Federal Court of Australia

DPY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1254

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed with costs.

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

REASONS FOR JUDGMENT

PERRAM J:

Nature of Proceeding

1    This is an application to extend the time for bringing an appeal from orders made by the Federal Circuit Court on 17 September 2019 dismissing the Applicant’s application for orders quashing an earlier decision of the Administrative Appeals Tribunal (‘the Tribunal’).

Procedural Background

2    By way of background, the Applicant is a citizen of Malaysia born in 1990. He departed Malaysia on 2 November 2016 and arrived in Australia that day travelling on an Electronic Travel Authority visa. About 7 weeks after his arrival in Australia, the Applicant applied for the protection visa which is the subject matter of the current application. This occurred on 22 December 2016. A delegate of the Minister administering the Migration Act 1958 (Cth) (‘the Act’) refused that application on 6 March 2017. The Applicant then sought a review of that decision in the Tribunal but, following a hearing via videolink, the Tribunal affirmed the delegate’s decision on 13 July 2017. The Applicant next sought from the Federal Circuit Court orders quashing the decision of the Tribunal but this application was refused on 17 September 2019: DPY17 v Minister for Immigration [2019] FCCA 2552.

3    An appeal to this Court lies from final orders made by the Federal Circuit Court (Federal Court of Australia Act 1976 (Cth) s 24(1)(d)) but must be brought within 28 days of the pronouncement of that Court’s orders: Federal Court Rules 2011 (Cth) (‘FCR’) r 36.03. If the Applicant wished to appeal to this Court he was, therefore, required to file his notice of appeal within 28 days of 17 September 2019, ie, by the end of 15 October 2019. He did not do so.

4    However, by FCR r 36.05(2) a party may apply after expiry of the 28 days mentioned in FCR r 36.03 to extend the time within which to file a notice of appeal. On 4 November 2019 the Applicant filed the present application seeking such an extension. The matters germane to the exercise of that discretion are unconfined but they include the merits of the proposed appeal: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; 238 FCR 341 at [10] per North, Besanko and Flick JJ.

Relevant Aspects of Applicant’s Claims for Protection

5    The Applicant’s basic proposition is that if he were to be returned to Malaysia which he left on 2 November 2016 he would be at risk of harm from a drug dealer whose operations he had reported to the police. The drug dealer operated from a tobacco shop in Gua Musang, Kelantan. The Applicant ran his own shop nearby from which he sold foodstuffs. The Applicant became concerned that the presence of the drug dealer’s clientele at the tobacco store was adversely affecting his own business (and other businesses in the area, too). In early September 2016 he therefore reported the drug dealer to the police who then raided the tobacco store and arrested, according to the Tribunal, the ‘store people’.

6    The Applicant said that the drug dealer came to know that it was he, the Applicant, who had informed upon him. The drug dealer had then asked for a rendezvous with the Applicant. When the Applicant arrived at the rendezvous he claims that he was hit with a piece of wood by some of the drug dealer’s associates. He then fled the scene and reported the matter to the police. This incident appears to have occurred on 14 September 2016. There is a dated police record of this assault which is written in Malay. The Tribunal had the untranslated report and did not seek a translation of it.

7    The Applicant says that drug dealers are ‘rampant’ in Malaysian society and that the authorities will not be able to protect him from any further reprisals by the drug dealer. It is his concern about what will happen to him if he is returned to Malaysia that formed the basis of his application for a protection visa.

What the Tribunal Found

8    The Tribunal found that the Applicant was not a credible witness because although his protection visa application detailed the report against the tobacco store and the resulting fear of harm by the drug dealer, it was at the Tribunal that claims such as the past attack by the drug dealer’s associates were first raised. Consequently, the Tribunal did not believe anything that the Applicant said about his reasons for fearing harm in Malaysia. There was one exception to this for, as I have said, the Applicant had provided the Tribunal with an untranslated copy of a police report of the assault which was dated 14 September 2016 (the date did not require translation).

9    An obvious step to take might have been to obtain a translation of the report. This the Tribunal did not do. This led it to the unenviable forensic position of having found everything the Applicant said to be unreliable other than the fact that he was physically attacked but having in its possession a report which bore a date which suggested that it might, if translated and its contents obtained by the Tribunal, either corroborate or disprove the Applicant’s account of the circumstances in which he was assaulted.

10    Rather than go down that path, the Tribunal took the idiosyncratic path of concluding that a physical attack had indeed occurred on 14 September 2016 but then refusing to accept any other aspect of the Applicant’s account of the incident. This left the Tribunal having found that the Applicant had been attacked but with literally no information as to the circumstances in which this occurred. For example, the Tribunal’s approach is consistent with the Applicant having been attacked by aliens on 14 September 2016. To my mind, this warrants a closer look.

11    The Tribunal’s contorted forensic posture on this issue arose because there were only two sources of information about the incident – the Applicant’s account and the untranslated police report. Once the Tribunal disbelieved everything the Applicant had said and after it failed to obtain a translation of the report it inevitably left itself in an epistemic vacuum which is, as everyone knows, the worst kind of vacuum.

12    Undeterred, the Tribunal found that the Applicant had no subjective fear of harm due to having informed on the drug dealer or indeed for any purpose. It found that there was no real chance that the Applicant would be seriously harmed if he was returned to Malaysia.

13    This made sense so far as the drug dealer complaint was concerned because having rejected the whole of the Applicant’s account of his difficulties with the drug dealer it was easy to conclude that the Applicant could neither be subjectively afraid of reprisals from the drug dealer or objectively at risk from him either.

14    This reasoning by the Tribunal was therefore sufficient, indeed one might even say adequate, to dispose of the Applicant’s claims for protection so far as they were based on a contention that he was a refugee. Having failed to satisfy the Tribunal of the existence of his subjective fear, the Applicant’s claim for a protection visa could not succeed. Section 5J(1) of the Act provides:

5J Meaning of well-founded fear of persecution

(1)     For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

15    Each of subs (a), (b) and (c) must be satisfied. The failure to satisfy the Tribunal of subs (a) meant that the Applicant necessarily failed to satisfy the Tribunal that he had a well-founded fear of persecution. This meant that he was not a refugee (s 5H) and therefore that he did not meet the criterion for the grant of a protection visa under s 36(2)(a).

16    It remained possible that the Applicant might meet the criterion under s 36(2)(aa), ie, complementary protection. Here the question would have been whether, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that the Applicant would suffer significant harm. Under this regime, the harm did not have to be suffered for any particular reason.

17    In assessing that claim, the Tribunal was obliged to wrestle with the significance of the assault on 14 September 2016, 7 weeks before the Applicant left Malaysia. It had to assess what the likelihood of the Applicant being harmed was in light of that assault. Having not obtained a translation of the police report of the assault and having not accepted any aspect of the Applicant’s account of the assault, the Tribunal found itself in the formless space I have described above where it knew nothing about the assault other than it had happened. It did not know what had happened during the assault, who had committed it, what the motivations of the assailant or assailants were, what the Applicant’s relationship with the assailant or assailants was or, indeed, how he responded to the assault. In short, the Tribunal knew that the Applicant had been assaulted on 14 September 2016 in much the same way I know that the President of France had breakfast yesterday.

18    The Tribunal was aware of this problem but overestimated its own forensic capacity to deal with it. Ultimately it reasoned that whatever risk to the Applicant was evidenced by the assault of 14 September 2016, that risk had been ‘resolved’.

19    The Tribunal never brought itself to say what ‘resolved’ meant and this symmetrically reflects the fact that since it did not know anything about the assault it could not explain why it no longer mattered. How was the Tribunal able to conclude that a risk about which it knew nothing had been ‘resolved’? Here the Tribunal drew on the Applicant’s evidence that he had continued to reside in his own home and work at his usual employment at the shop for approximately 7 weeks afterwards to conclude that whatever the risk it had dissipated.

20    In fact, it made two findings about this. The first was that it concluded that the Applicant understood the incident to have been resolved: [33]. The reason it reached this conclusion was because it found that after the attack the Applicant had maintained his same residence and continued to work at his usual employment without making any attempt to go into hiding. The Tribunal thought that the fact that the Applicant went about his everyday business after the attack in a manner which was unchanged indicated that he was not afraid of any further attack.

21    This finding appears in the section of the Tribunal’s reasons where it was dealing with the question of whether the Applicant had a subjective fear of persecution. The finding as to his understanding was relevant to its assessment of that subjective matter.

22    However, such a finding was not directly relevant to the Tribunal in dealing with the complementary protection issues since they did not turn on the fears of the Applicant but rather only on the objective realities of the situation which the Applicant would be in if he were returned to Malaysia. The Tribunal therefore took the next, and second, step of concluding that the incident had in fact been ‘resolved’. This it did at [21] and [36]. Paragraph [21] is just a bald statement which I take to be a placeholder for the longer discussion at [36]. However, [36] does not explicitly explain why the Tribunal reached this conclusion. What it says is this:

As stated above, the applicant provided various claims about when he left his parents’ home; however the Tribunal has accepted he resided there for some 6-8 weeks after some type of attack on him in mid-September 2016. I am satisfied that incident has been finally resolved. However, if the Tribunal is wrong in this, then given he was able to reside unharmed for some 6-8 weeks after the attack, there does not appear to be the kind of ongoing adverse interest in him that is now claimed. In the circumstances, the Tribunal is not satisfied there is a real chance that any attempt would be made to trace the applicant should he relocate within Malaysia (and away from his home area being - Gua Musang, Kelantan). Even if there is an interest in locating the applicant, based on the country information considered I am not satisfied there is a real chance he would be found after relocating within Malaysia. For instance, the Tribunal notes the applicant did not claim to be a criminal and or to abuse drugs, so there did not appear to be any real chance that he would associate with a criminal class, which might make locating him easier.

23    My first reading of this was that it was likely that the Tribunal was concluding that the incident had ‘resolved’ largely for the same reasons given as to why it thought that the Applicant understood the incident to have been resolved (ie the fact that he resided at his home unharmed for 6-8 weeks and went about his ordinary business without apparent hindrance). However, that reason appears to be given by the Tribunal instead as an aspect of its reasoning on the Applicant’s ability to relocate. I am not able to give an account of [36] which is internally consistent or entirely satisfactory. Allowing some latitude to the Tribunal for the way in which it expresses itself, the problem is that I do not know why the Tribunal concluded that the incident had been ‘resolved’. I am inclined to think that the Tribunal did not know this either.

24    Having briefly sketched the gist of the Tribunal’s approach it is then necessary to consider the proposed grounds.

Proposed Ground One

25    This ground alleges the existence of an internal inconsistency in the reasons of the Tribunal.

26    The Tribunal considered two distinct legal claims as having been made by the Applicant. The first was that he was a refugee (s 36(2)(a)) (‘the Refugee Claim’) and the second was that if he were returned to Malaysia there was a real risk that he would suffer significant harm (s 36(2)(aa)) (‘the Complementary Protection Claim’). As will be seen, the inconsistency alleged by the Applicant arises from the fact that both these claims require consideration of whether the persecution or relevant harm relates to all areas of the country.

27    The effect of ss 5H, 5J(1) and 36(2)(a) is that to be eligible for a protection visa on refugee grounds one must demonstrate: first, a fear of persecution for the relevant reason (here, being a member of the social group of people who have informed on drug dealers – the existence of such a group was assumed in favour of the Applicant; there is no need to assess its correctness); secondly, a real chance that if an applicant is repatriated that they will be persecuted for that reason; and, thirdly, the real chance of persecution must relate to all areas of the country of origin.

28    Although it expressed itself somewhat briefly, it is clear that the Tribunal rejected each of these in turn at [33] (fear), [34] (risk of harm on repatriation) and [35]-[38] (persecution not a risk in all areas). The last conclusion was based on the rationale that if the Applicant moved elsewhere in Malaysia the drug dealer lacked sufficient enthusiasm or, if he had sufficient enthusiasm, the wherewithal to locate the Applicant.

29    The Applicant’s argument, stripped to its essentials, is that there is an inconsistency between the Tribunal’s finding that he faced no risk of harm if returned to Malaysia and then proceeding to consider that the same risk of harm it had concluded did not exist might be obviated by relocating elsewhere within Malaysia: T8.34.

30    I reject this argument so far as the Refugee Claim is concerned. As the Court below correctly observed at [22(e)] of its reasons, there is no inconsistency in the Tribunal considering arguments which are in the alternative. There might be a problem if the arguments were not considered in the alternative but here that issue is beyond doubt because of the language the Tribunal used. It began its discussion of the relocation question by observing that given its finding that he faced no harm ‘the following may be considered redundant’: [35]. Midway through the discussion, no doubt to underscore the logically alternative nature of its discussion, the Tribunal added:

For the purpose of this discussion, I have decided to accept the applicant has a real chance of suffering serious harm in his home region in Malaysia.

31    In relation to the Complementary Protection Claim, the point as I understood it, was that the Tribunal had resolved the Complementary Protection Claim against the Applicant by concluding that whatever the risk he faced he could relocate elsewhere within Malaysia. This had involved the Tribunal in concluding that he did face a risk on repatriation which was contrary to its own findings in relation to the Refugee Claim. This is essentially the same point and in both cases emerges from the Tribunal’s handling of the relocation principle. The Tribunal dealt with relocation both as an aspect of the Refugee Claim and the Complementary Protection Claim simultaneously. This is explained at the start of [35]:

The Tribunal is sufficiently satisfied of the above findings such that the following may be considered redundant. However, given it was discussed at hearing, and given I have based the complementary protection decision on same, I have assessed whether the applicant could safely relocate within Malaysia. The applicant had said he knew “the drug dealer has huge connections”. He also said he “never know how big this drug dealer is”, and that the “drug dealer had become heavy-handed towards people that made a report about them” (though the Tribunal was not able to find material country information about this). He had also said “Malaysia country is not that big to hide from the drug dealer where the applicant is not aware of how huge their networking area” is. He then said “thus [relocating] within Malaysia is still unfavourable decision agree by his family members”. For the purpose of this discussion, I have decided to accept the applicant has a real chance of suffering serious harm in his home region in Malaysia (though not for the reasons he claimed). The Tribunal will therefore assess whether the applicant could safely relocate within Malaysia.

32    The Tribunal then went on to quote country information about Malaysia. For completeness I note that at [49]-[53] the Tribunal appears to have considered the possibility of relocation in the context of the complementary protection claim under the assumption that there was a risk of significant harm in his home region due to the drug dealer. This too was prefaced with language making it clear it was being considered in the alternative. Paragraphs [47]-[48] of the Tribunal’s reasons state:

Based on the reasons provided above, I am not satisfied the applicant has a real chance of suffering persecution for reason of any claim I have accepted, should he relocate within Malaysia. For the same reasons, I am not satisfied he has a real risk of suffering significant harm for reason of any claim I have accepted, should he relocate within Malaysia.

Further, and though I understand I need not make an applicant’s case for them, after having considered the country information, neither am I satisfied he has a real risk of suffering significant harm for any other reason, should he relocate within Malaysia.

33    The Applicant’s proposed ground of review did not suggest that there was a difficulty in assessing the ability of an applicant to relocate to avoid a risk without knowing what that risk was. The point was just the inconsistency between the finding that there was no risk and an assessment of whether that risk could be obviated by relocation. However, it is clear from both [35] and [47]-[48] that the relocation reasoning is being expressed in the alternative.

34    Proposed ground one has no prospects of success although I am bound to observe that the Tribunal’s process of reasoning is troubling. The reasons have left me with the impression not so much that its decision contains error but that the review application could have been better performed. There are three elements to this:

(1)    The Tribunal was willing to disbelieve everything that the Applicant said because he said something at the hearing which he did not say in the protection visa application. In principle, this is not forbidden but many people regard this kind of credit-based assessment as avoiding the real work of explaining what is wrong with an applicant’s account by reference to actual material. There can be cases where it is appropriate but, particularly in cases which exhibit contorted reasoning such as this one, it can contribute to a sense that the application has not been properly handled.

(2)    Such concerns are heightened when the Tribunal then went on to accept a number of things the Applicant said where it was convenient to the Tribunal to do so. This has the appearance of being unprincipled. If one is satisfied that an applicant is a liar through and through, one would not rely on anything they said.

(3)    Having deprived itself of any knowledge of the assault other than the bare fact that it happened, it was obvious that obtaining a translation of the report would be capable of throwing light on the situation, including on what the actual risk, if any, faced by the Applicant was. Further, the willingness of the Tribunal to embark on an attempt to assess whether the same unknown risk might be reduced by relocation is problematic.

Proposed Ground Two

35    The second proposed ground then seeks to impugn the way in which the Tribunal substantively dealt with the relocation issue. The basic point was that in concluding that the Applicant could relocate within Malaysia the Tribunal had failed to identify just where it was in Malaysia to which he could relocate. This submission may misapprehend the operation of s 36(2B) and I note that at [52] the Tribunal seems to suggest the Applicant could relocate to ‘a city he could travel to by air’. In any event, there is no need to form a concluded view on that matter.

36    This is because this ground has no prospects of establishing jurisdictional error on the part of the Tribunal once the first proposed ground is rejected. The rejection of proposed ground one results in the leaving intact of the Tribunal’s finding that the Applicant faced no risk of harm at all. As the Tribunal correctly foretold at [35], its consideration of the relocation issue was redundant after it had reached that conclusion. The same redundancy means that any successful challenge to its reasoning about relocation cannot be material such as to give rise to jurisdictional error whilst the finding that he faced no risk of harm remains in place: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134-135 [30]-[31] per Kiefel CJ, Gageler and Keane JJ, at [72] per Edelman J; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 445 [45] per Bell, Gageler and Keane JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J.

Proposed Ground Three

37    The third proposed ground seeks to allege that a particular factual conclusion reached by the Tribunal was illogical or irrational. Although the text of the proposed ground is quite broad, as it was developed in Counsel’s written submissions it was narrowed to a single point of focus which was as follows. The Tribunal accepted that the Applicant had been physically attacked on 14 September 2016 because there was a police report dated that day recording an attack. The Tribunal did not trouble itself with any detailed findings as to what had happened during the attack concluding instead that the incident had been ‘finally resolved’: [21]. It referred to this final resolution three times in fact: [18], [21] and [36]. The Applicant’s submission was that there was no evidence upon which that conclusion could rest.

38    I am prepared to assume that a finding of fact by the Tribunal for which there is no evidence at all involves the making of a jurisdictional error. The difficulty is that there was evidence before the Tribunal which could justify the conclusion that the incident had been resolved. By ‘resolved’ I take the Tribunal to mean that the incident had no ongoing relevance to the Applicant and that whatever had actuated it was no longer present or, to put it another way, the incident was spent. The evidence which could justify the finding that the incident had been resolved in that sense was this:

(1)    The incident occurred on 14 September 2016. However, after the incident the Applicant continued to attend work as normal until the end of October 2016 (when he departed Malaysia). He took no steps to hide or make himself scarce.

(2)    The Applicant made no claim to have been attacked again after the incident or that his family had been attacked.

39    The Tribunal found facts to the effect of (1) and (2) and those findings are not challenged. The Tribunal concluded from those facts at [33] that the Applicant ‘understood’ that the incident had been finally resolved. This is distinct to the earlier finding at [18] and [21] that the incident had been resolved in the sense that one is a finding about the mental state of the Applicant and the other, an objective finding about the real world. However, I do not think the Tribunal intended it in any different sense and read them as equivalent (in any event, the Applicant pursued no such contention).

40    Could a rational Tribunal conclude from facts (1) and (2) that the incident had been resolved? The answer is ‘yes’. One might say against the conclusion that the 7 week period of inactivity it examined was too brief to provide a sure foundation for a conclusion that hostilities had ceased. One might say that it was difficult to assess whether the incident had resolved without saying what the incident was. One might even say that the fact he did not go into hiding may have been because he still had to attend work. All of these points may be of fluctuating force but for present purposes none of them allows one to conclude that the way the Tribunal did reason was irrational in the sense that there was no logical connection between the facts found and the conclusion: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].

41    In that circumstance, proposed ground three has no prospects of success.

Disposition

42    None of the proposed grounds of appeal have any prospects of success. Although I have some serious misgivings about the quality of the Tribunal’s reasoning, the Applicant was represented both in this Court and the Court below and I do not think I should attempt to do more than resolve the issues presented for adjudication. The application for an extension of time will be dismissed with costs.

Associate:

Dated:    1 September 2020