FEDERAL COURT OF AUSTRALIA

CDY15 v Minister for Immigration and Border Protection [2018] FCA 175

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondents’ costs of the appeal fixed in the sum of $3,800 being a lesser sum than that prescribed by Schedule 3, Part XV of the Rules of the Federal Court of Australia.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia which was handed down 2 August 2017. That decision dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 16 September 2015. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration & Border Protection (the Delegate) to refuse to grant the applicants Class XA Protection visas (the Visas).

Background

2    The appellants, who are Malaysian citizens, are husband and wife. The first appellant arrived in Australia on 5 June 2012 and the second appellant arrived here on 4 October 2012. Each entered the country as the holder of a visitor visa. They applied for protection visas on 5 March 2013 and attended a protection visa interview with a delegate of the Minister on 22 July 2013.

3    The delegate refused to grant the visas on 15 October 2013 and, on 28 October 2013, the appellants applied to the Tribunal for a review of the delegate’s decision. After several delays, which had been sought by the appellants, they appeared before the Tribunal on 9 and 13 June 2014.

4    The first appellant makes several claims in support of his application for a protection visa. The second appellant relies on her husband’s claims and does not raise any of her own.

5    In general terms, the first appellant claims that, in Malaysia, two of his brothers, who were members of a political party, were attacked by members of a gang as they were returning from a party meeting. It is said that the attack was politically motivated. One of the first appellant’s brothers killed the alleged leader of the gang. That brother was tried, convicted and has been sentenced to death. The other brother involved in the attack was later killed in a car accident, which the appellants allege was suspicious and supposedly caused by the gang members. The first appellant claims that, subsequently, he has been threatened, attacked and harassed by the gangsters seeking retribution for the death of their leader. It is for that reason that he seeks a protection visa. The same grounds are relied upon for the purposes of claiming that they are entitled to a visa on the Complimentary Protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

Grounds of Appeal

6    The appellants assert that the Court below erred by not finding that the decision of the Tribunal was affected by jurisdictional error because the Tribunal failed to deal with the Applicant’s claims as they arose from the Tribunal’s own findings or conclusions. The particulars of that are as follows:

(a)    The Tribunal accepted that the first appellant had been attacked and seriously injured on two occasions by unknown persons.

(b)    The Tribunal did not accept the first appellant’s claim that those persons were members of a gang, whose former leader had been murdered by the Applicant’s brother and who now seek revenge against the first appellant. On that basis, it affirmed the decision of the delegate to refuse the appellants’ claims.

(c)    The Tribunal was required to, and did not, consider whether the appellants faced a real chance or real risk of serious or significant harm pursuant to ss 36(2)(a) and 36(2)(aa) of the Act, on the basis of the two attacks which the Tribunal accepted had occurred.

7    By their written submissions the appellants assert that the Tribunal failed to deal with their claim under s 36(2)(aa) because it simply relied upon certain findings of fact which were made by it in its rejection of the claim under s 36(2)(a).

Consideration

8    At the outset it ought to be noted that the allegation accepted by the Tribunal – that the first appellant had been attacked and seriously injured on two occasions by unknown persons (at [147] of the Tribunal’s reasons) – is a separate and distinct proposition from the claim that the attacks were perpetrated by gangsters as retaliation for the murder of their leader or for political reasons. The applicant described the attacks on him in some detail. They appear to have been quite dramatic and he was apparently injured in the course of each of them. Nevertheless, it was open to the Tribunal to accept that the first appellant had been attacked, but to reject his assertions as to the motivations for them.

The decision of the Tribunal

9    In the Tribunal’s detailed reasons it considered the appellants’ claims and the evidence provided by them. At the commencement of its reasons, the Tribunal set out the statutory provisions. Sections 36(2)(a) and 36(2)(aa) relate to the criteria required to be satisfied for a protection visa to be granted and provide:

36 Protection visas—criteria provided for by this Act

…

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

10    With respect to the consideration of the appellants’ factual allegations, the Tribunal found that the first appellant’s evidence and the claims advanced by him were not always credible and that there were discrepancies and inconsistencies in the statements which he made. It took issue with a number of the first appellant’s contentions. In summary, the Tribunal found that:

(a)    the appellants were able to provide credible documents to corroborate aspects of their claims, specifically that the brother was convicted of murder and that the first appellant was twice attacked.

(b)    there were significant concerns about the first appellant’s claims relating to his attackers and their motives, specifically who they were and the circumstances that resulted in the brother’s conviction. The result of that was that the Tribunal found that “several key aspects of the [first] applicant’s evidence regarding the identity and motivation of his attackers are not credible”. (at [113])

(c)    the various discrepancies in and implausibility of first appellant’s evidence could not be accounted for by the lack of legal assistance and the limited English skills of the second appellant, who prepared the protection visa application.

(d)    the first appellant’s submissions in relation to the impact of trauma on memory did not account for the discrepancies in his recollection of events as no evidence was provided indicating that the appellant was or is suffering from any psychological symptoms affecting his memory. It was noted by the Tribunal that, contrary to that claim, the first appellant was able to recall certain events in detail.

(e)    there were significant doubts about the first appellant’s claims regarding the circumstances of the “gang leader’s” death. Specifically, the first appellant’s initial failure to mention his brother was attacked after attending a political party meeting; his vague knowledge about his brother’s political involvement; his inability to name which gang had been targeting him for many years; and, the absence of any reference to the deceased being a gang leader or member in media reports about the murder.

(f)    the first appellant’s lack of awareness of the alleged political circumstances surrounding the claim that his brother (who was convicted of murder) was attacked for political reasons was not credible and nor were his explanations for his failure to mention the alleged political issues at an early stage.

(g)    it was implausible the appellants did not know the name or identity of the gang whose leader his brother was convicted of murdering and which has been allegedly harassing and attacking the first appellant for two years before leaving Malaysia.

(h)    it was significant that the news reports of the murder provided a substantially different story to the claims of the first appellant. None of the news reports refer to the deceased as a gang leader, there being a gang attack on the first appellant or that the incident was in any way politically motivated. Rather, the reports refer to the deceased, who had been drinking tea with friends, had been set upon and chased by 20 people including the first appellant’s brother.

(i)    the appeal judgment in relation to the brother’s murder conviction does not refer to the deceased being a gang leader nor that the attack was politically motivated. Further, there were inconsistencies between the story of the first appellant and the stories provided by the defendants in that appeal.

11    It followed that the Tribunal did not accept that the brother was attacked by a gang or that the attack was politically motivated. It concluded that the victim of his brother’s murder was not a gang member or leader and it did not accept that the victim or his alleged gang attacked his brother for political reasons or otherwise. It followed that it did not accept that the attacks on the first appellant arose from gang related violence or for political reasons.

12    As mentioned, the Tribunal (at [147]) accepted that the first appellant had been attacked on two occasions, but did not accept the alleged motivation for those attacks. It concluded that there may have been reasons why the first applicant had been attacked on a number of occasions but, if there were, he did not wish to disclose them. It followed that it did not “accept on the evidence before it that there was a real chance or risk that the applicant will be the victim of similar attacks or face serious or significant harm in the foreseeable future.” (This being a finding relevant to the Tribunal’s determination under s 36(2)(aa)). In such circumstances the Tribunal had nothing before it to indicate the first appellant would be at risk of significant harm in the foreseeable future were he to return to Malaysia.

13    Ultimately, the Tribunal found that the appellants did not meet the criteria for the Visa as set out in s 36(a) and (aa) and affirmed the decision of the Delegate. It decided (at [150]) that the appellants did not face a real chance of serious harm from members of the alleged gang because of their affiliation with the brother, arising from the brother’s role in and conviction for an alleged gangster’s death, the first appellant’s coordinating or assisting with the brother’s legal proceedings or any Convention ground. That being so, it was not satisfied that the appellants’ fears of persecution were well-founded. Further, it was not satisfied (at [151]) “that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that either of the applicants will face significant harm” by reason of those identified circumstances.

The decision of the Federal Circuit Court

14    The reasons for the decision of the Court below are dominated by a consideration of the Tribunal’s findings. That extensive consideration was necessary because the appellants claimed, as they do before this Court, that the decision of the Tribunal was affected by jurisdictional error on the basis that the Tribunal failed to deal with the appellant’s claims as they arose from the Tribunal’s own findings or conclusions.

15    The learned primary judge decided that the Tribunal did undertake a consideration of the appellants’ claims with reference to each of s 36(2)(a) and (aa). The Tribunal relied upon its considerations and conclusions under the Convention criteria in relation to the issues arising under each sub-paragraph. It addressed the complementary protection criteria by reference to the language of s 36(2)(aa) and by reference to its findings of fact. Such analysis was, in the circumstances, the correct approach.

16    Importantly for the purposes of this appeal, the Tribunal accepted that the appellant was attacked by unknown people on two separate occasions, but it rejected the appellants’ assertions as the motivations for those attacks. The Court below recognised that, having done so, there was no other evidence as to why the first appellant was the unfortunate victim of those vicious assaults and that the only conclusion the Tribunal was able to draw was that the appellants did not satisfy s 36(2)(a) or (aa). It was not for the Tribunal to speculate as to potential bases on which the first appellant may face fear from unknown persons, or to otherwise make the first appellants case for him (at [21]). Ultimately, the Court below decided that the Tribunal’s decision was not affected by jurisdictional error.

Contentions before this Court

17    The gravamen of the applicant’s case as advanced on appeal is that the learned Federal Circuit Court judge did not appreciate that the Tribunal had erred by applying findings relating to the appellants’ claims on Convention grounds to their claims based on the Complimentary protection criterion. The applicants acknowledge that in some cases (SZSXE v Minister for Immigration and Border Protection [2014] FCCA 579 [22] and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 [56]) it is permissible for a decision maker to rely upon findings of fact relevant to a claim based on a Convention ground for its determination of a claim based on a Complimentary protection criterion. However, they assert that this was not permissible in the present case. They submit that the Tribunal wrongly conflated the consideration of the evidence in relation to each of the claims. In doing so they cited the decision of her Honour Judge Driver in SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7 [97] to the following effect:

Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the Reviewer at [75] on unspecified ‘findings set out above’ is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion

18    Part of the appellants’ submission in this regard was that the question of the motivation for the past attacks on the first appellant was an issue relevant to the determination of the claim based on a Convention ground because the motivation identified that the persecution was for a convention reason. It was submitted, however, that the question of motivation was irrelevant to consideration of the application of whether there was a real risk of harm for the purposes of s 36(2)(aa).

19    In the course of his oral submissions, Mr Maloney for the appellants ultimately identified the ground of complaint as being that the Tribunal did not comply with its obligation to address the separate question of whether the circumstances of the appellants came within the scope of the Complimentary Protection criterion and did not consider the distinct requirements of that issue. He submitted that the Tribunal was required to consider whether, on the basis of the facts as it found them to be, the appellants came within s 36(2)(aa). In particular, he says that the Tribunal was required to consider the facts, including the Country Information and the fact that the first appellant had been attacked on two occasions, in order to ascertain whether the requirements of s 36(2)(aa) were satisfied. In this respect he said that the Tribunal had to consider whether the appellants were faced a real risk of harm from targeted attacks from unknown persons.

20    Mr Maloney further submitted that the Tribunal fell into error by applying the rejection of the appellants’ claims in relation to the Convention grounds to the rejection of the Complimentary Protection criterion. More particularly it was submitted that the elements rejected by the Tribunal were confined to the identity of first appellant’s attackers and their motives for attacking him; being the political / gang membership issues. They submit that these were relevant to the Convention ground claim because they related to the first appellant’s membership of a social group constituted by his family. It is said that the Tribunal wrongly took the rejection of that matter as disposing of the questions relevant to the Complimentary protection criterion ground and it did not ask itself whether the appellants faced a real risk of significant harm in the light of facts which had not been rejected.

21    The very significant difficulty for the appellants in this matter is that the only ground advanced by them as giving rise to any risk of significant harm if they were returned to Malaysia for their s 36(2)(aa) claim, was the assertion that the attacks on the first appellant arose by reason of the fact that his brother had killed the leader of a gang in the context of political disputation. The risk of future injury was only said to arise because other gang members would seek retribution on the first appellant. This was the same allegation which founded the Convention claim. Once the Tribunal had determined that there was no gang or political involvement in the attack by the first appellant’s brother or in the past attacks on the first appellant, the foundation of the appellants’ assertion necessarily fell away.

22    In response to that suggestion, Mr Maloney submitted that the rejection by the Tribunal of the motivation for the attacks on the appellant was irrelevant to whether the facts of the matter satisfied the requirements of s 36(2)(aa). In doing so he relied upon the comments of Judge Driver in SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7 at [91] where the learned judge seemed to suggest that findings by a decision maker as to the motivation behind the inflicting of harm on a visa applicant, although relevant to a convention ground, were irrelevant to the s 36(2)(aa) inquiry. I cannot agree with those views as expressed by the learned judge.

23    The question to be determined under the s 36(2)(aa) is whether, as a necessary and foreseeable consequence of the applicant for a visa being removed to a receiving country, there is a “real risk” that he or she will suffer significant harm. That involves an evaluation of the harm which the applicant might suffer in the future and that assessment requires past facts and events to be evaluated for the purposes of ascertaining whether a propensity exists for the applicant to encounter harm in the future. Highly relevant to that inquiry is whether the applicant has suffered any previous infliction of harm and the circumstances in which it occurred. If it were the case that third parties inflicted harm on the applicant and had reasons and motivation for doing so and those reasons and motivations remained extant at the time when the decision is made, the decision maker might rightly assume that there exists a propensity for harm to be suffered by the applicant at the hands of those third parties in the future. Conversely, if the motivation or reasons behind the infliction of the initial harm have expired or lapsed, a decision maker might rightly consider that the prospect of the applicant suffering harm in the future from the identified third parties does not exist.

24    That is not to say that the identification of motivation for the infliction of past harm is a necessary requirement. It is possible to contemplate circumstances where the motivation for prior incidents is not known but the frequency of the infliction of harm or the circumstances are such that it is possible to reach the conclusion that there exists a real risk of the applicant suffering significant harm in the future. That said, such circumstances (outside of war zones and the like) will be unusual and it is likely that they will only occur where they generate an assumed or implicit motivation for the infliction of past harm which can be seen to continue at the time of the making of the decision. Nevertheless, in general, as a matter of logic it is the motivation behind past inflictions of harm on an applicant which make that factor relevant to a consideration of whether similar harm is likely to be inflicted in the future. In circumstances where the reason or motivation for the past infliction of harm is not known, the fact that the applicant has sustained that harm, of itself, must necessarily be of little significance in deciding whether, in the future the applicant might be at risk of similar harm. Put another way, it must be that, in all but the most exceptional cases, the existence of prior acts of harm for which no reason or motivation is known cannot lead to the conclusion that the victim of those acts of violence faces any risk of similar harm in the future.

25    Mr McDermott, for the Minister, referred to the decision of Wigney J in SZSXE v Minister for Immigration and Border Protection (2014) 145 ALD 79 in support of the proposition that the motivation for past acts of violence against an applicant is relevant to the consideration of whether there exists a risk of harm in the future. There, the applicant complained that the merits reviewer failed to consider his s 36(2)(aa) claim because he conflated it with a consideration of the test for refugee status under s 36(2)(a). The merits reviewer had determined that the applicant had suffered significant harm at the hands of the Taliban in Afghanistan, but that it was a random act of brutality on their part and that they did not specifically target him for any Convention reason. Wigney J observed that the merits reviewer had set out the correct tests in their reasons and that indicated that they had turned their mind to the correct question. The reviewer had also observed that the applicant’s claim in relation to the Complimentary Protection criterion relied upon essentially the same facts as the claim for protection as a refugee. This was not, as his Honour observed, surprising or controversial as it is usual for a person in the applicant’s position to advance a body of evidence about their past persecution or mistreatment and the consequent fear and belief that they will suffer harm if returned to their country of origin (at [33]). The necessary consequence is the application of the same set of facts to separate tests. The applicant in that case submitted that the merits reviewer impermissibly took his determination when considering the refugee claim that the Taliban did not have a motivation to harm the applicant into account when considering the s 36(2)(aa) criteria. He submitted that motivation was irrelevant to that latter consideration but was relevant to the Convention ground where the reason for the persecution was relevant. His Honour found that the merits reviewer’s decision that the applicant was not targeted by the Taliban, or was not seen by them as government collaborator, meant that he would be of no significant interest to them if he returned to Afghanistan. On that basis there was no real risk that he would suffer significant harm in the future at their hands. His Honour said:

[54] The past motivation of the Taliban was plainly relevant to a consideration of whether there was any real risk of the appellant suffering serious harm from the Taliban in the future. As counsel for the minister put it, in her helpful submissions:

In a case where it is accepted that the appellant did experience harm in the past, which is the situation in this case, it was entirely appropriate for the reviewer to consider the context and circumstances of that harm (including the motivation of the perpetrators) when undertaking the prospective assessment of whether there were substantial grounds for believing that there was a real risk that the person will suffer significant harm if removed from Australia.

[55] That is undoubtedly correct. The appellant’s submission that the motivation of the Taliban was irrelevant to a consideration of the complementary protection criterion is rejected.

26    Thereafter, his Honour held that the decision maker was entitled to transpose the finding concerning the lack of motivation from the consideration of the Refugee Convention ground to the consideration of the Complimentary Protection Criterion. He was entitled to draw on the same body of evidence in considering each question.

27    The observations of Wigney J in SZSXE are plainly correct and applicable in the circumstances of the present case. Here the Tribunal applied its findings in relation to the question of whether there was any identifiable motivation for the previous attacks on the first appellant to both the Convention grounds claim and the s 36(2)(aa) claim. The findings of the Tribunal were to the effect that the appellants’ explanations for the attacks on the first appellant were untrue and not accepted. This had the result that there was no evidence as to why the appellant was attacked on the two previous occasions. That had the dual effect of denying the possible existence of a Convention ground and removing the existence of any real risk of significant harm being suffered in the future.

28    A not dissimilar outcome occurred in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774. There it was also alleged that the Tribunal had erred by applying findings which undermined the claim for refugee status to the determination of the claim founded upon the Complimentary Protection criterion. In relation to this Robertson J held:

[56] There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.

29    In relation to this ground the appellants sought to rely upon the decisions in SZTDM v Minister for Immigration and Border Protection (No 2) [2013] FCCA 2060 and DKN16 v Minister for Immigration and Border Protection [2017] FCCA 2463. However, those decisions are distinguishable. In both the decision maker was required to exclude from its consideration as to whether or not a Convention ground was satisfied, any conduct in Australia within the prohibition contained in s 91R of the Act. Whilst that task was correctly performed, it appears that the decision makers also excluded that conduct from its consideration of whether the applicants for visas satisfied the requirements of s 36(2)(aa). There was no prohibition on considering that conduct which had occurred in Australia for the purposes of the Complimentary Protection criterion with the result that the decisions were affected by jurisdictional error.

30    No such difficulty arises in this matter. Here the finding of fact – being the non-acceptance of the appellants’ contention as to the motivation for the attacks on him – were directly relevant to both the Convention claim and the s 36(2)(aa) claim. The Tribunal made no error in applying that conclusion of fact to the issues arising under each claim.

31    Mr Maloney also submitted that the Tribunal accepted all of the circumstances surrounding the infliction of past harm and it was incumbent upon it to take those circumstances into account when considering the application of s 36(2)(aa) as well as the Country Information. He said that the Tribunal was required to apply the ‘remaining facts’ (being those which had not been rejected as being untrue) to the test in s 36(2)(aa). He submits that this did not occur.

32    An insurmountable difficulty facing the appellants in relation to this point is that so much of the first appellant’s story or narrative underpinning his claims to threats of harm were disbelieved and rejected by the Tribunal. See in particular [135] to [146] of the reasons of the Tribunal where the majority of the evidence advanced by the appellants as founding the existence of a threat if they return to Malaysia is rejected. In the context of this discussion the findings at [128] and [129] of the reasons are of particular importance. There the Tribunal found as follows:

128. … Based on its concerns and the evidence before it, the tribunal does not accept that [AB] (the murder victim) or his gang attacked [XY] (the first appellant’s brother) or his colleagues for political reasons or otherwise.

129.    Given that the tribunal does not accept the applicant’s claim that [AB] was a gang leader or member, it follows that the tribunal does not accept the applicant’s claim that attacks and alleged threats were made against him and his family from a gang in revenge for the death of their leader.

[The names of the persons involved have been substituted in accordance with the Court’s practice.]

33    Subsequently the Tribunal did not accept that:

(a)    the first appellant received threatening calls at any time in 2010 or calls threatening the happiness of his family (at [136]);

(b)    the first appellant’s attackers in 2010 mentioned anything which suggested that the attack was gang related or that it was related to his assistance in his brother’s appeal against his conviction for murder (at [137]);

(c)    the first appellant was detained by the police on false charges or that he was told that his detention was connected with his involvement in the defence of his brother (at [138]);

(d)    the first appellant was chased by members of AB’s gang in 2010 (at [139]) and this finding tends to nullify any claim to there being a third attack upon the first appellant;

(e)    the first appellant was harassed by telephone calls in 2011 after the second attack (at [140]);

(f)    the second appellant was the subject of inquiries by any gang allegedly targeting the first appellant (at [141]);

(g)    there was any connection between the death of a lawyer in a motor vehicle accident and the fact that the lawyer had been working for XY (paragraph [146]) or that the lawyer had been murdered.

34    After considering the above and other items of evidence which it rejected, the Tribunal, under the heading “Future risk of harm”, considered whether the appellants were subject to a risk of serious or significant harm in the reasonably foreseeable future or whether the first appellant had a well-founded fear of persecution

35    At [147] of its reasons it said:

As noted above the tribunal accepts that the applicant suffered two incidents of harm in the past but has not accepted the applicant’s claims regarding the reasons or motivations for those attacks, namely that they were caused by [AB]’s gang and because of the [first appellant’s] association [XY]. There are many plausible reasons why the [appellant] could have been attacked on those two past occasions that, for whatever reason, he has chosen not to disclose. Given that the tribunal has rejected the claims he has made about the motivations behind those attacks, the tribunal does not accept on the evidence before it that there is a real chance or risk that the applicant will be the victim of similar attacks or face serious or significant harm in the reasonably foreseeable future.

36    That paragraph contains a determination by the Tribunal for the purposes of s 36(2)(aa) to the effect that given the absence of any known motivation for the attacks in the past, there was no real chance or risk that the first appellant would be at risk in the future of serious or significant harm. It was the application of the findings of fact to the test required to be applied by that section. The Tribunal continued:

150.    Having regard to the evidence before it and its finding, the tribunal does not accept that either of the applicants face a real chance of serious harm from members of [AB]’s gang for reasons of their family relationship with [XY], arising from [XY]’s role in and conviction for [AB]’s murder, the applicant’s coordinating or assisting [XY]’s legal proceedings or for any Convention ground. The tribunal is not satisfied that the applicants’ fears of persecution are well-founded.

151.    The tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that either of the applicants will face significant harm from members of [AB]’s gang for reasons of their family relationship with [XY], arising from [XY]’s role in and conviction for [AB]’s murder, the applicant’s coordinating or assisting [XY]’s legal proceedings or for any other reason.

152.    For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot granted the visa.

37    There is no jurisdictional error in the Tribunal applying its earlier findings (being the rejection of the appellants assertions as to why harm was inflicted upon him) for the purposes of determining whether or not he would face a real risk of harm if returned to Malaysia for the purposes of s 36(2)(aa). The rejection of the appellants’ assertions as to the motivations for the attacks and their assertions of the circumstances surrounding them which suggested a motivation for the attacks, had the effect that the fact of the attacks having occurred carried with it no suggestion that similar harm would be suffered in the future.

38    The short answer to the appellants’ submission that the Tribunal was required to consider the circumstances of the attacks to the extent that they had not been rejected by the Tribunal for the purposes of its consideration under s 36(2)(aa), is that it did. All that relevantly remained of the appellants’ narrative concerning those events was the fact of the attacks having taken place. As appears from the above cited paragraphs of the Tribunal’s reasons that is what was considered and it was held not to give rise to any real risk of harm.

39    Once the Tribunal had rejected the first appellant’s evidence that he was being targeted because of the actions of his brother, it was not required to speculate as to why it was that he had been attacked on two previous occasions or whether he would be at risk of similar attacks in the future or face serious or significant harm in the future. In this latter respect Mr McDermott for the Minister referred to MZZHA v Minister for Immigration and Citizenship (2014) 224 FCR 365. That case concerned a slightly different context although the point of principle is applicable. The appellant in that case had sought a protection visa and although the Tribunal had accepted that he had been given the lash in Iran it did not accept the appellant’s evidence as to why he had been so punished. The appellant claimed that the Tribunal was required to go further and ascertain why he had been punished and, without doing so, it was not able to make an assessment of the risk of harm to the appellant in the future. That argument was rejected by North J who said that the Tribunal was not required to speculate as to the reasons as to why the appellant had been punished and whether he would commit similar crimes in the future which might warrant such treatment. That conclusion can be applied to the present case. Here the Tribunal made findings which removed any rationale for the attacks which were inflicted upon him and that necessarily negated the prospect of the first appellant being at risk of similar violence in the future. The best that can be said of the past attacks is that they were serious and unfortunate events, but there is nothing in their circumstances, as found by the Tribunal, which suggest that they may reoccur.

40    Mr Maloney for the appellants sought to submit that there was more in the events accepted by the Tribunal than merely that the attacks occurred and the Tribunal failed to consider that evidence. He said that the Tribunal should have considered the Country Information concerning the prevalence of attacks by gangs. That submission cannot be sustained. The Tribunal rejected the contention of there being any link between the attacks and gang related violence or it having arisen from the political activities of the first appellant’s brother and the Country Information went to those activities. Shorn of these matters there is no relevant context to the attacks which support any conclusion that the first appellant will be subject to similar attacks in the future. That was, indeed, the conclusion of the Tribunal.

41    It is plain that the Tribunal correctly dealt with both the Convention grounds and the Complimentary protection criterion and that it was cognisant of the legal tests to be applied in each case. At the commencement of its reasons the Tribunal made a clear and distinct reference to the separate criteria required to be satisfied by s 36(2)(aa) (see, in particular, [15] – [17]) and after considering the evidence and material in detail undertook the task of making findings in relation to the claims advanced. There was no conflation of the tests or the reasoning relevant to each. The factual foundation of each claim was the same with the result that the basis for the rejection of the Convention claim could be relied on for the rejection of the claim based on the Complimentary protection criterion.

42    It was urged upon the Court that various authorities required that the Tribunal deal with each of the claims in a self-contained manner. Whilst the extent or scope of that submission is not entirely clear, if it is intended to suggest that the Tribunal must undertake separate determinations of fact in relation to each ground it is misconceived. The Tribunal is entitled to make factual findings on the basis of the evidence provided to it by the applicant and what other evidence is available. If such findings of fact are relevant to the application of two or more statutory tests, the Tribunal is entitled to rely upon the finding in relation to each. To require the Tribunal or other decision maker to undertake a wholly nugatory task of considering the material a second time would be irrational. As was identified by Wigney J above it is not surprising in cases of this nature that a finding of fact by the Tribunal may well diminish the factual foundation of two or more distinct claims.

43    There is no merit in the appellants’ assertion of error by the learned Federal Circuit Court judge or any error of law by the Tribunal in this respect.

A further ground on appeal

44    Paragraph 29 of the appellants’ written submissions includes an assertion that the Tribunal failed to consider whether the Malaysian authorities would be unwilling to protect the first appellant from any future harm because of his status as a Hindu Tamil with suspected gang affiliations. To that extent it is alleged that the Tribunal did not assess the appellants’ claims under s 36(2)(a). This submission was only faintly developed during the oral submissions

45    The Tribunal, in this case, was not required to consider such a claim based on Convention grounds because it had found, as a matter of fact, that there was no evidence that the first appellant faced a real chance of serious or significant harm if he returned to Malaysia. That being so, if the appellants had any fear of harm it could not have been well founded. To this it might be added that in the course of the hearing before the Tribunal the first appellant had expressly denied that he faced persecution from the authorities by reason of his Tamil race (see paragraph 148 of the Tribunal reasons) and the Tribunal had expressly found that he would not be discriminatorily denied State protection by reason of that race. This ground of appeal also fails.

Conclusion

46    In the above circumstances, it is apparent that the grounds of appeal advanced by the appellants in the Notice of Appeal cannot be made out.

47    The appeal ought to be dismissed with costs. The Minister asks for an order that the costs be fixed in the sum of $3,800 being a lesser sum than that prescribed by Schedule 3, Part XV of the Rules of the Federal Court of Australia. It is appropriate to make that order in the circumstances.

Associate:

Dated:    28 February 2018