Federal Court of Australia

DRZ16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs fixed in the sum on $4,000.

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

REASONS FOR JUDGMENT

ROFE J:

Background

1    The appellant commenced this proceeding on 6 October 2022, seeking to appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCC).

2    The appellant is a citizen of Sri Lanka who arrived in Australia on 12 August 2012 as an unauthorised maritime arrival. On 15 July 2013 the appellant applied for a Protection (Class XA) visa (protection visa) and attended an interview conducted by an officer of the Minister’s Department on 29 January 2014. The delegate ultimately refused to grant the protection visa on 19 September 2014.

3    The appellant applied to the Administrative Appeals Tribunal for review of the delegate’s decision on 26 September 2014, and was represented by a migration agent at the hearing that took place on 26 September 2016. On 16 November 2016 the Tribunal affirmed the delegate’s decision not to grant the protection visa. An application for judicial review was made to the FCC on 7 June 2017 which was dismissed by the primary judge on 11 February 2022.

4    The hearing of this matter was initially set down for 6 June 2023. Due to unforeseen circumstances that hearing was re-listed for 13 July 2023. My chambers sent email correspondence to the parties on 8 June 2023 and 12 July 2023 asking the appellant to confirm receipt of the listing details, and reminding him that he was able to file any written submissions before the hearing with the Court’s registry. My chambers also left a voicemail message for the appellant on the morning of 13 July 2023 seeking to confirm whether the appellant would be attending the hearing that day. No response was received from the appellant to any of the above communications.

5    The hearing took place on 13 July 2023 in person. The appellant was self-represented and was assisted by a Sinhalese interpreter. I briefly stood the matter down to allow the interpreter to assist the appellant to read the Minister’s submissions which he stated he had not yet read. Once the matter resumed, both parties made brief oral submissions. The Minister also relied on his written submissions filed on 8 May 2023.

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.

Associate:

Dated:    3 August 2023