BDA16 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BDA16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2370
Catchwords:
MIGRATION – Application for an extension of time within which to make a competent application to the Court – consideration of factors – considerable delay in making application – no reasonable explanation for the delay – no reasonable prospects of success – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36, 91N, 91P, 91Q, 424A, 424AA, 425, 476, 477

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456
MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Re Refugee Tribunal Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 62 ALD 285
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 83 ALD 545
Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20
AZAFJ v Minister for  Immigration and Border Protection [2016] FCA 291
SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816
SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478
Hui v Minister for Immigration & Anor [2011] FMCA 486
Kaur v Minister for Immigration & Anor [2010] FMCA 634
MZYII v Minister for Immigration & Anor [2011] FMCA 193
Re Commonwealth; Ex Parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
MZZGC v Minister for Immigration and Border Protection [2015] FCA 842
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 SZTGV Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90; (2015) 318 ALR 450
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZTNL v Minister for Immigration and Border Protection [2015] FCA 463 SZMDS v Minister for Immigration and Citizenship [2009] FCA 210
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs  [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs  [2003] HCA 26; (2003) 197 ALR 389
Shi v Migration Agents Registration Authority [2008] HCA 31

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Details
Case
[2018] FCCA 2370
Decision Date

CaseChat Overview and Summary

BDA16 (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in their country of origin due to their membership of a particular social group. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant's claimed fear of persecution was well-founded, specifically concerning their membership in a particular social group. This required the Court to assess the evidence presented by the applicant and determine if it established a real chance of persecution upon return to their country of origin, as contemplated by the *Migration Act 1958* (Cth) and relevant international conventions.

Judge Nicholls considered the evidence regarding the applicant's asserted membership in a particular social group and the nature of the persecution they claimed to fear. The Court applied the established legal principles for assessing claims of persecution, including the objective assessment of the likelihood of harm and the definition of a "particular social group" under international refugee law. The Court found that the applicant had not discharged the onus of proving that they would, on the balance of probabilities, engage Australia's protection obligations.

Consequently, the Court dismissed the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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