Bqa18 v Minister for Home Affairs

Link copied
Case Copied 26 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BQA18 v Minister for Home Affairs [2023] FedCFamC2G 1188

File number(s): MLG 833 of 2018
Judgment of: JUDGE J YOUNG
Date of judgment: 14 December 2023
Catchwords: MIGRATION – application in a case seeking reinstatement of judicial review application – where applicant applied for judicial review of decision of Immigration Assessment Authority – where applicant’s judicial review application was dismissed due to non-attendance – whether it is in the interests of justice to reinstate the application – found no reasonable excuse for the applicant’s non-attendance – whether the judicial review application has reasonable prospects of success – proposed grounds of review not reasonably arguable – application in a case dismissed.
Legislation:

Migration Act 1958 (Cth) ss 5H(1), 36(2), 473DB(1), 473DC(1), 473DD

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 17.05(2)(a)

Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(c)

Part 7AA
Cases cited:

AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37

AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

CAL15 vMinister for Immigration and Border Protection [2016] FCA 1344

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475

FBS18 v Minister for Home Affairs [2019] FCAFC 196

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

MZABP vMinister for Immigration and Border Protection (2015) 242 FCR 585

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Division: Division 2 General Federal Law
Number of paragraphs: 72
Date of hearing: 30 October 2023
Place: Melbourne
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondents: Mr Christopher Orchard of Sparke Helmore Lawyers

ORDERS

MLG 833 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BQA18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application in a proceeding filed 15 April 2019 be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE J YOUNG:

INTRODUCTION

  1. Before the Court is an application in a case filed 15 April 2019 (reinstatement application), in which the applicant seeks reinstatement of his…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Bqa18 v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] FedCFamC2G 1188
Decision Date

CaseChat Overview and Summary

In the case of Bqa18 v Minister for Home Affairs, the applicant, a citizen of Sri Lanka, sought reinstatement of his judicial review application following the dismissal of his initial application due to non-attendance. The applicant's original application was dismissed on 3 April 2019 after he failed to attend the scheduled hearing. The Minister for Home Affairs opposed the reinstatement application and sought dismissal with costs. The applicant's claims for refugee status were based on his background as a Catholic Sinhalese Tamil who fled Sri Lanka due to suspicions of being an informant for the LTTE and concerns arising from a data breach by the Department. The Immigration Assessment Authority had affirmed the Delegate's decision to refuse the grant of a Visa, finding that the applicant did not meet the criteria for refugee status under the Migration Act 1958 (Cth).

The legal issues the court had to determine were whether the application for reinstatement should be allowed and if it was in the interests of justice to do so, considering the applicant's failure to attend the initial hearing and the prospects of success of the judicial review application. The court also had to consider if there was a reasonable excuse for the applicant's non-attendance and whether the proposed grounds of review were reasonably arguable. The applicant argued that there were exceptional circumstances justifying the delay in filing the reinstatement application and that the substantive application had reasonable prospects of success. The Minister contended that the application for reinstatement did not provide sufficient grounds for reinstatement and that the delay was significant.

The court found that there was no reasonable excuse for the applicant's non-attendance at the initial hearing. Additionally, the court determined that the proposed grounds of review were not reasonably arguable. The court concluded that it was not in the interests of justice to reinstate the application and dismissed the application for reinstatement. The court found that the applicant had not provided sufficient justification for the delay in filing the reinstatement application and that the prospects of success of the substantive application were low.

The court dismissed the application for reinstatement and ordered that the application in a proceeding be dismissed with costs. The court further ordered that the Minister be paid costs of the proceedings on an indemnity basis. This outcome reflects the court's view that the applicant's failure to attend the initial hearing, coupled with the lack of reasonably arguable grounds for review, justified the dismissal of the reinstatement application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The first respondent opposes the applicant’s current reinstatement application, and also seeks orders that the application in a proceeding be dismissed with costs.BACKGROUND The applicant is a citizen of Sri Lanka. On 29 September 2012 the applicant arrived on Christmas Island as an unauthorised maritime arrival (UMA). On 10 October 2016 the applicant applied for the Visa. The applicant’s claims contained in his Visa application can be summarised as follows:·the applicant is Catholic Sinhalese Tamil, and resided in Kokilai until approximately 1991 or 1992;·the Sri Lankan Army (SLA) had a base in Kokilai, and the applicant would sometimes interpret for the SLA;·approximately a year after the applicant left Kokilai, the Liberation Tigers of Tamil Eelam (LTTE) attacked and bombed the military base;·the applicant was told by an acquaintance that the SLA suspected him of being an informant for the LTTE and that they were looking for him in relation to the bombing;·because of this incident, and because he believed he was wanted by the authorities, the applicant fled to Lebanon and Malaysia; and·the applicant returned to Sri Lanka in 2004 before departing for Australia eight years later. On 10 July 2017 the Delegate refused to grant the applicant the Visa as they were not satisfied that the applicant was a refugee as defined by s 5H(1) of the Migration Act 1958 (Cth) (Act), nor were they satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Act.Immigration Assessment Authority review on 12 March 2018 On 14 July 2017, the Department of Immigration and Border Protection (Department) referred the Delegate’s decision to the Authority for review under Part 7AA of the Act. On 12 March 2018, the Authority affirmed the Delegate’s decision not to grant the applicant the Visa. At paragraphs [15] – [28] of its decision the Authority set out its factual findings regarding the applicant. At paragraphs [31] – [35] of its decision the Authority considered the applicant’s claims regarding his links to the LTTE and concluded as follows:Based on the evidence before me, I find that the applicant’s profile as a bilingual Catholic Sinhalese from a Sinhalese settlement in the Northern Province, with past friendship links to Tamils – including Tamils connected to the LTTE – in the early 1990’s, would not give rise to any adverse interest in him by the Sri Lankan authorities. I am satisfied that the applicant can return to Sri Lanka and would not face a real chance of harm by any of the Sri Lankan authorities. At paragraph [36] of its decision the Authority accepted that while the applicant was affected by a data breach by the Department, there was no evidence that the applicant would become of interest to the Sri Lankan authorities because of the data breach. At paragraph [37] of its decision the Authority accepted that the applicant departed Sri Lanka illegally. The Authority also accepted that the Sri Lankan authorities may know or infer that the applicant made a claim for protection in Australia and that he will be subject to background checks on arrival in Sri Lanka. However, the Authority was not satisfied, having regard to the applicant’s profile, that he faced a real risk of any harm as a returning asylum seeker.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

On 10 July 2017 the Delegate refused to grant the applicant the Visa as they were not satisfied that the applicant was a refugee as defined by s 5H(1) of the Migration Act 1958 (Cth) (Act), nor were they satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) and 36(2)(aa) of the Act.Immigration Assessment Authority review on 12 March 2018 On 14 July 2017, the Department of Immigration and Border Protection (Department) referred the Delegate’s decision to the Authority for review under Part 7AA of the Act. On 12 March 2018, the Authority affirmed the Delegate’s decision not to grant the applicant the Visa. At paragraphs [15] – [28] of its decision the Authority set out its factual findings regarding the applicant. At paragraphs [31] – [35] of its decision the Authority considered the applicant’s claims regarding his links to the LTTE and concluded as follows:Based on the evidence before me, I find that the applicant’s profile as a bilingual Catholic Sinhalese from a Sinhalese settlement in the Northern Province, with past friendship links to Tamils – including Tamils connected to the LTTE – in the early 1990’s, would not give rise to any adverse interest in him by the Sri Lankan authorities. I am satisfied that the applicant can return to Sri Lanka and would not face a real chance of harm by any of the Sri Lankan authorities. At paragraph [36] of its decision the Authority accepted that while the applicant was affected by a data breach by the Department, there was no evidence that the applicant would become of interest to the Sri Lankan authorities because of the data breach. At paragraph [37] of its decision the Authority accepted that the applicant departed Sri Lanka illegally. The Authority also accepted that the Sri Lankan authorities may know or infer that the applicant made a claim for protection in Australia and that he will be subject to background checks on arrival in Sri Lanka. However, the Authority was not satisfied, having regard to the applicant’s profile, that he faced a real risk of any harm as a returning asylum seeker. Accordingly, the Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act, nor does the applicant meet the requirements of s 36(2)(a) or s 36(2)(aa) of the Act.PROCEEDINGS IN THIS COURT On 15 April 2019, the applicant filed an application in a case in which he seeks reinstatement of his substantive application filed 29 March 2018. As noted above, the substantive application was dismissed pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules (Cth) because the applicant did not attend a hearing before this Court on 3 April 2019. The applicant relies on his affidavit filed on 15 April 2019 in support of the reinstatement application. The Minister filed a Response on 13 September 2023. The Response contains the following grounds:1.The application for reinstatement does not provide grounds to justify reinstatement.2.The application for reinstatement is significantly delayed.