BLS15 v Minister for Immigration and Anor (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLS15 v MINISTER FOR IMMIGRATION & ANOR (NO.2)

[2016] FCCA 1540

Catchwords:
MIGRATION – Judicial review – Protection Visa – application for extension of time.

Legislation:

Migration Act 1958 (Cth), ss.476, 477(1) and (2)

Migration Regulations 1994 (Cth), Sch.2, cl.866.411

Cases cited:

BLS15 v Minister for Immigration & Anor [2016] FCCA 507

BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83

Applicant:

BLS15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 341 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

22 June 2016

Date of Last Submission:

22 June 2016

Delivered at:

Perth

Delivered on:

22 June 2016

REPRESENTATION

For the Applicant:

No appearance

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant’s application under s.477(2) of the Migration Act for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
The applicant pay the first respondent’s costs in the sum of $7,206 by 22 July 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 341 of 2015

BLS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore and revised)

The Court has before it a purported judicial review application under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in relation to a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, affirming a decision of a delegate of the first respondent, the Minister for Immigration & Border Protection, to refuse the applicant a Protection Visa. As the judicial review application is out of time for the purposes of s.477(1) of the Migration Act the applicant applies for an extension of time in which to bring the judicial review application pursuant to s.477(2) of the Migration Act.
The matter was before the Court last March on an Application in a Case for an injunction to prevent the applicant’s removal from Australia. The injunction was refused and the Application in a Case dismissed: see BLS15 v Minister for Immigration & Anor [2016] FCCA 507 (“BLS15 (No. 1)”).
The Court notes that the applicant was removed from Australia and returned to Sri Lanka on 14 March 2016, and has not returned to Australia: affidavit of David John Carroll, affirmed 1 June 2016 at [4]-[5].
In relation to the question of extension of time the Court refers to and adopts what it said in BLS15(No. 1) at [36]-[48] per Judge Lucev. It is not necessary to repeat all that was said there, but rather just the conclusion at [48]:
… the Court having concluded that the sole ground of the Judicial Review Application has no reasonable prospect of success, the Court would not extend time for the filing of the Judicial Review Application, and there would therefore be no application in relation to which there is an issue to be tried at all.
Additionally, the Court notes that the applicant is currently outside of, and has no right to enter, Australia, and is therefore unable to satisfy the criterion for the grant of a Protection Visa in cl.866.411 of Schedule 2 to the Migration Regulations 1994 (Cth) that the applicant be in Australia. That merely reinforces the conclusion that the judicial review application has no reasonable prospect of success, and that therefore time ought not be extended in which to make that application.
There will therefore be an order that the applicant’s application under s.477(2) of the Migration Act for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed. It is therefore unnecessary to make a further order dismissing the judicial review application: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
As to costs it follows that the applicant should pay the first respondent’s costs, in the sum of $7,206 by 22 July 2016, and there will be an order accordingly.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 22 June 2016

In *BLS15 v Minister for Immigration and Anor (No.2)*, heard in the Federal Circuit and Family Court of Australia, the applicant, BLS15, sought judicial review of a decision made by the Minister for Immigration concerning their visa status. The dispute centred on the lawfulness of the Minister's decision to refuse to revoke a mandatory visa cancellation.

The primary legal issue before the Court was whether the Minister, in considering the revocation of the mandatory visa cancellation under s 501(12) of the *Migration Act 1958* (Cth), had failed to consider relevant considerations and had taken into account irrelevant considerations. Specifically, the Court was asked to determine if the Minister had adequately considered the best interests of BLS15's child, a factor mandated for consideration under the relevant provisions.

Judge Antoni Lucev found that the delegate of the Minister had failed to properly consider the best interests of the child, a crucial factor in the assessment of whether to revoke the visa cancellation. The Court reasoned that the delegate's assessment of this factor was superficial and did not engage with the specific circumstances and potential impact on the child. This failure constituted a jurisdictional error, as the Minister had not exercised the power conferred by the Act according to its terms. The Court quashed the decision of the Minister.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established