Beb17 & Ors v Minister for Immigration & Anor (No.3)

The applicants, citizens of China, sought judicial review of a decision by the Administrative Appeals Tribunal that affirmed the refusal of their protection visa applications. The applicants had arrived in Australia in 2008, and their claims for protection were based on alleged persecution due to their Christian faith and the potential difficulty in registering the birth of their daughter. The Tribunal had found the primary applicant to be untruthful due to numerous inconsistencies and vagueness in his evidence regarding his religious practices, family history, and past detentions. The Tribunal was not satisfied that the applicants were practising Christians or that they faced persecution for a Convention reason or under complementary protection criteria. The issue before the court was a second application for reinstatement of the judicial review proceeding, which had previously been dismissed for non-appearance.

The court was required to determine whether the explanation provided by the applicants for their failure to appear at the hearing of their first application for reinstatement was satisfactory. Additionally, the court had to consider whether the applicants should be required to seek leave from the court before filing any further documents in the proceeding, given the history of non-compliance.

Emmett J refused the second application for reinstatement. His Honour found that the explanation for the failure to appear at the initial hearing was not satisfactory. The applicants had failed to demonstrate a genuine intention to pursue the proceeding, evidenced by their prior non-appearance and the lack of a compelling reason for that absence. The court applied the principles governing applications for reinstatement, which require a demonstration of a good reason for the failure to appear and an intention to prosecute the matter diligently. Given the history of the proceedings, the court concluded that it was appropriate to refuse the application for reinstatement and to require the applicants to seek leave before filing any further documents.