AWP16 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 21 February 2019
• Neutral Citation: [2019] FCA 155
• Date: 21 February 2019

FEDERAL COURT OF AUSTRALIA

AWP16 v Minister for Home Affairs [2019] FCA 155

Appeal from:	AWP16 v Minister for Immigration and Border Protection [2018] FCCA 955
File number(s):	NSD 782 of 2018
Judge(s):	FARRELL J
Date of judgment:	21 February 2019
Catchwords:	MIGRATION – Appeal from a decision of the Federal Circuit Court of Australia – primary judge dismissed application for judicial review of a decision of the Refugee Review Tribunal to refuse the appellant a Protection (Class XA) visa chiefly on the basis of inconsistencies in appellant’s evidence – whether Tribunal failed to take into consideration relevant material – whether Tribunal was in breach of natural justice – grounds seemingly abandoned at hearing but nonetheless not made out – whether leave should be granted to rely on new ground alleging errors in translation during interview with delegate of the Minister – appeal dismissed
Legislation:	Migration Act 1958 (Cth), ss 424, 424A, 424AA
Cases cited:	Anne v Ask Funding Ltd (2015) 240 FCR 229; [2015] FCA 1111 AWP16 v Minister for Immigration and Border Protection [2018] FCCA 955 BZAID v Minister for Immigration (2016) 242 FCR 310; [2016] FCA 508 Minister for Immigration v Chamnam You [2008] FCA 241 MZYER v Minister for Immigration and Citizenship (2010) 115 ALD 382; [2010] FCA 522 NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SZNQR v Minister for Immigration and Citizenship [2010] FCA 152 SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260; [2010] FCA 1280 SZTNL v Minister for Immigration and Border Protection (2015) 31 FCR 204; [2015] FCA 463
Date of hearing:	9 November, 12 December 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	53
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr P Knowles
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent submitted to any order of the Court, save as to costs

ORDERS

		NSD 782 of 2018
BETWEEN:	AWP16 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	21 February 2019

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant must 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

FARRELL J

1. This is an appeal from a decision of the Federal Circuit Court of Australia: AWP16 v Minister for Immigration and Border Protection [2018] FCCA 955.

2. The appellant (also referred to as AWP16) arrived on Christmas Island by boat from Sri Lanka on 20 June 2012 as an irregular maritime arrival.

3. AWP16 participated in an arrival entry interview on 25 August 2012. He lodged an application for a Protection (Class XA) visa on 29 October 2012 together with a statutory declaration dated 25 October 2012 in relation to his claims. He attended an interview with a delegate of the Minister for Immigration and Citizenship on 27 February 2013 and the delegate refused to grant him a visa on 10 July 2013.

4. On 17 July 2013, AWP16 applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for review of the delegate’s decision. On 16 September 2013, AWP16 provided written submissions to the Tribunal. He attended a hearing with the Tribunal on 25 November 2014. He was invited to attend a resumed hearing on 11 February 2015 but he did not attend. On 18 August 2015, the Tribunal wrote to him through his appointed agent to tell him that the Tribunal member had changed. He attended a further hearing with the Tribunal on 15 September 2015. AWP16’s appointed agent attended the interview with the delegate and each of the hearings with the Tribunal that he attended. On 24 March 2016, the Tribunal affirmed the delegate’s decision.

5. On 19 April 2016, AWP16 applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The primary judge dismissed the application. AWP16 now appeals from that decision.

Federal Circuit Court decision

6. AWP16 appeared in person at the hearing of his application for judicial review of the Tribunal’s decision.

7. The primary judge summarised the claims made by AWP16 at the entry interview, in his statutory declaration and before the delegate at J[4]-[5] and [8].

8. The primary judge summarised the appellant’s claims at the entry interview at J[4] as follows:

The Applicant was a party to an Irregular Maritime Arrival Entry Interview on 25 August 2012 (entry interview) in which he claimed:

a) to have no guarantee for his life in Sri Lanka, there are so many problems and armed groups kidnap many people in white vans;

b) he was kidnapped on 4 April 2012 while he was about 100m from his house after having attended a temple. A white van approached and he was dragged into the van by about 5 people and he did not know why he was kidnapped, because “they kidnap everyone”;

c) he then went to hospital for his injuries and was there for one day; and

d) in 2011 when he had returned to Sri Lanka after having worked in Dubai from 2002 to July 2008 he and his friend went to a shop to buy things for a temple and the Special Task Force (STF) detained him under suspicion from the morning until the next day and gave him no food or water.

9. The primary judge summarised the claims made by AWP16 in a statutory declaration made on 25 October 2012 at J[5]:

a) he is an ethnic Tamil and a Hindu, born in the Batticaloa District of Sri Lanka;

b) he fled Sri Lanka in 2002 “due to the ethnic conflict in Sri Lanka” and travelled to Dubai on a work visa. He returned to Sri Lanka in 2008 as his parents had informed him that the situation in the east of Sri Lanka had improved slightly;

c) between July 2008 and February 2010 he was constantly harassed, physically assaulted and beaten by the STF of the Sri Lankan Government due to his Tamil ethnicity and perceived links to the Liberation Tigers of Tamil Eelam (LTTE) political group;

d) during the same period he was returning from a market and was stopped by STF personnel who took him inside their camp and beat him and other Tamil males severely and the STF subsequently handed him over to the police who locked him up inside the Police Station for one night and released him the following day;

e) as the situation was getting worse in Sri Lanka, in February 2010 he left Sri Lanka and travelled to Dubai again, returning to Sri Lanka on 1 June 2011 because his parents insisted that he get married;

f) on 1 April 2012 after returning home from the temple he was abducted by unknown persons travelling in a white van who spoke Sinhalese. He was blindfolded, bound and beaten. On 3...