BVU15 v Minister for Immigration and Border Protection [2016] FCA 1446

FEDERAL COURT OF AUSTRALIA

BVU15 v Minister for Immigration and Border Protection [2016] FCA 1446 Appeal from: BVU15 v Minister for Immigration & Anor [2016] FCCA 1568

File number(s): QUD 495 of 2016

Judge(s): SIOPIS J

Date of judgment: 10 November 2016

Date of hearing: 10 November 2016

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 35

Counsel for the Appellant: The Appellant did not appear.

Counsel for the First Respondent: Ms A Stoker

Solicitor for the First Respondent: Clayton Utz

ORDERS QUD 495 of 2016

BETWEEN: BVU15 Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 10 NOVEMBER 2016

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant is to pay the costs of the first respondent, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia which is dated 13 June 2016. 2 The appeal was listed for hearing today at 10.15 am. It is now 10.30 am. The appellant has not appeared. I asked the Court officer to call the matter outside the Court. The Court officer has done so. The appellant has not answered the call. 3 In the circumstances, the first respondent has applied to have the appeal dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and r 36.75 of the Federal Court Rules 2011, on the ground that the appellant has failed to appear at the hearing of the appeal. I dismiss the appeal on that ground. 4 I will, however, in any event, have regard to the merits of the appeal because, in my view, the appeal is without merit. 5 The appellant is a 28 year old man from the Punjab state in India. The appellant entered Australia in March 2009 as the holder of a student visa. That visa expired on 4 April 2011. The appellant then applied for, and was refused, a subclass 485 visa. The appellant challenged that decision before the Migration Review Tribunal (the Tribunal), the Federal Circuit Court, and, ultimately, this Court. The appellant was unsuccessful in each of those proceedings. 6 Then, in June 2014, following those unsuccessful proceedings, the appellant applied for a protection visa. 7 The appellant claimed to be a follower of the Dera Sacha Sauda religion and he claimed that he and his family had suffered harm in the past by reason of their following of Dera Sacha Sauda. The appellant claimed that members of his family were targeted by the Sikh Youth Federation (SYF) because they had organised Dera Sacha Sauda related prayer groups at their home and the members of the SYF had threatened to kill the appellant and his family. The appellant said that he feared that he would suffer harm on this account if he was returned to India. 8 On 23 December 2014, the appellant was invited, by letter, to attend an interview with a delegate of the first respondent. That interview took place in January 2015 and was recorded. At that interview the appellant provided to the delegate a two page undated statement in support of his claim, and answered questions put to him by the delegate. 9 On 13 February 2015, the delegate refused the grant of the protection visa. The delegate referred to a number of matters which undermined the appellant's credibility. The delegate did not accept that the version of events which the appellant had given had actually occurred.