FEDERAL COURT OF AUSTRALIA

EZF17 v Minister for Home Affairs [2019] FCA 236

ORDERS

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

(EX TEMPORE REVISED FROM TRANSCRIPT)

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”), made on 1 August 2018, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”), which affirmed a decision of the delegate of the first respondent (“Minister”) not to grant the appellant a protection visa.

2    The grounds of appeal are that the FCCA judge:

(1)    erred in “not finding that the Tribunal made no findings as to the extent or nature of persecution suffered in Malaysia”; and

(2)    dismissed the case “without considering the legal and factual errors contained in” the Tribunal’s decision.

3    The appellant did not file written submissions in support of the appeal. At the hearing, the appellant did not say anything in support of his appeal, but said that he needed more time to obtain documents relevant to his appeal. The appellant clarified that the documents he sought to gather are the same documents that he mentioned to the FCCA judge.

4    The FCCA judge had refused to grant the appellant an adjournment to obtain documents saying that the documents were not relevant. The FCCA judge described the documents as containing “fabricated stories”, that is, stories that were made up by the applicant’s former employer.

5    I will not adjourn the appeal because, as the FCCA judge said, documents of that kind are not relevant to the appeal. They are not relevant because the tribunal’s decision proceeded on the basis that it accepted the appellant’s version of events, so it is not relevant to the appeal to produce documents corroborating the truthfulness of the appellant’s claims.

Factual background

6    The relevant factual background, including the appellant’s claims for protection and the FCCA judge’s summary of the reasons of the Tribunal, is set out in the judgment of the FCCA judge at [2]-[6] of his Honour’s reasons as follows:

2.    The applicant is a citizen of Malaysia, and he comes from George Town in Pelopinang. He claimed that he worked as a security guard for a money exchange company, or at least he worked guarding such a company. He claims there was a robbery which the police investigated. The police questioned the applicant but accepted the applicant had nothing to do with the robbery. The company owner, however, blamed the applicant. He accused the applicant of giving details to the robbers. The company owner told the applicant he would “not live me alive”, and the applicant fled Malaysia for that reason.

3.    What I have just described is contained in the applicant’s written claims attached to the applicant’s Protection visa application. Before the Tribunal, at least as recorded in the Tribunal’s Reasons for Decision, the applicant said that “his former Indian Hindu employer had sent persons to his home and threatened him”. He was told his employer held him responsible for the theft and he was required to repay the money.

4.    The Tribunal accepted the applicant’s factual claims; and, for that reason, accepted that the applicant has a real chance of suffering serious harm in his home region in Malaysia, namely “George Town, Penang”. The Tribunal, however, was not satisfied that the applicant was a “refugee” within the meaning of s.5H(1) of the Migration Act 1958 (Cth) (“Act”) because the fear the Tribunal accepted the applicant held, and held for good reason, was not a reason prescribed by Act. The Tribunal here may be taken to have intended to refer to the reasons set out in s.5J(1)(a) of the Act. Section 5J defines the expression “well-founded fear of persecution”, which is an expression used in section 5H of the Act; and the reasons set out in s.5J(1)(a) are reasons of “race, religion, nationality, membership of a particular social group or political opinion”. The Tribunal also considered whether the applicant had a well-founded fear of being persecuted on account of his being a failed asylum seeker, but the Tribunal was not satisfied that the applicant had any such well-founded fear for that reason.

5.    The Tribunal then assessed the applicant’s claims under the complementary protection criterion provided for by s.36(2)(aa) of the Act. Based on findings the Tribunal already made, the Tribunal accepted the applicant has a real risk of suffering significant harm in his home region, which, is as I have already noted, the Tribunal found was George Town, Penang; and the Tribunal so found because the Tribunal was satisfied that in his home region, there is an intention to harm him personally. The Tribunal, however, then considered whether it would be reasonable for the applicant to relocate to another area of Malaysia where there would not be a risk that the applicant will suffer significant harm. That inquiry is made relevant by s.36(2B) of the Act which provides that 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 it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.

6.    The Tribunal was satisfied that the applicant could relocate within Malaysia to a place where there would not be a real risk that he would suffer significant harm. In arriving at this conclusion, the Tribunal considered country information which was relevant to determining the risk that the applicant’s whereabouts could be traced by criminal gangs and others; and having assessed that country information, the Tribunal was satisfied the applicant could not be traced by the means the Tribunal had identified. The Tribunal also found that it would be reasonable for the applicant to relocate. In arriving at that conclusion, the Tribunal considered country information which related to the nature and state of the economy of Malaysia.

(Emphasis in original.)

7    The FCCA judge concluded that the appellant had not shown that the Tribunal made any jurisdictional error after finding that the grounds of review specified in the appellant’s application did not disclose any jurisdictional error. His Honour also noted the appellant’s oral submissions (that he had done nothing wrong, that he respected the law here and that he had been telling the truth) and found that the submissions did not disclose any jurisdictional error. In particular, the FCCA judge noted that the Tribunal did not question the appellant’s truthfulness and that the judge himself did not doubt his truthfulness.

8    The FCCA judge also recorded the appellant’s request for additional time to obtain documents showing that his former employer had fabricated claims against the appellant.

9    As I have previously noted, the FCCA judge did not permit the appellant more time, because documents proving the fabrication of claims against the appellant could not have been relevant to the proceeding before the FCCA.

Minister’s submissions

10    The Minister contended that the appellant’s grounds of appeal contained bare assertions of error and are without merit. The Minister noted that it is incumbent upon the appellant to show error by the FCCA judge: Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205; (2017) 256 FCR 197 at [52] and [53].

11    The Minister submitted that the FCCA judge was correct to find no jurisdictional error affecting the Tribunal’s decision for the reasons given.

12    The Minister submitted that the FCCA judge considered the Tribunal’s key findings, including that the Tribunal accepted the appellant’s factual claims at [4] of his Honour’s reasons. The FCCA judge referred to the Tribunal’s finding that there was a risk of harm in the appellant’s home region of George Town, Penang. The FCCA judge also referred to the Tribunal’s finding that it was not satisfied that an essential and significant reason for the appellant’s fear of harm was one of the reasons prescribed in the Migration Act 1958 (Cth) (“Act”).

13    The Minister submitted that the Tribunal correctly recognised that it was still required to consider the question of whether it was reasonable for the appellant to relocate in Malaysia in the context of complementary protection, and the FCCA judge considered the Tribunal’s findings under s 36(2)(aa) of the Act. At [5] of his Honour’s reasons, the FCCA judge referred to the Tribunal’s finding that it was not satisfied that the appellant had a real chance of suffering persecution in all of Malaysia. At [6], the FCCA judge noted that the Tribunal was satisfied that the appellant could relocate within Malaysia to a place where there would not be a real risk that he would suffer significant harm; and that the Tribunal also found that it would be reasonable for the appellant to relocate.

14    Finally, the Minister submitted that the Tribunal accurately summarised the appellant’s objections to relocation (that he wished to take care of his parents who live in Penang, and his parents did not want to relocate) and made dispositive findings in relation to them.

consideration

15    I accept the Minister’s submission that the appellant has not identified any error in the reasons of either the FCCA judge or the Tribunal.

16    The appellant did not dispute the correctness of the Minister’s submissions in any respect.

17    The first ground of the appeal must fail because the Tribunal made relevant findings, as explained at [4] of the FCCA judge’s reasons, set out above. In particular, the Tribunal accepted that the appellant had a real chance of suffering serious harm in his home region of George Town Penang and (implicitly) that he feared harm, but not that this fear was for a reason prescribed in the Act.

18    The second ground of appeal is premised on the existence of legal and factual errors in the Tribunal’s decision. The appellant did not identify any particular legal or factual error that the FCCA judge failed to consider. In any event, such a failure by the FCCA judge would not necessarily indicate appellable error by his Honour. The FCCA judge’s task was to consider whether the appellant’s application revealed jurisdictional error by the Tribunal.

Conclusion

19    Accordingly the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal.

Associate:

Dated:    6 March 2019