EZF17 v Minister for Immigration and Anor (No.2)

[2018] FCCA 2167

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZF17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 2167

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal affirmed decision on the basis of no evidence – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2B)

Applicant: EZF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3480 of 2017

Judgment of: Judge Manousaridis

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Sydney

Delivered on: 1 August 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms A Davyskib of MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3480 of 2017

EZF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised from transcript)

1. Before the Court is an application for judicial review of a decision made by the second respondent (Tribunal) affirming the decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa). I begin with the claims for protection the applicant made. 

2. The applicant is a citizen of Malaysia, and he comes from George Town in Pelopinang. He claimed that he worked as a security guard for a money exchange company, or at least he worked guarding such a company. He claims there was a robbery which the police investigated.  The police questioned the applicant but accepted the applicant had nothing to do with the robbery.  The company owner, however, blamed the applicant.  He accused the applicant of giving details to the robbers.  The company owner told the applicant he would “not live me alive”, and the applicant fled Malaysia for that reason.

3. What I have just described is contained in the applicant’s written claims attached to the applicant’s Protection visa application. Before the Tribunal, at least as recorded in the Tribunal’s Reasons for Decision, the applicant said that “his former Indian Hindu employer had sent persons to his home and threatened him”.  He was told his employer held him responsible for the theft and he was required to repay the money.

4. The Tribunal accepted the applicant’s factual claims; and, for that reason, accepted that the applicant has a real chance of suffering serious harm in his home region in Malaysia, namely “George Town, Penang”.  The Tribunal, however, was not satisfied that the applicant was a “refugee” within the meaning of s.5H(1) of the Migration Act 1958 (Cth) (Act) because the fear the Tribunal accepted the applicant held, and held for good reason, was not a reason prescribed by Act. The Tribunal here may be taken to have intended to refer to the reasons set out in s.5J(1)(a) of the Act. Section 5J defines the expression “well-founded fear of persecution”, which is an expression used in section 5H of the Act; and the reasons set out in s.5J(1)(a) are reasons of “race, religion, nationality, membership of a particular social group or political opinion”. The Tribunal also considered whether the applicant had a well-founded fear of being persecuted on account of his being a failed asylum seeker, but the Tribunal was not satisfied that the applicant had any such well-founded fear for that reason.

5. The Tribunal then assessed the applicant’s claims under the complementary protection criterion provided for by s.36(2)(aa) of the Act. Based on findings the Tribunal already made, the Tribunal accepted the applicant has a real risk of suffering significant harm in his home region, which, is as I have already noted, the Tribunal found was George Town, Penang; and the Tribunal so found because the Tribunal was satisfied that in his home region, there is an intention to harm him personally. The Tribunal, however, then considered whether it would be reasonable for the applicant to relocate to another area of Malaysia where there would not be a risk that the applicant will suffer significant harm. That inquiry is made relevant by s.36(2B) of the Act which 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 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.

6. The Tribunal was satisfied that the applicant could relocate within Malaysia to a place where there would not be a real risk that he would suffer significant harm.  In arriving at this conclusion, the Tribunal considered country information which was relevant to determining the risk that the applicant’s whereabouts could be traced by criminal gangs and others; and having assessed that country information, the Tribunal was satisfied the applicant could not be traced by the means the Tribunal had identified. The Tribunal also found that it would be reasonable for the applicant to relocate.  In arriving at that conclusion, the Tribunal considered country information which related to the nature and state of the economy of Malaysia. 

7. For those reasons, the Tribunal affirmed the delegate’s findings that neither s.36(2)(a) nor s.36(2)(aa) of the Act was engaged.

8. The applicant, who is not legally represented, has stated two grounds in his application for review.  Before I directed the applicant to those grounds, I asked the applicant what submissions he wished to make in support of his claim that the Tribunal’s decision should be set aside.    The applicant said that he needed time to “get the documents”.  I have already given a judgment in relation to an application for an adjournment the applicant made for the purpose of his having more time to obtain “the documents”.[1] As I stated in that judgment, the documents to which the applicant refers are documents he says may be or can be obtained from his friend which indicates that his former employer had fabricated claims against the applicant. 

   [1] EZF17 v Minister for Immigration & Anor [2018] FCCA 2166

9. As I have also noted in my judgment dealing with the adjournment application, such documents are simply not relevant to the task that I have jurisdiction to undertake, and that is to determine whether the Tribunal has made any jurisdictional error in the manner in which it conducted its review of the applicant’s case.  Such documents, if they exist, were not before the Tribunal, and there is nothing to suggest in those circumstances that the documents could be relevant to determining whether the Tribunal made any jurisdictional error.

10. I then directed the applicant’s attention to the grounds stated in his application for review.  As I have already noted, there are two grounds.  The first is:

    1. The decision was taken with out [sic] proof.

    In response to my asking the applicant whether he wished to say anything about that ground, the applicant said he needed time to produce the evidence.  Again, I understood that the reference to “evidence” is the documents the applicant says his friend will be able to provide to him relating to his former employer fabricating claims against the applicant.  That does not disclose any jurisdictional error by the Tribunal.

11. The ground, as stated in the application, also discloses no jurisdictional error because it is wholly lacking in particulars.  In any event, when regard is had to the Tribunal’s reasons for decision, it is apparent that the Tribunal did identify and did rely on information to support the findings it made.

12. The second ground stated in the application is:

    2. Decision has lawful errors.

13. When I asked the applicant whether he wished to say anything about this ground, the applicant said he had nothing to say.  Again, the ground as stated in the application, discloses no jurisdictional error because it is wholly lacking in particulars.

14. Finally, I took the applicant to the affidavit he filed with his application for judicial review.  Paragraph 1 contains the following statement:

    My application decision was efficted [sic] by an error of law.

15. In response to my asking the applicant whether he had anything to say about that ground, the applicant said there was nothing he said that is wrong, that he respected the law here, and that he has been telling the truth.  As the Minister submitted, the Tribunal did not have any credibility concerns with the applicant.  As is apparent from what I have already said, the Tribunal accepted the applicant’s claims, and there is nothing the applicant said to me today in relation to his application, or in relation to any other matter, which I have regarded to be untruthful. Therefore, what the applicant said in this regard does not disclose any jurisdictional error by the Tribunal. 

16. I should also just finally note that after the Minister’s lawyer made submissions, the only thing the applicant said in response was that he needed more time.  On inquiry from me as to why he required more time, the applicant repeated that he wanted time to obtain the documents, being the documents to which I have already referred, that is to say, documents showing that his former employer fabricated claims against the applicant.

17. For these reasons the applicant has not succeeded in showing the Tribunal made any jurisdictional error.  I propose therefore in a moment to make an order dismissing the application.

18. Having announced that it is my intention to dismiss the application, I invited submissions as to costs.  The Minister seeks an order that the applicant pay the Minister’s costs set in the amount of $5,600.  The applicant submitted that he needs time, but otherwise said nothing against my making an order for costs in that amount.  Whether or not the applicant needs time to pay any costs order against him is a matter that he could raise with the Minister’s lawyers, if the Minister’s lawyers seek to recover those costs. So I propose then also to order that the applicant pay the first respondent’s costs set in the amount of $5,600.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 August 2018