AFW15 v Minister for Immigration and Border Protection [2016] FCA 626

FEDERAL COURT OF AUSTRALIA

AFW15 v Minister for Immigration and Border Protection [2016] FCA 626 Appeal from: AFW15 v Minister for Immigration & Anor [2016] FCCA 681

File number: NSD 400 of 2016

Judge: MARKOVIC J

Date of judgment: 2 June 2016

Cases cited: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129

Date of hearing: 24 May 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 42

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the First Respondent: N Maddocks, DLA Piper Australia

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS NSD 400 of 2016

BETWEEN: AFW15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 2 JUNE 2016

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J: 1 The appellant, a male citizen of Sri Lanka of Sinhalese ethnicity, appeals from the decision of the Federal Circuit Court of Australia dismissing his application for judicial review of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal): see AFW15 v Minister for Immigration & Anor [2016] FCCA 681 (AFW15). The Tribunal affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa (the visa). 2 The appellant arrived in Australia as an irregular maritime arrival on 25 July 2012. On 12 December 2012 he applied for the visa. His claims were set out in a statement annexed to his application. 3 In summary, the appellant claimed to fear harm in Sri Lanka because he had been an active supporter of the United National Party (UNP) since 2004 and helped to organise political rallies whenever there was an upcoming election. He assisted with election campaigns in 2004, 2005, 2010 and 2011. He described incidents that occurred on election day in 2004 and in 2010 and said that during the 2005 presidential election he received threatening phone calls to the effect that if he continued to work for the UNP his life would be at risk and that he should align himself with the United People's Freedom Alliance (UPFA). In March 2011, after a local council election, people from the government party came to his house and smashed windows and he was beaten. After that incident the appellant stayed at friends' houses and only went home irregularly. He claimed that since that time people came to his home on several occasions looking for him, the last occasion being approximately two weeks before he left Sri Lanka. The appellant also claimed to fear harm because of his religion. He finds both Buddhism and Christianity appealing and wants to attend both churches but has suffered discrimination as a result. 4 The appellant's application for the visa was refused by a delegate of the Minister on 1 August 2013. 5 On 8 August 2013 the appellant applied to the Tribunal for review of the delegate's decision. By email dated 11 December 2014 the Tribunal received a statement from the appellant dated 10 December 2014 in which, among other things, the appellant claimed that he also feared harm in Sri Lanka as a result of his illegal departure. The appellant was invited to appear, and did appear, before the Tribunal to give evidence and present arguments at a hearing which took place on 17 December 2014. On 9 January 2015, the Tribunal received written submissions from the appellant's agent and documents in support of the appellant's claims to be well known in Sri Lanka due to his achievements as an athlete at a national level and his claim of holding the position of UNP chief organiser for the Chilaw district. 6 On 17 February 2015 the Tribunal affirmed the delegate's decision to refuse to grant the appellant the visa. 7 The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal's decision. On 24 February 2016 that court made orders and gave judgment dismissing the appellant's application and ordering the appellant to pay the first respondent's costs in a fixed amount. 8 By an originating application for review of a migration decision filed on 21 March 2016, which this Court will treat as a notice of appeal, the appellant now appeals from the orders made and judgment given in AFW15.