AJP18 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs

background 9 The Appellants claim to fear harm from loan sharks in Malaysia. They claim to have borrowed money from a loan shark to start an online business in Malaysia, but the business failed and they could not make repayments to the loan shark. They claim that the loan shark then began to harass them and so they fled to Australia. They say they cannot return to Malaysia because of corruption in the Malaysian police force. They claim there would be no safe place to relocate to within Malaysia as the loan shark has networks everywhere in Malaysia. They claim to fear that if they returned to Malaysia they would be harmed by the loan shark or his associates. 10 The Tribunal accepted that the Appellants were threatened by associates of a loan shark, and that they had a credible fear of harm if returned to Malaysia. The Tribunal considered the Appellants' evidence, along with country information, but concluded that the Appellants could obtain effective protection from police and the judiciary if they returned to Malaysia. 11 The primary judge held there was no jurisdictional error and that it was open to the Tribunal to conclude that effective protective measures were available to the Appellants throughout Malaysia. The primary judge also found that the Tribunal had not failed to consider the Appellants' particular and personal circumstances relating to threats by loan sharks.

Ground 1 of the Application: The Reasons were unfair 12 Ground 1 of the Application is an unparticularised allegation of unfairness. 13 In the Circuit Court, the Appellants filed written submissions and were represented at the hearing by counsel. 14 The grounds of appeal before the Circuit Court were as follows: 1. The Tribunal failed to consider the Applicant's claims in accordance with law in that it failed to consider an element of the test in s 5LA(1)(b) in determining whether the Applicant was a person to whom Australia owed protection obligations under the convention and thereby failed to exercise jurisdiction. 2. The Tribunal wrongly construed s 36(2B)(b) of the Act as being satisfied if the state's police force and other state authorities offer effective protection without an inquiry into the particular circumstances that appertain to the non-citizen whose application for a visa is under consideration for the purpose of ascertaining whether the effect of the identified effective protection would be such that there would not be a real risk that the non-citizen (the Applicant) will suffer significant harm. 15 The primary judge considered the grounds of appeal and the Appellant's submissions and set out the relevant law and legal principles in detail. As summarised in the Minister's written submissions filed in this appeal, the primary judge: (b) considered the appellants' first ground, and: (i) noted the Tribunal erred by implying that a denial of effective protection needed to be for a Convention reason, as opposed to any reason, but considered that that error did not affect the Tribunal's reasoning about effective protection: [10]-[12]; (ii) noted the Minister's concession that the Tribunal erred by considering "victims of loan sharks" as a particular social group, but found (as urged by the applicant) that such people could form a particular social group given they had in common owing money to loan sharks: [13]-[15]; (iii) noted a further error by the Tribunal by its finding that the Appellants could obtain effective protection from consumer associations, which appeared not to comply with the source of effective protection required under s 5LA of the Act, but found that error was not material: [16]-[17]; (iv) concluded in respect of effective protection that the Tribunal did not commit any error in considering effective protection, as it considered whether the Malaysian authorities were able and willing to provide effective protection as required under s 5LA of the Act: [18]-[24]; and (c) considered the Appellants' second ground, and concluded that the Tribunal did not commit any error in its application of s 36(2B)(b) of the Act: [25]-[33]. 16 Although the primary judge identified errors in the Tribunal's reasons referred to above, he determined that those errors were not material. In my opinion, the reasons of the primary judge do not disclose any jurisdictional error. There is no basis in the reasons of the primary judge to conclude that the Appellants have been subjected to any unfairness. 17 Accordingly, I reject ground of appeal 1.

Ground 2 of the Application: Guarantee of Protection 18 By ground 2 of the Application, the Appellants seek a guarantee they will be protected if they return to Malaysia. In effect the Appellants are asking this Court to engage in merits review of the Tribunal's finding that effective protection is available to the Appellants. At [23] of the Circuit Court reasons, the primary judge states that "effective protection does not require a guarantee of protection". Although the Appellants may disagree with this statement, it is a well-established principle of law: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; 222 CLR 1 at [28]; Minister for Immigration and Multicultural Affairs v Yasouie [2001] FCA 1133; 116 FCR 7 at [30]; Minister for Immigration and Multicultural Affairs v Prathapan [1998] FCA 955; 86 FCR 95 at 104-105. In Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211, the Full Court (Lander, Jessup and Gordon JJ) held at [35]: …s 36(2B)(b) does not, in its terms or in its operation, require either the conclusion that it is inevitable that the non-citizen will suffer significant harm or the conclusion that it is certain that he or she will not. The express terms of the section require the Minister to be satisfied that, given the protection available to MZYYL in the receiving country, there would not be a real risk that he will suffer significant harm. There is nothing to suggest or warrant the imposition of some kind of guarantee of one or other outcome. And, indeed, such a guarantee is practically impossible. (emphasis added) 19 For the above reasons, I reject ground of appeal 2.

Ground 1 (cumulatively Ground 3) of the Notice of Appeal: judicial error 20 Ground 1 of the Notice of Appeal (cumulatively ground 3) is also an unspecified and unparticularised allegation of judicial error. The Appellants have not provided any particulars of the judicial error, rendering this ground incomprehensible. I reject ground of appeal 3.

Ground 2 (cumulatively Ground 4) of the Notice of Appeal 21 Ground two of the Notice of Appeal has two components. First, that the Tribunal Member used incorrect information and, second, that the Tribunal Member was biased. 22 In the absence of particulars of the alleged incorrect information, this ground is also incapable of being meaningfully understood. I am not satisfied that the Tribunal used incorrect information. 23 Further, in the absence of any particulars in relation to the allegation of bias on the part of the Tribunal Member, I consider this contention to be without any proper basis. In this regard I note the Appellants did not make any submissions at the hearing of this appeal concerning bias on the part of the Tribunal Member. 24 Accordingly, I reject ground of appeal 4.

disposition 25 The appeal will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.