BLB17 v Minister for Immigration and Border Protection

[2018] FCA 661

FEDERAL COURT OF AUSTRALIA

BLB17 v Minister for Immigration and Border Protection [2018] FCA 661

Appeal from:

BLB17 v Minister for Immigration & Anor [2017] FCCA 3091

File number(s):

NSD 118 of 2018

Judge(s):

ALLSOP CJ

Date of judgment:

9 May 2018

Legislation:

Federal Court Rules 2011 (Cth)

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR

Date of hearing:

9 May 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

The Applicant appeared in person with the assistance of an interpreter

Solicitor for the Respondents:

Ms J Strugnell of Minter Ellison

ORDERS

NSD 118 of 2018

BETWEEN:

BLB17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	9 MAY 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs for reason of non-appearance, pursuant to r 36.74(1)(c) of the Federal Court Rules 2011 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ

1. In this matter, there is evidence before me in an affidavit of Liam Michael Dennis affirmed on 1 May that the applicant left the country in March 2018. The applicant does not have a current visa. In the circumstances, the first respondent seeks an order under r 36.74(1)(c) Federal Court Rules 2011 (Cth), dismissing the application for an extension of time. I will make that order.

2. Not by way of dealing with the underlying application today, but should the matter reappear in the docket of the Court, I would only say that I was troubled by a number of things in the Tribunal decision. 

3. First, the utilisation of the delegate’s decision in a way that may have not been appropriate, but, more importantly, some of the conclusions of the Tribunal as to inconsistency, contradiction and lack of detail appeared, on occasions, to be merely self-assertive and, in fact, somewhat at odds with the balance of the evidence.  I look, in particular, at:

   ·the comparison between [42] and [45] of the Tribunal’s reasons;

   ·the lack of explanation of the matters referred to at [51] of the Tribunal’s reasons; 

   ·the lack of inconsistency on behalf of the applicant, notwithstanding the assertions in [56] of the Tribunal’s reasons; 

   ·a degree of what might be called illogicality on the Tribunal’s behalf at [65] of the Tribunal’s reasons. The Tribunal’s proposition that someone cannot pray because they cannot read might be logically neat, but ignores the fact that in prayer groups there may well be a repetition of what someone else is reading, which was the very thing that the applicant indicated, as reflected in [42] and [62] of the Tribunal’s reasons; and

   ·the lack of content to [66], [67], and [79] of the Tribunal’s reasons.

4. Those are not exhaustive.

5. That leads to my concern at the style of assertion by the primary judge of the Federal Circuit Court of Australia in his reasons, which does not really engage in any meaningful way with the reasoning process of the Tribunal, which is necessary given that the Court is obliged to consider whether the Tribunal decision was legally reasonable for the kinds of reasons set out in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1. This task is not met by a process of review which just looks at questions of fact as merits. Given, however, the absence of the applicant from the country, the appropriate course to take is the one sought by the Minister.

6. The orders of the court are the application be dismissed under r 36.74(1)(c) of the Rules.

7. In the absence of an explanation of the absence of the applicant, I will make an order for costs.  The order is subject, however, to the entitlement of the applicant to – should she return to Australia and seek to reinstitute the application – seek to set aside that order in due course; these orders having been made in her absence. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:    

Dated:       9 May 2018