BQR18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 This is an appeal from an order made by the Federal Circuit Court of Australia on 4 December 2018. On that day, the Federal Circuit Court made an order that the appellant's application for judicial review in relation to a decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed. On 7 March 2018, the Tribunal made a decision to affirm a delegate's decision not to grant a protection visa to the appellant. 2 The background facts in this appeal are as follows. On 6 August 2016, the appellant arrived in Australia on a tourist visa. On 18 October 2016, he applied for a protection visa. On 20 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The appellant applied to the Tribunal for a review of the decision. The Tribunal reviewed the decision and, as I have said, decided to affirm the delegate's decision. 3 In his application for judicial review filed on 3 April 2018 and under the heading, "Grounds of application", the appellant referred to six annexures. Annexure 5 was entitled, "Statement of Reasons against the Decision of Department of Home Affairs dated 20 March 2017 File No CLF 2016/64915" and Annexure 6 was entitled "Statement of Reasons against the Decision of AAT dated 7 March 2018 Case No 1706505". The primary judge referred to these annexures in his reasons for judgment (BQR18 v Minister for Home Affairs & Anor [2018] FCCA 3689). He drew from Annexure 6 what he described as three distinct complaints. They were as follows. First, the appellant claimed that the Tribunal failed to consider the country information provided by the appellant. Secondly, the appellant claimed that the Tribunal's decision was not open on the evidence. Finally, the appellant claimed that the Tribunal failed to accord to him procedural fairness. The primary judge rejected each of these arguments. 4 The Tribunal found that the appellant is a citizen of the Federation of Malaysia. It found that his protection claims were to be assessed against Malaysia as the country of reference and "receiving country" respectively. 5 The Tribunal described the appellant's claim for protection in the following terms (at [17]): 17. The applicant's claims for protection are detailed in his application for a protection visa made 18 October 2016 and are summarised in the delegate's protection visa decision record dated 20 March 2017 as follows: a) The applicant claims to fear harm because his friend borrowed money from 'loan sharks' and the applicant is a guarantor on the loan shark and his friend and him are unable to repay the loan. As a result the applicant claims loan sharks will physically harm him if he returns to Malaysia. b) The applicant claims he is unable to seek state protection. c) The applicant claims he is unable to relocate within Malaysia. 6 The Tribunal was aware of the criterion for a protection visa in s 36(2)(a) and in s 36(2)(aa) of the Act. The Tribunal noted that the appellant had not claimed to fear harm because of his race, religion, nationality, political opinion or membership of a particular social group. It noted the claims made in the submissions filed by the appellant's representative on 23 February 2018. The Tribunal confirmed through the appellant's interpreter that he understood his representative's submissions. The Tribunal was satisfied that the appellant did indeed understand his representative's submissions. 7 The Tribunal noted that the appellant said that the loan sharks had gone to his family twice since he had been in Australia, trying to discover his whereabouts. He said that he did try once to move within Malaysia, but that the loan sharks "have people all over". The appellant said that in the event he was to be returned to Malaysia, he feared being tortured and harassed by the loan sharks. The appellant did not provide any independent evidence to support his claim that he had been harmed by the loan sharks (also known as Ah Long) in Malaysia, or that he would be harmed in the event that he was returned to Malaysia. 8 The Tribunal considered a number of items of country information, including a Department of Foreign Affairs and Trade Country Information Report and numerous media reports and other articles. 9 The Tribunal said that it had some reservations about the credibility of the appellant's evidence in relation to the loan shark activity. The appellant did not provide any detail in relation to the activity. Although he was asked to provide detail and was invited to tell the Tribunal any information he could about his concerns if returned to Malaysia, the appellant either mumbled to himself or provided no response, or simply told the Tribunal that he did not want to return to Malaysia. 10 The Tribunal found that the appellant was not a person to whom Australia owed protection obligations under s 36(2)(a) of the Act given the appellant's lack of evidence and his representative's submissions that the appellant is not a refugee with s 5J(1)(a). 11 The Tribunal turned to consider s 36(2)(aa), that is to say, the complementary protection criteria. The Tribunal said that as a result of being a victim of loan shark activity, it was satisfied that the appellant did have a risk of harm that included severe physical violence and ill-treatment and that this harm would amount to significant harm as outlined in s 36(2A)(c) and (d). The Tribunal noted the terms of s 36(2B)(b) which is in the following terms: However, 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: (a) … (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; … 12 The Tribunal was aware of the decision of the Full Court of this Court in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 (MZYYL) which considered the relationship between s 36(2)(aa) and s 36(2B)(b). The Tribunal noted that in order to satisfy s 36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one, and in that sense, there was a relationship between s 36(2)(aa) and s 36(2B)(b). The Tribunal referred to the appellant's evidence as I previously summarised, and then said (at [33]-[34]): 33. The Tribunal considers that the applicant has not taken steps to obtain the state protection available to him in Malaysia, and that if he were to file a report, it would afford him with effective protection measures. The applicant is capable of articulating his concerns, and is aware that he can make a report, and will be able to do so if it becomes necessary on his return. 34. Having considered the country information and the applicant's evidence, the Tribunal finds that the applicant could obtain from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm for any reason should he return to Malaysia now or in the near future. 13 Having rejected the appellant's claims under s 36(2)(a) and s 36(2)(aa), the Tribunal affirmed the decision not to grant a protection visa to the appellant. 14 The primary judge rejected the appellant's three grounds of judicial review. With respect to the first ground, the primary judge found that the Tribunal had taken all of the information put to it into account. The primary judge concluded that the Tribunal had plainly considered everything that the appellant had put before it, whether by way of written submissions, other information and his verbal evidence. The primary judge said that while the Tribunal may not have referred to all of those matters, it was clear that it did not need to do that. With respect to the second ground, the primary judge said that the Tribunal's ultimate conclusion that the appellant could seek the protection of the state was a conclusion open on the evidence. The primary judge said (at [20]): 20. The fact is that that Applicant has not even made a complaint to police as yet. It is very difficult for a Tribunal, in those circumstances, to come to a finding that the State would not, and could not, protect the Applicant. Such a conclusion was well and truly open on the evidence. In my view, there has been no jurisdictional error made by the Tribunal in this area. 15 With respect to the third ground, the primary judge noted that the Tribunal was aware that the appellant was nervous and asked him to speak up. The primary judge noted that the appellant's appearance before him was similar to the description of the appellant given by the Tribunal. The primary judge said that on a number of occasions, the appellant seemed to lower his voice and also mumble where the interpreter did have to ask him to speak up. However, as occurred in the Tribunal, the primary judge said that it was clear to him that the appellant understood what the questions were that were being asked of him and that he responded appropriately. The primary judge found that there was no jurisdictional error and dismissed the appellant's application. 16 As I have said, there are two grounds of appeal. They are difficult to follow. The first ground appears to allege an error in the construction of the complementary protection criteria in s 36(2)(aa) and s 36(2B)(b), although the precise nature of the error is not identified. The second ground is also difficult to follow. It appears to allege that the Minister did not consider the complementary protection criteria as a whole and that the Tribunal had applied "different case law". It appears to allege that a "lot of material and arguments" were not considered and that new arguments came to light. It alleges that the appellant "has exceptional circumstances beyond his control". 17 The appellant appeared in person before this Court. He had the assistance of a Tamil interpreter (Malaya). He was not able to articulate a jurisdictional error. I should mention that on 22 January 2019, a Registrar made directions for the filing by the appellant of a written outline of submissions. The appellant did not file any written submissions. The appellant did not articulate an argument in support of the proposition that the primary judge had erred in concluding that the Tribunal had not committed a jurisdictional error. 18 With respect to the first ground of appeal, this seems to be a matter not raised before the primary judge. The primary judge did not detect an argument to the effect that the Tribunal had misconstrued the complementary protection criteria. The precise point has not been articulated by the appellant and he has provided no explanation for his failure to take the point in the Court below. It is not expedient in the interests of justice to allow the appellant to raise this point (Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19]). In any event, it seems to me that there is no error in the Tribunal's construction of the section. The Tribunal followed the decision of this Court in MZYYL and, in particular, the proposition that to satisfy s 36(2B)(b) the level of protection offered by the receiving country must reduce the risk of significant harm to less than a real one (see MZYYL at [40]). 19 With respect to the second ground of appeal, this appears to challenge the Tribunal's conclusion concerning the protection he could obtain from an authority of the country. This is equivalent to the second ground raised before the primary judge. In my opinion, there is no error in the primary judge's approach to this complaint. His Honour said (at [19]-[20]): 19. …The country information was that police do take such things seriously, that they have made arrests for this crime and, certainly, if someone has been extorted or in any way physically assaulted because of this, the police step in. 20. The fact is that that Applicant has not even made a complaint to police as yet. It is very difficult for a Tribunal, in those circumstances, to come to a finding that the State would not, and could not, protect the Applicant. Such a conclusion was well and truly open on the evidence. In my view, there has been no jurisdictional error made by the Tribunal in this area. 20 For these reasons, the appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.