BJU15 v Minister for Immigration - [2018] FCCA 1296

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJU15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1296

Catchwords:
MIGRATION – Substantive application seeking review of former Refugee Review Tribunal decision – whether the Tribunal correctly applied the “real chance” test.

PRACTICE & PROCEDURE – Application for an extension of time to make a substantive application to the Court – consideration of factors – no reasonable prospects of success – application refused.

Legislation:

Migration Act 1958 (Cth), ss.91R, 476, 477

Cases cited:

SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252
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 315
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

First Applicant:

BJU15

Second Applicant:

BJV15

Third Applicant:

BJW15

Fourth Applicant:

BJX15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1965 of 2015

Judgment of:

Judge Nicholls

Hearing date:

14 December 2017

Date of Last Submission:

14 December 2017

Delivered at:

Sydney

Delivered on:

25 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr O Jones

Solicitors for the Applicant:

Bardo & Erci Lawyers

Solicitors for the Respondents:

Ms E Cheesman of Clayton Utz Lawyers

ORDERS

The application for an extension of time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 16 July 2015, amended on 16 October 2015, and further amended on 1 June 2017 is refused.
The first and second applicants pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1965 of 2015

BJU15

First Applicant

BJV15

Second Applicant

BJW15

Third Applicant

BJX15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 16 July 2015, amended on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1296
Decision Date: 25 May 2018

CaseChat Overview and Summary

The applicant, BJU15, sought judicial review of a decision made by the Refugee Review Tribunal. The core of the dispute concerned whether the Tribunal had correctly applied the "real chance" test in assessing the applicant's claims. The matter came before Judge Nicholls of the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Refugee Review Tribunal erred in law by failing to correctly apply the "real chance" test when considering the applicant's claims for protection. In addition, the Court was required to consider an application for an extension of time to make the substantive application for review, assessing whether there were reasonable prospects of success for the substantive application.

Judge Nicholls found that the applicant's substantive application for review had no reasonable prospects of success. Consequently, the application for an extension of time was refused. The Court did not proceed to consider the merits of the substantive application, as the threshold requirement of demonstrating reasonable prospects of success for the extension of time application was not met.

Orders