SZRZV v Minister for Immigration

[2013] FCCA 164

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRZV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 164

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether complementary protection criteria apply – no applicable criteria – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425

Cases Cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZCIJ vMinister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841
VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459
VFAB  v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 407
WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286
WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277

Applicant: SZRZV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2286 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 6 March 2013

Delivered at: Sydney

Delivered on: 6 May 2013

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of an Tamil interpreter

Solicitors for the First Respondent: Ms N. Johnson of Sparke Helmore

The Second Respondent: The Second Respondent filed a submitting notice of appearance

ORDERS

1. The Application filed on 15 October 2012 is dismissed.

2. The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.

The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRZV.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2286 of 2012

SZRZV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court’s orders made on 8 November 2012 the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit “A” and is the only evidence before the Court.  

2. At the first court date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme.  This referral was made and written advice was provided after a conference with the applicant’s allocated Panel Advisor.  The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 21 December 2012.  The applicant elected not to file an amended application.

3. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1204839, a decision of Tribunal Member A. Rozdilsky dated 18 September 2012 affirming the decision of a delegate of the first respondent, the Minister, to refuse the applicant a Protection (Class XA) visa.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the first respondent.  I have not made further attribution as this would make the summary unwieldy.  Where this information is extracted from the Court Book, each item contains a reference for that material.

2. By an application filed 15 October 2012 the applicant seeks judicial review of a decision of the Tribunal made on 18 September 2012.  The Tribunal affirmed the decision of a delegate of the Minister dated 21 March 2012 to refuse to grant a Protection (Class XA) visa to the applicant.

3. The applicant is a male citizen of Malaysia who applied for a Protection (Class XA) visa on 19 September 2011 (CB 1-25).  The applicant’s written claims were contained in a typed statement which accompanied his application (CB 26-31).

4. The applicant claimed to fear harm in Malaysia because he had sex with a former male roommate named “Rajan” or “Raj” who was gay.  The applicant claimed that after having a fight with his girlfriend he “ended up having sex with” his roommate and that a relationship subsequently developed with Raj.  The applicant’s ex-girlfriend allegedly told his friends about the applicant’s sexuality and, as a consequence, he claimed that he was thrown out of his apartment and his girlfriend attempted suicide twice.  The applicant left Kuala Lumpur and moved to Johor Bahru, but claimed that his ex-girlfriend tracked him down and continued to spread rumours about his sexuality and threatened him at his shop.  The applicant claims that his business suffered and he decided to close his shop.  The applicant stated that he had heard about a gay Muslim who had received death threats and that the “Islamic law minister” had said that appropriate action was to be taken “against gay activities trying to promote homosexuality.”

The Minister’s Delegate’s Decision

1. The applicant attended an interview with the delegate of the first respondent on 27 October 2011 (CB 48.9-49.3) and produced three identity cards (CB 40-41, 49.3).

2. On 21 March 2012, the delegate made a decision refusing to grant the applicant a Protection visa (CB 46-57).  The delegate found that the applicant was not generally a witness of truth and was not satisfied that the applicant was homosexual or that he had been in a relationship with Raj/Rajan or anyone else in Malaysia (CB 56.9-57.1).  The delegate was therefore not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention (CB 57.5).

The Tribunal Proceedings

1. On 16 April 2012, the applicant lodged and application with the Tribunal to review the delegate’s decision (CB 61-66).  By letter dated 17 May 2012, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 1 August 2012 (CB 68-69).

2. The applicant attended the hearing on 1 August 2012 and gave evidence (CB 75, 85-88 at [36]-[67]) and provided the Tribunal with a copy of his passport (CB 70-74).  At the hearing before the Tribunal the applicant claimed that he had received threats on the telephone and insults about his sexual orientation.  He also claimed that he could not accept that he was homosexual.  He feared his ex-girlfriend would instigate people to attack him and that he would be subject to Sharia law.  Further, he claimed that he had borrowed 60,000 MYR to set up his business in Johor Bahru and had been unable to repay the interest on the loan.  He submitted that the lenders had been looking for him and had threatened his life if he did not repay them (CB 85-86 at [36]-[42]; 87 at [61]-[63]).

3. On 23 August 2012 the Tribunal received letter from a person who claimed he was a friend of the applicant and had known him for 10 months.  The friend stated in the letter that, as far as he was aware, he believed that the applicant was homosexual, but he “can’t guarantee what happens behind closed doors” and was unable to give “any assurance” (CB 79).

The Tribunal Decision

1. In a decision, dated 18 September 212, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa (CB 81-90).

2. The Tribunal considered the applicant’s central claim to be gay but found that he was not homosexual, would not be perceived to be homosexual or harmed as a result, and had not received any threats or been demeaned in the past, as he had claimed (CB 89 at [74]-[76]).  The Tribunal based this finding on its assessment (see CB 89 at [74]) of the applicant’s evidence about his claimed sexual orientation.  Specifically, the Tribunal noted that he had;

   a)Only had sexual relations with two men and was attracted to men from 2000 to 2009;

   b)Sexual relations with numerous women;

   c)Not kept in contact with his claimed former gay partner;

   d)Provided no independent evidence of the existence of his longstanding relationship with Raj and was unable to name any of Raj’s friends; and

   e)Not established any relationships with any men in Australia on either a platonic or intimate level and did not want the image of being gay in his area.

3. The Tribunal attributed little or no weight to the letter provided to support the applicant’s claim to be gay because its content was “equivocal”, not based on any personal knowledge and the writer of the letter indicated that they were unaware of what happened “behind closed doors”, they were uncomfortable writing the letter and were not prepared to take any responsibility regarding the matter (CB 89 at [73]).

4. On this basis the Tribunal was not satisfied that there was a real chance that the applicant would face persecution in Malaysia as a gay man (CB 89 at [76]).

5. The Tribunal found on the basis of the applicant’s own evidence that he was now in a position to arrange a settlement of the debt in Malaysia, which would completely eliminate any risk of harm at the hands of the lenders.  It also noted that the applicant remained in Malaysia from January 2011 to June 2011 and experienced no serious harm.  The applicant had provided no documentary evidence to establish the existence of the loan or its terms (CB 89-90 at [77]-[80]).  Accordingly, the Tribunal was also not satisfied that he faced a real chance of persecution from the money lenders for his outstanding debt (CB 90 at [80]).

6. In light of its earlier findings, the Tribunal also did not accept that there was a real risk that the applicant would suffer significant harm in Malaysia (CB 90 at [81]).

Current Proceedings

1. The applicant filed an application for judicial review on 15 October 2012.  Despite orders made on 9 November 2012 permitting the applicant to file and serve an amended application or any affidavit evidence by 21 December 2012, nothing has been filed and served by the applicant.

2. The applicant sought the following orders:

   1. An order in the nature of certiorari setting the purported decision of the Tribunal aside.

   2. An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.

   3. An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.

   4. An order that the Respondent pay the applicants costs and Such other orders as the Court Sees fit. 

3. The applicant’s affidavit filed in support of the application for judicial review simply attaches a copy of the Tribunal’s decision and does not advance in any meaningful sense the three grounds of review contained in the application itself.

4. The application pleads three grounds:

   1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.

   2. The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.

   Particular:

   (a) Whether the Malaysian authorities provided a standard of protection for gay people comparable with international standards.

   3. The RRT has failed to investigate applicant’s claim, especially the grounds of persecution, in Malaysia.  Therefore, the Tribunal decision dated 19 September 2012 was effected by actual bias constituting judicial error.

Applicant’s Submissions

1. The applicant did not file an amended application or written submissions. At the hearing, when asked if he had any oral submissions to make in support of his claims, the applicant reiterated the claims made before the Tribunal, mentioning his fear of his ex-girlfriend and her claimed “character assassination”, and his loan (Transcript 6 March 2013, p. 3). I explained to the applicant the role of the Court, highlighting that the Court only had the power to look at whether the Tribunal carried out its review in accordance with the Migration Act. In response, the applicant submitted “…my submission that I’m a gay.  I have sexual relations with men was not accepted.  I am refuting that Tribunal did not investigate nor accept my explanation… according to Sharia law in Malaysia I am liable to be prosecuted because of my gay activities.  So I fear to go back to Malaysia because of the Sharia law that I may be jailed or put into – prosecuted” (Transcript 6 March 2013, p. 4).  The applicant also claimed that he did not get documentary evidence regarding his debt as he was afraid they “will torture me again… they know that I’m in Australia may lead to them torturing me… Men come to Australia or they may take some measure, some actions to torture me even here…These are the reasons I did not want to go to Malaysia and sought refugee in this land…” (Transcript 6 March 2013, p. 4). 

Minister’s Submissions

1. The Minister’s solicitor, Ms Johnson, indicated she sought to rely on her written submissions.  It is submitted Tribunal’s findings concerning these matters, including its findings about the applicant’s lack of credit, were findings of fact that were within its jurisdiction to make and open for the reasons that it gave.  The Court cannot review the merits of the Tribunals decision and the High Court has recognised that, in determining whether an applicant has a “well-founded” fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 281-282.

Ground One

1. The first ground of the application alleges that the applicant was denied procedural fairness because the Tribunal reached an “adverse conclusion that applicant claims were implausible” (sic) when such conclusions were “not obviously open on the known material” and were made without “giving the applicant the opportunity to be heard in respect of those matters”.  Whilst the applicant does not identify the particular “adverse conclusion” that he asserts was neither open on the material or put to him for comment, this ground is misconceived and cannot succeed for several reasons.

2. First, the Tribunal’s findings were based on its assessment of the applicant’s own evidence to the Tribunal.  The findings of fact that the Tribunal made in assessing the applicant’s evidence were open to it for the reasons that it gave.  To assert that the Tribunal ought to have arrived at a different conclusion on the evidence before it essentially amounts to a request to the Court to undertake a merits review, which it cannot do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) at 272.

3. Secondly, the Minister argues that this is a case to which s.422B of the Migration Act applied. The Tribunal was not required to afford the applicant common law justice: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ vMinister for Immigration and Multicultural Affairs [2006] FCAFC 62. The applicant was only entitled to the rights afforded to him under Part 7 of the Migration Act and the Tribunal plainly complied with those requirements. It validly invited the applicant to a hearing, which he attended and gave evidence in support of his case.

4. The applicant was clearly on notice from the delegate’s decision that his credibility and his claim to be homosexual was “in issue”, as the delegate had also found that the applicant was not gay (CB 56.9). The applicant clearly took the opportunity to give evidence in support of his claim to be gay; for example CB 86 at [41], [44], [45], [47] and CB 87 at [54], [59]. The Tribunal also raised with the applicant whether he could make arrangements to repay the debt (CB 88 at [65]). As such, the Tribunal satisfied s.425(1) of the Migration Act in the manner outlined in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [42]-[44], by ensuring that the applicant at the hearing was sufficiently alert to the determinative issues arising on review and that he had an opportunity to respond to them.

5. The information that the applicant gave to the Tribunal is also expressly excluded from the scope of s.424A(1) by the exception in s.424A(3)(b). In addition, “information” for the purposes of engaging obligations under s.424A does not extend to the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18], citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 471 at 477. Accordingly, there was no “information” before the Tribunal that was required to be put to the applicant for comment in accordance with s.424A.

Ground Two

1. The second ground of the application contends that the Tribunal failed to ask whether the Malaysian authorities provided a standard of protection for gay people comparable to international standards.

2. The Minister submits that the Tribunal was not required to ask this question because it found that the applicant was not gay and would not face harm on this basis.  The question of whether effective state protection is available only arises if the Tribunal accepts that the applicant had a well-founded fear of harm from non-state agents.  As the Tribunal concluded that the applicant’s fear of harm was not well-founded, there was no ensuing obligation on it to consider the question of whether effective state protection was available to the applicant: SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841 at [25].

Ground Three

1. Ground three alleges that the Tribunal failed to investigate the applicant’s claims, “specially the grounds of persecution, in Malaysia”(sic) and that the Tribunal was affected by actual bias.  This ground is a precedent ground, raised in a number of applications before this Court.  In the absence of particulars, the Minister argues it is meaningless.  The Tribunal clearly considered that applicant’s claims of harm and the reasons for which he feared persecution in Malaysia.  He fails to identify any matter that the Tribunal allegedly overlooked and none is apparent.

2. Further, it is for the applicant to make out his case before the Tribunal.  If the Tribunal cannot be satisfied on the basis of the material present that his claims are genuine it does not have any duty to make further inquires:  Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12. The Tribunal has no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it has which might enable it to investigate (e.g. s.247(1)(d)): VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 125 FCR 407 at [74]-[78].

1. The Minister argues that, to the extent that this ground is an allegation of bias, the applicant has made no attempt to comply with the requirement that this serious allegation be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at 531. The Minister submits that no inference of bias or prejudgment can be drawn from the mere existence of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigrationand Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3].

Consideration

1. The applicant in these proceedings is a self-represented litigant and appears with the assistance of a Tamil-English interpreter.  As indicated in the introduction, the applicant participated in the Legal Advice Scheme, in that he attended a conference with a panel advisor and received written advice.  The applicant did not elect to file an amended application and correspondingly relied on the grounds of his original application.  For the hearing, the applicant did not prepare any written submissions but accepted an invitation to make oral argument in support of his claims.  However, these did little more than repeat the claims contained in his original visa application and repeated before the delegate and the Tribunal.

2. In the Tribunal’s decision record, under the heading “Findings and Reasons” the details of the applicant’s claims are reviewed and the following finding is made at [76]:

   The Tribunal finds that the applicant is not homosexual as claimed.  Given that this is the central element of his claim, it finds that there is insufficient credible evidence before it upon which to make a finding that there is a real chance that the applicant would face persecution in Malaysia as a gay man. 

   (CB 89)

3. The Tribunal’s adverse credibility finding and consequential rejection of the applicant’s claim is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 per McHugh J at 67 where his Honour states:

   …[A] finding on credibility which is the function of the primary decision maker par excellence.  If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. 

   The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible.

4. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679, Tamberlin and RD Nicholson JJ (with Lee J dissenting) observed at [64]:

   The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):

   "If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".

   See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.

5. I am satisfied that the substantive finding of the Tribunal was that the evidence of the applicant submitted in support of his claim that he was homosexual was not accepted by the Tribunal as being credible.  The Tribunal then proceeded to address the subsidiary claim concerning his indebtedness to a money lender.

6. In the Tribunal Decision Record under the heading “Findings and Reasons” at [77]-[78] it states:

   77. The Tribunal next considered whether there is a real chance that the applicant would face persecution in Malaysia for reasons of his owning money to a money lender which has not been repaid.  In relation to this claim, the applicant’s testimony was that he was charged exorbitant interest on a loan, and that although the principal was repaid, he had not repaid the interest.

   78. It was the applicant’s own testimony that the only reason he did not repay the amount claimed owed was because he did not have the money.  He also mused that he could approach the lender through friends to see whether arrangements could be made to deal with the debt.

   (CB 89)

7. This claim falls away on the applicant’s own admission that he could arrange for colleagues to approach the money lender in an attempt to organise some accommodation for repayment by instalment.

8. The remaining significant issue considered by the Tribunal was that “the applicant remained in Malaysia from January until June 2011 before leaving Malaysia and that no serious harm came to him in this period.”  There was no explanation for this delay in departure in the face of the claimed persecution in Malaysia as a gay man or from the threat of the money lenders pursuing the applicant to recover the debt.

9. In respect to the pleaded grounds, I am satisfied that the written submissions prepared and relied on by Ms Johnson accurately and competently respond to those claims and need no further consideration.

10. An additional issue is whether Australia owes the applicant complementary protection. A convenient summary of the new provision of the Migration Act is contained in the Bill’s Second Reading Speech on 24 February 2011. The speech indicates that the new provision establishes criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other Refugees Convention:

    Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

    ·   the arbitrarily deprivation of life;

    ·having the death penalty carried out;

    ·being subjected to torture;

    ·being subjected to cruel or inhuman treatment or punishment; or

    ·being subjected to degrading treatment or punishment.

    ( Hansard, 24 February 2011)

11. As discussed above, the claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal.  They were rejected primarily on the basis of credibility and secondly the claim that the applicant was being pursued by money lenders was substantially eliminated on the applicant’s own admissions.  In these circumstances none of the issues raised in the complementary protection criteria are relevant.  None of the complementary protection criteria were raised by the applicant in his claim, but this is understandable in the case of an unrepresented litigant, unfamiliar with the language and legal administration of this country and having very limited opportunity to avail himself of this knowledge or assistance.

12. The Tribunal addresses the criteria at [81] of the Decision Record in the following terms:

    The Tribunal has also considered whether 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 will suffer significant harm as defined in subsection 36(2A) of the Act.  The Tribunal has had regard to the evidence and claims put forward by the applicant.  It repeats its finding that the applicant is not credible in relation to his claimed gay sexual orientation.  It repeats its finding that it does not accept that the applicant would face harm at the hands of the moneylenders in Malaysia.  The Tribunal does not accept that there is a real risk the applicant would face a risk to his life, a danger of torture or of cruel or unusual treatment or punishment if he returns to Malaysia.  On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in Malaysia.  The Tribunal is not satisfied on the evidence that a real risk of significant harm exists for the applicant.  The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

    (CB 90)

Conclusion

1. In the circumstances I am satisfied that the application should be dismissed with costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Date:  6 May 2013