VBAU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1288

FEDERAL COURT OF AUSTRALIA

VBAU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1288 Migration Act 1958 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited S157 v The Commonwealth (2003) 195 ALR 24 cited Abebe v The Commonwealth (1999) 197 CLR 510 applied Kioa v West (1985) 159 CLR 550 applied Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 applied Muir v Refugee Review Tribunal (2002) 76 ALJR 966 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited VBAU OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V564 OF 2002 SUNDBERG J 12 NOVEMBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V564 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: VBAU OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 12 NOVEMBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V564 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: VBAU OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 12 NOVEMBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 The appellant is a citizen of Sri Lanka of Sinhalese ethnicity. He arrived in Australia on 5 November 2001 as the holder of a Class TE, subclass 420 (entertainment) visa. Soon after his arrival a delegate of the respondent cancelled that visa under s 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the appellant was not a genuine entertainer. On 9 November 2001 the appellant lodged an application for a protection visa. He claimed to fear persecution on the basis of his political opinion due to his involvement with the Sri Lankan Freedom Party (SLFP), which is part of the Peoples Alliance coalition (PA), and subsequently also by reason of his involvement with the rival United National Party (UNP). On 6 December 2001 a delegate of the respondent refused to grant a protection visa to the appellant. On 30 January 2002 the Refugee Review Tribunal affirmed the delegate's decision. It found that the appellant did not have a well‑founded fear of persecution by reason of his political opinion or any other Convention basis. The appellant sought judicial review of the Tribunal's decision in this Court. The matter was transferred to the Federal Magistrates Court. The application was dismissed by Hartnett FM. The appellant appeals from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice directed that the appeal be heard by a single Judge of the Court.