DRZ16 v Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Decision 6 The appellant's claims for protection are based on his fear of harm upon returning to Sri Lanka because of his political views as a supporter of the United National Party (UNP). He also claims he would be subjected to physical harm from opponents of the UNP incited by his brother-in-law, who is a member of the opposing Sri Lankan Freedom Party. The Tribunal sets out these claims in its reasons (T) from [6]-[10] and [27]. 7 At the Tribunal hearing, the appellant gave evidence that he feared he would be killed by his brother-in-law and described two instances where he was attacked by gangs which he believed were lead by his brother-in-law: T[7]-[9], [27]. He also states that since arriving in Australia, his brother-in-law has visited his house with a gang and threatened and attacked his wife and 16-year-old son: T[9]. 8 The Tribunal considered the appellant to not be a truthful witness and did not accept much of his evidence related to his claims for protection: T[86]. It accepted the appellant's evidence regarding his memory and concentration issues due to his diagnoses of major depression, post-traumatic stress disorder and chronic pain (T[47]), however, was still not satisfied that these medical conditions could explain the inconsistencies between his oral evidence before the Tribunal and previous documentary evidence: T[83]-[84]. These inconsistencies were discussed in detail from T[45]-[86]. 9 As a result of the Tribunal finding that much of the evidence that formed the basis of his claims for protection could not be accepted, the Tribunal did not accept that there was any real chance that the appellant would suffer serious harm due to his actual or imputed political opinion if he returned to Sri Lanka: T[97]. The Tribunal also did not consider there was a real chance that the appellant would face persecution as a failed asylum seeker who left Sri Lanka illegally: T[111]. The appellant was also not found to satisfy the criteria for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act): T[134].

Proceedings in the FCC 10 The appellant raised two grounds of application before the primary judge: 1. The Administrative Appeals Tribunal did not afford me procedural fairness. 2. The Administrative Appeals Tribunal applied the wrong legal test. 11 Both grounds were dismissed by the primary judge. 12 The first ground was dismissed on the basis that the appellant was not denied procedural fairness in any way by the Tribunal. The primary judge was satisfied that the Tribunal had complied with the provisions in Division 4 of Part 7 of the Act. The appellant had been invited to attend a hearing where he was assisted by an interpreter, give evidence and present arguments, and provide further written submissions after the hearing was concluded. The primary judge found that the Tribunal was aware of the appellant's medical conditions and confirmed the appellant was fit to appear and give evidence at the hearing based on the medical evidence before it: Primary Judgment (PJ) at [42]. The appellant was also made aware of the dispositive issues before the Tribunal, such as the issues of credibility (PJ[44]). 13 The primary judge found the appellant had not been denied procedural fairness by the Tribunal and dismissed ground 1. 14 In response to ground 2, the primary judge was unable to find any instances of error by the Tribunal in relation to considering the relevant law. It was found that the Tribunal set out an accurate description of the relevant law as it related to the appellant's protection visa application: PJ [48]. Ground 2 was dismissed. 15 In oral submissions before the primary judge, the appellant made the assertion that the Tribunal made a mistake because it did not grant him a visa. The primary judge found this was nothing more than an assertion regarding the decision the appellant wanted the Tribunal to make, and was not an indication of any jurisdictional error: PJ[51]. The primary judge also found that there was no evidence that showed an interpretation error had given rise to jurisdictional error in the Tribunal's decision and that the Tribunal had adequately responded to the appellant's assertions of interpreter error: PJ[57]. 16 The application was dismissed.

Grounds of Appeal 17 The appellant's notice of appeal raises two grounds: 1. Applicant thinks the order, which is based on the application has a question of law and it should be investigated. 2. Applicant has provided lot of information and supporting documents for the Visa application. Applicant believes this information was not considered properly and not granted a fair order. 18 The Minister contends that both grounds should be dismissed for lack of particularisation: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ. While there is strength to this contention, I am cognisant of the appellant appearing as a self-represented litigant. I consider it is preferable to consider each ground of appeal and will do so in turn.

Ground 1 19 It is unclear what question of law the appellant seeks to be investigated by this ground. 20 The primary judge found, correctly, that the Tribunal had understood and applied the relevant sections of the Act: PJ[48]. These sections were set out in detail in the Tribunal's written reasons: T[29]-[43]. 21 I do not consider there to be a question of law outstanding on this appeal and there is nothing to suggest that the Tribunal misunderstood or misapplied the relevant law.

Ground 2 22 The ground appears to assert that the Tribunal did not properly consider the appellant's claims and the evidence relating to them. 23 The Tribunal set out the appellant's protection claims in some detail: T[6]-[10], [27]. The Tribunal also carefully assessed the delegate's decision and the evidence that had been provided to the Department in support of his visa application in 2013: T[11]-[24]. As noted by the primary judge at PJ[45], the only information taken into account by the Tribunal was information provided by the applicant himself, or country information. 24 It is clear from the Tribunal's reasons that the evidence submitted by the applicant was grappled with in detail. This is highlighted by the adverse credibility findings made against the appellant as a result of the numerous inconsistencies found in the provided evidence. These credibility findings were clearly put to the appellant and he was given an opportunity to file further submissions after the hearing: T[27]-[28], [55]-[86]. 25 The Tribunal considered the appellant's claims under both the Refugee and complementary protection criteria at length and determined the appellant did not meet either of these tests: T[87]-116]; T[117]-[134]. 26 I do not accept that the Tribunal failed to consider the appellant's evidence. The reasons indicate that the Tribunal considered the appellant's claims and supporting evidence in depth. No error arises under this ground.

Conclusion 27 As I have found both grounds of appeal lack merit, this appeal must fail. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe.