FEDERAL COURT OF AUSTRALIA BNR16 v Minister for Immigration and Border Protection [2017] FCA 1476 Appeal from: BNR16 & Ors v Minister for Immigration & Anor [2017] FCCA 1938 File number: NSD 1306 of 2017 Judge: O'CALLAGHAN J Date of judgment: 21 November 2017 Date of publication of reasons: 7 December 2017 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – whether primary judge erred in not finding that the Administrative Appeals Tribunal erred in not assessing the appellants' claims against s 91R of the Migration Act 1958 (Cth) – whether primary judge erred in not finding that the Administrative Appeals Tribunal erred in relying on its findings of fact in relation to the appellants' refugee claims when assessing the appellants' complementary protection claims – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 36(2)(a) and (aa), 91R Date of hearing: 21 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the First Appellant: The first appellant appeared in person Counsel for the First Respondent: Ms N Johnson Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Second Respondent filed a submitting notice save as to costs ORDERS NSD 1306 of 2017 BETWEEN: BNR16 First Appellant BNS16 Second Appellant BNT16 Third Appellant BNU16 Fourth Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: O'CALLAGHAN J DATE OF ORDER: 21 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) O'CALLAGHAN J: 1 This is an appeal from orders made by the primary judge on 17 July 2017, which dismissed, with costs, the four appellants' applications for constitutional writs in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 June 2016. The Tribunal affirmed a decision of the delegate of the first respondent dated 3 December 2014 not to grant to the appellants protection class XA visas. 2 The first appellant is a citizen of Malaysia. The second, third and fourth appellants are the children of the first appellant. They applied for protection visas as members of his family unit. BACKGROUND 3 The first appellant arrived in Australia on 2 April 2010 and the appellants made their protection visa applications on 4 April 2014. The first appellant set out his claims in a statutory declaration dated 24 March 2014. The first appellant said that he had operated three family businesses in Malaysia and feared harm from people described as gangsters. The first appellant claimed that, in June 2006, he received threats of violence over the telephone against him and his family and that, after lodging a complaint with the police in respect of those threats, a man followed his mother home. 4 He also claimed that in April 2008 he was attacked and abducted by four Malay Muslim men who demanded a large sum of money, which he paid; that in December 2008 a customer of the first appellant's restaurant business in Malaysia threatened to cause problems unless the first appellant offered him a refund; that, in May 2009, Chinese men came to his restaurant to demand payment for invoices and caused a disturbance at the family's home, and that the first appellant was demanded to pay a debt; that, in July 2009, his staff resigned en masse after they had embezzled money from him; that, in September 2009, his restaurant manager received a phone call from someone described as a hitman who said that he had been hired to destroy the first appellant's business and to destroy his family but would accept the sum of 50,000 Malaysia Ringgit not to do so. 5 The first appellant abandoned his restaurant business and came to Australia in April 2010 on a tourist visa. He turned to Malaysia in June 2010 and claims he was again targeted by people described as gangsters. After travelling back to Australia, he again returned to Malaysia in July 2010 and says he was again harassed by gangsters. The first appellant re-entered Australia in July 2010 on a student visa. On 3 December 2014, a delegate of the first respondent refused to grant the visa application. The first appellant applied to the Tribunal for review of the delegate's decision on 23 December 2014. tRIBUNAL'S DECISION 6 On 2 June 2016 the Tribunal affirmed the delegate's decision. The Tribunal considered the first appellant's claims and evidence at the hearing and found that he was not a credible witness and that he had fabricated his material claims for the purpose of obtaining a protection visa. The Tribunal was not satisfied that the first appellant's evidence about his background, circumstances and claims to fear harm was "convincing or persuasive" and found that he was "evasive, vague and contradictory", that some of his claims were implausible and that he had made new claims during the hearing, which led the Tribunal to the view that he had fabricated his evidence. 7 The Tribunal found that there were several inconsistencies between his evidence in his visa application, his evidence to the Tribunal and his supporting documents, and observed that his conduct was inconsistent with his claims. At [66]-[69] and [72]-[78], inclusive, of the Tribunal reasons, the Tribunal said: 66. The Tribunal does not accept that when the first named applicant returned to Malaysia in June 2010 and July 2010 he remained in his mother's house and did not leave the house. The Tribunal accepts that nothing happened to him when he returned to Malaysia in June 2010 and July 2010. The Tribunal does not accept that he returned to Australia on 4 July 2010 because his sister told him that someone was trying to locate or, alternatively, because he was targeted by gangsters when he returned to Malaysia, or, alternatively, because he could not go out or work, was home all the time and could not sleep or, alternatively, because they wanted to kill him. The Tribunal does not accept that he hired a few body guards who advised him not to leave the house, leave Malaysia and escorted him to the airport. 67. The Tribunal does not accept that after the first named applicant left Malaysia on 4 July 2010 a stranger found his wife, the stranger told his wife to find him and she responded that they are divorced. The Tribunal does not accept that someone followed his children to school. The Tribunal does not accept that when the first named applicant returned to Malaysia on 17 July 2010 he was escorted by the Police from the airport at Kuala Lumpur to his mother's home in Kota Kemuning. The Tribunal accepts that a former employee, who is a retired District Police Chief, gave him a lift from the airport to his mother's house. The Tribunal does not accept that he was harassed by gangsters when he returned to Malaysia on 17 July 2010. 68. The Tribunal does not accept that the first named applicant delayed lodging his application for Protection visas for four years because he could not find information or, alternatively, because he could not return to Malaysia or, alternatively, because he had to get his older sister and brother to find them "here and there" and, alternatively, because it took him two years to get the documents. The Tribunal does not accept that he gave his documents to his migration agent in 2013. The Tribunal does not accept that his eldest son and daughter came to Australia and hid here for a month because someone was trying to find them. 69. The Tribunal places no weight on the letter dated 27 October 2013 from Mr Rahman, ex-Chief Police Officer, because he is a former employee of the first named applicant, is not an independent witness, his evidence is untested and because of the Tribunal's significant concerns in relation to the credibility of the first named applicant's claims. … 72. The Tribunal has considered whether the first named applicant or his family members are at risk of serious harm from the first named applicant's suppliers if he/they return to Malaysia now or in the reasonably foreseeable future. In view of the Court order in relation to his bankruptcy and the length of time that had elapsed since the shutting down of his restaurant and the Court order, the Tribunal is not satisfied that there is a real chance that the first named applicant and/or members of his family are at risk of serious harm if he/they return to Malaysia now, or in the reasonably foreseeable future. 73. Having considered all the evidence, the Tribunal is of the view that the first named applicant is not a witness of truth and that he fabricated most of his material claims for the purpose of obtaining Protection visas. The Tribunal finds that the first named applicant is not a credible witness. 74. Having considered all the claims, individually and cumulatively, the Tribunal finds that there is no real chance that the first named applicant and/or any member of his family will be at risk of serious harm on the grounds of membership of a particular social group or any other Refugees Convention reason if he/they return to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance that the first named applicant and/or any member of his family will be at risk of serious harm for any of the reasons claimed if he/they return to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the first named applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s 36(2)(a) of the Act. Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm 75. The Tribunal has considered the first named applicant's claims under complementary protection. 76. Having considered all of the first named applicant's claims, singularly and cumulatively, and in view of the above findings, the Tribunal is not satisfied that there is a real risk that he and/or any members of his family will suffer significant harm for any of the reasons put forward by him. 77. In view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Malaysia, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. 78. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in subsection s.36(2A) of the Act. 8 For all of the reasons there summarised, the Tribunal found that the first appellant did not satisfy the criterion in s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). The Tribunal further held that, because the first named appellant did not satisfy those criteria and did not hold a protection visa, his children, being the second, third and fourth appellants in this proceeding, were unable to satisfy the criteria in s 36(2)(b) or (c) of the Act, and that, accordingly, they did not satisfy the criteria in s 36(2) of the Act. It was for those reasons that the Tribunal affirmed the delegate's decision not to grant to the appellants' protection visas. PRIMARY JUDGE'S DECISION 9 In June 2016, the appellants filed an application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal's decision. The hearing of that application was conducted in July 2017. The primary judge dismissed the application with costs. Four grounds were argued before the primary judge. Each was dismissed. One of the grounds is identical to one of the two grounds now sought to be argued in this Court on appeal. In circumstances where the appellants do not contend that the primary judge made any error about the other three grounds that he dealt with, it is unnecessary for me to recite the primary judge's consideration of those grounds. I will therefore only recite the primary judge's consideration of the same ground that is sought to be raised here. 10 Ground 1 of the amended application before the primary judge was that the Tribunal had misconstrued the risk and fear of significant harm as set out in s 36(2)(a) of the Act, because it construed, erroneously and narrowly, the exercise of risk to life and fear of significant harm to the applicants. The primary judge found that there was nothing in the Tribunal's reasons to suggest that it had misconstrued s 36(2A) of the Act, firstly, because it had rejected the claims made by the appellants at a factual level, and, secondly, insofar as there remained any factual claims after the rejection of the claims, the Tribunal found that, in the circumstances, there was no real risk of the harm claimed arising. 11 The primary judge accordingly held that it was not a necessary part of the Tribunal's decision to determine whether the harm feared by the appellants might amount to significant harm within s 36(2A) of the Act. THE APPEAL 12 At the hearing of the appeal in this Court, the first appellant appeared in person with the aid of an interpreter. He did not seek to rely on any written submissions or any additional written material, and none of the other appellants appeared. I asked the first appellant at the outset whether he had anything that he wished to say in support of his appeal. I also gave the first appellant an opportunity to make a reply to the submissions made on behalf of the Minister. 13 The substance of what the first appellant said was that "everything I said is true"; that he had faced bankruptcy in Malaysia; that before he had left Malaysia he had paid back to the bank 1.1 million Malaysia Ringgit and had then left Malaysia to come to Australia without his children because his life was in danger. The notice of appeal filed on behalf of the appellants is, without correction, as follows: (1) The federal judge failed to consider that the tribunal acted in a manifestly unreasonably way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of section 91R of the Act. The tribunal failed to observe the obligation amounted to breach of statutory obligation. (2) The tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958. The tribunal construed erroneously and narrowly the existence of risk to life and fear of significant harm to the applicants upon his returns to Malaysia. 14 As to the first ground of appeal, it is unclear what it means. It was not raised before the primary judge so the appellants need the leave of the Court to raise it now. Such leave will only be granted when it is expedient in the interests of justice to do so. In my view, it is not in the interests of justice to allow this ground of appeal to be raised when it was not raised because it has no merit. 15 Section 91R of the Act, which is relied on in the first ground of appeal, deals with the meaning of the word "persecution" for the purposes of assessing whether a protection visa applicant meets the requirements of s 36(2)(a) of the Act. In this case, having found that it did not accept that the appellants would suffer any relevant risk of harm were they to return to Malaysia, no obligation or occasion arose to consider s 91R of the Act. For those reasons, in my view, ground 1 has no merit and I decline to grant to the appellants the leave required. 16 As for ground 2 of the appeal, it is, as I have observed, in the same terms as ground 3 of the application made before the primary judge. As the primary judge himself observed, there was no error in the Tribunal's assessment of the claims made with respect to the complementary protection criterion. Having rejected all of the appellants' material claims on the basis of adverse credibility findings, there was nothing left for the Tribunal to consider when it came to deal with the claim under the complementary protection criterion. 17 There is, in my view, no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to refugee claims when assessing claims under the complementary protection provisions. Accordingly, for the same reasons given by the primary judge, ground 2 of the notice of appeal before me must fail. 18 The appeal must be dismissed. The appellants should pay the first respondent's costs, as agreed or taxed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate: Dated: 7 December 2017