BVN17 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-05-25|Before: Button J

The appeal is dismissed.
The appellant pay the first respondent's costs fixed in the amount of $4,000.00.
The name of the first respondent be amended to the "Minister for Immigration, Citizenship and Multicultural Affairs". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellant is a female citizen of Malaysia, who arrived in Australia on 9 March 2016 on a visitor visa. On 11 May 2016, she applied for a Protection (Class XA) (Subclass 866) visa. 2 The thrust of her application concerned the harm she feared from loan sharks in Malaysia. The appellant had co-signed a loan taken out by her then husband from loan sharks. The sums owing, and interest, had not been repaid. The appellant's children remained in Malaysia, at the town "S", with the appellant's mother, after the appellant came to Australia. To preserve the anonymity of the appellant, specific place names have been replaced with letters throughout these reasons, including in any quotations. 3 On 31 March 2017, the Administrative Appeals Tribunal (the Tribunal) affirmed an earlier decision made by a delegate of the first respondent (the Minister) not to grant the appellant a protection visa and published written reasons (TR). By an application filed on 28 April 2017, the appellant sought judicial review of the Tribunal's decision in the Federal Circuit and Family Court of Australia (Division 2). The primary judge dismissed the appellant's application for review by a decision dated 10 December 2021: BVN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 344 (PJ). 4 By a notice of appeal dated 20 December 2021, the appellant has appealed the decision of the primary judge. The appellant's notice of appeal advances two grounds of appeal as follows: 1. The decision has a judicial error 2. The decision was incorrect because the Administrative Appeals Tribunal uses incorrect information in the judgement [sic] and was bias [sic] against me 5 No particulars of these grounds of appeal have been provided by the appellant. Nor did she make any written submissions. 6 At the hearing before me, the appellant was self-represented and was assisted (as she was before the primary judge and the Tribunal) by a Malay-English interpreter. 7 In view of the lack of particularisation of the appellant's claims, and her status as a self-represented litigant, I commenced the hearing by asking the appellant if she wanted first to tell the Court what she wanted to say about her appeal, or preferred first to hear from the Minister's representative. The appellant chose to have the Minister make his submissions first. In the course of making his submissions, the Minister's solicitor covered the content of his written submissions and submitted that the appeal should fail on two bases: first, because the grounds of appeal were entirely unparticularised; and secondly, because there was no basis upon which to conclude that the Tribunal or the primary judge had committed a "judicial error", or that the Tribunal had used "incorrect information" or had been biased against the appellant. 8 After the Minister made his submissions, I invited the appellant to tell the Court whether she contended that a judicial error had been made by the primary judge, the Tribunal or both (the notice of appeal not being clear on this point). The appellant responded that she did not know. I asked the appellant what judicial error she thought had been made, but again the appellant said she did not know. I asked the appellant what incorrect information she thought the Tribunal had used, and why she thought the Tribunal had been biased against her. The appellant was not responsive to any of these questions, only shaking her head or saying she did not know. The only matter raised by the appellant was that she wanted some further time to remain in Australia to earn money to support her family.

The Tribunal's Decision 9 The Tribunal assessed whether the appellant was entitled to a protection visa on two bases. 10 First, the Tribunal assessed whether the appellant was a person in respect of whom Australia has protection obligations on the basis that she was a refugee: s 36(2)(a), s 5H and s 5J(1) of the Migration Act 1958 (Cth) (the Act). Section 5J(1) requires that, in order for the appellant to have a well-founded fear of persecution, she must fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there must be a real chance that, if the appellant returned to Malaysia, she would be persecuted for one or more of those reasons and (of critical importance in the appellant's case) the real chance of persecution must relate to all areas of Malaysia. 11 Secondly, the Tribunal assessed whether the appellant was entitled to a visa on the basis of the complementary protection provisions under the Act. Those provisions required that the Tribunal be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk that the appellant would suffer significant harm: s 36(2)(aa) of the Act, noting the statutory meaning of significant harm specified by s 36(2A) and the exclusion in s 36(2B)(a) that there is taken not to be a real risk that a non-citizen will suffer significant harm in the country if the decision-maker is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be that real risk of significant harm. 12 In his written submissions, the Minister summarised the Tribunal's decision. Having reviewed the Tribunal's decision, I am satisfied that the Minister's summary is accurate and fairly sets out the course of, and integers of, the Tribunal's reasons. The Minister's summary was as follows (emphasis in original; omitting references to the pages of the hearing book which was before me): 8) The Tribunal accepted that the appellant was divorced and that her children lived with her mother in ["S"], which was 1.5 hours from where the appellant had been working in ["J"]. It also accepted that the appellant had lost her employment as she did not attend work: [12]-[13]. The Tribunal did not accept that the appellant bore responsibility for all of her ex-husband's debts because she had co-signed the loan agreement with him: [15]. 9) The Tribunal considered the appellant's capacity to participate in the hearing. The Tribunal noted the appellant's evidence that after her divorce she was treated at a "psychological centre" for three months: [10]. The Tribunal considered the appellant's evidence that she had not sought medical attention in Australia and that her condition had not prevented her from working in Australia. On this basis, the Tribunal was satisfied that the appellant was given a real opportunity to put forward evidence and submissions: [13]. 10) Having regard to country information ([18]-[22]), the Tribunal was not satisfied that police in Malaysia were unable to protect her from "loan sharks": [23]. However, the Tribunal "proposed to accept" that the appellant had a real chance of suffering serious harm by the "loan shark gang" if she returned to her former home area in ["J"], where the gang operated, and that the reason for the harm was her membership of a particular social group, which it described as being akin to loan shark defaulters in Malaysia: [24]. 11) In relation to the appellant's claim to fear harm from her husband, including a threat to take her children from her, the Tribunal considered country information regarding domestic violence in Malaysia ([25]) and the appellant's evidence that her children had not been harmed or contacted by her ex-husband: [27]. The Tribunal noted that, at [the] hearing, the appellant did not claim to fear domestic violence from her ex-husband: ([26]). The Tribunal did not accept that the appellant's ex-husband would inform the loan sharks of her whereabouts if she returned to Malaysia because he was also responsible for the debt: [27]. The Tribunal did not accept that the appellant had a real chance of suffering serious harm from her ex-husband on that basis, or because of domestic violence: [26]-[27]. 12) Having regard to country information about the position of women and Christians in Malaysia, and the appellant's concession at the hearing that she did not fear harm on either of those bases, the Tribunal did not accept that she faced harm in Malaysia for those reasons: [29]-[31]. Having regard to relevant country information, the Tribunal was not satisfied that she had a public profile or that she would face harm upon return to Malaysia as a failed asylum seeker: [38]-[39]. 13) The Tribunal considered whether the appellant could relocate within Malaysia. It had regard to country information, the fact that the loan sharks had not tracked down her children, the appellant's evidence that she could not live in ["S"] because her ex-husband would find her, the fact that the appellant had previously lived in the nearby village of ["P"], and the fact that, although people knew she was "raised" there, the appellant had departed that village over 20 years ago: [32]-[33]. The Tribunal was satisfied that there was only a remote chance that the loan sharks would locate her if she relocated to a place like ["P"] and that therefore she could safely relocate within Malaysia: [34]. For these reasons, the Tribunal found that the appellant did not satisfy s 5J(1)(c) of the Act. 14) Having regard to its findings and the appellant's claims that the Tribunal had accepted, the Tribunal was not satisfied that the appellant had a real chance of persecution if she returned to Malaysia, or that she satisfied s 36(2)(a) or (b) of the Act: [40]-[41]. Complementary protection 15) The Tribunal considered whether the appellant met the criteria for complementary protection in s 36(2)(aa) of the Act. Based on its anterior findings and country information, and having regard to s 36(2B)(a) of the Act, the Tribunal was not satisfied that the appellant had a real risk of suffering significant harm by reason of the claims accepted by the Tribunal (in relation to loan sharks) or for any other reason, should she relocate within Malaysia: [45]-[46]. 16) The Tribunal considered whether the appellant could safely and reasonably relocate within Malaysia: [47]-[52]. Based on country information and its discussions with the appellant at the hearing, the Tribunal was satisfied that the appellant could find work if she relocated, that continued separation from her children would not be unreasonable, and that she would be able to rent accommodation and use public transport if she relocated: [49]-[50]. The Tribunal was not satisfied there was evidence of concern with respect to the appellant's education, language or health, and that the country information did not suggest that relocation would be unreasonable for her: [51]. Consequently, the Tribunal was satisfied that she could safely and reasonably relocate within Malaysia. 17) Based on its finding that the appellant could reasonably relocate, the Tribunal was not satisfied that the appellant had a real risk of suffering significant harm, as per s 36(2A) of the Act: [53]. 18) The Tribunal was not satisfied that there was a real risk that the appellant would suffer significant harm on return to Malaysia, even after considering its acceptance of her claim with respect to loan sharks, or for any other reason: [54]-[55]. Consequently, it concluded that the appellant did not meet the complementary protection criteria in s 36(2)(aa) of the Act: [56]. 13 As may be seen from the above summary, the Tribunal accepted, favourably to the appellant, that although it was not satisfied that police in Malaysia were unable to assist against the loan shark menace, the appellant nevertheless had a real chance of suffering serious harm from the loan shark gang if she returned to her former home area in Malaysia, being "J", where the loan shark gang operated. The Tribunal also accepted, again favourably to the appellant, that the essential and significant reason for the harm was her membership of a particular social group, described as "something approximating loan shark defaulters in Malaysia": at TR [24] (emphasis in original). 14 Central to the Tribunal's conclusion was its assessment that the appellant would not be exposed to a risk of serious harm at the hands of loan shark gangs if she relocated within Malaysia. It was because of its conclusion that the appellant could safely relocate within Malaysia that the Tribunal concluded she did not satisfy s 5J(1)(c) of the Act as the risk of persecution did not relate to all areas of Malaysia. The Tribunal's conclusion that the appellant could safely and reasonably relocate also meant that s 36(2B)(a) of the Act applied such that there was not a real risk that the appellant would suffer significant harm for the purposes of s 36(2)(aa).

The Primary Judge's Reasons 15 The Minister's submissions also helpfully, and accurately, summarised the decision of the primary judge as follows (emphasis in original; again omitting references to the hearing book before me): 19) On 28 April 2017, the appellant applied to the then Federal Circuit Court of Australia for judicial review of the Tribunal's decision. She relied on the following grounds (without alteration): 1. The AAT member was biased; 2. The Tribunal failed to consider many vital integers of my case; 3. The Tribunal failed to consider many vital evidence that are relevant to my case; 4. The Tribunal deprived me of procedural fairness; 5. The Member has failed to do his duty. 20) On 7 September 2021, the appellant filed an affidavit in support of her application for review. In the affidavit the appellant raised the following three additional complaints (particulars omitted but are set out in full in the judgment of the primary judge [21]): 1. The AAT denied me procedural fairness. 2. The AAT made a jurisdictional error that the I do not meet the criteria in Section 36(2)(aa) of the Migration Act 1958 (the Act) for a complementary protection visa. 3. That the Respondents have erred in law and / or facts in applying Section 36 of the Migration Act 1958 by failing to take into considerations of the following facts and circumstances that support the averments there are real risk that significant harm which is necessary and foreseeable harm will incur upon me if I were to be removed from Australia to Malaysia. 21) The primary judge heard the application on 9 November 2021. The primary judge noted that when invited by the primary judge to tell the Court what she thought the Tribunal did wrong, the appellant responded that "there was no error in the Tribunal decision" ([24]). Further, after the Minister's representative made submissions, the appellant declined the primary judge's invitation to make any submissions in reply ([24]). 22) With respect to ground one, the primary judge held that the appellant had not clearly identified the manner in which she alleged bias on the part of the Tribunal, and that there was nothing before the Court to suggest that the Tribunal's decision was affected by bias ([30]-[33]). 23) The primary judge found that no particulars were provided with grounds two and three to identify what claims or evidence were overlooked by the Tribunal ([36]). Acknowledging also that ground three contained in the appellant's affidavit filed 7 September 2021 set out five particulars with respect to the appellant's allegation that the Tribunal failed to consider one or more integers of the appellant's claims and that the Tribunal failed to consider relevant evidence, the primary judge held that the Tribunal properly considered the appellant's claims and evidence and that no jurisdictional error arose ([36]-[37]). 24) With respect to ground four and the first ground set out in the supporting affidavit filed 7 September 2021, the primary judge held that the Tribunal complied with its procedural fairness obligations, including ss 424A and 425 of the Act ([40]-[43]), and that the appellant was on notice of the determinative issues under review ([44]). 25) By ground five and the second ground of the supporting affidavit, the appellant contended that the Tribunal failed to comply with its statutory obligations or otherwise misapplied the law. Whilst the ground was not particularised to make it meaningful, the appellant's supporting affidavit suggested that the ground was directed at the Tribunal's complementary protection findings. The primary judge held that the Tribunal correctly considered whether it was reasonable, in the sense of practicable, for the appellant to relocate ([50]) and that the Tribunal otherwise properly applied the law and that no other error was apparent from the Tribunal's reasons ([51]). 26) Having identified no jurisdictional error in the Tribunal's decision, the primary judge dismissed the application ([52]).

Consideration 16 The Minister submitted that the lack of particularisation of the appellant's grounds of appeal was itself a sufficient basis upon which the appeal should be dismissed, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J), cited by the Full Court in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (Perram, Derrington and Stewart JJ). 17 Be that as it may, as the appellant was self-represented, I will consider, as far as I am able in the absence of any particularisation or submissions, the grounds of appeal raised by the appellant. 18 The first ground was that the "decision has a judicial error". Having reviewed the reasons of the Tribunal and the primary judge, I have not identified anything that could be characterised as a "judicial error". The Tribunal identified the relevant statutory provisions, and worked methodically through the evidence, considering both country information and information obtained from the appellant. The Tribunal rejected the appellant's claims on the basis of factual findings that were open to it on the evidence, and applying the relevant provisions of the Act. 19 I also do not discern any "judicial error" in the primary judge's decision. While some of the grounds advanced before the primary judge were also bereft of particulars, an affidavit relied on by the appellant before the primary judge provided some further context and substance to the appellant's grounds. The primary judge worked through each of the grounds which it appeared that the appellant was raising and, having considered them as fully as possible in the absence of any submissions, rejected each on a comprehensible and legally sound basis. 20 The appellant's second ground of appeal raised two issues: first, a contention that the Tribunal used incorrect information; and secondly, a contention that the Tribunal was biased against her. 21 Insofar as the second ground of appeal contends that the Tribunal used "incorrect information", findings of fact were a matter for the Tribunal. It is only in very limited circumstances that a factual finding will constitute a jurisdictional error (eg where a factual finding is not supported by any evidence at all): see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13; [2021] HCA 41 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ); BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33] (Moshinsky J); Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [31] (Tracey J). Further, the appellant did not, when invited to do so, identify any "incorrect information" to which the Tribunal referred. To the extent that this ground of appeal repeats contentions made before the primary judge that the Tribunal failed to consider certain facts, for the reasons given by the primary judge (at PJ [34]-[37]), the Tribunal did consider the relevant facts that were raised by the appellant's affidavit before the primary judge. 22 The appellant's affidavit raised, as contentions of fact, matters concerning the risk she perceived from the loan sharks, her contention that she could not live anywhere else in Malaysia without fear, and her view that the police in Malaysia could not protect her as they only act upon a crime having been committed. The Tribunal's reasons show that the view it took of the capacity of the police in Malaysia to address harm from loan sharks was not determinative as it proceeded on the basis that the appellant was exposed to a risk of harm from the loan shark gang in "J". As to the relocation matter, the capacity of the appellant to relocate and the risk she would face if she returned to Malaysia to live in an area other than "J", was a factual matter for the Tribunal. 23 As to the allegation of bias, while a transcript of the hearing before the Tribunal was not in evidence, there is nothing in the Tribunal's reasons which lends colour to the suggestion the Tribunal was biased against the appellant.

conclusion 24 Accordingly, the appeal must be dismissed. The Minister sought a fixed costs order in the sum of $4,000.00. That is well below the short form amount fixed for an appeal of this kind by item 15.2 of Sch 3 to the Federal Court Rules 2011 (Cth) (the figure fixed at the relevant time being $7,965.00). I will also order, as sought by the Minister, that the Minister's name in this proceeding be changed to "Minister for Immigration, Citizenship and Multicultural Affairs". I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.

Migration Act 1958(Cth)ss 5H, 5J, 36

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