Fak17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1680

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1680   

File number(s):	SYG 3516 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	22 July 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) – where the Tribunal found that the applicant could reasonably relocate within their receiving country– whether the Tribunal failed to have a genuine intellectual engagement with the applicant’s claims and evidence –– no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476
Number of paragraphs:	32
Date of hearing:	22 July 2021
Place:	Sydney
Solicitor for the applicant:	In person
Counsel for the first respondent:	Mr T Liu
Solicitor for the first respondent:	Australian Government Solicitor

ORDERS

SYG 3516 of 2017

BETWEEN:

FAK17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	22 JULY 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 13 October 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Class XA) Visa (“the Visa”).

2. The applicant is a citizen of Malaysia and his claims were assessed against that country. In summary, the applicant claimed to fear harm from a loan shark.

3. On 19 February 2017, the applicant arrived in Australia as the holder of an Electronic Travel Authority Visa. On 11 May 2017, the applicant applied for the Visa. On 31 July 2017, the delegate found that the applicant failed to meet the criteria for the grant of the Visa.

   The Tribunal

4. On 1 August 2017, the applicant applied to the Tribunal for review. By letter dated 20 September 2017, the applicant was invited to attend a hearing on 13 October 2017. The applicant appeared on that date to give evidence and present arguments.

5. The Tribunal identified the background to the review application and set out the relevant law, including an attachment in the Tribunal’s reasons. The Tribunal identified the applicant’s claims and that he had borrowed money from an illegal money lender. The Tribunal identified country information in that regard.

6. The Tribunal was not satisfied that police in Malaysia were unable to assist against loan shark menace, as claimed by the applicant. The Tribunal identified the amount the applicant alleged that he had borrowed in March 2016. 

7. The Tribunal identified that, since arriving in Australia, the applicant had worked on a farm for three months and that, since then, he had been working full time in the construction industry. The Tribunal referred to the applicant remitting money back to his family. The Tribunal referred to the applicant alleging that he was not able to make sufficient money to support his hearing impaired mother, younger brother and middle brother, who is not at school but is working as a mechanic.

8. The Tribunal explored with the applicant whether he had repaid the loan shark. The Tribunal referred to the applicant’s claim that, with interest, he owed an amount of 54,000 ringgit. The Tribunal was prepared to accept that the applicant did borrow money from a loan shark and was prepared to accept that the applicant has a real chance of suffering harm if returned to his home area.

9. In relation to the Refugee’s Convention, the Tribunal then turned to whether the applicant could relocate within Malaysia. The Tribunal identified the applicant’s claim that he could still be found. The Tribunal identified the significant area of Malaysia and its’ population of 30.5 million people, as well as the Malaysian Constitution providing for freedom of internal movement. The Tribunal also referred to country information that Malaysian nationals can, and do, frequently relocate internally.

10. The Tribunal did not find that the country information indicated whether or how families or criminal gangs may be able to trace people within Malaysia. The Tribunal referred to country information in relation to the possibility of corruption, but did not accept such efforts would be made in relation to the applicant’s address. The Tribunal identified that the applicant’s address could not be obtained through voting information and, after considering all the evidence, the Tribunal did not accept that there is a real chance that the applicant would or could be traced if he safely relocated in Malaysia, away from his home area. 

11. The Tribunal was not satisfied that the applicant would have a real chance of suffering serious harm should he relocate within Malaysia. The Tribunal also found that the applicant can safely relocate within Malaysia. The Tribunal found that the applicant’s real chance of persecution does not relate to all areas of Malaysia.

12. The Tribunal referred to country information, and was not satisfied that the applicant had a real chance of suffering any harm as a failed asylum seeker. 

13. The Tribunal was not satisfied the applicant has a real chance of suffering persecution in all of Malaysia, and was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Accordingly, the Tribunal found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

14. The Tribunal then turned to the issue of complementary protection, and took into account its finding that it was not satisfied that the applicant has a real chance of suffering persecution, for reason of any claim accepted, should he relocate within Malaysia. 

15. The Tribunal was not satisfied the applicant has a real risk of suffering significant harm, for reason of any claim, should he relocate within Malaysia. The Tribunal was also not satisfied that the applicant has a real risk of suffering significant harm for any other reason, should he relocate within Malaysia. 

16. The Tribunal then turned to determine whether it was reasonable for the applicant to relocate. It is apparent from paragraph 38 of the Tribunal’s reasons that the Tribunal addressed whether it was reasonable for the applicant to relocate in his own particular circumstances.  For clarity, paragraph 38 of the Tribunal’s reasons is as follows:

    38.At hearing, when the Tribunal put to the applicant that based on the country information, it may consider that he could reasonably relocate within Malaysia, he did not believe he could earn enough money in Malaysia to support his family (in part due to his lack of education) and or that it would be safe for him to do so. Regarding whether it is safe, the Tribunal has discussed this above. Regarding whether the applicant can support his family, the Tribunal does not understand the applicant would receive any less remuneration than he was being paid in his home area within Malaysia, should he relocate. Regarding the money he could earn on relocating within Malaysia, the Tribunal also understands the applicant's own particular circumstances must be considered;25 and a perceived simple comparison of Australian standards of civil liberties and or civil society, with those in a relocation option in a country of reference, may constitute an improper interpretation of 'reasonableness' in a relocation assessment.26 Further, Gageler J in the High Court judgment SZSCA has accepted that 'it would be unreasonable ... to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening economic status may not be sufficient to reject a proposed area as reasonable.'

17. The Tribunal expressly referred to the applicant’s belief that he could not earn enough money to support his family. 

18. The Tribunal was not satisfied that it would be unreasonable for the applicant to relocate within Malaysia. The Tribunal, having earlier identified the applicant’s construction work, found that the applicant could find work commensurate with his skills. 

19. The Tribunal also took into account that the applicant had successfully completed high school in Malaysia. The Tribunal did not accept the applicant’s claims that he could not earn enough money or that his lack of education made it unreasonable for the applicant to relocate within Malaysia. 

20. The Tribunal was not satisfied there is any other basis upon which it would be unreasonable for the applicant to relocate. The Tribunal found it reasonable for the applicant to relocate within Malaysia. The Tribunal found that the applicant can safely and reasonably relocate within Malaysia. 

21. The Tribunal found that there are not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant’s removal to Malaysia, that there is a real risk that the applicant would suffer significant harm. Therefore, the Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision of the delegate under review. 

    Before the Court

22. These proceedings were commenced on 16 November 2017. On 14 December 2017, a Registrar made orders, giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents have been filed.

23. At the commencement of the hearing today, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the explanation given by the Court. 

24. The applicant maintained that the decision was unfair and that life was very different in Malaysia. The applicant referred to his need to support his family, three of whom are hearing impaired. On the face of the Tribunal’s reasons, it is apparent that the Tribunal took into account the applicant’s claims concerning supporting his three impaired members of his family.

25. Whilst the Tribunal accepted the applicant’s claim to fear harm in his home area from a loan shark, the Tribunal found that the applicant did not face a real chance or real risk of significant harm, or serious harm, if he relocated within Malaysia. The Tribunal also found that it was reasonable for the applicant to relocate in his own particular circumstances. Those findings were open for the reasons given by the Tribunal. The applicant’s disagreement does not identify any jurisdictional error.

26. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal, and the Tribunal had a genuine intellectual engagement with the whole of the applicant’s claims in evidence. Further, the Tribunal complied with its statutory obligations in the conduct of the review. Accordingly, there is no basis to find that the conduct of the review by the Tribunal was unfair, or the subject of any denial of procedural fairness. 

27. The applicant also identified his desire to stay in Australia so that he could continue to support his family. As meritorious as that desire may be, this Court cannot determine the matter on compassionate or discretionary grounds. 

28. The applicant also identified that he did not believe that he could relocate, and that he would not earn enough money to pay for his family, his accommodation, and to pay the loan shark. It is apparent from the Tribunal’s reasons that it took into account these claims by the applicant and made an adverse finding in that regard, which was open to the Tribunal. The Tribunal found that the applicant can safely and reasonably relocate within Malaysia. That finding was open to the Tribunal for the reasons given by the Tribunal. The applicant’s disagreement with the adverse finding does not identify any relevant error. Nothing said by the applicant identified any jurisdictional error.

    The Grounds

29. The Grounds in the application are as follows, and I will have the two grounds set out:

    Ground 1

    1.Need to defend myself because of the long term harmfulness, injuries, mental, torture and trauma because of beaten and threats to kill by the gangster.

    Ground 2

    2.No safety places in Malaysia for me to survive and work because always will be followed and threatened with death by gangster.

    Consideration

30. In substance, the Grounds are a rearticulation of the applicant’s claims and do not identify any error in the conduct of the review by the Tribunal. The Tribunal correctly identified the relevant law, and the Tribunal’s reasons provide an evident and intelligible justification for the adverse findings under the Refugee’s Convention and in relation to complimentary protection.

31. There is no basis to find that the Tribunal misapplied the relevant law in the present case. In substance, the Grounds maintain an assertion of the applicant’s fears and do not identify or make out any jurisdictional error. Notwithstanding the applicant’s fears, the Tribunal found that the applicant could reasonably relocate within Malaysia, and that it was safe and reasonable for the applicant to do so in his personal circumstances. Therefore, neither Ground makes out any jurisdictional error.

32. Accordingly, the application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 July 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 8 December 2021