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision was delivered orally on 28 September 2017, and a written record made on and dated 13 November 2017, and affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicants. The Tribunal Decision appears in the Court Book (“CB”) at CB 144-150.
The first and second applicants are partners, and the Protection Visa application lists the first applicant as primary applicant. The second applicant is included in the Protection Visa application, but no specific claims are made on her behalf: CB 1-34.
Background
The background to the Judicial Review Application is as follows:
a)the applicants are citizens of Malaysia who arrived in Australia on an Electronic Travel Authority, the first applicant arriving on 10 March 2013 and the second applicant arriving on 22 August 2012, with their visas expiring on 10 June 2013 and 22 November 2012 respectively, following which the applicants thereafter remained in Australia unlawfully until they were granted bridging visas on 5 February 2015: CB 120-121;
b)on 29 October 2014 the first applicant applied for the Protection Visa, including the second applicant as a member of the same family unit, making the following claims:
i)the first applicant had to borrow money from loan sharks for his clothes making business, however his business did not improve and he continued to borrow additional funds which he could not repay: CB 19;
ii)the loan sharks sent violent people to his home, messed up his house and “almost” scared his mother to death, forcing him to hide and be unable to return to his home in fear of his being harmed and suffering violence from the loan sharks: CB 20;
iii)he has heard and seen lots of people who have been tortured and harmed by the loan sharks, and the loan sharks will hurt him in the same way, and he was forced to arrange for his mother to hide at his sister’s home to prevent her being harmed: CB 21; and
iv)the loan sharks always bribe the police, and as a result the police do nothing to stop the loan sharks, and unless the first applicant can make money to pay the police, he faces more risks if he goes to the police: CB 22;
c)on 17 May 2016 a delegate of the Minister made a decision not to grant the applicants Protection Visas: CB 65-78;
d)the applicants lodged an application for review with the Tribunal: CB 80-81;
e)the applicants were invited to attend a hearing before the Tribunal on 29 August 2017 (“First Tribunal Hearing”): CB 91-92, and the First Tribunal Hearing was adjourned and resumed on 28 September 2017 (“Second Tribunal Hearing”): CB 123-124; and
f)on 28 September 2017 the Tribunal, at the conclusion of the Second Tribunal Hearing, delivered an oral decision affirming the Delegate’s Decision not to grant the applicants Protection Visas: CB 144-150.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)discussed the relevant legislative provisions of the Migration Act and the Migration Regulations 1994 (Cth) and questions of credibility and the weight to be given to the evidence: CB 146;
b)noted that it took into account, where relevant, the Minister’s policy guidelines and the country information in accordance with Ministerial Direction 56 and, because the Protection Visa applications were lodged on 29 October 2014, applied the law applicable before 16 December 2014: CB 146;
c)confirmed the Protection Visa applications contained claims made by the first applicant for protection, and the second applicant relied on those claims as a member of the same family unit making no claims of her own: CB 146;
d)stated the written claims made by the first applicant were brief and lacked detail, and additional evidence given by the first applicant at the Tribunal Hearing and questions put to him by the Tribunal included:
i)that the first applicant had made no repayments on any of the loans other than by means of further borrowings: CB 146;
ii)that the loan sharks came looking for the first applicant at his mother’s house and told him if he failed to pay up they would beat him up, threatened his mother and locked chains onto his mother’s gate on one occasion: CB 147; and
iii)that the loan sharks beat the first applicant with their fists and he received repeated threats, and thus he moved to Kuala Lumpur in July 2011 and made only brief visits at night to his mother and wife occasionally, as his mother was still being threatened by loan sharks: CB 147;
e)noted that it warned the first applicant that the claim he remained in hiding for the entire period prior to coming to Australia, approximately 15 months, was difficult to accept as his application for protection provided a single address in a town in Malaysia for his entire adult life, and his evidence was inconsistent and illogical and that it was not consistent with his claim to have been married in his home town in February 2012, or the fact that he obtained his current passport in the same town in December 2012, and the Tribunal drew the attention of the first applicant to country information stating that passports can be obtained in Malaysia anywhere in that country. The first applicant stated he did not know about this: CB 147; and
f)noted that, while the first applicant's spouse (the second applicant), travelled to Australia in August 2012, the first applicant did not move to Australia on the same type of visa until March 2013, and that the Tribunal considered this to be inconsistent and illogical, and the first applicant said that he did not know about Australia as a travel option, which the Tribunal pointed out was an illogical response given that his wife was in Australia from 2012, and the first applicant then responded that he was worried about his mother and about her exposure to the money lenders, but when the Tribunal pointed out that his mother was still alive when he left Malaysia in March 2013, and asked what had changed, no response was given by the first applicant: CB 147;
g)noted that it had asked the first applicant why he had never made a police report about his harassment and beatings, or about having had to hide from the illegal money lenders while he was in Malaysia, and that the first applicant replied that even if he made a report to the police, they would give his address to the money lenders, and that there was corruption involving the money lenders and the police and that the police would not act to protect him: CB 147;
h)asked both applicants about their continuing to stay unlawfully in Australia once their three month visitors visas had expired, to which both applicants said they were escaping the threat of harm from money lenders in Malaysia and were too frightened to return to Malaysia, and in response to being asked why they did not apply for different kinds of visas or seek to extend their visitors visas the second applicant indicated that she did not know about other visa alternatives: CB 147;
i)pointed out to the second applicant that she had considerable experience of using visas, including while she was living in New Zealand for approximately nine months in 2011 on a working holiday visa, which she had extended while she was in New Zealand before arriving in Australia: CB 148;
j)discussed with the second applicant her knowledge of different kinds of visas that were available in Australia, and noted her response that neither she, nor the first applicant, would be eligible for visas such as student visas and working holiday visas in Australia: CB 148;
k)noted that both applicants conceded that they remained unlawfully in Australia once their visitor visas expired, knowing that this was contrary to Australian law, and when asked why they did not speak to a travel agent, a migration agent, a lawyer or the “Department” (presumably a reference to the Department of Immigration and Border Protection) about their visa status, responded they would rather stay in Australia than return to Malaysia and face harm there from money lenders: CB 148;
l)referred to country information indicating that loan sharking is illegal in Malaysia and that there are many reports of loan sharks harming, harassing and threatening the family of debtors, and noted that besides the harassment the first applicant claims before coming to Australia:
i)neither applicant suggested their family still living in Malaysia has been harmed by any of the money lenders; and
ii)if it was accepted the first applicant had been hiding for a period in Kuala Lumpur before he came to Australia between July 2011 and March 2013, that was inconsistent with his claims to be vulnerable to harm from illegal money lenders anywhere in Malaysia: CB 148;
m)expressed considerable doubt about much of the applicants’ evidence, which it found vague, undetailed and illogical, and expressed concern that the first applicant has not been truthful about his financial situation and his claims to owe money to loan sharks, and did not accept the first applicant's claims to be indebted to illegal money lenders in Malaysia for:
i)a business debt that he was unable to service; or
ii)subsequent borrowings to pay off the original debt: CB 148;
n)did not accept the first applicant's claims that he was harmed by loan sharks, that he or his family were harassed by the loan sharks, that the first applicant's mother had to hide, that the police are corrupted by the loan sharks, or that he would be harmed by loan sharks or their associates if he returns anywhere in Malaysia: CB 148;
o)noted that the first applicant was unable to explain why loan sharks had supposedly threatened him, and then failed to pursue him for the subsequent 15 months during which he remained in Malaysia before coming to Australia, and said that it had genuine doubts that loan sharks having taken the effort to demand money from the first applicant would then do nothing to secure repayment for such a lengthy period of time, and further noted that the first applicant’s evidence in this regard was inconsistent with country information: CB 148;
p)noted that the first applicant was unable to explain why he was able to remain in Malaysia safely for nearly 15 months with nothing happening to him, and why the loan sharks had not threatened, harassed or harmed his family since his arrival in Australia in March 2013: CB 148-149;
q)found that the applicants had not provided sufficient evidence to demonstrate that the first applicant had taken out any loans from a loan shark that he was subsequently unable to repay, or that he had been threatened by loan sharks, and as a consequence the Tribunal did not accept that the applicant had taken out a loan from loan sharks in Malaysia that he was unable to repay, and did not accept that the first applicant had been threatened, either in his home town, or in Kuala Lumpur, by any loan sharks or people working for loan sharks: CB 149;
r)did not accept that the first applicant failed to report incidents to the police because of perceptions of police corruption, and did not accept that loan sharks or their associates had come to his family home at any time, and therefore did not accept that if the applicants returned to Malaysia they would face any chance of being seriously harmed by reason of a debt, or any other reason, by loan sharks, their associates, or anyone else: CB 149;
s)found, on the evidence and materials, including country information in the Delegate's Decision, that if the applicants return to Malaysia, there is only a remote or far-fetched chance that they would be harmed by loan sharks, by their associates or anyone else for reason of being a debtor to a loan shark, or for any other reason related to that, and therefore, there is no real chance the applicants will be seriously harmed upon return to Malaysia because of the first applicant's claimed debts to loan sharks, or for any other reason, now or in the reasonably foreseeable future: CB 149;
t)did not accept any of the claims made by the first applicant, including any claims of past activities or harm: CB 149;
u)was not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant's being removed from Australia to Malaysia that there is a real risk that the applicants would suffer significant harm, and found, taking the applicants' claims at their highest, that they had not provided enough evidence to establish their claims: CB 149;
v)was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under s.36(2)(a) of the Migration Act, and having considered the alternative complementary protection criteria was not satisfied that the applicants were persons in respect of whom Australia owed protection obligations under s.36(2)(aa) of the Migration Act: CB 149; and
w)affirmed the Delegate’s Decision not to grant the applicants Protection Visas: CB 149.
Judicial Review Application
The Judicial Review Application is made on the following grounds (transcribed verbatim):
1. AAT has been asking me the same question over and over again of why we can't go back to Malaysia till the end of the interview. AAT repeated the same question even I answered the question, it's not fair trying to push me like this.
2. AAT has been saying that Malaysia is a big country so the gang members won't find us if we going back. But this is just assumption what if they find us and killed us.
3. We will not risk out lives based on the AAT's assumption that Malaysia is a big country so that the gang members won't able to find us.
4. We hope the court could give us a fair judgement instead of believing the AAT's assumption.
On 6 December 2017 a Registrar of the Court made orders (“Registrar’s Orders”) to progress this matter to hearing on 8 March 2018, with the Registrar’s Orders also providing the opportunity for the applicants to file and serve any amended Judicial Review Application and affidavits, and to file written submissions prior to the hearing. The applicants did not file anything further prior to the hearing.
The applicants, with the assistance of an interpreter, were provided an opportunity to make oral submissions at hearing. The first applicant read the grounds of the Judicial Review Application to the Court. When asked if they had anything further to add or expand upon, the applicants said they had nothing to add.
Consideration
The requirement for jurisdictional error
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if 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 thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: 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.
A denial of procedural fairness may constitute jurisdictional error in the Tribunal Decision: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), and unreasonableness in the Tribunal Decision may also constitute jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
It is for the applicants to make their case and they bear the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (“VAAD”) at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 (“Maroun”) at [15] per Jagot J.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicants’ claims for the Protection Visa: Minister for Immigration & 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.
Ground 1
The assertion that the Tribunal repeatedly asked the same question over and over may be seen as an assertion that the applicants were not afforded a fair hearing, or possibly, as an allegation that the Tribunal was biased against the applicants. Insofar as the applicants are claiming they were denied procedural fairness because the Tribunal exercised undue pressure in allegedly asking the same question over and over, there is no evidence provided by the applicants to support that claim. It is for the applicants to establish jurisdictional error. The applicants have not, however, provided to the Court evidence to demonstrate that the Tribunal did in fact ask the same question repeatedly. The applicants have not provided to the Court evidence on affidavit, or a transcript of the Tribunal Hearing, or any other evidence, to demonstrate that the Tribunal repeatedly asked the applicants or either of them, why they could not return to Malaysia. The applicants had the opportunity to provide such evidence by reason of the Registrar’s Orders, but failed to avail themselves of the opportunity thereby provided.
In relation to the procedural fairness obligations with respect to the Tribunal Hearing and the Tribunal’s processes, the Court observes that:
a)the applicants were validly invited, pursuant to ss.425 and 425A of the Migration Act, to the First and Second Tribunal Hearings: CB 91-92 and 123-124;
b)the Tribunal extended an opportunity to both applicants to give evidence and put questions to both of them during the hearing, thus providing them with a meaningful opportunity to participate: CB 147-18; SZSXV & Anor v Minister for Immigration & Border Protection [2014] FCCA 1584 at [61] and [70] per Judge Barnes;
c)there is no unfairness, in an SZBEL sense or by reason of a breach of s.424AA of the Migration Act, where the Tribunal put to the applicants country information and inconsistencies in the applicants’ evidence and invited them to comment, placing them on notice of determinative issues in the review: CB 148-149; and
d)the Tribunal complied with the obligations under s.430D(2) of the Migration Act when delivering the oral reasons for decision to the applicants.
The applicants appear to suggest the repetitive questioning of the Tribunal denied them procedural fairness, possibly implying that the questioning deprived the applicants of a real and meaningful opportunity to present their evidence. Even if the Tribunal had asked the applicants the same question repeatedly, this would not of itself amount to jurisdictional error: the Tribunal's role is inquisitorial and the Tribunal is entitled to seek information from the applicants for the purpose of conducting the review: Migration Act, s.424. It is a necessary corollary of the Tribunal exercising its inquisitorial function that it be able to vigorously test evidence where an applicant’s credibility is concerned: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex parte H”) at [30]-[31] per Gleeson CJ, Gaudron and Gummow JJ. As was observed in BZACF v Minister for Immigration & Citizenship [2013] FMCA 198 at [68] per Jarret FM:
Repeated questioning does not in itself amount to procedural unfairness… The Tribunal is entitled to test an applicant's claims in a robust way.
It follows from the authorities set out at [14] above that even if the Tribunal did repeatedly ask the applicants why they could not live in Malaysia the Tribunal was entitled to do so in the course of testing the claims made by the applicants, and those questions were relevant to conclusions ultimately reached by the Tribunal at CB 148-149 as follows:
I further note that neither applicant has suggested that any of their family still living in Malaysia has been harmed by any of the money lenders, besides the harassment the principal applicant claims that his late mother experienced before the principal applicant came to Australia. …
Despite the Tribunal explaining its concerns to the principal applicant, the principal applicant has been unable to explain why he was able to remain in Malaysia safely for nearly 15 months with nothing happening to him. He has been unable to explain why they would not have threatened, harassed or harmed his family since his arrival in Australia in March 2013.
There is nothing before the Court to suggest that the Tribunal has breached any of the provisions of Pt.7 Div.4 of the Migration Act, or the common law natural justice hearing rule, to the extent that it is not excluded by s.422B of the Migration Act.
To the extent that the applicants might be asserting that the Tribunal Decision is unreasonable by reason of the manner in which they were questioned at the First and Second Tribunal Hearing, the Court is of the view that that assertion is not sustainable. There was, for reasons set out above, no jurisdictional error by way of a denial of procedural fairness underlying that questioning or its effects, and, otherwise, the questioning was not arbitrary, capricious, without common sense or plainly unjust: Pandey at [41(c)] per Wigney J, particularly in circumstances where the issue relating to the questioning was relevant, and if there was repeated questioning, it provided ample opportunity for the applicants to explain themselves and to persuade the Tribunal to their point of view. In the circumstances, there is no jurisdictional error by way of unreasonableness arising under ground 1.
If the applicants are alleging bias on the part of the Tribunal, bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1(“Jia Legeng”) at [69] at Gleeson CJ and Gummow J.
In relation to this Judicial Review Application:
a)there is no evidence that the Tribunal had a pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake any proper evaluation of the relevant materials before it which were relevant to the decision to be made: Jia Legeng CLR at [35] and [72] per Gleeson CJ and Gummow J, and in particular:
i)no evidence of bias on the part of the Tribunal put in by, or on behalf of, the applicants;
ii)nothing on the face of the record of the Tribunal and the Tribunal Decision which indicates bias on the part of the Tribunal; and
iii)nothing otherwise which indicates bias on the part of the Tribunal;
b)there is no evidence upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ;
c)the giving of oral reasons provides no indication of bias in the Tribunal Decision: SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280 at [39] per Sackville J; and
d)there is no bias in the Tribunal asking highly specific, repetitive or arguably onerous questions of an applicant, even where they can take on the appearance of an examination or tests, as the critical issue is what use is made of the responses, and some latitude must be allowed to the Tribunal on account of, and having regard to the nature of, the processes undertaken by the Tribunal: SZJBD v Minister for Immigration & Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [82] per Buchanan J (Spender J agreeing).
To the extent that it might have been asserted by the applicants, nothing in this case establishes bias on the part of the Tribunal.
In all the above circumstances, ground 1 does not establish any jurisdictional error.
Grounds 2 and 3
Grounds 2 and 3 are based on a misunderstanding of the Tribunal Decision. The Tribunal Decision was not based on a finding that gangs will not be able to find the applicants because Malaysia is a big country, but rather the Tribunal did not accept that the first applicant was indebted to illegal money lenders in Malaysia for a business debt that he was unable to service, and nor did the Tribunal accept that the first applicant was harmed by loan sharks, that his family were harassed by loan sharks or that the first applicant would be harmed by loan sharks or their associates if he returns to Malaysia.
Contrary to the applicants’ claims in grounds 2 and 3 the Tribunal Decision does not refer to the applicants relocating somewhere in Malaysia where they will not be subject to the claimed harm they feared. These findings were made in the Delegate’s Decision, not the Tribunal Decision. This Court has no jurisdiction to review a Delegate’s Decision which is a primary decision: Migration Act, s.476(2)(a) and (4). It is well established that the Tribunal Decision cannot be impugned on the basis of jurisdictional error because of a finding made in the Delegate’s Decision and that if the Tribunal Decision is not flawed it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J; AYZ16 v Minister for Immigration & Anor [2017] FCCA 1444 at [10] per Judge Lucev.
The only indirect reference the Tribunal makes to the applicants relocating to another area of Malaysia was at CB 148 where the Tribunal was discussing the credibility of the first applicant’s claim he had to remain in hiding for 15 months prior to leaving Australia to avoid the loan sharks harming him, and the Tribunal said as follows:
I also note that, if it was accepted the principal applicant had been hiding for a period in Kuala Lumpur before he came to Australia between July 2011 and March 2013, his claims to be vulnerable to harm from illegal money lenders anywhere in Malaysia is inconsistent with that.
The Tribunal did not consider the need for the applicants to relocate because it had rejected his claims on the grounds the alleged harm he claimed to suffer was unfounded. Having not accepted that the first applicant was at risk of harm from loan sharks, there was no need for the Tribunal to further consider if the applicants could relocate as the significant harm and fear of persecution were not recognised. It was unnecessary to consider or make findings on the question of relocation because that issue was subsumed in the findings of greater generality as to whether or not the applicants had a well-founded fear of persecution because of a risk of harm from loan sharks, a contention which was rejected by the Tribunal, and hence one which meant that it was unnecessary to consider the question of the applicants’ relocation: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
Grounds 2 and 3 generally assert no basis for a finding of jurisdictional error in the Tribunal Decision, but rather seek to have the Court impermissibly review the merits of the Tribunal Decision and determine the applicants’ claim for the Protection Visas: Wu Shan Liang CLRat 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The applicants’ disagreement with the Tribunal Decision is not a basis for a finding of jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J.
Grounds 2 and 3 establish no jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 cannot be characterised as a ground of review, rather it takes the form of a pleading by the applicants for a form of relief this Court cannot grant. It certainly does not assert, much less establish, jurisdictional error in the Tribunal Decision, and is therefore not made out.
Conclusion and orders
The Court has concluded that there is no jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 November 2018
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