BVT16 v Minister for Immigration and Border Protection [2018] FCA 356

FEDERAL COURT OF AUSTRALIA

BVT16 v Minister for Immigration and Border Protection [2018] FCA 356 Appeal from: BVT16 & Anor v Minister for Immigration & Anor [2017] FCCA 2379

File number: NSD 1634 of 2017

Judge: COLVIN J

Date of judgment: 19 March 2018

Date of hearing: 13 March 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 21

Counsel for the Appellant: The appellant appeared in person

Counsel for the First Respondent: Mr R White

Solicitor for the First Respondent: Mills Oakley Lawyers

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

ORDERS NSD 1634 of 2017

BETWEEN: BVT16 First Appellant

BVU16 Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: COLVIN J DATE OF ORDER: 19 MARCH 2018

THE COURT ORDERS THAT:

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

REASONS FOR JUDGMENT

COLVIN J 1 The appellants are father and son and are citizens of China. 2 On 21 June 2009, the appellants arrived in Australia; the father as the holder of a student guardian visa and the son as the holder of a student visa. The visas expired on 24 November 2010. 3 The appellants applied for a protection visa on 31 March 2014. The father claims to fear persecution in China on the basis that he and his wife are Falun Gong practitioners and because his wife has made complaints about government corruption associated with the closure of his pharmacy in China. No claims of fear of harm were made by the son. His claim to protection is as a family member. 4 The appellants' application was refused by a delegate of the Minister on the basis that the father's claims and knowledge of Falun Gong were vague and superficial. The delegate did not accept that he was a genuine or committed practitioner, that he had been identified by the Chinese authorities as a practitioner or that his parents had been contacted by the authorities in China about his activities in Australia. 5 The appellants sought review of the refusal in the Administrative Appeals Tribunal. 6 The Tribunal concluded that the father was not a credible witness. The Tribunal did not accept that the father or any of his family members were involved or associated with the practice of Falun Gong. 7 The appellants sought review in the Federal Circuit Court on a number of grounds set out in eleven paragraphs. The first stated that they disagree with the conclusion made by the Tribunal. The second stated that the Tribunal failed to consider the father's Falun Gong background and the hearing did not afford him the chance to demonstrate his understanding of the Falun Gong faith. The third ground stated that the Tribunal failed to consider the father's explanations and the Tribunal's doubts regarding his credibility made him stressed. The fourth ground stated that the father has a fear of returning to his origin country because of the high political pressure from the Chinese government on Falun Gong practitioners. The fifth ground reiterated that the Tribunal's reasons were not accepted and expressed pessimism about the Tribunal's judgment regarding his integrity and credibility. The sixth ground is that the Tribunal ignored oral evidence and failed to consider the father's commitment to his faith. The remaining five paragraphs asserted that the appellant is a refugee. 8 The Federal Circuit Court considered each of the grounds put forward by the appellants. The Court concluded that there was no jurisdictional error in the Tribunal's decision and dismissed the application. 9 The appellants now appeal to this court. The grounds stated in their notice of appeal are expressed in the first person although there are two appellants and reflect the fact that the claims of both appellants depend upon the claim by the father to protection. There are four grounds. First, that the Tribunal and Federal Circuit Court "failed to consider my explanation and supporting documents". Second, that "I am… a Falun Gong practitioner who will face persecution by Chinese government due to my beliefs". Third, that "I cannot go back to China since I am very scared to be sentenced and discriminated". Fourth, that the Tribunal and Federal Circuit Court "did not well consider…my fears and persecution if return to my home country". 10 The matter was listed for hearing on 15 March 2018. There was no appearance by the appellants. The Court made contact with the appellants by telephone. The only explanation provided for the failure to attend was that the appellants were not aware of the hearing date. Counsel for the Minister informed the Court of the steps that had been taken to notify the appellants and to deliver the appeal book to them at addresses specified in their notice of appeal. It was also noted that the appellants had been informed of the date and time of the hearing by email to the email address specified in the notice of appeal. The appellants confirmed that both those addresses were current. 11 I made orders for the matter to be adjourned to 13 March 2018 for hearing. The appellants were informed of the hearing by telephone and email. 12 On 13 March 2018, the son appeared but the father did not. The son said that he had full authority to make submissions on behalf of his father. I asked why his father was not at Court. I was told by the son that his father had a bad cold. The son confirmed that both he and his father had been present during the telephone call from the Court the previous week. 13 In the above circumstances, I proceeded with the hearing despite the failure of the father to attend. The son speaks Mandarin and was assisted in these proceedings by an interpreter who speaks Mandarin and English. 14 The grounds in the notice of appeal were translated to the son and he confirmed that those were the matters that the appellants wished to raise in support of the appeal. I noted that the complaint by the appellants in their notice of appeal was that the Tribunal and the Federal Circuit Court failed to consider things. 15 I invited the son to make submissions. I asked whether there was any particular aspect of the material before the Tribunal that the appellants said the Tribunal did not consider. 16 The son said that he could not speak for his father, but the Tribunal did not hear from him at all. He explained how long he had been in Australia and raised some matters that he said were of concern to him if he had to go back to China. Counsel for the Minister properly drew my attention to the record which showed that the son did not make a separate claim to protection in the application (but relied upon his status as a family member) and also declined to be heard before the Tribunal. In those circumstances, there is no merit in the complaint that the son was not heard before the Tribunal. 17 I then reminded the son of his statement that he had authority to speak for his father and asked him if there was any other matter that he wished to raise in respect of his father's application. He said that there was nothing further. 18 I have not treated the son as having authority to represent his father. I have dealt with the matter on the basis that there was no reason why the hearing of the matter should be further delayed given the absence of any adequate explanation for the failure of the father to attend. In spite of the failure to attend, I have considered the merits of the grounds raised in the notice of appeal. I have also considered the reasons of the Tribunal with a view to identifying whether they disclose any matter that might support the overall complaint that the Tribunal failed to consider material matters. 19 The Tribunal did consider the explanation provided for the claim to protection, reviewed the evidence of the father and the supporting documents and provided detailed reasons for not accepting the evidence of the father. No particulars were provided in the notice of appeal of any particular aspect of the material before the Tribunal that it had failed to consider. 20 The appeal has not established any error on the part of the Federal Circuit Court in concluding that it could see no jurisdictional error in the Tribunal's decision. 21 The appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.